The meeting was called to order by Mayor Jones at 7:00 p.m.

The Pledge of Allegiance was given.

The Minutes of the July 26, 2004 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman McDowell and seconded by Alderman Buermann to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

None.

BILL # 3305 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2 ENTITLED “DEFINITIONS” BY THE ADDITION OF CERTAIN DEFINITIONS FOR REGULATION OF SMOKING IN PUBLIC AND WORK PLACES AND BY THE ADDITION IN CHAPTER 17, A NEW SECTION 17-65 ENTITLED “BALLWIN CLEAN INDOOR AIR ACT”.

A motion was made by Alderman Gatton and seconded by Alderman Buermann to table Bill # 3305, Smoking Restrictions, until the next Board of Aldermen meeting on September 13, due to the absence of Alderman Robinson, and so that all Board members will be present for the vote.  A voice vote was taken with six yes votes and Alderman Pogue voting no.  The motion passed.

An additional motion was made by Alderman McDowell and seconded by Alderman Lembke that before the September 13 Board meeting, the Public Health & Safety Committee meet and discuss this issue with business owners and others interested in expressing their positions.  The Public Health & Safety Committee would then take into account the input and make a recommendation to the Board regarding Bill # 3305. 

A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Mayor Jones said there will be a meeting of the aldermanic committee for Public Health & Safety for business owners to give their comments before September 13. 

Alderman McDowell said that this is such an important issue that the business owners should be allowed to discuss the issue for a reasonable solution.  Making the right decision is more important than being one of the first cities to take action.  City Administrator Kuntz said that when the date of the meeting is set, it will be posted on the website and signs will be posted.

Mike Probst, owner of Bones French Quarter at 14766 Manchester Road:  Mr. Probst thanked the Board for postponing the vote and agreeing to listen to the concerns of the business owners.  He presented to the Board a petition with the signatures of customers who oppose the smoking restrictions. 

Elsa Barth, owner of Seventh Inn:  Ms. Barth spoke in opposition to the smoking ban.  She has tried for the past 6 months to operate with the no smoking concept in part of her restaurant and has suffered at least a 10% loss of business.  She is opposed to eliminating smoking completely. 

Beverly Clucker, 573 Goldwood Drive:  Ms. Clucker said it is a good idea to have a meeting with the business owners, but this should also include input from the citizens of Ballwin.  She said the Board should not make this decision for the whole city.  Mayor Jones said the aldermanic Public Health & Safety Committee meeting will be an open meeting and any citizen is welcome to attend.  The meeting date will be posted on the website as soon as it is scheduled.

Rick Dolgin, 1411 Shady Creek, co-owner of Frick’s:  Mr. Dolgin spoke in opposition to the smoking restrictions.  He said the ordinance would hurt his business enough that they would have to close.  He said the proposed ordinance is harsh with zero tolerance and excessive fines.  He is concerned that he cannot control at all times what goes on outside of his restaurant.  He said that after 10:00 p.m., 95% of his customers are smokers.  This ordinance would have a severe negative impact on his business.

Dave Jones, VFW Post 6274:  Mr. Jones said that he is opposed to the smoking bill.  He said the passage of this bill would seriously hurt the VFW or it may have to close.  The Ballwin VFW Post survives because of bingo night.  They have 105 people every Wednesday, both smokers and non-smokers.  Smoke filtering equipment is installed. 

Ray Maxwell, 1008 Savoy:  Mr. Maxwell said that he sells beverages to some of the Ballwin businesses.  He said if smoking is prohibited, people will not come early and have a drink or stay late and have a drink.  He said the Board should consider how this will affect the sales tax revenue.  He said these business are not public buildings.  In his view, this has become a property rights issue.  It is not appropriate to limit a legal activity on private property.

Jennifer Boyce, resident of Ballwin:  Ms. Boyce said that as soon as a restaurant opens its doors to the public, it becomes a public establishment.  She said secondhand smoke is the same as asbestos being in the public area.  She said the citizens have elected the Board of Aldermen and given it the power to make decisions such as this.  She thanked the Board for considering both sides of this issue.

Don Young, St. Charles County:  Mr. Young spoke in favor of the smoking restrictions.  He said he spends a lot of time in Ballwin doing education programs in schools, and he eats in many Ballwin restaurants.  He said he smoked for 34 years and the smoking caused his cancer.  Secondhand smoke causes the death of 53,000 people every year.  Over 3,000 babies die every year from secondhand smoke.  High school and college kids working in restaurants who don’t smoke are forced to breathe secondhand smoke.  This is not a healthy environment for the young people to be in.  He thanked the Board for their efforts.

Mayor Jones said that there will be additional opportunities for citizen comments at the aldermanic committee meeting and the September 13 Board of Aldermen meeting.

BILL # 3308 - AN ORDINANCE AMENDING CHAPTER 15 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN BY PROVIDING FOR NO LEFT TURNS FROM BALLWIN PLAZA NON-SIGNALIZED EXITS AT THEIR INTERSECTION WITH MANCHESTER.

A motion was made by Alderman Buermann and seconded by Alderman Suozzi for a first reading of Bill No. 3308.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3308 was read for the first time.

Alderman Gatton said there are two non-signalized exits from Ballwin Plaza.  He asked if this legislation will close both to left turns or just the one where the “pork chop” island was installed.  City Administrator Kuntz said this applies only to the exit where the “pork chop” island was installed at the middle exit to the plaza.  This legislation verifies the State’s action to restrict the turns.  There will also be a sign erected at this location. 

Alderman Gatton suggested that “NON-SIGNALIZED EXITS AT THEIR INTERSECTION” be changed to “NON-SIGNALIZED EXIT AT ITS INTERSECTION”, and in the first Whereas “exits” be changed to “exit”.  The Board agreed.

A motion was made by Alderman Gatton and seconded by Alderman Buermann for a second reading of Bill No. 3308 as amended.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3308 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3308 with the following results:  Ayes – Gatton, Suozzi, McDowell, Fleming, Buermann, Pogue, Lembke.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3308 approved and it became Ordinance No. 04-32.

BILL # 3309 - AN ORDINANCE PROVIDING FOR A BOUNDARY ADJUSTMENT BETWEEN THE STATE OF MISSOURI AND CITY OF BALLWIN FOR PROPERTY OWNED BY EACH RESPECTIVE ENTITY.

Mayor Jones said that a revised version of this Bill has been provided which adds the authority of the Mayor to execute the appropriate documents to effectuate this transfer.  It is now Section 3 of the ordinance.

A motion was made by Alderman Lembke and seconded by Alderman Pogue for a first reading of Bill No. 3309.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3309 was read for the first time.

A motion was made by Alderman Buermann and seconded by Alderman Gatton for a second reading of Bill No. 3309.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3309 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3309 with the following results:  Ayes – Buermann, McDowell, Fleming, Lembke, Pogue, Gatton, Suozzi.   Nays – None.  Whereupon Mayor Jones declared Bill No. 3309 approved and it became Ordinance No. 04-33.

BILL # 3310 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SUBDIVISION PLAT FOR VICTORIA POINT SUBDIVISION AS PROVIDED IN CHAPTER 25 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, MISSOURI.

Mayor Jones said this matter was on the Planning & Zoning Commission agenda on August 3, 2004.  The Commission members present voted unanimously to recommend approval of the subdivision petition.  Mayor Jones asked if this is with the proviso that the developer will work with staff to preserve the trees and landscaping.  Assistant City Administrator Aiken said that the revised site plan submitted to the Board addressed this issue.  The developer identified the trees that could be retained on site and those that could not because of the proximity of the houses to the site perimeter and the four lots at the end of the cul-de-sac.  There is also a landscaping proposal that would replace the trees that have to be removed.  The other items are technical matters that would be taken care of as a result of the standard review procedure. 

Alderman Gatton asked if the sidewalk will be built.  Assistant City Administrator Aiken said the sidewalk will be built, and the value of any roadway work will be put into the Reinke Road escrow fund. 

A motion was made by Alderman Lembke and seconded by Alderman Gatton for a first reading of Bill No. 3310.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3310 was read for the first time.

Alderman McDowell said that it appears that there are very few existing trees that will remain.  He asked if the petitioner provided any drawing that shows how the landscaping will look.  Assistant City Administrator Aiken said they propose to retain approximately 30% of the trees.  This was the staff report recommendation.  The trees have been preserved around the perimeter and in the common ground area.  Mr. Aiken pointed out the areas on the subdivision plat where the trees will be retained. 

Mr. Kevin Riggs, with Cole & Associates, representing developer Taylor Morley, explained the landscaping plan and pointed out the trees that will be saved.  He said he did a tree survey and determined that there are 80 existing trees on the site.  Staff requested that a minimum of 30% of the trees be saved.  His goal is to save more than 30% if possible.  He said the detention basin was originally shown on Reinke Road.  The detention basin has been moved away from the road and proposed with significant landscaping.  He said there will be 70-80 shrubs and several large trees around the detention basin and a 2-3 foot high decorative versalock or keystone landscaping wall that meanders through the basin.  He said there are storm water issues, and by properly placing the detention basin and putting most of the storm water into a storm sewer system, this will improve the storm water situation.

Mr. Riggs said the site is currently zoned R-3 and they are not asking for any change in the zoning. 

Alderman McDowell asked City Engineer Kramer if he is satisfied with the calculations for the storm water.  City Engineer Kramer said they will have to meet MSD standards which are more stringent than Ballwin’s. 

Alderman Lembke said he is aware of several places where the versalock wall has been constructed very quickly and now there is a question if they were properly installed.  Mr. Riggs said the maintenance of the detention basin will be the responsibility of the homeowner association. 

Alderman McDowell asked about the street light requirement.  Assistant City Administrator Aiken said that the street lights are in accordance with the requirements of the subdivision ordinance.  Street lights must be installed along a new street with the spacing of 250 feet. 

Alderman Fleming asked if approval of the subdivision is contingent on something else happening.  Assistant City Administrator Aiken said that he is satisfied that since the Zoning Commission meeting and the report to the Board was prepared, the developer has addressed the issue of preservation and replacement of the trees, and the other issues that were addressed in the staff report.  Alderman Fleming said he wants to be sure that approval is not given if the Board is waiting for something else that was required ahead of time.

Mr. Riggs said the average home sale in this subdivision will be $500,000.  These homes are Taylor Morley’s high end product. 

A motion was made by Alderman Buermann and seconded by Alderman Gatton for a second reading of Bill No. 3310.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3310 was read for the second time.

 A roll call was taken for passage and approval of Bill No. 3310 with the following results:  Ayes – Buermann, Suozzi, Lembke, Fleming, Gatton, McDowell, Pogue.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3310 approved and it became Ordinance No. 04-34.

Alderman Fleming requested that Item C, Seven Trails Wall, be removed from the Consent Items for further discussion. 

A motion was made by Alderman Lembke and seconded by Alderman Buermann to adopt consent items A, B, D and E.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Planning & Zoning Vacancy:  Mayor Jones said that the name of Sue Heath, 106 Denbigh Terrace, has been submitted as a candidate for the Ward 2 vacancy.  He said Mrs. Heath has worked on other citizen committees.  He proposed her appointment to the Planning & Zoning Commission.  A voice vote was taken with a unanimous affirmative result and the appointment was approved.

Mayor Jones announced that the next CERTS training will be on Friday, August 27, at 7:00 p.m., at the Donald “Red” Loehr Police and Court Center, 300 Park Drive.  He asked that a Board member make a brief welcoming speech.  Alderman Pogue agreed to do this.

Seven Trails Wall:  City Administrator Kuntz said that this wall is across Seven Trails Drive from the lower Vlasis Park parking lot, in the public right-of-way, close to the edge of the pavement and curbing.  It has deteriorated but is not failing.  The management of Seven Trails asked last year for this wall to be replaced.  Since this is a non-emergency expenditure and exceeds the budget amount, it is recommended that this project be postponed indefinitely.  Alderman Buermann suggested that in 2005 if another wall needs to be built that this wall could be included to get a better price. 

A motion was made by Alderman Lembke and seconded by Alderman Buermann to reject all the current bids.  A voice vote was taken with six aldermen voting yes and Alderman Fleming abstaining from the vote.  The motion passed.

Fireworks:  City Administrator Kuntz suggested coordinating with the Ballwin Athletic Association for a pre-arranged rain date at the time of the initial scheduling of the fireworks so that there is no confusion in the future.  Both dates could be advertised.  The Board agreed.

Subdivision Escrows:  City Administrator Kuntz said that if the subdivisions are going to be ready for public maintenance, the developers need to be put on notice that they have a limited time to get the items done.  After that time, if the items are not completed, the city will advertise, follow our procedures and use the developer’s escrow money to pay for it.  Mayor Jones asked if the escrow amount being held for Remington Place Subdivision is correctly stated in the memo.  Assistant City Administrator Aiken said he will check the amount, however, it is a substantial amount of money.  He said there are a lot of issues still pending in Remington Place Subdivision.  Because of the multiple changes in developers, the releases have not gone forward as expeditiously as a typical subdivision.  Alderman McDowell said that since there are problems with some of the developments, pressure should be applied to finalize the agreements. 

Alderman Gatton said that work stopped at Remington Place.  He asked if that was because of the takeover of Allegiant by Nations’ Bank, and if so, is this a resolved issue?  City Administrator Kuntz said that they won’t return our phone calls.  Alderman McDowell asked that the Board be updated on the progress in resolving this issue.

TIF Report:  City Administrator Kuntz said that the TIF Commission discussed the question of subarea 2b being removed from the district, the district being expanded, and the plan being amended to support high density residential uses, as well as commercial uses.  The recommendation of the TIF Commission is that one more attempt should be made to aggressively market all subareas, that this should be as expeditious as possible with a time limit.  If not successful, at that time, they recommend allowing property owners to remove their parcels from the district.  The Board of Aldermen is asked to accept and approve the TIF Commission recommendations so that the property owners can be notified.  The consultant has been contacted and asked to begin to prepare requests for proposals subject to earlier discussions with the Board.  He said this needs to be done as quickly as possible in the spirit of the Commission’s recommendations, if this is in agreement with the Board of Aldermen.  The Commission designated 12 months for 2b and 18 months for the whole remaining area.  Alderman Suozzi said that the general conversation from the TIF Commission was to use a staggered approach with the priority being 2b. 

Alderman McDowell said that Gloria Ventura, representing Rockwood School District, stated that she is opposed to the eastward expansion of the TIF District.  Alderman Suozzi said that generally her opposition was to high density residential.  Assistant City Administrator Aiken said the school district is opposed to subsidizing residential development because it will increase demand on the district without any increase in revenue.  Their concern was that the eastward expansion to Ballwin Manor apartments would most likely be a residential site, and she convinced the Commission that adding that area to the TIF District was not a good idea.  Alderman McDowell said that it is the school district’s position on all developments that they are opposed to residential of any type.  Mayor Jones said that developing new residential areas that would have a tax abatement for a period of years would cause them to lose the opportunity to collect property taxes.  Alderman McDowell said that he has a strong feeling that this should be reconsidered.  Assistant City Administrator Aiken said that to add this area to the TIF District would require going back to the Commission which has already recommended against this, asking them to reconsider hold a public hearing and make a formal recommendation to amend the plan after the public hearing. 

Alderman Suozzi said there is concern that commercial development would abut residential.  They were looking at the Ballwin Manor property and the church property being assembled together and treated as one piece for development.  Alderman McDowell said there are opposing sides to this issue and both sides should be presented. 

Alderman Suozzi said that her recollection of the meeting was that it started with the school district but also included representatives from the County.  The agreement was that at this point in time, expanding the district in that direction was not necessary.

Mayor Jones suggested that the Board review the TIF meeting minutes prior to the September 13 Board meeting.  Alderman McDowell said that this issue is far reaching.  This issue should be seriously considered. 

Alderman Gatton said that the area is being considered as primarily residential property, and he questioned that.  Alderman Suozzi said that she thinks that item 1 in the memo should be addressed because the district expressed a concern over any residential use.  She said there is an urgency for the property owners who want to see the Board do something since they have asked Ballwin to remove them from the district.  City Attorney Lucchesi recommended adopting item 1, but not act on items 2 and 3 until later.  Alderman Suozzi said the Board will be guided by Development Strategies.  Alderman Fleming said that if item 3 is not acted upon, they are asking for a mixed residential development and acting on only item 1, we might get all commercial proposals instead of mixed use.  Alderman Lembke suggested reviewing the minutes before taking action. 

Mayor Jones said that Board action will be postponed until the September 13 meeting after reviewing the minutes and further research. 

Sunshine Law:  City Attorney Lucchesi said that if an e-mail is sent to a majority of the Board, the e-mail becomes a public record and it must also be sent to a custodian of records.  This does not apply to e-mails between 2 aldermen or anyone sending an e-mail to less than a majority of the aldermen.  The actual resolution is adopted from the National League of Cities and he recommended that the Board adopt this as the policy. 

Alderman Gatton asked if the aldermen had city-based e-mail addresses, would every e-mail become a public record.  City Attorney Lucchesi said it could, however only those sent to a majority of the Board are required to be public record.

Alderman Fleming asked who is the custodian.  City Administrator Kuntz said that he is the custodian and said that if an e-mail is sent to a majority of the Board, a copy must be sent to him to comply with the law. 

Mayor Jones said that if any alderman wants a city-based e-mail address, it can be done.  Alderman Gatton asked if this is advisable.  City Attorney Lucchesi said it is not advisable because everything will be a public record.  He does not advise doing this and should abide by what the law requires, which is if an e-mail is sent to more than 4 members, a copy should be sent to the custodian, who is City Administrator Kuntz. 

City Attorney said that the copying fee ordinance also needs to be changed to match the Sunshine Law. 

A motion was made by Alderman Gatton and seconded by Alderman Lembke to draft legislation to update the policy for making copies to match the Sunshine Law.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

A motion was made by Alderman Lembke and seconded by Alderman Pogue to adopt the Resolution for 10¢ per copy plus the hourly time not to exceed the average hourly rate for the clerical staff.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Storm Drainage:  City Attorney Lucchesi said that the City should not get involved in drainage related private disputes between property owners.  He recommends that this policy be continued.  Alderman Gatton asked how this will impact a developer?  If a developer was deviating from the approved plan by changing the grading and drainage, this would create problems.  City Attorney Lucchesi said the City would be entitled to take action on this.  Alderman Suozzi asked that information be provided in the “Horizon” to remind property owners that adding a pool or changing the grade may negatively impact the water flow.  She said a lot of people don’t know how these changes can affect the drainage and it’s not as effective as when the homes were originally built.  City Administrator Kuntz said that the City does not spend public funds on private property.  Alderman Fleming said that if a property owner installed corrugated piping on his property leading to the property line, this would be an issue between the property owners.  City Attorney Lucchesi agreed.

Kennels:  Alderman Pogue proposed an amendment to the current definition of kennels, whereby service and law enforcement animals would be excluded.  The current definition says three or more dogs or other animals becomes a kennel.  City Administrator Kuntz said this amendment would be a limitation waiver based on those types of uses.  Mayor Jones said a service dog is a dog that assists physically or mentally challenged individuals or used in law enforcement.  City Attorney Lucchesi agreed. 

A motion was made by Alderman Pogue and seconded by Alderman Gatton to draft legislation to exclude service and law enforcement animals from the ordinance related to animals/kennels.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Finance & Administration Committee:  Alderman Buermann said there will be a meeting of the Finance & Administration Committee on September 27 at 6:15 p.m., in the Board room. 

A motion was made by Alderman Buermann and seconded by Alderman Gatton to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:35 p.m.

MC