The meeting was called to order by Mayor Jones at 7:02 p.m.

The Boy Scouts from Troop 631, who meet at St. Mark’s Presbyterian Church in Ballwin, presented the flags and led the Pledge of Allegiance.

The Minutes of the November 22, 2004 Public Health & Safety Committee meeting were submitted for approval.  A motion was made by Alderman Gatton and seconded by Alderman Buermann to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was passed.

The Minutes of the November 22, 2004 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Buermann and seconded by Alderman Gatton to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was passed.

2005 Capital & Operating Budget:  Mayor Jones gave a brief overview of the Capital and Operating Budgets for 2005.  He explained that these have been completely separate budgets since 1998.

The Capital budget is primarily funded by a ½ cent capital improvement sales tax and a ½ cent Parks improvement sales tax.  By law, these funds can only be spent for major improvements, vehicles, equipment acquisition, maintenance and such related expenses.  The Operating budget is funded primarily from sales tax, merchants’ licenses, and utility tax.  These revenues are used to pay salaries, employee benefits, insurance and expenses such as fuel, road salt and other supplies.  The Capital budget of $5,257,203 is almost $1/2 million less than last year.  Only one grant is expected in the amount of $593,400, which is an expenditure to construct sidewalks along Manchester Road.  Revenues are projected to remain flat.  34% ($1,770,740) of the total budget will be applied toward debt service. 

On the operating side, we are once again faced with the challenge of struggling to contain costs in light of continued sluggish economic conditions.  Ballwin is a city which is vitally dependent upon retail sales to fund its programs and services.  50% of our budget is directly related to business activity.  The total 2005 Operating Budget calls for expenditures of $13,463,117 and revenues of $13,463,648.  This compares with a 2004 budget of $13,460,710.

In summary, overall expenditures are in line with projected revenues.  There will be no change in programs or services, and no significant change in our revenue forecast is anticipated for the months ahead.

Mayor Jones asked if there are any proponents who wish to speak in favor of the proposed budgets.  There were none.

Mayor Jones asked if there are any opponents who wish to speak against the proposed budgets.  There were none.

Mayor Jones declared the Public Hearing closed.

Lynn Goetz, 14706 Clayton Road:  Mr. Goetz spoke in opposition to the proposed smoking legislation.  He said people don’t have to go where they will be exposed to smoke.  He said the businesses in Ballwin will suffer from this legislation.  This is taking away freedom.

Dan Mesmer, 572 Lemonwood:  Mr. Mesmer spoke in favor of the proposed smoking legislation.  He said smokers violate his rights.  Secondhand smoke has many harmful chemicals and is called involuntary or passive smoking.  A survey showed that in Missouri 22% of the people smoke and 78% do not smoke. 

Mike Probst, owner of The French Quarter at 14766 Manchester Road:  Mr. Probst spoke in opposition to the proposed smoking legislation.  Mr. Probst said the impact on Ballwin businesses will be negative.  He explained the negative impact that the business owners and employees are experiencing in Arnold because of the smoking ban in that city.  He said his business could not be sold if the smoking ban is passed.  A smoking ban will put them out of business.

Randy Kristler, 567 Robin, Arnold, Mo.:  Mr. Kristler spoke in opposition to the proposed smoking legislation.  He said the smoking ban will drive business to other cities.  The economic impact to employees will be lost tips.  He said the late night bar business is down 50%.  Since he is a bartender in Arnold, he said this costs him between $50 and $75 per night, which is $12,000 - $15,000 per year.

Peggy Maul, 4 Zuider Zee Ct.:  Ms. Maul spoke in favor of the proposed smoking legislation.  She does not like her children being exposed to tobacco smoke.  This disrupts the enjoyment of their dinner.  She asked the Board to consider the health and welfare of the entire community.  The majority of people who do not smoke are exposed to the harmful effects of smoking by the minority.

Eric Gaffrin, 4726 Villa Knoll Drive, owner of Dillion’s Sports Bar & Grill:  Mr. Gaffrin spoke in opposition to the proposed legislation.  He suggested that the voters should be given a choice in making this decision.  He also said that the State should decide when non-smoking should be effective for everyone.  He said that a percentage basis could be used to allow some facilities to be exempt from the ban. 

Steffie Geyer, 730 Stone Meadow:  Ms. Geyer spoke in favor of the proposed smoking legislation.  She said that secondhand smoke is dangerous to health.  For every 8 smokers that die from tobacco smoke, it also takes a non-smoker.  The toxins from cigarette smoke go everywhere that the blood flows in the body.  Secondhand smoke is a Group A carcinogen and is in the same category with asbestos, radon benzene, which is very dangerous.  More than 4,000 chemical compounds are identified in secondhand smoke and 69 of these are known to cause cancer in human beings and animals. 

Nick Dashman, 1432 Cedar Bluff Drive:  Mr. Dashman spoke in opposition to the proposed smoking legislation.  He said that studies have found no statistical evidence of a relation between harm and secondhand smoke.  The findings of the EPA have been highly inconsistent with the real findings of the studies.  He said that bars are in business to make money.  If there was a demand to ban smoking, they would do this and still make money.  He said there is no role for government in this decision process.

Alisa Neighbor, 244 Dennison, and employee at Frick’s Bar & Grill:  Ms. Neighbor spoke in opposition to the proposed smoking legislation.  She is concerned about the economic impact and that she will probably lose her job.  She relies heavily on this income.  She is a non-smoker.  Every restaurant owner should decide if their facility is going to be smoke-free. 

BILL # 3329 - AN ORDINANCE APPROVING AND ADOPTING A BUDGET OF ANTICIPATED CASH REVENUE AND CASH DISBURSEMENTS FOR THE CAPITAL IMPROVEMENT PROGRAM OF THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI, FOR THE FISCAL YEAR COMMENCING JANUARY 1, 2005, AND ENDING DECEMBER 31, 2005, PROVIDING FOR EXPENDITURES IN ACCORDANCE WITH SAID BUDGET AND MAKING APPROPRIATIONS THEREOF.

A motion was made by Alderman Suozzi and seconded by Alderman Buermann for a first reading of Bill No. 3329.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3329 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. 3329.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3329 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3329 with the following results:  Ayes –Buermann, McDowell, Robinson, Lembke, Fleming, Suozzi, Pogue, Gatton.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3329 approved and it became Ordinance No. 04-49.

BILL # 3330 - AN ORDINANCE APPROVING AND ADOPTING AN OPERATIONS BUDGET OF ANTICIPATED CASH REVENUE AND CASH DISBURSEMENTS FOR THE GENERAL REVENUE FUND OF THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI, FOR THE FISCAL YEAR COMMENCING JANUARY 1, 2005, AND ENDING DECEMBER 31, 2005, PROVIDING FOR EXPENDITURES IN ACCORDANCE WITH SAID BUDGET AND MAKING APPROPRIATIONS THEREOF.

A motion was made by Alderman Robinson and seconded by Alderman Lembke for a first reading of Bill No. 3330.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3330 was read for the first time.

Alderman McDowell complimented staff and the Board in putting together this budget.  He said every attempt has been made to address every issue that the City has to consider from a budgetary standpoint.  Mayor Jones said this is a good budget and he is proud to be part of the process.

A motion was made by Alderman Gatton and seconded by Alderman Buermann for a second reading of Bill No. 3330.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3330 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3330 with the following results:  Ayes –Gatton, Pogue, Robinson, Buermann, Fleming, Lembke, McDowell, Suozzi.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3330 approved and it became Ordinance No. 04-50.

BILL # 3319 - 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 AIR ACT”.

A motion was made by Alderman Gatton and seconded by Alderman Pogue for a first reading of Bill No. 3319.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3319 was read for the first time.

Alderman Suozzi said the “Chapter 17” should be added to the title.  She also pointed out that “Indoor” has been left out of “Ballwin Clean Air Act”.  Alderman Robinson said that the bill that has been recommended by the Public Health & Safety Committee encompasses areas that are outdoors; therefore, this is an intentional deletion.

Alderman McDowell addressed the following issues: 

Page 3 of 6, Section A, Item 10:  He said that the ability of an individual to smoke in a condominium, or apartment, should have the same rights as living in and smoking in a home. 

Page 5 of 6, Section G, Item 6:  He said this is overextending for the City of Ballwin.  It is the Board’s duty to hand down legislation.  Enforcement is under the obligation of another department. 

Page 5 of 6, Section H, Item 3:  He said it has been consistent that if an individual had a violation of a liquor license, it did not jeopardize any other license.  The statement in the proposed legislation has a more than normal punishment for a business for not complying with the smoking restrictions.  A business could be put out of business if they do not comply with this because they could lose other permits that will put them out of business. 

Page 6 of 6, Item 5:  He said this is too encompassing for the Board to adopt. 

Page 6 of 6, Section 2:  The enforcement date puts an unfair burden upon a business that does not sell alcoholic beverages.  The business that does not sell alcohol has been unfairly singled out.  This also places an unfair burden on a new business and gives the business that is already in Ballwin an unfair advantage.  The competitor who is already established in Ballwin can sell alcoholic beverages for another year.  The starting date should be the same for all businesses. 

Alderman Buermann said that in Springfield, there is a smoking restriction because 18% of the 400 restaurants, which is 72 restaurants, have an exemption.  This is not a ban, but a restriction.  He said he asked previously what moved this bill from a restriction to a ban.  This bill came out of the Public Health & Safety Committee as a ban.  He said this legislation will have a widespread rippling effect that can include employees losing their jobs, businesses closing, and litigation.  Alderman Lembke previously suggested an adult smoking establishment, but this was not included by the committee.  He believes that businesses will be negatively impacted.  He wants to give the Ballwin businesses a level playing ground.  Until a regional, St. Louis County, Lafayette Mayors, or the State of Missouri regulation is passed, Ballwin businesses will face an unlevel playing field, which will be a detriment to the City of Ballwin.  Some of the businesses have been in Ballwin for many years.  He asked for consideration for those businesses to work with them.  The budget is critical and this is one of the ripples that this legislation may have. 

Alderman Buermann said he is also concerned about the Ballwin VFW on their bingo nights.  They could lose between $13,000 - $15,000.  They offer 6 $1,000 scholarships to Rockwood School District every year. 

Alderman Fleming said that this legislation has a worthy goal, which is working toward a smoke-free community.  He said it was his understanding that a plan would be designed to gradually get to that point.  The proposed legislation is a ban instead of such a plan.  There were various suggestions that did not get fair consideration.  The proposed legislation moves toward an immediate ban instead of a plan that has a timeline, a set of objectives, a gradual phase-in, and builds consensus within the community.  He is not sure that this is the bill that should be passed. 

Alderman Pogue said it is time that Ballwin take a pro-active approach to protect the health and safety of the residents, as well as those who do business in Ballwin. 

Alderman McDowell said, regarding Page 3, Item 10, that it is not the duty of the City of Ballwin to extend jurisdiction into residential or private homes.  A residential facility is considered a home for individuals who are residents at that location.  Multi-unit residential facilities and condominiums have attached units that are similar to regular homes.  Alderman Robinson said that Bill 3319 does not restrict smoking in an apartment, a condominium unit, or a retirement facility.  The bill restricts the smoking in the public areas of apartment buildings and condominiums.  The common hallway or common lobby is a public area.  Alderman McDowell said that the trustees should determine this and not the City of Ballwin. 

Alderman Buermann asked what the effect of this legislation would be on Meadowbrook Country Club.  Alderman Robinson said that in the 4 Public Hearings on this matter, there has not been any restaurants that had a bar attached to speak about being treated differently or being infringed upon.  This bill does not restrict or ban smoking at the VFW Hall.  The time table for the effective date was proposed by one of the business owners.  He said this is not a business decision as to how much money can Ballwin make.  When something is unhealthy or dangerous, the Board legislates.  He said that smoking sections in restaurants are not full.  The Public Health & Safety Committee members are confident that Ballwin, as a whole, would not be adversely affected by this ban.

Alderman Fleming said that most of the people who will be protected from secondhand smoke by this legislation are people over the age of 18 who have the ability to make a choice for themselves.  He said in some cities around the country that have smoking regulations, they used a progressive plan with public education.  This approach will build more goodwill than an immediate ban. 

Alderman McDowell said he thinks there should be some restrictive guidelines regarding smoking in restaurants.  He also agrees with Alderman Fleming that a gradual and educational step process is more viable than a total ban.  It is difficult for him as an Alderman to take businesses that have been in Ballwin for a long time, and cause them to fail, or put them on an unfair playing field with surrounding communities, and then hope that other communities will pass legislation that will level the field.  He said his goal as an Alderman is to make sure that Ballwin businesses have the best playing field and the best opportunity of any business in St. Louis County to compete on the corridor of Manchester Road.  Alderman McDowell said the Board should develop a progressive plan and not a total ban.  He said alcohol sales should not be the determining factor to merit a smoking ban in 30 days or a year.  This is not fair.  He said all restaurants should be on the same level.  There could be a smoking and a designated family time. 

Alderman Fleming suggested that a total ban could be effective in 3 years.  In the meantime, all bars and restaurants that allow smoking could post signs to let people know that they are entering a facility that allows smoking.  Parents of employees that are under age 18 could sign a waiver stating that they are aware of the smoking atmosphere in which their child will be working.  It should be a gradual step.  He said that almost every piece of legislation from around the country contained exceptions.  There are some facilities in California where smoking is allowed.  Massachusetts is going to revisit their smoking legislation because the smokers went outside of the bars in the residential areas and disturbed the residents in the area.  He said he doesn’t think everything has been considered at this time.  The ultimate goal should be a smoke-free community.  He said if this legislation is passed at this meeting, he believes that the businesses will look for a way to overturn the legislation in the next year.  It won’t be a productive use of anyone’s time.  We should not go past the line of telling people what they can do even if it is our personal belief.  This is going too far into their business without giving them a chance to come along with the plan.

Alderman Robinson asked if it is the right thing to ban smoking, in one year or three years, why is it not the right thing to ban smoking now?  The committee suggested a one year delayed deadline because some of the businesses said they need time to adjust their business plan and try to encourage the other communities surrounding Ballwin to move forward and enact their smoking ban.  He said the focus of the bill is not to protect the public who go to restaurants to eat; the focus is first and primarily to protect the employees and give them a safe environment in which to work.

Alderman Fleming said that in evaluating some of the legislation from across the country that have done this as a workplace issue, most of the bans have been put into effect by the Board of Health or Labor Board, not necessarily a Board of Aldermen.  Alderman Robinson disagreed and said that most of the bans have started on a local municipal level and have culminated in a state-wide ban.  Alderman Fleming said that some of the bans started with the voters bringing a petition and asking for a ballot issue. 

Alderman McDowell said that he cannot use a sledge hammer approach upon the businesses and say that this will be done right now.  Alderman Robinson said that the Board does this very thing.  When a developer says they want to put a commercial development in the middle of a residential area, if your personal belief is that the commercial area is not consistent with the surrounding residential character of the neighborhood, the Board will vote against it.  This shows that the Board does vote according to their personal beliefs. 

Alderman McDowell suggested that Item 10 in Section A be deleted, Item 6 in Section G be deleted. 

Section H, Item 3:  Alderman McDowell said that if a business has trash outside of the dumpster, we don’t pull their liquor license.  The business is penalized based on that violation.  Alderman Gatton said that repeated violations would indicate that they are not a good business citizen.  This Board decides if the liquor license will be renewed with the input of the Police Department about the behavior of the business.  City Attorney Lucchesi said that the ordinance does not state “repeated” violations.  Therefore, this item can also be deleted.

Section H, Item 5:  Alderman Gatton said he agrees with Alderman McDowell because he does not want to see any retaliation against employees, however, he doesn’t think our court is set up to be an arbiter in this type of situation.  Mayor Jones said it would be difficult to convince a court that there is a retaliation in the workplace and it would be difficult to enforce.  Any case will rise or fall on the strength of its evidence.  He doesn’t think this provision is going to find its way into the court very often. 

Section 2 – Effective date:  Alderman Gatton said this is regarding an effective date for a business that does not serve liquor by-the-drink and one that does.  He said the Public Health & Safety Committee struggled with the issue of creating an adult smoking facility.  The committee received guidance from the City Attorney and decided that this was not a route that could be easily established.  Different percentages were considered but this would be unfair to businesses that are close to the defining percentage.  The committee decided that this was an unworkable procedure after two sessions of discussion.  He said if other members of the Board are willing to waive this item, he is in agreement to make the effective date the same for everyone on January 2, 2006.

Alderman McDowell said he believes that there should be smoking regulations when the criteria is governed by the business that individuals of a certain age limit are able to participate in the business and the business would have a criteria that would classify itself as a smoking bar.  He also believes that some of the other types of business, it would be a different time frame for those businesses for the effective date of the smoking ban.  He is in favor of a smoking bar or the criteria that would govern those that decide they would like a smoking area. 

Mayor Jones said that the goal is to present a bill that will be read by title only and a vote take place.  The present bill should be revised to the point where the sponsors are satisfied.  Trying to satisfy each individual alderman on every point will not necessarily make it possible to reach this goal. 

Alderman Lembke said that State law requires a business to set aside no less than 70% of the seating inside of a facility for non-smoking.  If a place was designated as “smoking”, they would still have to set aside 70% or more of their seating, excluding the bar area, for non-smoking in order to be in compliance with the State law.  With this in mind, what is being accomplished with a smoking bar? 

Alderman Lembke said that the City of Arnold is now in a potential legal situation in that its law requires the business to have at least 70% sale of alcohol or $200,000 in alcohol sales in order to get the exemption.  State law says that if an establishment has less than 51% on Sunday and serves liquor by-the-drink, the establishment cannot be open.  This has put the City of Arnold in a bad position.  He said if he was a restaurant owner, he would be going after the City for arbitrarily and capriciously picking 70%.  How did they arrive at that and can they justify it?  He said the City of Ballwin should avoid this situation. 

Alderman Fleming said that the provision that dealt with smoking within a certain number of feet of an entrance to a building was eliminated.  He said that this was one item that he liked best about the proposed legislation.  He does not want someone smoking at an entrance when he is walking into an establishment where he must go.  Alderman Gatton said that this item was removed because of the difficulty of enforcement.  Many of the restaurants are in strip centers and it may not even be their customers smoking in front of their establishment.

Alderman Gatton said there is a provision that reinforces Ballwin Athletic Association’s outdoor facility.  There is a smoking ban at this location, but they have a difficult time enforcing it because it’s an organization’s ban as opposed to a municipal code.  They have run into problems with people being very belligerent.  For this one outdoor facility and any potential similar facilities to help with the situation. 

Section G, Item 5:  Alderman Fleming said he doesn’t understand what will happen in a situation when the owner says to a customer, “You’re smoking in here, that’s not allowed”, and the customer continues to smoke.  The proposed legislation indicates that the owner is still liable.  If that’s the case, you are asking the owner to provoke a confrontation with someone who is smoking, and he said he doesn’t think that is what should happen. 

Alderman Gatton said this was to establish a process to deal with the situation.  Alderman Lembke said if the owner or employee notifies the individual of the violation, and then calls the enforcement officer if they continue to smoke, they are in compliance.  The owners will not be expected to enforce this on their own.  Alderman Gatton said that there are also posting requirements with no smoking signs. 

A motion was made by Alderman Robinson and seconded by Alderman Gatton for a second reading of Bill No. 3319, as amended by the deletion of paragraph A, item 10; paragraph G, item 6; paragraph H, item 3; paragraph H, item 5, and the deletion of Section 2, items B and C; and section 2, item A be amended that this ordinance shall become effective on January 2, 2006.  A voice vote was taken with 7 Aldermen voting Aye and Alderman McDowell voting Nay. 

Mayor Jones said that according to the Policy Manual, the one negative vote will cause this matter to be held over until next month, because Policy 6-3 states that in the event any alderman votes against the second reading at the same meeting at which the first reading was held.  The matter will be tabled until the next scheduled meeting. 

Alderman McDowell said that a bill of this magnitude warrants a better hearing than a patch and place setting.  He asked that a copy of the bill with the revisions be provided to the aldermen, which will give proper time to consider the revisions. 

Mayor Jones announced that the motion for a second reading failed.  This matter will appear on the January 10 Board of Aldermen Meeting agenda.

A motion was made by Alderman Robinson and seconded by Alderman Lembke to have the City Attorney draft a revised Bill # 3319 with the changes noted.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Alderman Lembke asked that the Board be provided with a copy of the revised Bill # 3319 rather than the Thursday before the Board meeting, at least one week in advance of the meeting.  City Administrator Kuntz agreed.

BILL # 3322 - AN ORDINANCE APPROVING THE MXD SITE PLAN OF HOLLOWAY KEHRS MILL CROSSING SUBDIVISION IN THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI.

Mayor Jones said there are changes in the proposed site plan.  The Planning & Zoning Commission considered this issue on October 4, 2004 and recommended favorably.  He asked if the changes are substantial enough that the Planning & Zoning Commission reconsider the site plan.  City Attorney Lucchesi said he thinks the changes are more restrictive than what the Planning & Zoning Commission approved.  Since the changes have been made in response to comments from this Board, he does not believe the Planning & Zoning Commission needs to reconsider the plan.

Dan Nester, Attorney representing Ron Hopper, explained that the MXD (Mixed Use) zoning code allows two types of uses simultaneously, commercial and residential.  Professional and business office uses are permitted.  Residential uses are uses that are expressly permitted.  The Mixed Use District is designed to permit growth and greater flexibility and development of mixed and residential commercial uses. 

Mayor Jones asked how this proposal is different from the one previously submitted.  Mr. Richard Halsey, Land Planner, said the office building addition is smaller.  Originally the proposal was for 4,700 square feet of office space with a 20-foot addition being constructed on the back of the building.  This has been revised downward to no more than 4,000 square feet.  This is a 20% cut from the original proposal.  The parking spaces have been reduced from 19 to 16.  The green space has been increased. 

Mr. Nester said that the office building will have a residential scale and appearance that is typical of the area and community.  Mr. Halsey said the office building will have the residential atmosphere that the Board feels is necessary to protect the City’s interest and the neighborhood. 

Mr. Halsey said the commercial use will be limited to business and professional only.  There will be no retail, restaurant, etc.  If the building changes ownership twenty years down the road and they want to do something different, they will have to come before the Board of Aldermen for approval.  Mr. Nester said if a document needs to be recorded to insure this restriction, they will be glad to do this.  He said a deed restriction would be permanent and could not be changed. 

Mr. Halsey said the signage will be reduced to 32 square feet per face, which is 30% of what is actually permitted.  Illumination will be ground mounted with adequate shields so there is no adverse impact on surrounding neighbors.  City Administrator Kuntz said there will be a staff review of the sign application.  Mr. Nester said they are willing to live with a sign that is similar to the Vlasis Park sign in every way and can be a condition to the zoning. 

Mr. Halsey said the landscaping is being increased as suggested by the Board.  The vegetation that surrounds the perimeter will be evergreen.

Mr. Halsey said the setback has been increased to 16 feet.  In the initial plan, the setback was 7 feet.  Mr. Nester said that when compared to surrounding areas and developments, this development is consistent or exceeds all of the setbacks.  This is within the zoning ordinance. 

Mr. Nester said that the visual appearance of the residential development is consistent with the surrounding area.  The residential uses are consistent with the surrounding area. 

Mr. Nester said the commercial structure is consistent with the character of this neighborhood and visually compatible with the neighborhood.  The existing structure and existing parking spaces will be used.  Signage has been changed and is consistent with the neighborhood. 

Mr. Nester said the commercial use proposed is also consistent with the neighborhood.  There were existing commercial uses at this site before Mr. Hopper purchased the property.  He said they are not asking for a variance.  They are asking for permission to use this parcel in accordance with the permitted use.  He pointed out that the City of Ballwin has enacted an ordinance and specifically zoned this property as mixed use represents a conclusion that the City viewed this property as appropriate for a mixed use type of project.  This is exactly what is being proposed.  Mr. Nester said there are other commercial uses in the vicinity.  The City has a maintenance facility that backs up to the condos. 

Mr. Nester said the commercial use that is being proposed is the best possible scenario for this property.  This is a compatible use.  He does not foresee that there will be a high activity level that is problematic to this neighborhood.  Mr. Hopper stated that he conducts business on the weekends only by appointment, and the facility will be operated only during regular business hours. 

Mr. Nester requested that the exhibits in his letter be officially entered into the record as being considered on this application.  Mayor Jones said they will be entered into the record.  He asked the Board to approve both applications. 

A motion was made by Alderman Lembke and seconded by Alderman Fleming for a first reading of Bill No. 3322 as amended to accept the changes offered by Mr. Hopper.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3322 was read for the first time.

Alderman Gatton said this proposal is entirely consistent with the MXD zoning regulations.  He said he cannot find any basis to deny the request and he recommended approval.

A motion was made by Alderman Pogue and seconded by Alderman Fleming for a second reading of Bill No. 3322 as amended.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3322 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3322 with the following results:  Ayes – Pogue, Lembke, Suozzi, Fleming, Gatton, Buermann, McDowell.    Nays – Robinson.  Whereupon Mayor Jones declared Bill No. 3322 approved and it became Ordinance No. 04-51.

BILL # 3323 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SUBDIVISION PLAT FOR HOLLOWAY KEHRS MILL CROSSING SUBDIVISION AS PROVIDED IN CHAPTER 25 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, ST. LOUIS COUNTY, MISSOURI.

A motion was made by Alderman Gatton and seconded by Alderman Fleming for a first reading of Bill No. 3323.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3323 was read for the first time.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a second reading of Bill No. 3323.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3323 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3323 with the following results:  Ayes –Lembke, McDowell, Suozzi, Fleming, Buermann, Gatton, Pogue.    Nays – Robinson.  Whereupon Mayor Jones declared Bill No. 3323 approved and it became Ordinance No. 04-52.

BILL # 3331 - AN ORDINANCE AMENDING CHAPTER 24 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN, AND IN PARTICULAR SECTION 24-49 ENTITLED “APPLICATION FEE” WITH RESPECT TO EXCAVATION PERMITS.

A motion was made by Alderman Robinson and seconded by Alderman Suozzi for a first reading of Bill No. 3331.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3331 was read for the first time.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a second reading of Bill No. 3331.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3331 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3331 with the following results:  Ayes –Lembke, Robinson, Pogue, Buermann, Fleming, Suozzi, Gatton, McDowell.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3331 approved and it became Ordinance No. 04-53.

BILL # 3332 - AN ORDINANCE ACCEPTING THE STREETS OF REMINGTON PLACE, HALLMARK PLACE, COVENANT PLACE, AND BARKER ESTATES SUBDIVISIONS FOR PUBLIC MAINTENANCE, AS PROVIDED FOR IN THE CODE OF ORDINANCES OF THE CITY OF BALLWIN.

A motion was made by Alderman Suozzi and seconded by Alderman Lembke for a first reading of Bill No. 3332.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3332 was read for the first time.

Alderman Fleming asked if there are any updates on the outstanding items.  City Administrator Kuntz said there are no updates that affect the public maintenance of the streets.  There are engineering issues regarding walls, stability, and landscaping, but nothing that will affect the streets, which is the most critical aspect to the residents, since this will give them the opportunity to get Ballwin’s snow plowing this winter.  The escrow funding will be used to address the other issues, per Board instructions. 

Alderman Fleming asked if it is procedurally correct to accept the streets for public maintenance prior to resolving the other issues.  City Administrator Kuntz said that it would be ideal to have everything completed at the same time.  There are separate escrow funds that were established to address and provide leverage for those issues.  He said we always endeavor to provide street acceptance maintenance agreement prior to the start of winter because it creates so much confusion by the residents and hard feelings, plus inconvenience.  Acceptance at this time will be proper. 

Alderman Gatton said that some of the problems relate to shrubbery and trees.  This will have to wait until Spring to determine if they are alive or dead. 

A motion was made by Alderman Lembke and seconded by Alderman Gatton for a second reading of Bill No. 3332.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3332 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3332 with the following results:  Ayes –Lembke, McDowell, Robinson, Fleming, Buermann, Gatton, Suozzi, Pogue.   Nays – None.  Whereupon Mayor Jones declared Bill No. 3332 approved and it became Ordinance No. 04-54.

A motion was made by Alderman Gatton and seconded by Alderman Lembke to accept the Consent Items and to draft legislation regarding the Maintenance Agreement and draft legislation to adopt the solid waste regulations.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Special Use Exception Transfer – former Rizzo’s to Guillermina Lara, owner of Taqueria Chihuahua:  Ms. Lara’s restaurant will be moving to the Rizzo’s location. 

A voice vote was taken for the transfer of the Rizzo’s Special Use Exception with a unanimous affirmative result.  The Special Use Exception will be transferred to Ms. Lara.

Historical Commission:  Due to the expiration of terms of office of three commission members on December 31, 2004, Mayor Jones recommended appointment to the Historical Commission the following:  Don Essen, 525 Kehrs Mill Road; Mary Clausen, 338 Greenbriar Lane, and Audrey Jaycox, 734 Smith Drive.  The 3-year terms of office will expire on December 31, 2007. 

A motion was made by Alderman Buermann and seconded by Alderman Gatton to accept the nominations for the Historical Commission.  A voice vote was taken with a unanimous affirmative result and the motion was passed. 

Planning Retreat:  City Administrator Kuntz said presented a proposed agenda for the aldermanic January Planning Retreat.  The Board agreed to meet on Saturday, January 29, 2005, and to change the proposed agenda item External Observations. 

Alderman Lembke said that there are major issues in the City of Ballwin and people are uninformed about what is done with the money coming into the City and how the services are paid for.  If we don’t start looking outward and start marketing ourselves, it doesn’t matter what financial shape the city is in because the residents won’t support the City for anything.  Alderman Buermann said that 95 out of 100 people believe that they pay property tax in the City of Ballwin.  Alderman Lembke said the residents need to be educated on this and information provided to them in an effective manner.  There are some tough decisions coming up in the future and we need resident support. 

Fine Arts and Historical Commissions:  A motion was made by Alderman Robinson and seconded by Alderman Gatton to draft legislation for the Fine Arts and Historical Commission to provide for full non-resident membership with the right to hold office; and that the focus of the Fine Arts Commission be changed to create a Board of Directors with an informal booster support group.  A voice vote was taken with a unanimous affirmative result and the motion was passed.

Dick Dean Special Use Exception:  City Administrator Kuntz said this is a request for an extension of the S.U.E. petition that has expired from Dick Dean Economy Cars.  Alderman Gatton asked since the original special use exception has expired, will it be necessary to have Planning & Zoning review this.  City Attorney Lucchesi said no, that nothing has changed and this is simply an extension from the expiration date. 

Chuck Steib, representative for Dick Dean Economy Cars, said the Deans have finally been able to buy this property.  They wanted to to the recommended work on the property only when they owned the property.  The Deans are requesting a time extension until April 30, 2005, and transfer the property to CON LLC., which stands for Connelly LLC, and is a family name of the Deans.  City Administrator Kuntz said the transfer should be completed before the extension, and both can be done at the next meeting, January 10, 2005.  Mr. Steib agreed that this can be done in that time frame. 

Westridge Request/Proposal:  Ms. Meg Brooks, Principal at Westridge, asked the Board for approval of the project to create a school themed mural on the bare white panels on the front of Westridge Elementary School.  Art Teacher Carol Mobley, Librarian Melissa Twombley, and Counselor Marissa Hurlinger presented an overview of the project.  The mural would be created in collaboration with professional mural painters in April, 2005.  All ten panels would be painted and are approximately 10 feet by 14 feet.  The students will produce drawings based on discussions of their school experience.  The mural artist will take all of the drawings submitted by the students and will integrate them into a cohesive design that will be approved by a committee; the students will be instructed by the artist in mural techniques and lead the students in painting the mural.  The students want to leave their creative mark on Westridge and will give them pride in their school.  The mural will identify the building as a dynamic elementary school to passersby. 

Ms. Brooks said that Westridge has been awarded a grant of $4,000 from the Missouri Arts Council to help fund this project.  The school’s community is responsible for matching the grant. 

Alderman Lembke said that he is concerned that what will be a beautiful mural today may become a wall for painting graffiti by future students who were not selected to participate.  He asked what plans are in place to prevent vandalism.  Ms. Brooks said that because this will be on the front of the building, there is less chance that vandalism will take place.  There are coatings that can be applied to outdoor murals for protection. 

Alderman Buermann asked what the responses have been from the surrounding neighbors.  Ms. Brooks said that Mr. Ellis, who has lived in the neighborhood for 30 years, thinks this is a great idea; Mrs. Walker is in favor of it.  She said she hasn’t heard anything negative. 

City Administrator Kuntz said that the colors and content of the mural is not the issue.  Approval will have to be based strictly on allowing outdoor signage.  Alderman Gatton said he does not have any problem with this as long as there is no commercial aspect. 

Ms. Brooks said that they plan to contact businesses in the community for support.  Mayor Jones said that the Board of Aldermen cannot give support at this time because murals are not allowed in Ballwin.  The ordinance would have to be changed. 

Alderman McDowell said he does not have any problem with the mural.  The ordinance would have to be re-worded to be restricted to schools. 

Alderman Robinson said suppose the mural was painted, and then another resident wants to paint a 10-foot by 10-foot offensive image on his wall.  Alderman Suozzi said this could be restricted to schools.  Mayor Jones said that sample legislation should be submitted to the Board for consideration.  Alderman Gatton said that some residents in Ward 4 have painted murals on their garage doors. 

A motion was made by Alderman Suozzi and seconded by Alderman Fleming to prepare draft legislation to restrict the murals to schools.  A voice vote was taken with 7 yes votes and Alderman Robinson voting Nay.  The motion was approved. 

Alderman McDowell said that City Attorney Lucchesi will prepare draft legislation for consideration at the January 10 Board meeting.  The Board does not want art on the side of a house, a roof, back of a house.  Ms. Brooks asked if a stipulation could be included in the legislation about the art work being an educational component.  This may separate this type of project from the rest of the community trying to put up murals that may not meet Board approval.  Mayor Jones said this is a possibility. 

Closed Session:  City Administrator Kuntz suggested that the closed session regarding real estate be held over to the January 10 meeting.

None.

Alderman Pogue requested a copy of the Budget to be available for resident review at The Pointe.  Mayor Jones and City Administrator Kuntz said this is a good idea and will be done.

A motion was made by Alderman Buermann and seconded by Alderman Gatton to adjourn.  The motion passed unanimously and the meeting was adjourned at 10:50 p.m.

MC