Board of Aldermen Meeting

Meeting Agenda

Meeting Minutes

MINUTES OF THE BOARD OF ALDERMEN MEETING
CITY OF BALLWIN – 300 PARK DRIVE
February 27, 2012

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

             PRESENT                                                 ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN MARK HARDER 
ALDERMAN SHAMED DOGAN 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KATHY KERLAGON 
CITY ADMINISTRATOR ROBERT KUNTZ 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES
The Minutes of the February 13, 2012 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Fleming and seconded by Alderman Leahy to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the Minutes were approved.

PRESENTATION
None.

PENDING ISSUES

BILL # 3732 - AN ORDINANCE AUTHORIZING EMINENT DOMAIN PROCEEDINGS AGAINST CERTAIN REAL PROPERTY ADJACENT TO KEHRS MILL ROAD.

A motion was made by Alderman Fleming and seconded by Alderman Leahy for a second reading of Bill No. 3732.  A voice vote was taken with a unanimous affirmative result, the motion passed, and Bill No. 3732 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3732 with the following results: 
Ayes – Fleming, Leahy, Dogan, Terbrock, Harder, Kerlagon, Finley.  Nays – None.  Bill No. 3732 was approved and became Ordinance No. 12-10.

CITIZEN COMMENTS
None.

PUBLIC HEARINGS
None.

NEW BUSINESS
LEGISLATION

BILL # 3733 - AN ORDINANCE REPEALING RESTRICTIONS UPON DRIVERS AND PASSENGERS OF MOTOR VEHICLES.

A motion was made by Alderman Dogan and seconded by Alderman Finley for a first reading of Bill No. 3733.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3733 was read for the first time.

Alderman Fleming said, “The issue was that our Prosecuting Attorney suggested adding information to this, and that was opted against, and then someone made a motion to get rid of the whole section completely.  Doing that means eliminating the part that says, it shall be unlawful for any person to operate a motor vehicle which has more than three persons over the age of 16 years in the front seat, nor shall any person extend any part of his/her body outside the vehicle except the hand and arm for signaling purposes only.  I believe that if you don’t want to add something to this, that’s fine, but I don’t think we should take something out that’s already in the code and has been it for years.” 

Police Chief Schicker said, “I would leave that section within the ordinance or draft additional legislation to cover that.  By repealing this ordinance, it would prohibit us from enforcing that section of traffic law.”  Alderman Fleming said, “Unless someone can tell me why we’re better off without this, I’ll be voting against this.” 

Alderman Terbrock asked, “What is the reason for not allowing three people in the front seat?”  Police Chief Schicker said, “It falls in line with State Statute.  Too many people in the front seat prohibits the movement of the operator to effectively control the vehicle.  There are three seat belts within the front seat.  Three are allowed.” 

Alderman Dogan asked, “How many times have people been cited for violating more than three persons in the front seat?”  Police Chief Schicker said, “I don’t have that information available at this time.”  Alderman Dogan asked, “Is there a specific type of vehicle that this would be most relevant to?  In my car, more than two people couldn’t fit in the front seat.”  Police Chief Schicker said, “It would be relevant to any vehicle that has a bench style seat instead of bucket seats.” 

Alderman Finley said, “I can look at this as being three options:  1) to pass the legislation that was reviewed at the last meeting.  I was in favor of that and it was defeated.  2) We could leave it the way it is, 3) pass the ordinance that’s before us tonight.  I’ll be voting to take the hand gesture provision out.” 

Alderman Fleming said, “It’s not taking the hand gesture part out, it’s taking the entire section out.  The reason we’re discussing this is because an officer decided to cite something that is almost never cited.  The prosecuting attorney recommended that we improve on the way it was written.  Not only are we not following the prosecuting attorney’s recommendation, now we want to strip out the whole section.  I don’t understand that at all.” 

Alderman Dogan said, “The reason for that is a basic liberty question.  Why should I not have the right as a motorist to stick my arm out the window?  The legislation, as it’s written, is so broad, that any purpose for which I stick my arm out of the window, other than adjusting the mirror is illegal.  That’s kind of absurd.”

Alderman Fleming said, “Police Chief Schicker said that the first part of the section lines up with state statute.  I don’t think we can throw the whole thing out.”  City Attorney Jones said, “There are a number of State Statutes that we don’t have municipal counterparts.  It just means we can’t prosecute them in municipal court.  They can still be presented in the State Court.”  Mayor Pogue asked, “What are the odds of the State actually following through with that?”  City Attorney Jones said “unlikely”.  Alderman Fleming said, “I think if someone wants to wave at someone out the window, this should be allowed, and the police probably won’t pull you over.  But, I bet if some kid is hanging half his body out the window going down Manchester Road, they would like to have the ability to stop the car and have something to cite.  That’s an issue of the officer’s discretion, and I think we should help them out.”

Alderman Terbrock said, “If an officer witnesses someone hanging out the window while the vehicle is driving down the road, without this in place, would you not be able to pull them over?”  Police Chief Schicker said, “Now that we have a seat belt law, we could write them for that, but if they are in a seat belt, and more of the body is protruded out the window and the belt is still buckled, we can’t cite them for that.  The belts are moveable.  The belt can be on, but still have part of the body extending outside the vehicle.”  Alderman Terbrock said, “You can’t pull somebody over for a seat belt violation, right?”  Police Chief Schicker said, “Yes we can.”  Mayor Pogue said, “If it’s the passenger in the rear seat, the seat belt ordinance wouldn’t be inclusive.”  Police Chief Schicker said, “All passengers in the vehicle are supposed to be belted.” 

Alderman Harder said, “Today I was driving down Manchester Road.  At a stop light, I saw a woman with her hand outside the door or window with a cigarette in her hand, outside the car.  If a police officer saw that, would this be a citable offense?”  Police Chief Schicker said, “It would be based on officer discretion and what the hazard is.”  Alderman Harder said, “Under the current ordinance, if there’s a body part outside of the car, no matter what she’s doing, she could be cited.”  Police Chief Schicker said, “If the officer felt it was a hazard, he would have the ability to cite her.”  Alderman Harder asked, “He’s making a judgment call based on hazard or just based on what he sees”  Police Chief Schicker said, “Based on what he sees and if it is considered a hazard.  If someone is driving down the roadway and they put their hand out to adjust the mirror, or they put their arm out to signal that they are turning or slowing down, they won’t be cited.  If they are doing something that would be a hazard either to them or other motorists, they will at least be stopped, and the officer has discretion whether or not to issue a citation.” 

Alderman Harder said, “This all started not because of a hazard, but someone was expressing their opinion over a situation.”  Police Chief Schicker said, “There were other elements involved with that particular incident.”  Alderman Harder said, “But he was cited under this law, correct?”  Police Chief Schicker said yes. 

A motion was made by Alderman Harder and seconded by Alderman Finley for a second reading of Bill No. 3733.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3733 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3733 with the following results: 
Ayes – Harder, Terbrock, Boerner, Leahy, Dogan, Finley.  Nays – Fleming, Kerlagon.  Bill No. 3733 was approved by a vote of 6-2 and became Ordinance No. 12-11.

BILL # 3734 - AN ORDINANCE ACCEPTING COACHGATE LANE AND COACHGATE COURT FOR PUBLIC MAINTENANCE, AS PROVIDED FOR IN THE CODE OF ORDINANCES OF THE CITY OF BALLWIN.

A motion was made by Alderman Terbrock and seconded by Alderman Harder for a first reading of Bill No. 3734.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3734 was read for the first time.

A motion was made by Alderman Boerner and seconded by Alderman Leahy for a second reading of Bill No. 3734.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3734 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3734 with the following results: 
Ayes – Boerner, Leahy, Dogan, Finley, Kerlagon, Terbrock, Harder, Fleming.  Nays – None.  Bill No. 3734 was approved and became Ordinance No. 12-12.

BILL # 3735 - AN ORDINANCE APPROVING A ZONING CHANGE FROM PSD TO R-2 FOR 14706 – 14714 CLAYTON ROAD.

A motion was made by Alderman Kerlagon and seconded by Alderman Boerner for a first reading of Bill No. 3735.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3735 was read for the first time.

Alderman Terbrock asked for an update on the drainage situation that was discussed at the Planning & Zoning Commission meeting.  Mr. Timothy Martin, representative from the McKelvey Homes, 218 Chesterfield Towne Centre, Chesterfield, Missouri, said, “We’re not re-subdividing.  There were originally two houses at this location.  Prior to this, there was a zoning change for 4 lots with a street to be added, with utilities and sewers for the project.  We’re bringing it back to what it originally was with two existing lots with two new homes in place of what has been torn down.  A new house will be built on each of these lots.  I’m asking that we not be required to install pervious concrete or rain gardens.” 

Alderman Terbrock said, “According to how the land lies at this time, there will be a runoff issue.  Do you think it would be necessary to try to address this as it’s being developed?  Mr. Martin said they would be glad to put berming on the low side of Lot 122, which is where the water runs that will divert the running water.”  Alderman Terbrock said, “I don’t think pervious pavement or rain gardens are necessary to this project.  A landscaped berm or swale that directs the runoff into the common ground would be adequate.”  Mr. Martin said, “We could grade it, form a swale, but a berm and plant bushes to help slow the water down. 

Alderman Fleming said, “It was discussed at the Planning & Zoning Commission about Section 2 that the petitioner shall provide pervious asphalt and/or rain garden retention.  That’s something that the Board put in place last year that we wanted to work towards as people develop new parcels, to always include this.  We can give them an exception, but if we’re going to give an exception every time, we probably shouldn’t have put that in place to begin with.  We did our best effort to write that and put it in place last year, not being able to anticipate every situation.  I think the previous owner has indicated that drainage was an issue.  I don’t think anyone is saying that drainage isn’t an issue.  Going forward, we were talking about trying to handle it with the rain garden and pervious asphalt, as opposed to just berms or swales.  We had MSD in here not too long ago, basically saying that they don’t have money to fix things, they don’t know when they are going to have money to fix things.  If you stood in someone’s back yard with the creek approaching their house, I think anything we can do to lessen that impact in the creek is something we should do.”

Alderman Terbrock said, “I agree with that, and I apologize, I didn’t realize that you were going with that standard.  In this situation, I was looking at the utility standpoint of what was going on there.  It’s trying to direct it away from that neighbor’s property, is what I’m looking at it from.” 

Alderman Fleming said, “I understand that we have it within our authority to make exceptions if we want to, and I think we already have in the case of McDonald’s.  We decided that adding a second drive through lane wasn’t a substantial enough redevelopment to warrant redoing the entire site.  This is an opportunity now to redo the whole site.  They are redoing the whole area.  I think we should stand behind what we put in place last year and give it a chance to work.” 

Mayor Pogue said, “I disagree to an extent on that.  I think the spirit of the ordinance when we passed it was it would only apply if there was a substantial increase in the amount of runoff that the lots are going to be exposed to, but less than the threshold that MSD requires for some sort of retention or detention.  The way the lots sit now, there’s not going to be a substantial increase in the runoff compared to what it was previously.  I see the petitioner trying to make an effort to deter the water from going to the adjoining site and running off into the common ground where it’s going to go anyway.  They’re making an improvement.  They’re not going to be decreasing the amount of runoff, but I don’t see it as being a big increase.  When we approved the change to four lots, they were adding a street and quite a bit if impervious surface.  That’s when we required the rain garden.  I don’t see that amount of runoff increase.”

Alderman Fleming said, “You’re absolutely right, it’s a judgment call.  It depends on how people feel about what we’ve put in place before, and whether or not this warrants an exception.  That’s why we gave ourselves the ability to make an exception.  There’s nothing wrong with your opinion.  It’s just different than mine.” 

Alderman Terbrock said, “In creating a swale and having the landscape berms, would it be that much more difficult to actually dig the swale and create a rain garden, fill it with gravel, then landscape over the top of it, whereas it’s somewhat of a rain garden, but it’s going to slow down the water going out by having the gravel in place.  It will also catch and deter in the same sense by just having a swale.” 

Mr. Martin said, “If we need to put in gravel, we can do that.  This is not a new development.  If we were putting in streets and redeveloping the site, that would be one thing.  All we’re doing is putting two houses back on two lots that already had two houses on the lots.  If we’re allowed to build a berm, put in some plants and gravel, we’ll be glad to do that.  Rain gardens are tremendously expensive.  I don’t think this calls for rain garden construction.”

Alderman Harder asked, “Has anyone here been on the site when it rained?”  One person raised his hand.  Alderman Harder asked, “Is there an erosion problem there now?”  Mr. Martin said not to his knowledge.  Alderman Harder said, “I’d like to see this amended to take out number 2 under this section, and leave it up to the builders to channel this water properly.”  Alderman Terbrock said, “I’m not quite in favor of all of that.”  He asked Assistant City Administrator Aiken “Can you give me some guidance on this?  Can we somewhat create a rain garden without going the full length of layering it, like filling a 2-foot deep by 4-foot wide trench or a swale, with landscaping over the top?  It’s still going to catch, it’s still going to slow it down; it’s just not a rain garden in the true sense of the form.”  Assistant City Administrator Aiken said, “You have the authority to prove whatever you think is appropriate.  MSD has well defined specifications for rain gardens and I don’t think this meets it.  Anything you do will help the water to soak in and not run off too fast.”

Alderman Terbrock said, “I was the one pushing for rain gardens.  I’m not trying to go against it, but I’m trying to come up with a happy medium where I’m accomplishing what I tried to do and also provide what you need.”  Mr. Martin said, “We’re not re-developing the property.  It’s two existing lots.”  Alderman Terbrock said, “I understand that, but we have an opportunity to take care of a problem at this time.” 

Alderman Kerlagon said, “In the past when there were only two houses on the lots, where there problems at that time regarding water runoff?”  Mr. Martin said he doesn’t have a history on this.

Alderman Boerner asked, “In the event that there is a problem, and we don’t have the rain garden or pervious asphalt, is there any recourse for the homeowner related to this if we waive the provision?”  City Attorney Jones said, “I don’t think so.  I can’t imagine how the homeowner would have any recourse, assuming that the builder is going to use their best efforts to create a product that they can sell.”  Alderman Boerner asked, “Is there any expert other than the builder that we’ve consulted as far as whether that would be a problem?”  City Attorney Jones said, “Only the MSD standards.”  Assistant City Administrator Aiken said, “It’s well below the MSD threshold.  It was the intent of the new ordinance to place limits on runoff from small sites.  It was my understanding that the City wanted to take a more pro-active approach to reducing storm water in general.  Ballwin doesn’t have many big subdivisions, but when it gets them, it goes to MSD, so that’s not a problem.  These small developments have fallen through the cracks and we didn’t have very good direction from the old ordinance.  That’s why the staff report made the recommendation that it did, it was my understanding that’s the direction the city wanted to take.  That’s also why the Board reserved the right to waive the requirement, if, in the Board’s judgment, this wasn’t necessary.” 

Alderman Boerner said, “So, staff went out, examined the site, and said this is what needs to be done?”  Assistant City Administrator Aiken said, “I went out and looked at it.  I didn’t spend hours walking around it.  I had looked at it years ago when there was a 4-lot proposal, so I was familiar with it.  I looked at it again when this petition came in to see what was going on to make sure that the topography on the site was reflected on what was submitted on the drawing, because the drawing they gave was an old one.  To make sure that something hadn’t changed.  The two-lot site drains into the common ground behind it.  I didn’t see any erosion or anything that would cause a problem.”  Alderman Boerner asked, “You still recommended that the rain garden or asphalt be…..”  Assistant City Administrator Aiken said, “This is increasing the runoff, and that additional runoff ends up in our creek system.  Every little bit adds to the maximum flow.  None of the creeks in the subdivision have any kind of storm water protection.  That subdivision was built before any storm water improvements were required.  The water goes in those creeks and goes wherever it can when there’s a large flow.  That was my understanding of why this new ordinance said it had to be built this way.  The source of the runoff comes from the rooftops and driveways and the site.  The increase in runoff is from the pervious surface.  The lots are about .87 acre.” 

Mr. Martin said, “There’s almost 95 feet off the street, and another 150 feet from the back of the house to the back of the lot.”  Alderman Boerner asked, “What is the footprint of the houses to be built in terms of square footage?”  Mr. Martin said, “About 2,000 square feet.”  Assistant City Administrator Aiken said, “The driveway would be equal to or greater than the footprint of the house.”  Alderman Boerner said, “There’s about 6,000 square feet out of 74,000 – 80,000 square feet that is going to cause a problem that we need to have, it’s less than 10% that would cause the kind of problem that would require spending another $10,000 - $20,000 per house.  I don’t see that this is justified.” 

Alderman Leahy said, “There were two houses there before, he’s not redeveloping the whole area, he’s putting two houses there again.  I think we should work with Mr. Aiken, build at satisfactory berm and a satisfactory runoff system.  I don’t think he should have to spend money for the rain garden or pervious asphalt.” 

Alderman Fleming said, “If we’re going to go down that path again, and ask him to do that, we’re essentially doing nothing different than what we’ve ever done, which was the point of changing the ordinance last time around.  For every small lot that comes along, this question is going to come up.  If we don’t like how this is going, we might as well go back and revisit that ordinance at some point.  I don’t remember the $20,000 figure being thrown out when I asked the last time.  I think that might be a little bit sensationalism.” 

A motion was made by Alderman Harder that number 2 be revised to have language in it that says that the developer takes reasonable efforts to control the water through natural means, such as a berm or other runoff systems.  City Attorney Jones said, “I suggest that you also state affirmably that the Board of Aldermen is waiving the requirement of pervious asphalt or rain gardens pursuant to Article 3, Chapter 25, so that it’s clear.”  Alderman Harder agreed. 

Alderman Boerner said, “I thought that we’re not really going against the ordinance because it’s a small parcel, therefore, it allows for a small parcel.  We’re not waiving anything, because according to Assistant City Administrator Aiken, it will qualify as a small parcel, so, there’s nothing that needs to be waived in terms of the statutes.  The only thing that we’re doing is we’re saying that we’re revising or amending this particular ordinance.”  City Attorney Jones said, “As I recall the ordinance, it’s required unless it’s waived.”  Assistant City Administrator Aiken said, “That’s how I understand it also.”  Alderman Terbrock said, “It states, in accordance to Article 3, Chapter 25, Subdivisions, of the Ballwin Code of Ordinance; we actually do have to waive it.”  Alderman Boerner said he stands corrected on this.

Alderman Finley said, “With this being very technical language, I’d like to have City Attorney Jones draft something and bring it back to the Board.”  Mayor Pogue said, “We’re stating that we’re going to waive that section.  This would be stricken, and the Minutes state that we waived it, or does that need to be included in the written part of the ordinance?”  City Attorney Jones said, “I think it would be clearer if we amend the ordinance to indicate that the requirement is being waived, and that the petitioner is directed to install a bern or other natural feature that would channel the water toward the common ground of the development.” 

Alderman Harder asked for a re-statement of what the motion will be.  City Attorney Jones said, “The requirement to provide pervious asphalt or rain garden retention water facilities, as required per Article 3, Chapter 25, Subdivisions, of the Ballwin Code of Ordinances, is waived, and the petitioner is directed to construct a bern or other natural feature to channel the water toward the common ground.” 

A motion was made by Alderman Harder and seconded by Alderman Leahy to make what the City Attorney just now stated as the amendment to Bill 3735 (The requirement to provide pervious asphalt or rain garden retention water facilities, as required per Article 3, Chapter 25, Subdivisions, of the Ballwin Code of Ordinances, is waived, and the petitioner is directed to construct a berm or other natural feature to channel the water toward the common ground.).  A voice vote was taken with the following result:  Aye:  Terbrock, Finley, Dogan, Harder, Leahy, Boerner, Kerlagon.   Nay:  Fleming.  The motion was approved by a vote of 7-1. 

A motion was made by Alderman Harder and seconded by Alderman Leahy for a second reading of Bill No. 3735, as amended.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3735 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3735 with the following results: 
Ayes:  Harder, Leahy, Boerner, Kerlagon, Terbrock, Dogan, Finley.   Nay:  Fleming.  Bill No. 3735 was approved and became Ordinance No. 12-13.

A RESOLUTION IN OPPOSITION TO THE AMEREN MISSOURI RATE INCREASE, AND REQUESTING A RATE SCHEDULE FOR MUNICIPALITY ENERGY EFFICIENT FIXTURES.

Mayor Pogue said, “They have not announced the dates of the meetings or locations, but as soon as this information is available, I will notify the Board.” 

Alderman Dogan asked, “Was Ameren notified of this Resolution?  Have we heard anything from them regarding the issues addressed in it?”  Mayor Pogue said, “I got the notification of the increase.  I sent an e-mail back to them notifying them that I was going to be publicly opposed to it, and their reply was that they will take our items of concern into consideration.  That’s all I’ve heard.” 

Alderman Harder asked, “Have we heard of any other cities taking a position?”  City Administrator Kuntz said, “Yes.  We also contacted the Municipal League.  I was assured that they would be taking this issue up.”  Mayor Pogue said, “They had it on their agenda for the last executive Board meeting.  I discussed this with the Mayors at the Lafayette Area Mayors’ meeting.  It sounds like some of them will also be taking an opposing stance.  There was a discussion at the last legislative forum that the Chamber of Commerce had.” 

A motion was made by Alderman Finley and seconded by Alderman Terbrock to adopt the Resolution.  A voice vote was taken with a unanimous affirmative result and the Resolution was accepted. 

CONSENT ITEMS:  (Budgeted items which are low bid and do not exceed expenditure estimates and/or items which have been previously approved in concept.)

A. Ammunition
B. Goose Control                                 (Moved to City Administrator’s Report for discussion)
C. Concrete Resurfacing

Alderman Finley requested that Item B be removed for further discussion.
A motion was made by Alderman Fleming and seconded by Alderman Leahy to accept the Consent Items A and C.  A voice vote was taken with a unanimous affirmative result and the motion passed.

MAYOR’S REPORT

Transportation Development District (TDD):  Mayor Pogue asked if the petitioner would like to add anything since the last presentation in November.  Mr. Bill Bierman said, “Due to the significant cost of providing the required transportation improvements, they are proposing to create a Transportation Development District.” 

Mayor Pogue asked Mr. Bierman to explain what the improvements are under the TDD.  Mr. Bierman said, “The costs of all grading, paving, retaining walls, storm water improvements, and street lights in the right-of-way are included.”

Alderman Leahy asked, “How much was the TDD for Schnucks?”  City Administrator Kuntz said it was a 1% TDD for 20 years.  This one is the same.:  Alderman Leahy asked, “Are you going to do the same amount that Schnuck’s is doing?  Dollar for dollar?  I’m asking a simple question, who is doing more repair work, Schnuck’s or these guys?  If they want the same as Schnuck’s you would think we would get the same for it as far as improvements.” 

Mr. Bierman said, “These improvements are less extensive than those being done for Schnucks, but the U-Gas and Wendy’s are much smaller businesses and will generate less tax revenue for the District.”

Alderman Leahy said, “The last time you were here, a lot of the cost had to do with the dirt.  Did you get that taken care of?  You were going to have to take an extra couple of feet off and it was going to cost an extra $600,000 for the dirt’s disposition.”  Mr. Bierman said, “Only the costs for soil removal and relocation within the right-of-way have been included in the costs to the District.”

Alderman Harder said, “All of these improvements that we’re talking about regarding the street, walls, guard rails, concrete work, dirt, all this was figured into your plan before you came before Planning & Zoning, correct?”  Mr. Bierman said, “In a general sense, that is correct, but the numbers were still preliminary at that point; and as mentioned, the dirt removal number ended up being significantly higher than was expected in the early computations.”

Alderman Harder said, “If you knew going into this project what it’s going to cost, that these things were not going to be mysteries, and then you came to us in November and admitted to us ooops, we got our finger on the wrong key on the calculator.”  Mr. Bierman said, “There were costs that were not anticipated.  You can go in and think you have everything covered, but circumstances sometimes conspire against you.  That’s what happened here with the soil removal costs.”

Alderman Harder said, “In your petition, basically you’re saying you’ve got all these costs to do this business, I’m sure somebody’s running numbers what the hamburgers are going to cost at Wendy’s because of all of this, or not, or at the gas station, and so you’re saying to the taxpayers you’re going to charge an extra percent even though most of the tax along Manchester Road is 8% or more now, now you’re going to add another percent onto the tax, if that’s what I’m understanding, to pay for the oooops of all these extra costs that Ballwin’s not requiring you to do these things before you figured this out.  Nothing new has popped on the market that Ballwin is requiring you to do.” 

Mr. Bierman said that all costs associated with this project were not known prior to the original petition being submitted to Ballwin.

Steve Quigley, of Clayton Engineering, said, “Not since the approval, but during the Planning & Zoning process, there were some things that were imposed on the property.  The Seven Trails widening and the internal road were brought in and added to the project after the petition was submitted.  That’s when the traffic study was done.  Those items were not known when the site was first looked at and considered when application was made to the City.”

Alderman Harder said, “What tripped the trigger for the TDD was the dirt, correct?  Was that the last straw that said you can’t afford this?”  Mr. Bierman said the significant increase in the cost of grading is what drove this option.”  Alderman Harder said, “So, all your numbers were working out until you couldn’t move the dirt.”  Mr. Bierman said, “There’s a level at some point where the project cannot cover its costs, and additional revenue or a cost reduction are necessary for the project to go forward.”

Alderman Harder said, “My point was that we were moving along with the assumption that there would be no TDD until this dirt issue popped up.”  Mr. Bierman said, “No one saw this coming.”

Alderman Harder said, “If you don’t get a TDD by the residents and public hearings that you’ll have to have, is the project still going forward or not?”  Mr. Bierman said, “We would have to re-evaluate the project if the TDD cannot be formed.”

Alderman Terbrock said, “When you came to us previously and said there’s no TDD, we don’t have to do anything, and all of a sudden it came down to the dirt issue.  According to what I’ve listened to you say tonight, there really hasn’t been anything about, you’ve thrown in the thing about the changes to the roadways, but you’ve really concentrated on site problems more than anything as the need for the extra money.  I find it really hard to believe that, maybe not you, but somebody associated with this, being the Taylor’s or whoever, probably had in the back of their mind that this was always there to grab in case this was necessary, and you’re asking the tax payers to cover a shortfall to help the developer recoup their costs.  I’ve not heard of anything like that for any residential developers to ask for an extra tax to cover their shortfalls on things.  I don’t agree with this at all.  I’m not opposed to what you are doing there, well somewhat, but that’s fine, let it happen.  It doesn’t make any difference.  It just doesn’t set well with me that ‘Ah shoot, we missed our number, we need an extra $600,000; let’s get an extra tax on it.’  I think it’s silly.”

Mr. Bierman said, “Let me make it clear so that everyone understands.  All of these costs come out of our pocket, and U-Gas will take back the note and take the risk on the debt.  No bonds will be sold to the public.” 

Alderman Terbrock said, “I get what you’re saying.  It’s the matter of fact that due to missing the numbers and some things changing.  The project has been drawn out for how long now?”  Mr. Bierman said, “Part of that was MoDOT.”  Alderman Terbrock said, “I’ve heard that this is the standard procedure for this company.  They go in, get this all going, and two or three years later, it finally comes up out of the ground.  I watched one that took basically that long to get going.  I know that for a fact, and I’ve heard that from others.  I’m not going at you with this.  I don’t like the whole idea of this.  I understand what you say about not recouping all the money.  It’s a matter of being able to recoup any of the money.  Who in the world in business has that ability to say, shoot, we missed our number.  Let’s impose a tax and get it back.  Does anybody have that?” 

Mr. Bierman said, “It’s fundamental, and I’ll tell you from a guy on this side.  All of these regulations de-value your property.  They say, Bill Bierman, you’re going to have to improve a public street, Manchester Road.  Bill Bierman, reach in your pocket and pay for the road.  I’m all about the little guy, and the regulations, and the extra requirements make it tough to do a small project.” 

Alderman Fleming said, “1) I would like the City Attorney to describe the process that we are actually talking about: 2) Since this is under the Mayor’s report, please state what you are asking the Board to do or not do this evening; 3) I’d like to make my comment after that.” 

City Attorney Jones said, “The TDD formation process is begun by filing a lawsuit in the circuit court of the County where the property is located.  In this particular situation, since it’s not being filed by the governing body, it’s instead being filed by the owners of record of all of the real property in the district, those persons are the plaintiffs, and then the local transportation authorities, MoDOT, St. Louis County, City of Ballwin are the respondents or defendants in the case.  The petition is served.  We then have 30 days to file an answer.  If we oppose the creation of the district, the things we have to recite in our answer are the legal reasons why the petition is defective, why the district is illegal or unconstitutional, or why the proposed funding method is illegal.  That’s a relatively small group of things that we have an interest in.  If we oppose and recite reasons why we believe those things are not present or defective, the court can still hear this like any other kind of case, and decide whether or not the formation of the district is appropriate.  If the court rules that it is, then the district is going to be formed.  That occurs, in the particular case, since it’s being filed by all the owners within the district, there must be a public hearing, and that public hearing has already been scheduled by order of the court, and it’s going to take place on March 27, 2012, at 6:30 p.m., at the Ballwin Elementary School.  Following that, the court will be asked to make an order.  Our pleading is either going to oppose the petition, or it’s going to consent to the formation of the district.  I need some guidance from this Board as to how to answer that petition.  That answer is due in another two weeks.” 

Mayor Pogue said, “That’s my reason for holding a Closed Session to discuss what this Board’s position is going to be in regards to this litigation.”  Alderman Fleming asked, “Do we have the option to favor, oppose, or take no position, or just favor or oppose?”  City Attorney Jones said, “I think we need to favor or oppose.”  Alderman Fleming asked, “Do you prefer to talk about individually what we want to do in closed session?”  Mayor Pogue said yes.  If any vote is taken, it will be published in accordance with State Statute. 

Alderman Fleming said, “Mr. Bierman has credibility with us as a city.  He’s doing the development at Clayton Road and Henry Road.  That has pretty much gone as described.  There has been no coming back to us saying that things have changed.  I understand that sometimes circumstances change.  Some of the things he mentioned, the Styrofoam and other things like that, probably could be foreseen, but things pop up.  They didn’t pop up on the Clayton & Henry Road project, but did on this one.  To believe that they have done this before, you would have to believe that they knew about all these things and decided not to tell us.  I don’t personally believe that at this point in time.  There are going to be public improvements as part of this, so the tax can be justified.  It’s going to help with the cueing on Seven Trails, with getting on and off Manchester Road in a smoother fashion.  There are some legitimate public improvements all the way around.  It’s paid for by people who do their shopping there.  If people don’t want to shop there because there’s a TDD, they can buy their gas down the road if they want to.  It’s not being forced on anybody.  I think it’s fair what a lot of people are saying about the cost.  I think he has credibility with us and sometimes circumstances are out of ones control.  If you don’t want to pay the tax, buy your gas somewhere else.” 

Alderman Boerner asked, “That fact that there has been so many moving parts to this project, it would have been helpful to have a summary of the original assumptions, additional costs as a result of things we didn’t know, total amount.  On the other hand, you do have credibility with Ballwin.  You’ve been in this business for a while.  How many U-Gas developments have you built?”  Mr. Bierman said, “I have been involved in two.  This one and another in Rock Hill that is presently being considered.” 

Alderman Boerner asked, “How many projects have you been involved with and have you done a TDD on other ones?”  Mr. Bierman said, “30 or more developments.  There was a CID in Brentwood.  That is the only district I have previously been involved with.” 
Alderman Boerner said, “Anytime you do a project like that, and you’re in business for yourself, there’s a certain amount of risk involved.  Basically what you do is you look at the cost as your initial study, and then evaluate it, and determine what the risk is at that cost.  You have to recover your cost.  If you don’t, there’s a problem because you will go broke.  What you determined on this was that the cost exceeded the amount that you feel comfortable with in terms of making a go of this project.”  Mr. Bierman said, “Well said.” 

Alderman Dogan asked, “You mentioned that with the project at Clayton and Baxter that you had similar unexpected costs, is that right?”  Mr. Bierman said, “When they moved Henry Road, they did not move the utilities.  They ended up in the middle of the project.  They knew that the project had to pay the cost of relocation, but Missouri American’s instance that its crews do the relocation work drove the cost way up. 

Alderman Dogan said, “You said the ball park amount for those cost over runs was about $600,000 for the Henry Road project.  Did you seek a TDD for that project?”  Mr. Bierman said, that deal was much bigger and more capable of accommodating the additional cost.

Alderman Dogan asked, “Have you factored in the additional tax at the U-Gas property, with all the competition across the street, if you had the extra tax there, wouldn’t that eat into a good chunk of your business?”  Mr. Bierman said, “The TDD tax is not imposed on gasoline sales at all.  The effect, if at all, will be on the inside sales.”

Closed Session:  Mayor Pogue said there will be a Closed session, per State Statute 610.021 for litigation, and under the request of Alderman Boerner, 610.023 for personnel. 

CITY ADMINISTRATOR’S REPORT

Goose Control:  City Administrator Kuntz said bids were solicited for the contract service.  The low bid is recommended, which is Humane Goose Management.  There have been successful relations and references in the past.  The bid is within budget to provide this service to the community. 

Alderman Finley said he doesn’t think we should spend more than $1,500.  Director of Parks & Recreation Bruer said in the past, the price worked out to be $1,500, which was a temporary introductory price to encourage providing this service.  City Administrator Kuntz said the problem is quite noticeable already on the sidewalks and walking paths.  Ballwin Days is coming up and the many activities that the parks provide to the public.  After listening to many hours of debate, the Board chose this option as cost effectively as possible. 

Alderman Leahy said he commends the Parks & Recreation Department on their efforts.  He asked if the program has been a success?  Director of Parks & Recreation Bruer said she can definitely see a difference when the geese are chased with the dogs, as opposed to when we don’t do this.  Right now this is not being done.  Alderman Leahy said that another plan should be utilized.  He said next year, he will be more explicit on his recommendation, even if it means that he will be voted out of office.  This is the last year for using the dogs, and the next level should be used next time. 

Alderman Fleming said we should use the program this year that has the lowest bid.  Next year, if we use a different plan, there will most likely be a child at this meeting asking the Board not to kill the geese.  Alderman Leahy said he remembers Geese Peace coming to this meeting and saying they live in Chesterfield and they love the geese.  He said if they love the geese in Chesterfield, they should take them back. 

Ms. Bruer said while the dog program is being used to chase the geese, it’s better than when we’re not using the program.  We have a limited budget and a mild winter.  The geese stayed here and people stayed active in the parks.  The theory of not chasing the geese in the winter because no one uses the parks in the winter and the geese leave anyway, didn’t work this winter.  It does help when we’re using the program.  Also, when the water is turned off in the winter, we can’t hose off the park path.

Alderman Harder asked if spending more money will make the problem go away.  Ms. Bruer said the current system won’t make the problem go away.  This year, it continued to be a problem because of the mild winter, more people using the parks, and not using the dogs in the winter months. 

Alderman Terbrock said the dogs create a problem for everybody else by running the geese out of our parks into other areas.  This problem can never be resolved because we have created a nice environment for the geese to live in.  I’m not in favor of spending money for the dogs to chase the geese, but that’s the only thing we can do right now. 

Alderman Fleming said a roundup, and killing the geese and feeding the homeless people doesn’t solve the problem because geese living in other areas will then come here. 

A motion was made by Alderman Fleming and seconded by Alderman Boerner to have the dogs chase the geese one more year.  A voice vote was taken with the following result:  Aye:  Terbrock, Dogan, Harder, Leahy, Fleming, Boerner, Kerlagon.  Nay:  Finley.  The motion passed by a vote of 7-1. 

Holloway Culvert:  City Administrator Kuntz said Ballwin needs to apply for outside funding because any grant money that can be captured is that much less that has to be spent from funding.  There’s a program called STP with guidelines for 80% federal funding.  There’s an application fee if for submittal, and if the project is not approved for federal funding, my understanding is that the fee will be refundable. 

Mayor Pogue said the wall is sagging on both sides.  Will re-stabilization of the wall be included?  City Engineer Kramer said yes, but not to replace it, just to put a footing under it.  Alderman Fleming said in the past, we tried to acquire funding for a project like this and it was rejected.  City Engineer Kramer said that was a state storm water project, which is a different program.  We were approved for 25% or 30% of the cost.  Having done federal projects before, there’s not a problem with money being left over.  The problem is when you don’t have enough money.  The numbers are higher because you can’t ask for more money later. 

City Engineer Kramer said we will repair the cracks and shore up the gabion.  This will give a long-term fix to the problem. 

A motion was made by Alderman Finley and seconded by Alderman Terbrock to authorize staff to apply for this funding opportunity.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Golf Agreement:  City Administrator Kuntz said the City of Creve Coeur has expressed an interest in continuing the reciprocal agreement Ballwin had with them from last July to the end of 2011 to promote our golf course to their residents and vice versa.  It’s recommended to continue for another year.  It did not have a negative impact on our residents who use the course. 

A motion was made by Alderman Leahy and seconded by Alderman Fleming to accept the recommenda-tion to extend the agreement with Creve Coeur for another year.  A voice vote was taken with a unanimous affirmative result and the motion passed.

STAFF REPORTS
None.

CITY ATTORNEY’S REPORT

74 Breezeview:  City Attorney Jones said, “The Board authorized demolition of the property at 74 Breezeview following a hearing and a process to declare this a dangerous building under the City’s ordinances.  The house was so full of personal property that the demolition contractor had to haul the items away before they could complete the asbestos testing, which was necessary prior to the demolition.  Friday morning, someone finally showed up at the house.  This person claimed to be the Trustee of the Trust that owned the property.  I met with that person on Friday, assured him that the public records do not reflect that particular interest in the property.  I showed that we gave all of the proper notices.  He hired an attorney who has contacted me.  They have requested that they be permitted to obtain permits and fix all of the items that were on the original notification we sent to the property owner.  I explained that there was a Board meeting this evening, and I would have to talk to the Board about this.  It seemed that at a minimum, we would want to recover the costs that we have invested.  That would include paying the demolition contractor all or part of the contract that we’ve already entered into, as well as attorney’s fees, testing costs, publication costs, etc.  One thing that concerned us was having a good line of communication with the property owner so that we don’t find ourselves in this same situation several years down the road.  The trustee has assured us that as long as we communicate with her, these problems will never occur again.  We’ve done nothing wrong and no obligation to do anything other than what we’ve undertaken to this point.  There is a Trust, but the trustee of the trust was the gentleman who has been the owner of the property all along.  Apparently in the trust document, there is a successor trustee, but that’s not a public document.  There’s no way we would have known that, so we sent the notices to the Trustee that was shown the last recorded instrument, who was the same gentleman that’s owned the house for many years.” 

City Attorney Jones said, “There has been a veiled threat that there were items of value on the property and have been removed as part of this process.  Our staff has been very diligent about photographing all of the items in the house.  Items such as antique furniture and collectable art was not there.  I hope to clean all of this up at the same time.”

Alderman Fleming said he would like to discuss this further in Closed Session.  City Attorney Jones said this can be discussed in closed session since we have been threatened with litigation. 

The Board agreed to a closed session for this discussion.

ALDERMANIC COMMENTS

Building Code:  Alderman Boerner said he would like to postpone this presentation and discussion until the next meeting due to the lengthy research required.  Alderman Boerner asked when a building is going to be constructed, an architect provides the drawings.  Who is responsible for mistakes or code violations?  City Attorney Jones said the owner is responsible.  If something is not done in accordance with our codes, the work will be stopped and the owner is held responsible.  Mayor Pogue said the Home Builder’s Association has completed their review of the changes.  We will be meeting with them on Thursday at 2:00 p.m. at the Government Center. 

Alderman Boerner said about 40% of the States are still using the 2009 code, and 40% are still using the 2006 code.  The remainder are using either the 2000 code or older.  What was the sense of urgency of adopting the 2012 code?  Assistant City Administrator Aiken said we were chastised by the ISO for not having the current codes.  Alderman Boerner said many municipalities are still using the 2000 code.  He can’t believe that everyone who has built a house in Ballwin would have higher insurance rates because we haven’t adopted the 2012 code, when 99% of the people in the U.S. have not done this. 

Street Repairs:  Alderman Harder asked, the amount of money that was not used that we were going to apply to snow plowing and salt distribution, could this be used for street repairs?  City Engineer Kramer said it takes a re-appropriation from the Board to move money from one program to another program.  This could be done but will take Board action to do this. 

Meeting:  Alderman Fleming said the Planning & Zoning meeting is on Monday night.  There will be a special guest speaker to talk to the Planning & Zoning Commission, Board of Adjustment, and any aldermen that want to attend.  This is a public open meeting. 

Adjourn to Closed Session:  A motion was made by Alderman Fleming and seconded by Alderman Terbrock to adjourn to closed session to discuss litigation (Missouri Statute 610.021), and personnel (610.021(3) )  A roll call vote was taken with the following results:  Ayes:  Aldermen Boerner, Kerlagon, Fleming, Leahy, Dogan, Harder, Terbrock, Finley.  Nays:  None.  The motion passed to adjourn to closed session at 8:59 p.m. 

Closed Session:
The Board convened in closed session at 9:03 p.m.

A motion was made by Alderman Fleming and seconded by Alderman Terbrock to adjourn the closed session.  A roll call vote was taken with a unanimous result, and the closed session was adjourned at 9:54 p.m.

The Board reconvened in open session at 9:56 p.m.

TDD:  While in closed session, a motion was made by Alderman Boerner and seconded by Alderman Leahy to not oppose formation of the TDD.   A voice vote was taken with the following result:
Aye:  Fleming, Boerner, Leahy, Kerlagon.   Nay:  Terbrock, Finley, Harder, Dogan.  Mayor Pogue cast the deciding vote by voting Aye.  The motion passed by a vote of 5-4. 

Adjourn:  A motion was made by Alderman Fleming and seconded by Alderman Leahy to adjourn the open session.  The motion passed unanimously and the meeting was adjourned at 9:58 p.m.

TIM POGUE, MAYOR

ATTEST:
ROBERT A. KUNTZ, CITY ADMINISTRATOR

MC