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HomeMy WebLinkAboutMinutes - City Council - 05/07/2012CITY COUNCIL 7 MAY 2012 The South Burlington City Council held a regular meeting on Monday, 7 May 2012, at 5:00 p.m., in the Conference Room, City Hall, 575 Dorset St. Members Present: R. Greco, Chair; S. Dooley, P. Engels, P. Mackenzie, H. Riehle Also Present: S. Miller, City Manager; R. Rusten, Deputy City Manager; P. Conner, Director of Planning & Zoning; J. Rabidoux, Public Works Director; I. Blanchard, Project Director; B. Fletcher, City Attorney; Rep. M. Kupersmith; G. Maille, B. Stuono, J. Buck, M. Emery, M. Lipson, K. Gonyea, L. Dapis, A. & T. Ryan, A. Spell 1. Agenda Review: Members agreed to combine items 9 & 10 and to talk about the economic impact issue related to interim zoning. 2. Comments & Questions from the Audience, not related to Agenda items: 1. Mr. Maille spoke in reference to the appeal he made to the DRB regarding the approved Airport demolition of homes. Mr. Conner noted that hearing has been closed, so no new information can be taken. Mr. Maille said he will petition the Council to take on the task of revising the Land Development Regulations (LDRs) with regard to demolition. He said his concerns during the appeal were lack of transparency, lack of trust and lack of due diligence. He said residents of the area have no confidence that their interests (health, safety, etc.) have been considered, and it is the City Council's responsibility to address issues of health and safety. Mr. Maille requested that the LDRs be amended (Section 14) to require adherence to the Comprehensive Plan, including a full DRB hearing for demolition requests, with penalties for violations. 2. Ms. Emery and Ms. Buck spoke to the issue of the recent EIS of the possibly basing of F35s in South Burlington. Ms. Emery urged the Council to discuss this in open session. She noted that a different 65 dbl line is identified in the EIS and now includes the whole Chamberlin neighborhood, including Chamberlin School, a large portion of Mayfair Park and Country Club Estates, and these areas have been identified as "incompatible" with residential use. Ms. Buck said she has read the entire EIS, and the maps in it are useless. Her husband took images from the EIS and superimposed them on a city map, which she felt should be on the city's website so people can know where their homes fall. Ms. Emery noted that the EIS indicates that 6500 people will be affected by this, thousands more than any other site being considered. Ms. Greco noted that a response to the EIS is due by 4 June. Three members of the Council supported adding this to the 31 May agenda. Ms. Mackenzie and Mr. Engels did not support this. Ms. Mackenzie said her father was a career Air Force officer and felt the city should support bringing the F35s to South Burlington. Mr. Stuono felt Ms. Mackenzie should recuse herself on F35 issues as she has a bias not related to facts. Ms. Greco noted that the city was not planning a presentation at the 14 May EIS meeting. Ms. Dooley said she would attend that meeting and would ask questions. Mr. Stuono also felt that Ms. Buck's map was accurate. He noted a letter dated 14 March from the City Attorney regarding Airport noise issues and said he found it lacking in case law. He questioned what other communities do when they have airports that are owned by entities outside their cities. 3. A resident raised the issue of inefficient traffic lights which he said are wasting millions of dollars a year, including the wasting of fuel for idling cars. He felt that left turn arrows needlessly stop traffic at almost every light on Shelburne Road. He said this could be eliminated by signal timing. He also felt the light at Swift/Spear Streets should be blinking 22 hours a day. 4. Mr. Maille said he has been investigation the vetting and power of the South Burlington Police to regulate noise at the Airport. He cited U.S. Code Title 49. He asked if he should send his research directly to the City Attorney. Mr. Miller said to send it to the Council which can instruct him as to how to proceed. 3. Announcements & City Manager's Report: Mr. Miller: Attended the Police/Rotary Awards Dinner with Mr. Engels and Ms. Greco. Will attend the VLCT training regarding financial responsibility with Mr. Rusten and Ms. Kinville tomorrow. Noted receipt of a letter from the VNA thanking the city for its contribution. Mr. Engels: Attended the Police event. Had lunch with Ms. Mackenzie and Jim Knapp on Friday. Ms. Dooley: Attended the DARE event at Orchard School. Ms. Greco: Attended the Police event, the DRB meeting and Board of Abatement meeting. 4. Consent Agenda: A. Approve Minutes of 16 April 2012 B. Sign Disbursements C. Consider approval of entertainment and Catering permits: 1. NGA permit request for catered event August 11, 2012, from 5 to 9 p.m. on City property, for ticketed fundraiser for 75 people. Beer and wine are expected to be served. 2. Miller Amusements/Carnival, May 24-28, 2012, University Mall Parking Lot. Ms. Dooley asked to remove the Minutes and NGA permit from the Consent Agenda. Ms. Dooley then moved to approve the Consent Agenda minus the Minutes and NGA permit request. Mr. Engels seconded. Motion passed unanimously. 5. Deliberative Session on the US2 Widening/Sheraton 3rd Lane Project Necessity Hearing held on 16 April 2012; possible action by Council: Members were asked if the wanted to hold a deliberative session. Members were satisfied they could make a decision without a deliberative session. Ms. Mackenzie said she was not sure she could participate because she was not present for the meeting or site visit. Mr. Fletcher said the written report indicates Ms. Mackenzie did not participate. Ms. Riehle then moved to approve the Findings of Fact with regard to the US2 Widening Sheraton 3rd Lane Project Necessity Hearing held on 16 April 2012. Mr. Engels seconded. Motion passed 4-0. Mr. Rabidoux said he will provide final documentation for the Council to review. 6. Discuss Railroad Crossing Issues and Costs: Mr. Miller asked Mr. Rusten to step up because he was present when the issue was raised and Mr. Miller was not. Mr. Rusten clarified that he had asked Mr. Rabidoux to look at the issue of the city possibly taking over the road beyond the railroad crossing. He indicated there is no technical or legal reason for the city to do so. Mr. Miller said the city has been working with Rep. Kupersmith to try to resolve this issue. It involves the ability of residents to get clear title to their property. The city has been trying to get the Agency of Transportation (AOT) to allow for this. Mr. Miller said he spoke with Brian Searles, head of AOT, and asked for a representative to be at this meeting. None is present. He also asked Mr. Searles if the AOT could provide this easement. Mr. Miller said Mr. Searles was "equivocal" but didn't say no. Mr. Miller felt it is clear the AOT does not want to provide this easement. He felt the best solution is to continue to work with the AOT, Rep. Kupersmith, and VLCT on the easement. Mr. Rusten noted the incredible amount of work being done by Rep. Kupersmith. He suggested a possible joint meeting of all communities throughout the state who are facing this same issue. Mr. Rusten said that one question that has arisen is: If the city takes of the right-of-way, are they taking over the responsibility for tracks, and if so, what would that responsibility entail? Ms. Greco asked if it's not the entire road length, what is the dollar amount. Mr. Rabidoux said if the state were to allow the transfer of the right-of-way, the question is the width through the crossing. There is also a question of whether there is a finance and maintenance agreement in effect. He noted that every answer raises another question. Mr. Rabidoux estimated that the cost for the 50-70 feet of road involved would be insignificant to the city budget. The real cost/potential costs is the upgrade of the tracks. He said the regulations get stricter and more expensive every day. There is also a question as to whether the city would also own all of the protection around the railroad crossing (gates, etc.) and the question of additional cost for insurance. It was noted there are many of these at-grade crossings in the state, and they are not included in the insurance coverage provided by VLCT. Mr. Rusten said another concern is one of precedent. This situation involves state-owned property problems being "dumped on the municipality." He questioned how this might play out in other situations not related to railroads. Ms. Mackenzie asked how many sales of property have been held up because of this and suggested possibly discussing this with lending institutions. Mr. Miller said the situation is very complicated. The most complicated cases are when there is new title insurance being required. If title insurance exists, it can be extended, it and can be extended in a sale to a buyer. The issue also involves trying to get the state to acknowledge this is their issue. They haven't said they can't address the issue, which leads the city to feel they just don't want to. Mr. Miller commented that this is not the "Vermont way to solve things." Mr. Rusten noted there had been a proposal for a one-year "license" at $200 a year. Mr. Miller said that was frankly insulting and was not a solution to anything. He added that the Board of Directors of VLCT took the position that the AOT should provide a full easement to property owners. He felt a coalition needs to be built on this issue. Mr. Engels said the problem becomes a run-around when nobody takes responsibility for it and no one finds a solution. He said someone will have to "break ranks" and do something. Ms. Dooley asked if there has been a request for the city to take over the whole road. Mr. Rabidoux said there has not. Ms. Dooley then asked about the situation with the Bartlett Bay railroad crossing and why there are no problems there. Mr. Rabidoux said the city street is inclusive of that crossing, which gives people clear title to their property. Ms. Dooley noted that the Shelburne Town Manager said they have 2 streets that are similarly affected and they will be making them town roads. He has indicated the state will pay for maintenance. Mr. Rabidoux said he spoke with his counterpart in Shelburne. Where it stands now, they are considering bringing those roads up to town standards at homeowner expense and then having the town take them over. Mr. Miller noted that nobody at VLCT had even heard of this issue until he brought it up. Now everyone knows. He felt it is "distasteful" that this is being passed off as something for the municipalities to solve. Mr. Lipson, a Holmes Rd. resident, said this has been a long-time concern that seems to be going nowhere. He felt the state is on shaky grounds with their position regarding the validity of crossing rights. He noted that in his deed there is a clear statement of a right-of-way. He asked the state to have their attorneys look at this and never received a response to his letter. Mr. Lipson encouraged the city and VLCT to "push back" since the state doesn't seem to want to do anything but make threats to homeowners. People are trying to sell or refinance their homes, and there needs to be a solution. He added that he knows the AOT lawyers have been in touch with the Legislature and won't back down on their position. He also noted that the AOT sent a letter to every home owner saying that since there are no longer any farms in the area this is no longer a "farm crossing." Ms. Dapis, also a local resident of the area, said she and her late husband tried to sell their home and were told they didn't have clear title. They called all over the country to try to get insurance but were told it would cost $3000. They were trying to sell their home because they were running out of money. She had to go back to work to avoid bankruptcy, but if the issue isn't cleared up, she will still have to declare bankruptcy. She suggested that if the Council isn't willing to do anything, maybe they would not have her pay taxes on her home. Mr. Gonyea, Ms. Dapis's mother, asked the city to take responsibility for the crossing up to 70 feet. She couldn't understand why the city is sitting back and waiting for someone else to tell them what to do. She said the maintenance at the Bartlett Bay crossing is next to nothing, so there wouldn't be a major expense. She felt the city should do this to help the 12 city taxpayers. Rep. Kupersmith, who represents this district, said she was grateful for this meeting. She cited the need for all parties to get involved as there is valid disagreement at every level. Rep. Kupersmith noted that Andy Michael, an attorney for an insurance company, testified at the Legislature and said this was the first time it was understood that there is a legal problem. He is now getting calls every day from around the State from people who can't sell their homes. Rep. Kupersmith said she appreciates that the city wants the state to take responsibility for the state's land, but in some places the railroad owns the land. Rep. Kupersmith said there are two potential solutions: 1. Clarification of the rights of access to the homeowners 2. Taking over of the road by the municipality. She said she has been told that in the State agreements with the railroad, once it is a public crossing, the liability and maintenance problems become clear and title issues go away. She added that it is very hard to get anyone to take responsibility for a solution as no one wants to bear the cost. She felt city pressure on the state is appropriate and said she will continue to work closely with everyone involved. Ms. Riehle asked if this will have to wait till next session. Rep. Kupersmith said she didn't know. She noted the state has a lease agreement with the railroad which may constrain the state. Ms. Riehle asked if it could constrain the city. Rep. Kupersmith said it could. Ms. Greco asked if the city took over the road, would it solve the problem. Rep. Kupersmith said the State says it would solve the legal problem. She said it "may" solve the legal problem, but there is a question of the burden it puts on the city. She stressed this is an issue of great magnitude. Ms. Kupersmith said the Legislature has determined it will not be able to act. But a fact finding process has been put into place, and information from them is due on a month-to-month basis. She noted this is a technical as well as political issue. The urgency, she said, is Lynn Dapis's home, and she needs a solution soon. The city needs leverage to make this happen. Mr. Rusten questioned whether the Legislature needs to take action for the AOT to take action. If not, this is a process of getting enough attention. He felt the state needs to show they do not have the authority to do this, and they have not yet shown that. Mr. Miller added that since the State hasn't said they can't do this suggests they can, and there are reasons for them not doing it (e.g., liabilities the city doesn't know about, etc.). He indicated he is going to Montpelier to meet with the VLCT officials and can discuss this with them. Mr. Engels asked if the city were to take over the Holmes Road crossing, would it preclude everything else. Mr. Miller said it would. Mr. Engels asked if the state could then take the road back. Mr. Miller said once the city owns it, it is the city's. It is not a quick process, but it presumes the State would make an offer for the city to take over the road. Ms. Mackenzie asked why the city can't continue to do both: continue to work for the common good throughout the state but also move the issue forward in South Burlington. Ms. Dooley agreed. Mr. Miller asked: if the state got an indication that the city wanted to take over the road, what incentive would they state have to provide easements to homeowners? Ms. Greco noted this can be very time consuming for staff and the Council has to decide how much of this to take on. Rep. Kupersmith felt the process now happening in the Legislature will take some of the time burden from staff as it is about asking questions and demanding answers. Mr. Lipson asked if there is a difference between Bartlett Bay Road and Homes Rd. regarding liability. Mr. Miller said there is not. Ms. Ryan, a Holmes Rd. resident, said a map of the west side of the railroad track showed the road going north with a park going there. She asked if South Burlington would be maintaining those roads. Mr. Conner said there is a parcel of land by the Lake where a future park is on the official map. There are no proposed roads at this time. The property is privately owned and there is no access to the potential park indicated on the map. Mr. Ryan, a local resident, said they built a house a few years ago and the bank carried the mortgage insurance. They also refinanced and got insurance again. He felt "hearsay" has caused all of this. Mr. Engels then moved that the City of South Burlington take over the railroad crossing to within 70 feet of the railroad tracks. Ms. Mackenzie seconded. Mr. Miller said he takes this motion as a "resolution of intent." There is a process to bring this to fruition. It means the city now has to convince the AOT to say they own the land so the city can begin to take it over. He also noted that 70 feet is an "intention." The city would have to accept an irrevocable offer of dedication from the State presuming it ever got one. In the vote that followed, the motion passed unanimously. 7. Market Street Project and City Commitment: discussion and possible action to proceed: Ms. Blanchard reviewed the history. She said at this point the city has $5.5 MM in funds earmarked for this project. The city has done a lot of work on this, and there has been a finding of "no significant environmental impact." This would be the "spine" of the future City Center. The city also has a contract through the design of the project. They are at the point of having to decide whether to continue or to stop the project. Ms. Blanchard noted there is a required 20% city match for the second "earmark." This could make the city responsible for $1.7MM. Ms. Riehle asked if the extension of the road past Midas is still part of the plan. Ms. Blanchard said the bulk of the environmental study talks mostly about Market Street and not Midas. Ms. Dooley asked about "green streets." Ms. Blanchard said this has to do with the infiltration of water as opposed to piping it away. Mr. Engels asked about expiration of the permit. Ms. Blanchard said expirations no longer apply. The city can amend the permit. With regard to ownership of the land, Ms. Blanchard noted the city owns the 80-foot right-of-way from Hinesburg Road to Dorset Street. There is an alignment issue at Dorset Street which will be looked at in the design process to see if any land acquisition is required. Ms. Mackenzie asked if 80 feet is enough. Ms. Blanchard said it is. Ms. Mackenzie noted that landowners on either side of the road want this to go forward and are very excited about it. Ms. Greco asked if this would gibe with form based codes, if they are adopted for this area. Ms. Blanchard said the form based codes consultant did not alter the Market Street alignment. There would have to be decisions on streets that intersect with Market Street. Ms. Greco asked if there is money for the city's share. Mr. Rusten explained that both impact fees and reserve funds would be used. There is already $268,000 in impact fees and $190,000 from reserve fund from FY2013. The remainder would come from additional impact fees and continuing funding of reserve funds in future budgets. Mr. Miller noted that if the Council decides to spend that money elsewhere, it will have to find the money elsewhere. He also noted that if in the future a Council decides not to do this, whatever is spent after the first earmark would have to be repaid to the federal government. He added that this is a "domino" that has to start at some point if the city is ever going to develop a City Center in any meaningful way or do a TIF district, etc. Ms. Mackenzie asked what happens if the city doesn't get a TIF. Mr. Miller said they will have a hard time financing some of the City Center infrastructure. The city should know by the end of the year if the TIF is approved. He said if Market Street isn't done, the city might as well not do a TIF as you can't have a City Center without Market St. Ms. Riehle moved to approve the Resolution regarding the Market Street Project as presented. Mr. Engels seconded. Motion passed unanimously. 8. Other Business: A. NGA Permit Request: Ms. Dooley said she is not ready to act on this. She noted that Tony Cairns had said the hockey program wanted a lounge with alcoholic beverages and got a negative response from the Council. The Council felt it had the discretion to vote on this in the past. Ms. Dooley asked whether the city can have discretion on this when there are entities with long leases. Mr. Miller said the reason for the confusion is that the city ordinance regulating conduct in parks says drinking of alcohol in parks is not allowed unless a group has specifically been issued a permit. The Recreation Directors said he has never approved such a permit. That is why the issue has been brought to the City Council. Ms. Mackenzie said she felt it should be considered on a case by case basis. Ms. Greco asked if passing this would create a precedent. Ms. Dooley said that is the question that leads her to want legal advice. The fact that NGA has a 20-year lease is an issue for her. Mr. Miller said there is also a question as to whether this property is part of a city park. Mr. Spell, caterer for the event, said they are not trying to do a "lounge." It is a simple party, a one-time event similar to what they have done in a number of municipalities. He felt there would probably be very light alcohol consumption. Their client is a fundraising group hired by NGA, and they want marketing (advertising) up in advance of the August event. Ms. Greco said the city has been told that NGA wants to do this on a continuing basis, so it is not a one-time event. Mr. Miller said they could have a clarification in time for the 21 May agenda. Members agreed to wait for this clarification before making a decision. 9. Continue Discussion about Rules of Procedure and Other Regular Expectations for City Council: Ms. Greco noted there is very little in Roberts Rules of Order that applies to a City Council of this size. She said 5 points that do relate are: 1. Raising hands to be recognized 2. Not interrupting another speaker 3. Not holding "side conversations" 4. Allowing everyone to speak once before someone speaks again 5. Requiring a motion before discussing anything. Members had a mixed response regarding the raising of hands. Mr. Engels said they could have rules as a "guideline." Mr. Miller said that is the key word. If the Council is flexible, there is an opportunity to get more formal order; if things get out of hand, there is something to fall back on. He suggested adding that if there is a question of how to apply the rules of procedure, the Chair would make a ruling but could be overruled by a majority of the Council. Members also questioned whether there should be a motion before there is discussion on an issue. Ms. Riehle noted that a discussion item can lead to an action, as with the railroad crossing issue earlier. Mr. Engels felt a motion usually better frames a discussion. Ms. Greco felt a motion before discussion was better with some topics than with others. She felt discussion usually fames a motion. With regard to items on an agenda, Ms. Greco said if the item isn't in by the end of business on Friday preceding a meeting, it isn't on the agenda. Mr. Miller said staff tries to establish an agenda by mid-week, and it is unusual to add something on Friday unless it is something urgent, which can also be added on the day of the meeting. He also noted there is a difference between "good policy" and what is "legal." Mr. Rusten said the City Charter allows something to be added at a meeting by unanimous decision of the Council. Ms. Riehle suggested that when possible, if there are resolutions to vote on, these should be printed, particularly if the resolution is substantial. Mr. Miller noted that even a printed resolution can be amended. Members ultimately agreed to the raising of hands to be recognized by the Chair. Members then considered whether it is OK for Council members to confer out of session as in "serial conversations." Ms. Dooley said that all conversations outside of a meeting must be held in accordance with Vermont's Open Meeting Law. She felt serial discussions should not be discouraged. Ms. Greco said they are legal; the question is whether they are appropriate. Mr. Engels said the question for him is whether a Councilor is asking for agreement so he/she can come to a meeting knowing there is a majority for a vote. Ms. Riehle felt conversations were OK but "polling" was not. Ms. Mackenzie felt all conversations should happen at warned meetings. Mr. Engels felt it was better to have conversations at meetings but he won't give up talking to people. He would not, however, "count heads." It was agreed that members can contact the City Manager and Deputy City Manager with matters of clarification. They should not contact other staff members directly. With regard to contacting the City Attorney, Auditor or other consultants, Ms. Dooley said she didn't consider these people to be in the same category as staff. Ms. Riehle said these people shouldn't be called "willy nilly," and she was OK with not having Council members make these contacts but to work through the City Manager with issues and questions. A majority of the Council opposed members contacting the City Attorney, Auditor, etc., individually. Members favored continued joint meetings with groups such as the Planning Commission. Members felt meetings at alternate locations were impractical. The Charter "encourages" such meetings but does not require them. Town forums on issues relevant to a particular area of town could still occur. With regard to appointments to boards, etc., the question was raised as to whether members of such boards should be required to live in South Burlington. Ms. Dooley felt any decision on this should be made as part of a warned item. Members agreed to scratch the idea of "alternate" board members. Members also agreed to formulate a process for the evaluation of the City Manager. Ms. Mackenzie asked that the "pay as you go" concept be added to the procedures so nothing is passed without a means to pay for it. Joint Items 9 & 10: Ms. Greco noted that the Sustainable Agriculture and Affordable Housing Committees were created but had no ground rules or direction as to what they were supposed to do. The Interim Zoning by-law said these groups were to report back on 19 March with group goals, membership, etc. Ms. Greco suggested delaying this discussion due to the late hour. Other members suggested a special meeting for Interim Zoning issues. Members agreed to a special meeting on Tuesday, 15 May, 4 p.m. 11. Liquor Control Board: Mackenzie moved the Council adjourn and reconvene as Liquor Control Board. Ms. Riehle seconded. Motion passed unanimously. Mr. Miller presented a request from Klingers for a second class license to sell beer and wine. They had previously gotten a first class license to serve alcohol but forgot to apply for the second class license. Ms. Greco recused herself from this discussion due to a potential conflict of interest. Ms. Dooley moved to approve the Second Class License for Klingers as presented. Ms. Mackenzie seconded. Motion passed 4-0. Ms. Dooley moved to return to regular session. Ms. Riehle seconded. Motion passed unanimously. Ms. Greco then rejoined the Council. 12. Other Business: a. Minutes of 16 April 2012: It was noted that on p. 4, item #10, it was agreed to strike the line beginning "the AOT would like the railroad to give permanent easements..." On p. 5, it was noted that the temporary "takings" for the Route 2 upgrade included property of UVM. Ms. Riehle moved to approve the Minutes of 16 April 2012 as amended. Ms. Dooley seconded. Motion passed unanimously. b. Items raised by the public: Mr. Miller noted for the record that other people's work (e.g. maps) are not usually put on the city's website. Members agreed not to put Mr. Buck's map on the website. With regard to Mr. Maille's request regarding a change to the LDRs to address demolition issues, Mr. Miller suggested having Planning & Zoning look at this. Ms. Riehle asked what priority should be given to this. Mr. Miller said he would make copies of the pertinent documents and put the issue on a future agenda. Regarding the F35s issue, members considered the Council taking a formal position on the EIS and putting that issue on the 21 May agenda. Members agreed to do this by a vote of 3-2 with Ms. Mackenzie and Mr. Engels voting against. As there was no further business to come before the Council, Ms. Mackenzie moved to adjourn. Mr. Engels seconded. Motion passed unanimously. The meeting was adjourned at 9:45 p.m. Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works.