MINUTES
OF THE
REGULAR MEETING OF
LAKEWOOD CITY COUNCIL
HELD IN COUNCIL CHAMBERS
12650 DETROIT AVENUE
OCTOBER 6, 2003
7:30 P.M.
Regular Meeting of the Lakewood City Council called to order at 7:33 P.M. by Council President Seelie.
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Present: Councilmembers Brian T. Corrigan, Michael W. Dever, Denis P. Dunn,
Edward FitzGerald, Thomas J. George, Nancy J. Roth, Robert M. Seelie.
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Also Present: Mayor Cain, Law Director Spellacy, Acting Finance Director Demerle,
Fire Chief Mroz, Police Chief Malley, Planning & Development Director Pietravoia,
Public Works Director Boag, Human Services Director Buckon, Executive Assistant
to the Mayor for Community Relations Antonio.
Pledge of Allegiance
Moment of Silence
Roll Call
Motion by Mr. George, seconded by Mr. Dever, to approve the Minutes of the Regular Meeting of Council held 9/15/03 without the necessity of a reading.
Motion adopted. All members voting yea.
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****OLD BUSINESS****
1. Committee of the Whole verbal report regarding Cox Cable Franchise.
Mr. Seelie stated the Committee met that evening to discuss a 15 year Cox Cable Franchise Agreement. He said it was two years in the making and resulted in a good contract for the City, mentioned to one of the best in the State of Ohio. He indicated the communications network that was provided by Cox under the prior franchise for the City and the Lakewood Public Schools will be scrapped and replaced by a modern fiber optics - 6 to 12 fibers serving not just the City and the Lakewood Public Schools, but the parochial schools and public libraries too. He said it was a state-of-the art network that will put the City, the public and parochial schools, and the Public Library on the leading edge of communication technology and will make further cost-saving technologies possible, such as competitive access to telephone and Internet access services. He said the City will acquire, at no cost, the right to exclusive use of up to two channels on the cable system. He said these channels can be used for non-commercial government or educational purposes for the City. He said there was a senior citizens discount included in the contract. He said Cox will provide senior citizens who qualify for the homestead exemption, or reside in a senior citizen housing unit designated by the City, with 15% discount. He said there was also a unique and sizeable renewable application fee of $75,000 that will be given to the City. He said Cox will provide parental control where both the audio and video could be locked by parents.
Motion by Mr. Seelie, seconded by Mr. George, to receive and file the verbal report.
Mr. Dunn indicated that because of his status as an employee of SBC Communications that he would recuse himself from all deliberations on the issue and that he would abstain on all votes.
Motion adopted. Six members voting yea.
Mr. Dunn abstains.
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2. ORDINANCE NO. 57-03 - AN EMERGENCY ORDINANCE authorizing the Mayor on behalf of the City of Lakewood to enter into an agreement extending a cable franchise to Cox Communications for a period of fifteen (15) years pursuant to Article XVIII of the Second Amended Charter of the City of Lakewood. (PLACED ON 1ST READING & REFERRED TO THE COMMITTEE OF THE WHOLE 9/2/03, 2ND READING 9/15/03){FRANCHISE AGREEMENT PUBLISED IN ITS ENTIRETY 9/2/03 REMAINS ON FILE IN THE CLERK OF COUNCIL OFFICE FOR PUBLIC REVIEW}(Pg. 5)
Motion by Mr. Seelie, seconded by Mr. George, to adopt Ordinance No. 57-03.
Motion adopted. Six members voting yea.
Mr. Dunn abstains.
{Without objection from Council Public Comment on non-agenda items was heard
at this time}.
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3. Finance Committee Verbal Report regarding Compressor/Cascade System Trade-In
with Purchase of Breathing Air Compressor.
Mr. George indicated the Finance Committee met that night. He said the Committee learned that the old compressor value would be applied to upgrade a mobile trailer to be used by the Fire Department. He said the Finance Committee recommended unanimously to adopt Ordinance No. 64-03.
Motion by Mr. George, seconded by Mr. FitzGerald, to receive and file the verbal report.
Motion adopted. All members voting yea.
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4. ORDINANCE NO. 64-03 – AN EMERGENCY ORDINANCE authorizing and directing the Director of Finance to sell, through trade-in, one Eagle Compressor and 4500psi Cascade System in conjunction with the purchase of a new Breathing Air Compressor. (PLACED ON 1ST READING & REFERRED TO THE FINANCE COMMITTEE 9/2/03, 2ND READING 9/15/03)(Pg. 7)
Motion by Mr. George, seconded by Mr. Dunn, to adopt Ordinance No. 64-03.
Motion adopted. All members voting yea.
****NEW BUSINESS****
5. Communication from Councilmember Roth regarding Father John J. Bryk. (Pg. 8)
Motion by Ms. Roth, seconded by Mr. George, to receive and file the communication.
Motion adopted. All members voting yea.
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6. RESOLUTION NO. 7814-03 – A RESOLUTION to recognize Father John Bryk
on the 50-year anniversary of his Priestly Ordination. (Pg. 9)
Motion by Ms. Roth, seconded by Mr. George, to adopt Resolution No. 7814-03.
Motion adopted. All members voting yea.
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7. Communication from Law Director Spellacy regarding Submission of Initiative
Petition to repeal Ordinance No. 146-02. (Pg. 10)
Motion by Mr. Seelie, seconded by Mr. George, to receive and file the communication.
Mr. Spellacy said he wanted to indicated he did provide Council a substitute Ordinance that included a date for the election. He said he wanted to inform Council that the City was sued that day by the Committee and Mr. Phillips with a write of mandamus in front of the Supreme Court of Ohio. He said their suit contends that the City was to act sooner than that night and that this should be on the November 4th ballot. He said that his calculation, along with other members of the Law Department and a reading of the Charter suggests that Mr. Phillips and the Committee are wrong and that while it does belong on the ballot it doesn’t belong on the November 4th ballot, it belongs on the ballot, March 2, 2004. He said that in Article XX, Section 10 of the Charter it is stated that if there’s an election to be held within 30 days of the date that it is brought to Council (which he said was today) or on the outside, six months, then it should be held at that next, regular election. He said there was no election within 30 days from today. He said there was an election, however, within six months of today – which is March 2, 2004. He said accordingly, he amended the ordinance to reflect that date to be submitted to a vote of the electors as well as the appropriate ballot language on the ordinance.
Motion by Mr. Seelie, seconded by Mr. George, to receive and file the communication
Motion adopted. All members voting yea.
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8. ORDINANCE NO. 68-03 – AN EMERGENCY ORDINANCE submitting an Initiative
Petition to repeal Ordinance No. 146-02 in its entirety, an emergency ordinance
approving the Community Development Plan for the West End District, to a vote
of the electors pursuant to Article XX of the Second Amended Charter of the
City of Lakewood. (Pg. 11)
Motion by Mr. Seelie, seconded by Mr. George, to amend to substitute the following changes; the first, in the last “whereas” – states the date of the election to be March 2, 2004. Second change is a new section 1 – which instructs the Clerk to send it to the Board of Elections and includes the actual ballot language. He said the other change is Section 3 – states if this passes it becomes an ordinance of the City of Lakewood.
Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None.
Motion adopted. Ordinance substituted.
Motion by Mr. Seelie, seconded by Mr. George, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 68-03 on final reading.
Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Motion adopted. Rules suspended.
Motion by Mr. Seelie, seconded by Mr. George, to adopt Oridnance No. 68-03.
Mr. Corrigan asked for clarification on the reason for suspending the rules if it was in order to get the ordinance down to the Board of Elections as soon as possible. Mr. Seelie responded yes.
Gerald W. Phillips indicated his address at 35955 Detroit Road, Avon, Ohio. He said he was there on behalf of the Committee and the members of the Committee. He said Council had a mandatory duty to place the Initiative Petitions, the proposed ordinance to repeal Ordinance 146-02 on the General Election for November 4, 2003 based on the Clerk’s certificate issued September 18, 2003 which he said indicated 204 additional signatures. He said when that is added to the 1454 it equaled a total of 1658 signatures. He said that that number exceeded 1,531 signatures which he said was the amount required. He said the Board of Elections validations substantiate that. He said that Article 10, Section X, contrary to the Law Director indicates Article XX, Section 10 indicates that after the Clerk’s certificate an election no less than 30 days, no more than six months. He said September 18, 2003 is when the Clerk’s certificate indicating the sufficiency was issued. He said this was 47 days before the November 4, 2003 election. He said two – that that night’s meeting is the 30th day by law for the November 4th, 2003 election. He said October 5, 2003 was the 30th day. He said the next succeeding day is October 6, 2003, today. He said based on Ohio Law, when a time period ends on a Sunday, you can perform the act on the next, succeeding day. He said that Ohio Revised Code Section 1.14, “your own Codified Ordinances 10303C1 adopts that expressed language”. He said there is a duty to put it on November 4th. He said in order to vote in the November 4, 2003 election, you have to be registered at least 30 days before the election. He said the 30th day would be October 5th. He said you could register as late as today, October 6th to vote at that election. He said the Chief Election Officer of the State of Ohio, the Secretary of State has deemed, based on the language the 30th day is today.
He said Ordinance 68-03 on the agenda didn’t have the exact date. Mr. Phillips said that based on a memo he wrote to the Law Director that the Law Director put in an exact date. He said it was the wrong date.
Mr. Phillips said Council had a choice. He said it could perform what he said was a mandatory duty to put it on the November 4, 2003 election or he said Council could ignore it. He said that they (Mr. Phillips and others) put a demand on the Law Director on September 25th. He said he received a rejection from him on September 30th. He said that they proceeded to file a law suit in the Supreme Court. He said it was because the Law Director wasn’t going to advise Council to perform what he said was a mandatory duty. He said the City’s delay has caused the litigation.
He said first, on September 2, 2003, they filed a supplemental petition. He said that on the advise of the Law Director, the City waited 14 days to the September 16th to send them to the Board of Elections. He said that in 1998 “you” immediately sent them to the Board of Elections. He said the Board of Elections asked to have them sent immediately but he said the Law Director ignored those pleas. He said second, a Special Council Meeting could have been called in order to put the issue on the November 4, 2003 ballot. He said this is what was done in 1998. He said there was a Special Council Meeting for the Committee of the Whole for the Special Meeting for the Public Hearing. He said there was then a Special Meeting where legislation was passed. He said that was ignored. He said the City’s action was a clear example of intentionally stone-walling and stalling to put this on the ballot. He said the City’s actions and conduct has put the Board of Elections in a difficult position. He said they have to prepare absentee ballots, which he said was going to be done after October 8th. He said the Board requested the supplemental petitions to be sent down after they were filed on September 2nd. He said they were ignored. He said the Board has already assigned an issue for this to be placed on the November 4th, 2003 ballot. He said to perform what he said was a mandatory duty and that the lawsuit will be dismissed. He said to quit wasting taxpayers funds caused by the stonewalling efforts and stalling tactics for the sole benefit of the private developers who are nothing more than out of town carpet baggers.
Law Director referenced Mr. Phillips out of town status also and indicated that he was 100 percent incorrect. He said it was “bold face, untrue” that the Board of Elections demanded or asked for the additional petitions. He said that was a complete falsehood, that it never happened. He said Mr. Phillips deserves credit for being a creative lawyers. He said that in this instance Mr. Phillips wants to count backwards on his 30 days which he said landed on a Sunday. He said that what Mr. Phillips doesn’t tell is that Section 101.03 that when time is computed under subsection C, you exclude the first date, which he said was today. He said that Mr. Phillips fails to say that when he comes to the microphone that in subsection 10, of Article XX (he said not Article 10) that Council can’t receive the Clerk’s certificate until Council takes official action. He said that’s tonight. He said when that night’s date was excluded and it was counted forward to November 4th as required under 101.03 the result is 29 days. He said that Mr. Phillips again fails to tell is that he and his Committee are the untimely folks. He said they had the right to referendum the issue back in December of 2002. he said they failed to do that. He said they could have acted within 45 days to have done that, they didn’t do that. He said they could have acted the next month by way of Initiative and would have avoided the problem, could have acted in March, May, June. He said they waited until some time in July before they went out to get signatures. He said to suggest somehow that the City had delayed them is untrue. He said that Mr. Phillips conveniently mixes referendum language with initiative language with Charter language. He said that under each one of those sections, there is a different burden upon the City. He said in some of those instances the City does have the obligation to act forthwith. He said Mr. Phillips knows that as “without delay”. He said that’s what’s happened in the past under different circumstances. He said under this circumstance, the Initiative language is clear – that at the next regular scheduled meeting (which he said was tonight) “you’re to act”.
Law Director Spellacy said that they have appropriately brought it forth to Council and that he believed this is the right way to handle the matter. He said Mr. Phillips also fails to tell is that the last time Mr. Phillips went on one of these “goose chases” he cost the City about $50,000 in attorney’s fees when the City ended up prevailing. He asked Mr. Phillips if that was correct. He said to Mr. Phillips that he lost in the Supreme Court. He said this was another instance where he wants the City to pay his bill. He said this is what it’s about. (Mr. Phillips responded away from the microphone - inaudible). Mr. Phillips said, “put it on the ballot and you won’t have to worry about paying my bill”.
Councilmember Dunn asked if there was a date that’s set for a court hearing. Mr. Spellacy said that they had five days from the date of service which he said was today, to respond to the Supreme Court. Councilmember Dunn asked if the result was contrary to the City if a Special Meeting of City Council would be required. Mr. Spellacy responded that if the Supreme Court were to rule that these were to be placed on the ballot he said they would instruct “us” and the Board of Elections to put this on the ballot. He said the other thing that he believed was in the City’s favor was that the absentee ballots went out that day. He said there’s a state law that says 35 days beforehand. He said he believed the City was on solid ground. He said the idea of counting backwards instead of forwards when it works to your benefit was ludicrous.
Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Motion adopted. Ordinance No. 68-03 adopted.
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9. Communication from Law Director Spellacy regarding Increased Contracting
Authority for Property and Liability Insurance Contracts. (Pg. 13)
Motion by Mr. George, seconded by Mr. Seelie, to received and file the communication.
Councilmember George said he agreed with suspending the rules indicating he wanted to avoid having a lapse in insurance. He asked however, if there was a reason for the increase. Law Director Spellacy responded that in 2001, 2002 the City’s insurance premiums were $236,974. He said in 2002/2003 they jumped to $316,000. He said that amount did not include an additional policy encumbered for the City’s Health Department. He said he thought the 2003/2004 figure was a direct result of the carrier at the time was having difficult times and in going after municipal work under bid a lot of municipalities.
Motion adopted. All members voting yea.
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10. ORDINANCE NO. 69-03 – AN EMERGENCY ORDINANCE increasing contracting authority for the Mayor (Director of Public Safety), the Director of Public Works, the Director of Law, the Director of Finance, and/or the Procurement Officer to enter into contracts for professional services, and to advertise for bids and enter into contracts for the purchase of repair maintenance and operating supplies, services and equipment as authorized by the 2003 Appropriation Ordinance and the Administrative Code of the City of Lakewood with the lowest and best bidder or bidders or as otherwise provided by law. (Pg. 14)
Motion by Mr. George, seconded by Mr. Seelie, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 69-03 on final reading.
Councilmember Roth referred to the cover letter stating that it indicated the city had sufficient appropriations allocated but that the contracting authority needed to be increased.
Law Director Spellacy responded that for whatever reason enough money was appropriated but they did not seek appropriate contracting authority at the time. He said they did not anticipate the increase of nearly 35 percent.
Council President Seelie clarified that it wasn’t just Lakewood facing this but was an across the board problem.
Councilmember Roth, said there was the right amount for the appropriations. She asked there was not enough for the contracting.
Law Director Spellacy responded that there wasn’t contracting yet. He said the contracting authority Council granted did not include enough money in the contracting authority to enter into an agreement. He said they came back to ask Council for additional contracting authority. He said they were some $60,000. short.
Councilmember Roth asked if the same amount of requested in the appropriations was not the same amount contained in the original contracting authority. She asked if this was something that happened accidentally last year when the appropriations should have been the same as the contracting. She said the contracting authority was the same as what was appropriated last year where it should have been what was appropriated.
Law Director Spellacy responded that was correct.
Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Motion adopted. Rules suspended.
Motion by Mr. George, seconded by Mr. Seelie, to adopt Ordinance No. 69-03.
Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Motion adopted. Ordinance No. 69-03 adopted.
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11. Communication from Finance Director Blasko regarding 2004 Tax Advances.
(Pg. 16)
Motion by Mr. George, seconded by Mr. Seelie, to receive, file and refer the communication to the Finance Committee.
Motion adopted. All members voting yea.
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12. RESOLUTION NO. 7815-03 – AN EMERGENCY RESOLUTION requesting the Cuyahoga County Auditor to draw and the Cuyahoga County Treasurer to pay to the City of Lakewood Director of Finance an advance of all real; personal property; estate taxes and special assessments collected in the year 2004 in such amounts as may be requested and available. (Pg. 17)
Motion by Mr. George, seconded by Mr. Seelie, to receive, file and refer Resolution No. 7815-03 to the Finance Committee.
Motion adopted. All members voting yea.
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13. Communication from Planning & Development Director Pietravoia regarding
Development Agreement and Related Appropriations for the Hinkley Lighting Retention
and Expansion Project. (Pg. 19)
Motion by Mr. Seelie, seconded by Ms. Roth, to receive, file and refer the communication to the Committee of the Whole.
Motion adopted. All members voting yea.
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{Numbering for items 14, 15, and 16, were correcting upon reading}
14. ORDINANCE NO. 70-02 3 – AN EMERGENCY ORDINANCE authorizing the Mayor
or her designee to enter into a Development Agreement with Hinkley Lighting,
Inc. an Ohio Corporation for a financial assistance package in support of the
retention and expansion of the company located at 12600 Berea Road (Permanent
Parcel Number 315-24-010) and 12750 Berea Road (Permanent Parcel Number 315-24-005),
Lakewood Ohio. The Development Agreement is now on file with the Clerk of Council.
(Pg. 21)
Motion by Mr. Seelie, seconded by Ms. Roth, to place Ordinance No. 70-03 on 1st Reading and refer it to the Committee of the Whole.
Motion adopted. All members voting yea.
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15. ORIDNANCE NO. 71-02 3– AN EMERGENY ORDINANCE authorizing the Mayor
or her designee to enter into an agreement with Hinkley Lighting, Inc. for participation
in the Lakewood Business Investment Program (BIP) of the Economic Development
Fund (EDF) for a five (5) year forgivable loan in an amount of One Hundred Fifty-Five
Thousand Dollars ($155,000.00) to assist Hinkley Lighting, Inc. with the redevelopment
of 12600 Berea Road (Permanent Parcel No. 315-24-010) and 12750 Berea Road (Permanent
Parcel No. 315-24-005), Lakewood Ohio. (Pg. 22)
Motion by Ms. Roth, seconded by Ms. George, to place Oridnance No. 71-03 on 1st Reading and refer it to the Committee of the Whole.
Motion adopted. All members voting yea.
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16. ORDINANCE NO. 72-02 3– AN EMERGENCY ORDINANCE adjusting appropriations for expenditures in the General Fund for the fiscal year ending December 31, 2003 for the purposes of accepting payment of an economic development grant from Cuyahoga County in the amount of Three Hundred Eighty-Seven Thousand Seven Hundred Twenty-Two Dollars ($387,722.00), which in turn shall be applied by the City toward payment of expenditures related to the Hinkley Lighting, Inc. retention and expansion project at 12600 and 12750 Berea Road, Lakewood, Ohio. (Pg. 23)
Motion by Ms. Roth, seconded by Mr. Seelie, to place Oridnance No. 72-03 on 1st Reading and refer it to the Committee of the Whole.
Motion adopted. All members voting yea.
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17. Communication from Planning & Development Director Pietravoia regarding
Economic Development Fund Loan for Establishment of an SBC Ohio Mechanized Loop
Assignment Center (MLAC) at 14233 Detroit Avenue. (Pg. 24)
Motion by Mr. Seelie, seconded by Ms. Roth, to receive, file and refer the communication to the Committee of the Whole.
Mr. Dunn indicated that because he was employed by SBC Ohio he would recuse himself from any deliberations on the issue and abstain from all votes.
Motion adopted. Six members voting yea.
Mr. Dunn abstains.
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18. ORIDNANCE NO. 73-02(3)–AN EMERGENCY ORDINANCE authorizing the Mayor or her designee to enter into an agreement with SBC Ohio for participation in the Lakewood Business Investment Program (BIP) of the Economic Development Fund (EDF) for a five (5) year forgivable loan in an amount of One Hundred Thousand Dollars ($100,000.00) to assist SBC Ohio to complete the renovations and system equipment upgrades necessary to establish a Mechanized Loop Assignment Center (MLAC) at the facility located at 14233 Detroit Avenue (Permanent Parcel No. 314-07-001), Lakewood, Ohio. (Pg. 26)
Motion by Mr. Seelie, seconded by Mr. George, to place Ordinance No. 73-03 on First Reading and refer it to the Committee of the Whole.
Motion adopted. Six members voting yea.
Councilmember Roth asked Mr. Pietravoia the economic development fund and no
projects. She said that this is the fourth or fifth one in the last 18 months.
She asked how much money is left in the fund. Planning & Development Director
Pietravoia said he did not know the exact dollar figure but that they had commitments
to use up the entire fund by the end of this calendar year. He said they would
be coming to Council at the next meeting with the CAC recommendations and that
they were recommending reestablishing funding for that program.
Councilmember George asked whether or no SBC approval to get into long distance was a component of this particular location being selected.
Mr. Pietravoia responded he did not believe the long distance approval had any bearing on the location of the center. He said deregulation has allowed the regions to be created – that the Midwest region was a five state region – with the consolidation – there are only two centers. He said the Lakewood location would be one of those two centers. He said what they do is track the utilities grid system and keep records of what types of services each individual business or home customer is utilizing.
Motion to place on 1st Reading and refer to the Committee of the Whole.
Motion adopted. Six members voting yea.
Mr. Dunn abstains.
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19. Communication from Public Works Director Boag regarding State Issue 2 Infrastructure
Bond Program – Sloane Avenue Improvement Project. (Pg. 27)
Motion by Mr. George, seconded by Ms. Roth, to receive and file the communication.
Motion adopted. All members voting yea.
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20. RESOLUTION NO. 7816-03 – AN EMERGENCY RESOLUTION authorizing the Mayor, for and on behalf of the City, to seek financial assistance from the State Issue Two Infrastructure Bond Program for funding of the 2004 Sloane Avenue Improvement Project. (Pg. 28)
Motion by Mr. Corrigan, seconded by Mr. George, to adopt Resolution No. 7816-03.
Motion adopted. All members voting yea.
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21. Liquor Permit Application for a D5 transfer to JJT Incorporated d/b/a Mullens of Letterfrack 17014 Madison Avenue, Lakewood from JDM Corp d/b/a Mitey Mouse Lounge same address. (Pg. 30)
Motion by Mr. Dunn, seconded by Mr. Seelie, to file no objection.
Motion adopted. All members voting yea.
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22. Liquor Permit Application for D2, D2X, D3, D3A and D6 transfers to WCJSB Inc d/b/a Old Stand, 15527-33 Madison Avenue from Ronika Inc. same address. (Pg. 31)
Motion by Mr. Dunn, seconded by Mr. Seelie, to defer action on this
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Approved:________________________ ___________________________
PRESIDENT
____________________________
CLERK