CITY OF HIGHLAND HEIGHTS

MINUTES OF A COUNCIL MEETING

HELD: DECEMBER 11, 2007

President of Council Murphy presiding.

PRESENT:      Councilmen Austin, Dolciato, Hargate, Legan, Mills, Murphy, Pilla; Clerk of Council Buchak; Fire Chief Bencin; Police Chief Cook; Service Director Evans; Building Commissioner Stouffer; City Engineer Blackley; Finance Director Ianiro; Law Director Paluf.

ABSENT:         Mayor Coleman excused.

ACTION ON MINUTES:   The reading of the Minutes of a Council Meeting held November 27, 2007 was dispensed with.  Mr. Hargate requested an amendment in the Safety & Service Committee Report on page 3:  After line 2, following they discussed the 911 program, add "the committee approved purchase of two 800 band radios.  These radios permit communication with the State's radio communication system.  With this purchase for the Fire Department the city will now have 5 radios."  Mr. Hargate moved to accept the Minutes as amended; seconded by Mr. Legan.  Ayes all; abstain Pilla; motion carried.

DEPARTMENT HEAD REPORTS:

Fire Chief's Report:  Chief Bencin reported Monday Congressman LaTourette, CXX and the City of Painesville handed out checks for reimbursement for responders to the CXX fire and train derailment.  Captain Molnar attended and received the city's check for $6,805.15. That is the amount they billed for the people they sent to respond.   

Police Chief's Report:  Chief Cook reported for the month of November the Police Department responded to 1,027 calls for service.  They handled 24 motor vehicle accidents with one involving personal injury, 45 residential alarms.  They held 33 prisoners for a total of approximately 950 hours for the month.  Also on the weekend the roof of the police-fire building was repaired. 

Service Director's Report:     Service Director Evans reported the leaf collection is under control.  They are down to two pieces of equipment roving the city and are making a circuit of the city in approximately 3 days now.  They probably will achieve substantial completion by the end of this week.  Also they were able to get the street sweeper out yesterday.  It will take 2 or 2 and a half weeks to get through the city.  That again will be weather dependent.  At the last council meeting council approved a requisition for a little over $9,000 to replace a street light on Brainard that was hit as a result of an automobile accident.  A reimbursement check has been received from the insurance company for that.  The installation of the pole is in progress.

Building Commissioner's Report:  Building Commissioner Stouffer reported an ARB Meeting was held today.  They considered two cases:  One is for a sun porch addition at 5584 Turnberry Lane.  That was tabled for additional information.  The second is at 483 Longspur.  They approved drawings for a 120 square feet addition to the rear of the house.  This was a special meeting.  Mr. Stouffer thanked the board for meeting today to accommodate the applicants because the next meeting would not be until January.

Mr. Stouffer also reported he issued a temporary certificate of occupancy for the Philips building on November 30th.  They aren't any normal workers in the building now; however, they issued the certificate so Philips can bring in their equipment.

Mr. Stouffer reported they are scheduled tomorrow to do an electrical inspection of the electrical service that was installed for the Maypine gate.  Should that be approved then the Illuminating Co. would energize it.  There are a few other items remaining that need to be completed before it goes on line such as repositioning of the receiver, and the actuator.  They want to put reflective signs on the gates so nobody runs into it at nighttime.  And then they need the controls systems for the service, police and fire to operate the gate.

City Engineer's Report:  City Engineer Blackley advised construction activity is pretty much non-existent in the last two weeks.  He didn't have a report but offered to answer questions.

In response to Mrs. Murphy's inquiry regarding park land, Mr. Blackley reported he sent an email that verified that the nature works grant was for 10.16 acres.  Land was purchased by the city at that time but the nature works grant applied only to specific 10.16 acre area which is on the south side of the park property that was outlined on the drawing that he gave council several weeks ago.  Mr. Blackley advised he also found the wetlands inventory map that dates from 1983 that shows a generalized location of a wetland area in the west area of the park.  And he has plotted that on a drawing that he will supply council.

Finance Director's Report:  Finance Director Ianiro advised he has no report.  However on the agenda this evening he requested that items 2, 3 , 5 and 6 be passed under suspension of the rules as this is the last regularly scheduled meeting of the year and these are items that need to be completed before December 31st.

COMMITTEE REPORTS:

Legislative & Finance Committee:   Mr. Legan reported L&F met this evening.  They approved an expenditure for some additional cameras in the jail for the police chief, a bill for the Lyndhurst Municipal Court for the city's share for the use of that facility, and a requisition for a truck repair for the Service Department.  In addition they met to discuss the health care plan for the city for 2008.  Anthen came in as the lowest and best bidder for the plan meeting our specifications and actually saving $200,000 a year.  They also discussed the process for next year, such as exploring other pools, perhaps with other municipalities, other providers, and maybe beginning the process sooner that what we have in the past.

Drainage Committee:  Mr. Mills reported the Drainage Committee met this evening.  They discussed:

§ A storm manhole repair at 612 Sturbridge for Mr. Paul Gold.  The Service Director recommended that the Cuyahoga County Sanitary will repair that in the spring under our new maintenance program. 

§ The open channel stream at 5719 Highland Road. 

§ The rear yard swale at 5986 Castlehill for Mr. Busher.

§ The Highland Road I&I study along with the Franklin Radford area flooding investigation also in conjunction with the Cuyahoga County Sanitary Engineer. 

§ Phase II Illicit Discharge Program.

§ Stormwater maintenance that we will have to review for next year. 

§ According to the Law Director, the McCracken - Kristosik (336-342 Miner Road) project is moving along; they are waiting until spring.

Law Director Paluf reported they are waiting for Mr. Kristosik to send back the signed easement.  Mr. Paluf talked with him about a week ago and will stay on top of this.

Planning and Zoning Commission:   Mr. Pilla reported a meeting was held December 10, 2007:

§ Lester and Rae Miller, 621 Hanford Drive.  A public hearing was held and approval was given for a variance to the fence requirements. 

§ Alpha Retail Shopping Plaza, Northeast Corner of Alpha Drive and Wilson Mills Road.  Variances for Proposed Shopping Plaza.  Variances were granted for 55 parking spaces.  In developing the property they are actually increasing the number of parking spaces.  Another variance was the sign, the old Sunoco sign on the freeway.  They will redo that.  The variance for that is 204 SF for the sign and the reason why they grant it was because the new sign is actually smaller than the Sunoco sign by 64 SF. 

In response to Mr. Austin's inquiry regarding two out buildings, Mr. Pilla reported they changed the way they are developing the front building where the Sunoco was because P&Z would not allow them access that close to the highway.  They are 154 feet away from the highway ramp and it is a right turn only.  Mr. Pilla passed a drawing around for Council's review.  They will still have two detached buildings, one where the Sunoco was and one out building for a bank. 

In response to Chief Bencin's inquiry regarding re-curbing of the two driveways into the Sunoco where they are taking the driveways out, Mr. Pilla stated they will re-curb Wilson Mills Road. 

Mayfield Area Recreation Council (MARC):  Mr. Dolciato reported MARC met last Thursday.  The girls fourth, fifth and sixth grade basketball will be winding down next week along with the floor hockey.  In January the boys NBA program will start and the younger kids with the floor hockey will start.  At the last meeting I reported they had $40,000 in their account so they are doing very well with the MARC program.  It has been a huge success and grows every year.

Mr. Dolciato thanked everyone that he worked with on Council for all their help and cooperation.  He stated he really enjoyed his two years here.  While he was a little hesitant when he first came on board because he didn't know what he was getting into but he learned a lot.  He stated in two years he thought they turned this city around and did a lot for it.  Mr. Dolciato stated he hoped that Council continues on to do a good job. He offered Good Luck to everyone. 

Safety & Service Committee:  Mr. Hargate reported a meeting was held this evening with Chief Cook and Service Director Evans.  With the Service Director they discussed purchase of a new chipper.  They took a look at two proposals, one from Premier Sales and Service price $25,124 and one from Southeastern Equipment Co., Inc.    They discussed both proposals with the Service Director.  Mr. Evans is recommending that they proceed with the Premier proposal and the committee also agreed and recommended proceeding with that.  Mr. Hargate asked that that proposal be placed on the agenda for the first meeting in January for council action.  They also discussed capital requests with the police and service departments for 2008 and will be discussing those with the fire department at their next meeting.

Park and Recreation Commission:   Mr. Austin reported the Christmas Party held last Saturday was a great success.  He thanked David Ianiro and the Park & Recreation people for putting on the party.  Their next meeting is scheduled for Thursday, December 13th. 

Mr. Austin then thanked everyone for serving with them for the last two years stating he has developed nice relationships with the Department Heads and people here but his family will enjoy him again on Tuesday nights.  Mr. Austin thanked everyone for working with him, learning a lot about the city.  He stated Highland Heights is a great community and is headed in the right direction.

Commission on Aging:  Mrs. Murphy reported the Holiday Party is being held tomorrow in the Community Center at 12 noon. 

Gas Well Committee:    Council President Murphy then provided a list of the Gas Well Committee Members that have been appointed.  She provided the list to the clerk for attachment to the minutes (copy attached).  Mrs. Murphy stated the purpose of the committee is to make a recommendation as to the proposed gas well sites, potential locations on city property -- the city park as well as the municipal center. 

Mr. Mills advised the first meeting of the Gas well committee is tentatively scheduled for Wednesday, December 19th at 7:30 p.m. in the Council Chambers.  It is open to the public.  This will be an organization meeting and Mr. Hlavin from Bass Energy has been invited to attend.

Law Director's Report:   Law Director Paluf reported he has met several times as well as had several conversations with the representatives from AT&T.  They had given notice that they would provide a new service pursuant to the new state law.  Also they discussed the franchise fees in all the cities.  Mr. Paluf advised sometime in early January they will need to pass an ordinance of authorization as well as establishing the franchise fee.  He has some sample legislation from other cities. 

Law Director Paluf reported the service department and other department heads met at the church property with the attorney for the church.  They are shooting for closing the purchase by the end of this year. 

MAYOR'S REPORT:  No report.

ITEMS TO BE ADDED TO THE AGENDA:  No items were added.

MEETING OPENED TO THE PUBLIC:

Mr. Ken Messenger-R apport, 5600 Hawthorne Drive, stated his family and he have lived in Highland Heights for the better part of eleven years.  He is also an attorney in private practice and is here tonight to speak about the intended gas lease -- gas well drilling that may take place in the park or on municipal property.  He is here tonight to represent a group of concerned residents who would like the city to benefit from whatever sale of natural gas that there might be but not at the expense of the health and safety of the residents or at a sacrifice of the precious and natural environment of the city.  And particularly not at the expense of the park.  To this end he has submitted to the secretary a letter asking that council rescind the resolution that it passed on January 23rd, specifically Resolution 63-2006 which authorized the Mayor to enter into a gas well lease with Bass Energy in Akron.  He realized that this throws a monkey wrench into many of the plans that have already been made and of the progress that has been made on this issue.  But he thought there are some important reasons why the council should take another look at this and really start from scratch. 

First he requested that the letter that he submitted be entered into the record in its entirety along with his comments and any answers to questions that are provide tonight.  Mr. Messenger-Rapport stated he would be glad to answer any questions after he finished.  He submitted copies of a letter which they circulated to residents (15 letters with signatures)

Mr. Messenger-Rapport stated it is their contention that Resolution 63-2006 should be rescinded along with the resulting lease with Bass Energy because the resolution was passed in violation of city ordinance 117.02 which specifically provides that no ordinance or resolution granting any franchise or contracting for the supply to the municipality or inhabitants of the product or service of a utility whether municipality owned or not shall be enacted as an emergency measure.  He also stated, it appears that this particular transaction was designed to take advantage of a statue and ordinance in Highland Heights, Charter Section 9.01 which relates to contracts and purchases.  Under that section of the ordinance, every contract in the city is supposed to be sent out for competitive bidding except for ordinances and contracts that are passed as emergency resolutions or emergency measures.  Those don't have to be sent out for competitive bidding.  In this case in order -- we already had Bass who wanted to contact the city.  In order for us to do that directly and not send it out for competitive bidding, we took advantage of this emergency measure provision at the end of this section of the ordinance. Unfortunately you failed to recognize that 117.02 specifically provides that that is not allowed.  That ordinance 117.02 provides no ordinance or resolution granting any franchise or contracting for the supply of utility shall be enacted as an emergency measure.  They think the wording in clear.  The word franchise includes leases, the law office states that no franchise can be granted as an emergency measure.  It also states that no contract for utilities shall be granted or enacted as an emergency measure.  The lease with Bass provides that Bass shall provide gas to the city and that would certainly seem to be a contract with a utility.  Therefore it would be prohibited by the ordinance.  I certainly think that language of 117.02 is clear and therefore the resolution should be rescinded and therefore the resulting lease should be nullified.  This is not just a technicality.  It has lead to confusion which snowballs throughout this process. 

They had a meeting several weeks ago at the Planning & Zoning Commission.  The fellow from Bass was here.  He basically said, why am I here, why am I in front of the Planning and Zoning Commission.  I don't see any requirements for me to be here.  The reason he didn't see any requirement for him to be here was because by passing the resolution as Council did they short circuited the provisions in the city code that provide for permitting of gas wells.  So they short circuited the process and now there aren't any rules that apply to a direct lease with a utility. 

The code section Chapter 733 would have provided legal framework for the review of an application for a permit to draw wells.  It would have provided framework for the sitting of the wells, for everything.  Because the resolution authorized the Mayor to enter directly into the contract with Bass, the entire procedural framework was bypassed.  So in other words the resolution just didn't just violate the language of 177.02 but it short circuited the entire process and now we are in sort of limbo where we don't understand what rules we are going to be following in order to implement this lease.  Council can correct all of this by rescinding the resolution as it was improper and simply ask Bass to file an application for a permit under Chapter 733.  There are some arguments that chapter 733 should no longer apply since the state has recently enacted revisions to Chapter 1509 which purportedly takes oil and gas regulation out of local control.  That is not exactly true in this case for two reasons:  first where the city is both the land owner and the lessor, it can impose any conditions that it was in a lease arrangements and that is a matter of contract law.  The new Ohio statute does not affect the power of cities to enter into contracts.  If Highland Heights wants the permitting process to apply to a contract, it is the primary party; it can require that we abide by Chapter 733.  Furthermore we contend that the city must follow its own rules in order to protect …, you have a duty to protect the health and safety of its residents and the environment of the city.  The provisions of Chapter 733 were designed exactly for that purpose.  So the city has not only the ability to do this it also has an obligation to do this.  Even if the state law does control many of the aspects of the regulation of the gas well drilling, city law still has something to say about this and that is under this and that is under 733.10.  Relationship of state.  He then read the statute 733.10.  "  The city's adoption of these regulations shall be supplementary ….......  The most restrictive or that imposing the higher standard shall govern"

It is our contention that the state statute does not comprehend this.  There are some aspects of the state statute that simply do not apply to the city especially where the city is the land owner.  In fact there many standards in the state legislation that are less stringent than the standards in the city's legislation for example, the state statute is silent on the application by municipal building and fire officials it is silent on public hearings within municipalities.  It is silent on the sitting of proposed wells.  In additional the state laws are significantly less stringent regarding the placement and spacing of wells away from public parks, schools, libraries and residential areas.  Where the state law is less stringent than local law in our ordinance 733.10 specifically states that the most restrictive or higher standard shall be applied and that it shall be done here as a duty to protect its residents and environment where the state fails to do so. 

Council President Murphy referred this to the Law Director.  She stated that everyone in the city is similarly concerned.  And certainly they want to promote the welfare of all residents in this matter.  As far as rescinding the resolution, it will be something they have to defer to the Law Director and see if that is something that would be appropriate. 

Law Director Paluf stated, regarding the point of the franchise and public utility under 5905.036, are these gas well expiration companies considered a public utility.  He stated that doesn't apply.  He stated, if you look at Section 10.01 of the Charter, as well as Codified Ordinance Section 117.02 and go back to 10.01 and look at the revised code, it is certain that these companies are not public utilities.  That he answered this evening. 

Mr. Messenger-Rapport stated he thought it was important that they at least try to adopt the framework of Chapter 733 because there are certain protections in there that directly protect the health and safety of the residents of Highland Heights and preserve the integrity of the park.  He directed their attention to Section 733.20 which specifically provides that there shall be no drilling of an oil or gas well within 500 feet of the residential property or a public park or playground.  The way he read that is there is not to be any drilling in the park.  They have spoken with other residents who were here when that ordinance was passed and they have told us that it meant what it says that the park was to be sacrosanct that there was not to be any drilling in the park.  It was supposed to be green space.  That is why this statute is here. 

Murphy that is something we will have the law director look at and render some sort of opinion on it.  And if you can do that and direct any of your interpretations to the committee as well.

Mr. Frank Skala, 5700 Hawthorne Drive, stated he is a fourteen year resident of Highland Heights.  He stated he was here 28 days ago at which time he submitted a list of questions.

Law Director Paluf stated he is working on the questions.  He met with the engineer and also forwarded it to Bass Energy because there are some questions they will have to answer and there are some questions that can't be answered at all.  So he is still working on it.  He stated he should have the answers by the first week in January.

Law Director Paluf advised Bass Energy will meet with the committee.  Council President Murphy advised Bass Energy will probably not come back to council until they have the committee recommendation. 

Mr. Skala stated that the questions were directed to the Council, Mayor and City Engineer and they are not to be shelved so that this forthcoming committee is expected to answer them.  He added that they are not just his questions, they are questions from many people and they are important questions and

Mr. Dolciato asked to be excused from the meeting.  He was excused by Council President Murphy.

NEW BUSINESS:

FIRST READING PROPOSED RESOLUTION 53-2007:  Council listened to the First Reading in title only of Proposed Resolution 53-2007 which description is:  "A Resolution authorizing James G. Zupka, Inc. to assist the City in preparation of its Basic Financial Statements (GPFS) in accordance with GASB Statement 34 and all other GASB Statements for the Calendar Years 2007 and 2008, and declaring an emergency."

ADOPTION OF RESOLUTION 54-2007:  Council listened to the First Reading in title only of Proposed Resolution 54-2007 which description is:  "A Resolution authorizing the Mayor to enter into an agreement with Anthem Blue Cross and Blue Shield for health care insurance for the City's employees and declaring an emergency."  Mr. Hargate asked if there are any inconsistencies in this contract from the negotiated labor negotiations.  Law Director Paluf stated, there are some inconsistencies, however, they are a little better on some and worse on some but he thought they are OK because there is substantial compliance and the unions have agreed.  They have drawn Memorandums of Understandings with all four unions for a year.  Mr. Pilla moved to suspend the Second and Third Readings; seconded by Mr. Austin.  Ayes all; motion carried.  Mr. Legan moved to adopt; seconded by Mr. Mills.  Ayes all; motion carried.

ADOPTION OF RESOLUTION 55-2007:  Council listened to the First Reading in title only of Proposed Resolution 55-2007 which description is:  "A Resolution authorizing the Mayor to enter into an agreement with Anthem Blue Cross and Blue Shield for dental care insurance for the City's employees and declaring an emergency."  Mr. Hargate asked if the memorandum of agreement apply to this contract also.  Law Director Paluf stated, yes.  Finance Director Ianiro added that all the unions have agreed to it.  Mr. Legan moved to suspend the Second and Third Readings; seconded by Mr. Mills.  Ayes all; motion carried.  Mr. Mills moved to adopt; seconded by Mr. Austin.  Ayes all; motion carried.

SECOND READING PROPOSED RESOLUTION 52-2007:  Council listened to the Second Reading in title only of Proposed Resolution 52-2007 which description is:  "A Resolution requesting the Cuyahoga County Auditor to advance taxes from the proceeds of tax levies and declaring an emergency."

ENACTMENT OF ORDINANCE 20-2007:  Council listened to the Second Reading in title only of Proposed Ordinance 20-2007 which description is:  "An Ordinance amending Ordinance No. 1-2007 so as to change the appropriations for current expenses and other expenditures of the City of Highland Heights, Ohio, for the period commencing January 1, 2007 and ending December 31, 2007, repealing all ordinances inconsistent herewith, and declaring an emergency."  Mr. Pilla moved to suspend the Third Reading; seconded by Mr. Mills.  Ayes all; motion carried.  Mr. Pilla moved to enact; seconded by Mr. Mills.  Ayes all; motion carried.

ENACTMENT OF ORDINANCE 21-2007:  Council listened to the Second Reading in title only of Proposed Ordinance 21-2007 which description is:  "An Ordinance appropriating funds for current expenses and other expenditures of the City of Highland Heights, Ohio, for the period commencing January 1, 2008 and ending March 31, 2008, and declaring an emergency."  Mr. Legan moved to suspend the Third Reading; seconded by Mr. Austin.  Ayes all; motion carried.  Mr. Austin moved to enact; seconded by Mr. Legan.  Ayes all; motion carried.

INAUGURATION:  Council President Murphy announced that the inauguration ceremony will be held Sunday, December 23, 2007 at 1:00 p.m.  Please provide the names of any special guests to Diana for the program.  She asked that council members meet to schedule a caucus.

ADJOURNMENT:   A motion was made by Mr. Mills and seconded by Mr. Legan to adjourn the meeting.  Said meeting adjourned at 9:00 p.m.

Clerk of Council

President of Council