RECORD OF PROCEEDINGS

MEETING OF COUNCIL

July 14, 2008

 

Mayor Goudy called the City of Union council meeting to order on July 14, 2008, at 7:30 p.m.  Attendance was taken and the following council members were present:  Mr. Bruns, Mrs. Terry, Mayor Goudy, Mr. O’Callaghan, Mr. Blackwell, and Mrs. Perkins. 

 

          Other city staff members present were John Applegate, City Manager, Denise Winemiller, Assistant City Manager, and Joe Moore, Law Director.

 

          Mrs. Kyle had called and was not able to attend the meeting due to illness.   Mayor Goudy moved that Mrs. Kyle be excused from attending the council meeting.  Mr. O’Callaghan seconded the motion.  All concurred and the motion was passed.  Mrs. Kyle’s absence was excused.

 

          Mayor Goudy asked for a moment of silence. 

 

          1.  Mayor Goudy asked if there were any questions or corrections in the council minutes from the June 23, 2008 meeting.  There were no corrections so Mr. Bruns moved that the council minutes be accepted as prepared.  Mayor Goudy seconded the motion.  Mrs. Terry and Mr. O’Callaghan abstained and the other council members voted for the motion.  The minutes were accepted as prepared.

 

          2.       Citizen’s and Visitor’s Comments

 

          Mayor Goudy recognized Mr. Glynn Marsh regarding the Randolph Township Historical Society.  Mr. Marsh said that this was an exciting time for the organization because after ten years, the RTH History center would open on July 26 and 27.   He said there would be a brief program at 1:00 on Saturday.  Mr. Marsh added that Arlene Setzer would be attending and presenting the center with an Ohio flag.  He said he was hoping to have representatives from the neighboring three cities attend and say a few words.  

Mr. Marsh said they were currently working on the interior of the building.  He said they would have space to display over 2,000 items that have been donated and that so far, they had been successful in fund raising. 

 

Mayor Goudy then recognized Mr. Dave Stamper who indicated he wanted to talk about the traffic on West Martindale Road.  Mr. Stamper thought people were speeding on Martindale and he asked the city to check into that. 

Mayor Goudy asked if the police could patrol the area more frequently.  Mr. Applegate said he had talked to Mr. Stamper a couple of months ago when Phillipsburg-Union Road was closed and Martindale Road was getting more traffic.  Mr. Applegate said since that time, the city has had a cruiser stationed on Martindale. 

Mr. Applegate said he could have the city’s traffic engineer set up counters which would tell the amount and the speed of traffic, and when the cars were going down the street.    Mr. Applegate said they would station a cruiser on Martindale and make sure people are following the speed limit.  Mr. Applegate added that usually in these situations, most of the speeders would probably be Union residents that live in town. 

Mayor Goudy thanked Mr. Stamper for bringing this to their attention.   

 

3.       ONE READING – ORDINANCE 1451 – AN ORDINANCE OF THE CITY OF UNION, OHIO APPROVING THE EDITING AND INCLUSION OF CERTAIN ORDINANCES AS PARTS OF THE VARIOUS COMPONENT CODES OF THE CODIFIED ORDINANCES OF THE CITY OF UNION AND TO AMEND OR ENACT SECTIONS OF THE TRAFFIC, GENERAL OFFENSES AND BUILDING CODES TO CONFORM TO ENACTMENTS OF THE GENERAL ASSEMBLY AND DECLARING AN EMERGENCY. 

 

Mr. Applegate said that this was an annual housekeeping ordinance and would incorporate all of the ordinances and resolutions passed within the last year into Union’s codified ordinances.  Mr. Applegate read the section of the ordinance that explained why the Ordinance was going to be passed as an emergency.

 

“This ordinance is hereby declared to be an emergency measure immediately necessary for the preservation of the public peace, health, safety and welfare for the City of Union for the reasons that there exists an imperative necessity for the earliest publication and distribution of the 2008 Replacement Pages to the Codified Ordinances to the officials and residents of the City, so as to facilitate administration and the daily operation of the municipal government and to avoid practical and legal entanglements, and therefore, this ordinance shall take effect and be in force immediately upon it’s passage.”

 

Mr. Bruns moved that Ordinance No. 1451 be declared an emergency for the reasons set forth in the ordinance.  Mr. O’Callaghan seconded the motion.  All concurred and the motion was passed.  Mr. Bruns then moved to have the one and only reading and adopt emergency ordinance 1451.  Mr. O’Callaghan seconded the motion.  All concurred and Ordinance 1451 was adopted.

 

4.       ONE READING – ORDINANCE 1452 - AN ORDINANCE TO AMEND SECTIONS 960.03(r), 961.02 AND 961.04 OF THE CODIFIED ORDINANCES OF THE CITY OF UNION TO BETTER PROVIDE FOR THE DEFINITION AND PLACEMENT OF CERTAIN UTILITY STRUCTURES WITHIN THE CITY RIGHT OF WAY AND DECLARING AN EMERGENCY.

 

Mr. Applegate said this is one of two ordinances that had been before the planning commission and they had forwarded the ordinances on to the city council.  The ordinances deal with VRAD’s, (Video Ready Access Devices), utility boxes from AT & T and Time Warner.  Mr. Applegate said they have provided pictures of what the utility boxes look like that were installed in another community before any ordinances governing them were in effect. 

The two proposed ordinances establish that utility providers would need to obtain permits and city approval of new utility boxes.  These ordinances are actually amending the right of way ordinance with additions underlined. Mr. Applegate said that staff recommends the adoption of this by emergency.  He added that a recent article in the Englewood Independent mentioned that Clayton was adopting the same type of legislation.  Mr. Applegate read Section IV of Ordinance 1452, which stated why staff and planning commission recommended the adoption of this legislation as an emergency.

 

“This legislation is hereby declared to be an emergency measure necessary in order to provide for the continued protection of the public peace, health, safety and welfare; and for the further reason that it is in the City of Union’s and its residents best interest to protect against utility structures being installed within the City Right of Way without proper oversight by the City; and for the further reason that the passage of this legislation will provide more control of placement of Utility Structures to the City of Union and its residents than is currently available.  Accordingly, this Ordinance shall be effective immediately upon its passage.”

 

Mr. Bruns moved that Ordinance 1452 be declared an emergency for the reasons set forth in the ordinance.  Mr. Blackwell seconded the motion.  Mrs. Perkins voted against the motion and Mr. Bruns, Mrs. Terry, Mayor Goudy, Mr. O’Callaghan, and Mr. Blackwell voted in favor of the motion.  The motion passed.

 

Mr. Bruns then moved to have the one and only reading and adopt emergency ordinance 1452.  Mr. O’Callaghan seconded the motion.  All concurred and emergency Ordinance 1452 was adopted.

 

5.       ONE READING – ORDINANCE 1453 - AN ORDINANCE TO PROVIDE REQUIREMENTS FOR THE INSTALLATION OF UTILITY STRUCTURES WITHIN ANY YARD AND DECLARING AN EMERGENCY.

 

            Mr. Applegate said this ordinance was a companion to the one just adopted by the council.   Mr. Applegate said that a corrected page was in front of them with a correction of the last sentence in Section VII that had been brought to the staff’s attention by council member John Bruns.

 

            Mr. Bruns moved that revised Section VII be considered as part of the original document rather than the original section VII.  Mayor Goudy seconded the motion.  All concurred and the motion was passed.

 

          Mr. Applegate said this ordinance deals with a set of regulations to be adopted that deal with the installation of structures within private yards or private easements outside of the city’s normal right of way. 

          Mr. Applegate referred back to the pictures that they had passed out.  He said that people could just suddenly find one of the VRAD utility boxes installed in a front yard without approval from the city or neighbors.  Mr. Applegate said these boxes could be considered an eyesore.  These new regulations will require that people would have to come to the city and apply for a permit on where the VRAD boxes could be installed. 

          Mrs. Terry asked if AT & T was coming into Union.  Mr. Applegate said it would be AT & T or another provider.   Mr. Applegate said this does not prohibit the utility boxes, it just requires a permit and landscaping.  Mr. Applegate said this is preemptive and needs to be in place before they move into the area.  Mr. Applegate read the reason stated in the ordinance why this should be passed as an emergency.

 

“This legislation is hereby declared to be an emergency measure necessary in order to provide for the continued protection of the public peace, health, safety and welfare and for the further reason that it is in the City of Union’s and its residents best interest to protect against utility structures being installed without proper oversight by the City; or notice to adjacent property owners; and for the further reason that the passage of this legislation will benefit the City of Union and its residents immediately by providing regulations not currently provided. Accordingly, this Ordinance shall be effective immediately upon its passage.”

 

 

 

          Mr. Bruns moved that Ordinance 1453 be declared an emergency for the reasons set forth in the ordinance.  Mr. O’Callaghan seconded the motion.  All concurred and the motion was passed.

 

          Mr. Bruns then moved to have the one and only reading and adopt emergency ordinance 1453.  Mr. O’Callaghan seconded the motion.  All concurred and Ordinance 1453 was adopted.

 

6.  ONE READING – ORDINANCE 1454 - AN ORDINANCE AMENDING CHAPTER 741.17 OF THE UNION CODE, RELATING TO SOLID WASTE COLLECTION. (waive three readings)

 

          Mr. Applegate said this ordinance deals with an increase in the trash rate.  Mr. Applegate said the contract is up on October 1.  The original proposal from Rumpke included a fuel surcharge.  Mr. Applegate said the fuel charge table is available if anyone wants to see it.  Rumpke is using information on the fuel rates from the Federal government on the percentage of increase per gallon.  Mr. Applegate said the city bills monthly for trash service and that rate would have to be changed every month.  He thought residents would prefer a set rate for their trash pickup.

          Mr. Applegate said it was council’s recommendation to extend the existing contract for one year, which is the second year of a three year option.  That would give the staff time to see what happens in the next year with fuel costs but for this year, it would be a fixed rate for the city’s residents. 

 

          Mr. Applegate said this ordinance is not being passed as an emergency but as one reading instead of three since there are not enough council meetings scheduled to have the new contract effective by October 1, 2008.

 

          Mr. Bruns moved that they suspend the charter requirement of three separate readings on three separate days in regard to Ordinance 1454.  Mr. O’Callaghan seconded the motion.  All concurred and the motion was passed.

 

          Mr. Bruns then moved to have the one and only reading and adopt ordinance 1454.  Mr. O’Callaghan seconded the motion.  All concurred and Ordinance 1454 was adopted.

 

7.       ADOPTION OF FY 2009 ASKING BUDGET BY MOTION.

 

          Mr. Applegate said this was an annual housekeeping item dealing with the asking budget for fiscal year 2009.  He added that they had met with the budget committee, consisting of Mayor Goudy, John Bruns, and Robin Perkins.   Mr. Applegate and Mrs. Winemiller also attended.

          Mr. Applegate said the only thing that has changed much is the amount allowed for fuel costs. 

 

          Mr. Bruns said they had extensively gone through the budget and he recommends the budget’s approval by the council.  A public hearing was held and no one from the public attended. 

 

          Mr. Bruns moved that the fiscal year 2009 asking budget be approved.   Mr. O’Callaghan seconded the motion.  All concurred and the motion was passed.  The FY 2009 asking budget was adopted.

 

          8.       Open Agenda

 

          Mayor Goudy thanked everyone for attending the council meeting.

 

          The Mayor thanked Mr. Marsh for inviting them to the opening of the Randolph Township Historical Society building.  Mayor Goudy said she would not be able to attend but she had asked Mr. O’Callaghan, the Vice Mayor, to attend in her place.

 

          Mrs. Perkins said she had stimulated a lot of discussion about emergency ordinances and she wanted to address that.  She said that Mr. Moore had done some research and provided the council with information on emergency passage of ordinances.  Mrs. Perkins quoted part of the city charter: 

 

“No ordinance prescribing rates and charges by a public utility, or granting a franchise, or levying a tax, shall be passed as an emergency measure.  An emergency ordinance shall become effective immediately upon passage, or at such later time as it may specify.”

 

          Mrs. Perkins said the second part of that is a good reason that they would use the emergency ordinance.  She said the rest of it is “largely up to the discretion of the council.”  She added that if the council members feel that it is prudent to pass it quickly, they would vote for it to be an emergency.  She said she will be occasionally voting “no” on an emergency ordinance saying, “I might be a little more of a stickler on that point than some of the rest of my council members and I highly respect their opinions but there will be times when you will see me vote no on an emergency because I feel it was something that could be avoided with a little intensive planning.  So in trying to help the city there and in trying to represent your best interests, I will be voting against it at that time, but there are also plenty of times where you will see me vote yes, just as you did this evening.  I just wanted to let you know where I stood on that.”

 

          Mr. O’Callaghan asked if they had started on Phillipsburg-Union Road and Mr. Applegate answered yes and said that Phillipsburg-Union Road is in the process of being overlaid.   The weather was supposed to be nice so he hoped that the road would be finished by Wednesday night. 

 

          Mr. Applegate said that he had received a call from the state and they would be starting the resurfacing work on State Route 48 from Phillipsburg-Union Road to Montgomery County Line Road.

 

          Mr. Applegate said the new trash rate would be effective on October 1, 2008. 

          Mr. Applegate said included in the council packets was a letter from the Randolph Township Historical Society about their open house.  Mr. Applegate said he has personally made a donation to them because he believes what they are doing is excellent.  He asked council to step up to the plate and make a donation to the Randolph Township Historical Center.  He said what they were doing with the building was fantastic.  They were adding storm windows and security measures.  Mr. Marsh said they were getting three new doors, for security purposes and energy conservation at a cost of $800.00 each but being installed for free.  The cost of new windows with heat conservation, security, and UV protection is almost $7,000.  The center is getting some pre-owned office walls for the displays.  Mr. Marsh said they are stretched very tight on money and they do not know what the utilities bills will be. 

          Mr. Marsh said the entire community would benefit from the success of this endeavor.  He said gathering and sharing information is the ultimate goal. 

          Mr. Applegate asked if the council would be agreeable to donate $5,000 or asked what they would like to do. 

 

          Mr. Bruns suggested that Mr. Applegate put something together for the next meeting, looking at what he thinks they should be doing and present it to the council.  Mr. Bruns moved that the City Manager look into presenting some kind of financial aid for the Randolph Township Historical Society.  Mr. Applegate said his only thought was that the society was having their open house and he was hoping that the funds could be presented at the time of the open house.  Mr. Applegate said the building needs to be up and selling itself so when they have functions, people are interested in signing up for memberships and supporting the center.

 

          Mayor Goudy commented that it would be better for the city if they determined the amount of the donation before their presentation.  She suggested a $5,000 one-time donation.  Mr. Applegate said that would come out of the general fund and would be for this year only. 

          Mrs. Perkins thought a one-time donation would be best since they do not know what the future would bring, as far as gas prices, etc. 

          Mr. Bruns added that Mr. Applegate thought the money was in the budget for this donation. 

 

          Mr. Bruns moved that the City of Union make a one-time donation of $5,000 to the Randolph Township Historical Society. Mayor Goudy seconded the motion.  All concurred and the motion was passed. 

          Mr. Applegate thanked the council for their motion.

          Mr. Marsh said he would like to add his personal thanks to Union for their donation.

 

          Mr. Applegate said the generator was in the building and within another thirty days, they would be ready to give the council a tour of the facility. 

 

          Mrs. Winemiller said the residents were calling and asking for a citywide garage sale for the fall. 

 

          Mr. Moore said he wanted to follow up on the comments on emergency legislation.  He said he had provided the council with a memo concerning that.

          Mr. Moore explained that the city is controlled by the charter, the ordinances, and by state statutes.  The city has their own rules that they have adopted on how the city operates.  Emergency legislation is used at the will of council but is not something that can be used frivolously.  There is a lot of case law on whether or not the courts are going to second guess what the city councils or governmental entities can do.  The basic rule is that courts are reluctant to look behind the reasons that a council will do something because council members are elected and judges don’t want to place their judgment in front of the people that were elected by the citizens of the community.  Mr. Moore said it is a basic rule that when it comes to emergency legislation, there has to be a good reason for it and it can not be unreasonable or frivolous.  Mr. Moore said that Mr. Applegate consults with him on all of these emergency ordinances and makes sure that they comply with the charter.  Mr. Moore said the council cannot pass a change in rates, granting a franchise, etc. as an emergency.  The judgment of council in regards to the necessity of having an emergency ordinance passed is generally going to stand the test of the court system unless it is done for an arbitrary and unreasonable purpose.  Mr. Moore told about a classic example where the Cincinnati government tried to change the name of the Cincinnati River Front Stadium as an emergency when the name change was not to go in effect for another ten months.   The court said they could not do that as an emergency when the change was not to occur for ten months.

          Mr. Moore said if there was a situation where there was abuse of the system, as a citizen, you could go to court and file for an injunction to stop the ordinance. 

           

          9.       Mr. Bruns moved that the council meeting be adjourned.  Mayor Goudy seconded the motion.  All concurred and the July 14, 2008 council meeting was adjourned.

 

Respectfully submitted,

           

 

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Denise A. Winemiller, Clerk of Council

                                                                                           

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Michael O’Callaghan, Vice Mayor