CALL TO ORDER Mayor Robertson convened the meeting at 7:31pm.
ROLL CALL Those responding to the roll call were Councilmembers Crais, McGowan, and Moore; Vice Mayor Wernet, Mayor Robertson, Law Director Hurst, and Manager Hickman. Vice Mayor Wernet moved and Councilmember Crais seconded that Councilmembers Bellman and Lucier be excused; the motion passed with two negative votes. [NOTE: Councilmember Bellman arrived later in the meeting.]
CITIZENS’ COMMENTS Mayor Robertson opened Citizens’ Comments at 7:36pm.
RE: South Main Street Construction Project Scott Hickey & Margie Hickey, 211 S. Main Street (Owners of The Village Baker, 212 S. Main Street). Expressed serious concerns with the manner in which the South Main Street construction project was being managed, especially with regard to “Detour” and “Road Closed” signs. The “Road Closed” sign posted at the intersection of Broadway and Main makes no mention of the fact that the street is open to the businesses in the 100 and 200 blocks. Driveway closure dates were set without any consultations with business owners and the bakery has three weddings on the weekend in which their driveway will be inaccessible. Asked that contiguous property owners receive the same notice and have the same opportunities for input for large construction projects that they receive for smaller ones (e.g., when someone wants to build a fence). Requested the Village post a flagger at the “Road Closed” sign.
Mary Bline (Greystone Country House Antiques, 128 South Main Street). Asked that the “Road Closed” signs be moved down to Maple Street. [Manager Hickman reported they had been moved that same afternoon.] Asked that “Detour” signage be improved, noting that if one is coming into Granville from S.R. 161, there is no sign indicating the need to exit at S.R. 16 due to the closure of South Main Street. [Manager Hickman indicated the detour signage would be improved. Councilmember Moore expressed concern about the timing and effectiveness of business notification, asking Manager Hickman what had been done and if the Village had been deficient in any way. She acknowledged that the Hickeys had some valid points and it would have been helpful to have addressed these issues earlier in the project. Councilmember Crais agreed, stating that policy issues need to be looked at for the future. He suggested that, of the three issues presented tonight (advertising the project to contiguous property owners, the project’s overall time-line, and Village signage), the Village could move immediately to correct signage problems. Council should authorize Manager Hickman to do whatever we could that would be helpful (e.g., perhaps budget for some overtime to compress the construction schedule and change threshold pouring dates where possible). Manager Hickman stated that the schedule was constructed to use as short a timeframe as possible; we are currently in the most disruptive month. Councilmember Crais asked for estimates for some double-time as a way to expedite the most disruptive phase. Mayor Robertson reiterated Councilmember Crais’ proposal that Council authorize Manager Hickman to work with affected businesses toward making this project as easy and as beneficlal for them as possible. She also expressed Council’s willingness to authorize some costs on the part of the Village to make certain that businesses suffer as little as possible.]
Mark Parris, 251 Bryn Du Drive. Reiterated a need for flaggers to guide, help business, and keep people safe. [Councilmember Moore emphasized the long-range benefits of the project to the beautification of the South Main Street entrance to the Village.]
RE: Skateboard Park Jerry Miller, 440 W. Broadway (Recreation Commission Director). Reported there have been no “incidents” at the park; they are putting in trash receptacles and signboards detailing rules for park usage. [Manager Hickman reported that reaction to the park is generally favorable.] Mr. Miller reminded Council that it needed to approve the continuation of the park’s conditional use permit. [Mayor Robertson noted the applicable ordinance would be on the agenda for Council’s next meeting.]
Gail Stewart, 133 W. Cherry Street (Chairperson of Skateboard Park Committee). Reported that the Committee will have a big ramp project going up in the next couple of months; parents, especially those with younger kids, have given lots of positive feedback. [Councilmember McGowan asked if the ramp would affect plans for a permanent ice rink.] Eric Stewart explained that the ramp is constructed in segments that can be dismantled and moved when necessary.
Sally Scheiderer, 171 Wildwood. Had no complaints about the skateboard park, but is concerned about Wildwood Park in general (e.g., amount of traffic in and out, squealing tires, and kids there after dark). Asked about a safety phone and a gate at the entrance of park, to be closed at night. [Jerry Miller responded that while he was not sure about a gate, the phone would be installed shortly; the Village will pay for the phone and installation and the Rec Commission will pay the monthly bill. Councilmember Moore noted that a gate for the Park was on Council’s agenda for this meeting.]
RE: Median Proposal for Broadway John Crecca, 1550 Welsh Hills Road. Asked if the proposed median would eliminate turn lanes at Prospect and/or Pearl, and expressed concerns about the safety of the crosswalk.
Constance Barsky, 221 East Elm Street (speaking for the Beautification Committee). Clarified that the median strip would not be continuous and there would be no elimination of turn lanes; a diagram will be posted in the Village office window as quickly as possible. [Councilmember Moore reminded those present that this is at the proposal stage and is not an approved plan at this time. Mayor Robertson reported that the crosswalk situation was already being addressed. Councilmember McGowan reported there would be a public meeting at 7:30pm on May 2nd at which time all three committees working on recommendations for downtown Granville would be presenting their reports. Law Director Hurst clarified that the crosswalk does indeed have legal standing with ODOT and violators may be ticketed.] RE: Landscaping on the south slope of Mt. Parnassus Jackie O’Keefe, 4 Samson Place. Asked why the slope has been virtually clear-cut. [Manager Hickman reported that he is working with AEP and the Tree and Landscape Commission to try and decrease the number of power outages caused by the growth on that hillside. Council has been asked to appropriate $4,300 for replacement landscaping.]
RE: The Colony at Bryn Du Bill York, 101 Bedwyn Bach Lane. Questioned the stated date of April 18 for the scheduled hearing on The Colony. [Mayor Robertson corrected the hearing date to April 19.]
Mayor Robertson closed Citizens’ Comments at 8:23pm.
PUBLIC HEARING A public hearing was held on Ordinance No. 03-00, An Ordinance To Amend Ordinance No. 43-99 Providing For Adjustments Of The Annual Budget For The Fiscal Year 2000 And Revising Sums For Operating Expenses. No one appeared to speak for or against Ordinance No. 03-00. Mayor Robertson closed the public hearing at 8:23.
OLD BUSINESS Ordinance No. 03-00, An Ordinance To Amend Ordinance No. 43- 99 Providing For Adjustments Of The Annual Budget For The Fiscal Year 2000 And Revising Sums For Operating Expenses, was re-introduced by Councilmember Moore. Second by Vice Mayor Wernet.
Discussion: Councilmember Moore asked for an explanation of the additional $10,000 requested for engineering. Manager Hickman stated that it was to cover unexpected expenses for street crossings at Elm, Pearl, and College Streets as well as some storm sewer projects and engineering costs to analyze the Kendal traffic study. Councilmember Moore and Mayor Robertson asked Manager Hickman for the detail on the Kendal expense. Manager Hickman verified that Kendal had paid for the original study in line with the Village’s common practice of always having the developer pay for expenses incurred for anything that would ultimately benefit the applicant corporation or entity. Councilmember McGowan asked Manager Hickman to provide a breakdown whenever there are multiple expenditure issues to be approved. Councilmember Moore asked about the $1,500 requested for the municipal building roof. Manager Hickman noted that some structural wood under the shingles was soft and needed to be replaced. The estimate for the job was actually $500; he is asking for $1,500 to cover any other contingencies and expects it may not all be spent. Mayor Robertson asked about the $16,831 requested for West Broadway construction expenses. Manager Hickman stated the original engineer’s estimate for that project was $190,000. The line-item in the Village’s 2000 budget was $163,000; the bid came in at $179,831; the $16,831 makes up the difference. Since the Layton bid was the only one received, Manager Hickman asked Council for a recommendation as to whether we should award the contract or reopen the bidding. Councilmember McGowan asked for clarification about work schedules (i.e., whether or not the Main Street workers be moving back and forth between that project and West Broadway). Manager Hickman assured Council there would be two crews working. He acknowledged that West Broadway is “a mess” but reported that the infrastructure work was nearly completed and milling and paving would follow shortly. Mayor Robertson asked if taking the Layton bid would save money since their equipment is here already. Manager Hickman said it would save mobilization costs and seemed a reasonable bid.
A Roll Call yielded six (6) affirmative votes (Councilmembers Crais, Lucier, McGowan, and Moore; Mayor Robertson, Vice Mayor Wernet). Ordinance No. 03-00 is adopted.
NEW BUSINESS Resolution No. 00-15, A Resolution To Authorize The Village Manager To Advertise For Bids For The Painting Of The 250,000 Gallon Water Tank, was introduced and read in full by Councilmember McGowan. Second by Councilmember Crais. Motion carried. Resolution No. 00-15 is adopted.
Resolution No 00-16, A Resolution To Award The Bid For West Broadway Improvements As Per Specifications To Layton Excavating, Inc. And To Authorize The Village Manager To Enter Into An Agreement Therefore, was introduced and read in full by Councilmember Crais. Second by Councilmember McGowan. Motion carried. Resolution No. 00-16 is adopted.
Resolution No. 00-17, A Resolution To Direct The Village Manager And Law Director To Prepare Modifications To Ordinance No. 23-98 Relative To Truck Traffic, was tabled (motion by Vice Mayor Wernet, second by Councilmember Moore). Motion to table carried.
Ordinance No. 05-00, An Ordinance To Revise The Codified Ordinance By Adopting Current Replacement Pages, was introduced by Vice Mayor Wernet (no second required). Mayor Robertson set a Public Hearing on Ordinance No. 05-00 for April 19, 2000.
REVIEW AND APPROVAL OF MINUTES The minutes of the regularly scheduled meeting of 15 March 2000 were presented for review. Councilmember Moore asked that the identification of a speaker re The Colony at Bryn Du (page 2—Debby Farrar, 275 Bryn Du Drive) be corrected to reflect her status as the former president of the Bryn Du Homeowners Association. Councilmember Crais made a motion to approve the minutes as amended; second by Vice Mayor Wernet. Motion carried.
COMMITTEE REPORTS Lighting Committee (Councilmember McGowan). No report given due to time constraints. Recreation Commission (Councilmember McGowan). No report given due to time constraints.
Tree and Landscape Commission (Councilmember Moore). No report given due to time constraints.
Economic Liaison Committee (Councilmember Crais). No report given due to time constraints. Planning Commission (Councilmember Lucier). No report given.
Streets and Sidewalks Committee (Vice Mayor Wernet). The committee is considering additional setback for the truck scales, to which Denison will have to agree. The “roadway” would be the same material as South Main Street, with five feet of green space between the scale and the road to create a driveway-like appearance that would blend in as much as possible. In response to questions from several councilmembers about whether the proposed site was the best one, Manager Hickman reviewed the site-selection process.
Vice Mayor Wernet made a motion to empower Manager Hickman to pursue the plan to place the scales as shown on the drawings reviewed at the meeting, the only variance being to move them farther away from the road if an agreement can be reached with the University. Second by Councilmember Crais.
Discussion: Vice Mayor Wernet clarified that Council must still appropriate funds for this project. Manager Hickman noted that $50,000 has already been appropriated but Council will be asked to vote on the final number. Councilmember Moore objected to the South Main Street site, stating that a slab for a truck scale is inconsistent with the fact that the Village is spending $1 million to make its south entrance more attractive; it may also send the wrong message to the agri-community in our area to have it right across from the grain elevators. Vice Mayor Wernet felt the area would look significantly better, even with the scale, and that we would be sending an “Obey the Law” message. Councilmember Crais thought it would be relatively inconspicuous, with trees to break up the space and no building to call attention to it. He also reminded Council that even if the motion to pursue the issue passes, it will return to Council at a later date.
A Roll Call yielded three (3) affirmative votes (Councilmember Crais, Mayor Robertson, Vice Mayor Wernet) and two (2) negative votes (Councilmembers McGowan and Moore). The motion passed.
OTHER Blues Festival Gerry Martin (15 Briarwood Drive). Asked that Council officially approve closing off Broadway on Saturday, September 12, 2000, as per the previous proposal. Councilmember Crais raised the question of whether or not beer would be served. Mr. Martin said it has not been decided yet but if it were, it would be served in a tightly controlled, fenced-in area on Prospect Street. Bracelets would be used, IDs would be checked, and no open containers would be allowed on the street. Councilmember Crais asked if it were possible to have the beer tent operate for only part of the seven hours of planned activities. Councilmember McGowan noted that people will come and go and suggested the tent be closed an hour before the end of the Festival; Mr. Martin agreed. Law Director Hurst emphasized that Council should have some concern about the issue of providing Village law enforcement personnel for an event where alcohol is being purveyed (i.e., allowing uniformed Granville officers to provide security exposes the community to liability). Mr. Hurst also suggested that Mr. Martin go through the existing permit process for street closure approval. Manager Hickman noted that the Village needs details to proceed (e.g., the alcohol decision, exact date, definite locations, an agreement to adhere to stated decibel limits and the 10:00pm noise ordinance, names of food suppliers, plans for restroom facilities, etc.). He asked Mr. Martin if the Festival committee would be willing to proceed if alcohol were not permitted; they would. That being the case, Councilmember Wernet suggested they proceed with the event permit without including alcohol since it could be added later if they elect to do so.
Liquor License Manager Hickman reported that the Village Coffee Shop had applied for a liquor license; the issue will be addressed on April 19. Web Site Update Manager Hickman reported a productive conversation re the proposal to update the structure and content of the Village’s web site presented by Elizabeth Maher, 354 North Granger Street, who has been managing the site for the last few years. Councilmember Crais noted that we need to create a system that can 1) keep citizens well informed and 2) assist the business community as much as possible. This might include an event calendar, an e-mail list-serve, a “This Week in Granville” feature, links to other web sites (e.g., GBPA and/or other municipalities), map and text of the Village Walking Tour, basic zoning and planning forms (with information on what form to use and what the rules are), tax forms, sub-contractor forms, business highlights, etc. Bev Adzic has been putting Council minutes, ordinances, and resolutions on the site for two years now; there have been 21,000 visits to the site since March 1999. Mayor Robertson asked if there had been any discussion of cost-sharing; there has not. Council appropriated $5,000 for the web site last year; the amount was increased for year 2000. Councilmember Bellman suggested we might promote businesses in community (e.g., have a gateway page on “getaways” that would be picked up by search engines) in a way that would also be a “hook” for people not specifically looking for Granville. Mayor Robertson suggested a virtual tour (i.e., one could click on each point of interest and see a standard set of information with links to home pages of each entity). Vice Mayor Wernet suggested a feature on the bike paths, including maps. After discussing the matter of featuring businesses, Council decided that specific businesses needed to make their own decisions (e.g., to “web” or not to “web”) rather than Council’s making them an automatic feature of the Village site. In response to a question from Mayor Robertson, Ms. Maher stated that the total price for her work to update the site would be $5,100, assuming four planning/zoning forms with a general information page and as well as a look-and-feel overhaul that will make the links easier to use. Councilmember Crais, noting he was impressed with the proposal, asked what the procedure would be to proceed. Manager Hickman stated that while Ms. Maher’s proposal was more than had been budgeted, he felt Planning and Zoning could fund their own sections of the site and allow the legislative monies already appropriated to fund the majority of the improvements. Law Director Hurst stated Council needed to approve a resolution in order for the project to move forward. Councilmember McGowan welcomed the resultant opportunity for public input before the final appropriation. Councilmember Crais asked if the resolution should cover both the previously budgeted amount and the additional sum. Manager Hickman suggested a special appropriation ordinance for any additional monies needed. Councilmember Crais asked that Council vote at the April 19 meeting, following which Ms. Maher could commence her work. Councilmember McGowan asked Ms. Maher to prioritize what could be done and in what time frame; she responded with an estimate of 30-45 days total. Mayor Robertson confirmed that the resolution (and accompanying ordinance, if needed) would be voted on at the next meeting. Councilmember Crais expressed appreciation to Ms. Maher for all of her work. The Colony at Bryn Du Mayor Robertson, noting that Council had received Law Director Hurst’s comments on this matter, asked him for the record if Citizens’ Comments were appropriate at this time. Law Director Hurst stated that, assuming Council chooses to accept his comments, then some mechanism would need to be established under which those preliminary comments could be appropriately disclosed to those involved since said comments will impact future proceedings and considerations. He emphasized that he was not suggesting that a debate on the merits of either of what he considers the two separate components of this issue be undertaken other than through an announced public forum (i.e., a scheduled appeal hearing or some other venue). Rather, his letter of comment was intended solely as a response to a request by Council to take a look at the issues and provide some input to Council as to what Council’s next step(s) might be. Vice Mayor Wernet asked if it would make sense, given that part of document would impact individuals’ preparation for an appeal hearing, to make those elements public so people could be responsive. Councilmember Moore asked if discussing the letter’s contents would thereby make them part of the public record (i.e., available upon request). Law Director Hurst responded that the letter at this point is considered an opinion of Council’s legal advisor and is therefore confidential. Only Council has the absolute authority to waive that confidentiality. If Council chooses to discuss portions of the letter, those portions are no longer confidential (i.e., the more specific Council becomes in referencing the letter, the more public it becomes). Responding to Mayor Robertson’s question as to whether there was any reason it should not be made public, Law Director Hurst said that, as the author of the letter, he felt there was not but that it was Council’s decision. Councilmember Moore asked about the applicability of Sunshine laws vis à vis possible executive sessions. Law Director Hurst replied that the more generally accepted interpretation thereof relative to this type of issue (i.e., when a public body may or may not go into executive session) hinges on whether that public body is receiving an update or consultation with its legal advisor on pending or imminent litigation. Since Law Director Hurst is unaware of any pending, threatened, or imminent litigation concerning this issue, he feels that while arguments could be presented for allowing an executive session they would be a stretch. He then noted that since his opinion forms the basis for action Council might take, it becomes fair game.
Mayor Robertson, reminding Council that one of Law Director Hurst’s recommendations is for Council to develop some method whereby people in Bryn Du and other interested parties could know about his opinion, asked for discussion on that issue to proceed.
Councilmember Crais, noting that the final plat on The Colony had been approved in November 1999, asked what would happen if the plat’s contents, as specified in 1113.04, were not complete. In other words, Section (f)1 details twenty items that constitute final plat content. When those plat contents are incomplete—and the Planning Commission continues through its process without ever flagging the fact that it is an incomplete submission—is their decision nullified? Law Director Hurst responded that, first, if the Planning Commission entertains a matter that has specific prerequisites, any individual adversely impacted by their decision can appeal to Council. Council, in seeing that there has been a mistake, has, at least in the past, remanded the issue to the Planning Commission for their further consideration, consistent with the requirements of the ordinance. Second, in the absence of an appeal by an impacted citizen, Council can on its own bring the issue up and direct the Planning Commission to reconsider an approval if Council determines that the consideration undertaken is not consistent with requirements set forth in codified ordinances. Councilmember Crais referred again to 1113.04, item #13 (protective covenants) as not being included; Law Director Hurst clarified that the Planning Commission cannot approve protective covenants. Councilmember Crais agreed, but felt that since such covenants were specified as items required for inclusion in a final plat and since The Colony did not have protective covenants, their submission was not complete. Law Director Hurst, noting that such covenants can only be done by ordinance (and therefore, by Council), stated that although he did not know when the draft of those proposed covenants first surfaced for comment, he did know they haven’t come before Council—the only body empowered to adopt restrictive covenants. (When restrictive covenants are being considered, Council has historically invited comments and recommendations from the Planning Commission which are brought into the discussion at a public hearing.)
Councilmember Moore asked about the official Development Plan for The Colony; she has seen only the preliminary plat. Law Director Hurst responded that the original development plan was for the entire area, Phase 1 through The Colony. The original development plan dates back to 1987; the initial ordinance (5-87) accepted the application for annexation of territory and established certain zoning districts, one of which was a covenant between the Village and the Granville Golf Course Company in re Bryn Du Woods. The next issue dealt with was in 1989, zoning that area PUD. (Under PUD, there is an initial approval of a development plan and concept, with subsequent opportunities to get specific plat approval for various successive phases; in 1994, it was the preliminary plat for Phase 4 and The Colony.) In August 1993, Council considered the portion which had originally been the Farmington area, taken over by Mr. Kent at that time and made a component of development plan. Councilmember Moore asked why Council had approved 1-94, a separate development plan. Law Director Hurst stated that 1-94 approved the development concept and a preliminary plat, with plat approval subject to adoption of specific restrictive covenants in the future. Councilmember Moore, citing Section (f) of PUD 1171.04 referencing development plans, emphasized that the issue at hand is whether or not there is a substantial deviation from the plan, rather than the plat, and asked how Council can know if such a deviation exists if they don’t know what the plan is or was. Law Director Hurst stated that he had never seen a separate, multi-page, uniform, single document identified as The Development Plan in any PUD. The Plan, in fact, has not ever necessarily been a separate instrument from schematics, plats, restrictive covenants, and/or ordinances which impose specific criteria on that phase of a project. Councilmember Moore asked if there shouldn’t at least be drawings; Law Director Hurst responded that there should, at a minimum, be drawings. Councilmember Moore asked if they should cover just the land or include the buildings. Law Director Hurst said that preliminary drawings/plats wouldn’t cover anything but lot configurations, in order to inform density discussions. He has, however, never seen a presentation without the kind of architectural drawings or plans that end up in the restrictive covenants (e.g., type of siding, road widths, green space, etc.). Such covenants flow from “sales pitches” as the reflection of Council’s determination of what the development plan is going to be. The Planning Commission receives and conducts the preliminary analysis of any PUD; once they are through with it, it comes to Council, which may accept or reject any or all of the Planning Commission’s recommendations on what the restrictions are going to be. He reminded Council that, in 1994, PUD was a legislative matter. After three-plus years of litigation, Council was told that PUD was an administrative process, at which point Council developed some serious criteria for PUD consideration. Then, in November 1999, the Ohio Supreme Court decided that PUD consideration was a legislative process. Council is today looking at an administrative analysis and criteria for consideration of PUD that did not exist in 1994 and is of questionable application today.
Vice Mayor Wernet cited 1113.03, asking if all the listed elements (e.g., review, setbacks, protective covenants, etc.) should be considered by the Planning Commission, then by Council. Law Director Hurst said they should, but that Council needs to make the distinction within the PUD framework that ultimately it is Council’s obligation and authority to determine the specifics of a development plan; the Planning Commission only makes recommendations. When the Planning Commission does so to approve a preliminary plat, then Council adopts a preliminary plat. In the instance of a final plat in PUD, however, Council must remember that it is not exactly like a final plat in a suburban residential district (i.e., certain things are not applicable in PUD). For example, the Planning Commission’s primary focus of analysis is whether or not the final plat deviates from the preliminary plat; if it does, the Planning Commission can’t approve it since only Council can consider a modification of the development plan. Councilmember Moore pointed out that the covenants for The Colony trying to come before Council at this time have not been reviewed by the Planning Commission and Council therefore has no recommendations from that body. Law Director Hurst stated that was his understanding as well and that when the application for the final plat was submitted, it should have been accompanied by a draft of restrictive covenants. Councilmember Moore asked if it would be appropriate for Council to ask the Planning Commission to review the covenants and give Council their recommendation; Law Director Hurst said it would. Councilmember Crais expressed frustration with both the submitter of the final plat for omitting a crucial document and with Planning Commission, who erred in continuing to review an incomplete dossier. He also stated that he is disturbed by an attitude of “getting on with it” instead of taking time to clarify the gray areas. Law Director Hurst said he wasn’t sure if the prevailing confusion was latent or had been created by people moving in a haphazard manner and/or not fully complying with appropriate procedures. Councilmember Crais stated that a citizen is under no obligation to understand the complexities of the formulation of the law he is required to follow. He can certainly read the Code to see the law but has no additional obligation to check official Minutes to determine complex arguments that went into its drafting. Law Director Hurst agreed that was a fair statement and noted that, when there is confusion in what the law is or was intended to be, a court of competent jurisdiction has the obligation to get into the history in an effort to determine legislative intent. Vice Mayor Wernet asked again if 1113.04.d (as well as 1113.04.b), referring to obligations on the part of the Planning Commission, were governing with respect to a PUD developer. Law Director Hurst affirmed that 1113.04.d is governing since it references a final plat.
Law Director Hurst stated that we do not know, under 20-94, given the language of 1-94, whether or not the restrictive covenants were introduced and a public hearing established by the Planning Commission, or if Council got the restrictions on the introduction of 20-94, inclusive of Planning Commission recommendations. Mayor Robertson remembered that the Planning Commission (on which she was serving at the time) talked about covenants before the issue went to Council but in reference to Councilmember Crais’ question about something being missing from the list of requirements, she wondered if what they forwarded to Council was, by definition, not a final plat. Law Director Hurst thought it may have been submitted and treated as a final plat, even though the decision to proceed with the approval of it may have been fundamentally flawed, such that it is not enforceable or binding. Councilmember Crais felt perhaps the only way of moving forward in the absence of a crucial component of a final plat would be by operating under the assumption that the covenant had already been approved by prior legislation. Law Director Hurst thought the Planning Commission may well have operated under that assumption. Vice Mayor Wernet said he believed that the Planning Commission was told there were certain things that could or could not be considered and that protective covenants were among the latter.
At this point, several Bryn Du citizens were permitted to join the discussion, as follows:
Larry Dixon, 341 Glen Tawel Drive. Asked if there were any mention of restrictive covenants when the original plat was approved in 1994. [Law Director Hurst stated that 1-94 approved the preliminary plat and further noted that restrictive covenants would follow.] Mr. Dixon asked if the restrictive covenants referred to Phase 4 and The Colony. [Law Director Hurst said Ordinance 20-94 approved the restrictive covenants for Phase 4 but not for The Colony. The covenants were quite clear as to which lots were included (i.e., the ones generally referred to as Phase 4), however the language of the ordinance itself was not clear. Proposed restrictive covenants for The Colony were not considered by the Planning Commission as a component of their review of 20-94. Whether they received bad direction (i.e., that the existing covenants applied or were thought to apply) is unclear to Law Director Hurst.] Mr. Dixon asked if Mr. Kent et al had asked for a deviation to the covenants. [Law Director Hurst stated they had requested Council to begin the analysis by introducing an ordinance (04-00) which would ultimately result in adopting restrictive covenants for the Colony; that ordinance has not been introduced at this point. Councilmember Crais clarified that 04-00 had been raised twice but, not having found a sponsor, has not been formally introduced.] Mr. Dixon asked if the Planning Commission needed to consider covenants before they approve a preliminary plat. [Law Director Hurst said they do, but also stated that preliminary plat approval does not require the adoption of restrictive covenants; final plat approval does. Mayor Robertson added that The Colony had not had final plat approval until February 2000 and therefore had not required approved covenants prior to that time. Law Director Hurst clarified that developers/architects/builders present a schematic layout which evolves into a preliminary plat. Discussion leads to a determination by Council of what is acceptable to become a part of the restrictive covenants and thereby part of the final recorded plat and thereby a component of deed restrictions that run with the land and become part of public record—all of which is binding when adopted by Council.] Mr. Dixon asked what concept for Phase 4 and The Colony was proposed in 1994. [Law Director Hurst stated that minutes of the Planning Commission, as early as August 1993, reflect that what was proposed for that area was different from the remainder of the Bryn Du development. He quoted from the Minutes: “Mr. Bassett explained that the plan he was proposing consisted of 130 single-family lots with a substantial amount of green space. Lots in front of the development would be smaller, cluster homes….” There are similar minutes in September and December, 1993, reflecting that a distinction was being made about what was being proposed for the front. Councilmember McGowan noted that, when Council was adopting an ordinance, it could not go back and look at previous minutes to see if everything done previously was correct (i.e., the minutes just quoted, and the discussions which led to them, are not apparent in the ordinance passed).
Bill York, 101 Bedwyn Bach Lane. Built his house in Bryn Du Woods (2800 sq.ft.), paying extra to use materials required by the covenants, in good faith, thinking everyone would have to play by the same rules.
Mark Parris, 251 Bryn Du Drive. Stated that tonight’s discussions make it clear that there still are some petty severe procedural problems within the Planning Commission and perhaps the Council. Granting that there was no malevolent intent in this instance, he still felt it was arguable that anyone coming for approval could take advantage of vagaries (i.e., “in chaos there is opportunity for some people”). Whatever the outcome of this situation regarding The Colony, Council should get its procedural house in order very quickly, especially in light of the climate for development in Granville. Since regulations and requirements can’t change for every developer who walks through the door, he urged Council to “Fix it, please!” [Mayor Robertson granted Mr. Parris a point well taken and noted that we now have a well-educated, well-prepared and certified planner. She also urged the citizenry to follow the process and give Council their input. Law Director Hurst added that we also wrestle with court decisions overturning laws and procedures that were thought to be firmly in place. Councilmember Crais contended that the problem isn’t the so much the procedures as it is the execution thereof. For example, a lot of the legislation discussed at this meeting was passed in 1995 and grew out of a lot of turmoil and change. He has faith in the laws we have but it is acutely clear in the current morass that procedures are not always followed. Vice Mayor Wernet noted, from personal experience on the Planning Commission in the late 1980s, that things are different now in that this Council has a determination to make the processes, ordinances, and appeals with which it deals clear to everyone. Mayor Robertson concurred.] Mr. Parris again urged the use of proper procedure that would allow these issues to be addressed before stakes and bulldozers appear.
Councilmember Moore asked for clarification that, at this point, no construction may begin until this process is completed; Law Director Hurst verified that, in the case of The Colony, that is true.
Mr. Dixon asked if lack of detail at the Planning Commission level might be a valid reason to send this issue back to them. [Law Director Hurst felt there was a solid basis for that argument but cautioned against oversimplifying a complex and difficult issue. By way of illustration, he explained that if it were determined as a matter of fact that the restrictive covenants adopted in 1994 did apply to The Colony, then one would have to seriously question how the plat submitted to the Planning Commission could be reconciled with those covenants. Conversely, if one were to reach the conclusion that the covenants adopted in 1994 do not apply to The Colony, then one is forced to conclude that a tentative final plat cleared the Planning Commission hurdle in the absence of a review of restrictive covenants, calling into question the validity of the final plat. Law Director Hurst emphasized that there is no implicit criticism of the Planning Commission, whether they included the restrictive covenants in their own review or assumed that Council would deal with them (i.e., he is not suggesting that they proceeded in disregard of executing duties they thought they should execute). The question of whether or not the restrictive covenants of 20-94 apply to The Colony remains a question of fact that has to be resolved and one on which reasonable people may disagree. Once this initial determination is made, ancillary issues will fall into place. Law Director Hurst stated that he does have problems with the appeal, however, since it makes as it assumption the applicability of the covenants to The Colony. If they do not apply, the appeal is at a minimum premature until Council makes the determination as to the applicability of those covenants. At that time, those who wish to contest will have proper forums to do so.
Mayor Robertson, noting that Council must now decide how to proceed, laid out the alternatives: 1) whether to release the Law Director’s opinion to the public, 2) whether to ask the Planning Commission to do something different from what they’ve already done, or 3) whether to allow the hearing scheduled for April 19 to proceed.
Discussion followed on whether or not to release Law Director Hurst’s letter. Law Director Hurst stated he had been asked to give guidance to Council, which guidance contained his opinion that some of what is involved in this issue is a question of fact. He also stated that, to the extent that the letter represents attorney-client privilege, Council must decide whether or not to waive privilege on its own initiative or in response to inevitable public-record requests that would grow out of the extensive discussion of the letter at this meeting. Councilmember Crais was concerned that that even though there were some issues not covered in the letter it might attain a status that could further complicate an already muddy issue, especially if and when new facts come to light. Councilmember Moore agreed, but said she saw no reason not to make the letter public since it was part of the record of the meeting. She also felt strongly that providing information is better than trying to hide things. Councilmember Bellman urged release, noting that the contents of the letter were not binding on Council. Vice Mayor Wernet felt Sunshine laws would require the letter’s release, agreed with Councilmembers Moore and Crais that more facts will come to light, and suggested Council be very clear that the letter is based on a certain understanding of fact. Councilmember McGowan expressed his concurrence with the statements made by Councilmembers Moore and Bellman and Vice Mayor Wernet, adding that he also saw no reason not to release the letter. Councilmember Crais stated that if, by not releasing the letter, Council is breaking the law, then it must be released. He then returned to the issue of whether or not the letter would make the hoped-for mediation more difficult given that a written document has a certain inherent status. Councilmember Bellman agreed that it would. Vice Mayor Wernet was also concerned about the mediation issue but felt that, even if an appeal were held, Council would still have thirty days to render a decision, during which time there would be opportunities for mediation. Mayor Robertson asked Council’s opinion on whether, if the letter were indeed detrimental to the mediation process, it should be released later rather than earlier. Vice Mayor Wernet said he was torn on this issue between Sunshine requirements and Council statements as to possible harm to the mediation process, and asked what Council’s obligations were. Councilmember Crais suggested a vote.
Vice Mayor Wernet made a motion to disclose the letter. Second by Councilmember McGowan, who felt strongly the law would require disclosure regardless of possible adverse impacts on prospective mediation.
Discussion: Councilmember Bellman argued for protecting the mediation process, i.e., “buying time” to help it work. Councilmember Crais reminded Council the letter had been “discussed but never quoted,” saying that if mediation is a possibility he felt that placed a burden on the participating parties not to pursue the document and that the party who broke ranks and asked for the document would torpedo the mediation. Law Director Hurst stated that the Public Records Request would “carry the day” since it could come from anyone, not just the parties to the mediation. Also, if Council elected to argue attorney-client privilege, that in itself would stall mediation.
A Roll Call vote resulted in four (4) affirmative votes (Councilmembers McGowan and Moore; Vice Mayor Wernet, and Mayor Robertson), one (1) negative vote (Councilmember Bellman), and one (1) abstention (Councilmember Crais). The motion to release the letter passed.
Discussion on the letter continued, with Law Director Hurst urging Council to make clear that the letter contains “observations” pertaining to the issue at hand, with which Council may or may not agree. Councilmember Crais felt the letter contained “a deeply flawed argument;” Councilmember McGowan noted that everyone has some disagreement with the letter. Mayor Robertson, stating that everyone had a lot to learn and think about, asked if there should be any changes in the hearing scheduled for the next meeting. Council’s consensus was there should not. Vice Mayor Wernet asked for an explanation of the procedure. Law Director Hurst explained that, in large measure, this will be an appeal proceeding under 1137, from an administrative decision. Individuals who can establish that they have standing are permitted to present arguments to Council, who acts as “judge and jury,” sitting in quasi-judicial capacity as an appellate review body. Council also handles objections made. A court reporter will be present and the proceeding is recorded and transcribed. Witnesses are under oath and cross-examination is allowed. The rules of evidence and civil procedure probably will not apply. While Council may entertain and decide a motion to dismiss, such a motion is neither a requirement nor a prohibition of appeal proceedings. Vice Mayor Wernet raised the issue of what the scope of the appeal would be in regard to the relevancy of the rules of evidence. Law Director Hurst stated that Council would have to decided if the appeal is going to be limited in scope as to consideration of the issue (i.e., a question of compliance with restrictive covenants). Vice Mayor Wernet responded that his goal was to get all the facts out; he was therefore not prepared to limit the scope until both sides had an opportunity to argue what the scope ought to be. Law Director Hurst had no objection.
MEETING ANNOUNCEMENTS Next Village Council meeting – April 19, 2000
ADJOURNMENT Councilmember McGowan made a motion to adjourn the meeting at 11:40pm. Councilmember Wernet second. Meeting adjourned.