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HomeMy WebLinkAboutInterlocal Agreements - 2011.05.19 - 6229Bill Bullard Jr. Oakland County Clerk/Register of Deeds www.oakgov.com/clerkrod ________________________________________________________________________ Administrative Offices Elections Division Legal & Vital Records Register of Deeds Office 1200 N Telegraph, Dept 415 1200 N Telegraph, Dept 417 1200 N Telegraph, Dept 413 1200 N Telegraph, Dept 480 Pontiac MI 48341-0415 Pontiac MI 48341-0417 Pontiac MI 48341-0413 Pontiac MI 48341-0480 (248) 858-0560 (248) 858-0564 (248) 858-0581 (248) 858-0605 clerk@oakgov.com elections@oakgov.com clerklegal@oakgov.com deeds@oakgov.com June 16, 2011 Michigan Department of State Office of the Great Seal 108 South Washington Square, Suite 1 Lansing, MI 48918 Dear Office of the Great Seal: On May 19, 2011, the Board of Commissioners for Oakland County entered into an agreement per MR #11088 – Sheriff’s Office – Marine Patrol Services Agreement in the City of Orchard Lake Village-2011. As required by Urban Cooperation Act 7 of 1967 - MCL 124.510(4), a copy of the signed agreement with the City of Orchard Lake Village and the authorizing Board of Commissioners Resolution are enclosed for filing by your office. Send confirmation of receipt of this agreement to: Mr. Joseph Rozell, Director of Elections Oakland County Clerk/Register of Deeds County Service Center, Building #12 East 1200 N. Telegraph Rd. Pontiac, MI 48341 (Please include our Miscellaneous Resolution number on the confirmation of receipt letter for filing purposes.) Contact our office at (248) 858-0564 if you have any questions regarding this matter. Sincerely, COUNTY OF OAKLAND Joseph J. Rozell Director of Elections Cc: Pat Davis, Corporation Counsel, Oakland County Dale Cunningham, Business Manager – Oakland County Sheriff’s Office Janet Overholt Green, City of Orchard Lake Village Clerk Enclosures CITY OF ORCHARD LAKE VILLAGE MINUTES OF THE REGULAR COUNCIL MEETING December 20, 2010 Mayor McIntyre called the Regular Meeting of the City of Orchard Lake Village Council to order at 7:00 p.m. on December 20, 2010 at the Orchard Lake City Hall. PRESENT: Mayor McIntyre, Councilmembers Beach, Hartzell, Hoffman, Kosmensky, Majcher & Talpos, Attorney Ryan, Police Chief Rosenau, Building Official McCallum & Clerk Overholt Green ABSENT: None GUESTS: Vince Valvona, Mawlood Karcho, Jim Esshaki, Mr. & Mrs. A. Kallabat, Toney Perkovich, David Albery, Anne Dziuba, Deb Macon, Arkan Jonna, Josh Tobias, Dr. & Dr. Lala, Bernie Willis, Anthony Giannola, Mr. & Mrs. R. Hesano, Terry Sullivan, Tim Prince Mayor McIntyre opened the meeting by leading Council and the audience in the Pledge of Allegiance. Mayor McIntyre then announced the retirement of Sgt. David Sims, noting he has been a member of the Police Department since 1977 and wishing him well in his retirement. The Mayor also announced that Building Official McCallum was recently elected as President of the Code Officials Conference of Michigan, a statewide professional organization focused on education on and enforcement of construction codes. AGENDA Mayor McIntyre listed the following suggested changes to the Meeting Agenda: addition of a software purchase request, addition of a Tax Tribunal case settlement, and modification of the Boat Ordinance amendment consideration to be the second reading and adoption of the amendment. COUNCILMEMBER BEACH MOVED TO MODIFY THE MEETING AGENDA AS SUGGESTED BY THE MAYOR. COUNCILMEMBER HARTZELL SECONDED THE MOTION. MOTION CARRIED 7-0. MINUTES COUNCILMEMBER KOSMENSKY MOVED TO APPROVE THE NOVEMBER 15, 2010 REGULAR COUNCIL MEETING MINUTES AND TO APPROVE THE NOVEMBER 15, 2010 CLOSED COUNCIL MEETING MINUTES, BOTH AS PRESENTED. SECOND WAS PROVIDED BY COUNCILMEMBER MAJCHER. MOTION CARRIED 7-0. DEPARTMENT REPORTS Councilmember Hoffman raised a question on an arrest listed in the Police Report relating to a road rage incident involving a gun in the City of Novi. Chief Rosenau explained the incident occurred in Novi and the arrest was made in Orchard Lake. Councilmember Majcher referred to the Department Reports received each month and questioned whether all of the detail provided is necessary. He stated he typically reviews the first page of the monthly Police Report and he does not need the balance of the information. Councilmember Majcher indicated he would support relieving Chief Rosenau of the responsibility to provide the excess detail. He mentioned the monthly Employees Report of time off and overtime worked also is not meaningful to him. Councilmember Talpos agreed that some of the detail may not be necessary each month, but having it each month can highlight the exceptions, which Council should see. Mayor McIntyre stated he does not December 20, 2010 Regular Council Meeting Minutes 2 review the graphs provided, but he does review the ticket, violations, and arrests information. Councilmember Hoffman suggested Chief Rosenau would collect this data regardless of whether or not it is provided to Council and Chief Rosenau confirmed he would. Councilmember Kosmensky indicated he would like to continue to receive the detail. Councilmember Hoffman noted preparing the report each month might not be too time consuming. IT WAS MOVED BY COUNCILMEMBER HOFFMAN AND SECONDED BY COUNCILMEMBER HARTZELL TO ACCEPT THE NOVEMBER 2010 POLICE DEPARTMENT, DEPARTMENT OF PUBLIC WORKS, BUILDING DEPARTMENT & EMPLOYEES REPORTS AS SUBMITTED. MOTION CARRIED 7-0. In response to a question from Councilmember Majcher, the Clerk advised the Rivers Edge invoice listed in the November 2010 Accounts Payable Report is for Chris Gallant’s time in preparing building sketches for assessing purposes. The Mayor asked the Clerk to comment on proposed amendments to the 2010-11 Budgets and she stated the General Fund Budget amendments are supported by a $125,000 increase in the appropriation of the prior year fund balance, more than double the original budget appropriation in order to cover increased costs for health insurance, legal fees, police salaries, and cash payouts associated with Sgt. Sims’ retirement. She advised the amendments also cover the increased cost for the Indian Trail right-of- way and adjust the Land on the Lakes remediation expenses to the prior year consistent with the year end audit. Councilmember Hartzell noted the amendment to include wages for election inspectors and the Clerk explained paying the inspectors was necessary even though the original plan was to rely on voluntary service. A MOTION WAS OFFERED BY COUNCILMEMBER KOSMENSKY AND SECONDED BY COUNCILMEMBER BEACH TO APPROVE THE NOVEMBER 2010 ACCOUNTS PAYABLE & CASH DISBURSEMENTS REPORT, TO ACCEPT THE NOVEMBER 2010 FINANCIAL REPORTS, AND TO APPROVE AMENDMENTS TO THE 2010-11 BUDGETS AS PROPOSED. MOTION CARRIED 7-0. AUDIENCE INPUT & ELECTED OFFICIALS COMMENTS Mayor McIntyre asked for comments or questions on items not included on the Meeting Agenda and none were raised. AT 7:14 P.M. COUNCILMEMBER KOSMENSKY MOVED TO RECESS THE REGULAR MEETING AND TO CONVENE THE ZONING BOARD OF APPEALS MEETING. SECOND WAS PROVIDED BY COUNCILMEMBER HOFFMAN. MOTION CARRIED 7-0. ZONING BOARD OF APPEALS A. MITCHELL APPEAL – 4150 PONTIAC TRAIL Mr. Terry Sullivan handed out SEMCOG traffic count data, a copy of a letter from Mark Mitchell’s insurance agent, and a copy of a letter from the property owner west of the Mitchells at 4180 Pontiac Trail. Mr. Sullivan told the Board the Mitchells of 4150 Pontiac Trail are seeking a 7’ street side setback variance for a driveway gate at the east entrance to their property with use limited to emergency and delivery vehicles. He pointed out Pontiac Trail carries 20,000 vehicles per day between Orchard Lake Road and Old Orchard Trail and the property owners have experienced security problems with individuals accessing their property through the entrance. Mr. Sullivan advised the owner originally did not intend to construct a gate at the east entrance but his insurance agent asked for it to improve access to a fire hydrant immediately across the street. Mr. Sullivan related an incident in which a police officer pulled a vehicle into the Mitchell property to write a ticket and stated motorists use the driveway as a turn around. He indicated the neighbor on the east has similar problems and even had the gutters stolen from his December 20, 2010 Regular Council Meeting Minutes 3 home. Mr. Sullivan related two incidents at the Mitchell home in which their home and property were entered illegally and tools stolen from the construction site. He contended this appeal is necessary to address a safety issue on the property. Councilmember Hoffman asked if the owner reported the illegal activity to the Police Department and Mr. Sullivan confirmed he did. Councilmember Hoffman asked if the intent is to divert access to the property to the west entrance and Mr. Sullivan replied it is. Councilmember Hoffman advised the east gate was open all weekend and Mr. Sullivan advised the gate was not operable due to an electrical problem. Councilmember Hoffman noted the gate could have been closed manually and explained he would like to be certain the Board is considering a “true situation”. Mr. Sullivan assured the gate would be closed at least 95% of the time. Mayor McIntyre questioned whether the gate can be opened remotely from inside the home, Mr. Sullivan advised it can, and the Mayor questioned whether it can be opened from a car to enter the property and Mr. Sullivan advised it cannot. Mr. Sullivan then told the Board about the Fire Department responding to a problem with frozen pipes at the Mitchell property and being forced to park along Pontiac Trail because they could not access the property through the driveway at that time. Councilmember Majcher stressed the issue before the Board is the gate design rather than whether or not a gate is permitted. Building Official McCallum confirmed the structure must first be defined and once it is defined a determination on compliance can be made. He stated the gate does not comply with setback, construction material, opacity, and color requirements set forth in the Zoning Ordinance. Mayor McIntyre suggested the “easy” decision is on the setback requirement as the gate cannot be located in conformance with the setback required due to the proximity of the house to the road. Councilmember Talpos commented it is not uncommon for the Zoning Board to grant setback variances for gates and fences along Pontiac Trail and Commerce Road due to the traffic volumes on those streets. Councilmember Talpos asked Mr. Sullivan to introduce himself and Mr. Sullivan did, stating he is the construction project manager at 4150 Pontiac Trail. Councilmember Kosmensky asked Mr. Sullivan how long the Mitchells have owned their property on Pontiac Trail and asked if traffic volumes have changed in that time. Mr. Sullivan replied the house has been under construction for six years and indicated he believes the traffic volume has increased. Councilmember Kosmensky suggested the road has always been busy and that this is not a new issue. He questioned why the gate could not be constructed in accordance with City requirements. Mr. Sullivan explained the property owner wanted the gate to blend in with existing landscaping and wanted to limit the use. Councilmember Kosmensky asked if security is the only issue in this case, Mr. Sullivan replied it is. Councilmember Kosmensky noted the Zoning Board has granted many variances for this property in the past six years and he objected to the continuing disregard for City ordinances. He contended Mr. Mitchell and Mr. Sullivan should have known the rules and should have followed them. Mr. Sullivan stated the owner has the right to appeal and pointed out the Zoning Board approved the previous variances. Some debate between Councilmember Kosmensky and Mr. Sullivan ensued in which Councilmember Kosmensky indicated Mr. Sullivan has not abided by promises he has made in the past and Mr. Sullivan disagreed. Councilmember Beach stated the City has granted variances for fences and gates along Pontiac Trail and Commerce Road in the past and she expressed support for the setback variance requested in this case. A MOTION WAS OFFERED BY COUNCILMEMBER BEACH AND SECONDED BY COUNCILMEMBER MAJCHER TO APPROVE A 7’ STREET SIDE SETBACK VARIANCE FOR THE EAST GATE AT 4150 PONTIAC TRAIL AS REQUESTED, SUBJECT TO THE CITY’S STANDARD CONDITIONS. MOTION CARRIED 6-1 WITH COUNCILMEMBER KOSMENSKY VOTING NAY. December 20, 2010 Regular Council Meeting Minutes 4 Councilmember Beach commented she understands the intent was to construct a gate that would blend with surrounding landscaping, but indicated she could not support the variances requested for opacity, color, and materials due to concerns with precedent that might establish. Councilmember Majcher advised he drives by this property every day, sometimes more than once each day, and he watched the gate being constructed without being aware that the City had an ordinance that would prohibit that construction, otherwise he would have informed the property owner of the regulations. He expressed his opinion that the gate should qualify for an “architectural design achievement award”. Councilmember Majcher stated the gate is no more opaque than the large masonry walls and vegetative walls on adjacent properties and stated it does not interfere with motorists’ views. COUNCILMEMBER MAJCHER MOVED TO APPROVE VARIANCES FROM THE OPACITY, COLOR, AND MATERIALS RESTRICTIONS FOR GATES FOR THE EAST GATE OF 4150 PONTIAC TRAIL, SUBJECT TO THE CITY’S STANDARD CONDITIONS. COUNCILMEMBER TALPOS SECONDED THE MOTION. Councilmember Hoffman commented constructing the gate before seeking permission causes him some discomfort and Mr. Sullivan explained the gate was constructed when he was attending his son’s wedding in Alaska. Councilmember Hoffman stated the after the fact action sets the tone and then asked Mr. Sullivan what the practical difficulty is in the variances for color, materials, and opacity. Councilmember Hoffman acknowledged the proximity of the road as a practical difficulty in the setback request, but questioned what it is for the remaining variances. Mayor McIntyre suggested a practical difficulty is not required because this is not a dimensional variance and Councilmember Hoffman indicated some justification is necessary. Attorney Ryan clarified a practical difficulty finding is necessary and Mr. Sullivan stated the practical difficulty is the need to stop transient traffic from entering this home site and the safety of the Mitchell’s children. Councilmember Hartzell advised she has concerns with the design, describing it as artificial in appearance, and then noted the east gate does not prevent access to the property from the west gate. Mr. Sullivan indicated the east side is “where the activity is” and Building Official McCallum pointed out a plan for a gate at the west entrance has been submitted, but no variances are required for that gate. Mr. Sullivan confirmed he has started the application process for the west gate. Mayor McIntyre indicated he lives directly across the street from this gate and while he might not like the gate design, he supports the request because he would otherwise see Mr. Mitchell’s garage. He expressed his opinion that the gate would be preferable for motorists as well. Councilmember Talpos asked if after the fact fees were charged for this appeal and Building Official McCallum advised they were. Councilmember Talpos stated he believes it is acceptable for the Board to approve a variance when complying with an ordinance requirement would result in a worse appearance than proposed. Attorney Ryan explained the City regulation is a design standard and stated that if the property owner could have a wall, he would have built one, but is now trying to build a gate in the least objectionable way he can. The Mayor pointed out the fence and gate ordinance was developed to avoid the appearance of a gated community and noted walls on the adjacent properties would not likely be approved today. THE MOTION TO APPROVE THE VARIANCES CARRIED 4-3 WITH COUNCILMEMBERS BEACH, HARTZELL & KOSMENSKY VOTING “NAY”. B. HESANO APPEAL – 3925 SUMMERS RIDGE December 20, 2010 Regular Council Meeting Minutes 5 Mr. Robert Hesano of 3925 Summers Ridge introduced himself and explained his property is a double front lot with frontage on both Summers Ridge and Commerce Road. He told the Board a zoning variance was approved four years ago to locate a sports court on the Commerce Road side of his property, a detached accessory structure in a front yard, and he is now asking for a similar variance in order to locate a 24’ x 40’ swimming pool and an 8’ x 8’ spa on the Commerce Road side of his property next to the sports court. He stated he is also seeking a variance to locate a fence surrounding that side of his property and advised his project manager, Bernie Willis, is in attendance to answer technical questions the Board might have. COUNCILMEMBER HOFFMAN MOVED TO APPROVE A VARIANCE TO LOCATE A DETACHED ACCESSORY STRUCTURE, A SWIMMING POOL AND SPA, IN THE COMMERCE ROAD FRONT YARD OF 3925 SUMMERS RIDGE AS REQUESTED, SUBJECT TO THE CITY’S STANDARD CONDITIONS, DUE TO THE PRACTICAL DIFFICULTY OF A DOUBLE FRONT LOT. SECOND WAS PROVIDED BY COUNCILMEMBER HARTZELL. MOTION CARRIED 7-0. Councilmember Majcher referred to the variance requested for the fence proposed and indicated he is opposed to it because it is excessive. He stated the requirement for a fence around a pool is to protect against people or animals falling into it and this could be accomplished with much less fence. Councilmember Majcher suggested the pool fencing requirement appears to be an excuse to fence the entire yard. Councilmember Hoffman stated he does not see the practical difficulty in this case as many homeowners with double front lots have found ways to deal with their properties without zoning variances and this fence would be inconsistent with others in the area. Mr. Hesano advised a property west of his on Commerce Road has a wrought iron fence with no aesthetic value. Councilmember Hoffman noted that fence was likely installed before the ordinance requirement was in place and he maintained the vast majority of property owners along Commerce Road do not have fences. He then mentioned pool fences must have automatic closures and he did not see safety features in the design presented. Councilmember Kosmensky advised the Board has denied similar requests on properties like this, specifically just west on Dow Ridge, and indicated he does not see a need for the fence to extend to Commerce Road. Mr. Hesano raised a question on the fence around Orchard Lake St. Mary’s property and he was informed that fence predates ordinance requirements. Councilmember Kosmensky pointed out there are no other fences along Summers Ridge or Erie Drive. Mr. Hesano asked if his concern is with aesthetics and Councilmember Kosmensky replied Orchard Lake is not a walled community. Mayor McIntyre asked if the fence could be constructed in accordance with ordinance requirements and Building Official McCallum replied that might be possible, but a 1’ setback variance might also be necessary due to the location of the sports court. Building Official McCallum explained the Building Code requires an enclosure, but it does not limit the enclosure location to immediately adjacent to the pool. He went on to acknowledge the property as a double front lot, but indicated the fence could be downsized. Mayor McIntyre noted the only variance required for the proposal is a front yard setback variance. Councilmember Hoffman asked if the fence would be permitted in the front yard and Building Official McCallum stated it would if the location complied with the minimum street side setback required of 70’. It was mentioned that fences are permitted to extend to side lot lines. Mr. Willis pointed out numerous spruce trees planted along Commerce Road on the Hesano property and explained the intent is to weave the fence through the trees so it is not visible. He stated the owner opted for this design rather than introducing another element into the landscaping. Mr. Hesano stated the trees were required as a condition in the sports court approval and noted he planted more than were required. Mayor McIntyre advised the Zoning Board must find some justification to grant a variance because a variance is permission to break the law and he commented the variance granted for the sports court complicates the issue with the pool and that leaves the Zoning Board in a difficult position. He stated the Board is trying to enforce a standard in the community. December 20, 2010 Regular Council Meeting Minutes 6 Mr. Hesano indicated he understands the Board’s position, but explained he did not know he would be building a pool when he constructed the sports court. He took exception to Councilmember Majcher’s earlier comment about the pool being an excuse to fence his yard and stated he is trying to beautify the area. Mr. Hesano pointed out this is just his second appearance before the Board and expressed his opinion that he is seeking an exception to the rules rather than permission to break the rules. Councilmember Kosmensky asked Mr. Hesano if he would be willing to move the fence farther from Commerce Road to comply with the setback. Mr. Hesano replied he would not want to, but he could move it back some distance. Mr. Hesano pointed out he did plant excessive vegetation to screen the sports court and the current proposal is to “feather” the fence into existing landscaping. IT WAS MOVED BY COUNCILMEMBER MAJCHER AND SECONDED BY COUNCILMEMBER TALPOS TO DENY THE REQUEST FOR A FRONT YARD SETBACK VARIANCE FOR A FENCE AT 3925 SUMMERS RIDGE. Councilmember Beach suggested the fence could be located at the sports court setback. She stated the property has been beautifully developed and is well screened. Councilmember Hoffman suggested the sports court location could be the practical difficulty and Mayor McIntyre advised that would be a self created practical difficulty. Mrs. Hesano told the Board she has four children and she wants them to be able to use the entire yard, not confined to a limited area. She assured the fence would not be visible and would be well screened. Councilmember Kosmensky asked the owners if they would be willing to compromise on the setback and Mr. Willis indicated the fence could be located consistent with the street side setback of the sports court, extending to the side yard lot lines. Mr. Hesano stated he could agree to that. Councilmember Hartzell questioned whether that would have an impact on the sports court and Mr. Willis replied it would not. Councilmember Majcher noted a net fence is currently used around the court and Councilmember Kosmensky advised the fence would not be visible from Commerce Road if it was setback consistent with the court. COUNCILMEMBER MAJCHER WITHDREW HIS MOTION ON THE FLOOR AND MOVED TO GRANT A STREET SIDE SETBACK VARIANCE TO LOCATE A FENCE AT 3925 SUMMERS RIDGE AT THE SAME DISTANCE FROM COMMERCE ROAD AS THE EXISTING SPORTS COURT SUBJECT TO THE CITY’S STANDARD CONDITIONS. COUNCILMEMBER HARTZELL SECONDED THE MOTION. MOTION CARRIED 6-1 WITH COUNCILMEMBER HOFFMAN VOTING “NAY” DUE TO THE LACK OF A PRACTICAL DIFFICULTY. C. KALLABAT APPEAL – 3685 WARDS POINTE Mr. Adil Kallabat of 3685 Wards Pointe stated he purchased this home a few years ago and has been unable to sell it so he has decided to rebuild and add to it. He explained he must have a three car garage, he must have more storage space, and a first floor room is needed. Mr. Kallabat told the Board he has no other options, pointing out the home is forty years old and he must do something with it. Mr. Kallabat noted his architect is in attendance to answer questions as well. Councilmember Hoffman raised a question on the wood deck to be removed and Mr. Kallabat pointed out an attached lakeside deck that would be removed. Councilmember Hoffman acknowledged the proposal would result in a 1% reduction in existing nonconformity in the maximum lot coverage permitted. A MOTION WAS OFFERED BY COUNCILMEMBER HOFFMAN AND SECONDED BY COUNCILMEMBER BEACH TO GRANT A 385 SQUARE FOOT VARIANCE IN THE MAXIMUM LOT COVERAGE PERMITTED FOR AN ADDITION AT 3685 WARDS POINTE, SUBJECT TO THE CITY’S December 20, 2010 Regular Council Meeting Minutes 7 STANDARD CONDITIONS, SINCE THE RESULTING NON CONFORMITY WOULD BE LESS THAN THE EXISTING. Councilmember Talpos pointed out it has been the practice of the Board to allow variances when the resulting improvement decreases existing nonconformity, Councilmember Majcher commented future Boards should be cautious about a future variance request to locate a new deck on this property and Mr. Kallabat indicated he might seek approval for a new deck, but one has not been designed yet. Mayor McIntyre told Mr. Kallabat the City might not grant a coverage variance in the future for a deck. Mr. Kallabat mentioned he does have letters of support from adjacent property owners. MOTION CARRIED 7-0. D. LALA APPEAL – 3781 INDIAN TRAIL Mr. Anthony Giannola of Bosco Building Company introduced himself and introduced Dr. & Dr. Lala of 3781 Indian Trail and advised they are seeking side yard setback variances to construct home additions, relocate an outbuilding, and relocate a generator on this property. Councilmember Hoffman raised a question on an indication in the plans and Mr. Giannola indicated it is not a permanent structure and would not remain. Councilmember Majcher pointed out the proposed home addition would fill an existing cavity in the sideline of the house and the addition would be collinear with the rest of the house. He noted it would not encroach more than the existing structure and would not impact views. IT WAS MOVED BY COUNCILMEMBER MAJCHER AND SECONDED BY COUNCILMEMBER BEACH TO APPROVE A 9’6” VARIANCE FROM THE MINIMUM SIDE YARD SETBACK REQUIREMENT FOR THE HOME ADDITION AT 3781 INDIAN TRAIL. MOTION CARRIED 7-0. Mr. Giannola stated the proposal includes relocating an existing garage to the south side of the property with a side yard setback consistent with the existing home setback. He indicated the combined side yard setbacks would be greater as proposed than existing. Mayor McIntyre acknowledged the proposal to relocate the existing detached garage to accommodate the new driveway and questioned why it would not be moved back instead of relocated to the opposite side of the property. Mr. Giannola explained the owners might decide to construct a pool in the rear yard and would like to use the building to house pool equipment. He added the building would be used to store gasoline and other materials that they would not want close to the house. Councilmember Majcher indicated the garage would be collinear with the existing setback and it was clarified the attached garage addition was approved in the first motion and the consideration now is of the detached garage. Mayor McIntyre commented that even if a pool was constructed in the rear yard, the garage would not have to be that close to the side yard. Mr. Giannola advised the owners would like to preserve their view from the house and noted the rear yard is isolated from adjacent properties. He stated he has a letter from the adjacent neighbor supporting the request as long as the relocated building is no closer to side lot line than the home. Mr. Giannola indicated the side yard setback of the existing detached garage combined with the setback from the home totals less than the combined side yard setbacks of the proposed location. December 20, 2010 Regular Council Meeting Minutes 8 Councilmember Hoffman stated he cannot justify granting a variance from the side yard setback for relocating the garage as no practical difficulty has been demonstrated. Mr. Giannola suggested the practical difficulty is the same as was considered in the home additions with a five to one lot depth to width ratio and in consistency with adjacent properties. COUNCILMEMBER MAJCHER MOVED TO DENY A SIDE YARD SETBACK VARIANCE TO RELOCATE THE DETACHED GARAGE AT 3781 INDIAN TRAIL AS THERE IS NO REASON IT CANNOT BE LOCATED IN COMPLIANCE WITH ORDINANCE REQUIREMENTS. SECOND WAS PROVIDED BY COUNCILMEMBER KOSMENSKY. Councilmember Beach indicated the Lalas lot is a long, narrow lot with a beautiful back yard and indicated she understands why they would not want a building in the middle of it. Mayor McIntyre suggested the property owner must “take the land as it is” and Councilmember Kosmensky noted the building would have to be moved only 9’ more to comply. Dr. Mishal Lala told the Board a family of deer lives in the rear yard and she would not want to disrupt them or her view into their rear yard. Mayor McIntyre suggested an alternative location on the north side of the property that would not require a variance and would not disrupt the rear yard. Building Official McCallum confirmed a variance would not be required in the alternative location. Councilmember Hartzell asked if the size of the structure would be changed in this proposal and Mr. Giannola assured it would not. Mr. Giannola reiterated the practical difficulty with a narrow lot and the owner’s desire to preserve the lot as it is. He offered to relocate it 15’ from the side lot line rather than 11’ as proposed. Councilmember Majcher stressed there is no reason the structure must be located as proposed. MOTION CARRIED 7-0. Mayor McIntyre stated this appeal includes a side yard setback variance request to place a generator in the south side yard adjacent to the proposed location for the detached garage. Both Councilmembers Hoffman and Majcher indicated they believe the generator can be and should be located in compliance with ordinance requirements. IT WAS MOVED BY COUNCILMEMBER HOFFMAN AND SECONDED BY COUNCILMEMBER KOSMENSKY TO DENY A SIDE YARD SETBACK VARIANCE FOR LOCATION OF A GENERATOR AS PROPOSED AT 3781 INDIAN TRAIL. MOTION CARRIED 7-0. AT 8:28 P.M. COUNCILMEMBER TALPOS MOVED TO ADJOURN THE ZONING BOARD OF APPEALS MEETING AND TO RECONVENE THE REGULAR MEETING. COUNCILMEMBER HOFFMAN SECONDED THE MOTION. MOTION CARRIED 7-0. REGULAR MEETING SEWER UNIT ASSIGNMENTS Mayor McIntyre asked if a representative from the Oakland County Water Resources Commissioner’s (OCWRC) Office was in attendance to address questions raised by Council and business owners at the November Meeting. Mr. Tim Prince, Chief Engineer for OCWRC, introduced himself and the Mayor asked him to explain the sewer unit assignment system utilized in the City. Mr. Prince provided background on the Sewer Unit Assignment Schedule, including that it was originally developed in the 1960’s to determine volumes discharged into the sewer system by non-metered December 20, 2010 Regular Council Meeting Minutes 9 commercial and institutional customers. He explained that customers with metered water are charged based on consumption, but those on private wells do not have meters to determine consumption and are billed on a flat per unit basis. Mr. Prince advised that the Schedule was originally used for charges to wholesale customers, communities, and communities had to rely on estimates for smaller lateral lines because there were no meters. He stated meters are now used for wholesale customers but communities must still rely on the Schedule for estimates in lateral systems. Mr. Prince told Council the Schedule was last updated in 1998 and the County did consider a complete update since then, but the lowest bid for completing that was $200,000 and properties still served by wells rather than metered water is a small part of the total consumer base. Mayor McIntyre asked what percent of the total is served by wells and Mr. Prince estimated 5% or less, adding only ten commercial customers in Orchard Lake are still served by wells. Councilmember Kosmensky asked if sewer bills include funding for system construction costs and the Clerk replied they do. Councilmember Kosmensky commented all users should participate in the cost to repay the $20 Million in debt incurred in constructing the system. Councilmember Majcher indicated the real issue is how units are allocated. Mayor McIntyre asked if the WRC has experience in dealing with concerns that the Schedule is not accurate and Mr. Prince advised complaints like that are typically handled on a local level. Mr. Prince acknowledged the Schedule provides estimates, but it is the best that is available. The Mayor noted other customers would have to pay more if others paid less. Councilmember Beach questioned whether a shopping center, such as the Orchard Commons Center, would be considered a larger user that could be metered. The property owner, Jim Esshaki, advised he has 2” and 4” lines serving the center and Mr. Prince advised that is not large enough to be metered. Councilmember Hoffman questioned whether consumption from the well could be metered and DPW Supt. McCallum indicated that was considered but the logistics of installation and monitoring it was considered prohibitive. Mayor McIntyre asked Mr. Perkovich if he has anything further to offer in his request for a reduction in the number of sewer units assigned to his restaurant at 3254 Orchard Lake Road, Tony’s Deli. Mr. Perkovich asked why the City cannot reduce the number of units assigned and stated he cannot afford to pay for ten units as assigned. Mayor McIntyre explained the assignment is based on the Schedule used for all commercial establishments and questioned what is different in his case. Mr. Perkovich stated business has been slow and the Mayor stated the City cannot make a change based on that. Mr. Prince read the definition of a conventional restaurant in the Schedule and all agreed that is the proper definition for Tony’s Deli. Councilmember Hoffman asked if it could be classified differently and it was suggested it could be, but that would create an issue with others in the conventional restaurant definition. Councilmember Hoffman questioned whether the owner could eliminate seats to reduce the assignment and the Clerk advised some communities determine the potential number of seats and base the assignment on that to avoid having to continually track seats added or subtracted from an establishment. Councilmember Majcher asked if the unit assignment at Tony’s Deli is consistent with all other restaurants in Oakland County and Mr. Prince replied that is true for all systems maintained by the WRC. Mr. Prince noted some communities that operate and maintain their own systems may charge differently. Attorney Ryan explained the ratio is different in different places and stated the issue with Tony’s Deli is that he was assigned one unit in error for several years and that was corrected to ten units in late 2009. He advised the City decided not to back charge, but is required to correct the error. He urged consistency in billing. Mr. Esshaki questioned whether the County bills the City a flat amount and the Clerk explained there are several components in the bills, including debt service, treatment charges paid to Detroit, system charges, December 20, 2010 Regular Council Meeting Minutes 10 and operation and maintenance charges. Mr. Prince advised whole customers like the City are metered. Mr. Esshaki questioned whether the City has authority to charge a different amount and Councilmember Majcher asked if the rate per unit is uniform across the County. Attorney Ryan stated the City’s Sewer Ordinance requires assignment of units in accordance with the WRC Schedule and Mayor McIntyre explained per unit charges are different in different communities because system costs are different. The Mayor suggested the issue is whether Oakland County is charging consistently rather than whether Orchard Lake customers pay the same as customers in other communities. Councilmember Hoffman stated it appears Oakland County invoices Orchard Lake for public water and public sanitary sewer based on metered flows and then that cost is allocated City wide based on individual metered flow where available and on a flat rate where it is not. Mr. Prince indicated that is correct. Councilmember Hoffman asked how often costs area analyzed and the Clerk replied that is done annually by the WRC and approved by the City. Councilmember Hoffman questioned whether the City has authority to change the charges and the Clerk suggested the City does, but it must be done through an ordinance amendment. Mr. Esshaki raised a question on capital charges billed and contended he is being charged twice. The Clerk explained the capital charges are based on a per unit basis and will be ongoing for a couple more years. She stated the other charges for connection fees, which are used for debt retirement, appear on the quarterly bill because the property owner elected to spread them over twenty years rather than pay them up front in full as other property owners elected to do. At this point, Mayor McIntyre stated the issue before Council is the unit assignment to Tony’s Deli rather than changing the current billing system. Mr. Esshaki asked why he is being billed for vacant commercial space. Councilmember Kosmensky noted he owns commercial properties in other communities and that is just a part of the cost of doing business. Councilmember Majcher asked why the owner is being billed for vacant space. Attorney Ryan asked the property owner if he has cut the service off and Mr. Esshaki replied he could. The Mayor again asked that the discussion focus on the request before Council. Mr. Mawlood Karcho, owner of 4105-4189 Orchard Lake Road, told Council he pays 2.5 times more for sewer usage than the restaurant across the street from his even though the restaurant across the street has 3 times more seating and is open for more hours. He explained the reason is that his bill is based on a flat amount because his restaurant is not connected to public water and the neighboring restaurant is billed based on metered flow. Mr. Karcho stated he is being penalized for not connecting to the water system and in order to connect to the water system, he would have to pay substantial connection fees. He contended it is unfair to pay 2.5 times based on seating and disputed the estimate of 2,000 cubic feet of water consumption per unit. Mr. Karcho told Council he connected another business he owns, The Vintage Wine Shoppe at 4135 Orchard Lake Road, to the water system and he now pays even more. The Clerk noted residential customers pay connection fees as well. Councilmember Majcher commented on the business owners’ frustrations in fees and charges and a suggestion was made that a Council committee be appointed to address their concerns. Councilmember Kosmensky related the process of developing a fee structure nineteen years ago to fund the $20 Million of debt incurred in building the water and sewer systems. Mr. Karcho stated it is not fair. Councilmember Kosmensky indicated the City adopted a funding method that included the County Schedule and it has worked for nineteen years. Mr. Karcho expressed his opinion that commercial property owners are “carrying” residential owners. The Mayor stated he would appoint a committee to review this. Mr. Esshaki asked that the commercial property owners be considered and stated the City can eliminate charges for vacant spaces. Mayor McIntyre suggested equal treatment should be the focus. December 20, 2010 Regular Council Meeting Minutes 11 Councilmember Majcher commented it would be hard to argue that Tony’s Deli should not be assigned ten units. The Clerk indicated the Committee could also further discussion of an exit strategy on fees that the Finance Committee started. CABLE COMMUNICATIONS COMMISSION BUDGET - 2011 Mr. David Albery, Executive Director of the Greater West Bloomfield Cable Communications Commission (CCC), introduced himself and introduced Cable Commissioners Anne Dziuba from Orchard Lake and Deb Macon from West Bloomfield. He asked Council to approve the 2011 CCC Budget in the amount of $439,850, $357,000 for support of Civic Center TV and $82,850 for administration. He advised the expenses would be paid from the Joint Venture Fund and the City’s share is $18,914, a 2.2% reduction from the City’s share last year. Mr. Albery reported the budget has been approved by West Bloomfield, Sylvan Lake and Keego Harbor. Councilmember Hoffman raised a question on the sources of funding and Mr. Albery explained the communities receive a 5% franchise fee from the cable companies each quarter that is deposited in the General Fund and a 2% fee that is deposited into the Joint Venture Fund. Mr. Albery stated the request is to permit expending the funds in the amounts of and for the purposes set forth in the budget. Councilmember Hoffman questioned why Orchard Lake’s share of the total is down, while it increased for the other communities. Mr. Albery advised cable revenues in Orchard Lake did not increase as quickly as they did in the other communities and stated the most recent past four reporting periods are used to develop the spread. Mayor McIntyre asked what the plan is for the Joint Venture Fund balance since it cannot be extracted and cannot be diverted. Mr. Albery indicated it is retained for use in the event the revenue stream is disrupted and may be used for capital equipment purchases, including facility expansion at West Bloomfield Township Hall or relocation of facilities for Civic Center TV. A MOTION WAS OFFERED BY COUNCILMEMBER HARTZELL AND SECONDED BY COUNCILMEMBER MAJCHER TO APPROVE THE 2011 CABLE COMMUNICATIONS COMMISSION BUDGET AS PROPOSED. MOTION CARRIED 7-0. WEST BLOOMFIELD YOUTH ASSISTANCE FUNDING REQUEST In response to a question from Council, the Clerk advised the West Bloomfield Youth Assistance organization is requesting $700 from Orchard Lake to help fund the organization and advised the City did contribute this amount last year. Attorney Ryan clarified that the proposal is for a contract for services, not a contribution. Councilmember Talpos stated that in consideration of current economic conditions and with employee sacrifices in compensation, he does not believe it would be appropriate to make this contribution. A MOTION WAS THEN OFFERED BY COUNCILMEMBER TALPOS AND SECONDED BY COUNCILMEMBER MAJCHER TO DENY THE WEST BLOOMFIELD YOUTH ASSISTANCE REQUEST FOR FUNDING. Attorney Ryan indicated the Youth Assistance organization is a community service provided to the Police Department and suggested the City could ask for more information on the number of individuals served in the City last year. Councilmember Hartzell stated she was involved in Youth Assistance and advised they provide an “incredible service”. She expressed her opinion that the City should make the contribution. Councilmember Beach concurred and commented case loads are likely up given the economic conditions. She expressed her opinion that it would be “money well spent”. Chief Rosenau endorsed the December 20, 2010 Regular Council Meeting Minutes 12 organization, describing them as cost effective in that it reduces the amount of court time individual officers work. Councilmember Kosmensky stated he personally contributes to the organization because they do a great job and he would support the City funding as well. THE MOTION FAILED 2-5 WITH MAYOR McINTYRE AND COUNCILMEMBERS BEACH, HARTZELL, HOFFMAN & KOSMENSKY VOTING “NAY”. COUNCILMEMBER HOFFMAN MOVED TO FUND 80% OF THE REQUESTED AMOUNT, $560. THE MOTION FAILED FOR LACK OF SUPPORT. IT WAS MOVED BY COUNCILMEMBER KOSMENSKY AND SECONDED BY COUNCILMEMBER HARTZELL TO APPROVE PAYMENT OF $700 TO WEST BLOOMFIELD YOUTH ASSISTANCE AS REQUESTED. MOTION CARRIED 5-2 WITH COUNCILMEMBERS HOFFMAN & TALPOS VOTING “NAY’. SECOND READING & ADOPTION-BOAT ORDINANCE AMENDMENT IT WAS MOVED BY COUNCILMEMBER HOFFMAN AND SECONDED BY COUNCILMEMBER BEACH TO DEEM THIS THE SECOND READING AND ADOPTION OF AMENDMENTS TO THE BOAT ORDINANCE AS MODIFIED SINCE THE FIRST READING. MOTION CARRIED 7-0. A copy of the ordinance as adopted follows the Minutes. SEAWALL ORDINANCE AMENDMENT COUNCILMEMBER KOSMENSKY MOVED TO DEEM THIS THE FIRST READING OF THE SEAWALL ORDINANCE AMENDMENT TO PERMIT ADMINISTRATIVE APPROVAL OF SEAWALLS CONSTRUCTED IN THE SAME LOCATION AND AT THE SAME HEIGHT. SECOND WAS PROVIDED BY COUNCILMEMBER BEACH. MOTION CARRIED 7-0. APPOINTMENTS IT WAS MOVED BY COUNCILMEMBER KOSMENSKY AND SECONDED BY COUNCILMEMBER MAJCHER TO APPOINT THOMAS R. WAGENER OF 3557 ARROWVALE TO A THREE YEAR TERM ON THE CITY BOARD OF REVIEW, REPLACING NELSON O’SHAUGHNESSY. MOTION CARRIED 7-0. The Mayor acknowledged two interested candidates for the open Planning Commission seat and advised the candidates will hopefully attend the January Council Meeting for dialogue. MARINE PATROL SERVICES AGREEMENT FOR ORCHARD LAKE Councilmember Talpos questioned the costs and funding amounts included in the Clerk’s December 13, 2010 memo on law enforcement costs on Orchard Lake and the Clerk confirmed that the law enforcement cost for the Marine Division to patrol the lake rather than an Orchard Lake officer to work at the Public Access Site has doubled. She also confirmed the additional cost is being funded through a reduction in amounts spent on weed harvesting. COUNCILMEMBER HARTZELL MOVED TO AUTHORIZE THE MAYOR TO EXECUTE A MARINE PATROL SERVICES AGREEMENT WITH OAKLAND COUNTY FOR 2011 FOR ORCHARD LAKE AS PROPOSED. MAYOR McINTYRE SECONDED THE MOTION. Councilmember Beach related an experience her friends had while kayaking on Orchard Lake in which they were “shadowed” when viewing homes on the lake. December 20, 2010 Regular Council Meeting Minutes 13 Councilmember Hoffman asked if the agreement is endorsed by the Orchard Lake Shore Property Owners Association and the Clerk replied it is. A question was raised on whether or not Councilmembers not living on Orchard Lake have authority to approve this agreement and Attorney Ryan assured they do as the City is responsible for administration of the special assessment district for Orchard Lake issues. Councilmember Kosmensky suggested a condition that the City would not pay for the service if the Association does not pay the City and Mayor McIntyre clarified funds are collected in advance through the special assessment district. MOTION CARRIED 7-0. MEDICAL MARIJUANA DISTRIBUTION REGULATION MORATORIUM Mayor McIntyre reported the Planning Commission needs more time to develop their recommendation on regulation medical marijuana distribution in the City and the current moratorium, adopted June 21, 2010, expires on December 21st. It was noted the Bloomfield Township Ordinance that the Mayor originally supported has been challenged on privacy issues. The Mayor suggested pursuing that approach. A MOTION WAS OFFERED BY COUNCILMEMBER MAJCHER AND SECONDED BY COUNCILMEMBER HOFFMAN TO EXTEND THE MORATORIUM ON MEDICAL MARIJUANA DISTRIBUTION REGULATION FOR SIX MORE MONTHS THROUGH JUNE 21, 2011. MOTION CARRIED 7-0. BALLOT PROGRAMMING SERVICES AGREEMENT The Clerk asked Council to approve the Ballot Programming Services agreement with Oakland County and Attorney Ryan pointed out the cost is the same as last year. IT WAS MOVED BY COUNCILMEMBER MAJCHER AND SECONDED BY COUNCILMEMBER KOSMENSKY TO AUTHORIZE EXECUTION OF THE BALLOT PROGRAMMING SERVICES AGREEMENT AS PROPOSED. MOTION CARRIED 7-0. BANK RESOLUTIONS The Clerk stated she does not have a recommendation on this item for Council consideration. SOFTWARE PURCHASE REQUEST The Clerk told Council the proposal for purchasing BS&A software for management of Building Department data includes $3,600 for the software, $400 for training, and $250 for installation services required from Tech Resources. It was mentioned Tech Resources is working to restore data in the current system to bring it back to a viewable condition as it is very unlikely that it can be restored to conversion condition. COUNCILMEMBER MAJCHER MOVED TO AUTHORIZE PURCHASE OF THE BS&A BUILDING DEPARTMENT SOFTWARE, TRAINING, AND INSTALLATION AS RECOMMENDED AT A COST NOT TO EXCEED $4,250. COUNCILMEMBER BEACH SECONDED THE MOTION. MOTION CARRIED 7- 0. MICHIGAN TAX TRIBUNAL CASES December 20, 2010 Regular Council Meeting Minutes 14 Mayor McIntyre reported the City has approximately fifty cases pending before the Michigan Tax Tribunal, most for the 2009 and 2010 tax years, and suggested Council should discuss what level of involvement they want in proposed settlements of those cases. He noted former long term Assessor John Sailer settled cases without Council approval, but the City is dealing now with new individuals that are not as familiar. The Mayor pointed out some of the Tribunal cases are significant, such as the Orchard Lake Country Club appeal in which they contend the value is half of the City’s determination. Mayor McIntyre advised that in the case currently proposed for settlement, parcel ID no. 18-16-276-019, 4931 Elmgate, the State Equalized Value decreased approximately 22% and a compromise decrease of 30% would be agreed upon resulting in a $2,800 loss to the City over the four year period, 2007-2010. The Clerk explained there are two types of Tribunal claims, small claims and full claims, and she read a communication from the County describing the difference. She added a small claim settlement was recently approved by the county without City input. Councilmember Majcher asked if the City could override a County recommendation for settlement and it was suggested the City could decide to further pursue a claim contrary to a county recommendation. Mayor McIntyre suggested Council could establish a tax loss threshold that would trigger a requirement for Council approval. Councilmember Talpos expressed his opinion that the City must maintain its position in these claims, particularly considering the number of pending claims. Planning Commission Chairman Valvona pointed out the County has a vested interest in reductions as well. Mayor McIntyre indicated another alternative would be to ask the City Board of Review to make recommendations on County proposed settlements. Some further discussion ensued in which the Clerk commented some trust should be established between the City and the County if the City is retaining the County to perform this service. Councilmember Talpos asked if Mr. Sailer prevailed in most of his cases and the Clerk replied he did, but she noted it was a very different market at that time. Chairman Valvona noted the rules on foreclosure sales have changed and that will make a difference as well. It was the consensus that the Clerk would distribute proposed settlements to Council and if no objections are raised, the County can proceed to settle the case, and if objections are raised, Council consideration would be required. ROLL CALL VOTE FOR CLOSED MEETING IT WAS MOVED BY COUNCILMEMBER KOSMENSKY AND SECONDED BY COUNCILMEMBER MAJCHER TO HOLD A ROLL CALL VOTE FOR A CLOSED MEETING TO DISCUSS PERSONNEL. THE ROLL WAS CALLED AND THE MOTION CARRIED 7-0. At 9: 47 p.m. the Regular Meeting recessed. The Meeting reconvened at 9:55 p.m. LEGAL REPORT Attorney Ryan advised the two pending lawsuits the City is involved in are wrapping up. COUNCIL REPORTS Councilmember Majcher acknowledged Dangerous Animal ordinances adopted by Sylvan Lake and Keego Harbor this year for public safety reasons and acknowledged Waterford Township also has a Dangerous Animals ordinance. He stated he compared their ordinances with the City’s current ordinance and would like support for drafting of a new Orchard Lake ordinance. Councilmember Majcher noted the December 20, 2010 Regular Council Meeting Minutes 15 Keego Harbor ordinance takes a different approach and he would support the Waterford and Sylvan Lake approach as it is more detailed and he believes more enforceable. Chief Rosenau endorsed pursuing this. Councilmember Kosmensky asked if there is a history of problems in the City with dangerous animals and Chief Rosenau cited complaints in the Orchard Lake Woodlands subdivision with off leash animals. Councilmember Majcher then referred to information he distributed on new federal regulations for signs and on SEMCOG’s recommendation that communities ask for a delay in the implementation deadline due to the costs involved in making the required changes. Chief Rosenau pointed out the City would be responsible only for signs on City streets and he recommended completing an inventory first and eliminating some signs. DPW Supt. McCallum suggested updating the sign inventory in the garage and as signs are replaced, they could be replaced with conforming signs. Councilmember Beach asked if the City could install unique color signs, such as used in the City of Bloomfield Hills, and she was advised those would not be in conformance with the new regulations. Mayor McIntyre asked if the City has an inventory of private drive gate access codes and the Chief replied the City does. The Mayor asked if it is up to date and the Chief replied it is. Mayor McIntyre urged follow up on an access plan for the Mitchell gate at 4150 Pontiac Trail approved earlier in the Zoning Board of Appeals meeting. CITIZEN PARTICIPATION No comments were offered THERE BEING NO FURTHER BUSINESS, COUNCILMEMBER KOSMENSKY MOVED TO ADJOURN THE REGULAR MEETING AT 10:02 P.M. COUNCILMEMBER HOFFMAN SECONDED THE MOTION. MOTION CARRIED 7-0. Bruce H. McIntyre Janet Overholt Green Mayor City Clerk