July 12, 2010 council meeting minutes
VILLAGE OF MATTAWAN
REGULAR COUNCIL MEETING
JULY 12, 2010
MINUTES
1. CALL TO ORDER @ 7:00 pm
2. PLEDGE OF ALLEGIANCE
3. ATTENDANCE
Present: Kucinich, Kirklin, Bemer, McLean, Markle, Spulick, Ashbaugh
Others present: Attorney Graham, Superintendent Anthony, Ruth Goheen and others.
4. WELCOME TO THE PUBLIC
5. ANNOUNCEMENT OF MEETING BEING RECORDED
6. ADDITIONS TO AGENDA
McLean added DPW Committee meeting to board and committee reports, old business B Concord tower altitude valve, and new business F-used vehicle purchase, G-sewer and culvert camera, H-Main lift station electrical repair and upgrade, I-DPW employee, J- burning in the Village.
7. APPROVAL OF THE AGENDA
Motion by Bemer, support by Kucinich, to approve the agenda with the additions. All members voted in favor. Motion carried.
8. APPROVAL OF THE MINUTES OF JUNE 28, 2010
Motion by Kirklin, support by Markle, to approve the minutes of June 28, 2010 as printed. All members voted in favor. Motion carried.
9. BILLS TO BE APPROVED IN THE AMOUNT OF $ 29,831.23 (June Invoices)
Motion by Kirklin, support by Bemer, to pay the June 2010 bills in the amount of $29,831.23. Roll call vote. All members voted in favor. Motion carried.
BILLS TO BE APPROVED IN THE AMOUNT OF $ 9,296.96 (July Invoices)
Motion by Markle, support by Kucinich, to pay the July 2010 bills in the amount of $9,296.96. Roll call vote. All members voted in favor. Motion carried.
10. LIMITED PUBLIC COMMENT ON ANY AGENDA ITEM
There was no limited public comment.
11. BOARD AND COMMITTEE REPORTS
A. PARKS & RECREATION COMMITTEE MEETING – CHAIR BEMER
Chair Bemer reported on the meeting June 30, 2010 stating the committee discussed the roadside park and whether they could put a picnic table up there, extending the porta potty in the park through October, asking for permission to attend the DDA meeting to ask for money for a permanent bathroom in the park and adding a DPW employee to maintain the park. Bemer stated the park was in need of some more work and they felt a part time employee might be the answer. Committee would also like to see a permanent place for banners to be hung in the Village.
B. DPW COMMITTEE MEETING HELD JULY 12, 2010 – CHAIR KUCINICH
Chair Kucinich stated the committee met earlier that morning and discussed the Concord tower altitude valve, used bucket truck purchase, camera the culverts and sewers, main lift station electrical repair and upgrades, and adding a DPW employee. All of these items are on the agenda.
12. STAFF REPORTS
A. SUPERINTENDENT’S REPORT – SUPERINTENDENT ANTHONY
Superintendent Anthony stated he had attended an asset management class for water and sewer, worked on the well head protection web site and stated there is a movie on the web site about water and links to rain gardens and sprinkler time calculator. They have patched potholes, installed temporary stop ahead signs on Concord and Webster for the bridge construction. Anthony has been working on the reliability study, working on the shoulder gravel, cut down trees from the recent storm, and dug a ditch on Concord in anticipation of draining the water tower for painting, stating this ditch would keep the water from running on resident’s property.
B. ENGINEERS REPORT – CRAIG SHUMAKER/TIM WOODHAMS
There was no engineer’s report.
13. OLD BUSINESS
A. MEDICAL MARIJUANA
Attorney Graham will address this issue on Monday.
Attorney Graham stated the question had been raised considering an amendment to the zoning ordinance regarding medical marijuana. He has looked at a series of other municipality ordinances and the state statute regarding medical marijuana. The simplest and most protective to the community, which was done in Livonia, is to ban the manufacture and distribution of medical marijuana in the village for any purpose. This does not mean that a resident of the Village who holds a properly issued card can’t posses or use medical marijuana it simply means no one in the village can manufacture, grow, or dispense the marijuana. Livonia modified their zoning ordinance and simply stated, “uses for enterprises or purposes that are contrary to Federal, State or local laws or ordinances are prohibited”. We know regardless of what Michigan says about holding a medical marijuana card that the manufacture or distribution is a violation of Federal law so this restriction in the zoning ordinance would bar anyone from either manufacturing or the distribution marijuana in Mattawan if you so instruct the Planning Commission to change the zoning ordinance. It is as simple as that one sentence and if in fact that was included it would be improper for anyone to manufacture or distribute medical marijuana in the Village of Mattawan. I can’t say this provision could not be challenged as it is the most restrictive but also it is the most protective for community. Graham stated he and Chief VerHage have talked about this and both agree the recommendation they have to Council would be to instruct the Planning Commission to move forward with this approach. Graham stated it is entirely up to you what way you choose. If you don’t ban it entirely then the options would include making it so they would have to obtain a permit to manufacture or distribute. Other cities have chosen to limit that activity to certain zoning districts, but that is a very tough way to go with schools, etc.
Ashbaugh asked about allowing Pharmacies to distribute. She feels patients that need the medical marijuana should be able to get it through the Pharmacy if they posses a card. She doesn’t feel just anyone should be allowed to grow marijuana but if we allowed it to be distributed through a pharmacy then that should be a proper way. Ashbaugh stated she would much rather see a pharmacy be able to distribute than just anyone with a permit.
Graham stated the distribution of medical marijuana to even someone with a card is a violation of Federal law. Whether this could ever be enforced is another matter. If you wanted to craft an ordinance with and exception for the pharmacy stating who is authorized to distribute and adopt a separate medical marijuana ordinance in lieu of what we discussed and recommended earlier, that would be acceptable.
Graham stated you have three options. One is to do nothing which he advises against, two is to send to PC with indication that you would like to see the PC amend the ordinance to provide uses the enterprises or purposes that are contrary to Federal, Stated or local laws is prohibited, or the third option is to send to the planning Commission for changes to the zoning ordinance to allow manufacture or distribution by certain entities or certain people through certain licenses or permits.
Ashbaugh asked if there was any liability to the Village if the Pharmacy did distribute. Graham stated no the Village was not liable.
Motion by Ashbaugh, support by Kucinich, to send this issue to the Planning Commission with a recommendation for the modification of the zoning ordinance that would not allow the manufacture or distribution of medical marijuana in the village or in a way that the Planning Commission finds to be appropriate. Roll call vote. All members voted in favor. Motion carried.
Bemer asked if this would come back to Council before a final decision. McLean answered yes it would come back to Council for approval.
B. CONCORD TOWER ALTITUDE VALVE
Anthony stated Peerless Midwest came to the conclusion the hydraulic system can’t be fixed and to fix the problem they would install new solenoid valves with computer PLC controls that will still work in case of a total power failure. If we have a power failure it automatically opens. Anthony stated we have money left over from the tower painting that we would use for this valve.
Bemer asked basically there is not other practical choice but to fix this, to which Anthony replied that is correct.
Motion by Bemer, support by Spulick, to purchase the Concord water tower altitude valve from Peerless Midwest in the amount not to exceed $11,864. Roll call vote. All members voted in favor. Motion carried.
14. NEW BUSINESS
A. EXTEND PARK PORTA POTTY THROUGH OCTOBER
The Parks and Recreation Committee recommends 3-0 to Council for a one month extension on the porta potty for the Park through the month of October. They would like it removed just before Halloween.
Motion by Markle, support by Bemer, to extend the park porta potty through the month of October. Roll call vote. All members voted in favor. Motion carried.
B. PERMISSION TO APPROACH DDA REGARDING MONEY FOR PERMANENT RESTROOM IN THE PARK
The Parks and Recreation Committee recommends 3-0 to Council to ask permission for Bemer to attend a DDA meeting and approach the board about possible money toward a permanent restroom for the Park.
Motion by Spulick, support by Bemer, to have Bemer attend the next DDA meeting and ask for money toward a permanent restroom in the park. Roll call vote. All members voted in favor. Motion carried.
C. PERMANENT BANNER POSTS
The Parks and Recreation Committee recommends 3-0 to ask Council for find a permanent spot to put two posts for banners to be hung for upcoming events.
It was suggested that possibly we investigate the cost of a permanent electronic sign instead of banner posts to be used for village and school and other village activities, not business advertising but basically what we use the posts for banner purposes now. Anthony stated the cost of the electronic signs is upward of $40-50 thousand dollars.
Bemer asked if that was possibly something else she could ask the DDA for when she attends the meeting.
Kirklin suggested while we investigate we should have a place for banners as this could take months to finalize.
Motion by Bemer, support by Markle, to investigate the cost of an electronic sign and while this is being looked into have a place for organizations to hang their banners as they have in the past, and also to allow Bemer to approach the DDA about money for an electronic sign. Roll call vote. All members voted in favor. Motion carried.
D. LETTER TO VAN BUREN COUNTY PLANNING COMMISSION
The Village has been requested by the Van Buren County Planning Commission to provide a letter of support indicating our willingness to participate in the updating the Van Buren County Master Plan. Please see letter from VB County and proposed letter of support to be approved if we are willing to participate.
Markle stated if they could not get a Planning Commission member to attend she would attend. First choice would be to have a Planning Commission member as they are more familiar with our Master Plan.
Motion by Bemer, support by Kucinich, to approve the letter to Van Buren County Planning Commission stating the Village is willing to participate in the updating of the Van Buren County Master Plan. Roll call vote. All members voted in favor. Motion carried.
E. PETITION REQUEST REGARDING ANTI NOISE ORDINANCE NO. 171
Attorney Graham will address.
Attorney Graham stated we do have an anti noise ordinance and there has been some concerns expressed about the enforcement of that ordinance and specifically as he understands it the concerns are related to a noisy vehicle. To the extent that the concerns relate to a noisy vehicle we are in a situation that even though we have our own noise ordinance we are governed by state law and the state law says our noise ordinance can not be anything that is not identical to the requirement to state statute. The language is simply as quoted “this act occupies the whole field of vehicle noise regulations, Village, County, City or Township shall not adopt or enforce vehicle noise rules unless the rules are identical to the requirements in this act”. We do have a noise ordinance but the complaints are against vehicle noise, and there are very specific requirements of what can be enforced. We can’t just utilize our village noise ordinance as there are very specific decimal level requirements, measurement requirements that have to be implemented. From his prospective he has seen concern voiced over enforcement of the noise ordinance relating to vehicles and he has seen police reports that describe activity taken by the police department and e-mails of complaint. Graham stated he is more than satisfied that the police department has property and adequately fulfilled its duty to up hold the laws of the village. Vehicle noise ordinance issues are not easy issues. This is the same as the public intoxication issue that we had earlier come up. We essentially had the same ban or restrictions due to state regulations. Graham stated to monitor vehicle noise is a very difficult matter and it is his opinion the police has more than fulfilled it obligations according to this ordinance. It is perfectly proper for residents to present Council with a petition for request for consideration and is a good thing as it shows people are interested in what happens in their community.
Spulick asked about purchasing a decimal meter to record. Graham stated yes you could buy a meter but that becomes a slippery slope it is very hard to prove in court.
Bemer stated it has become a problem in the neighborhood as it loud and obnoxious and people are upset and justifiably so. So what can we do to help the residents?
Graham stated if you make the decision to purchase the monitoring equipment and pay the police department to do the extra work to enforce the state statute that is fine. If someone is revving their engine it’s another matter. There is another aspect of this, if people who actually experience this want to take action seeking to establish that a nuisance has occurred there is nothing stopping them from taking that action. Our ordinance would say they can do that. It is not at all uncommon for nuisance complaints to be seen in court, however very few relate to vehicle noise. We have a specific provision in our ordinance that relates to injunctions and people have a right to get a civil remedy in the form of an injunction and they are free to do that on their own. Otherwise, when your police department goes out and does everything that can be expected they can’t be there 24 hours a day and when they go out there over and over and over again I think they have done their jobs adequately. Your question is what can we do for the residents because that is our ultimate concern. So maybe they need to pool their resources and go after an injunction for nuisance. However, if you want to purchase the decimal meter that is Council’s choice.
Chief VerHage stated we could purchase a meter and use that to get noise levels. Chief was trained and used a decimal meter when he worked for the City of Kalamazoo. You have to be concerned with ambient noise which is a surrounding noise. How do you regulate noise in the air, from vehicles traveling down the road, air conditioners, etc? Chief stated he didn’t know. You have to be a certain distance from the noise you have to be to get a proper reading and there are certain levels that you have to consider.
Graham stated it depends on the weight of the vehicle, and speed limits in the area. Graham stated they have to be 50’ away and have a decimal reading of 86 or more.
McLean asked Chief how much training was needed. Chief replied he was in training for one day.
Bemer asked Chief if he had talked to the owner. Chief stated several times his officers have talked to the owner, he has not personally talked to him. Chief stated he has sympathy for the residents because the car is a powerful car but he can’t disable the car. The complaints state he has no mufflers. Chief stated the car does have mufflers and is probably what we would call a muscle car but it is road or street legal. Chief stated his officers have never been able to see that vehicle in violation. He has had officers at various times watching for the vehicle which is all documented in the police reports. Chief stated he wished he could do something about having the guy go another way but he can’t.
Bemer stated by putting out the speed trailer that certainly helped for a while and was a great idea. Bemer asked if we could make any changes to the ordinance would that help. Attorney Graham stated no we have to abide by the state law.
McLean asked Chief if he had to witness something before he could cite anyone. Chief stated we have to witness the violation in order to charge someone unless it is a misdemeanor. If it is a misdemeanor then a person can come in and make a complaint and sign the complaint.
Chris Ballingall was granted permission to speak stating it isn’t that they don’t think the police haven’t done anything we just want to know what else we can do. She stated at 6:30 every morning Mr. DeBoer’s windows shake and she is 400‘ away when she doesn’t want to be woke up that early she wears earplugs. It just doesn’t happen every now and then it is almost every day.
Mr. DeBoer stated it is sometimes as many as 18 times a day he goes in and out.
Bemer stated she lives up the block and she hears it also. Bemer asked Superintendent Anthony who lives in the neighborhood if he hears it. Anthony stated he hears it every morning at 6:45 when he is leaving for work. He stated he didn’t live within 50 feet of the car and if his wife’s car sounded like that it might be cool but he doesn’t live that close and it may not be so pleasant that close.
Bemer stated basically someone would have to sign a complaint but they still wouldn’t be able to do any thing. Mc Lean replied you would still have to prove all the other things such as the noise level, speed etc.
Chief stated if Council wants to buy a decimal meter that is their decision. We can’t charge someone for revving their engine. He may be just taunting at this point but we can’t charge for engine revving.
Bemer asked if that was a rental house and if it was could be talk to the owner and explain some of the problems we are having and put pressure on him to help. Attorney Graham stated we would have to be very careful taking that avenue.
Chief stated one thing we all have to be aware of is everybody has rights, even if they are a violator of the law or just an average citizen they all have rights. We have to be careful not to be accused of stepping on someone’s right. He stated we don’t want to step on anyone rights, the vehicle owner has rights and he can own a car and drive it on the streets and if he comes in and out of that subdivision 180 times a day it just doesn’t matter he has rights. Chief stated all he can do is enforce the laws as they are written and we try our best.
Kucinich stated he doesn’t have the right to deliberately annoy someone else.
Chief stated if he is a nuisance then they need to take it up with an attorney and file a civil injunction as Attorney Graham stated earlier.
Attorney Graham stated we could purchase the decimal meter and then decide it is just to difficult to pursue because of all the conditions that have to be met, and he stated the noise complaints relating to vehicles are not popular complaints in a court because of the difficulty of proving anything. If you want to pursue this as a village civil matter you can do that also, but we have to have a compellation of readings to take to civil court. It depends on how far you want to pursue this matter as a village.
Ballingall stated when you put names to a complaint there is sometimes retaliation as her house has been broken into before when she complained. It is a frightening thing when you get older.
Bemer asked how much a decimal meter cost. Chief stated they aren’t that expensive maybe a two to four hundred dollar item.
McLean asked if we could just borrow one. Chief stated you have to be careful when borrowing because you don’t know how it was calibrated etc. Chief will check into the cost if you want to purchase one and get back to Council or to Terri. Chief stated the biggest thing to remember is 86 decimals is high.
Motion by Bemer, support by Spulick, to approve the purchase of a decimal meter in the amount not to exceed $500. Roll call vote. All members voted in favor. Motion carried.
McLean asked where the money would come from to purchase. Chief stated he has money in the supply fund and if we need to make a budget adjustment later we can.
F. USED VEHICLE PURCHASE
Anthony stated this is not something we have done in the past with a used vehicle and he would like Attorney Graham to see if this would conflict with our ordinance of obtaining bids. Goheen will check with the insurance company as to how much this would add to the insurance and the liability issue.
McLean stated we need to table this until we can get all the facts together.
Motion by Bemer, support by Spulick, to table the used vehicle purchase to gather facts. Roll call vote. All members voted in favor. Motion carried.
G. SEWER AND CULVERT CAMERA
Superintendent Anthony would like to camera the sewer and all culverts to complete the lift station cleaning, main line/lateral sewer televising and culvert televising. Clean Earth put in a bid of $1,964 and Down Under a bid of $3,144.
Motion by Kucinich, support by Markle, to award the sewer and culvert televising to Clean Earth in the amount of $1,964. Roll call vote. All members voted in favor. Motion carried.
H. MAIN LIFT STATION ELECTRICAL REPAIR AND UPGRADE
Anthony stated a couple of months ago we had an issue with a fuse blowing at the main and blowing out the entire control panel and we had sewer all over a resident’s yard. This needs to be fixed so this does not happen again. We need to separate two of the pumps outside the PLC so if the control panel burned to the ground the pumps will still turn on and off based on flows. We need to upgrade the rest of the system. The cost is $17,355.
Bemer asked if this was a budgeted item. Anthony stated no. Bemer asked where we will get the money for this. Anthony stated we have money in the sewer contractual. We may possibly need a budget adjustment by the end of the year, but I don’t know for sure. This needs to be fixed so this doesn’t happen again. Bemer stated then this is a safety issue. Anthony stated yes.
Motion by Markle, support by Kucinich, to do the upgrade recommended by the DPW Committee in the amount not to exceed $17,355. Roll call vote. All members voted in favor. Motion carried.
I. ADDITION OF DPW EMPLOYEE
Both the Parks and Recreation Committee and the DPW Committee have recommended we hire either a part time or full time employee to assist the DPW Department.
Kirklin stated we would need a job description and other financial information.
Motion by Kirklin, support by Spulick, to have Superintendent Anthony prepare all the materials pertaining to a new employee, to go to the Finance Committee for review and recommendations. Roll call vote. All members voted in favor. Motion carried.
J. ADDRESS BURNING IN THE VILLAGE
Mattawan Fire Chief Terron McLean addressed a recent burning complaint he received in the Village and an e-mail. The e-mail was sent by Mr. Tom DeBoer. This e-mail I received was brought to my attention because it addressed the fire department. McLean stated on or around June 26th the fire department responded to a burning complaint in the 24000 block of Estates Court. He was unavailable and sent the Assistant Fire Chief Chad Horton. The resident was burning a small pile of wood and he did note there were a couple of tin cans in the bottom of the pit. Assistant Chief Horton investigated the complaint and relayed back to Fire Chief McLean the resident was not in violation, and this was not a threat to the environment or surrounding area. They were on scene about 4-5 minutes then cleared the scene. McLean received a couple of phone calls back questioning why the fire was not put out. McLean explained the fire was in a contained pit and posed no threat so there was nothing the fire department could do. After more calls McLean set Horton back over to the scene and he relayed back that yes it was still burning some but was about out and still posed no threat.
The next day McLean went to visit the resident stating they had received complaints about them burning garbage. The resident then asked what he needed to do to be able to burn his wood and brush or who do I need to call. McLean told him he needed to call him for a burn permit to burn the wood and brush and if he did not get a permit then the fire department would extinguish the fire and that they were not to burn trash in the pit.
McLean reviewed fire department records and noted there had been several other complaints at that location in the past with different tenants.
McLean stated in the e-mail he was reading it said the complaint resident received the patented Mattawan reply of “there’s nothing we can do” which should be our village motto and that we didn’t care. McLean stated if he didn’t care he would not be on the fire department. The fire department with the Quick Response Team handles over 500 incidents a year and we investigate every single one and don’t receive a dime as none of the fire positions are paid positions, therefore, if he and his department didn’t care they would not be doing the job.
15. COMMUNICATIONS
a. MML Legislative Link for July 6, 2010
b. Thank you for Tom, James, Lonnie
16. COMMENTS FROM VISITORS
Chris Ballingall of 52879 25th Street stated she was not part of the e-mails and it’s not the fact so much of burning it’s the fact they are burning garbage. They leave the fire unattended at times and the smoke is bad and she has 60’ pine trees close to the fire. She stated she believes some of the problem is the fact they are renters and they don’t follow the rules and regulations. Hopefully Terron has it under control.
Ballingall stated she understands we have applied for another grant for the school officer. Superintendent Bird has approached the Board of Education about having a bond issue for the school and is asking for input. Ballingall stated when we got the original grant the school paid over $45,000 for the school officer position. She understands we were denied the first grant and thinks we will probably be denied the one we just applied for. Last year the school only gave the village $15,000 toward that officer and she is not opposed to having that officer in the school she just doesn’t feel that the Village should pay for that when the school can’t even tell us how many Village children attend the schools. As a senior Ballingall asked what is she getting in return. Why should the Village subsidize the cost of that school when basically he is full time at the school? The funding of that should be re-thought and we need to find a new way to fund that officer, possibly through the bond issue. She is asking the Council to consider letting President McLean go and be part of the steering committee at the school to let them know how some of our people feel. It is time we figure out a better way to fund the school position.
Ballingall passed out pictures of a gazebo and stated she went through the Capital Improvement Plan and there is nothing in there including any of the current Village buildings or the safety of our parking lot. She gave a website where they were releasing 600 million dollars for redevelopment of communities. Without a manager the public has no one to go to and this Council is not hearing what is being said in public. She is asking this Council to find property in the Powell development like lot 20 & 21 for a new Village Hall and police department. If you buy both lots you could build a pavilion for residents use. She understands there is money for something like this, so please as a Council, get with the Powell people and see what can be done. Powell has given a good start to building a new modern downtown, do your share.
Joe Alexander of Powell Custom Homes stated Harriet Kucinich has brought up a couple of times about a walking trail along the stream so if the Council is interested he would like to have Tom Anthony and Tim Woodhams go with him to take a look and see if this is worth pursuing. The land is pretty much useless to them and if Council is interested then hopefully we can work something out.
McLean stated there are lots of grants available near water.
Motion by Spulick, support by Bemer, to have Tom Anthony and Tim Woodhams meet with Joe Alexander and check into a trail along the stream in McGillen’s Crossing. Roll call vote. All members voted in favor. Motion carried.
Bemer asked how much the lots #20 and #21 were. Alexander stated between $150,000-$160,000
.
Brian Begeman of 60th Avenue asked if the water and sewer were all installed along Glidden and if so when were the residents going to be notified they needed to hook up. McLean stated we have not yet notified residents but they would be notified soon.
17. COMMENTS FROM COUNCIL
Bemer stated she may be unable to attend the next Council meeting.
Markle stated Mattawan was featured on a water quality magazine and there was an article written by Tom Anthony on our new treatment plants. Markle stated after reading the article it was very easy to understand how the system was working, she was here from the beginning and now she understands how everything came together.
18. ADJOURNMENT @ 9:11 PM
