Regular Meeting of the Lakewood City Council called to order at 7:34 P.M. by Council President Seelie.

Pledge of Allegiance
Roll Call
Moment of Silence
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Present: Councilmembers Brian T. Corrigan, Michael W. Dever, Denis P. Dunn, Edward FitzGerald, Thomas J. George, Nancy J. Roth, Robert M. Seelie.
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Also Present: Mayor Cain, Law Director Spellacy, Finance Director Blasko, Fire Chief Mroz, Police Chief Malley, Planning & Development Director Pietravoia, Assistant Safety Director for the Division of Building & Housing Gallagher, Human Services Director Buckon, Executive Assistant to the Mayor Benjamin, Executive Assistant to the Mayor for Community Relations Antonio.

Pledge of Allegiance
Moment of Silence
Roll Call

Motion by Mr. George, seconded by Mr. Dunn, to excuse the absence of Mr. Dever.
Motion adopted. All members presenting voting yea. Mr. Dever arrives 7:50 PM.

Motion by Mr. George, seconded by Mr. Seelie, to approve the Minutes of the Regular Meeting of Council held 7/21/03 without the necessity of a reading.

Motion adopted. All members voting yea.
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Without objection from Council, Public Comment portion on non-agenda items are heard here.

****OLD BUSINESS****

1. ORDINANCE NO. 52-03 - AN ORDINANCE to define and regulate the use of mobile telephones while operating a motor vehicle. (PLACED ON 1ST READING & REFERRED TO THE RULES & ORDINANCES COMMITTEE 7/21/03) (Pg. 5)

Motion by Mr. George, seconded by Mr. Dever, to place Ordinance No. 52-03 on Second Reading and refer it back to the Rules & Ordinances Committee.

Motion adopted. Six members voting yea.
Mr. Dunn abstains.

2. Liquor Permit Application for C1 and C2 transfers to Ketermaya LLC d/b/a Dairy Mart #5247, 12500 Detroit Avenue, from MACS Convenience Stores LLC, d/b/a Dairy Mart #5247 same address. (DEFERRED 7/21/03)(Pg. 7)

Mr. Dunn read from the Law Director's report which indicated no statutory cause to object and recommended Council file no objection. Mr. Dunn asked the Councilmember in the ward the establishment is located for input. Ms. Roth indicated she has had no complaints of anyone improperly selling alcohol. She said she had no reason to object.

Motion by Mr. Dunn, seconded by Mr. Seelie, to file no objection.
Motion adopted. All members voting yea.

3. Liquor Permit Application for D2, D2X, D3, D3A, and D6 transfers to AA Priv Inc., 12208 Madison Avenue from 12208 Noble Enterprises Inc. d/b/a Club Soda, same address. (DEFERRED 7/21/03)(Pg. 8)

Mr. Dunn stated the letter from the Law Director indicated he had no statutory reason to object, recommended no objection to the transfer. Mr. Dunn asked the ward councilmember for that area. Ms. Roth responded said she had no cause to object.

Motion by Mr. Dunn, seconded by Mr. Seelie, to file no objection.

Mr. Dever asked if the person owning the establishment owned other property. Mr. Dunn responded that the report indicated one location.
Motion adopted. All members voting yea.

****NEW BUSINESS****

4. Communication from Mayor Cain regarding Cox Communications Cable Franchise Agreement. (Pg. 9)

Mayor Cain introduced Jim Marris from the Lakewood Public Schools, Todd Hunt form Walter Haverfield.

Motion by Mr. George, seconded by Mr. Seelie, to receive, file and refer the communication to the Committee of the Whole.

Mr. Dunn said that because he was employed by SBC Communications which is a competitor of Cox Communications, he would recuse himself on the issue to avoid any conflict or appearance of conflict. He said he would be abstaining.

Mr. Marris said he represented the Board of Education and the Superintendent and would like to note that the negotiations that have occurred through Mr. Spellacy have been agreed upon and are in a memorandum going to establish a relationship that continues since 1986 between the schools and the City. He said they felt at the present time that technologically this is the best effort that they can provide access infrastructure for information and technology to our students as well as provide a future operational opportunity for the students as we grow. He said that unlike the City, the Schools are well over 4,000 computers inside the schools but do not presently have the physical or labor relations ability to build infrastructure. He said that thanks to the efforts of Mr. Spellacy and the Mayor they are now in a position to grow and provide access services such as on demand, institutionalized video to our desk tops for students, provide same type of services to staff as well as develop internal teleconferencing, HVAC control and add structural significance to the Schools teliphony system. He said that the contract also provides an outlet to the Cox residential customers to be able to see graduation ceremonies, plays, etc, which he said would especially benefit seniors in the winter months unable to participate.

Ms. Roth to Mr. Marris referenced talk of five years ago regarding the expense of drilling through walls at the Madison Branch Library to allow for fiber optic cable. She asked if that has been adjusted?

Mr. Marris said that he could not speak for the Library Board but said that the 14 structures the schools have being included in the network were fully prepared for that type of inclusion into buildings and it would be relatively lost costs for wiring. He said the ability to be able to communicate at approximately 100 times the current rate and allow the continued growth to place communications on the desk tops of students could not occur and would not occur without a structured contract occurred.

Mr. Seelie - reiterated the motion - to receive, file and refer to the Committee of the Whole.

Mr. Spellacy said that he appreciated Councilmembers input over the years, recognized Councilmember FitzGerald's input on keeping basic service at a reasonable cost for seniors.

Motion adopted. Six members voting yea.
Mr. Dunn abstains.
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5. ORDINANCE NO. 57-03 - AN EMERGENCY ORDINANCE authorizing the Mayor on behalf of the City of Lakewood to enter into an agreement extending a cable franchise to Cox Communications for a period of fifteen (15) years pursuant to Article XVIII of the Second Amended Charter of the City of Lakewood. (Pg. 11)

Motion by Mr. George, seconded by Mr. Dever, to place Ordinance No. 57-03 on 1st Reading and refer it to the Committee of the Whole.

Ms. Roth asked how the contracts with the schools linked, if they had to be looked at at the same time. Mr. Spellacy responded that his goal was to have a separate agreement between the Schools and the City. He said it was necessary to have a final document from Cox before all issues could be identified to cover. He said that the Memoranda of Understanding is almost complete between the Schools and the City which he said would have be placed on a contract agreement form. He said he planned to have this completed by the second or third reading of the Ordinance (Ordinance 57-03).

Mr. FitzGerald indicated that he attempted to provide comparisons of Lakewood's cable rates from a consumer points of view. He said he had a concern that previous negotiations with the cable company that the technological aspects were focused on exclusively and not the price issues. He thanked the Administration for bringing the issue to the table and acknowledged there still could be improvement on what rates were charged he said the senior discount inclusion showed some give and take. He said that's something that made him more comfortable with the agreement.

Motion adopted. Six members voting yea.
Mr. Dunn abstains.

6. Communication from Planning & Development Director Pietravoia regarding Economic Development Fund Approval for Environmental Assessment for Vacant Parcel at 12000 Berea Road in Support of Relocation and Expansion of Phil Vedda & Sons Printing Company. (Pg. 27)

Motion by Mr. Seelie, seconded by Mr. George, to receive and file the communication.

Mr. Seelie addressed Mr. Pietravoia stating this could be potentially a million dollar project on Berea Road. Mr. Pietravoia responded that the company planned to build a new building on that vacant site approximately 20,000 square feet. He said the estimated value at this time indicating it was early in the planning stages was a little over a million dollars for the new building.
Mr. George asked how many people were employed presently by Vedda and Company. Mr. Pietravoia responded approximately 10. Mr. George asked how many were anticipated with the expansion. Mr. Pietravoia responded that the number was still being negotiated and that he would be coming back to Council confirming the number of jobs being created by the expansion.

Ms. Roth said that compaction was a problem for this lot and asked if the $20,000 would be used to take soil samples in order to build on the lot despite compaction issues. Mr. Pietravoia responded that the study would be more detailed than previous and that the soil boring will be taken underneath the foot print of the proposed building to determine white type of compaction issues. He said as a result of the study, it would be determined if fill needed to be brought in or removed. He said that from previous studies there was a issue with the soil not withstanding a foundation.

A resident said that because of the losses of Lake Erie Screw, Koepke, Bahr Lumber, Chevy this was a good way to put some buildings in the Berea Road Corridor.

Mr. Dever said that his talks with the Veddas and was under the impression they were headed for Berea and indicated he was happy the Development Team got together to retain the business.

Motion adopted. All members voting yea.

7. RESOLUTION NO. 7803-03 - AN EMERGENCY RESOLUTION authorizing the Mayor or her designee to enter into a contract, in an amount not to exceed Twenty Thousand Dollars ($20,000.00), of Economic Development Funds (EDF) with Hull & Associates, Inc. for the purposes of conducting an updated Phase I and Phase II Environmental Property Assessment on the vacant parcel located at 12000 Berea Road (Permanent Parcel Number 315-25-007) Lakewood, Ohio, in support of the relocation and expansion of Phil Vedda & Sons Printing Company. (Pg. 29)

Motion by Mr. Seelie, seconded by Mr. George, to adopt Resolution No. 7803-03.
Motion adopted. All members voting yea.

8. Communication from Law Director Spellacy regarding Submission of Initiative Petition to repeal Ordinance No. 146-02. (Pg. 31)

Mr. Spellacy further indicated that the ordinance itself will require some amending based on what actions Council takes after its public hearing.

Motion by Mr. Seelie, seconded by Mr. George, to receive, file and refer to the Committee of the Whole.

A resident indicated he lived on Gridley Avenue for 40 years, and that the neighborhood was well kept and had a view of a river valley. He said the City was wrong to name the area blighted, that the designate was to allow the City to use eminent domain. He said the 5th Amendment of the U.S. Constitution was meant to use eminent domain only for a public purpose. He said the Development was not a public purpose, and benefited a private developer. He said on May 19, the Institute of Justice joined him and 16 other families to prevent the City from taking the property in that area.

Another Gridley resident asked when and where the Committee of the Whole Meeting referenced in the ordinance would be held. Mr. Seelie responded that this would have to be worked out with Members of Council. The resident asked if there was some way to get that information out to the public. Mr. Seelie indicated that as usual Council was required to by law.

Gerald W. Phillips, 35955 Detroit Road said he was there on behalf of the Committee for the Initiative Petition. He said that that day he supplemented the original petition, filed an additional 13 part petitions containing 231 signatures. He said the Clerk of Council has indicated they met the 5% requirement; 511 signatures in Article XX, Section 1 of the Charter in order for Council to consider the proposed Ordinance. He said if Council doesn't pass the proposed ordinance in its original form the petitioners can request it be placed on the ballot if they submit additional signatures to meet the 15% requirement. He said that 15% requirement is 1,531 signatures as required by Article XX, Section 9, in order to place on the ballot. The initial petitions as determined by the Board of Elections had 1,454 signatures so we were 77 short of the 1531. He said that was the reason why they supplemented the part petitions (today), to speed up the process so that this would get on the ballot as soon as possible. He said that also (today) - they put in a letter a demand and request and a certification that this proposed ordinance be placed in its original form and submitted to electors at the November 4, 2003 General Election Ballot. He said that they request Council schedule as soon as possible a Committee of the Whole, also schedule a Public Hearing on the matter and no later than the Council Meeting September 16th, 2003 have this ready to submit to the Board of Elections in order to be placed on the November 4, 2003 General Election Ballot.

On the motion (to receive, file and refer to the Committee of the Whole).
Motion adopted. All members voting yea.

9. ORDINANCE NO. 58-03 - An EMERGENCY ORDINANCE submitting an Initiative Petition to repeal Ordinance No. 146-02 in its entirety, an emergency ordinance approving the Community Development Plan for the West End District, pursuant to Article XX of the Second Amended Charter of the City of Lakewood. (Pg. 32)

Motion by Mr. Seelie, seconded by Mr. George, to place Ordinance No. 58-03 on 1st Reading and refer it to the Committee of the Whole.

Motion adopted. All members voting yea.

10. Communication from Law Director Spellacy regarding Petition for Submission of Proposed Amendment to Charter. (Pg. 34)

Motion by Mr. Seelie, seconded by Mr. George, to receive and file the communication.

Gerald W. Phillips, 35955 Detroit Road. He said was there on behalf of the Committee for the proposed Charter Amendment. He said the proposed Charter Amendment will let the voters and the electors in the City of Lakewood determine if they want the right to vote on urban renewal projects just like the West End and the use of eminent domain for these projects. He said there are five reasons supportive of this Charter Amendment; to prevent the abuse of the use of the emergency clause to take away the right of referendum. He said Council used the emergency clause on three occasions - to take the practical effect of a referendum, delaying the effective date of the legislation on three occasions, when they determined blight for the West End, when they passed the Development Agreement for the West End and when they passed the Agreement with the School for the West End. He said the use of the referendum is an ineffective way when different development contracts and agreements can be passed and subject to the voters multiple and repetitive attempts to referendum legislation in order for them to get their right to vote. He said the right of referendum is ineffective when used with the emergency clause in dealing with development or contractual agreements because of legal problems and the fact that a very successful challenge can be made to those because you can't impair contractual obligations. He said that these types of projects involve the issuance of General Obligation Bonds and the use of the general credit of the City and expose taxpayers to significant risk. He said the West End is proposing 35 million dollars of General Obligation Bonds but at the same time there is only a guaranteed letter of Credit from the Developer for $7 million. He said this was potentially exposing the taxpayers if the project is unsuccessful to 28 million dollars. He said the the residents want the right to vote if they're going to be at risk. He said also these types of projects are very risky, they involve tax increment financing which he said mortgages the future of the City based on the fact that the collateral is future tax revenues. He said the taxpayers were at risk and wanted the right to vote on these. He said this was also to prevent the frivolous use of eminent domain. The criteria that has been used - two attached garages, two full baths, at least three full bedrooms was not valid. He said this would apply to at least 90% of the City of Lakewood. He said that the residents want protection of their neighborhoods.

He said the petitions as submitted contained 1435 valid signatures, 904 valid signatures were needed. He said this Council has a Constitutional duty to submit and pass this ordinance to put it on the ballot so that the electors have a right to vote on it on November 4, 2003.

Councilmember George asked Mr. Phillips referred to the language, "any redevelopment plan" - he asked - if the Vedda legislation just passed would go on the ballot. Mr. Phillips responded, "no". Mr. George asked what the criterion was. Mr. Phillips said urban renewal development plan. He said the only time you have urban renewal based on the definition is if you have a blighted area.

Mr. George asked if only in the instances when the use of blight was used that it would go before the voters. Mr. Phillips responded, "yes".

Mr. Spellacy said that that was what Mr. Phillips was saying now but within that ordinance it doesn't say only urban renewal it says "urban renewal or redevelopment". Mr. Spellacy said the ordinance didn't say only urban renewal it said "or" redevelopment. Mr. Spellacy said that depending on which day Mr. Phillips is arguing or which position Mr. Phillips takes in a particular point in time might be interpreted differently.

Law Director Spellacy said he would further indicate that to allow Mr. Phillips to get up and make these comments uncontroverted - cannot just be let go. Law Director Spellacy said that Mr. Phillips suggested for an unknown reason that the folks of Lakewood hadn't had the opportunity to challenge these ordinances and stated that as has been seen there is a referendum on the ballot . He said our Charter does allow for a emergency ordinance to be referendum. He said further demonstrated by the City's Initiative Process it allows ordinances to be repealed and has a particular manner in which to do that. He said that not only can you repeal an ordinance or challenge it through Referendum, you can repeal it through Initiative.

Law Director Spellacy said he would also add that he thought what Mr. Phillips has done in creating this Charter Amendment would at some juncture be held un-Constitutional. Law Director Spellacy said that Mr. Phillips has done what used to be called, "log-rolling" or a violation of the single-subject rule and has "mixed his apples and oranges". He said he's tried to suggest, for example, that eminent domain has a direct relationship to bonding which we know may be the case, it may not be the case. Law Director Spellacy said that most of the case law suggests that the only time you get to challenge these things, based on a separation of powers, is after the fact. Mr. Spellacy indicated that when Mr. Phillips is there to save the City money, what actually is going to happen is that he's going to cost the City money. Mr. Spellacy said this is unfortunate because Mr. Phillips wants to give one interpretation of it to day - but there are cases where he'd give another interpretation yesterday - or tomorrow.

Mr. George said that he would vote with what he thought the Council consensus was - to let the public vote on the issue but said he wanted to be clear on what it was deciding, what people are voting on. He said that now it was the Law Director's interpretation that redevelopment such as the Vedda project may in fact require a vote of the people or a similar project.

Law Director Spellacy said that there is an interpretation that could be had that would suggest that any redevelopment that effects any one of those enumerated items he (Mr. Phillips) outlined - unlike the Initiative Petition - no ability to amend his proposed Charter Amendment - nor the ability (Mr. Spellacy said he believed at this juncture) to stop it. He said that he could tell right now - that if he asked Mr. Phillips - if Council voted this down, Mr. Phillips, what would you do?. Mr. Phillips responded that he would probably seek legal remedies. Law Director Spellacy said that would be a mandamus action in Court - asked Mr. Phillips if that was correct. Mr. Phillips said he would seek legal remedies - yes.

Mr. Phillips said he would seek legal remedies because there was a Constitutional duty to put it on the ballot. He said that any question whether it's legal or not is premature at this juncture.

Mr. George said that his question would be. (Mr. Phillips interrupted stating, "let the voters decide). Mr. George said that was his point, what are they deciding. He asked if a pizza shop on Madison Avenue decided to come in for an addition, if that was a redevelopment effort, does that need voter approval. Mr. George said he wanted to be clear, he said he thought the public should vote on this but wanted to be clear what people were voting on.

Mr. Seelie said he wanted to make the point that any new development in some of these cases would have either Special Elections or the developer would have to wait until the next regular election and a lot of times it's timing which he said was so important in development. Mr. Seelie said that the City could potentially be having a election for any - a lot of different types of development in the City. He said that either Special Elections which cost the City money and/or the developer would have to wait. Mr. Seelie said that he didn't think that was a welcoming gesture to businesses from a City that requires a vote on every development. He said it was quite a burden to place on the Development Department and other Departments that work so hard with businesses and the businesses themselves.

Councilmember Roth said she had a great deal of concern if this amendment were to go through. She said she thought that the City wouldn't' have to worry about developers, that they could go anywhere, that they could go where Mr. Phillips lived in Avon if they wanted. She said developers are going out there and developing out there. She said if redevelopment in the City is wanted what would happen if the City tells developers waiting to invest and tell them they have to wait until the vote of the people then we wait for appeals to that.

Ms. Roth said that there were decisions that had to be made and asked if it was government by referendum or by electing good people on Council and in the Mayor's Office who would review the short-term and long-term ramifications of difficult decisions. Ms. Roth said that this was one of the most dangerous things that could happen to Lakewood, a community that is aging, that will need over the years to be refreshed. She said that there would virtually be no reason to go to the ballot at all, because developers would just not come to Lakewood. She said there were plenty of other places they could go and said this was a real threat to the future of the community.

Mr. Seelie said he hoped the people of Lakewood would take a very close look at the ramifications this would have but said he thought Council had a fiduciary responsibility to place the amendment on the ballot. He said he did not agree with it said he would carry out the responsibility.

Councilman Dunn said there has been no evidence that this City Council has not been responsive to the citizens of this community - or that they have not been promoting the public good. Mr. Dunn said that in fact there were disagreements, public hearings, and that individual aspects of the West End Development could be disagreed with but that in total, he said represented by a unanimous vote, that Council believed it was in the best interest of the community.

Councilmember Dunn said that he agreed with Councilmember Roth that this sets a bad precedent. He said that he was also of the realization that Lakewood is not only competing regionally but globally. Mr. Dunn said that we are wasting time, resources and energy by having to sort out referenda when efforts needed to move forward to advance the vision of the Lakewood Community. He said the amendment is devastating, destructive and would like to dispose of it as soon as possible to get on with better things.

Mr. Seelie said he agreed. He said you either move forward or you move backwards.

Mr. Seelie called the motion - to receive and file the communication.

Motion adopted. All members voting yea.

11. ORDINANCE NO. 59-03 - AN EMERGENCY ORDINANCE providing that the Petition For Submission of Proposed Amendment to Charter be submitted to a vote of the electors of the City of Lakewood, pursuant to Article XXIII, Section 6 of the Second Amended Charter of the City of Lakewood. (Pg. 35)

Motion by Mr. Seelie, seconded by Mr. George, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 59-03 on final reading.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George….(Ms. Roth questioned the constitutional requirement to put this on the ballot - and stating there was nothing Council could do. She said that now the rules are being suspended - indicting that we should do something special.

Law Director Spellacy said that Article XVIII, Section 8, 9 and 15 dictate that this has to be done "forthwith" (Ohio Constitution). He said that as such, suspension of the rules is appropriate. Law Director Spellacy said that as far as having to do something there was also a choice of not doing this, and if the vote is of that nature, he said Mr. Phillips has pointed out to his (Mr. Spellacy's) question - he would suggest that the risk of litigation is imminent and as such he would suggest Council is of the mind set to go that direction that we would need Executive Session so that he could properly advise as to imminent litigation.

Councilmember Roth said she was voting against the suspension.

yea - (Corrigan, Dever, Dunn, FitzGerald, George, as previously stated) , Seelie
Nays: Roth
Rules Suspended.

Motion by Mr. George, seconded by Mr. Seelie to adopt Ordinance No. 59-03.

Mr. Dunn asked if there would be a benefit - if Council was availing itself to all the options and consequences in the decision to go into Executive Session.

Mr. Spellacy said that case law suggested the action if you pass this is the appropriate action. He said it did not say that you would give up the potential right to contest this on several of the issues Mr. Phillips pointed out. He said this ordinance may be in violation of the contract laws of the United States Constitution, single subject rule, and also there's also some additional litigation that's been had on the validation of the signatures and the amounts of signatures that's needed in Westlake. He said there were several of those issues and whether or not one could be successful he would prefer to discuss with Council in Executive Session if Council wanted that.

Mr. Dunn asked if Mr. Phillips threat of litigate was a basis to move into Executive Session. Mr. Spellacy said that in his opinion it was, based on Mr. Phillips statement and his history.

Mr. Seelie asked if there would be litigation if Council went ahead and voted on the ordinance. Mr. Spellacy responded, not now, and not on whether it goes down for a vote. He said he would suggest that at some point in time this Charter Amendment will be challenged as to whether or not it's Constitutional or not.

Mr. Phillips commented from his seat, "if it passes as it is now".

Mr. Seelie said that he had a lot of faith in the voters that they could see through this. He said the City had to really explain what the ramifications may be, may note be. He said the fact is that it's almost impending litigation one way or the other - if it passes - and said he thought it wouldn't pass.

Mr. Dunn said he wanted to make sure Council was apprised of all the implications of this Charter Amendment before Council took action, if Council would benefit from an Executive Session. He asked if Mr. Spellacy said yes - (council would benefit.) Mr. Spellacy said that his answer is that as far as the ramifications of the Charter Amendment - they're many. He said some of them wouldn't involve pending your eminent litigation. He said the effects of not passing it would be what needed to discussed as far as ramifications. Mr. Spellacy said that Mr. Phillips pointed out a mandamus action which would be filed would be costly to the City. He said that as far as the likelihood of success, the Case Law seems to suggest that the appropriate time to challenge these is after they've been passed based on the separate of powers, not to interfere with the legislative process, the Courts are not likely to get involved.

Mr. Dunn said that he believed the Charter Amendment would have such a devastating effect on the future of the City, and because he wants to be fully apprised of the ramifications if Council decides not to go forward and put it on the ballot -

Motion by Mr. Dunn, seconded by Ms. Roth, to go into a brief Executive Session so the Law Director can advise us as to the full consequences.

Mr. George asked Mr. Spellacy if his original recommendation is to pass the ordinance that evening.

Mr. Spellacy responded yes it was.

Mr. George asked what that was based on.

Mr. Spellacy responded that this was based on numerous conversations and with is own staff and outside counsel. He said it was his opinion that this was not the appropriate time to challenge this. He referred to the Plain Dealer Report at the microphone and stated that he has further researched Executive Session and based on Mr. Phillips statements and the threat of litigation that it would be appropriate and would not be subject to a successful challenge.

Mr. George said there are clear reservations and concerns of what the exact issue is and the possible, detrimental effects to the City in it's economic development policy but said he did not see the necessity to delay. He said he supported the Law Director's suggestion to pass the ordinance that evening.

Mr. FitzGerald said that he supported what Mr. George said. He said the threat of litigation the City faces is clear without going into Executive Session; If Council voted not to put this forward, or move the process forward, Mr. Phillips would sue us right away - and that he thought that was what the threat of litigation is. He said if Council does move it along there would probably be litigation at a later time if it passes (at the ballot).

Councilmember FitzGerald said that any member on Council agreed that this would be the kiss of death for any kind of development. He said that he didn't' care what Mr. Phillips said that night, any developers that see this kind of language in a Charter or an Initiative would not stop running until they get to Avon. He said that the danger of going into Executive Session was that it would result in misunderstanding. He said he was against going into Executive Session.

Councilmember Roth said that when the discussion started she was of the understanding that Council really had no choice but to vote for the Ordinance. She said but when Council is suspending rules, it seemed it was doing something it didn't' have to do. She said if Council had to suspend its own rules, it doesn't seem like it's something Council would be required to do tonight. She said that she has consistently argued during her tenure that it was never a reason not to do something for fear of being sued. She said that was a horrible way to do business. She said if Council changed the Charter, how many years would it take to go back and overturn a vote of the people to change the Charter. She said she didn't want to do that. She said that she agreed what Mr. Seelie said, that should could not believe that the public could not see what this is about and would not vote against it. She asked, however, what message Council was sending that it was suspending its rules to do something to help this. She said that Council could say what it wanted, that it's a bad idea but on the other hand, Council's suspending of the ruled showed that it didn't care that much about it.

Councilmember Roth said that she assumed Council would go into Executive Session because the City had already been threatened to be sued but said she would like to know what "forthwith" meant. She said, that if Council was required to do this, why it had to suspend its rules.

Mr. Spellacy responded that "forthwith" meant right away, in a timely fashion, without undue delay - all of the above. He said suspension of the rules was because it was an ordinance to comply with the forthwith that would be like right now. He said he would think first of all nobody would challenge if the Ordinance was put on without suspending the rules but since the Charter says there must be three readings or suspension of the rules, the proper way to do that is with suspension of the rules.

Mr. Dunn said he agreed with Mr. FitzGerald that the voter becomes suspicious with complexity and that there hasn't been anything more complex than the West End Development. He said he thought that, in part, has led to the Charter Amendment and the Referendum. He said the only thing that creates more suspicion than complexity is probably secrecy. He said if Council went into Executive Session, that would be perceived as secrecy and - there'd be more voter hostility. He said, however, it is such an "onerous" - prospect of having this passed that he was of the mindset that it's incumbent that every single thing that could be done to stop the Charter Amendment. Councilmember Dunn said if Mr. Phillips wanted to get himself down to the Court House tomorrow morning and sue, then the City should fight him there. He said that if Phillips wanted to fight after that, we'd fight him again. He said the future of economic development in Lakewood, in truth, the future of our City, is at stake and therefore we should continue to fight to assure the vitality of our community. He said he would vote against it - to keep it off the ballot.

Mr. FitzGerald said he agreed with Mr. Dunn and said if he thought that was a way to stop it he would be for doing it. He said the problem might be, that if the litigation started now, that would mean, if it did get on the ballot, it might get on the ballot for a Special Election after this election by the time that's resolved which would mean instead of going through one election process where hopefully the voters see through this they would go through another. Mr. FitzGerald said he would rather have then all on the same time, address them all up or down at the same time.

Mr. Seelie - on the motion to go into Executive Session -

Mr. Corrigan asked if going into Executive Session was contingent on Council voting against it.

Mr. Dunn said he made the motion to go into Executive Session to discuss the options, what would happen if the City, and alternatives, what would happen to the City - if the City decided not to put this on the ballot.

Mr. Seelie said he would vote no on Executive Session. He asked the Clerk to call the roll on entering Executive Session.

Yeas: Dunn, Roth
Nays: Corrigan, Dever, FitzGerald, George, and Seelie
Motion failed.

Mr. Seelie called the motion to adopt:
Ms. Roth referenced comments by Mr. Spellacy stating other communities where an Amendment such as this had passed and afterwards the people fought it to find out it was Constitutional or not, asked how long did that take to resolve. Mr. Spellacy responded that it depended on whether or not the original action is appealed, the timing of the Court setting a briefing, discovery schedule, if necessary. He said generally speaking - a year - probably more.

On the motion to adopt:
Yeas: Corrigan, Dever, FitzGerrld, George, Seelie
Nays: Dunn, Roth
Motion adopted. Ordinance No. 59-03 adopted.
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12. Communication from Health & Human Services Director Buckon regarding Authorization to Administer the United States Department of Agriculture (USDA) Family Child Care Home Food Program for City of Lakewood Home Day Care Providers. (Pg. 37)

Motion by Mr. George, seconded by Mr. Seelie, to receive and file the communication.

Mr. Seelie indicated there was a time commitment associated with items 13, 14, 15 and 16. He said he would recommend suspension of the rules.

Motion adopted. All members voting yea.
….

13. RESOLUTION NO. 7804-03 - AN EMERGENCY RESOLUTION authorizing and directing the Director of the Department of Human Services, on behalf of the City, to enter into an Agreement with the Ohio Department of Education to accept and expend funds for the Family Child Day Care Home Project. (Pg. 38)

Motion by Mr. George, seconded by Mr. Seelie, to adopt Resolution No. 7804-03.
Ms. Roth said that it was her understanding in terms of State Law that the City had no authority over Day Care facilities of six or fewer children.

Health & Human Services Director Buckon said that these were home care providers and this program was for meal reimbursement. She said the City did not have the authority to license but if someone chooses to participate in this program then there is the ability to require them to meet the USDA regulations. It allows us to ensure it's a quality home environment, that the people are trained, the home is safe in regards to fire and health regulations. She said that in the place of licensing, this allows the City to ensure more an more of the home day care providers to meet these minimum requirements.

Ms. Roth asked if people running a home care program for 2-3 children would be able to apply for these dollars. Director Buckon responded yes they would. Ms. Roth referenced legislation passed several years ago about registering smaller daycares in and effort to set up some kind of a registry where people could come to the City's day care department and ask which homes were registered. She said there then would be an assumption that the persons registered provided care that would be acceptable. She asked if that registry still existed. Director Buckon responded that yes, a list of day care providers is published annually.

Motion adopted. All members voting yea.

14. ORDINANCE NO. 60-03 - AN EMERGENCY ORDINANCE establishing the Family Child Day Care Home Project Fund special revenue fund for the deposit of revenue and payment of expenses associated with the program. (Pg. 40)

Motion by Mr. George, seconded by Mr. Seelie, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 60-03 on final reading.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie.
Nays: None
Rules suspended.

Motion by Mr. George, seconded by Mr. Seelie, to adopt Ordinance No. 60-03.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Ordinance No. 60-03 adopted.

15. ORDINANCE NO. 61-03 - AN EMERGENCY ORDINANCE to establish additional appropriations for current expenses and other expenditures of the City of Lakewood, State of Ohio, for the fiscal year ending December 31, 2003. (Pg. 42)

Motion by Mr. George, seconded by Mr. Seelie, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 61-03 on final reading.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie.
Nays: None
Rules suspended.

Motion by Mr. George, seconded by Mr. Seelie, to adopt Ordinance No. 60-03.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Ordinance No. 61-03 adopted.

16. ORDINANCE NO. 62-03 - AN EMERGENCY ORDINANCE authorizing and directing the Mayor or her designee to enter into contracts for the reimbursement of the cost of meals to various day care providers who provide day care to families who meet program requirements for the Family Child Day Care Home Project in an amount not to exceed $176,000. (Pg.43)

Motion by Mr. George, seconded by Mr. Seelie, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 62-03 on final reading.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie.
Nays: None
Rules suspended.

Motion by Mr. Corrigan, seconded by Mr. Seelie, to adopt Ordinance No. 62-03.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Ordinance No. 62-03 adopted.

17. Communication from Finance Director Blasko regarding 2004 Tax Budget. (Pg. 44)
Motion by Mr. George, seconded by Mr. Seelie, to receive and file this communication.
Mr. George provided Councilmembers with a hand-out. He asked the Finance Director to explain the request to suspend the rules.
Finance Director Blasko responded that the County Budget Commission has staffing issues and that there were only two people that are familiar with how the City of Lakewood works, are able to help establish the tax rates to make sure proper appropriation dollars are secured. She said that one of those two individuals left Friday for maternity leave and the other individual will be leaving in two weeks. She said that the City needed to get the tax budget down to the County tomorrow to make sure that there was appropriate personnel to go through the tax budget appropriately. She said the County Budget Commission will then prepare a resolution, it will come back to Council to accept the property tax rates as prepared and at that time, there will be additional time to review those tax rates.

Mr. George said that the bottom line remains that 17.4 mils is the City's tax rate per $1,000 of valuation. Director Blasko responded that was correct.
Motion adopted. All members voting yea.
….
18. RESOLUTION NO. 7805-03 - AN EMERGENCY RESOLUTION approving the Tax Budget of the City of Lakewood, State of Ohio for the year 2004, and authorizing the filing of same with the Auditor of Cuyahoga County. (Pg. 45)

Motion by Mr. George, seconded by Mr. Seelie, to adopt Resolution No. 7805-03.
Motion adopted. All members voting yea.
….
19. Communication from Public Works Director Boag regarding Reimbursement from the Ohio Public Works Commission for project costs incurred on the Belle Avenue Rehabilitation Project. (Pg. 46)

Motion by Mr. Seelie, seconded by Mr. Dever, to receive and file the communication.
Motion adopted. All members voting yea.
….
20. RESOLUTION NO. 7806-03 - A RESOLUTION declaring the official intent and reasonable expectation of the City of Lakewood on behalf of the State of Ohio (the borrower) to reimburse its Water Fund for the Belle Avenue Rehabilitation Project with the proceeds of tax exempt debt of the State of Ohio. (Pg.47)

Motion by Mr. George, seconded by Mr. Dever, to adopt Resolution No. 7806-03.
Mr. Corrigan asked if this would reimburse the water fund? Director Blasko responded that the OPWC zero percent loan was loaned through the water fund, this allows because OPWC receive bond funds to fund these different projects to not violate IRS Code and allow the City to charge Engineering salaries to that project. She said a resolution had to be pass a resolution and give it to OPWC that they don't violate IRS Codes and then when salaries are paid out of the Water Fund, OPWC will refund those monies back to the Water Fund.

Mr. Corrigan said that Mr. Boag's correspondence said to the General Fund. Finance Director Blasko said that what he means is that Engineering salaries are typically charged to the Water Fund. She said in any project, the Engineering Department keeps a detailed time sheet on what projects they work on. She said if it's a project that any bond anticipation notes have been taken out or any bonds, they re-class those salaries to that project. She said as an example - if it's a project for the Sewer Fund then those salaries will be moved to the Sewer, so the Sewer is paying for that portion of the salaries. She said it was like a cost allocation plan.

Mr. Dever said there was a reference made to the Lakewood Park Project indicating it wasn't part of the Belle Avenue project.

Public Works Director Boag responded that in the submission for Issue II, the total package of projects was included. He said it was a multi-phase project including from Lakewood Park to Detroit. He said Mr. Dever was correct it was not part of the Belle Avenue but it was tied into the Belle Avenue project.

On the motion to adopt.
Motion adopted. All members voting yea.
….
21. Communication from Public Works Director Boag regarding Emergency Sewer Repair: Clifton and Summit. (Pg. 48)

Motion by Mr. George, seconded by Mr. Dever, to receive and file the communication.
Motion adopted. All members voting yea.
….
22. ORDINANCE NO. 63-03 - AN EMERGENCY ORDINANCE authorizing the Director of Public Works to enter into contracts for an amount not to exceed Sixty Thousand Dollars $60,000) and declaring said contracts to be necessary to meet an emergency arising with the operation and maintenance of the City sewer system located on Summit Avenue at the intersection of Clifton Boulevard. (Pg. 49)

Motion by Mr. George, seconded by Mr. Dunn, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 63-03 on final reading.

Mr. Corrigan asked Mr. Boag if any contractors were contacted or if he had any in mind that were currently doing work in the City.
Mr. Boag responded that the City Engineer and the Water Department had been talking to a number of contractors to get an order of magnitude to come up with an approximate price and they are in discussions. He said he was not familiar with which ones.
Mr. Dever asked if Summit Avenue was planned inside the next five years - for any sewer, water replacement, street replacement.
Mr. Boag responded that at this point there were no major sewer, capital plans for Summit. He said that as streets are renovated, sewers are evaluated. He said that this item was discovered during the normal, ongoing sewer maintenance program.

Mr. Dever said he wanted to know if Summit Avenue was part of any sort of Capital Improvement Plan inside of the next five years. He said that obviously there was a problem there and that he didn't know if it was further up the line also. Mr. Boag responded that that was a component of the long-term capital control plan that is being reviewed and selecting a consultant to work through those issues and prioritizing the streets and map all of the sewers and identify first, second and third priorities.

On the motion to suspend the rules.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Rules Suspended.

Motion by Mr. Seelie, seconded by Mr. George to adopt Ordinance No. 63-03.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie
Nays: None
Ordinance No. 63-03 adopted.

23. Communication from Finance Director Blasko regarding Sale Via Trade-in, Obsolete Equipment. (Pg. 51)

Motion by Mr. Corrigan, seconded by Mr. George, to receive, file and refer this communication to the Finance Committee.
Motion adopted. All members voting yea.
….
24. ORDINANCE NO. 64-03 - AN EMERGENCY ORDINANCE authorizing and directing the Director of Finance to sell, through trade-in, one Eagle Compressor and 4500psi Cascade System in conjunction with the purchase of a new Breathing Air Compressor. (Pg. 52)

Motion by Mr. Corrigan, seconded by Mr. George, to place Ordinance No. 64-03 on 1st Reading and refer it to the Finance Committee.
Motion adopted. All members voting yea.
….
25. Communication from Police Chief Malley regarding FY 2003 Local Law Enforcement Block Grant. (Pg. 53)

Motion by Mr. George, seconded by Mr. Seelie, to receive and file this communication.

Ms. Roth said that the Chief, Mayor and Law Director had discussed getting some kind of indicator to know where they were, to monitor from the Department. She asked the status of that? She said that it would not be much more than $50,000.
Chief Malley said that that would be separate from the grant mentioned. He said he was waiting for a report from Information Systems - they are researching that with the City's vendor - THE.
Motion adopted. All members voting yea.
….
26. RESOLUTION NO. 7807-03 - AN EMERGENCY RESOLUTION authorizing and directing the Chief of Police, on behalf of the City, to accept an expend grant funds from the Bureau of Justice Assistance for the purpose of installing digital video recording equipment in the Lakewood Police Departments marked cruisers through the Local Law Enforcement Block Grant Award. (Pg. 54)

Motion by Mr. George, seconded by Mr. Seelie, to adopt Resolution No. 7807-03.
Motion adopted. All members voting yea.
….

27. Liquor Permit Application for D2, D2X, D3 and D3A transfers to Skeeterboys LLC d/b/a Mad Anthonys Tavern 13601-03 Detroit Avenue from Stonefire Inc d/b/a Mad Anthonys Tavern same address. (Pg. 56)

Mr. Dunn read from the Law Director's communication indicating there was no cause to object. Mr. Seelie was asked for any objection as the Ward Councilmember for that area, he had no objection.

Motion by Mr. Dunn, seconded by Mr. Seelie, to file no objection.
Motion adopted. All members voting yea.
….

28. Liquor Permit Application for C1 and C2 transfers to Deena & Nadeen Enterprises Inc. d/b/a Dairy Mart 5249 15019 Madison Avenue from MACS Convenience Stores LLC d/b/a Dairy Mart 5249 same address. (Pg. 57)

Mr. Dunn said he had no report for that liquor permit. The Law Director apologized, indicating he thought all the councilmembers had the report. He said that based on the Chief's representations, there was no cause to object. Mr. George was deferred to as the Ward Councilmember for that area.

Motion by Mr. Dunn, seconded by Mr. George, to file no objection.
Motion adopted. All members voting yea.
….

29. ADD-ON - Communication from Public Works Director Boag regarding Increased Contracting Authority for the Webb Road Watermain Replacement and Sewer Improvement Project.

Motion by Mr. George, seconded by Mr. Seelie, to receive and file the communication.

Motion adopted. All members voting yea.
….

30. ADD-ON - ORDINANCE NO. - 65-03 - AN EMERGENCY ORDINANCE authorizing and directing the Director of Public Works to engage architectural and/or engineering firms to provide professional services in the design and preparation of specifications and contract administration and to advertise for bids and enter into a contract with the lowest and best bidder for 2003 Water System Replacement Program and Wastewater Treatment Plant Improvements in accordance with the Administrative Code of the City of Lakewood, contracts not to exceed the specified amounts shown without separate resolution of Council.

Motion by Mr. Corrigan, seconded by Mr. George, to suspend the rules requiring this Ordinance be read on three separate days and placing Ordinance No. 65-3 on final reading.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie.
Nays: None
Motion adopted. Rules suspended.

Motion by Mr. Corrigan, seconded by Mr. George, to adopt Ordinance No. 65-03.

Yeas: Corrigan, Dever, Dunn, FitzGerald, George, Roth, Seelie.
Nays: None
Ordinance No. 65-03 adopted.

Mayor Cain indicated the pre-school PTA, First Federal of Lakewood, the City, the Schools, sponsoring the yard sign program…asking motorists to break for kids.

Community Festival this Saturday.

President Seelie asked about calls he received about notices for NOPEC.
Mayor's Executive Assistant Keith Benjamin said he believed people are receiving opt-out letters to switch from First Energy to Green Mountain for their electrical service. He said he did place a call to NOPEC requesting further information, indicating they did not receive notice of that.

Mr. Seelie said that the situation is that a person had to take an action, and if that wasn't taken, even if there was a contract for 3-4 years - you'd be stuck going with NOPEC. Mayor Cain responded that when the process of aggregation, that was what it was about. She said the goal was the City would join with other communities to get the best price out there but if the citizens wanted to opt out, they could. She said she recalled that switching will also cost the citizen money.

Councilmember Roth said that the evening of the blackout she stopped by City Hall. She complimented the Administration, for their professionalism. She said she found Human Services Director Buckon, Fire & Police Chief had a list of those needing electrical assistant - life-support systems.

Ms. Roth also thanked Councilmembers Dunn and FitzGerald, and the Administration for a good policy regarding larvaciding, avoiding spraying. She thanked Director Buckon - indicating she understood there were few numbers of mosquitoes - not infected.

Mr. Dever said that the first week of August - street improvement contract was awarded. He asked when can the start of those projects be expected. He said that there were 4-6 streets being resurfaced - and his concern was that weather is changing. He asked about a time frame.

Mr. Boag said that they went to Board of Control last week, contracts were awarded, and activity should commence within a week to ten days. He said that good headway should be made in September on both the deep grind and overlay as well as the street maintenance program. Mr. Dever asked if something is in the contract if cold weather does prevent a contractor from proceeding, to hold the prices firm until the following spring. Public Works Director Boag responded that he was not familiar with that clause and that he would let him know.

Mr. Dunn asked if the current prevention program of larviciding will suffice throughout the season. He also commented on the new water fountain at the dog park. He asked about the status.

Director Buckon said that overall Ohio was experiencing a decrease in West Nile Virus. She said source reduction, education, larviciding reduced the number of mosquitoes - she said this late in the year, weather changing, conditions where spraying would be effective are no longer there. Mr. Boag said the dog park has been heavily used, the Committee has been great to work with.

Meeting adjourned 10:04 PM.