PLEDGE OF ALLEGIANCE: Cub Scout Pack 240 – Den 7

Leader: Steve Pliska

Scouts: Daniel Burris, Joseph Burris, Jordan Gates, Justin Mustonen, Stephen Pliska

ROLL CALL: Mayor Clark-absent/excused, Mayor Pro Tem Bononi, Council Members Capello, Csordas, Landry, Lorenzo, Sanghvi

ALSO PRESENT: Richard Helwig – City Manager

Craig Klaver – Chief Operating Officer

Clay Pearson – Assistant City Manager

Gerald Fisher – City Attorney

David Evancoe – Planning Director

Nancy McClain – City Engineer

Member Capello added to Mayor and Council issues item #6. Administration to look at "No Left Turn" out of the west exit/entrance of the library, and item #7. Ice Arena After Care program. Mayor Pro Tem Bononi stated items #4 and #5, under Mayor and Council Issues were from Mayor Clark and asked that they be moved to the next meeting.

Member Lorenzo arrived at 7:37 p.m.

Senator Cassis updated the City on the Beck Road Intersection and Wixom Road intersection.

upgrades.

Senator Cassis said these two intersections are very dangerous. MDOT decided that what Novi and Wixom put together was a model for all future projects because they built a wonderful coalition that provided rights of way, banded together and worked to insure that this would be kept on track. Senator Cassis stayed on top of the projects pulling out all the stops each time there was a "glitch" in the road. The projects included the removal of the CSX bridge, Grand River widening and improvements to 12 Mile Road. Senator Cassis said last week she received a call from Gloria Zeff, the new MDOT Director and although the Beck Bridge reconstruction is ready now, they found out that the Governor had delayed it until perhaps as long as 2007. The Governor is calling this change in policy "The Preserve First Program" and it focuses on preservation of 90% of all the exiting roads by 2007. Senator Cassis said we

have been on target with that for the last five years and there has been no diversion of monies to insure the completion of fixing our roads first. She said Representative DeRoche wanted to

be present tonight but he is out of town and the both of them would work with the administration, City Manager and Council to preserve the Beck and Wixom Interchanges. This has nothing to do with the current budget. The dollars are there for these projects. Senator Cassis said 1) $6 million dollars had been voted by taxpayers in Novi to fund this project, 2) there have been extensive improvements to Grand River and 12 Mile in preparation for the closing of the Beck Interchange, 3) it is considered dangerous and in deplorable condition, and 4) it is the future site of Providence Hospital and the Novi Expo Center. This translates for our area jobs and economic development, which would result in revenues this State truly needs. Finally, she believed Governor Granholm must use this interchange traveling to and from Lansing because she lives in Northville. Senator Cassis asked for help from Council deciding how best the community could represent Novi’s need to the Governor.

Member Sanghvi asked what type of mechanism she would suggest? Senator Cassis suggested a letter from Mayor Clark and/or a resolution of Council outlining the progress to date. She also encouraged community members to write or email the Governor, as that would also be helpful and important. This has worked in the past.

Senator Cassis noted they had been meeting with officials and citizens around the district. She said every quarter she would invite officials, City Managers, supervisors and Council Members to meet from the surrounding communities. It allows officials to meet and network with other officials and share common issues. These meetings provide good feedback both from Lansing and to her to bring back to Lansing. Another meeting is scheduled in Novi on May 2, 2003. On March 27, 2003, Member Sanghvi and his wife, Novi School Board members and administration came up for a day in Lansing and it was extremely productive and they helped her work on a parent/guardian bill. Senator Cassis thanked Assessor Glenn Lemmon who testified before the House Tax Policy Committee on a package of bills that she had been sponsoring that would change the Homestead Tax Exemption to the Principal Residents Exemption to clear up any misunderstanding. Sheryl Walsh was also recognized for providing Novi pins for her to hand out as a "treat", as is custom, when a Senator or Representative passes their first bill.

Mayor Pro Tem Bononi recognized Cindy Uglow for winning the Zoning Compliance Officer of the Year in the State of Michigan and congratulated her as she represents Novi in a very high standard.

Mayor Pro Tem Bononi presented Mike Harris with a proclamation and proclaimed the week of April 13^th through 19^th as Paralyzed Veterans of America Awareness Week.

Mike Harris stated they are located on Grand River between Meadowbrook and Novi Roads and have had a great working relationship with the community. He noted they would have an

open house on April 17^th from 12 p.m. to 4 p.m. and invited everyone to attend. Mr. Harris said, on behalf of their membership their thoughts and prayers were with the active military veterans serving in Iraq and Afghanistan and hoped they would be home quickly to their loved ones.

CITY MANAGER

Mr. Helwig noted Oakland County Executive L. Brooks Patterson has declared Oakland County in a state of emergency due to the recent ice storm. He has asked all communities in Oakland County to submit by April 8^th any damage assessment reports. He asked that if anyone had damage related to the storm to please call the City Manager’s Office or Craig Klaver at 248-347-0445. The information would be used to seek reimbursement for the community. Mr. Helwig thanked Senator Cassis and Representative DeRoche for their assistance with the interchange updates and for placing it at the top of their agendas. Mayor Pro Tem Bononi stated they would be looking for a letter and/or resolution of support as soon as possible.

Diana Canup, representing Pioneer Meadows Homeowners Association, would like to be assured that this item would be addressed this evening since it was postponed very late at the last meeting. She asked for assurance their item would be addressed.

Barbara Reed, Connemara Hills resident, received information regarding wells and health issues. She contacted Oakland County and they don’t have any information that a problem exists. Fire safety – she feels Novi is equipped to handle that.

Linda Tomasso, Connemara Hills resident, stated her well test positive for coliform bacteria. She received a call on March 31, 2003 from Oakland County telling them not to drink or cook with their water. She is concerned about whether her water is safe to drink on a daily basis. She has to replace her sediment filters that cost $80 each. Also, they have to do other things for the upkeep of their well.

Mayor Pro Tem Bononi asked about whether or not the city receives copies of such a report that Ms. Tomasso received. She asked Mr. Helwig to look into this.

Kim Wagner, Christina Lane resident, noted that the community wouldn’t be able to use Catholic Central’s facilities including the wetlands, woodlands, gym time, etc. She didn’t think it was needed because Island Lake has a lake and the gym time won’t be available with 1100 boys going to the school. She stated other churches have followed the rules including Holy Family and St. James. Regarding community service hours – most boys come back to their own churches to do their community service hours. We

already have the National Honor Society that has 40 hours each and often beg for hours to complete their service. She claimed Eagle Scouts were turned down because the

City of Novi couldn’t allow it due to Union concerns. Also she felt the time period should be shorter than 10 years. She thought 5 years would be better. She noted property taxes will also be lost and we can’t give them the trees too. Special interests aren’t what the residents want. Parents of Catholic Central students don’t pay taxes here.

Mike Czarniecki, 45332 Byrne, noted in their Council packet was a proposal from him to expand the district. He also had his water tested on March 27, 2003 and said that during the testing process you have to be very careful and that might be why the test results were positive for coliform. He asked to delay the decision and expand the SAD in order to reduce the cost. They outlined the costs if expanded and also noted the cash outlay as he felt his proposal would better serve the entire neighborhood. He asked for costs related to adding only 5 more homes. Even with that it would save people $1300 and he gave further estimates for further time lines to pursue this proposal.

Michael Meyer, 41880 Malott, supported Catholic Central coming to Novi and encouraged them to replace all the trees. He felt it would be a tremendous asset to the community and asked Council to do everything in a collaborative effort to get them to come here.

Greg Budde, 48690 Aberdeen Dr, graduate of Catholic Central and has a 2002 graduate with 3 more sons attending the school. He thanked Planning Commission members and noted Catholic Central has a lot of loyal alumni. When the school left the Detroit Area in a 1970’s, they went to Redford for what was to be a 10 year temporary location. He thanked Council for allowing them to come to Novi. They do have a track record of providing use of their facilities to the community.

Anthony Tomasso, Connemara Hills resident, stated their SAD had already been delayed by a month. First was a letter from Council asking if there were any protests. He noted there is real support with a final vote of 12-5. His concern is that the SAD process is overly long. He felt Mr. Czarniecki was gerrymandering the SAD into areas that do not support it. Mr. Laycock voted against it and he already sold his house and thought the new owner should have a vote. Mr. Brian Thorpe doesn’t live in his house but rents it out. Even though he is financially responsible, he doesn’t live there. Both groups are spending money on things they don’t want.

Omar Zeru, Galway resident, just bought the house 1-1/2 years ago, almost didn’t buy the house because of well water. He wants city water just for the fluoride in it as he is a dentist. He will have to give fluoride supplements to his child but doesn’t want to. He also felt that with the vote of 12-5 or 12-4 it should move forward.

Ken Bruin, 45331 Byrne, - lived here 12 years and came to Novi for the atmosphere and thought eventually he would be able to take advantage of city water. He spent $11,000 in the time he’s been here just to take care of the well and doesn’t mind spending money to get city water. He changes his own oil and is concerned about no place to recycle it. When you don’t have power, you don’t have water. Fire hydrants – he questioned whether or not trucking in water was safe. He was concerned about the buyer’s market dropping 50%.

Linda Mulder, 21641 Kilrush Dr, wants city water, and she wants the choice to invest her money in city water, not well water. She doesn’t want her health at risk with unknown pesticides, etc. Her water would have to be tested every day. This is an investment in the quality of her life. This SAD started last spring and now with the vote of 12-5, they want to have Council decide to move forward.

Judy McNeal, 21772 Kilrush, wants city water and wants Council to pass the SAD. Health, safety and environmental factors are of the utmost concern. She felt that 12-5 was a mandate to move the process forward.

Approve Minutes of:

1. March 3, 2003 – Regular meeting

2. March 17, 2003 – Regular meeting

3. March 29, 2003 – Special meeting

Schedule an Executive Session immediately following the regular meeting of April 7, 2003 in the Council Annex, for the purpose of discussing pending litigation.

Approval to award bid for one (1) senior van to Tesco Transportation Sales Corporation, the low bidder, in the amount of $33,960.

Approval to award bid for Lakeshore Park Roof Replacement to JMK Roofing, the low bidder, in the amount of $6,450.

Approval to award bid for one (1) mower to Marks Small Engine, the low bidder, in the amount of $7,775.

Approval to award quotation for one (1) Guardian 72" recycler mowing deck for a Toro Groundmaster Mower to Spartan Distributors, the low quotation, in the amount of $4,416.23.

Approval to purchase a Gear Grid Wall Mount System for Fire Station #4 from Mid-Minnesota Wire, a sole source vendor, in the amount of $5,174.73.

Approval to award Spring 2003 Street Tree Planting bid to Will Gould Landscape, the low bidder, in the approximate amount of $72,000.

Approval to award the construction of the masonry screen walls to enclose an air conditioning unit at the police building to Sardo Construction, the low quotation, in the amount of $3,500.

Approval of proposal in the amount of $3,500 from MARSH, USA, Inc. to prepare a Request for Proposal document, and review proposals for self-funding the City of Novi health care insurance program.

Approval for reservation and use of a tour bus for two (2) senior trips to Carr’s Motorcoach Tours, the low quotation, in the amount of $4,200.

Approval of resolution supporting and approving Road Commission for Oakland County to re-time traffic signals with Federal Congestion Mitigation and Air Quality funds. (100% Grant).

Approval to reject the contract award of the South Lake Court Storm Sewer Project to Kneisel Construction. (This bid has been replaced by the bid to Sunset Excavating, Inc., which is item #8 on Matters for Council Action).

Approval of Claims and Accounts – Warrant No. 646.

Special Assessment District No. 165 and to include Resolution

Member Lorenzo said Mr. Fisher had given Council an opinion letter regarding the ability to combine some of the steps in the SAD such as 1 and 2, 3 and 4. On the agenda this evening Items 3 and 4 will combine steps 1 and 2. She asked why steps 3 and 4 weren’t combined on SAD 165?

Mr. Klaver said in the instance of Connemara Hills where Mr. Tomasso circulated the original petition and brought it to the administration, he explained that it had gone to the larger neighborhood on two different occasions and was voted down in both instances. So, when they brought it to the attention of Council they asked that it not go out to the broader neighborhood. In the case of Pioneer Meadows the residents on the interior of the subdivision who were not included in the original SAD went out and passed petitions and came to the City with a demonstrated majority of those who wanted to be added to it. These are two different situations.

Member Lorenzo felt he misunderstood her question. She said on tonight’s agenda Council is combining steps 1 and 2 for Pioneer Meadows SAD’s because legal counsel said Council had the authority to combine steps 1 and 2 and perhaps 3 and 4. She asked why Council was not being consistent in also combining steps 3 and 4 for Connemara Hills? Also, could Council just vote on adding step 4, which is setting the public hearing so it could be done tonight, which would save these people about another month?

Mr. Fisher said he didn’t know what the prerequisite was for step 4 and Member Lorenzo said it was the setting of the public hearing. Mr. Fisher said the only other issue would be the language of the resolution and if it were indicated that it would be consistent with the language of the standard resolution of the City Council in the past, it would probably do the job.

Member Lorenzo amended the main motion to include Resolution #4 and that Resolution #4 conform to the standard form of resolution adopted by the City in the past.

Member Csordas accepted the amendment.

Mayor Pro Tem Bononi asked Mr. Fisher if this would be based on a case by case basis with regard to how this process would be condensed/collapsed or would we presume that would be done? She asked if they would have to cement that procedurally?

Mr. Helwig said City Council had asked the administration, as a City Council goal to review the SAD process and that is in process. Mr. Coburn has contacted numerous communities and he and Ms. McClain would be coming before Council soon with that information. He thought they would recommend consolidating the process whenever possible. Mr. Helwig asked what date should be chosen for the public hearing?

Mr. Fisher said a date for the public hearing needed to be included in the motion.

Member Lorenzo suggested April 21^st or May 5^th. Ms. McClain stated May 5^th would allow for enough time to hold the public hearing. Council consensus was to have the public hearing on May 5^th.

Member Landry said the communications he received on this SAD had been some of the most cogent well-reasoned and respectful communications he had ever received and this made Council’s job a lot easier and he commended this particular group for the numerous communications they received. He stated he would support the motion.

Member Lorenzo asked if someone in the subdivision chose to file another petition with additional homes within the SAD, could it run concurrently with this? Mr. Helwig said they had talked with Mr. Fisher about this and if the timetable permits concurrency, yes. Member Lorenzo said if the members of the SAD were in concurrence with the inclusion it could then be a revised SAD, which is what is happening here.

Mr. Fisher said there would be two ways to approach it. Do a separate SAD and it could go through the standard process but if it was a small enough group of people it could be done by contract. If they were going to be added to this SAD, they would have to consider the individual properties to make sure that they were rational and feasible from an engineering standpoint to add to this district. The project would have to be looked at from the standpoint of the existing homeowners in the SAD and from their standpoint it shouldn’t be a problem as long as it is not a delay because they would pay less. Also, from the standpoint of the people that would be added, an express written signed waiver would be needed from them waiving the notices, etc. that have occurred up until this point in time. If these things were done they could be added to this SAD.

Member Sanghvi said fresh, clean water should be a birthright of every human being in this world and he didn’t see any reason it should be considered a special privilege in a

City like Novi in this day and age. There should be no hesitation in providing city water to anybody who wants it. He would support the motion.

Father Richard Elmer, Catholic Central High School President, was present. Father Elmer stated he had sent a letter to Council and the Planning Commission that expressed his views and willingness of Catholic Central to change their initial approach to this matter and to abide by the ordinance requirement to plant the trees.

Mr. Helwig asked if Council had received the correct final version prepared by the City Attorney. He thought the key points for Council’s consideration were to qualify for a time extension, which is all that this is focusing on now for meeting the tree replacement. It must be a not for profit entity and must be preserving a minimum of 50% open space. The difference from the 60 being to include storm water detention facilities and preserving open spaces is not appropriate so it has been reduced to 50%. To qualify there would be a minimum tree replacement requirement off site of 2,000 trees. This would be reviewed by the Planning Commission as part of the final site plan review, which must come back to them as early as next month. Mr. Fisher said in addition to the above conditions the 2,000 trees would create a minimum threshold of burden upon a property owner, which would mean that the Council is drawing a line at 2,000 trees saying that when a property owner has to replant 2,000 trees and meets all the other requirements of this provision, then they would get consideration of the immediate planting obligation. The next indication for special provision is "that the precise number of years allowed for the completion of replanting shall be determined based upon a demonstration by the applicant that unless an extension for the requested period of time is granted, the applicant shall be impaired from carrying out the activity for which the land is being developed." Mr. Fisher thought this was extremely relevant in this situation for distinguishing this from other instances of proposed application of the ordinance.

Member Lorenzo asked, with regard to the non-profit entity, is there a law or case law that provides for non-profit entities to be treated differently than other applicants with regard to local land use regulations? Mr. Fisher said the question of whether one entity/applicant could be treated differently under the law depends upon whether or not the distinctions are rational. Unless getting involved in certain protected areas of the law, but in this situation, the burden on the City would be to show that the distinction is rational. The law created by the legislature does distinguish between non-profit entities and profit entities both in terms of how they are established, what their by-laws would be and what their Articles of Incorporation are. In addition, the tax treatment is in most instances different for a non-profit than a profit corporation for property tax purposes. Particularly in this context, the issue is whether or not the entity would have the financial wherewithal to carry out the replanting obligation within a certain period of time. By the very nature of a non-profit the idea that they are not expected to be in operation to make a profit and to have money, he thought this should be deemed to be rational. Mr. Fisher said he had not researched case law.

Member Lorenzo said although the legislature makes certain distinctions for non-profit there is no legislative or other legal distinction with regard to compliance with land use regulations?

Mr. Fisher said he was not aware of anything expressly stating that. The test would be whether it would be rational in this context.

Mayor Pro Tem Bononi asked if Mr. Fisher was saying that non-profits would not be expected to have assets whether they are investments, endowments, etc. which non-profits might hold and their ability to pay their required assessments, bills, etc. We are not presuming an inability to pay are we? Mr. Fisher said no, but the point he was making was, for example, a non-profit entity such as Catholic Central is excused by the legislature from paying property taxes and the rational relationship between the two is that it is a non-profit entity and not designed to be in business to make a profit. It is to provide a service and therefore there is an excuse from paying certain governmental obligations.

Mayor Pro Tem Bononi noted she understood that. Paying a governmental obligation as opposed to complying with government requirements might be an entirely different thing. Is there a specific exemption in the law with regard to other requirements other than those specifically stated as exemptions for non-profits?

Mr. Fisher said there is a difference between "is there a requirement to exempt non-profit" and whether it is rational to do so? Mayor Pro Tem Bononi asked if there was a requirement? Mr. Fisher said no.

Member Lorenzo asked if the legislature wanted to exempt non-profits from land use regulations obviously they would have the opportunity to do so, which they have done with public schools. Mr. Fisher said theoretically they have not exempted public schools from regulations they have merely indicated that the regulations to be followed are those that come under the jurisdiction of the Superintendent of Public Instruction rather than the local government. She said she was talking about local regulations such as the Woodland Ordinance, and since they are exempt from site plan review they are exempt from the Woodlands Ordinance. Mr. Fisher said he wouldn’t admit that. Member Lorenzo asked if he was saying the legislation could have, if they chose to, exempted non-profits from local zoning laws to the extent they have with public school. She was not convinced that there was anything that the law would provide for the City even in rationale to do what the ordinance provision is telling/offering Council to do. Her concern was when talking about a non-profit, as they would be given a double dipping, almost, because they didn’t pay for the land and they’re not paying taxes on the land. Other applicants, not non-profit applicants, would not only have to pay property taxes but would also have to comply with the ordinances. She was concerned whether a court would consider this rational if comparing it with the abilities of other applicants given the circumstances of this case. If the Council’s desire was to craft an ordinance amendment, she would not be comfortable placing non-profit entities in it. She thought it was an issue of fairness and consistency across the board in how applicants are treated. There are other provisions in the document that she was not comfortable with such as the open space criteria of which she didn’t find defined in this latest draft. The purpose of the woodlands replacement is because the applicant has received the woodland permit for the removal of woodlands/open space. The ordinance is to preserve, protect and replace trees and has nothing to do with an applicant having other open space on the property. The intent is if trees are taken down, they have to be replaced.

She saw no relevance of general open space provisions in the document versus replacing trees. She said she, as a community, wants the trees. It is very specific so she would remove that from the equation if looking at this in terms of a better interpretation. Member Lorenzo noted she also had a problem with how hardship was defined. She said the hardship, as being proposed, is a financial hardship. Typically hardships are not financial in nature. She said when talking about exceptional hardships or a variance from the strict application of provisions, we are talking about "exceptional narrowness, shallowness, shape or area of a specific piece of property, exceptional topographic conditions or other extraordinary or exceptional conditions of such property." Now we are getting into this new area of considering financial hardships and she thought it was a very dangerous area and one inconsistent with anything she had ever learned about land use planning. Member Lorenzo said after a lot of thought she came to the conclusion that it would not be wise for the City to approve supervisory assistance for the planting of trees because of the liability issues. There might not be a cost to add Catholic Central to our insurance policy but if something were to happen and the City had to file a claim she thought the City’s premiums would go up in the future because the insurance adjusters would look at the claim/loss history. Member Lorenzo said the next issue was the cost of the employee to supervise the planting and the loss of that person to perform their normal job.

Member Lorenzo was not convinced or comfortable with an ordinance that tailors itself to the needs of one individual applicant. If the Council considers ordinance amendments, it should be because they are looking at an ordinance and deeming that parts of it need tightening up or clarification. There are parts of this ordinance she could support. The kinds of things she would be willing to support are:

1) Clarify the sentence that states "fix a reasonable time for the woodlands operations."

She suggested, "fix a reasonable time which all woodland operations including planting,

relocation and replacement of trees shall be completed." A reasonable time shall take into

consideration appropriate weather conditions for planting and the anticipated schedule or

phasing of other land alterations and construction activities on the overall site.

a. If this chapter requires off site replacement of 2,000 or more trees an extended

period of time, not to exceed 5 years, may be granted if an applicant demonstrates

that unless such a period of time is granted, an exceptional undue hardship would

exist that would impair the applicant from carrying out the activity for which the land

is being developed. The hardship would not include financial hardship.

2) If an extended period of time is granted the following conditions would apply:

a. The applicant shall submit an annual planting schedule including the sizes and

number of trees in accordance with the section of this chapter to be planted.

b. The City shall select the species and the location trees on an annual basis.

c. The replacement shall be planted in accordance with the City’s planting standards

per Section ____.

d. The replacement shall be warranty and in accordance within the City’s standards

per Section _________of this chapter.

e. The applicant shall provide a form of security acceptable to the City that ensures the

timely replanting requirement shall be fully and lawfully secured.

Member Lorenzo said it didn’t make a difference to her who planted the trees but they had to be planted in compliance with the ordinance standards.

Member Sanghvi thought everyone’s perception of this problem seemed to be different and we have lost the reality somewhere in the fog of uncertainty of this. He thought it was a simple problem now and that is that Catholic Central would plant the trees required by the present Woodland Ordinance. Also in question, is whether they should have ten years to do it and he had no problem with that either, as it would give Council time to decide where they want to put them. As far as the amendment itself is concerned he thought they were getting to bogged down in micro details. The simple solution is we already have a fixed reasonable time in which any woodland operation must be completed and if Council defines a woodland reasonable time as ten years then there is nothing further to discuss and no further arrangements to be made. He thought they were making a big thing for a very small problem. It was a very different issue when the discussion started and that issue is not an issue anymore, it doesn’t exist. Why are we spending so much time on such a simple thing? He said fix a reasonable time in which any woodland operations has to be completed up to ten years. Let’s take everything in the spirit of what it is supposed to be rather than making a mountain out of a molehill.

Member Csordas asked what the enforcement mechanism of the revised agreement would be as far as if in three years there was an issue where that year’s plantings would not take place?

Mr. Fisher said under the ordinance there is a contemplation of security for these types of plantings and what he had provided was taking into consideration that if the Council saw fit to adopt a ten year period this would be over a long period of time and buying a letter of credit or corporate security bond might be difficult. Therefore, he provided that an applicant could propose a form of security to be filed with the City but the applicant must demonstrate to Council that the timely replanting requirement shall be fully and lawfully secured. It left open the prospect of the applicant presenting something that might be creative and not devastating to the applicant but at the same time the obligation must be there that the replanting requirement would be fully and lawfully secured. How that would be accomplished has not been discussed but he was sure there were mechanisms for doing that such as putting upland that could be sold or land that could be taxed and the City recouping its money in that fashion or something of that sort. Mr. Fisher said there must be some security posted to make sure that this process that would be carried on for ten years would be undertaken and if there is a breach of it then that security would come into play and carry the project out.

Member Csordas asked if that would imply that there would be an addendum agreement to this ordinance? Mr. Fisher said no, it would be something that the applicant would propose and the Council would approve as part of the authorization for extending the time and there might be a written document other than corporate surety or letter of credit. In which case it could be considered to be an addendum of some sort. Member Csordas asked if there were any possible retroactive legal actions that might be spurred because of something like this? Mr. Fisher said, in his opinion, there would not be. This would be a prospective ordinance and something that people would be applying for and being granted from this point forward and you would have that issue no matter what kind of ordinance was adopted. Also, this proposed provision has the four prongs of criteria that was discussed earlier that would distinguish a "hardship" from a non-hardship situation.

Member Csordas questioned whether a Woodlands Ordinance revision was necessary? He said they had a March 21^st letter from Father Elmer that seemed to be a very fair and reasonable solution to this issue that would bring this petitioner into compliance over a set period of time. It seemed fair and reasonable so, rather than revise any ordinance, wouldn’t it be simpler to develop a business agreement with this entity outlined basically on the five bullet points in the letter. It seemed like a sound business agreement and he asked Mr. Fisher what he would think about a business agreement. Mr. Fisher said from a business standpoint Member Csordas was right that the business agreement would make sense. However, from a legal standpoint the gap or the short point would be that when a subsequent property owner came in that had a significant replanting obligation and demanded that the obligation be extended over a five or ten years period, there would be no standard in the ordinance to distinguish the treatment of that property owner from any other property owner. What is needed in the law when administrative decisions are being made is reasonable standards in place in order to distinguish one from the other or we would be facing a very clear challenge to whether or not we could deny an extension in the future to most property owners. Member Csordas thought that made sense and asked if he thought it would be reasonable to insert simple language into our existing ordinance that would set that time limit understanding that everyone that came before Council would want whatever the maximum amount would be. Mr. Fisher said it depended on how they wanted to write it. He said his directive last time was to prepare an ordinance provision that contained the elements that Council Members had put forward, which he tried to do. He thought this could be done with fewer words but it wouldn’t have all the criteria that he was directed to put into it.

Member Csordas asked how the location of the replacement trees was determined? Mr. Fisher said the property owner would make a proposal and it would have to be approved by the City. Member Csordas asked if the City could take the lead on that?

Mr. Helwig said the City Forester works with applicants as to the priority replacement sites within the community. This is a tremendous opportunity to have whatever number of trees over whatever number of years placed in our community with attention to species, location and soils and to coordinate that so that the longevity and stability of our urban forest is on the up swing. Member Csordas said that is great because the City would have a ten year time frame to cushion against whatever blows might come down the road. As a practical matter he didn’t know that there’s another piece of property in the City that was held by one entity that would have this type of an issue in front of it.

Member Csordas read a statement from the document that said "Catholic Central students as part of their community service requirement will be allowed to do the tree planting under the coordination and supervision of Novi personnel." He thought coordination might be just our forester saying "put one there, see you later" don’t need to be there. He didn’t know if supervision of City personnel would be necessary because he thought there would be supervision of Catholic Central personnel, which have a much greater interest in how the students were out there planting trees because it would most likely be their parents who would have a much higher interest in them.

Member Csordas went back to his original question, is the woodlands ordinance revision necessary? As a practical matter a business agreement would make a lot of sense but maybe it doesn’t protect the City much. He asked Council to consider it because a business agreement per this special situation might be appropriate.

Member Landry said the zoning power of a municipality is rooted in police power. A City has the ability to make distinctions and decisions but it required that the City wield that power based on a rational relationship. It has to be a rationale relationship for the reasons it would be wonderful for a City to be able to say yes to this person and no to that person but that can’t be done, as there must be stated underlying rational in the ordinances or decisions would not withstand judicial scrutiny. This proposed ordinance made clear that the City Council has the ability to make distinctions as to the timing of tree planting and states the distinction or basis for making that distinction. In this situation Catholic Central is saying they will plant the trees but they need more time. What this proposed ordinance does is give the City the ability to consider that request and gives the Council the ability to make that determination. What we are not deciding tonight is whether an applicant should get 5 years or 10 years, we are not deciding whether Catholic Central is impaired as that standard is placed in here and we are not deciding whether the City should give supervising assistance to the planting of these trees. All we are doing tonight is amending the ordinance and stating the basis upon which such a proposal should be considered by the City. If this ordinance should pass then Catholic Central or any other applicant would be directed to go to the Planning Commission, discuss all these issues, attempt to come up with an agreement and come back to Council and then Council would decide whether to supervise or not, should it be 5 years or 10 years. Without this ordinance Council cannot even begin that discussion. It would be great to just say "whatever time the City Council wants" but he thought it would be very dangerous to do that. Member Landry said all they are deciding was whether the City legally had the ability to consider that request. At a later time it could be decided whether it is 5 years or 10 years, where the trees would be planted and who would plant them, etc. Without this Council wouldn’t have the ability to make that consideration. Member Landry said he would support the ordinance.

To approve Ordinance No. 03-125.14 to amend Chapter 37 of

Member Capello said he preferred the ordinance that was out about three weeks ago. It was very simple and gave Council a lot of ability to enter into a business or development agreement and get down to where we are now getting into with this ordinance and all the fine details. Perhaps some of Member Lorenzo’s comments need to be discussed when the decision is made and the Catholic Central proposal is reviewed. He thought the ordinance was already an ordinance with one specific person in mind for one specific property and he didn’t want to make it any more detailed than it is. He said he would support the ordinance.

Member Sanghvi said they are trying to solve a problem that doesn’t exist any more and the only problem that remains is how to find a mechanism to allow this particular applicant to plant trees over a period of ten years. Just for the sake of doing that, this whole process doesn’t sound very justifiable and necessary to him.

Mayor Pro Tem Bononi said her concern with this ordinance amendment is with the Woodlands regulation itself and specific needs and desires of applicants for profit or non-profit. She was looking at fundamental fairness, balance of application, the likelihood of others under

limited specific circumstances because that is what we are talking about. She didn’t know if she agreed with the position that the current ordinance does not already provide relief. She

believed that it did, it is just not specifically the relief that this applicant wants. It is relief but not to the degree that the applicant wants it because the ordinance already provides for that relief. Plant the trees, put them somewhere else, plant them on the site later, or put up the money. That is relief. In this ordinance she would like to see more concentration on phasing requirements and limitations that applicants of large sites have. She saw phasing limitations as coming forward in the not too distant future and she had heard that a few other applications for proposals would be coming before Council. If Council could provide, in some way, phasing relief as opposed to determining it’s going to take ten years to plant the trees because not all developments would be looking at phasing in the same way this applicant is, when tailoring ordinances to particular applicants, this is hoisting yourself in your own pitard. She was concerned that phasing had not been defined in this ordinance and felt it should be to the benefit of other applicants as well.

Mayor Pro Tem Bononi noted she was also concerned with the profit versus non-profit designation with regard to the question she addressed to Mr. Fisher. Simply because an organization is non-profit doesn’t mean it doesn’t have assets or the ability to pay its bills. Planting trees is no different than hiring a contractor to cut the grass or to hire an athletic specialist to fertilize the turf; all those other things to take into consideration with regard to the finances it would take an applicant like this one or any other just to maintain their facility. Trees are a part of the physical plan that by our ordinance is required to be planted. She said she was looking for phasing requirements in an ordinance and a "time not to exceed" and she thought ten years was too long and would not agree to that. She also had concerns with regard to how do we address the other concerns brought forward by at least three members? Is Council talking about looking at adopting an ordinance with this general language and then applying conditions of approval when specific questions are asked about how supervision would be provided. How would a plan set be required and where would all of these things be addressed if the ordinance is approved as is?

Mr. Fisher said the ordinance as drafted essentially creates a "tool kit" to craft a specific approval. It gives tools to not only craft a specific approval but also to say no in the future to another applicant who you don’t think deserves this kind of relief and both of those aspects are of equal importance and maybe the second aspect is of greater importance in the long term.

Essentially Council would have the tools to utilize when the request is made to have an extended period of time to determine the number of years involved and whether or not there would be supervision and imposing conditions with regard to that supervision making sure there was adequate insurance and security to make sure the replanting is carried out.

Mayor Pro Tem Bononi asked what specific application would we be conditioning; the woodlands permit, the site plan approval process or the landscaping process? Mr. Fisher said it would ultimately be the woodlands permit because it would be something being undertaken pursuant to Chapter 37. She asked if he felt there should be a reference to the fact that City Council and/or the Planning Commission has the ability to attach conditions of approval to address specific performance standards in the general language? Mr. Fisher believed they were there. She asked where? He said it’s throughout.

The Council is given the authority to extend the period not to exceed ten years and then the ordinance provides for a mechanism to make the determination of how many years. Then, in terms of the supervision issue, the request for relief by a non-profit entity under this paragraph may also include the following: the applicant may request and the City Council may approve with conditions that supervisory assistance from the City Department of Parks and Recreation and Forestry would be provided as part of the applicants replanting operation. That is discretion number two and three in a sense because you don’t have to require the supervision but you may do so and if you do, you can impose reasonable conditions as part of that process. Then you would be determining, in your discretion, what adequate insurance coverage and security there would be as part of the process.

Mayor Pro Tem Bononi asked if he would have difficulty with the amended language? She was referring to taking the point of reference "burden of complying" with simply removing "burden" and referring to compliance with this chapter? If not getting involved in defining what hardship is it would not be a presumption, on her part, to suggest that there is a burden herein. If getting into burden, then she would ask what the burden is but she didn’t think they wanted to go there. She suggested removing that and say "and the compliance with this chapter will include an obligation to replant". Mr. Fisher agreed.

Mayor Pro Tem Bononi said with regard to the version of the ordinance received this evening she asked if the number "2,000 or greater trees" was in this language as well? Mr. Fisher said it was in the second line from the top. She noted the only sticking point she had was the ten years as she thought it was too long. Mr. Fisher said that was a policy matter for the Council. She suggested amending the language "not to exceed seven years". Member Landry accepted the amendment.

Member Sanghvi said the entire concept of this amendment started with the premise that this particular developer could not replace the trees on the site. That premise is gone because they have said they would replace all the trees as required by the ordinance. He said he could not understand why we are going through all of this rather than giving them permission to get on with this? The basic premise on which this amendment came about does not exist anymore according to Father Elmer’s letter and he has complete faith in Father Elmer. What’s the need to do all of this when the premise doesn’t exist?

Mr. Fisher said the premise Member Sanghvi was referring to was the replanting requirement could not be accomplished on the site. The ordinance contemplates the first priority being replanting on the site and the second being replanting off the site and if that is not done, putting money into the tree fund. All of those things are within the ordinance already and so if the proposal is to comply with the ordinance but over ten years, that opens the door to not only plant on site but plant off site as well.

the provision to allow a reasonable time period to up to seven years.

Mayor Pro Tem Bononi asked if that made the issue cleaner? Mr. Fisher said it might give Council the tools to make the decision for one property owner but it gives no tools for distinguishing and saying no in the future. Mayor Pro Tem Bononi agreed.

Member Lorenzo asked if adding any phasing requirements add any value to that? Mr. Fisher said it would also not give Council the tools to deny in the future. Council needs standards for distinguishing one applicant from another. She asked what the standards were? Mr. Fisher said a) would be the requirement to plant 2,000 trees, b) the finding that the applicant would be impaired from carrying out the activity for which the land is being developed and c) would be the non-profit status.

Member Capello said then on page 2 of the ordinance received this evening where the highlight starts, "if an extension is granted" if we just take the ordinance and stop it after permit would we have done everything Member Lorenzo wants to do? Mr. Fisher said his understanding of the intentions of Member Lorenzo’s amendment would be to retain the language down to and including the sentence "the precise number of years allowed for completion of replanting shall be determined" etc. So it would be the sentence after the highlighting.

Member Lorenzo said if talking about the second part, it would not start as it does now. It would not include the 50% of gross amount of open space, it would only speak to complying with this chapter including the obligation to plant 2,000 trees, up to ten years and that’s it. The reason behind that would be the impairment.

Mayor Pro Tem Bononi said Council would address the last amended motion made by Member Lorenzo that would address only 2,000 trees, a term not to exceed seven years and impairment demonstration.

Mr. Fisher asked if roman numeral I would be in there? Member Lorenzo said yes.

Ms. Cornelius said the amendment was just voted on and now Council has the main motion as amended. Mr. Fisher concurred. Ms. Cornelius re-stated the main motion as amended, which was to remove the word burden and the time not to exceed seven years.

Member Landry said the motion was not clear. He said his motion was to pass this with the Mayor Pro Tem Bononi’s two friendly amendments was overridden because Member Lorenzo

asked to amend the main motion further to strike everything except the 2,000 trees, not agree to the seven years and the impairment and that passed. So, isn’t the matter over with?

Mr. Fisher said technically the amendment was to amend Member Landry’s motion by deleting certain things. Member Landry said now we have to vote on whether, as amended, Council should adopt that ordinance. Mr. Fisher said yes and suggested that Council was at a point

now where he thought there could be, among reasonable people, disagreements in terms of where they are and suggested that he take a draft of this and write it up to make sure that everybody was in agreement with what they have. Member Lorenzo thought it was clear and Member Csordas said he would like it redone. Mr. Fisher thought he could prepare it and bring it back after the Council break.

To approve Revised SAD Resolution Number 1, Authorizing the

To approve Revised SAD Resolution Number 1, Authorizing the

Mayor Pro Tem Bononi announced that Council would take a break and return to address the new language for the Ordinance Amendment that Mr. Fisher would produce forthwith.

Mayor Pro Tem Bononi noted Council would address the ordinance amendment regarding the tree ordinance, Chapter 37.

Mr. Fisher advised Council of the new draft of the ordinance placed at their table and additions and deletions and with modifications. The issue he had was whether or not the last provision was intended to stay in.

Mayor Pro Tem Bononi explained that #2, ii was removed, the ten year period was changed to seven years, burden of complying was changed to compliance and from mid point, the sentence beginning "in calculating whether the 50% minimum" down to "so supervised and" is stricken and the remainder of the paragraph remains in. Mr. Fisher concurred.

To amend this ordinance by removing the seven years and

DISCUSSION

Mayor Pro Tem Bononi asked what brought Council to the difference of the original amended motion that was approved from seven to ten? Member Sanghvi said he thought ten years was a more reasonable time to get things organized in a proper manner and it can be phased as needed in the different areas of the City.

Member Landry said Council is not deciding whether it is seven or ten years tonight. It is just the parameters with which the ultimate agreement, if reached, would be made. He would be in favor of the longer period of time to allow both the Planning Commission and City Council more discretion.

Ms. Cornelius restated the motion.

To approve the ordinance amendment with all the changes as provided by Counsel Fisher and replace the term of seven years with ten years.

Mr. Fisher asked if the last paragraph would be in and Member Lorenzo said it would.

Mr. Evancoe said this is the final preliminary plat for this development. The Council previously approved the tentative preliminary plat, which set out the basics and design of this subdivision. At that time, Council instructed that Malott Drive be included within the development and so the item before Council reflects that.

Richard Lewiston, proprietor of the subdivision, said on October 7, 2002 Council grant tentative approval to the proposed plat of Orchard Hills West subdivision. The plat submitted this evening is precisely the plat granted tentative approval at that meeting. The engineering plans for the subdivision have been submitted to the City for review. Minor corrections had been suggested and he agreed to all of them and they are in process. The plat will be exactly as was the plat approved in October.

Member Lorenzo noted the engineering was her biggest concern, specifically with regard to storm water. She spoke to Mr. Croy this morning and asked Ms. McClain to clarify. On page 3, #18 of Mr. Croy’s engineering review, indicates that "unrestricted discharge into a regional detention basin is planned for this site". She said Mr. Croy was not able to identify the regional detention basin. Ms. McClain said the regional detention basin is Meadowbrook Lake. Member Lorenzo said that lake is having problems and major dredging is being planned when funds are accumulated. Ms. McClain said that was part of the CIP proposal in this budget. Member Lorenzo asked how unrestricted discharge into this basin impacts the already malfunctioning of that basin? Ms. McClain said the unrestricted discharge is a fairly low volume and has been estimated to be about 13 cubic feet per second. When the up stream storm would hit there would be a much, much larger, 130 CFS surge that comes through. This initial amount of 13 CFS would be well ahead of the higher number coming from up stream. A lot of that area is the Main St., Novi/Grand River intersection area that comes down currently un-detained through that and arrives approximately 10 hours after the peak of the storm. So, this peak would be a small peak to go through and then a larger peak would follow. This would keep it out of the higher water and keep it in the smaller range.

Member Lorenzo asked who designated Meadowbrook Lake as a regional storm water detention facility? Ms. McClain said it is designated in the current Storm Water Master Plan.

She asked if it was developed for the purpose of receiving developed storm water flows? Ms. McClain said yes, among other purposes such as being an amenity to the neighborhood. Member Lorenzo thought lakes and waterways should not be designated as regional storm water detention facilities. It degrades them. She said other engineering firms have called Walled Lake a regional detention facility and on behalf of the community she was very offended by that, as it devalues the lake as a water resource.

Ms. McClain said all lakes, including the Great Lakes, are detention facilities of storm water. That is what a lake functions as. When the subdivision was constructed and Meadowbrook Lake was built, it was built to provide detention as well as an amenity and they can have two purposes. Member Lorenzo asked if these were shown on a plan or did a City Council designate and adopt them? Ms. McClain said the Storm Water Master Plan was adopted by the City Council. Member Lorenzo asked if it was adopted with all of the designations or were they separate? Ms. McClain believed that when the Storm Water Master Plan was adopted they also adopted that designation as a regional detention facility.

Member Lorenzo said with regard to this plan not having any onsite detention she asked where that requirement or lack thereof was in our Design and Construction Standards because what she is reading is "all new developments shall provide on-site storm water holding facility". Ms. McClain asked where she was reading that. Member Lorenzo said she was looking at Chapter 11, page 711, Sections 11 103-11-120, Article 5 Storm Water Holding Facility Section 11-121.

Chapter 12 it also address on-site detention.

Ms. McClain said we do and we have allowed off-site detention when a fee is paid for regional detention; that is part of our ordinance. She asked if it was at Council discretion and who was allowing it?

Mayor Pro Tem Bononi believed that an engineer she was acquainted with provided such an off-site detention basin that two neighborhoods share and was approved by City Council. It is a Council decision. Member Lorenzo said then it is a City Council discretionary approval. She asked Ms. McClain why she was recommending that they don’t place an on-site detention facility? Ms. McClain said one of the reasons was that on-site detention would not significantly impact the downstream because of the low flow coming off of it and the impact to the wooded area and the wetland area. As the tentative preliminary plat has gone through and was approved and if looking under the new Storm Water Ordinance they only have to comply to the extent feasible without having to remove an existing planned lot or reduce the number or size thereof, that would reduce that part under our new Storm Water Ordinance. The down stream regional detention does have the capacity to hold the water from this site. It is taking it currently and is also taking water from the existing subdivision. The discharge is still required to go through sedimentation basins and they are doing that and that is one of the reasons she is continuing to recommend that they use the off-site detention.

Member Lorenzo said she mentioned there wouldn’t be significant impact down stream, which indicated to her there would be some impact. She wanted to know what type of impact would there be in regard to water quality and temperature, to the environment in terms of the invertebrates and other aquatic species and she asked if an impact analysis had been conducted? Ms. McClain said as far as water temperature impact we typically do not do one. There would be more of an impact if it sat or was over a large paved area. This is mostly unpaved, it is backyard runoff and it goes through grass swales before it flows out rather than

collecting on a paved area, which would raise the temperature of it or in a detention area which would raise the temperature. It would run off before it had a chance to increase significantly in temperature.

The impact to invertebrates down stream she couldn’t speak to because she was not a microbiologist. Member Lorenzo asked if she had confirmed with Dr. Tilton in this matter. Ms. McClain said she had not. Member Lorenzo said she would be looking for the answers to her impact questions. She was looking for all forms of impacts such as flooding stages in all forms in inches of water. Ms. McClain said those had been looked at and there is not a detrimental impact. Ms. McClain said, based on her professional experience, over a basin the size of Meadowbrook Lake the impact in inches would be less than an inch possibly two because this is a large area. If looking at the area of Meadowbrook Lake and the area the water is running off on, it is going to be a small increase and a temporary one, which would be less than the surge coming from up stream because it would have passed through before the large surge comes from upstream. The surge from up stream would have much more of an impact than any runoff from this site. That surge exists today and doesn’t have a detention area along the way to slow it down and widen it out. Member Lorenzo said that was probably one of the reasons why Meadowbrook Lake is in the condition it is in. Ms. McClain said there are a lot of area that comes into Meadowbrook Lake and there are a couple of projects in the works to handle some stream bank stabilization to take care of some of the sediment accumulating in Meadowbrook Lake. When the dredging is done it would have much more impact on any micro or larger organisms living in the lake than a small increase in the water coming through it would. Member Lorenzo asked about the impact on the Walled Lake branches and the Rouge and what impact would the volume and velocity have on the actual stream? Ms. McClain said approximately 13 CFS for the outflow. Member Lorenzo asked if it would cause erosion? Ms. McClain said part of how they are bringing it into the stream would help to minimize erosion at the inlet point. It is at the same point that the existing runoff from the western half of Orchard Hills currently comes in some of that water coming in from Orchard Hills would come in from the new system and run down. There would be additional controls and protection there. The overall increase in water through the whole system in the City that is coming down through the Rouge is causing problems along the Rouge. This would not cause a more significant impact. We need to address some of the existing issues. This would not exacerbate those issues. Member Lorenzo said we are not saying this is not going to create an impact. Ms. McClain said every change creates an impact whether it increases or decreases water flow. Member Lorenzo said she didn’t see a positive situation; it is going to have an impact. She noted she was very disappointed and would not be able to approve this because she would like to have a report from Dr. Tilton because this is more his field to see if he thought this was an approvable situation or not and speak to some of her concerns. Ms. McClain said he would be able to address some of the environmental impacts such as water and invertebrates. However, the actual mechanical function of the streambed would be an engineering function. Member Lorenzo thought it was important for the two segments to get together when looking at these things. She felt Dr. Tilton should be involved in these things on a regular basis. Member Lorenzo was still not clear on why on site retention was not required other than it takes up more space. Also, there is a water quality basin and detention basins and water quality basins are sometimes one and the same. Ms. McClain said a water quality basin is an existing basin and would provide some detention for smaller year storms just based on the size of it. Member Lorenzo asked if it could be expanded for on site detention? She asked if there would be capacity? Ms. McClain said there would be some capacity there and based on its

location and proximity to the flood plain additional expansion of it in the direction that would be most logical, toward the waterway, would further impact that natural area that has been so important to everyone in this process. This was concluded from the previous reviews and the whole process in the design they had.

They did not re-invent the wheel by going back 9 years when this whole process started because that was not requested when this process started last year. They looked at what was approved with the tentative plat last fall that was based on previous discussions with neighbors, ad hoc committee, etc.

Mr. Hirth, Engineer with Warner, Cantrell was present and had been working on the project since its conception nine years ago. She asked if a down stream capacity analysis had been done? Mr. Hirth said no because of exactly what Ms. McClain just said. It all flows together. The reasons for not wanting a detention basin, speaking in terms of receiving water, the flows that come down stream peak and the peak flows occur at periods of time that are calculated and the study was done by JCK with a presentation to the Council showing the peak flow of the portion of the receiving stream coming down the lake as being a huge bell curve. The water that would be discharged from Orchard Hills West and the portions of the water from the existing Orchard Hills West precedes that peak flow by a half a day to a day depending on the intensity of the rainfall. At the hundred year flow, it precedes it by a half a day. Any capacity issues of the receiving waters are dwarfed by what happens within a day after water passes. If our water is detained, in most cases detention basins detain water for approximately a day, so what they would do is add up on the top of it. If looking at it as the stream was the baseline of things, then we would want those smaller portions of water both before and after the main flush so that the peak is lessened and stretched out. Anything that could be done to lessen the peak flow would certainly be an improvement to the soil erosion, water temperature, etc. Everything good imagined would happen if we do not provide a detention. The detention is provided for in Meadowbrook Lake, a constructed pond, and we are not increasing those peak flows, which is the representation made nine years ago and JCK did the hydrological analysis based on that information. He thought it was sound water resource management not to bring those peaks together. Mr. Hirth said they were asking that it be approved this way because it is the best thing to happen to the little stream that runs through our project. It is an asset to the City and to the development.

Member Lorenzo asked for concurrence from Dr. Tilton to approve this. Mr. Hirth said they went through an entire review, wetlands review, review of the plat, discussions of pros and cons to detention and they had no reason to believe that they needed additional support for something that is being recommended for approval by the Planning Commission, the City’s environmental people and engineering people at the time. Member Lorenzo said now we have Dr. Tilton and he was hired because of his vast expertise in these environmentally sensitive areas. If this is going to be approved tonight she would be looking for a letter of concurrence from Dr. Tilton. Mr. Hirth said they have gone through eight years of successive reviews by all of the consultants of the City including all those reviews, which were required as a matter of law in October 2002. In every such instance this plat has been recommended for approval and was approved in October and was re-recommended for final preliminary approval by those same agencies. Those are the people to whom this plat must be referred under the City’s laws and we have complied with those laws.

Mayor Pro Tem Bononi asked Mr. Fisher if it was appropriate, at any time in this process, if new information is requested by a Council Member to have such technical and professional information brought forward? Mr. Fisher said there is a realm of reasonability but in general terms yes. If there is an inquiry and it is reasonable then Council would want to look into it.

We want to be sure there is adequate time to do that because there are time parameters for the review and approval of plats and he would defer to the City engineer on that issue.

Mayor Pro Tem Bononi asked whether or not that response was asked of Dr. Tilton? Mr. Helwig said he was not aware if it was or not. Ms. McClain said she discussed this with Mr. Evancoe and at this point in the final review of the preliminary plat Dr. Tilton was not asked to respond as it is typically not reviewed by the wetland consultant. Mayor Pro Tem Bononi asked if such a request would come from Mr. Evancoe?

Mr. Evancoe said at the tentative preliminary plat stage that is when fees are collected from the developers, which then allows us to garner the reviews that are required by ordinance. That is the point the wetland, woodland, traffic reviews were sought and that plan was approved by the Planning Commission and City Council. At this stage no more fees are collected from the developer and that is the reason that Dr. Tilton wasn’t consulted not to mention that JCK has been the reviewer throughout the process. Mayor Pro Tem Bononi said the October 2^nd comments of the JCK wetland expert are also not included in this. She said per Mr. Fisher it is appropriate to ask for that.

Member Lorenzo asked if Council was approving their engineering? Mr. Fisher said indirectly they were. There would be additional engineering after this but at tentative preliminary they were approving lot layout and the road layout. She asked if they were approving the storm water management designs? Mr. Fisher not at tentative preliminary but at final preliminary is the approval the property owner receives and then is entitled to start constructing and that was when they would start approving storm water type issues. She asked if that was when this came back to Council? Mr. Fisher said not at this point, this is final preliminary. She said if she was going to vote positively on this it would have to be with Dr. Tilton’s concurrence of the engineering information that has been provided with regard to the environmental impacts or lack thereof to the Walled Lake branch of the Middle Rouge and Meadowbrook Lake. She believed that was reasonable to ask for that concurrence as neither is expert in that field. Mr. Fisher said as long as there is time remaining he deferred to the City engineer in that regard. Ms. McClain thought they needed to defer to the Planning Director as he tracks that process. Member Lorenzo said in the future when these two fields come together, when talking about engineering involving environmental impact, we should be utilizing Dr. Tilton’s expertise.

Mr. Evancoe said they were up against the time deadline prescribed by ordinance and by letter the petitioner has granted an extension of time, which is why this is before Council now. He didn’t have all the time frames but there is a requirement in the ordinance that is prescribed by State Statute for the time frame in which the City Council had to act on this request. It is a time frame that is impossible to meet so they regularly have to ask petitioners to give an extension of time in order to bring it forward to Council. They did, by letter, grant that extension so that it could be heard this evening as opposed to an earlier date. He thought they would need another extension from the developer to do that. Member Lorenzo asked why this matter did not come forward in a timely manner. This Council gave tentative preliminary plat approval on October 7, 2002. It is now April 7, 2003. Why did it take this long to get to Council? Mr. Evancoe said it took time for the developer to submit the plans. She asked if it was the developer’s time or was it our time that delayed this?

Mr. Lewiston said they didn’t start to engineer the subdivision until only six months ago when Council granted tentative preliminary plat. She said only? Mr. Lewiston said they are given a period of 2 years to prepare those plans and present the plat for final preliminary approval. He said they moved quickly and expensively to get the plans completed. She asked when the plans were submitted? Mr. Lewiston said the plans were submitted during January and February because this plat is not eligible to be heard for final preliminary approval until tentative approval of those plans were received from the consultants and departments. That having been received, it was set for approval. He said they moved very quickly and well within the parameters allowed by law. She said she was not clear on why the Council has a time problem. Mr. Evancoe said there is a 20-day time frame in which from the time that it is received, Council has to act on it and that is impossible. He talked with Mr. Arroyo and he said the City has never been able to make that time frame and had always had to ask for extensions. It is a time frame not of our choosing but is prescribed by State Statute. However, it had never been a problem because developers had agreed to extend the time frame.

Member Lorenzo was under the impression that the developer was not willing to grant an extension. Mr. Lewiston said usually the final preliminary approval of a plat is an administerial act and is usually an act that doesn’t require much discussion because all of the format of the plat is established at the tentative stage and all the discussion is held at that time. He said if Member Lorenzo was saying she would approve this plat subject to the concurrence of Dr. Tilton that would be agreeable to him. He believed that the plat and all the areas discussed had been reviewed by a great many capable, honorable people of whom Dr. Tilton would be an additional one. He wouldn’t have any difficulty approving the storm water management because consultants of the City who are wise, careful and make good decisions have reviewed it. We have a parcel of land of some 60 acres and only 18 acres are being used for the subdivision. What has been forgotten in our discussion is that the other 42 acres are conserved wetland and wooded wetland areas that need the storm water that flows from this parcel of land.

Mayor Pro Tem Bononi said we are talking about a condition of approval with regard to a report Member Lorenzo wishes to receive. Member Lorenzo said that’s correct.

Preliminary Plat approval for Orchard Hills West Subdivision subject to the concurrence of Dr. Tilton for the environmental impacts addressed by the City engineer and the engineer for the project, meeting the street lighting requirement and also subject to review of the conservation easement by the City attorney, and the numbers of trees to be verified and specified and all of the conditions and comments by the various consultants and staff.

Mr. Fisher said there will be a conservation easement that would be reviewed by his office and he suggested the approval also be subject to the conservation easement review as well.

Member Capello said, in the summary of findings, they also want to see details of street lighting. Member Lorenzo add "all of the conditions and comments by the various consultants and staff".

Mayor Pro Tem Bononi said right off the top she was not concerned as Ms. McClain didn’t seem to be about the 13 CFS with regard to flow. However, she was concerned that it didn’t seem the water quality component was being considered and what on-site detention could do with regard to quality treatment and the filtration of pollutants and the concern of fertilizers and pesticides that would come from up stream and into Meadowbrook Lake. One of Meadowbrook Lake’s current and long stemmed problems is with regard to fertilizer because of algae growth. Although we are talking about not having any concern with flow, peak or otherwise, we are losing the opportunity to treat the water that is coming down as a result of not officially detaining, although there are wetland areas that are retaining, is that correct? Ms. McClain used the overhead to show the overland flow component and where it came from and where it went. In addition, flow comes in along the back side and into the existing water quality basin and then out again. So while there is not strictly a detention there is some over land flow involved. Mayor Pro Tem Bononi said but normally if we are utilizing a treatment plan approach we have all these potential benefits and we don’t have all of those, optimally and also considering the topography of the area, that is a concern.

Mayor Pro Tem Bononi said in the minutes of Council on October 7, 2002 it was suggested that we could look forward to a second hydraulic analysis. She asked Ms. McClain if it had been provided for her yet? Ms. McClain said it had not but would be a part of the overall engineering review in the final plat because the engineering of the systems itself has yet to be turned in as it is a part of the final plat review.

Mayor Pro Tem Bononi referred to the letter submitted to Council dated October 7, 2002 signed by Aimee Kay where she talked about the severe impact to regulated woodlands and wetlands. She was also taking this from the regular meeting of the Council, Monday, October 7, 2002 and is not included with this package. She thought for a complete record of this application that letter should have been included along with Mr. Mifsud, whose wetland letter was included with their packets. She asked Ms. McClain and Mr. Hirth if the impact of the road building with regard to existing conditions and whether or not Mr. Hirth anticipated any dewatering would need to be done as a result of that road construction, which is approximately a half mile.

Mr. Hirth said they had not done soil borings as yet because they would have to clear trees to get the equipment in there. He expected it would be done quickly. It is in the City Ordinance that soil borings be done in conjunction with the construction of streets, which they will do. Mr. Hirth said it was possible that they might have to do some de-watering. It would be short term and just long enough to install the road bed as needed if they ran into mucky areas. It would be short term and they would follow all the conditions of their DEQ permit with respect to de-watering and the water that comes out would have to be filtered etc. He thought it was 50%-50% that they would have to do something right now without any of the soils information.

Mayor Pro Tem Bononi said that was one of her concerns in looking at the soil survey of Oakland County that she did and saw that the soil types that are listed for this site are 19, 10B and 43, which are poorly drained soils on flood plains, subject to frequent flooding, water table at or near the surface for a great part of the year and are not suitable building due to flooding issues and are not suitable for basements, septic fields, etc.

In two of the soil types erosion control is a great challenge. Also, the impact on the Middle Rouge River as a result of all of these activities, including de-watering, erosion and sedimentation control, having an MPDES Certified Inspector on that site at all times logging the activities is of critical importance to her. Mr. Hirth agreed. She was very concerned with things with regard to it being easy to make concept plans but very difficult sometimes to carry them out so she is trusting that the over sight that we will have would be on his table. Mayor Pro Tem Bononi said she agreed as a result of Mr. Fisher’s comments that anytime to ask for new information is the right time. She also shared the concerns of JCK wetlands experts, Ms. Deborah Thor and Aimee Kay with regard to the impacts on this site. She wanted it to be made very clear as this construction process begins, there is going to be a lot of over sight in this community about what happens there and particularly the severe impacts on that portion of the Rouge River and the associated riparian wetland area that essentially filling .89 acres to cross a road isn’t the big concern. The concern is how we are fragmenting the wetlands to the north and south. We are literally dividing them and it is not just a cattail marsh it is a mature forested riparian wetland the likes of which there are only two other sites in the City of that quality. She said long term there would be runoff from the road after it is built and if the soils don’t cooperate, the impact could extend further than that during the construction process. She did not want to see any disasters there of any kind. Mayor Pro Tem Bononi thought that this ecological system is such a special one it demands a very high level of care. She was also concerned about the number of trees proposed to be removed from this site and believed that 875 trees were to be removed and out of the 875, 507 are shown to be replaced. She understood, with regard to the plan set, that the proposal is being made to "plant the remaining numbers on individual lots" and she asked if that was the case? Mr. Lewiston said he believed so. She said from the standpoint of saying whether or not seven individual trees of the size required could feasibly be planted on any one of these lots remained up in the air to her. She would be looking for additional specification of if these trees can’t be feasibly planted on each one of these lots, that the full complement of the trees be replaced whether or not on the lots, another site in the City or that a cash payment be made to the City tree fund. Mr. Hirth said that was agreeable.

Mayor Pro Tem Bononi re-stated the motion with several conditions attached: to have a wetlands/hydrological report to be executed by the City’s wetland consultant, Dr. Donald Tilton, a concern about the proposal meeting the street lighting requirement that exists in the ordinance, all of the consultants conditions and the conservation easement that Mr. Fisher brought forward and the numbers of trees to be verified and specified.

Member Lorenzo said she was looking for any environmental impacts to the storm water management plan including the water quality issue raised by Mayor Pro Tem Bononi.

Mr. Evancoe said there are two Island Lake items on the agenda. This one involves a second amendment to the RUD contract for Island Lake. On December 16^th the amendment for the RUD plan came before Council and there were three components to it. There was the addition of the 5 acre parcel off of Wixom Road which would include 12 attached dwelling units, there was the revised street layout for phases 4 and 5 and changing the design of the area directly to the east of the Oak Point Church property. The Council determined in concurrence with the Planning Commission not to include the parcel to the east of the Oak Point Church. He explained what would go on with the 5 acre parcel which had frontage on Delmont Dr. on Wixom Road. It is a long linear parcel and the developers are proposing to place 12 attached dwelling units in clusters of three, four units per cluster. He showed Council a drawing of this.

There is an access to the five acre parcel directly across from Delmont Dr. Previously there was a single fronted street with the same type of dwelling unit on the south side of that street and along the Wixom Road frontage. The developer is proposing to add similar units along the north side so that is a double frontage street. The staff and consultants felt this was a fair and reasonable request due to the fact that this area is a densely wooded site, a high quality upland woodland area and by aggregating the dwelling units into these clusters it is possible to save more of the upland woodlands that are present than if it were to be platted as a conventional subdivision. In addition, the units are consistent with those already approved within phase 3D. The other item was the reconfiguration of streets within 4 and 5 and they saw that as beneficial as well. It enhanced some of the open space areas and traffic circulation as opposed to what had been previously approved.

Member Lorenzo noted she was assuming that when this document said "consideration of agreement to implement Council action to amend the plan as approved by Council on December 16^th" that that is what it was going to do and no more. It seems that particularly #5 on page 4 of the red line draft are all new and she was wondering why that paragraph was added because it was not contemplated by Council on December 16^th.

Mr. Fisher said that language on paragraph 5 was language that he desired to have in there to protect the interest of the City in light of and to clarify that both sides were in agreement with respect to the improvements that were being made on and off site. She asked if it was covered in the original agreement? Mr. Fisher said he didn’t believe this language was in the original agreement. It is very helpful to us and he would not recommend the rest of the language without it. Member Lorenzo agreed if Mr. Fisher recommended it.

Mayor Pro Tem Bononi said she disagreed. From a planning perspective she found a lot of gratuitous language in the document with regard to suggesting that this or any other RUD has been promoting the use in a social, environmental, economical manner. She hoped they were going to call this boiler plate because it is gratuitous language. She said there is no way she would agree that Toll and the City agree that "improvements and obligations undertaken by Toll are roughly proportional to the burden imposed and obligations undertaken". Perhaps they are and perhaps they aren’t; proportional is one thing roughly she didn’t know that. She understood what was being said and thought it was the manner in which it was being said that she had reservations about. Furthermore, further in this language we are talking about "increased service and facility loads caused by the RUD and what those increased service and facility loads might be". Absent a fiscal or economic statement with regard to the value of those services she didn’t have any idea about equity in that statement. So just saying that you suppose that they are or should be doesn’t mean that they are. For example, what if the service that we were providing as a result of an infrastructure system was not satisfactory?

For example, water pressure wasn’t good enough. If we were talking about the RUD being capable of accommodating the development on the land included in the RUD and the increased service and facility loads caused by the RUD whose obligation is it? Why would we want to be bound by these particular terms? Mr. Fisher asked if this was page 5, she said it was. Mayor Pro Tem Bononi said she was taking exception to 7 lines from the bottom beginning at "obligations undertaken by Toll are roughly proportional to the burdens imposed and necessary in order to insure that public services and facilities necessary for or affected by the RUD will be capable of accommodating the development of the land". We are giving a statement that the services there are to be able to accommodate the development of this land.

Mr. Fisher said this language comes from a decision in the United States Supreme Court that is commonly referred to as "Dolan". In that case the court said that the only time that you can require a developer to do things, particularly off site, and to donate property for certain purposes like roads and things of that nature is where the analysis demonstrates that the requirements you are imposing are roughly proportionate to the burdens that the developers creating. We haven’t done a study and we’re not saying today that we can approve it. We can prove that these things are true and we have a formula to show that but that the Toll is acknowledging that is true and therefore we are satisfying our Constitutional burden in that regard.

Mayor Pro Tem Bononi said she didn’t think the language was clear or that we should be implying that Toll is helping us achieve other reasonable and legitimate objectives of the City. This Council and the City determine what our objectives are. If meeting our requirements in that regard fine but she had a big problem with this language in regard to the three specifics. She was not questioning the Supreme Courts wisdom but she was questioning the language used here.

Mr. Fisher said with the language essentially "to achieve other reasonable and legitimate objectives to the City" would mean that we are imposing this requirement on Toll in order to achieve our legitimate objectives. We are trying to cover as many of these later lawsuit avoidance kinds of things to protect the City. Mayor Pro Tem Bononi said she didn’t understand "the ability to ascertain the roughly proportional obligation" and she would not support it.

Mayor Pro Tem Bononi said she had spoke with Mr. Evancoe regarding the rationale upon which we are looking at the attached residences being preferable. She would prefer that if talking about making a decision, because we are talking about preserving a more contiguous area of woodlands, we have no documentation to suggest that ever happened or that it would be the case. She saw it as a market driven decision that goes against the basic outline of this plan. She didn’t think there was anything wrong with acquiring additional parcels and proposing to do something with them but from the standpoint of saying with regard to the existing RUD both single family and multi or cluster units are proposed, she thought that was true. However, she thought the location of these and the overall visual impact that this makes goes against that.

Member Landry said under the Dolan decision, if the improvements and obligations undertaken by a developer are not roughly proportional to the burden imposed and necessary in order to insure public services and facilities necessary for the area, would this RUD be susceptible to being changed and attacked by the developer later? Mr. Fisher said it would.

Member Landry asked if the language was that of the United States Supreme Court? Mr. Fisher said it was. Member Landry asked Mr. Fisher if it was his opinion that this was magic language that needed to be in the document to protect the City to make the RUD stick so the developer can’t come back later and declare that somehow it was unfair, they were forced, etc. This is to protect the City. Mr. Fisher said that’s correct.

Member Lorenzo asked if there was any contemplation in this agreement or previous agreements that speaks to the City accepting these roads as public roads because there would be a lot of roadways in here? She was concerned about the additional manpower and equipment that would be needed to service the area. Mr. Fisher said he didn’t know and would have to check that. It is a very lengthy document and he would read it regarding her question.

CM-03-04-097 Moved by Capello, seconded by Lorenzo; MOTION CARRIED:

Kellie Hallaron, 30361 Balfour Dr., noted a letter from their attorney was sent to Mr. Pearson and the City Attorney on March 6, 2003 regarding a woodland and a wetland ordinance violation at Beck North Corporate Park. It was to be included in the Council packets of March 17, 2003. Her attorney’s letter stated that a regulated woodlands and a wetland were removed without the proper permits according to the Novi City Woodlands and Wetland Ordinances. The property owners, Northern Equities and City staff said this removal was allowable because the property was being farmed. Ms. Hallaron said her attorney explained in his letter that the Right To Farm Act does not allow for removal of woodlands and wetlands and that a similar situation was dealt with by the Michigan Supreme Court in 2001. She asked if they could expect a response and when and if it would uphold the ordinances?

Mayor Pro Tem Bononi asked Mr. Helwig about the response. Mr. Helwig said he thought last week at the meeting held with the neighbors that copies of Mr. Fisher’s response were going to be distributed but that did not happen. Mr. Helwig said they would certainly get a response to Ms. Hallaron.

10. Discussion of Growth Management Plan.

CONSENT AGENDA REMOVALS FOR COUNCIL ACTION: (Consent Agenda items, which have been removed for discussion and/or action)

Member Landry said he thought the last joint meeting with the Planning Commission was held in early 2001. He thought it would be fruitful to have a joint meeting and suggested it be done soon. He suggested late May or early June. Mr. Helwig suggested early June because of busy schedules of both bodies. May 12^th or June 4^th were suggested dates to be given to the Planning Commission as available nights. Mayor Pro Tem Bononi suggested that in addition to reviewing the dates proposed that items for discussion also be brought forward.

Mayor Pro Tem Bononi requested the status of the Westmont Village Subdivision Pavement and Storm Water Issues Resolution Plan. She was specifically looking for the scope and cost of the project, the funding mechanism and the date Council proposed to take care of this item. Mr. Helwig said Mr. Fisher gave a detailed preliminary summary of what must be determined before we can determine cost and funding sources. He asked Mr. Fisher when he would have the scope and legal strategy? Mr. Fisher said they could get that to Council by the end of June, which would require engineering testing and so forth in the meantime. The selection of an engineer and we want to get bids from engineers to make sure that we are going to get a project within a reasonable scope. Mayor Pro Tem Bononi said at that time they could also have selections or alternatives of where the funding would come from to complete the scope of the improvements. Mr. Helwig said they have that now for the budget discussions.

Mayor Pro Tem Bononi said the Walden Woods I homeowners association have dealt with two problematical issues over time. She believed Mr. McCusker was aware of both of these issues. The first is in regard to trees dying in their woodlands. The tree removal has been resolved in concert with Mr. Printz. However, the homeowners association still has an issue with regard to an existing drainage swale that is part of the wetland storm water system.

They provided her with a long letter of potential actions that they could take that was provided

to them in a joint letter signed by Steve Printz the City Forester and Deborah Thor, Environmental Specialist at JCK. Her question about the letter was that it sounded to her as though it is being determined that this homeowners association has responsibility for maintaining this wetland swale. She asked if the swale was part of an accepted storm water system that was part of Walden Woods I? If it is and we accepted it, if we did, then how does it become a matter for a homeowners association to address by way of construction, permits, MDEQ approvals and all the appurtenances that go along with storm water systems maintenance. The letter she received from the Board’s secretary, Tammy Bethune, is dated August 16, 2002. It was written to her under the signatures she mentioned. There are two questions here; whose responsibility is it to provide the maintenance in the storm water system if it is part of the storm water system of Walden Woods Phase I and how shall we address their concerns? The fact of the matter is the water is sitting in the wetlands swale and not moving, it is stagnant and creating odor problems, algae and it needs to be cleaned out. She is looking for a resolution in regard to advice on where this maintenance responsibility lies. Mr. Helwig said he would look at it with staff. She asked when a response could be expected? Mr. Helwig said he would hope to have a report for the next meeting.

Mayor Pro Tem Bononi said Items 4 and 5 would be carried over because Mayor Clark was not present.

Member Capello said Glenda St. is across the street from the west exit/entrance to the library and asked if, temporarily while there was extra traffic on Ten Mile Road, Council could look into putting a temporary No Left Turn out just on the westerly entrance of the library forcing the high school students and others down to the light or the other entrance. Mr. Helwig said they would look at that with the traffic people.

Member Capello said he understood there was an After Care program at the ice rink. Children from our schools go there to do various things. When they ice skate and they rent skates and ice time it is obvious that they are going to pay for that time. However, he said it was his understanding that the After Care program, our school program, has to pay to utilize those two conference rooms for After Care when the conference rooms are vacant anyway. He thought since the schools worked so well with the City and don’t charge us for any gym time why are we charging them for space that is vacant just because we can? Mr. Helwig said they would look at that.

Member Capello asked, if we are going to move Items 9 and 11 to a new agenda, was it possible to have First and Second Readings at the same time so that we have not lost time? Mr. Fisher said it would really frustrate the whole purpose of having first and second readings. Member Capello said even if it was on the agenda tonight and the notices have gone out?

Mr. Fisher said only if Council had done the First Reading. He didn’t think that could be circumvented. Member Capello asked Member Lorenzo if she would mind if the First Readings were done on these two? Member Lorenzo said she would as Council still has an executive session and Mayor Pro Tem Bononi agreed.

Wayne Hogan claimed the playground equipment isn’t accessible as there are 6 different entrances to the apparatus and not one of the entrances was accessible. He felt a ramp would be necessary. Mr. Helwig said Mr. Auler is aware of this situation and has assured him that it would be accessible. Mr. Klaver said he had information in response to his questions and would share with Mr. Hogan after the meeting and would follow up with any additional information.

1. Letter from Linda Boran Re: Woodland Tree Replacement Ordinance amendment.

2. Letter from Michael Czarniecki Re: Proposal to expand SAD 165

3. Letter from Judith McNeal Re: SAD 165 – Connemara Hills Subdivision water.

4. Letter from Linda Mulder Re: SAD 165 – Connemara Hills Subdivision water.

5. Letter from Linda Tomasso Re: SAD 165 – Connemara Hills Subdivision water.

To adjourn to Executive Session.

The meeting was adjourned at 12:04 a.m.

__________________________________ _________________________________

Michelle Bononi, Mayor Pro Tem Maryanne Cornelius, City Clerk

Transcribed by: ____________________

Charlene Mc Lean

Date approved: April 21, 2003