Barton Hills Village, Michigan

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November 14, 2005

TRUSTEES OF BARTON HILLS VILLAGE                                             
November 14, 2005

The regular meeting of the Board of Trustees was called to order by President Laporte at 6:01 PM at the Village Hall.

ROLL CALL     Present:  Trustees Al-Awar, Boddie, Laporte, Lindstrom, MacKrell and Wilkes;  Atty. Reading, Asst. Treas. Redies and Supt. Esch.  Absent:  Trustees Bogat, Butterwick and Perry.

Motion    Mr. Lindstrom moved that the minutes of the October 17, 2005 Trustee meeting be approved with the following corrections:
--note that November and December Trustee meeting dates were changed due to expected absences around the holidays;
--note that Mr. Lindstrom left during the New Business discussion.
 Mr. Al-Awar seconded;  the motion carried.

FINANCE     Mrs. Redies read the cash balances as of November 14, 2005:

Cash Balances
    General Fund
        Checking Account              $  18,675
        Savings                              839,458
Total General Fund                     $ 858,133
    Public Improvement Reserve Fund
        Savings                            $113,457
    Motor Vehicle Highway Fund
        Savings                            $  99,883
        Bank One Govt. Trust Account  $  725,376
        Bank of Ann Arbor                       119,693
        Ann Arbor Commerce Bank CD        107,907
        United Bank & Trust Washtenaw      99,822
Total Savings                                 $1,052,798                                                                                                                                

LONG RANGE PLANNING    Mrs. MacKrell urged Trustees to contact people living in Ann Arbor City, asking them to comment to the Ann Arbor City Planning Commission and Ann Arbor City Council in support of keeping the M-14/Barton Drive interchange open.  It was suggested Barton Hills Country Club members and delivery companies servicing BHCC might also be contacted for support.

Mrs. MacKrell passed around a proposed resolution regarding the widening of US-23 north of Ann Arbor.  A coalition of area communities is asking the Michigan Department of Transportation to give this project higher priority as they consider funding allocation.  Mrs. MacKrell asked that the resolution be discussed and voted upon at the next Trustees meeting;  further that a period for public comment regarding the issue be provided at the beginning of the meeting.  It was agreed that:
--notice will be given in the Barton Bulletin concerning the proposed resolution and inviting public comment at the December 2005 BHV Trustees meeting;
--a public comment opportunity will be added to the BHV meetings as a standard agenda item at the beginning of each meeting.

PERSONNEL     Ms. Laporte had no report.

RECREATION      Ms. Bogat was absent.

ROADS     Mr. Al-Awar stated that road paving on Barton North Drive has been completed and striping of the roads will take place.  It was discovered that the drainage situation near the Boddie home is negatively impacting the Boddie's septic system and should be remedied before paving the access road off Underdown Road.   

Motion     Mrs. MacKrell moved that up to $10,000 be added to the previously approved $3,000 estimated for repair of the drain near the Boddie home at 175 Underdown Road.  Mr. Al-Awar seconded;  the motion carried with Mr. Boddie's approved abstention.

     Ms. Laporte read a written report from Mr. Butterwick, who was absent due to illness.  The report presented three recommendations in regard to the recent power outage in BHV and the removal of dead trees.  During the discussion of these recommendations, Atty. Reading stated that the Michigan Court of Appeals recently upheld an ordinance adopted by the City of East Lansing requiring that electric lines be buried underground when lines are replaced or whenever a trench is made for other reasons.  Discussion focused on the desirability of burying the utility lines, the hazards posed by dead trees in terms of power loss and traffic safety, and possible ways to approach the issue.  Mrs. MacKrell added that she had talked with the new residents at 180 Underdown Road about cutting back foliage to increase traffic visibility at the intersection of Underdown Road and Barton Shore Drive;  the residents were agreeable to this request.  It was noted that the recent power loss was due to a dead tree a distance from the road that fell into the wires.  Atty. Reading added that BHMC is supportive of BHV efforts to maintain safe roadways, having discussed this issue and the BHMC/BHV lease with BHMC Attorney Joseph Lloyd.  It was agreed that utility representative Paul Ganz should be invited to attend the December 2005 BHV Trustees meeting to discuss this issue.  Ms. Laporte offered to provide a copy of the original plat to the BHV office so the staff could determine road measurements in relation to rights-of-way and trees.  

Motion    Mr. Al-Awar moved that Superintendent Esch conduct a survey with a service provider to obtain two estimates--one indicating the cost of removal of dead or dangerous trees on BHV property and one indicating the cost of removal of such trees that are close to utility wires and could reasonably be designated as the responsibility of DTE Energy.  Mr. Boddie seconded;  the motion carried.

It was also agreed that a friendly notice be included in the Barton Bulletin urging residents to follow the lead of BHV and remove dead/dangerous trees on their property.  

Motion   Mr. Wilkes moved that Atty. Reading be asked to research the responsibilities of a public utility for clearing threatening trees from the vicinity of power lines, and draft a letter to DTE Energy asking them to fulfill those responsibilities in Barton Hills Village.  Mr. Al-Awar seconded;  the motion carried.

VEHICLES/EQUIPMENT     Mr. Al-Awar stated that no word has been received about the delivery date of the new garbage box for the truck.

WATER    Mr. Wilkes distributed a written report noting two items:
--Mr. Wilkes and Mr. Esch have met with representatives from the Michigan Department of Environmental Quality concerning the replacement well.  Brush is being cleared from the site and a test well will be drilled in the next two weeks at a cost of about $3,400.  Results of the test well will determine what subsequent action will be taken.
--The mud valve in the water tower failed shut and was removed at a cost of just over $2,000 plus consulting fees to Stantec Consulting Michigan (formerly Ayres, Lewis, Norris & May) engineering firm.  Removal of the broken valve caused a considerable amount of rusty sludge to settle at the bottom of the water tower pedestal.  The BHV staff watered down the sludge which was then pumped out by D & J Septic Service.

BUILDINGS     Mr. Lindstrom referred to a written opinion from Atty. Reading indicating that committee meetings are subject to the Open Meetings Act and should be held in a public place.  Mr. Reading confirmed that all committee meetings may not meet the definitions in the Act, but the Village Administrative Center Committee certainly does, and other committees should err on the side of compliance with the Act.  It was noted that posting committee meetings on the Bulletin Board at the Village Hall is sufficient.  Mr. Lindstrom stated that this understanding has changed the perspective of the VAC Committee concerning the necessity, rather than the option, of an adequate meeting space in the VAC project.  

Mr. Lindstrom stated that the VAC Committee expects to present two conceptual options at the December 2005 Trustees meeting.  Currently the committee is studying three possibilities:
--build 1500 square feet of space towards the ball field from the concrete maintenance building,
--demolish the concrete maintenance building and build a two-story building on that site, with maintenance area on the ground level and administrative space upstairs;
--build a separate building in the space between the salt shed and the Ward house.
Discussion focused on how to keep future maintenance area needs in mind while not letting the project get too large and complicated.  Mr. Lindstrom felt that the VAC Committee should focus primarily on the administrative goals, while taking into consideration what impact the meeting of those goals would have on maintenance area spaces/functions.  Ms. Laporte commended the committee for their fine work so far, adding that the Trustees wish to encourage the continued endeavors of the group. Mr. Lindstrom noted that Charles Hescheles is now a member of the VAC Committee representing BHMC.   
FINANCE     Mr. Boddie reported that the representative from T-Mobile requested a written response to their proposal of lower rent on the telecommunication equipment installation on the water tower.  It was agreed that Mr. Boddie would draft the response and Ms. Laporte would sign and send it.

Mr. Esch stated that the deer management team requested $110/deer this year, up from the previous $90.  Last year 54 deer were taken, so the increase would be about $1000.  He felt it was wise to stay with the same team that has been successful and is familiar with the layout of BHV.  Mr. Esch was advised to offer $100, but if that was not acceptable with the team he was authorized to sign the contract for $110.                                                                               Mr. Lindstrom left

ZONING    Ms. Laporte asked for the opportunity to explain the events regarding the Probst/Klein construction project and the confusion surrounding the approval of the zoning compliance for that project.  When she attended the BHMC meeting on October 12, 2005, she was advised that BHMC was ready to approve the construction if zoning compliance approval was given by BHV.  She was also advised that the owners were anxious to begin construction before winter and before the anticipated price increase in material due to the hurricanes.  Ms. Laporte stated that the BHV Zoning Ordinance limits building height to the lesser of 35 feet or 2 1/2 stories, but does not indicate how the height should be measured.  She had reviewed the excerpts from the Zoning Ordinances of a number of surrounding jurisdictions provided by the Probst/Klein architect, all of which measure height to the midpoint of the roof.  

Ms. Laporte attended the BHMC meeting in her role as BHV President and Liaison to BHMC.  Prior to the meeting she had discussed the Probst/Klein project with Mr. Al-Awar.  He had indicated his only concern was with the height of the roof.  Ms. Laporte indicated to Mr. Al-Awar that she had several other project concerns, including the proposed nanny suite and driveway pillars in the setback.  After consultation with Mr. Al-Awar, Ms. Laporte indicated that she would be attending the meeting as the BHV Zoning and Planning Administrator, a post previously held by Mr. Al-Awar but to which Ms. Laporte had advised him she would not be reappointing him, and had made that decision public in the circulated committee appointment document.  Mr. Al-Awar understood that Ms. Laporte had stated to him that he was in any event to continue with the Probst/Klein project, since he had done considerable work on it in the past.  Ms. Laporte did not remember the conversation in that manner, and on that point the two disagreed.  Mr. Al-Awar interjected that he had discussed the project with Ms. Laporte, and communicated to her that no specific height measurement was written on the Probst/Klein plans, so he had sent a letter requesting a drawing with the height indicated and had not yet received that drawing.
Ms. Laporte continued, stating that while she was aware of the need for Trustee confirmation of her position as Zoning and Planning Administrator, she also felt an obligation to the property owners to address the Probst/Klein zoning approval request at the BHMC meeting.  The property owners were willing to remove the nanny suite and the pillars in the setback.  If necessary they were also willing to reduce the height of the roof, but indicated that to do so they would have to accept a different pitch to that roof from the roofs on other parts of the house.  Ms. Laporte had agreed that the nanny suite, and to some extent the pillar location were more significant issues, and therefore agreed to approve the project with the nanny suite removed, the pillars brought back behind the set-back, and the roof left as designed.  She thought this to be a reasonable accommodation to the architect and builder.  She also thought that since the Zoning Ordinance was silent about the procedure for measuring height, it would be legally difficult to defend the refusal to grant zoning compliance if the decision were challenged, since the Zoning Ordinance was silent on the point and local practice was to measure it in the same manner as the Probst/Klein design did.  While she was reluctant to proceed, she felt it was the best decision at the time given the circumstances.  

Ms. Laporte further stated that since she had removed Mr. Al-Awar as Zoning and Planning Administrator and she had not been approved by the Board of Trustees as Zoning and Planning Administrator, she considered the position unfilled at this time.  There are no projects requiring review at the moment, and Ms. Laporte stated she intended to bring the matter up for action at the next Trustee meeting.  She further stated that to her knowledge, neither Mr. Al-Awar or any other previous Zoning and Planning Administrator had been approved by the Board of Trustees.  She stated that she nevertheless supported Mr. Al-Awar's actions in signing the Probst/Klein plans in her absence following the October 17, 2005 Trustee meeting in which Ms. Laporte's prior approval had been set aside by the Board of Trustees because she had not been approved as Zoning and Planning Administrator and had failed to consult with the Zoning Committee prior to taking action, and that this should be accepted as a completed transaction regardless of whether or not Mr. Al-Awar actually held the position of Zoning and Planning Administrator at that time.

Atty. Reading stated that he had been asked to draft an opinion concerning the question of whether the President could also hold the position of Zoning and Planning Administrator.  His opinion was that under the Michigan Incompatible Public Offices Act the two positions normally would be incompatible;  however an exception in the Act for municipalities having a population under 25,000 would allow for dual public positions.  Mr. Reading further stated that he was asked for an opinion on whether the President could remove the Zoning and Planning Administrator without input from the Trustees, and if the Administrator could act before his/her appointment was confirmed by the Trustees.  Mr. Reading stated that only a person who lawfully holds the position of Zoning and Planning Administrator could act as Administrator, and that there appeared to be a misunderstanding between Ms. Laporte and Mr. Al-Awar as to who was to discharge the duties as Zoning and Planning Administrator with respect to the Probst/Klein situation.  Mr. Reading further stated that the Michigan Zoning Act provides no authorization for action to be taken by a Zoning Committee;  a Zoning and Planning Administrator could consult with such a committee but the authority rests with the Administrator alone.
Mr. Al-Awar stated that Ms. Laporte told him she wished to take over the position of Zoning and Planning Administrator but that he should continue with the Probst/Klein project since he was already so involved in the project.  He further stated that he took action to sign the Probst/Klein plans after being instructed to do so by the BHV Board of Trustees at their October 17, 2005 meeting, and that the Trustees gave these instructions based on advice from Atty. Reading given at that meeting.  Mr. Al-Awar stated that he interpreted the Zoning Ordinance in the same way regarding the height issue as he has done on every project in his tenure as Administrator.  In further dialogue between Mr. Al-Awar and Ms. Laporte it became clear there had been a misunderstanding between them:  Mr. Al-Awar understood that he continued as Zoning and Planning Administrator with respect to the Probst/Klein situation;  Ms. Laporte understood that since Mr. Al-Awar had been removed from the position it was currently vacant if it were determined that she could not act in that capacity because she had not been approved by the Board of Trustees or because of a conflict between her holding the position of President of the Board simultaneously.  Atty. Reading stated that the past actions are not being disputed, but that it should be clearly stated what the status of the position of Zoning and Planning Administrator is at this moment.  Ms. Laporte stated, "I am removing you [Mr. Al-Awar] as the Zoning Administrator effective today."

Mr. Wilkes expressed concern for the role of the Zoning Committee and the intent of the Trustees in establishing the committee that the Zoning and Planning Administrator would consult with them before making a decision, especially on issues that require interpretation.  Ms. Laporte stated that her intent was not to exclude the committee but to move ahead on the project in fairness to the owners who should not be excessively delayed due to procedural flaws in the Zoning Ordinance.  The permit issued to Probst/Klein was signed by both Ms. Laporte and Mr. Al-Awar.  It was the sense of the Board that the actions related to the Probst/Klein project resolved the matters concerning the proposed construction and that the question of who holds the position of Zoning and Planning Administrator needs to be decided, although perhaps at the next meeting rather than at the immediate time.

Mr. Boddie left, dissolving the quorum.  The meeting was adjourned at 8:28 PM.

Jan Esch, Assistant Clerk