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12/10/07 Council Meeting Minutes
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12/10/07 Council Meeting Minutes
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REGULAR MEETING <br />UNFINISHED BUSINESS <br />DECEMBER 10, 2007 <br />ORDINANCE NO. 9807-07 - MARQUETTE SCHOOL HISTORIC LANDMARK - <br />MAYOR' S VETO LETTER OF 12/5/07 <br />Council Attorney Kathleen Cekanski-Farrand advised that on November 26, 2007, the <br />Council passed Bill No. 61-07 which was a substitute bill that requested Historic <br />Landmark. Mayor Luecke then sent a veto letter and filed with the Office of the City <br />Clerk on December 5, 2007. Typically the Mayor would have the authority under a <br />general ordinance under the applicable statute of the Indiana Code to take action within <br />10 days or by not taking any action by sending a letter which he did with his reasons he <br />could also exercise a pocket veto. However, the Indiana law there is also another <br />provision LC. Section 36-7-4-609 which specifically applies to local planning and zoning <br />matters. Since the City of South Bend operates as a part of the Area Plan Commission, <br />each City under this State Law shall determine whether it's zoning ordinances will be <br />subject to a veto by the City Executive. The City Council must by general ordinance <br />provide what authority the Mayor would have. In a memorandum that each <br />Councilmember should have she stated that she compared the language which was in the <br />former City Code Zoning with what is currently in the City Code, prior to 2004, the <br />South Bend Municipal Code read under Section 21-129 Veto Power. "The City <br />Executive shall have the right to veto any zoning ordinance" That ordinance in its entirety <br />was then amended over a series of several months with input from all city departments <br />before it was amended and passed by the City Council. The current language of the <br />South Bend Municipal Code provides as follows: The City Executive shall have the right <br />of veto any proposal to amend or partially repeal the text of this or partially repeal the <br />text of this chapter or any proposal for a zone map change. As noted in the <br />memorandum, she stated that she had several discussions with the Executive Director, <br />Mr. John Byorni, Area Plan Commission, to make sure that her interpretation of what a <br />proposed Historic Landmark actually was. It is not a text amendment to Chapter 21 of <br />the South Bend Municipal Code nor is it a zoning map change, which are the two areas in <br />which this City Council has authorized Mayor Luecke to have veto power over. In light <br />of the fact that it is not addressed by the City Code, it is her legal opinion that Mayor <br />Luecke does not have the authority to veto the ordinance which was passed by this <br />Council by a five (5) to three (3) vote at the last meeting. It therefore, becomes a <br />procedural issue, the Council must make a decision by proper motion this evening to <br />either accept basically the recommended advisory legal advise that has been given to the <br />Council in writing with all the attachments, depending on what action is taken on that <br />motion, then they maybe or may not be subsequent motions that would be proper this <br />evening. <br />Chuck Leone, City Attorney, 14th Floor County-City Building, South Bend, Indiana, <br />stated that he has not seen the formal opinion that the Council Attorney has rendered. He <br />stated that he cannot comment on it specifically. However, he stated that he is aware of <br />the various issues and the various sections in which she refers. Mr. Leone stated that he <br />disagrees with her opinion and respectfully do so. The question is whether or not this <br />particular ordinance is a zoning ordinance. If it is a zoning ordinance that how in fact <br />does it flow the procedural process that is before the Council. The sections that have <br />been referenced which are Sections 606, 607 and 608 of Title 36 Article 7 Chapter 4 of <br />the Indiana Code relate to zoning decisions that typically come before this Council all of <br />which are then referred to the Area Plan Commission and then come back to the <br />Common Council for action. This particular ordinance from it's inception is not treated <br />in that fashion and therefore the Council has not taken by it's initial action by not <br />referring it to Area Plan has not taken it as a zoning ordinance. Therefore, it is an <br />ordinance just like any other ordinance that flows through the system and in fact it is <br />subject to veto just as any other ordinance would be. If in fact this was a zoning <br />ordinance, there would be a second body that would have reviewed it and that would <br />have been the Area Plan Commission, in this situation that did not happen. Therefore, it <br />is his opinion that in fact that this is an ordinance to which the veto does apply and in fact <br />the Mayor's veto is valid. <br />24 <br />
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