12/10/07 Council Meeting Minutes

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