10-10-72 Council Meeting Minutes

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REGULAR MEETING OCTOBER 10, 1972 COMMITTEE OF THE WHOLE MEETING (CONTINUED) the improvement to be made. On August 17, 1972, 51% of more of the resident property owners who would be liable for the improvement filed a remonstrance against the project. According to Burns Statutes, in the event of a remonstrance, the matter shall only take effect by an ordinance of th Common Council passed by a 2/3 majority vote within 60 days of the remonstrance. Mr. Sweeney said, on that basis, he prepared an ordinance and sent it to the Council. He said he would now ask the Council to consider the following amendment to the ordinance. In Section I, add para- graph 4 "The cost thereof to be borne in the following proportions by the following parties: Civil City of South Bend - 25% and Affected Resident Property Owners - 75 % ". Mr. Franklin Morse, Attorney, 2921 Caroline Street, spoke for 14 of the abutting land owners affected by this improve ment. He said the property owners have complied with Park Department requests to remove shrubs and trees so that people could travel in the area involved. He said a determination must be made as to who benefits from the improvement. if the property owners benefit, they are to pay for improvements. If the citizens as a whole benefit, then the city ought to pay for them. He said that petitions filed with the Board of Works in favor of the sidewalks have signatures of resi- dents from all over St. Joseph County and that the benefits of this improvement will not accrue solely to the abutting land owners. Mr. Morse said that this action would be setting a precedent for the city in all areas where sidewalks do not exist and listed many such areas. He then said that since this was the firsttime they had heard the 25 % -75% distribution of the cost mentioned, he would like to discuss this with as many of the property owners as were in the audience. Councilman Nemeth moved for a short recess, seconded by Councilman Taylor. The motion carried an the meeting recessed at 11:25 p.m. The Committee of the Whole meeting reconvened at 11 :42 p.m. Mr. Morse then said that the con- sensus of opinion among the affected property owners who were in the audience was that the 25 %- 75% division of the cost was not fair and that it should be 500/6-50 %. He said the property owners do not oppose the sidewalks per se but leave it to the judgment of the Council to accept an amendment for a more favorable apportionment. Mr. Morse said that the property owners also have some doubt as to what will happen to underground sprinkler systems and heated driveway systems which have been installed in the area involved. Mr. Richardson said that the underground sprink- ler systems are technically and legally on city property and it has always been the policy of the Board of Works that it is up to the property owner to protect such things. If the systems are pu in from 12 to 18 inches in depth they will not be disturbed by the sidewalk construction. It might be necessary to relocate one or two sprinkler heads. Councilman Nemeth said that he would like to propose an amendment to the ordinance. Councilman Newburn said that the chair's position would be that the amendment should be offered in the Council portion of the public hearing. Councilman Parent made a motion that the Council allow Councilman Nemeth to propose an amendment at this time. Councilman Taylor seconded the motion and it carried. Councilman Nemeth moved tha the ordinance be amended as follows: On Page One of the ordinance, in the last paragraph, strike the word "therefore" and substitute the word "and ". Add a new paragraph "WHEREAS said improve- ment will be of general benefit for the City of South Bend and the citizens thereof at large, as well as of specific particular benefit to property owners in the area wherein the improvement is to be located; therefore ". In Section 1 of the ordinance, add a fourth paragraph, "The cost of the improvement is to be borne in the following proportions: Civil City of South Bend - 25% and Affected Resident Property Owners - 75 %." Councilman Taylor seconded the motion and it carried. Mr. Raymond Olson, 1515 Spokane Lane, asked City Attorney Sweeney about the legality of the 25 %- 75% cost distribution. Mr. Sweeney said he had no reservations about the legality of it. He said he listened to the arguments and proposals made at the Public Hearing in August, reviewed all the correspondence, researched the statutes and case law, and it is his opinion that the benefit accrues on a 75 -25 basis. He said unless a higher decision by a court decides otherwise he thinks it will stand. Mr. Ted Rogowski, 1619 Vernerlee Lane, asked if this meant that every- one was in favor of constructing the sidewalks and the only problem was to decide how much it would cost the property owners. Councilman Taylor said that the Council had passed an amendment to the ordinance providing for the 25 % -75% share of costs but would still vote on whether or not to pass the ordinance. Mr. William Hauguel, 1134 N. Sheridan St., said that he was in favor of the construction of the sidewalks but wondered about the city setting a precedent in paying 25% of the cost here when in other Barrett Law projects, the property owners paid 100 %. Councilman Parent said he would like to explain the reason why he was going to vote for this ordinance. He said according to the statutes, the residents should be paying for the value that accrues to their property and the city should be paying for the value that accrues to the community, and he feels the 25 % -75% ratio is justified. There is much pedestrian traffic in that area and for safety reasons he feels the sidewalks should be constructed. He said he would write in more detail to the affected residents later. Councilman Serge said that one -third of South Bend has no sidewalks and the city could not afford to pay 50% of the cost. Councilman Miller made a motion that the ordinance go to the Council asfavorable, as amended, seconded by Councilman Taylor. Motion carried. Councilman Nemeth made a motion to rise and report to the Council, seconded by Councilman Taylor. Motion carried. ATTEST: CITY CLERK Be it remembered that the Common Council of the City of South Bend reconvened in the Council Chambers in the County -City Building on Tuesday, October 10, 1972 at 12:10 a.m., Council Presi- dent Peter J. Nemeth presiding. REPORT OF THE COMMITTEE ON MINUTES Your committee on the inspection and supervision of minutes would respectfully report that they have inspected the minutes of the September 25, Regular meeting of the Council and found them correct. They, therefore, recommend that the same be approved. /s/ Peter J. Nemeth /s/ Terry S. Miller Upon motion made by Councilman Taylor, seconded by Councilman Horvath and carried, the report was accepted as read and placed on file.