REGULAR COUNCIL MEETING
The Regular Council Meeting was held on August 11, 2003 at 7:30 p.m. with Council President McGlumphy presiding. Council members present were Mr. Carey, Mr. Pitts, Mrs. Williams, Mr. Truitt, Mr. Ritter, Mr. Speed, Mr. Salters, and Mr. Ruane.
Council staff members present were Police Chief Horvath, Mr. Cooper, Mrs. Mitchell, Mr. Lee, Mr. DePrima, City Solicitor Rodriguez, Mrs. Green, and Mayor Hutchison.
OPEN FORUM
The Open Forum was held at 7:30 p.m., prior to commencement of the Official Council Meeting. Council President McGlumphy declared the Open Forum in session and reminded those present that Council is not in official session and cannot take formal action.
Mrs. Frances Hettinger, 63 Sackarackin Avenue, stated that she spent 25 years and 8 months working for the City of Dover and was proud of every minute of it, noting that she worked from her heart most of that time. She asked Council members to work from their hearts; two wrongs don’t make a right but two rights will make a wrong. She stated that what Council members were doing to the City was deplorable and that they should let the City Manager run the city. Mrs. Hettinger asked them to go behind closed doors and iron out their differences.
Mrs. Hettinger noted that Dover is the largest city south of Wilmington and it is the laughing stock of the State when it should be setting an example for the smaller towns. She stated that she just returned from Florida and she heard about the dispute between Council members from Florida all the way back to Delaware. Mrs. Hettinger stated that, if Dover’s Charter had a recall provision, she would be standing on every street corner and she would have a lot of people behind her.
The invocation was given by Chaplain Dixon, followed by the Pledge of Allegiance.
AGENDA ADDITIONS/DELETIONS
Mr. Salters requested the addition of item #3-A, Discussion of Position Classification - Chief Building Inspector, and item #3-B, Authorization to Request a Writ of Mandamus.
Mr. Ruane objected to the addition of such significant items without duly notifying the public. He noted that he was unready to address the subjects.
Mr. Salters moved for the addition of item #3-A, Discussion of Position Classification - Chief Building Inspector. The motion was seconded by Mr. Carey and failed by a roll call vote of five (5) no and four (4) yes (Mr. Carey, Mrs. Williams, Mr. Truitt, and Mr. Salters).
Mr. Salters moved for the addition of item #3-B, Authorization to Request a Writ of Mandamus, seconded by Mr. Carey.
Responding to Mr. Speed, Mr. Rodriguez stated that a writ of mandamus means that a higher court would issue an order that an administrative body or lower court has committed an error of law or has done something contrary to the law. He stated that it would be an opinion and a directive by the court that City Council did or did not follow the law or should follow the law.
Mr. Speed asked if it would be a neutral request for an opinion, based on the facts and case law, of whether or not the actions that have been taken by Council were in accordance with the law or would they be specifically requesting the court to tell them that what they did was wrong. Mr. Rodriguez stated that the court would not entertain an advisory opinion; it would have to be adversarial. It was his understanding that a private citizen would have to take such action against the City; it could not be taken by members of Council.
The motion to add item #3-B, Authorization to Request a Writ of Mandamus failed by a roll call vote of five (5) no and four (4) yes (Mr. Carey, Mrs. Williams, Mr. Truitt, and Mr. Salters).
Mr. Salters asked how the issue of the Mayor’s veto would be addressed. Council President McGlumphy stated that they would sit down sometime this month and try to resolve the matter.
Mr. Speed moved for approval of the agenda, seconded by Mr. Ritter and carried with Mr. Salters voting no.
ADOPTION OF MINUTES - REGULAR COUNCIL MEETING OF JULY 28, 2003
Mr. Truitt noted that Mr. Carey was referred to as Council President Carey on page 1 of the minutes. He also noted that there may be a discrepancy on page 10 with reference to 33 N. New Street, indicating that he heard the address was 35 N. New Street.
The Minutes of the Regular Council Meeting of July 28, 2003, as amended, were unanimously approved by motion of Mr. Speed, seconded by Mr. Salters, and bore the written approval of Mayor Hutchison.
CERTIFICATE OF RECOGNITION - MEGHAN ADAMS - DELAWARE WOMEN’S GOLF ASSOCIATION AMATEUR CHAMPIONSHIP (MAYOR HUTCHISON)
Council President McGlumphy stated that they would have to forego the presentation due to the unavailability of Ms. Adams.
PRESENTATION - “LIVE NEAR YOUR WORK PROGRAM” - DELAWARE STATE HOUSING AUTHORITY
Ms. Sandy Johnson of the Delaware State Housing Authority made a PowerPoint presentation outlining the “Live Near Your Work” program. She noted that it is an employer driven partnership among State agencies, local jurisdictions, Delaware businesses, and Fannie Mae, which is a major financial underwriter in the housing mortgage program, to provide financial assistance for employees to buy homes near their work.
Responding to Mr. Ruane, Ms. Johnson stated that, under certain circumstances, it would be possible to incorporate this program into the City’s Community Development Block Grant program. She noted that certain restrictions were outlined in the regulations.
Mr. DePrima noted that the City of Dover has a HUD authorized “Homeowner’s Assistance Program” in place for first-time home buyers. It was his feeling that the program could be modified to work with the “Live Near Your Work” program.
Responding to Mrs. Williams, Ms. Johnson stated that she would provide members with data on the property values, retention rates, and income base of current participants in the program.
No further action was taken.
LEGISLATIVE AND FINANCE COMMITTEE REPORT - JULY 14, 2003 (DEFERRED FROM JULY 28, 2003 COUNCIL MEETING)
The Legislative and Finance Committee met on July 14, 2003 with Chairman Speed presiding.
Market Pay Corrections - City Manager Department Heads
Members considered “market pay corrections” for City Manager department heads, as recommended by Mr. DePrima. It was noted that the department heads being considered for market pay corrections met the qualifications specified in their job descriptions, either through experience, education, training, or certification. The PAS took experience into consideration, placing anyone with up to seven (7) years experience at market. They did not analyze experience acquired prior to employment with the City.
The committee recommended approval of the City Manager’s Recommended Market Corrections for City Manager Department Heads.
Mr. Speed moved for approval of the committee’s recommendation. The motion failed for lack of a second.
Mr. Speed moved for acceptance of the Legislative and Finance Committee Report, seconded by Mr. Ritter and carried by a roll call vote of five (5) yes, three (3) no (Mr. Carey, Mrs. Williams, and Mr. Truitt), and one (1) abstention (Mr. Salters). Mr. Salters explained his abstention was because it was his opinion that the committee was illegal as a result of the Mayor’s veto, and; therefore, could not convene to formulate recommendations for consideration.
UTILITY COMMITTEE REPORT - AUGUST 11, 2003
The Utility Committee met on August 11, 2003 with Chairman Ruane presiding.
KENT COUNTY ADMINISTRATION BUILDING SERVICE ROADS
Officials from the City of Dover have worked in partnership with the Kent County Levy Court to ensure that the new Kent County Administration Building is located within the city limits. This working partnership has led to the current proposal for the Kent County Administration Building to be constructed on the old Acme site located on U.S. 113. The Mayor and former City Manager held an extensive series of meetings with County officials to site the building within the city limits. During these discussions, the Mayor and former City Manager agreed to support the dedication of the service roads to the new building.
Members were provided with the rights-of-way plan (Exhibit #1) showing the general configuration of the subject rights-of-way to be dedicated to the City of Dover. Currently, some of the rights-of-way are improved and some of the rights-of-way are unimproved. Under normal circumstances, the developer of a parcel would construct the right-of-way improvements and then dedicate the improvements to the City of Dover. The working partnership between the City and the County has created an opportunity that necessitates an expedited dedication and acceptance of the subject rights-of-ways prior to the planned improvements actually being constructed, since Kent County is securing funding for the construction of the road and rights-of-way improvements from area legislators through the use of Community Transportation Funds. To be eligible for this funding stream, these rights-of-way must be dedicated and accepted for public use prior to receiving funds for the improvements identified in the development plan.
Waiver Request for Right-of-Way/Dedication of Rights-of-Way
On July 21, 2003, the Planning Commission approved a revised site plan dated July 10, 2003, granted a one-year extension to the original site plan approval, and forwarded a recommendation regarding a request to waive certain right-of-way dimensions and configurations. The current waiver request (Exhibit #2) must be considered in conjunction with the dedication of rights-of-way for this project.
The Mayor and former City Manager verbally agreed to manage the construction of the road improvements under a contract to be bid by the City of Dover. The bid package for the road improvements is to be prepared by Kent County’s Consulting Engineer for turn over to the City of Dover Department of Public Works. The funds secured by Kent County from area legislators will be channeled through the City of Dover, which will hire a contractor to build the road improvements based on a public bidding process. The City of Dover will not contribute funds to the cost of the roadway improvements and will only provide in-kind professional services to facilitate the construction of the roadway improvements. The County will “ensure funds are available to complete the work” as stated in correspondence dated July 25, 2003 from Mr. Robert S. McLeod, County Administrator (Exhibit #3). In addition, Kent County Levy Court will be solely responsible for any recordation and legal fees associated with the conveyance.
In expediting this right-of-way dedication and acceptance, it shall be understood that this action is based upon the special public interest and public purposes inherent in the construction of a new Kent County Administration Complex. The special circumstances involved with this project should not be viewed as creating any precedent for other applications for right-of-way or road dedications and/or acceptances that do not meet the provisions of applicable City ordinances and/or regulations.
Staff recommended acceptance of the dedication of the rights-of-way with specific waivers and conditions.
The committee recommended approval of the request to waive the requirements of Article VI - Subdivision-General, Section A - Streets, paragraphs 10, 11, and 12, for lands of Kent County Levy Court, located at 555 Bay Road, as recommended by staff.
By consent agenda, Mr. Carey moved for approval of the committee’s recommendation, seconded by Mr. Speed and unanimously carried.
The committee recommended approval of the dedication of the rights-of-way, subject to conditions numbered one (1) through six (6), as follows:
1)The dimensions of the right-of-way will vary from fifty (50) feet to eighty-five (85) feet. The parallel boundary lines of the right-of-way vary in form (curves and angles). These variations are the result of parcel boundaries, existing service road dimensions, and the configuration of the existing north entrance to the Blue Hen Corporate Center.
2)A note must be added to the final record plan that states: Kent County will ensure all of the funds are available to construct and/or rehabilitate the proposed road segments shown on the approved site plan.
3)The City of Dover Department of Public Works will administer the construction of road improvements.
4)A note must be added to the final record plan that states: The large pylon sign that exists on the curb island immediately adjacent to U.S. 113 will not be dedicated to the City of Dover and will be maintained by its owner to standards outlined in the City of Dover Code of Ordinances. If the sign needs to be replaced at some point in the future, it will be removed by its owner from the City’s right-of-way and reconstructed on private property. Should the sign fall into disrepair, the City of Dover reserves the right to have the sign removed within an appropriate period of time and assess the cost of removal to the appropriate property owner.
5)A note must be added to the final record plan that states: The County will remove the old service road as a condition of occupancy and barricade the road section immediately south of properties now or formerly owned by Leased Restaurant Partners, Inc.
6)If the City later determines that the same public purpose for which this dedication was required no longer exists, it shall reconvey the property to the original owners or to the owners’ successor in interest except for all or any portion of the property that is required for that same public purpose or for public utilities.
By consent agenda, Mr. Carey moved for approval of the committee’s recommendation, seconded by Mr. Speed and unanimously carried.
By consent agenda, Mr. Carey moved for acceptance of the Utility Committee report, seconded by Mr. Speed and unanimously carried.
Power Supply Contract Extension Negotiations (Direction resulting from discussions during Council Executive Session on July 28, 2003 - Suggested Motion is to Authorize the City Manager to continue negotiations based on the discussions of the Executive Session of July 28, 2003)
During the Executive Session held on July 28, 2003, members discussed the power supply contract extension negotiations.
Mr. Speed stated that he has been mulling the benefits and negative implications that he could consider, in addition to those provided by the attorney involved in the contract negotiations. He provided us with some pretty good benefits for not negotiating directly with Duke and he provided some significant benefits of going ahead with the negotiation. His major concern was ensuring that the City did its due diligence and had an opportunity to get the best deal it could. He would vote in favor of pursuing negotiations if it looked like at the end they were going to get the best deal and were able to fairly evaluate it and it is possible that that could happen. One other reason that Mr. Speed opposed the direct negotiations and going with his preference of issuing a Request for Qualifications followed by a Request for Proposals is that there has been multiple violations of the City Code of Conduct by City officials. He noted that Chapter 2, Article I, Division 4, Section 2-11 (b) states that: “No city employee or official shall have any interest in any private enterprise nor shall he incur any obligation of any nature which is in substantial conflict with the proper performance of his duties in the public interest. No city employee or official shall accept other employment, any compensation, gift, payment of expenses or any other thing of monetary value under circumstances in which such acceptance may result in any of the following: (1) Impairment of independence of judgment in the exercise of official duties; (2) An undertaking to give preferential treatment to any person; (3) The making of a governmental decision outside official channels; or (4) Any adverse effect on the confidence of the public in the integrity of the government of the city.” Mr. Speed stated that he believed it was important for them to get the best deal on their contract, whether it was with Duke or another company; however, he felt that it was more important that the public have confidence in the City government and that there not be any possibility that there has been any preferential treatment. In light of the fact that there are City officials who have accepted payment of expenses in the past from Duke, he stated that he would oppose the negotiation to extend the contract.
Mr. Ruane pointed out that the negotiating team consists of many individuals, including the Finance Director, himself, and the Electric Department Director. He also noted that the lawyer that the City has engaged to develop the contract is without reproach and he would not want Mr. Speed’s suggestion to be, in the public mind, that there is any tainting of the negotiations as the result of a part of the group. Mr. Ruane stated that a strong case was made during the executive session that if the best deal was not being made, they would withdraw from negotiations.
Mr. Ruane moved to authorize the City Manager to continue negotiations based on the discussions of the Executive Session of July 28, 2003, seconded by Mrs. Williams and carried by a roll call vote of six (6) yes and three (3) no (Mr. Ritter, Mr. Speed, and Mr. McGlumphy).
REQUEST FOR AUTHORIZATION TO PAY INVOICE - MEMBERSHIP DUES - COUNCIL’S BUDGET - DELAWARE STATE CHAMBER OF COMMERCE - $615
Mrs. Green, City Clerk, advised members that there were certain membership dues included in Council’s budget. Once they were approved through the budget process, staff would process the payments as they were submitted. However, it has been suggested that since these are expenses reflected on Council’s budget, that Council approval be required.
For fiscal year 2003/2004, an amount of $9,040 has been budgeted in Council’s budget for subscriptions and dues. This amount is based on the previous year’s costs or, when provided, a cost adjustment notification. An invoice in the amount of $615 for membership in the Delaware State Chamber of Commerce has been received. Should Council wish to continue this membership, Mrs. Green requested authorization to process this payment.
By consent agenda, Mr. Carey moved to authorize the City Clerk to process payment of the invoice for membership dues in the amount of $615 to the Delaware State Chamber of Commerce, seconded by Mr. Speed and unanimously carried.
FINAL READING - PROPOSED ORDINANCE
The First Reading of the following proposed ordinance was accomplished during the Council Meeting of July 28, 2003.
By consent agenda, Mr. Carey moved that the Final Reading of the proposed ordinance be acknowledged by title only, seconded by Mr. Speed and unanimous carried.
Appendix A - Land Subdivision Regulations, Article VI - Subdivision-General Requirements and Design Standards, Section A - Streets, Paragraph 8 (Requirement for Two Means of Access into Major Subdivision)
Mr. Carey moved for adoption of the following ordinance by consent agenda, seconded by Mr. Speed and carried by a unanimous roll call vote:
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
That Appendix A - Land Subdivision Regulations, Article VI - Subdivision - General Requirements and Design Standards, Section A. - Streets, Paragraph 8 of the Dover Code be amended by deleting it in its entirety and inserting in lieu thereof the following:
The creation of interconnected streets will be encouraged wherever the commission finds that such layout will not interfere with traffic convenience and safety. The commission shall determine the number of connections of streets in the proposed subdivision with existing streets. At least two (2) connections onto a State-maintained road or a City-maintained street are required unless the Delaware Department of Transportation or the City Engineer determines that the second connection will not be permitted or is determined to be non-feasible. This requirement shall pertain to:
(a) Subdivisions containing twenty (20) or more lots, plots, sites, or parcels.
(b) Site developments containing one hundred fifty (150) or more dwelling units.
ADOPTED: AUGUST 11, 2003
COUNCIL MEMBERS COMMENTS
There were no Council Member Comments.
Mr. Speed moved for adjournment, seconded by Mr. Carey and unanimously carried.
Meeting Adjourned at 8:30 P.M.
JANICE C. GREEN
CITY CLERK
All orders, ordinances, and resolutions adopted by City Council during their Regular Meeting of August 11, 2003, are hereby approved.
JAMES L. HUTCHISON
MAYOR
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Exhibits Attached to Original Minutes and File Copy
Exhibit #1 - Rights-of-Way Plan
Exhibit #2 - Report of Planning Commission - Petition to Waiver Certain Subdivision Street Design Standards
Exhibit #3 - Correspondence dated July 25, 2003 from Mr. Robert S. McLeod, County Administrator