REGULAR COUNCIL MEETING
The Regular Council Meeting was held on July 10, 1989 at 7:30 p.m. with Mayor Richter presiding. Members present were Councilmen Hall, Daisey, Legates, Christiansen, Levitt, Salters, VanSant and Weyandt. Mr. Lynn was absent.
Council staff members present were Chief Hutchison, Mr. Lucas, Mr. Bartolotta, Mr. Cregar, Mrs. Boaman and Mr. Rodriguez.
The invocation was given by Pastor Dorina Miles, followed by the Pledge of Allegiance.
AGENDA ADDITIONS/DELETIONS
Mr. VanSant requested the addition of item #6(d) to take action on the removal of the Sycamore tree located in front of 421 N. Bradford Street.
Mr. Christiansen requested the addition of item #7(j) to continue action on a recent Administrative Study.
Mayor Richter requested the addition of item #8(c) to review a letter sent to former Planner, Jack T. Roe.
Mrs. Legates moved for approval of the agenda as amended, seconded by Mr. Salters and unanimously carried.
ADOPTION OF MINUTES - REGULAR COUNCIL MEETING OF JUNE 26, 1989
The Minutes of the Regular Council Meeting of June 26, 1989 were unanimously approved by motion of Mr. Hall, seconded by Mr. Weyandt and bore the written approval of Mayor Richter.
PUBLIC HEARING - 93 N. STATE STREET - MURIEL SCHWARTZ
A public hearing was duly advertised for this time and place to consider rezoning of property located at 23 N. State Street, owned by Muriel Schwartz.
Planner's Review
The Planner explained that the property located at 23 N. State Street was rezoned from RG-1 to C-2A on April 25, 1989 for the purpose of constructing a hotel and restaurant complex. During the past year, the applicant changed the concept of the development proposal and attempted to rezone the property to allow development of residential condominiums. On June 26, 1989, Council voted to deny the request.
Pursuant to Article 10, Section 5.103 of the Zoning Code, in all cases where the City Council shall approve an amendment to the Zoning Map because of a request for new construction of buildings or structures on the rezoned land or where new construction is required to carry out the new use on the rezoned land, the City Council shall reconsider the zoning classification unless within one year from the effective date of the amendment:
(a) New construction is started on the rezoned land according to the request for amendment and such construction is proceeding in a normal and reasonable manner toward completion; or
(b) City Council is given a satisfactory explanation for the failure to commence construction and a reasonable assurance that construction will commence soon after the passage of the one year period and will proceed in a normal and reasonable manner toward completion.
Since neither of the above conditions were met within one year from the rezoning of the Schwartz property, Council must consider amending the zoning to its prior classification of RG-1.
The Planning Commission reviewed the reconsideration and recommended that 23 North State Street be rezoned back to RG-1, its original zoning classification, since the construction of the Hotel and Restaurant Complex has been abandoned as a development option by the applicant/owner.
Correspondence
The City Clerk reported that no correspondence was received on the proposed rezoning.
Public Hearing
Mayor Richter declared the hearing open.
Mr. James DeLeo of 105 N. State Street encouraged members of Council to rezone the property to its original classification of RG-1 so that the current quality of the neighborhood can be maintained.
Mayor Richter declared the hearing closed.
Mr. Hall moved to accept the recommendation of the Planning Commission to rezone the property at 23 N. State Street back to its original classification of RG-1, seconded by Mr. Daisey. By a unanimous roll call vote (Mr. Lynn absent) , Council adopted the following ordinance:
AN ORDINANCE AMENDING THE ZONING ORDINANCE AND ZONING MAP OF THE CITY OF DOVER BY CHANGING THE ZONING DESIGNATION OF PROPERTY LOCATED AT 23 N. STATE STREET.
WHEREAS, the City of Dover has enacted a zoning ordinance regulating the use of property within the limits of the City of Dover; and
WHEREAS, it is deemed in the best interest of zoning and planning to change the permitted use of property described below from C-2A to its previous zoning classification of RG-1.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
1. That from and after the passage and approval of this ordinance the Zoning Map and Zoning ordinance of the City of Dover has been amended by changing the zoning designation from C-2A to RG-1 on that property located at 23 N. State Street, owned by Muriel Schwartz.
ADOPTED: July 10, 1989
SAFETY ADVISORY COMMITTEE REPORT
The Safety Advisory Committee met on June 26, 1989 at 6:30 p.m. with Chairman Legates presiding.
Request for Sidewalk Installation - Washington Street - Mary Briefman
The committee considered a request from Mrs. Mary Briefman for the installation of a sidewalk on Washington Street. She was concerned with the safety of children walking and riding bikes along Washington Street en route to the Silver Lake swimming area.
City staff reported that several complaints have been received concerning safe access to the Silver Lake Park off of Washington Street. With staff sharing the safety concerns, several solutions have been investigated. Installation of sidewalks would be complicated by the location of trees, the large amounts of fill required in some areas, and the need to cut existing ground in areas where there are large inclines. The estimated cost for installation of sidewalks on Washington Street is $22,000. The committee discussed the parking problem that would be incurred by residents if parking is restricted along this street.
The committee recommended that a pedestrian and bicycle traffic-way be created by eliminating parking on one side of Washington Street during daytime hours.
Mrs. Legates moved for approval of the committee's recommendation, seconded by Mr. Salters.
Questions were posed by Mrs. Legates relative to which side of the street would be chosen for elimination of parking and if the restrictions would be in effect during the summer season only.
Noting that the motion does not address the questions, Mayor Richter suggested additional review of the proposal as well as allowing residents an opportunity for input on the elimination of parking.
Mr. VanSant moved to table the matter until the next Council Meeting, seconded by Mr. Hall and unanimously carried.
Concerns of Adequate Parking for Customers of the New Book Store - Sound Studio
A letter was received from Sound Studio, of 105 N. DuPont Highway, advising the City of a parking problem caused by customers of The New Book Store which is located next to Sound Studio. Other adjacent business owners were present at the committee meeting, explaining that patrons of the adult book store are verbally abusive to adjacent property owners and their customers. Patrons of The New Book Store often park in spaces provided for other businesses and become irate when their vehicles are towed for parking violations. Adjacent property owners also complained of vulgar actions that take place outside of the adult book store in full view of the public.
Mr. Cregar advised the committee that The New Book Store is a legal nonconforming use, which provides adequate customer parking, explaining that the City cannot require additional parking.
Chief Hutchison suggested that the complainants meet with him to draft a letter to the owners of The New Book Store and to submit their claim to the State of Delaware Examiners of Boards and Commissions - Adult Entertainment. He assured the committee that the Police Department will continue to patrol the area for any violations.
Mrs. Legates moved for adoption of the Safety Advisory Committee Report, seconded by Mr. Levitt and unanimously carried.
SYCAMORE TREE - N. BRADFORD STREET
During the Council Meeting of June 12, 1989 a motion was approved to have a sycamore tree, located in front of 421 N. Bradford Street, removed and replaced with a mature healthy tree at the owner's expense. Mr. David Campana, residing at 421 N. Bradford Street, requested the removal of the tree since its roots are causing damage to his sidewalk. Many citizen complaints were received concerning the removal of the sycamore tree and Mayor Richter issued a stop order on the tree removal until Council could reconsider the motion.
A special Public Meeting was held on July 10, 1989 at 7:00 p.m. to afford citizens an opportunity to express their feelings on the tree removal.
Based upon the alternatives outlined in the Public Meeting, Mr. VanSant moved that the sycamore tree located in front of 421 N. Bradford Street, be retained and that the sidewalk repairs necessary, (including consideration of moving the sidewalk around tree), be accomplished; stipulating that staff be permitted to contact the State Department of Agriculture - Dept. of Forestry, to assure the health of the tree. The motion was seconded by Mrs. Legates and carried by a roll call vote of seven (7) yes, one (1) no (Mr. Christiansen), with Mr. Lynn absent.
LEGISLATIVE AND FINANCE COMMITTEE REPORT
The Legislative and Finance Committee met on July 5, 1989 with Chairman Weyandt presiding.
Request for Reimbursement Of Expenses - Rezoning of Wilcutts Property
The committee considered a request from Mrs. Elma Wilcutts for reimbursement of legal expenses incurred during her recent rezoning request to restore the zoning on her property to a residential classification. Mr. Ed McNamara, attorney representing Mrs. Wilcutts, informed the committee of their feeling that the City made a mistake when rezoning this property in conjunction with adoption of the Comprehensive Plan, and requested that Mrs. Wilcutts be reimbursed for all legal expenses. In a letter dated June 12, 1989, Mr. McNamara requested reimbursement in the amount of $4,016.50. An additional bill was submitted to include attorney representation at the June 12th Council Meeting, totaling $4,341.50. An itemized bill was hand delivered to the City Clerk by Mrs. Wilcutts on July 5, 1989 totaling $5,654.00.
In a letter, dated June 13, 1989 (read into the record of the Legislative and Finance Committee in its entirety), Solicitor Rodriguez made the following recommendation:
"The conclusion is that the City did not make any mistake of any nature whatsoever in zoning Mrs. Wilcutts' property from R-20 to IPM. That being the case, we should certainly not bear any of her expenses in arguing that her property should be rezoned to residential. I feel that she must bear her own legal expenses just like any other applicant for zoning or rezoning before the City who is represented by an attorney or a real estate agent. We would be setting a bad precedent to start compensating applicants in zoning and rezoning matters. Therefore, it is my recommendation to the Legislative and Finance Committee that Mr. McNamara's application for reimbursement be denied."
The committee discussed the necessity of certain items listed on the bill such as a property evaluation and a survey as well as the differences in totals of the submitted bills.
Although the City was not legally at fault in this matter, some members of Council felt that the City should compensate Mrs. Wilcutts for a portion of the expenses incurred in rezoning her property back to its original zoning classification since it took a considerable amount of time to achieve its approval.
A motion was made by the committee to recommend that Mrs. Wilcutts be reimbursed in the amount of $4,016.50 for expenses incurred in the rezoning of property located on Horsepond Road. The motion failed by a tie vote of two (2) yes, two (2) no (Mr. Weyandt and Mrs. Legates).
Based upon the opinion of the City Solicitor, Mr. Weyandt moved for denial of the request from Mrs. Elma Wilcutts for reimbursement of expenses. The motion was seconded by Mrs. Legates and defeated by a vote of six (6) no, two (2) yes (Mrs. Legates and Mr. Weyandt) with Mr. Lynn absent.
Feeling that there is culpability on both sides, Mr. Hall stated his feeling that neither side should bear the total responsibility of costs incurred. He moved that the City Solicitor and legal counsel for Mrs. Wilcutts get together to devise an equitable split of the costs so that both sides share in the financial responsibility that has been incurred. The motion was seconded by Mr. Levitt.
Mr. Rodriguez stated that his position was outlined in his letter to the Legislative and Finance Committee. He feared that approval of Mrs. Wilcutts' request would set a very dangerous precedent for future rezonings. He stated that culpability on the part of the City does not exist, since the rezoning of Mrs. Wilcutts' property was not a mistake, but was exactly what was suggested by Mr. Norman Day, the planning consultant for the City in the Comprehensive Plan update.
Since written documentation has already been received from both attorneys, Mr. VanSant stated that he could not support the motion. Mr. Weyandt agreed, stating that referring the matter back to the attorneys would only result in additional legal fees.
The motion was defeated by a vote of six (6) no, two (2) yes (Mr. Hall and Mr. Levitt), with Mr. Lynn absent.
Mr. VanSant reiterated his feeling that although all legal requirements were met, City staff failed to comply with a directive of Council to send certified letters to those property owners affected by the potential rezonings in conjunction with adoption of the Comprehensive Plan.
Mr. Daisey stated his feeling that the Wilcutts case involves a very unusual set of circumstances that adversely affected Mrs. Wilcutts' property and he felt that the City has an obligation to provide some financial relief.
Mr. Salters expressed concern with approving a reimbursement of expenses, feeling that Council would set a precedent for future rezoning applicants.
Mr. VanSant moved for approval of a reimbursement of $3,500 to Mrs. Elma Wilcutts for expenses incurred in the rezoning of her property located on Horsepond Road, stipulating that this action is not an indication of noncompliance of Code requirements by the City, but rather is considered a very unique rezoning situation, and this action should in no way be considered as, an established precedent by the City. The motion was seconded by Mr. Christiansen and carried by a roll call vote of five (5) yes, three (3) no (Mrs. Legates, Mr. Salters and Mr. Weyandt) with Mr. Lynn absent.
Request to Purchase Citv Propertv - Route #9 and Kitts Hummock Road
Kent County has expressed an interest in acquiring land owned by the City located on Route #9 and Kitts Hummock Road, known as the Huebner Farm, for land application of sewage sludge. A current lease on the property will expire on December 31, 1989.
The committee recommended that the City Assessor be authorized to have the property appraised by a certified appraiser and that upon receipt of the appraisal, a public auction be scheduled for the sale of the property with the bid price to start at the appraised value of the land.
Mr. Weyandt moved for approval of the committee's recommendation, seconded by Mr. VanSant and unanimously carried.
Dover Parking Authority - Request for Funds - Archaeological Study of Water Street Parking Lot
A request for funds by the Dover Parking Authority was considered by the committee. The Authority requested financial assistance of at least $25,000 in order to pay for the archaeological survey of the Water Street Parking Lot.
Since the study has not been completed and the final costs are not yet known, they tabled action until all data is available.
Kent General Hospital - Request for Property Tax Exemption
Mr. Kevin Howard, legal representative for Kent General Hospital, requested that a special tax appeal hearing be set to address an appeal of property taxation by Kent General Hospital for properties located at 1275 S. State Street and 800 S. Bradford Street.
Mr. Howard informed the committee that a misunderstanding occurred between himself and the Assessor's Office. In letters of July and August 1988, Mr. Howard requested that the properties be removed from the City's tax roles. The Assessor explained the appeal process, informing Mr. Howard that appointments could be scheduled in the spring of 1989. When the 1989 Property Assessment Appeals Committee met in June of 1989, Mr. Howard's appeal was not considered since he had not called back for an appointment. Mr. Howard contends that his letters of July and August 1988, as well as telephone conversations with the Assessor, should have been construed as a hearing request and that he should have been contacted once an appointment could be arranged.
The committee recommended denial of the request for a special tax appeals hearing for properties owned by Kent General Hospital.
For future tax appeals, it was suggested by the committee that the Assessor devise a policy on acceptance of tax appeal requests to include time constraints and requiring that requests be made in writing.
Mr. Weyandt moved to accept the committee's recommendation to deny the request for a special tax appeals hearing for properties owned by Kent General Hospital. The motion was seconded by Mrs. Legates and unanimously carried.
Recommended Modifications to City of Dover Housing Code
In reviewing the City's Housing Code, it was determined that modifications are necessary in order to comply with requirements of the State's Housing Code. After extensive review of applicable codes with the Delaware State Housing Authority, the Divisions of Housing and Community Development and the City Solicitor, the City Planner recommended that the 1987 BOCA National Existing Structure Code be adopted. Since the City currently utilizes the BOCA Plumbing, Mechanical, and Fire Prevention Codes, this action would simplify code enforcement and maintain consistency in official code recognition.
The committee recommended adoption of an ordinance to adopt the 1987 BOCA National Existing Structure Code.
Mr. Weyandt moved for approval of the committee's recommendation. The motion was seconded by Mrs. Legates and by a unanimous roll call vote (Mr. Lynn absent), Council adopted the following ordinance:
BE IT ORDAINED BY MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET, THAT THE DOVER CODE BE AMENDED AS FOLLOWS:
Amend Chapter 10, Housing Code by deleting in its entirety the existing Chapter 10, Article 1, Article II & Article III, and inserting the following new sections:
Sec. 10-1. Adopted.
(a) There is hereby adopted by reference that certain publication known as the BOCA Basic National Existing Structures Code 1987, recommended by Building Officials and Code Administrators International, Inc. Three (3) copies of such publication area on file in the office of the Building Inspector and such publication is adopted and incorporated as if set out at length herein.
(b) It shall be unlawful for any person to violate any of the provisions of the publication adopted in subsection (a).
Sec. 10-2. Definitions.
(a) Whenever the word "municipality" or the word "City" is used in the publication adopted by this Article, it shall be construed to mean the City of Dover, Delaware.
(b) Whenever the term "Corporation Counsel" or "City Attorney" is used in the publication adopted by this Article, it shall mean the City Solicitor.
(c) Whenever in the publication adopted by reference in this Article a term is used which is also defined in the City's Zoning Ordinance, such term shall have the meaning provided in the City's Zoning Ordinance.
Sec. 10-3. Conflicting Provisions.
In the event of any conflict between the provisions of the Code adopted by this Article and applicable provisions of State Law, this Code or any other Ordinance, rule or regulation shall prevail and be controlling.
Sec. 10-4. Enforcement.
The Building Inspector shall enforce the provisions of the publication adopted by reference in this Article.
Sec. 10-5. Housing Code Board of Appeals.
(a) There shall be a board to be called the Housing Code Board of Appeals consisting of three (3) members, one of whom shall be the City manager and the other two (2) being elected City officials. The City officials shall be appointed by the Mayor, subject to confirmation of a voting majority of the City Council at its annual meeting.
(b) A member of the Housing Code Board of Appeals shall be removable by a three-fourths vote of the City Council excluding any elected official under consideration, after written notice shall have been given the member being considered for removal at a reasonable time prior to the proceeding, stating the time, place and date of the removal proceeding.
(c) A requirement, decision or determination made by an administrative official or a request by an official, board or agency of the City relating to this article may be appealed within fifteen (15) days from the date that the appellant receives the determination, request, or decision by mail to the last known address of appellant as provided by appellant to the City or within fifteen (15) days after a City official has personally delivered the same to appellant.
(d) All appeals shall be in writing on a form prescribed by the Housing Code Board of Appeals. (Ord. of 5-10-82)
ADOPTED: July 10, 1989
Request of Virginia Jacobs for the City of Dover to Purchase Property at 29 Lincoln Street
Mrs. Virginia Jacobs offered to sell to the City a small lot at 29 Lincoln Street at a cost of $7.00. She feels that the lot is too small for any personal use and suggested that the City utilize it for recreational purposes.
After considering the offer, the committee acknowledged no viable use by the City since a recreational park is already planned at the end of Lincoln Street.
Since the owner lives in California, the committee directed that the Assessor contact the owner's representative (Mr. Frank Young), to suggest that the adjacent property owners be contacted to reveal if they may have an interest in the property.
Council took no further action on the matter.
Proposed Ordinance - Uniform Collection of All City Bills
At the direction of the Legislative and Finance Committee, City staff submitted a Uniform Collection Ordinance that would allow for the collection of outstanding bills with the City by discontinuing any and all City of Dover services currently being provided. The ordinance would give the City the right to terminate, disconnect, and/or deny City services to anyone who owed an outstanding bill to the City of any nature whatsoever.
The committee recommended adoption of an ordinance to implement a uniform collection of all City bills as submitted by City staff.
By motion of Mr. Weyandt, seconded by Mr. Daisey, Council adopted the following ordinance by a unanimous roll call vote (Mr. Lynn absent):
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
The Dover Code is hereby amended by adding a new section to be designated Sec. 2-100 to read as follows:
The City Manager, or his designee, shall have the power to terminate or disconnect or deny all City services to any person, firm, or corporation to assist in the collection of any outstanding bill owed the City of Dover along with the power and authority to restore or reconnect City services upon payment in full of the outstanding bill or bills. In disconnecting or discontinuing services, the City Manager shall utilize existing ordinances pertaining to such disconnection and other due process procedures mandated by ordinance or procedures adopted by the City. This method of collecting outstanding debts owed the City shall be in addition to any other methods previously enacted or hereinafter authorized by Council.
ADOPTED: July 10, 1989
Mr. VanSant stated that the City Manager will comply with all other ordinances that govern disconnection of medically dependent customers.
Proposed Resolution - Authorized Strength of Police Force
The City Code requires that Council designate the number and salaries of the individual police officers who comprise the police force. In accordance with the recently approved 1989/90 budget, it is necessary to adopt a resolution to increase the police personnel to a total of 68 officers.
Mr. Weyandt moved for approval of the following Resolution, seconded by Mr. VanSant and unanimously carried:
WHEREAS, Article 1, Section 18-1 of the City of Dover Municipal Code requires that City Council designate the number and salaries of the individual police officers who shall comprise the police force; and
WHEREAS, in accordance with this section of the Municipal Code, the Mayor shall appoint the police officers; and
WHEREAS, it is required that the police personnel level and salaries be set during the Annual Meeting of City Council.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
1. That the Mayor and Council hereby designates the police personnel level to be set at 68 officers.
2. The Mayor and Council hereby approves police personnel salaries in accordance with the contract with the uniformed police officers and the budget that will be adopted in accordance with said contract. (A copy of the adopted contract wage scale is attached to this Resolution.)
ADOPTED: July 10, 1989
Update on Purchase of Shutte Property
A purchase agreement on the Shutte property was signed on April 24, 1989, to be completed in five months. A memorandum was submitted explaining the various tests that are ongoing and stating that a final recommendation on the purchase will be made by August 1st. No action was taken by the committee.
Mr. Weyandt moved for approval of the Legislative and Finance Committee Report, seconded by Mr. VanSant and unanimously carried.
ADMINISTRATIVE COMMITTEE - FULL-TIME MAYOR
Mr. Christiansen referred to a recent report from the Administrative Committee on the administrative structure on the City of Dover government as well as a report from a former Charter Review Committee and made the following motion:
In conjunction with a recent Administrative study on City government structure, I move to develop criteria for an ordinance for the position of a full time Mayor. Inclusive in this ordinance would be organization, duties 'and responsibilities, and compensation. The motion was seconded by Mr. Weyandt and carried by a unanimous roll call vote (Mr. Lynn absent).
CORRESPONDENCE
Request to Hold Summer Festival at Bay Court Plaza
A request was received from Victory Chapel, Inc. to hold a summer festival on the Bay Court Plaza parking lot, from August 10th through August 20, 1989. The purpose of the festival is to raise funds for their Christian Academy. Permission has been obtained from all merchants in the shopping center, as well the management of the lot, and Skelleys Amusements have $1,000,000 of liability insurance on the rides and food.
Mr. Christiansen questioned the method utilized in checking the authenticity of the liability insurance and suggested that City staff verify that liability coverage is current and that the City of Dover is properly covered.
Mr. VanSant moved for approval of the request, stipulating that the event be coordinated with the Chief of Police and the Department of Inspections, seconded by Mr. Christiansen and unanimously carried.
Suggestions on Bagging Grass Clippings - Linda B. Capone
Referring to a newspaper article by the City that asked citizens to bag grass clippings, Mrs. Linda Capone suggested that alternative options be reviewed. Most plastic bags, even those considered as biodegradable, take a considerable amount of time to decompose. Mrs. Capone suggested that the City look at alternatives such as utilizing plastic trash cans for grass clippings. She also suggested the possibility of using the present trash collection system, with grass clippings in a separate color coded container.
Mrs. Legates moved for referral to the Utility Committee, seconded by Mr. Christiansen and unanimously carried.
LePore Drive Project - State of Delaware
Referring to a letter from the State Division of Highways, directed to Jack Roe, Mayor Richter noted that the project received a special award from DelDOT. Noting that the project was voted the Outstanding Special Project of 1989, Mayor Richter stated his feeling that the City should be recognized for their part in the project.
Mr. Weyandt moved to adjourn into open forum and then into executive session to discuss personnel matters.
Meeting Adjourned at 9:10 P.M.
OPEN FORUM
Mayor Richter declared the open forum in session and reminded those present that Council is not in official session and cannot take formal action.
John Kernan - Rezoning Procedures
Mr. John Kernan referred to laws that allow for reimbursement of legal fees, stating that as a private citizen he hopes that the City will take action to adopt ordinances that will prevent the type of misunderstanding that occurred with the Wilcutts property.
Meeting Adjourned at 9:15 P.M.
DEBRAH J. BOAMAN
CITY CLERK
All orders, ordinances and resolutions (except that portion of the minutes relating to a “Request for Reimbursement of Expenses for the rezoning of the Wilcutts Property”) adopted by City Council during their meeting of July 10, 1989, are hereby approved.
JOHN E. RICHTER
MAYOR
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