Minutes
Thursday, July 25, 2002
The meeting was called to order at 5:00 p.m. Members present were: Alderman Charles Koehler (acting Chair) and Alderman Foeckler. Also present were Robert Kufrin, City Attorney Larry Haskin, Mike Sullivan, Susan Winnen. Alderman Kopplin was unable to attend due to a family illness.
The minutes of May 9 should be amended to reflect that Alderman Charles Koehler was in attendance, not Merlyn Koehler. Alderman Foeckler made a motion to approve the minutes of May 9, 2002 as amended. Alderman Koehler seconded. All aye; motion carried.
Bill Schaper has come to Mike Sullivan and indicated that there’s no way he can maintain this over the winter. It is a temporary asphalt cul-de-sac on the end of a concrete street that had been put in when the subdivision was in. Because of the very nature, the temporary cul-de-sacs aren’t built as strong as the streets are and over time it has deteriorated. It’s gotten to the point where as the deterioration goes, it accelerates rapidly. The suggestion is to add is to the 2002 paving program.
Mike indicated that we have an easement, but not a right of way where the cul-de-sac is located. The cul-de-sac is used for fire access, garbage trucks, plows, residents.
Mike suggested the same thing we do on any of our resurface streets; we pulverize what isn’t already pulverized, regrade it and put three inches of asphalt on top of it. If the base is bad, it will be dug out.
Bill will look at the two cul-de-sacs to the west. They seem to be in similar condition with the rest of the street. They’re not in perfect condition, but they’re not as bad as this one. There’s nothing we need to address as a special note; we can do it when we do the streets.
Alderman Koehler made a motion to add Oak Lane cul-de-sac to the 2002 paving program. Alderman Foeckler seconded. All aye; motion carried.
There is a utility timeline in terms of adding the fee to the utility bills and providing notification. The budget had anticipated a stormwater utility being created this year so it would go into place next year. If there’s no action on this until the 2003 budget, it may get lost in the shuffle. It’s an idea that may be worthwhile to discuss and act on by itself. It will be controversial in that it will be raising fees. Our costs for doing these things have gone up significantly. Other communities have done it. The budget identified it.
Wayne indicated that if we’re going to start billing on January 1st, we’ve got to get the data to the utility by September/October. How do we determine what to charge? The range of money that could be justified in collecting is $100,000 to $2 million. Direction is needed on setting a rate structure.
A special Monday night Council meeting to review the issues may not resolve the issue, but it help for at least a couple of the aldermen to be used as sounding boards and then the issues and concerns could be discussed. It’s unlikely that an extra meeting would resolve anything. If we end up with more questions after that meeting than what we went in with, we haven’t necessarily accomplished anything.
Alderman Foeckler suggested that another option would be to move backward and say we want to collect $1 million and determine how to do it. We had an inventory of impervious surface dated 1995. Engineering has been working on updating that report. We think we have fairly accurate numbers. We can’t determine how much the first bill can be to residential until we know how much we are trying to collect. Right now we have an ERU (Equivalent Runoff Unit) of 3,200 square feet. If we used an estimate of 8,000 households, we would have to charge $62.50 per year to collect $500,000. That figure would go down as businesses and other properties are included in the calculation. Bob estimated that it would reduce the fee to approximately $40 per household per year.
Alderman Koehler expressed interest in challenging the DNR on some of their issues rather than just accepting their requirements and passing the cost on to the taxpayers. Bob explained that the law was passed in the early 1990s. We had to get into compliance and go through a lengthy process that was part of the stormwater master plan, during which we got a permit that required us to do a variety of things. We had to agree to do those things. The first permit was for five years with the expectation that future permits each time would be more strict and have more requirements placed on us. Under the terms of our existing permit, we’ve got a deal with the state that we may not be able to break because we’ve already signed on the dotted line that we will comply with that.
At a previous committee meeting, the consensus was to go to the intersection and capture as many points as can be to reduce the flooding. An issue that came up was assessments. No stormwater project that was identified out of that plan that has been completed has been assessed. Do we have to go through a process and an assessment hearing to proceed with this project? The property owners will make the following arguments: (1) The project isn’t being done because of any problem they’ve caused; (2) they’re at the head end of the project and it’s everybody upstream that’s been flooding them out; (3) if the City had done this right 30 years ago, the problem wouldn’t be here today.
The cost of the project is $70,000. There is a maximum assessment on storm sewer; the amount assessed would be less than half of the project cost. Originally the project was scoped out around $650,000. At the hearing, there was no acceptance that there was a problem. The project cost reduction was due to the removal of two full blocks of storm sewer; to feed the storm sewer the ditches were removed, curb and gutter was planned and the street had to be re-established.
Each stormwater project is going to become more complicated. In regard to the assessment issue, Mike indicated that this project more closely mirrors a street rehab where storm sewer is added; in which case the residents would likely be assessed for storm sewer, curb and gutter, etc. The other projects on the list include fixing stormwater problems going through back yards and ditches. That explains why the other projects weren’t assessed.
We typically assess when the improvement never existed. When the improvement already existed and we replace it, we don’t charge. The committee discussed how to determine when to assess. On a project basis, if it allows downspouts and sump pumps to be connected into it, then there is a benefit and everyone is assessed; whether or not the lot is vacant is immaterial.
The city ordinance requires the Building Commissioner to order the connection when storm sewer runs down the street. The City Engineer is obligated to determine whether that storm sewer is available. If there is no lateral, it’s not available. If there is a change later and connections are allowed, the City can reserve the right to impose a fee at that time. Drexel Avenue is a good example. There is a very large pipe going down Drexel Avenue that is not available for laterals to connect.
Engineering will proceed with as a non-assessed project and they’ll look at a connection mechanism for non-assessed storm sewers. The basis for not assessing will be not having the opportunity to connect as determined by the current City Engineer.
No discussion took place.
Northwestern Mutual Life (NML) had done a traffic study under the new regulations and in this case the regulations probably worked to our benefit because the new study required NML to go out roughly 2-3 miles away from their site and look at traffic impacts. One of the things that changed was that they looked at 20 year growth on 27th Street even if there was no NML out there. Those traffic volumes themselves are scary because nobody had done that. They’ve come up with a variety of plans and one of the things they’ve asked to do is provide a presentation to Oak Creek City Officials and give Oak Creek and Franklin a chance to talk. They are looking for the City of Oak Creek to sign on to this general plan. Bob feels it is worthwhile for NML to make a presentation. One of the issues is that the memorandum of understanding is between the City and the State; not between NML and the State. So if there are any future improvements in the City of Oak Creek required by them, we’ve got to pay for it unless we cover it with some other agreement. Since NML is in Franklin, our ability to negotiate is diminished.
Bob suggested asking NML to make a presentation and we invite Franklin so everyone can see what’s going on. The Committee agreed that a meeting should be arranged. Alderman Koehler asked that it be held prior to a regular Council meeting. Bob indicated that previous similar meetings were typically held at the Community Center on a separate evening, occasionally as a dinner meeting.
Wayne indicated that the DOT would like us to agree to close the turnaround. The only one that he thinks we can give up at this point is the northernmost one because many people use the turnarounds for the move theater.
Occupancy is expected in early 2004.
On a tangent issue, regarding 13th Street, the County has come back. Their first offer included asking us to agree to those two projects. Instead of committing to the whole thing, they’re willing to take a committal to do just the design. Our cost is $150,000. Their latest idea is for us to take the funding that we get from the state to do major projects like we’re getting on Pennsylvania and like we did on Drexel in the past, use that funding exclusively to support this $150,000 so nothing comes out of our pocket. They would work that out with DOT and make it agreeable provided we have that amount available to us. Our allocation is approximately $1.5 million right now.
If we do a project with that money, working with the state and closing out a project is nearly impossible. The best example is River Hills tried to sell their State allotment because they didn’t want to follow the State standards of keeping trees within their guidelines. They wanted to sell their allotment to another community. We looked into it and they got pennies on the dollar because State funding is so complicated to use. If we use our money for the County, the County lives with the State’s problems and we don’t have any local taxpayer money going into it. If there’s an agreement on that, we still should have the “me too clause” in there since we’re now negotiating the contract. If anybody pays less of a percentage, ours drops too. The ICC was after the new County Executive to review this and we don’t know where that stands. Bob didn’t see much chance of that happening, primarily because he doesn’t have any more money. His option is to scale back all of the work to meet the lesser dollars that he has.
The $1.5 million is uncommitted. Our total cost on 13th Street is about $1.1 million. The total project cost with everyone contributing is $5.5 million with construction to begin in 2004, although now with the way things have gone, they’re saying design in 2003-2004 and construction 2005. The Rawson project is $3.2 million; our cost is $320,000 with construction expected to begin in 2006 The City of Milwaukee is also a participant on 13th Street and Mike asked if they’re on board. The County has said that they are, but at this point we can’t be sure. The fund is funded at close to $500,000 per year. The County planned to use some of their state funding for this project anyway. The State agreed that they can do that for their share, but Mike doesn’t understand that typically we have to pay something out of our pocket. Typically there’s 80% State funding, 20% local, so even with our share to the County, we would still have to pay 20%. The County says they’re going to work it out where we wouldn’t have any of it.
Wayne suggested that the CIP Committee recommend to Council that the last deal be put forward with the “me too” clause stating that if any other municipality in this county gets a better deal on the percentage we get the same deal, all state funding, no local taxpayer money and commit to only the design right now. Whether or not the County would buy into this idea is unknown. Mike added that the current offer is only on 13th.
Bob indicated that one of the recommendations can be that the committee discussed it and feels that it’s important enough that the entire Council make the decision; that there’s either no recommendation or a split recommendation, but that the committee feels that an entire Council discussion is warranted. Our last joint effort project (Drexel Avenue), took several years and is still not entirely complete.
Larry Haskin indicated that this is an example of a project that appeared to be not as complicated on paper that it proves to be in practice. The Council gave authorization to move forward with the cleanup of the full width of the spur track. Specifications have been approved and it’s out to bid. There was a staff meeting on Monday and he and Wayne have since spoken about the issue extensively. A follow-up meeting was scheduled for today, but was cancelled. The environmental testing shows contamination all the way up to the boundaries. The conclusion is that there is also contamination on the private property as well. There are also encroachments onto the spur track in the form of a gravel driveway that leads to a garage, a fenced-in area, a 30-inch diameter tree, and a pile of belongings. The whole deal emanates from an offer to buy this property in 1996, which was before some changes to brownfields legislation. The legislation states that if under certain circumstances if a municipality acquires property it can gain the benefit of the liability exemption, which would primarily be an eminent domain condemnation type proceeding. The way this was structured was not that.
Larry’s recommendation is to pull back the specifications, not have the bids submitted and delay the project until we can talk to Allis Chalmers (AC) about re-starting the process under an eminent domain proceeding, so we could then acquire it, clean it up and gain the benefit of a liability exemption. The drawback to this is that there is a county-wide deadline on the expenditure of community development block grant funds which are being used to fund this project of approximately $30,000. We wouldn’t risk losing all of the funding for the project.
Bob added DuPont bought AC’s assets in 1999 and that the land is listed under DuPont, however it is unclear whether the land west of 5th Avenue belongs to DuPont or to AC.
In the big scheme of things it would be more important to get the exemption than to get the project done by October. The exemption would mean that if five years from now someone gets cancer because of exposure to the contaminants, they don’t have a suit against us. The dilemma is how to deal with the contaminants on private property.
The group discussed holding an informational meeting before the bids are opened. Bids are expected to be in next Thursday.
The original soil samples were limited to the property line; we had no right of entry onto private property. When contaminants were found at the property line, the report conclusion indicated leeching onto private property.
The existing expected schedule didn’t allow for a lot of citizen input and discussion. The earliest possible start was August 19th and he had to have all of the bad soils out and the clay in by September 15th. That’s what we needed to get the paperwork in to make sure we got the grant money.
Letting the bids come in and rejecting them to see where we’re at would run the risk of upsetting the bidders. Would we then need to start talking with the citizens? There aren’t a lot of companies that do this work. We currently have three bidders, the qualifications of one of which are questionable. We could potentially get better bids if we didn’t have such a tight timeline. We also have not identified exactly where the encroachments are in relation to the property lines. Wayne tentatively had someone scheduled to do the survey tomorrow, but he moved that to Monday in light of Larry’s recommendation.
Alderman Foeckler made a motion to recommend holding the issue; seconded by Alderman Koehler. All aye; motion carried.
Bob will write a memo to Wayne indicating that we should stop the project issue based on the recommendations of the City Attorney and the CIP Committee. A memo will also be written to the Council so that they’re aware of the situation and to consider action at the next Council meeting for condemnation proceedings against the owner of the spur track point to point. The four parcels are listed as one tax key number.
We know there is contamination that has leached onto our property on the access road. We want the DNR to give us a letter of no responsibility that says we own it but aren’t responsible for the contaminants. That’s one way to take care of the citizens. We’ll need to do that before we transfer the title. Another option is to extend the boundaries until the contamination is gone. That’s a big policy decision; it’s hard to say where that ends, or how many wells are involved. It could be a big municipal project.
If we participate in the brownfields program appropriately, we don’t pick up that liability and if we sell it, that liability doesn’t pass through us. The order from the DNR absolves us from any future responsibility, which is certainly better than when this started in 1996. Susan added that the NR (state rule) is basically directed by the federal rule.
Wherever we had an opportunity to slow down a process and argue for more time, to put off implementation, we did. Water quality was part of the stormwater plan that Council adopted in December. We don’t envision that being mandated implementation for like 30 years. If you become obstinate and it becomes combative, you may lose. Cities of the first class were the first to be affected and they had to comply. No one was going to stand by them and they weren’t going to fight alone, so they got their permit. Then anyone who drains into those cities was in the next round – that was us. Franklin is five years behind us. The implementation was staged so there wasn’t a huge revolt. We continue to look at Milwaukee’s permit since they’re a generation in front of us and we make sure we get a good deal. It still costs a lot of money. The City would rather do street sweeping than start condemning land to build water quality ponds in a hurry. That’s the trade off we’ve made. We thought maintenance and catch basin cleaning and the street sweeping was by far a better deal for the City than starting to go into megaponds on a water quality basis hoping that some rationale and limitations hit before the build pond-building scenario drops over our head. In the second five years they’re looking at us to retrofit two of our existing water ponds into water quality. The initial recommendation was for 50 ponds. We’re now ten years into it and we’ve got a requirement of two ponds. It’s not as bad as it could be.
Alderman Koehler understood trying to recoup some of the money but asked why monies from other projects couldn’t be shifted to this to avoid charging residents more money on the tax roll. There are a lot of things that we have been doing before this permit that could be considered stormwater that we didn’t identify as such – putting culverts in, digging out ditches. Realistically, we’re going to spend $750,000 to $1 million this year when only half a million is in the budget. It’s all the other things we’re doing as well, not just the permit. At $1 million a year, that’s our whole paving program. The trade off could be done in the short term, but eventually you run out of options where the other need is as great or greater.
One of the things we’re going to be scheduling is a borrow to make up for the prepayment of the unfunded pension liability, which needs to be scheduled this summer. There are a series of projects that were committed to, which were all deemed worthy. Stormwater related projects could continue to grow at the expense of replacing trucks or buildings and completing other needed infrastructure. Every year Council decides what the CIP program will include. We’ve taken $1 million out of it already, so the $6 million program has dropped to $5 million and if we take another $1 million out for stormwater, it drops to $4 million. The stormwater items are not going to become any less expensive. If stormwater continues to impact funding for the other CIP projects, soon there will not be a CIP program and we will create a tax levy for ongoing maintenance. If it is going to continue, then it might as well be set as a separate levy as compared to the CIP program, which is used for specific individual items, not major programs.
If the stormwater utility fee is put on a utility bill, then it is not tax deductible. If the commercial and industrial property owners don’t vote, then is it better to charge every property owner a set fee every month as compared to putting it on their taxes and only taxable properties pay? People living in apartments aren’t getting any benefit for income tax deductibility. Approximately 40% of our population is living in apartments. The average residential homeowner would pay $3-$4 per month for stormwater purposes.
For the next meeting, Alderman Foeckler asked for an estimated cost calculation per property based on $500,000 per year. Bob suggested also providing a calculation to show how much would be raised based on a fee of $2 per month.
The meeting adjourned at 7:05 p.m.