Overland City Council Meeting 10/22/2007

Before this article begins I would like to apologize for the delay in getting this published. Unfortunately, my full time job (that supports my family), though my employers are very understanding and accommodating, does not always allow me the time needed to work on this project. Add to that the extensive work being done on a new version of this site (which is nearing completion), and time simply got away from me. Though I am doing radically better at time management these days, I still slip up from time to time.


The Overland City Council held their regularly scheduled meeting on October 22nd at the Overland Community Center. While we have become used to the spirit of cooperation and compromise the Council and the Mayor has shown since the August election both seemed all but absent at this meeting.

Residents comments included one resident asking when the Council was going to move forward on their proposal to fund helping needy families with the cost of their trash service (They budgeted $50,000.00 toward this earlier in the year). She was advised that they are working on it but as yet have no firm time frame for implementation. Another asked the Council and the Mayor to make filling the City Administrator position a top priority. One resident made an excellent point in my opinion. When Overland is already dealing with a negative image problem why would we add to it in prime time by holding a town hall meeting on a rat issue that is no worse than any inner-ring suburb? Also at residents comments an announcement of a Public Meeting focusing on Global Warming issues and what average people can do about it. This meeting will be held at the Overland Community Center, in the Activity Room on Saturday, November 3rd, 2007 from 2:00 to 4:00 PM. I hope to see you all there.

The bills and the approval of the minutes went without issue other than Councilman May asking that the October 15th, 2007 Special Council meeting minutes be amended to include his motion to table the consolidation issue. The vote to approve this change went 7-1 with only Councilman Owensby opposing.

At this meeting Mayor Schneider reappointed some members and newly appointed others to the Board of adjustment. At an earlier meeting the Mayor expressed his desire to ensure that every Ward was once again represented on the Board.

Jack Arnold of Ward 2 was reappointed to the Board by a 7-1 vote with only Councilperson Owensby opposing.

Rudy Kuhlmann of Ward 4 was reappointed to the board unanimously. Oddly enough, Councilperson Owensby made the motion.

Bob Aston (not sure of the spelling here) of Ward 3 was appointed unanimously.

Dennis Hegamann (not sure of the spelling here either) of Ward 1 was appointed unanimously.

Jon Seals of Ward 1 was appointed as the alternate unanimously.

There was no mention of addressing the expired terms of some on the Planning and Zoning Commission, though we assume that will be coming up in the near future.

During the Clerks report several new business licenses was listed including Wendy's, which I believe is for their location in the Home Depot parking lot at 170 and Page that has been closed for some time now. Personally I've always been a fan of Wendy's so I look forward to their reopening.

During the Report of the City Attorney is when everything started to fall apart. The first issue raised was the consolidation of lots 9616 - 9622 Midland ave. These are commercial properties that had formally be occupied by a construction company. It was said at an earlier meeting that the owner needed to consolidate the lots because he had a buyer whose bank would not finance the deal unless they were consolidated into one property. Normally consolidations like this are a simple procedure. The Council is involved because all lot consolidations or subdivisions require an Ordinance. Normally such a consolidation would go through without a hitch because the property is vacant and consolidating the lots makes it easier for the owner to sell the property (hopefully bringing a new business to Overland in the process). This issue was a bit different however.

Before we go further I would like to point out that my family lives within a few blocks of this property. While I am confident my position on this issue would be the same if it was anywhere else in town, to some this would constitute a personal bias.

First there is the type of company looking to move into the property. Pool Pros (this link may be broken) is a swimming pool maintenance company. As such they would be storing large quantities of chemicals including chlorine on-site (as they currently do at their 2533 Link Location). That puts those hazardous chemicals across the street from Legion Park, a few doors down from a Day Care Center, a few blocks from Marion School (and along the route many children walk to get to that school). Additionally, these lots boarder Cold Water Creek and several residences share a property line with it. Considering all of this it would seem obvious that such a business does not belong at this location. There are a host of industrial park locations in Overland that would be better suited for such a company. These issues were also raised at the October 15th Special Council Meeting that was held after the Town Hall Meeting that evening.

Normally, this would not be a concern when considering consolidating lots. Consolidating the lots helps the seller, but the buyer normally has to go through the same inspection and review process all commercial interests have to go through to open a business in Overland. However, it was suggested by Acting Public Works Director Chuck Boone that the former construction company and the new pool company are similar businesses and thus he would have to transfer the Conditional Use permit. This would allow this company to move into this property without Planning and Zoning Commission or Board of Adjustment review and without any Public input on the issue. It is because of this that the consolidation became an issue. Several on the Council felt that they could not let this business circumvent the process designed to protect the city and its citizens.

I reviewed the Overland Ordinances on Conditional Uses trying to figure out where Mr. Boone was coming from on this. To give a current conditional use permit for one company to another would seem to come under one of two ordinances:

SECTION 400.705: TRANSFERABILITY

All conditional use permits shall be approved for the originating applicant for a specific location, and may not be transferred to any other location by that applicant. Should title to the property be transferred to a different owner, a renewal of the original conditional use permit shall be required. (CC 1976 App. A §10.10; Ord. No. 2449 §1, 11-14-88; Ord. No. 2542 §2, 12-11-89)

SECTION 400.685: PROCEDURE TO AMEND APPROVED CONDITIONAL USE PERMIT

In order to amend an existing conditional use permit, the application procedures, required materials, approval process, and appeal process shall be the same as for a new permit.

In both cases it appears that a new company would have to go through the same conditional use permit application process that all companies have to go through. That means a review by the Planning and Zoning Commission and a Board of Adjustment Hearing, both of which allow for public comment. Interestingly enough, this property is currently zoned as C1. According to APPENDIX A: TABLES OF PRIMARY USES, ACCESSORY USES AND PLANNED USES, whether you call this company a Construction Contractor (as Acting Public Works Director Chuck Boone suggested) or a Repair Services (off-site) company (which seems more accurate) both such companies are specifically prohibited from being in a C1 zone.

If the Conditional use permit process is properly followed it appears that there is no way within Overland's Ordinances that a company like this could operate at this property. Also, there are specific provisions in the ordinances for public protest and City Council review. If the city was to have this company properly follow the process set forth in our ordinances it is doubtful that they would be allowed to open both because of likely public protest and the fact that our ordinances do not allow this sort of company within this zoning classification.

Councilpersons May and Cuminale both of Ward 1 (where this property is located) fought for proper review as did Councilpersons O'Connell and Conlon (both of Ward 2). They were concerned that this company was going to be allowed to circumvent the normal process. At one point they offered a compromise to amend the ordinance consolidating the properties to specifically require a planning and zoning review for any company seeking to occupy the property. This compromise was not adopted. Ultimately, Councilpersons Owensby and Keller, both of Ward 3 and Councilpersons Jones and Dills, both of Ward 4 voted for the Consolidation with the Mayor casting the deciding vote in favor of it.

I was disappointed in the Mayor on this issue. Since taking office, when faced with a divided Council, Mayor Schneider has tabled issues to be fully discussed at a Workshop meeting in order to try to find workable compromises. I have appreciated his efforts in this regard in the past and I was surprised that he did not do the same here. Ultimately this consolidation passed, however if the company does move forward and the Public Works department does attempt to circumvent the process, legal action against the city on this issue is highly likely. If reason does not prevail at City Hall, hopefully good business sense will and the Owner of this company will reconsider this location. If so I hope he chooses to look into properties in more appropriate locations and zones in Overland.

What disappointed me the most on this issue were a number of people in the audience. a group of people including several I know to be C.O.G.G. members booed and waved "thumbs down" signs when some on the Council argued for public input and proper review and cheered when others on the Council voted in favor of this consolidation even though circumventing public input and review seemed likely. C.O.G.G. stands for Citizens of Overland for Good Government. I would really like to know how these members believe circumventing public input and proper review is "Good Government". Perhaps someone from this organization will comment on this article to let us know.

Another issue that was raised was the consideration of the job description for the Computer Technician position that needs to be filled in our MIS department. It is clear that another person is needed as there is simply too much work for one person to effectively manage. However, this description was discussed at length at the Council Workshop meeting on October 1st. At that meeting, several on the Council were concerned about the low qualification requirements for this position. After much discussion the Council seemed willing to compromise on the qualifications but ultimately voted to table the issue so they could further discuss the qualifications as well as consider the need for bonding MIS employees at a Workshop meeting the following week (that was later canceled). Councilperson O'Connell was outraged when the job description came up for a vote as none of the proposed compromises were included and the issue was supposed to have been tabled for further discussion.

As a compromise Councilperson O'Connell motioned to amend the job description to include the suggested qualification compromises. That vote went 4-4 With Councilpersons Owensby, Keller, Jones and Dills opposing and Mayor Schneider casing the tie-breaking vote by opposing as well. The Job Description ultimately passed with the same vote breakdown and the Mayor breaking the tie in favor of the job description. This has major implications. If Council members do not feel that their agreements made in Workshop meetings will be upheld when issues come up to vote at Council meetings then why would they want to participate in these workshops at all? This issue came up before, during the Purzner administration and then Councilperson Schneider was one of those expressing similar concerns.

Yet another issue came up at this meeting. Councilperson O'Connell asked what happened with the mailing of the notices for the October 15th Town Hall. Councilperson O'Connell pointed out that at the September 17th Council Workshop the Council agreed to send those mailings via first class mail to ensure that they reached the public in time. The announcements were later sent via a bulk mail company resulting in most residents not receiving notice of this meeting until after it was held, some as late as a week after the fact.

Oddly, Mayor Schneider said that happened under the last administration and that Councilperson O'Connell should not lay that issue at his feet. However, it is clear in the video of this Workshop that Mayor Schneider chaired that meeting (as he was elected Mayor a month prior). Though the Mayor had been suggesting using a mailing service for the notices, a review of the video of the meeting meeting (in this article) shows that at 1 hour and 21 minutes in (1:21:00 approximately), the Mayor himself says to the Council "we have already decided we're going to make this a first class mailing". It seems that if City Hall had followed the direction of the Council an the Mayor on this matter the notices would have likely reached all of the residents well before the meeting. Even though Councilperson Jones properly pointed out that the Overland Examiner is not the official website of Overland when Councilperson O'Connell referenced it the fact remains that we have a video of that meeting in its entirety for the public to review.

Interestingly, Councilperson Jones suggested that they do not have to stick with what is decided at workshops when issues come up in Regular Council meetings. This begs the question, why bother voting on anything at a workshops? Better yet, why bother to hold them in the first place? The Council Workshop meetings are designed to give the Council the opportunity to express their views on various issues, seek public input if they choose to, and try to find reasonable compromises that will allow for a successful vote on various measures. If decisions make at Workshop meetings are going to be ignored then those meetings would seem to be all but pointless.

Another contentious issue came up at this meeting. This time it was the issue of the mandatory retirement age for the Police Department. It has already been established that this requirement, instituted back in 1959, is well within the EEOC Police and Fire exemption for age discrimination. At their meeting a month or so ago the Police Pension Board voted 4-1 in favor of Chief Herron's motion to ask the Council to remove the age requirement entirely.

The Chief's stated reasoning for this was that though this mandatory retirement age for police officers was in fact legal, and the City would win if a lawsuit was brought against us for age discrimination, the cost of defending against such a suit would likely be high and could be avoided by eliminating the requirement all together. If you take this reasoning to its logical conclusion, you have to wonder why Chief Herron is not asking the Mayor and Council to eliminate of the Overland Police Department entirely. After all, even when officers and command staff follow all the laws and standard procedures they can still be sued, and even a successful defense is costly (as we've seen at the OPD several times in the past).

At that Pension meeting concerns were raised as to whether the average person over the age of 65 was fit for the physically intensive job of being a Police Officer. Chief Herron stated they could remove an officer who was unfit to fulfill the duties of a police officer. However, this happened recently with Officer Sheffer, a 17 year veteran of Overland PD. His health declined to the point that he was let go by the police department due to an inability to perform as a police officer. Though it should, currently the Police Pension has no provision for dealing with such disabilities like the non-uniform pension does. This termination didn't go so well as it is my understanding that Officer Sheffer's legal council successfully forced the department to take care of him financially.

You cannot selectively enforce physical standards. If OPD wants to ensure that all officers meet whatever physical fitness requirements they decide on (and put in writing) they will have to test everyone regularly. That would include command staff. Failing to do so leaves them open to legal action should they try to remove another "unfit" officer from their ranks. It seems to me that, contrary to the Chief's opinion at the Police Pension Board meeting, the department cannot, without risk of legal action, remove an "unfit" officer from their ranks unless several policy changes are made.

The proposed ordinance would have eliminated the mandatory retirement age. However, a reasonable compromise was suggested. Since the Social Security Administration has changed the retirement age for full benefits (as you can see in their chart here), it seems reasonable to suggest that we change the mandatory retirement age to mirror Social Security's. Since their retirement age is based on your birth year, and they could possibly change this again in the future, it was wisely suggested that the proposed ordinance revision be amended so that the Police Mandatory Retirement age is the same as Social Security's minimum age for full benefits.

The Vote to amend the proposed ordinance in this way went 6-2 with only Councilpersons Owensby and Keller opposing. The vote on the amended ordinance passed 6-2, again with Councilpersons Owensby and Keller opposing.

There were a host of other interesting issues that came up during this meeting. However, due to this already being a lengthy article, I'm going to leave those to our readers to discuss in the comments below if they choose to do so after watching the video.

The following are two versions of the entire video of this Council meeting. We had some trouble uploading it but the process is now complete and we have 2 versions of the video your review (please let us know how the first one plays for you):

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October 22nd Overland
City Council Meeting
( 2 hours, 55 minutes )

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