City of Meriden, CT - September 15, 2008 Council Minutes

September 15, 2008 Council Minutes

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CITY COUNCIL MINUTES

REGULAR MEETING

SEPTEMBER 15, 2008

The Meriden City Council’s regular meeting of September 15, 2008 was convened at 7:05 by Mayor Michael S. Rohde. Keith Gordon led the Council in the salute to the flag and Matthew Dominello offered the invocation. The Clerk called the roll. Present: Dante´ Bartolomeo, Brian Daniels, Matthew Dominello, Keith Gordon, George McGoldrick, David Salafia, Hilda Santiago, Walter Shamock, John Thorp and Trevor Thorpe.

EXCUSED: Brian Kogut and Anthony Tomassetti were away on business.

ATTENDANCE AT PUBLIC COMMENT: Dante´ Bartolomeo, Brian Daniels, Matthew Dominello, Keith Gordon, George McGoldrick, David Salafia, Hilda Santiago, Walter Shamock, John Thorp and Trevor Thorpe.

OTHERS IN ATTENDANCE: City Manager Lawrence J. Kendzior and City Attorney Deborah Moore.

Keith Gordon, made a motion, seconded by Walter Shamock, to invoke Rule 20 to bring forth a Consent Calendar and to approve the minutes of September 2, 2008 and to adopt a Consent Calendar as previously prepared. Motion carried unanimously.

CONSENT CALENDAR

Item 1. Presented by David J. Salafia, by request.

Whereas, the Parks Department is budgeted for a Laborer II position at $40,840.00; and

Whereas, this position is now vacant; and

Whereas, this is one of the busier times of year for the Parks Department for upkeep and maintenance for the Parks; and

Whereas, the Department wants to create a Laborer I position for a savings of $2,392.00 in the budget; now, therefore,

Be It Resolved, that the position of Laborer I be filled immediately.

Referred to Finance.

Item 3. Presented by Brian F. Kogut, by request.

A RESOLUTION AMENDING A RESOLUTION MAKING APPRO-PRIATIONS AGGREGATING $11,851,500 FOR VARIOUS PUBLIC IMPROVEMENTS AND EQUIPMENT IN THE 2008/2009 CAPITAL IMPROVEMENT PROGRAM AND AUTHORIZING THE ISSUANCE OF $11,851,500 BONDS OF THE CITY TO MEET SAID APPROPRIATIONS AND PENDING THE ISSUANCE

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THEREOF THE MAKING OF TEMPORARY BORROWINGS FOR SUCH PURPOSE

RESOLVED:

Section 1. Section 1 of the Resolution entitled “A Resolution Making Appropriations Aggregating $11,851,500 For Various Public Improvements And Equipment In The 2008/2009 Capital Improvement Program And Authorizing The Issuance Of $1`1,851,500 Bonds Of The City To Meet Said Appropriations And Pending The Issuance Thereof The Making Of Temporary Borrowings For Such Purpose”, adopted by the Common Council on June 16, 2008, as amended (the “GPIB #64 Resolution”), is hereby further amended by adding the following new appropriation:

“New Transfer Station-Cap Landfill (Acct. No. 0401-7364-328) - $515,000”

thereby increasing the total appropriation therein by $515,000 from $11,917,500 to $12,432,500.

Section 2. Section 2 of the GPIB #64 Resolution is amended by increasing the total amount of bonds of the City authorized to be issued therein by 515,000 from $11,917,500 to $12,432,500.

Section 3. Section 6 of the GPIB #64 Resolution shall be applicable to the appropriation added by this amendment as of the date of adoption of such amendment.

Referred to Finance for Public Hearing.

Item 4. Presented by Hilda E. Santiago.

WHEREAS, the City of Meriden Department of Health and Human Services has provided administrative oversight to a Connecticut Department of Social Services Point of Service Grant for the Casa Boricua de Meriden Hispanic Employment Bilingual Vocational Training Program as of July 1, 1999; and,

WHEREAS, the Casa Boricua de Meriden Hispanic Employment Bilingual Vocational Training Program provides remedial English and math classes, life coping skills, Spanish GED and English as a second language; and,

WHEREAS, the Casa Boricua de Meriden Hispanic Employment Bilingual Vocational Training Program has proven itself to be beneficial in promoting job skills and placement for Latino clients/residents of Meriden; and,

WHEREAS, the fiduciary relationship of the City of Meriden to Casa Boricua de Meriden has no additional impact to the City’s general fund; and,

NOW, THEREFORE BE IT RESOLVED by the City Council that Beth Vumbaco, RN, MS, Director of Health and Human Services, is authorized to submit a Hispanic Employment Bilingual Vocational Training Program Grant application to the State Department of Social

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Services to be operated by Casa Boricua de Meriden from October 1, 2008 through September 30, 2010 in an amount not to exceed $210,586; and,

BE IT FURTHER RESOLVED that Beth Vumbaco, RN, MS, Director of Health and Human Services is hereby authorized to execute any grant contract and other required materials for the grant program.

Adopted.

Item 5. Presented by Brian F. Kogut, by request.

Whereas, the 2007-2008 fiscal year ended on June 30, 2008; and

Whereas, some department budgets had exceeded their allotted budget amount for the 2007-2008 fiscal year; and

Whereas, budget transfers from line items with a budget surplus at the end of the fiscal year to the department budgets showing a deficit are necessary in order to balance the budget; and

Whereas, City Council approval is required to effectuate the transfer; now, therefore,

Be It Resolved, that the budget transfers as set forth are hereby approved.

	CITY OF MERIDEN
YEAR END DEPARTMENTAL BUDGET TRANSFER REQUEST
	FISCAL YEAR ENDING JUNE 30, 2008



			Transfers
Department/Account	Description	To		From

0130 Law
0001-0130-196	MME Salaries	$1,170.00

0170 City Clerk
0001-0170-354	Land Records	$3,335.00

0210 Finance
0001-0210-190	Administrative Salaries	$2,950.00

0275 Assessment
Collections
0001-0275-196	MME Salaries	$29,685.00
0001-0275-198	Supervisors	$50,860.00

0510 Development &
Enforcement
0001-0150-196	MME Salaries	$26,450.00

520 Inland Wetlands
0001-0520-440	Office Expense & Supplies	$475.00

0801 Parks
0001-0801-194	Public Works	$26,500.00

2610 Fire
0001-2610-191	Overtime Contingency	$470,695.00

2617 Emergency
Communications
0001-2617-191	Overtime	$13,695.00

0210 Finance
0001-0210-601	Contingency			$271,062.00

0213 Employee
Benefits
0001-0213-201	City Medical Benefits			$354,753.00


	Totals	$625,815.00		$625,815.00

Adopted.

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Item 6. Presented by Hilda E. Santiago.

WHEREAS, the City of Meriden received funding proposals from the Meriden Soup Kitchen, Inc. and the Arts and Crafts Association of Meriden, Inc., known as Galley 53, to implement programs under the Community Development Block Grant (CDBG) program,

WHEREAS, the programs submitted by the Meriden Soup Kitchen and the Arts and Crafts Association of Meriden are consistent with the City’s Consolidated Plan for Housing and Community development and will provide a needed public service benefit to Meriden’s low income and minority residents, and

WHEREAS, the City of Meriden is interested in funding these proposals by reallocating $5000 from the “Public Services Contingency” line item of the approved Year 34 CDBG Annual Plan and budget, and

WHEREAS, the City of Meriden has held two public hearings and a 30-day public comment period to solicit the input of the citizenry in regards to funding and program decisions; and

NOW, THEREFORE, BE IT RESOLVED, that the attached list of programs and budgets are hereby approved and authorized for inclusion as an amendment to the Year 34 Annual Plan of the City of Meriden Community Development Block Grant program; and

BE IT FURTHER RESOLVED, that the amendment to the Year 34 Annual Plan of the City of Meriden’s Community Development Block Grant Program reflecting said funding decisions is hereby approved and the City Manager is authorized to file such with HUD and provide HUD with any supplementary materials as required; and

BE IT FURTHER RESOLVED, that the CDBG-34 Annual Plan shall be carried out in accordance with all applicable laws, ordinances, and resolutions of the City of Meriden, the State of Connecticut, and the United States of America.

CDBG - 34 AMENDMENT #1

I. Public Services

A. Meriden Soup Kitchen Inc.-The Meriden Soup Kitchen has been serving the hungry of Meriden since 1983. The MSK consists of seven groups of approximately 70 volunteers who prepare a meal consisting of a main course, salad, soup, bread and butter, dessert and a beverage. Funding will be used to support MSK’s Soup Kitchen at the First Baptist Church on Broad Street in Meriden. MSK projects it will prepare over 16,000 meals from January through June 2009. Funding will be used to cover the costs of food and supplies.

$ $2,500.00

B. Arts & Crafts Association of Meriden, Inc./Gallery 53 Young Children’s Workshops—The project will provide children aged 3 to 5 years of age from low income and minority households hands-on arts and crafts classes. Program is implemented in cooperation with several area social service programs including the Battered Woman’s Shelter, Catholic Family Services, YMCA and the Augusta Curtis Cultural Center. Funding will be used to cover the costs of art supplies so that the classes can remain free to all low income participants.

$ $2,500.00

II. Public Services Contingency $889.10

III. Summary of All CDBG Funding

CDBG-34 Allocation $ 899,877.00

TOTAL CDBG-34 FUNDING $ 899,877.00

Referred to Human Services for Public Hearing.

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Presented by: Keith Gordon and Brian F. Kogut, by request

WHEREAS, Meriden Gas Turbines LLC (MGT) and the City entered into a property tax agreement (Agreement) on October 29^th, 2001; and

WHEREAS, MGT intended to construct and began but did not complete construction of a 540 megawatt combined cycle electricity generating plant on its property on South Mountain Road; and

WHEREAS, the Agreement was subject to certain contingencies, including that “MGT has closed on its funding for the construction of the Generating Station Project and satisfied all of the lender’s conditions to fund” and the Agreement further provided that: “In the event that the MGT Contingencies have not been satisfied on or prior to July 31, 2002 either MGT or the City may thereafter terminate this Agreement…”; and

WHEREAS, the Agreement further provided that “MGT shall have the right to terminate this Agreement at any time by giving written notice to the City in the event that for any or no reason the Generating Station is decommissioned or otherwise permanently shut down and removed from service”; and

WHEREAS, the Agreement also provided that upon “termination of the Agreement, the Generating Station Project will be assessed in the manner then prescribed by applicable law”; and

WHEREAS, MGT paid the amounts due under the Agreement for the years 2002, 2003, and 2004, pursuant to purported reservations of rights; and

WHEREAS, on September 30, 2004 MGT notified the City that it was terminating the Agreement and the City thereafter informed MGT it did not accept that MGT had the right to terminate the Agreement as it had purported to do, and

WHEREAS, on May 24, 2005, MGT filed suit against the City, seeking a declaratory judgment that the Agreement was properly terminated, that the funding contingency had not been fulfilled, that all its real and personal property in Meriden should have been assessed and taxed in the manner provided by law for other property, that its real and personal property had been overvalued and over assessed, and that it was due refunds of overpayment of taxes together with interest and costs, and other relief; and

WHEREAS, MGT made payments “under protest” in 2005, 2006, 2007 and 2008, in amounts equal to ninety percent of the amounts due under the Agreement, ninety percent being the percentage of a tax payment required to be paid pursuant to law to prevent the accrual of interest on a tax payment being made under protest; and

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WHEREAS, MGT and the City have held extensive discussions in an attempt to reconcile their differences regarding the validity and enforceability of the Agreement and the sums due from MGT to the City pursuant to the Agreement; and

WHEREAS, MGT has made an offer of settlement as set forth in the attached agreement, entitled “MGT REVISED SETTLEMENT OFFER”, dated September 6, 2008 (Offer); and

WHEREAS, MGT has agreed in the Offer that the City shall retain all payments made subsequent to the execution of the Agreement, including the payments made in 2002, 2003, and 2004 and the payments made under protest for the years 2005, 2006, 2007 and 2008, the total of said payments being $22,308,074; and

WHEREAS, said Offer provides that for so long as MGT has not submitted a notice of abandonment as described in said Offer, and until such time as MGT has recommenced construction as set forth in said Offer, MGT shall make payments due in the next five years as set forth in the Offer, which payments for the full five years total $10,009,308 together with further payment of a deferred amount totaling $3,287,500, payable as described in said Offer, either upon abandonment, sale of the MGT plant or on a five year schedule following the recommencement of construction of the plant, the deferred payments to be secured by a letter of credit or a corporate guarantee from NRG Energy Inc., in either case in a form acceptable to the City; and

WHEREAS, said Offer further provides that following the said five year period or upon recommencement of construction as defined in the Offer and provided that MGT has not submitted a notice of abandonment of the project, all remaining payments shall revert to the schedule set forth in the original Agreement, subject only to an upward or downward adjustment based on a change in the plant net megawatt output; and

WHEREAS, the Offer also provides for notice to the City of any intent of MGT to relinquish, surrender or not renew its permits for construction and operation of the generating plant, provides procedures to be followed if the MGT property is to be assessed and taxed as property other than a generating plant, provides that any purchaser of the generating plant or of MGT shall meet minimum credit requirements, provides that the City shall receive notice at the time of any launch of any sale process, requires that MGT provide the City with quarterly reports of the status of its efforts to secure a commercially operational generating project, provides a process by which MGT and the City shall resolve any disagreement concerning the subdivision and site plan bonds posted by MGT, provides for a process by which MGT and the City will negotiate feasible options to mitigate the visual impact of the generating plant, and states that all remaining contingencies in the Agreement shall be waived and that the Agreement shall be in full force and effect, as modified by the Offer; and

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WHEREAS, the City Manager recommends that the City accept the Offer because it resolves the litigation between the MGT and the City, ending the risk of a decision in the pending litigation that is materially adverse to the City’s financial condition;

because it eliminates the need for the future expenditure of very significant costs that further litigation would require,

because it provides for a payment schedule which meets the City’s budgetary needs and the certainty and notice that is required for proper budget setting,

because it provides that the City will retain all funds paid to date, enabling the City to transfer the funds it has reserved against an adverse outcome to the City’s undesignated reserves, increasing those reserves to a more acceptable level,

because it provides the City with increased information and notice concerning the generating plant project, so that the City can better address any change in the status of that project in the future,

because it provides a process to attempt to mitigate the visual impact of the generating plant and potential disputes over the subdivision and site plan bonds held by the City, and

because it makes it more likely that MGT will proceed to recommence construction of the generating plant and making that plant operational, should market conditions make that economically feasible, securing a source of significant revenue to the City for future years; and

WHEREAS, the City Attorney and Corporation Counsel concur in that recommendation;

NOW, THEREFORE, BE IT RESOLVED, THAT

The MGT REVISED OFFER OF SETTLEMENT, dated September 6, 2008 is hereby approved; and

BE IT FURTHER RESOLVED, THAT

The Corporation Counsel, City Attorney and City Manager are hereby authorized to execute the Offer, in a form substantially as attached, together with any other documents deemed necessary to effectuate the terms of said Offer.

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September 6, 2008

MGT REVISED SETTLEMENT OFFER

1. The City of Meriden (“City”) shall retain all tax payments made by Meriden Gas Turbines, LLC (“MGT”) subsequent to the execution of the Property Tax Payment Agreement dated October 29, 2001 (the “Agreement”) in full satisfaction of any and all tax payments, interest or penalties due under the terms of the Agreement or as otherwise assessed by the City through and including Year 7 of the Agreement Payment Schedule and/or the 2007 Grand List (Tax Year 7/1/08-6/30/09) for the Generating Station (as defined in the Agreement) and the Generating Station site (the “Site”). No additional tax payments, interests or penalties shall be due for any prior tax year.

2. For so long as MGT has not submitted a notice of abandonment (as described in Paragraph 6 below) to the City and prior to the earlier of (a) the first day of the PILOT [payment in lieu of taxes] Year after recommencement of construction (as defined below) or (b) the first day of PILOT Year 13 (Tax Year 7/1/14 – 6/30/15) (such date, the “PILOT Resumption Date”), MGT shall make the following indicated payments (“Revised Payments”), in full satisfaction (except as provided in Paragraph 3 with respect to the Deferred Amount) of all real and personal property taxes due and payable on the subject real and personal property on the Site under the terms of the Agreement or as otherwise assessed by the City:

PILOT Year	Payment Due Date	Tax Year	Revised Payment Amount	Deferred Amount
8	7/1/2009	7/1/09 – 6/30/10	$2,331,600	$ 450,000
9	7/1/2010	7/1/10 – 6/30/11	$2,012,916	$ 625,000
10	7/1/2011	7/1/11 – 6/30/12	$1,919,545	$ 687,500
11	7/1/2012	7/1/12 – 6/30/13	$1,826,491	$ 750,000
12	7/1/2013	7/1/13 – 6/30/14	$1,808,756	$ 775,000

For greater certainty, the July 1, 2009 payment shall correspond to and be in lieu of Exhibit B Payment Schedule Year 8 and/or the 2008 Grand List assessment (Tax Year 7/1/09-6/30/10). A payment on July 1, 2010 under this paragraph shall correspond to Schedule Year 9 and the 2009 Grand List (Tax Year 7/1/10-6/30/11), etc. For the purposes of this paragraph, “recommencement of construction” shall mean the delivery to the Site hereafter of a major component of the Generating Station including one or more of the following: a gas turbine, a steam turbine, a complete heat recovery steam generator or a generator step-up transformer unit.

3. For each PILOT year that a Revised Payment is made, the associated Deferred Amount shall be accrued and, beginning with the PILOT Resumption Date, repaid without interest in equal installments over five (5) years (“Deferred Payment Installments”) on each date normally

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scheduled for payments under the Agreement. If MGT has submitted a notice of abandonment pursuant to Paragraph 6, or if the Generating Station, the Site or MGT shall be sold, prior to the end of the term of the Agreement, MGT shall repay the entire remaining accrued and unpaid Deferred Amounts immediately upon the effective date of such abandonment or upon the date of such sale. MGT shall provide the City security for any accrued and unpaid Deferred Amounts in the form of: (a) a letter of credit from a bank with a minimum credit rating of AA- or (b) a corporate guarantee from NRG Energy Inc., in either case in a form reasonably acceptable to the City.

4. Beginning with the payment due on the PILOT Resumption Date, all remaining payments under the Agreement shall revert to the tax payment schedule in Exhibit B of the Agreement (plus the Deferred Payment Installments as indicated in Section 3 above).

5. To the extent the Generating Station that becomes commercially operational varies in net megawatt (“MW”) output by more than 10% from that described in the Agreement, the tax payments shall be revised by scaling the remaining annual payments up or down in accordance with the following formula:

New annual tax payment = Original annual tax payment * (Summer Seasonal Claimed Capability established upon commercial operation date/510MW)

6. MGT shall provide the City with a minimum of one (1) year prior written notice of abandonment before its relinquishment or surrender (including its non-renewal or the expiration without efforts to renew) of permits for construction and operation (to the extent such permits may be relinquished or surrendered or expire); provided, however, that MGT shall not be required to relinquish its rights with respect to interconnection in connection with the foregoing. Upon delivery of this notice, the City shall cease to regard the Site as a power generating facility property for all purposes effective beginning the next full Tax Year. The parties shall work cooperatively and in good faith to cause a tax assessment to be established based upon the then fair market value (FMV) of the real and personal property assuming the Site’s best and highest use other than use as a power generating facility as of the first property valuation date (i.e., October 1) occurring after the giving of the written notice. The new tax amount shall be effective for the next succeeding full Tax Year after the effective date of the notice of termination. Additionally, the termination provisions set forth in Section 14 of the Agreement shall remain in full force and effect; provided, however, prior to the commercial operation date of the Generating Station, MGT may only terminate the Agreement pursuant to Section 14 if the conditions of this Paragraph 6 are met. Additionally, the provisions of this settlement shall survive any termination of the Agreement by MGT under Section 14 thereof.

7. With respect to any sale of the Generating Station, the Site or MGT, the buyer must meet minimum credit requirements to be established by the parties, unless the Generating Station project has been abandoned pursuant to Paragraph 6 and the required permits or approvals have expired or been surrendered or relinquished or not renewed. MGT shall notify the City within seven (7) days of the execution of a binding purchase and sale document with respect to the Generating Station, the Site or MGT. Additionally, MGT shall provide the City notice

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at the time of launch of a sale process related to MGT, the Generating Station or the Site that involves negotiation simultaneously with more than two potential buyers, a public auction or general solicitation. The City agrees to keep this information confidential.

8. MGT shall provide the City with a quarterly report discussing the status of its efforts to secure a commercially operational Generating Station project. Provision of the reports shall be a condition of the settlement and the City shall, to the extent permitted under the law, keep these reports confidential.

9. Upon satisfaction of Planning Commission conditions, the City shall release all bonds or other security (totaling approximately $600,000) posted by or on behalf of MGT for roadway construction, subdivision improvements and other improvements related to the Site. The City agrees that, upon effectiveness of the Agreement, the City and MGT shall commence good faith discussions concerning whether any Planning Commission conditions remain unsatisfied. In any event, no later than thirty (30) days from this Agreement’s effective date, the City shall notify MGT in writing of any such unsatisfied conditions that prevent the release of the referenced bonds. If the parties are unable to agree on the remaining unfulfilled conditions within 30 days after delivery of this notice or if the parties agree that the cost of satisfaction of the remaining conditions may exceed the value of the bonds, the City may draw upon the bonds in full satisfaction of MGT’s obligations in respect of roadway construction and subdivision improvements.

10. Upon effectiveness of the Agreement, the City and MGT shall commence good faith discussions to identify and attempt to agree upon reasonable and commercially feasible options for mitigating the visual impact of the plant on the community. The parties shall implement any such mutual agreement on this matter upon abandonment (as defined in this Agreement) or, if earlier, as soon as practicable after recommencement of construction (as defined in this Agreement). Any agreed upon activities to mitigate visual impacts shall be incorporated into updates to the Development and Management Plan submitted to the Connecticut Siting Council (“CSC”) and shall be subject to CSC’s final approval.

11. Settlement shall memorialized in a stipulated judgment settling the pending tax appeals and shall include mutual releases and covenants not to sue. The settlement shall become effective upon approval by the Connecticut Superior Court. The parties shall request a determination by such court that the Agreement, as modified by the Stipulated Judgment, complies with Connecticut General Statutes Section 32-71a. Additionally, all remaining contingencies under the Agreement shall be waived and released with the result that the Agreement shall be deemed to be in full force and effect as modified by this settlement. Moreover, all amounts due and owing under orders entered into the record on July 7, 2008 shall be deemed fully paid as part of amounts paid under this settlement.

Referred to Finance.

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Item 8. Presented by Brian F. Kogut and David J. Salafia.

Whereas, the City has received a check in the sum of $35,000 for trench repairs associated with work completed by Yankee Gas on Draper Avenue; and

Whereas, the City has received a check in the sum of $500 for repairs to a segment of sidewalk on Elm Street damaged by a motor vehicle crash; and

Whereas, these funds will be used in conjunction with the City’s Sidewalk and Paving Programs; now, therefore,

Be It Resolved, that the City of Meriden deposits these funds into the Capital Non-Recurring Fund for use by Public Works to compensate the appropriate contractors for the completed work..

Adopted.

Item 9. Presented by Anthony D. Tomassetti, by request.

Whereas, the Police Department is entitled to spend funds received under the State’s Narcotics Assets Forfeiture Program; and

Whereas, the Detective Division equipment wishes to spend $15,000 of these funds; and

Whereas, this expenditure will enhance the effectiveness of the Police Department in the performance of its law enforcement functions; now, therefore,

Be It Resolved, that the Police Department is hereby authorized to utilize these law enforcement funds in an amount not to exceed $15,000; and

Be It Further Resolved, that these are hereby appropriated from the City’s Narcotic Asset Forfeiture Accounts.

Adopted.

Item 10. Claims submitted against the City by Gail Lewis for Chelsey Lewis, 68 Lynn Drive, Meriden, CT was referred to Legal and Safety & Risk.

Item 17. Meriden Linear Trails Advisory Committee Minutes of August 7, 2008 were filed with the City Clerk.

Item 18. Board of Education Executive Session Meeting Minutes of August 19, 2008 were filed with the City Clerk.

Item 19. Board of Education Meeting Minutes of August 19, 2008 were filed with the City Clerk.

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Item 20. School Building Committee Meeting Minutes of June 5, 2008 were filed with the City Clerk.

Item 21. Department of Fire and Emergency Services Monthly Report for June 2008 was filed with the City Clerk.

END OF CONSENT CALENDAR

Item A. Official Citation

Introduced by Mayor Michael S. Rohde Be it hereby known to all that:

The City Council of Meriden, Connecticut in grateful recognition of services devotedly and faithfully rendered to this City hereby offers its sincerest congratulations to:

The General Manager, Coaches and members of the 2008 Meriden Youth Travel Baseball Team – The Meriden Cobras – winners of their first 14U State Championship.

The Citizens of Meriden extend their very best wishes on this memorable occasion and express the hope for continued success.

Given this 15^th day of September 2008 at the City Hall of Meriden, Connecticut

By Michael S. Rohde, Mayor

Walter Shamock, made a motion, seconded by Matthew Dominello, to adopt. Motion carried unanimously. Mayor Rohde asked Deputy Mayor Dominello and Chairman David Salafia of Public Works and Parks & Recreation Committee to join him and the General Manager, Coaches and members of the Meriden Cobras in the ellipse. Mayor Rohde presented Official Citations to the following: General Manager: Jerry Moss; Coaches: Terry Maloney and Jason Tsangrides; Members: Chris Willette, Dan Deshaies, Dylan Ostasiewski, Michael Bonaiuto, Nate Testeroet, Ryan Thayer, Ted Kuhn, Anthony Pellicano, Byron Brocar, Colby Milliken, Cristian Matos, Kevin Hall, Pasquale Silvia, Ryan Maloney and Tyler Donnan.

Item 2. Presented by Keith Gordon and Brian Daniels.

Whereas, the Corporation Counsel pursuant to Section C7-3 of the City Charter is the legal advisor to all city officers, boards and commissions; and

Whereas, the Corporation Counsel pursuant to Section C7-3 of the City Charter is empowered, with the approval of the City Council, to appeal from orders, decisions and judgments and to employ special counsel to assist him in the conduct of the

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Law Department; and

Whereas, the Zoning Board of Appeals has granted a variance allowing for the construction of a used car dealership in an RDD zone at or near 850 Murdock Avenue; and

Whereas, the decision of the Zoning Board of Appeals to grant this variance may result in a lawsuit by the City Planner against the Zoning Board of Appeals to overturn this decision; and

Whereas, the Corporation Counsel and the Law Department would have a conflict of interest and not be able to represent either the Zoning Board of Appeals or the City Planner in such a lawsuit if it is actually filed; now, therefore,

Be It Resolved, that the City Council does hereby authorize the Corporation Counsel to retain separate counsel for the Zoning Board of Appeals and the City Planner if such a lawsuit is filed against the Zoning Board of Appeals by the City Planner.

Keith Gordon, made a motion, seconded by Brian Daniels, to adopt. Keith Gordon, made a friendly amendment, seconded by George McGoldrick, to add the words “Be It Further Resolved, that the filing of the appeal is hereby approved”. Amendment carried unanimously. Gordon asked if the City Attorney Debbie Moore could explain the process. Ms. Moore stated she was there in the absence of Corporation Counsel Michael Quinn. She stated the amendment was made because at the time the resolution was written the city wasn’t sure what the ZBA was going to do. The ZBA is not going to be overturning their decision at this point. The Council now needs to take action to approve the filing of the appeal. Moore explained that further by way of background, the Zoning Board of Appeals has been previously represented by the Legal Department to defend decisions that were made in appeals by other parties. The Legal Department also represented the City Planner to bring various enforcement actions. This is an unusual request, not so unusual in the City of Meriden. It is unusual because usually the adjoining property owners and the aggrieved parties who are surrounding the parcel which is affected by the decision who retain counsel and bring their own appeal. That hasn’t happened in this instance. Moore understands that the Town of Wallingford has voted through their City Council to authorize their town attorney to bring an appeal on the Town of Wallingford’s behalf. The Town of Wallingford is authorized to bring an appeal because they are geographically close if not adjoining to the property itself. The Zoning Board of Appeals granted this variance for the construction of the used car dealership in this RDD zone and as Moore believes, most of the City Councilors were aware that this was contrary to the recommendation and review of the Planning staff. It appears that the Planning staff was very thorough in presenting to the Zoning Board of Appeals, their opinions, their background, legal basis and explanations for when a hardship is merited. It didn’t appear to be followed in this case. As a result the ZBA granted the variance by a vote of 4:1 and hence the Planning staff is requesting to bring an appeal of the decision.

Gordon stated there are certain rights that we have as council people and one of our rights is to make zone changes. The ZBA has taken that right away from us by doing what they have. We need to protect our rights. Unfortunately the cost of this might get high but we as council people have that

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The Zoning Board of Appeals do not so Gordon will be voting in favor of this to make sure we get our rights back at this present time and hopes that the Council will follow suit.

Daniels stated he feels the city is clear that we do have to file this appeal but he wants to make sure that everyone is aware of what the actual issue is. The issue is not whether an auto dealership is a good idea or not a good idea for this parcel. If Mark Development comes to the City Council and requests a zone change, then Mark Development will get a full and fair hearing by all the councilors and the decision will be made at that time in our authority as zoning authority of the city. The issue that we are dealing with tonight is whether or not the ZBA can go ahead and change the zone of a property anywhere in the city and that may affect the east side tonight, it could affect the west side tomorrow, it could affect the north side or the south side the week after that. This is the issue before us tonight, and is one that affects every resident, in every neighborhood, in every corner of the city. If the ZBA is willing to take this type of action in the limelight for a 40 acre parcel, it has certainly raised the concern of what are they willing to do when they are not in the limelight and when the parcels are maybe something people aren’t paying as much attention to. This is a very broad city wide issue that we are dealing with. As the Majority Leader said, the Charter is clear. The City Council is the Zoning Authority. The applicant, for some reason, went to the ZBA instead of coming to the City Council and claimed that the RDD zone was in and of itself is a hardship. The RDD zone permits a lot of uses in the zoning regulations. You can have a conference center; executive offices; you can do research and development; medical center; have a heliport; even distribution centers. There are a lot of uses for that zone. The ZBA had to have known that it exceeded its authority. It had to have known that it was usurping the authority of the City Council. There are many people including many people who are here tonight that told the ZBA that during their two hour public hearing. The City staff told the ZBA that. The Wallingford Town Planner, Linda Bush told them that. ZBA member, Joe Feest told them that and last but not least, our Mayor put a letter into them telling them that which was read into the record. They clearly knew what they were doing or it appeared they knew what they were doing. What is equally troubling is that after two hours plus or minus of public comment, and Daniels personally was there after City Council, that the ZBA took only a couple of minutes to issue a decision of 4:1. They did not provide any substantive explanation of why they were voting that way and they provided no explanation as to what the legally cognizable hardship was that they allegedly found to support the granting of this variance. The citizens of this city deserve far, far, far better than that from members of our boards and members of our commissions when they reach a decision that has this kind of impact. There have been some comments tonight on the cost, and really Daniels can’t think of any problem that someone might have with the resolution other than to the cost. He cares about the taxes in this town, and when people come up here at public comment and accuse the City Council of not caring about the property taxes in this town, they cannot be further from the truth. That is our number one priority, but it goes hand in hand with the quality of life in the City of Meriden. If you look for example in the free speech arena, they say pornography is something that is tough to define ahead of time but you know it when you see it, and Daniels thinks the same can be said of those situations in which the city has to take the drastic step of suing itself. You can’t define these types of circumstances ahead of time, but you know when you see them, and this is one of those times when you have to take that drastic step. Daniels stated he would be supporting this resolution and wholeheartedly support the appeal of the ZBA decision.

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Shamock stated he has always had the utmost confidence in the Planning Commission and the City Planner. They were always vehemently against the change in the variance to allow construction of a used car dealership in an RDD zone. Shamock stated he is in favor to retain separate counsel if a lawsuit is filed and believes this is the fairest to litigate this decision that the ZBA has made.

Trevor Thorpe stated he was going to vote for this begrudgingly. He stated he believes the Cathole Mountain lawsuit which was similar cost the City around $230,000 in legal fees. That is the only problem he has with it. It is the proper thing to do. He feels the vote was wrong. He doesn’t want the general public to go away thinking in any way that this is a vote on the auto auction. It is not. It is not a vote for or against any proposition over there. This is only a vote in the process and the process has to have a certain amount of credibility to it and we’re trying to maintain that credibility by what we’re doing here. If in fact an auto auction or sales operation comes before us in the future we’ll have to deal with that in the future. It is the City Council’s job, as Councilor Daniels said to deal with that. We’re not voting for or against. Although you may walk away tonight feeling that you won it wasn’t the big victory you were really looking for and he doesn’t want them to go away disillusioned with that.

John Thorp stated he would be voting to support this resolution also. I can tell you that prior to being elected to the City Council he served on the Planning Commission for several years and had to state he had the utmost respect for the opinion of our City Planner and staff. He feels they take the totality of all circumstances into their considerations when they are deciding what is good and what isn’t good for our community. What particularly troubles him in this case is that individuals that we as a Council appoint to Boards and Commissions have apparently dis-obeyed, put aside laws and regulations that we’ve appointed them to those Boards and Commissions to uphold. That is particularly troubling to him and thinks that is something we need to look at in the future as we consider appointments to our various boards and commissions. He feels we should only appoint those people who have the best interests of the city in their heart and are willing to follow the proper laws and statutes and policies that our city has in place. Once again, he stated he would be supporting this resolution.

Salafia stated he wanted to clarify a couple of issues. It was stated during public comment by Mr. Robey that anyone at anytime who has an issue with a variance can go to the land use boards and they would have to take the matter up. Salafia wanted to know if that was a correct statement.

Kendzior stated that when an application is filed it is necessary to act on that application whether it is something before the ZBA, the Planning Commission or the City Council. There are state statutes which mandate the automatic approval of matters that are filed on which a decision is not made in a timely fashion. Kendzior stated he reported that to Mr. Robey previously. Matters which are filed need to be acted on. We can’t simply say that your application is not any good and send the people away. The proper board and commission has to act on the application one way or the other.

Salafia asked if there were any other means such as state land use board or the attorney general’s office that could carry this out for us to save the taxpayer’s dollars other than us hiring outside counsel.

Kendzior stated it is the City Planner acting as the Zoning Enforcement Officer who has the authority

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under state law to bring this appeal. He needs to be represented by the City of Meriden. The attorney general’s office is not going to represent him and although there are regional planning agencies and even a State Plan of Conservation and Development that describes a certain use for all portions of land in the state, neither of those would have the authority to bring this sort of appeal. The authority lies with the City Planner acting as the Zoning Enforcement Officer in the first instance and with the Corporation Counsel making the decision to file the appeal and that decision is subject and needs approval from the City Council.

Bartolomeo stated she will be voting in favor of this resolution to retain counsel. She asked Kendzior if he would explain so that the public would understand this process. She was reading email from citizens and his response and asked him to explain why can’t the council just overturn their decision. Why do we have to get to the point of hiring legal counsel.

Kendzior stated land use decisions generally are subject to regulation by the State of Connecticut. There are a very lengthy list of very specific laws which set forth what kinds of decisions get made by what kinds of agencies and entities. Applications for variances which is a request which normally says, “I’m subject to a certain zone, I have a particular hardship that is peculiar and specific to my piece of property which prevents me from using my piece of property in accordance with that zone”, by state statute go to the Zoning Board of Appeals and the Zoning Board of Appeals has at the City level the final authority over those. The statutes do not allow the City Council to simply overturn the decision of the Zoning Board of Appeals anymore than when an application for a change of zone is properly presented, frankly as this should have been to the City Council sitting as the zoning authority. If the Council made a decision the ZBA has no authority to overturn that decision so requests for variances must go to the Zoning Board of Appeals. They have the final authority at the city level. The statutes allow certain appeals to be taken by certain parties, people who live in close proximity to the property and in this case, the Town of Wallingford is one of those entities that can bring an appeal, neighboring property owners and the Zoning Enforcement Officer which is what is being contemplated here, that the Zoning Enforcement Officer will take this appeal. The Council can’t even if it wanted to simply overturn the decision.

Santiago asked if he had an idea at least, maybe from other cases in the past of how long it might take and how much it is going to cost or an estimate and also do we have the money and what line item would it come from. Do we have to bond?

Kendzior stated we have had this sort of instance arise twice in probably the last 20 years or so. Actually as the City Attorney indicated this is very, very rare anywhere in the State of Connecticut. The Planning Commission was sued by the City Planner, again acting as the Zoning Enforcement Officer over the decision that it made many years ago with regard to the proposed development on Cathole Mountain. Prior to that, a few years before, the Zoning Board of Appeals again was sued by the City Planner acting as the Zoning Enforcement Officer on another matter. That initial case against the Zoning Board of Appeals, Kendzior didn’t recall the amount of money that was spent and was the Corporation Counsel at the time. The fact that Kendzior didn’t recall the amount of money spent was probably because it wasn’t a very high expense. The lawsuit brought against the Planning Commission resulted in very significant expenses and included the total for all the attorneys that the city was paying, which was both sides, on that particular issue and was in the area of about $240,000. The tactics that were taken, frankly, by the attorney for the applicant in that particular case consisted

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of a lot of things that I don’t think were properly before the court but you can’t stop people from filing motions, you can’t stop people from asking the court to have hearings and so forth, so it took up an inordinate amount of time in that particular case. In the end, as you know, the court agreed with the City Planner acting as the Zoning Enforcement Officer that that had been an improper decision. You probably have a range with that $240,000, it may be adjusted slightly for inflation as being the absolute top. The Majority Leader is fond of reminding me that in that particular case that I badly underestimated what the cost would be, so you can’t tell ahead of time because you can’t tell ahead of time of how the case is going to be pursued. I have every expectation that the applicant in this particular case is going to take every action that they can think of in this regard. It may for that reason take a considerable period of time for the courts to hear this case, so I’m thinking you are looking at a lengthy period of time before this decision but again, as I think you all know, I am very supportive of this action, I agree with the City Planner and think this was an abuse of the City Council power to act as the Zoning Commission. The precedent that it sets says that we spent the last four years revising the Plan of Conservation and Development for no reason whatsoever because apparently the ZBA thinks that it can change the zoning of this city itself which is not its function so I think this is an appeal that needs to be filed.

Santiago asked where the money would come from. Kendzior stated there is a budget within the Department of Law for outside attorney’s . We have a matter, #7 on tonight’s agenda which is going to the Finance Committee. I have every hope that the resolution is going to be granted. If it is the result will be a considerable decrease in the amount of legal expenses that would have been incurred for that matter which hopefully will be sufficient to cover the expenses involved in this matter.

Gordon asked Attorney Moore to explain why can’t we just “hook on” to Wallingford’s law suit and explain the reasoning why we need to do this for ourselves. Moore stated the only savings that the city would achieve by “hooking on” to the Wallingford appeal, would be a savings of the filing fee, which would amount to $200. This is an important action, it is a significant action and she feels it speaks to the seriousness of which the City Council and the Zoning Enforcement Officer perceive this to be is filing a separate appeal against the ZBA. There is no cost savings. The $200 is not enough of a cost savings to consider piggybacking or joining in with the Wallingford appeal. It is also conceivable that the Town of Wallingford doesn’t bring the appeal or there is another consideration, there is no control over what the Town of Wallingford does. Moore feels in this instance we’d rather be in charge of our own actions and the Zoning Enforcement Officer would rather be in control and be the lead plaintiff in the appeal.

Rohde stated this is one of the biggest issues that has come before this elected body in quite sometime. It really is challenging the vested authority that elected officials have to set land use in our city and as been stated already we cannot let this pass. If we were to do so it would virtually make our land use regulations moot. There has been eloquent testimony to that fact but again, this is about the process. It doesn’t speak to the merits of this case, the content, whether it is a good idea or a bad idea. It speaks to our authority relative to making these decisions as elected officials. ZBA members are not elected officials. They are appointed. They are not also easily subject to recall. In order to recall a ZBA member they have to be absent for many, many meetings or there has to be absolute malfeasance on their part. This decision does not meet that test. However, we need to depend on our boards and commissions. They are appointed by the mayor and approved by the Council to do their job correctly and legally. In this case, I think the evidence is beyond reproach,

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that there has been some significant dereliction here. So today I have officially called for the resignation of the Chairman of the ZBA on the basis they did not follow procedure, they did not follow practice, they did not take into consideration the comments from our Planning staff, from our legal staff or from the Mayor’s office. We do have an amendment that we have not voted on yet so the first order of business would be to vote on that. Mayor Rohde asked the Clerk to read the amendment back.

The Clerk read, “Be It Further Resolved, that the filing of the appeal is hereby approved”. Motion to approve the amendment passed unanimously.

Keith Gordon, made a motion, seconded by Brian Daniels, to adopt as amended. Motion carried unanimously.

Item 11A. Your Finance Committee, to whom was referred a resolution concerning amendment to GPIB #64 – “Center Street Bridge Design Consultant and Contract Repair - $40,000 and Hubbard Park Playscape - $26,000” on 9/2/08 report that they have attended to the matter and recommend adoption.