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HomeMy WebLinkAbout03-19-01 Public Services Committee MinutesMINUTES Dublin City Council PUBLIC SERVICES COMMITTEE Monday, March 19, 2001, 5:30 p.m. Attending: Ms. Chinnici - Zuercher, Chair Mrs. Boring Mr. McCash Mr. Smith, Jr. Ms. Readler Mr. Jones Ms. Clarke Ms. Chinnici - Zuercher called the meeting to order. She stated that the first item on the agenda is an update on the code violations of The Shoppes of Athenry. Ms. Readler noted that a memo had been sent to Council March 5 t ' providing them the status on these issues. Rooftop Mechanicals Ms. Readler stated that the violation for screening of rooftop mechanicals is being tried tomorrow in Mayor's Court. She asked Mr. Smith, prosecutor of the case, to report. Mr. Smith reported that there have been numerous complaints due to the lack of screening for the rooftop mechanicals. The Law Director's office has been working with City staff and the defendant in an attempt to resolve the case. They expect to settle the case tomorrow. Parking in Fire Lane Mr. Smith stated that the Law Director received a call from Pat Kelley late last week, and he has agreed to prohibit parking at the rear of the business. The Law Director will attempt to work out an agreement that is attached to the deed for the land, so that it is enforceable now and in the future, if the land should be sold. Ms. Chinnici - Zuercher inquired if that would prohibit employee parking, as well as customers. Mr. Smith responded that his understanding is that Mr. Kelley sent a memo to the businesses informing them that employees were prohibited to park behind the building. Mr. Jones reported that he has recently noticed a difference. This past weekend, only three vehicles were parked behind the building as opposed to 20 -25 vehicles. Today, there was only one vehicle parked there. Farid Masri, 7061 Calvary Court stated that his understanding was that "No Parking" signs would be installed. The police indicated that if no signs are posted, the restriction is not enforceable. Mr. Smith responded that the agreement they are developing will include the installation of signs so that the police can enforce the Code. Ms. Clarke inquired if it is necessary to reference the Code section on the sign. Public Services Committee March 19, 2001 Page 2 Mr. Jones responded that the Code specifies the size of the signs, 12" x 24 ", and that certain wording be used. Mr. Smith responded that his office is also checking on those requirements and will assure that the signs are compliant with the Code. Satellite Dish Mr. Smith reported that a comprehensive memo on the status of this issue was also provided to Council several days ago. The satellite dish falls into an area regulated by Federal law. There are three classifications of satellite dish. The first category is less than one meter; this is the dish commonly used at individual residences. The second category is less than two meters; the kind commonly used at commercial or industrial areas. This is the type at Mary Kelley's. Federal law limits municipal regulation of this area. The memo forwarded to Council states: "any type of municipal ordinance is presumed unreasonable and therefore preemptive." He suggested that the issue could be addressed from a safety and health issue perspective. There is a three -part test a proposed regulation would have to meet: (1) is it necessary to accomplish a clearly defined health or safety objective that is stated in the text of the regulation itself? (2) is it no more burdensome to satellite users than is necessary to achieve the health or safety objective? and (3) is it specifically applicable on its face to antennas of the class described in paragraph (b)(1) of this section? Mrs. Boring inquired if the aesthetic objective could also be applied. Mr. Smith stated that objective is limited to the third category, the larger satellite dish antennas that are more than two meters in diameter. The City has much more authority to regulate those. There is a two -part test for that category. In essence, the law states that if the City's legislation is reasonable, it will be upheld. It is the smaller dish that the municipal power is limited in terms of regulation. The satellite dish is addressed in the City code, but it does not distinguish between the sizes. As it reads now, it could not be used to enforce any restrictions on this dish. Mrs. Boring stated that her understanding was that a business previously in Dublin, the Boulevard Grill, was unable to obtain permission for the City to install a satellite dish. Ms. Chinnici - Zuercher stated that City code requires the owner to obtain a certificate of compliance. Mr. Smith stated that requirement could not be applied to dishes that are two meters. Mr. McCash inquired if The Shoppes at Athenry obtained a building permit. The regulations for those permits address areas that could be applied to this issue. Mr. Smith stated they obtained a building permit in 1996. The safety issue is a way to regulate this problem. The requirements for mounting to a concrete base, wired underground, designed to withstand a wind force of up to xx miles per hour, properly screened and maintained, could be used. However, the City's Code presently is very broad and likely unenforceable. Mrs. Boring stated that the City has not yet made an attempt to apply the Code. An application should at least be made to the City for installation of dishes, and those requirements that could be Public Services Committee March 19, 2001 Page 3 applied would be enforced. She stated that she has attended some seminars at which it was indicated that there are ways in which a City can regulate this. Mr. McCash stated that, according to City code, anything over six feet could be considered a structure, and there are uniform zoning requirements for setbacks for structures. There could be a zoning violation from the aspect of its being a structure. Mr. Smith stated that he will research the Federal law and advise Council. Ms. Chinnici - Zuercher inquired if there has ever been an instance in which the City attempted to regulate a satellite dish. Mr. Jones responded that, in the past, the City required that application for a special permit be made to the Planning and Zoning Commission, or the satellite dish removed. In this particular instance, Mr. Jones became aware of the installation of the dish, when it was in process. He stopped work on the project for about a week and sent them a notification of violation. This is when he became aware of the FCC ruling. The City withdrew further enforcement action until clarification could be obtained. Ms. Clarke stated that there were also a couple of six -foot residential dishes that were installed. The City notified the residents that if they installed dishes of one meter or less, there were fewer regulations to comply with - - no special permit or hearing. In those cases, they switched to the smaller size. Mr. Masri noted that if Mary Kelley's had contacted the City before the installation, the City could have worked with them on an appropriate location, thereby avoiding much of the problem. Mr. Smith stated that the City's Code requires that the dish be located to the rear of the principal building. Their location meets that specification. The FCC rules are structured to protect competition among the satellite dishes, and they specify that municipalities cannot regulate placement in such a way as to interfere with the signal. In addition, the municipality has the burden of proof in such a case. Mrs. Boring inquired if there was anything to prevent the City requiring a permit process. Mr. Smith responded that, in the case of the smaller dishes, the municipality is not permitted to do or require anything that would delay or hamper the installation of the satellite dish; a permit process would do that. In the larger size, over one meter, the Federal law states that any regulation is presumed unreasonable and therefore preemptive, unless the municipality can prove a health or safety issue. Ms. Chinnici - Zuercher inquired what location would be recommended. Mr. Masri responded that the residents would prefer it be moved toward Kinder Care, and away from the residences. It would also be appropriate to require some screening. Public Services Committee March 19, 2001 Page 4 Mr. Smith stated that there is much case law on screening. Most case law states that it is appropriate for the City to require screening, as long as it is not "unreasonably expensive." In one case, the homeowner was required to pay $250, and the Court ruled it was unreasonably expensive. In this particular issue, there is a large pine tree immediately in front of the dish. Although there is no screening behind the dish, that is an aesthetic issue, which can be addressed only for an over two -meter dish. It would probably be considered unreasonable for this size. Ms. Chinnici - Zuercher inquired if they could be asked to provide a tree behind the dish to screen it. Mrs. Boring stated that there is a larger issue involved. Without any regulation, dishes will be located on rooftops, etc. at the expense of the neighborhood. This is the first case of many more in the future. Mr. McCash stated that this could be addressed through the planning/rezoning process, perhaps at final development approval stage. Mr. Jones stated that the FCC ruling does provide that municipalities can contact the FCC with a proposal to write legislation requiring screening, or other. Mr. Smith stated that if it were to be rewritten, it would have to specify what regulations the City is proposing to apply to each size dish. Mr. McCash stated that the City's current legislation was written in 1996 in response to the Telecommunications Act. Mr. Smith pointed out that the Federal law states that if a dish is under one meter, it does not have to go to a Board of Zoning Appeals, but can be reviewed by a zoning inspector. Mr. Smith noted that as part of their negotiations with Mr. Kelley, they will ask Mr. Kelley to add screening behind the satellite dish. Ms. Chinnici - Zuercher inquired if it could be lowered. Mr. Smith stated that staff could request it. It is a large dish, however, and sits only two feet off the ground. Ms. Chinnici - Zuercher inquired if the Committee is in agreement about the need to re -write the legislation on this issue. Mrs. Boring responded that she would support recommending to Council that the Law Department work with Mr. McDaniel, the consultant, and the appropriate individuals to develop the amendment. Mr. McCash stated that it would be advisable to modify the regulations to address location and proximity issues. Public Services Committee March 19, 2001 Page 5 Mrs. Boring stated that whatever amendments are made to the City's Code, this particular case would be grandfathered in. Ms. Chinnici - Zuercher stated that she will make the recommendation for an amendment to the ordinance during Round Table at the following Council meeting. She summarized the current options for this case, on which the Law Department will attempt to negotiate an agreement: (1) moving the dish and screening, (2) screening the dish at its present location, (3) lowering the dish, if that is feasible. She noted that if it is to be moved, City staff must be involved in choosing a location that is satisfactory for both parties. Mr. McCash suggested painting the dish. Mr. Smith stated that in some cases, painting equipment voids the warranty. Mr. Jones said that the most practical solution would be to add landscaping to screen it. That could be accomplished in two weeks. Mr. Masri stated that the residents' preference is that the dish be moved in toward Tara Hill. Another resident suggested that since Mr. Johnson of Edward D. Jones Investments owns the dish, maybe he would be more inclined to install a tree for screening. Mr. Jones will approach Mr. Johnson about such a courtesy gesture. Outdoor Sneakers Ms. Readler stated that there is only one restriction in the conditions of the Final Development Plan approval, and that was related to outdoor seating. It specified that separate conditional use approval was needed for all outdoor seating and drive -in facilities. They discussed this issue with the attorney for The Shoppes at Athenry; the Law Director's opinion is that The Shoppes need to obtain approval before they can use the patio. The Shoppes maintain that they do not. However, until they attempt to use the patio, they cannot be cited. She added that the outdoor speakers cannot be grouped into the category of outdoor seating or drive -in facility, so no separate approval has to be obtained for the speakers. If the sound from the speakers is offensive to the neighbors, the noise ordinance would be applicable. Ms. Readler is not aware that the speakers have been used. Mr. Masri responded that they use them frequently. He stated that his understanding was that it was necessary to obtain P & Z approval for their use, as in the recent case of BW3's. Ms. Readler stated that it must be a condition appended by P & Z, and P & Z did not make that a condition of approval for Mary Kelley's. Ms. Chinnici - Zuercher stated that in the future this should be included in a checklist of items for P & Z review. Public Services Committee March 19, 2001 Page 6 Mr. McCash noted that since outdoor seating was not included in the original application, it would not have triggered those types of questions. Ms. Chinnci - Zuercher inquired if it could be addressed at this point, other than through the noise ordinance. Ms. Readler indicated that it could not, unless the applicant voluntarily amended it. Mr. McCash stated that the Zoning Code revision currently underway should include prohibition of installation of outdoor speakers without appropriate approval. Mr. Masri inquired if there are any other restrictions on accessories that Mary Kelley's can attach to the building without obtaining permission. Ms. Chinnici - Zuercher stated that there are other sections of the Code, which address lighting and signs, with which the business owner must comply. Mrs. Boring suggested that since the noise ordinance addresses an inappropriate volume level, the neighbors could call the police to make a complaint, if the noise is obtrusive. Mr. Jones stated that if a complaint is received, the police officer will issue a warning; if ignored, he will issue a citation. Mr. Masri stated that car stereo noise of the Masri Pizza delivery drivers has been a problem. Open Dumpsters Mr. Masri stated that the doors to the dumpsters are not closed, and the trash blows into the neighborhood. Mr. McCash stated that this is an ongoing problem throughout the City. The trash haulers do not make the extra effort to close the doors to the dumpsters. Mr. Jones stated that the only option is to license trash haulers and cite them if they are not obeying the regulations. Trash Mr. Masri stated that bags of trash continue to be a problem with Mary Kelley's. He showed photographs of piles of trash bags sitting in the parking lot, including beer kegs in the alleyway. Mr. Jones stated that this is happening over the weekends. He suggested that he can send a notice that it has been observed that they are not depositing the trash in an enclosed container, and the next occasion it occurs, a citation could be issued. Mr. McCash noted that this can be a public nuisance issue also, as it will draw animals to the site. A resident inquired if the notification is sent to the business owner or the tenant. Public Services Committee March 19, 2001 Page 7 Mr. Jones responded that it is sent to both, although ultimately the property owner or management company will be held responsible. Mr. Jones stated that he would send a notice out tomorrow to those parties. Fence Maintenance /Landscaping Mr. Masri stated the gate has been repaired and padlocked, although some of the fence boards are broken. However, the landscaping is still not being maintained around the fence. The trees are diseased and infested with mites; this will infect the neighbors' trees. They do not mulch. Ms. Readler noted that the City's Landscape Code Enforcement Officer who could investigate. Mr. Jones stated that the City has been divided into quadrants, which are checked on a rotating schedule. However, in the case of an ongoing problem, Brian Martin can check the status at any time. He stated that he is uncertain how diseased trees are addressed in the City's Code, perhaps in the nuisance category. Ms. Chinnici - Zuercher noted that until a more responsible company is in charge, staff may have to handle issues at this location on a regular basis. Mr. Jones noted that the owner may need to hire a different property management company. Mr. Masri stated that this company may not know that it is necessary to do maintenance on both sides of their fence. Pickup /Delivery /Service Disturbances Mr. Masri said that recently this has been less of a problem. There has been a problem with a pizza delivery person who has an extremely loud muffler, who has awakened them frequently. When he called the police, he was told that they require a license plate number. He obtained the license number, and when he called to provide it, he was told a police officer would be out. However, no one ever showed up. Mrs. Boring stated that the Public Service Committee could contact the Police Department. She inquired if Mr. Masri had spoken with the community contact officer in the Police Department, who is assigned to his neighborhood. Mr. Masri stated that he has not spoken with him recently. Mrs. Boring suggested that he be invited to the neighborhood association meetings to give him a better perspective of this problem. Mr. McCash suggested that Ms. Chinnici - Zuercher mention the problem in her committee report to Council. Chief Geis will likely be present and take note of it. Odor Ms. Readler reported that this has been a significant problem. Mr. Jones has been called out a couple of times. Last summer, she and Mr. Masri met and spoke with John Shaw, engineer with Public Services Committee March 19, 2001 Page 8 Wendy's, to review the procedure that Wendy's has implemented to control food odors related to the restaurants. Mr. Shaw emphasized that a rigid schedule for cleaning procedures is very important. He provided a list of hood cleaning procedures and discussed the various filters -- the more expensive the filter, the more effective. She requested Committee direction on how to proceed with the information. It would be difficult to require Mary Kelley's to use the more expensive filter if the same requirement is not made of other restaurants within the City. They have discussed using the nuisance section of the Code, if the odor is very offensive. There has also been a suggestion for an odor control ordinance. She noted that the problem associated with this is enforcement, which would have to be done objectively. If cooking food smells are defined as odor, will the enforcement be restricted to commercial establishments only, or to private residences? When staff contacted other cities regarding this issue, they indicated they do not have odor control ordinances. They prefer to refer serious issues to the Health Department. Mr. Jones reported that the difficulty is that what is an offensive odor to one individual may not be to another. Since Code enforcement assumes criminal action, the City has the burden of proof that the Code has been violated. It may be strong at times, but is it offensive? Odors related to garbage /trash or noxious fumes can be addressed more easily as a health and safety issue. Mr. McCash suggested that the Fire Department may have specific cleaning procedures for the type of hood in the restaurant, and could be contacted to investigate that it is being cleaned properly. He doubts that the filters are being cleaned on a daily or even regular basis. He added that a higher quality filter may help the problem. Ms. Chinnici - Zuercher asked if the odor is regular and consistent. Mr. Masri stated that it is more so to the residents southwest of the restaurant. The complaint is not about the smell of cooking food. It is a cloying, dirty grease odor that has made him nauseous. Ms. Chinnici - Zuercher stated that the City's power appears to be limited in this area. It could probably be handled by the Fire Department checking to see that the cleaning schedule is being followed properly. Mrs. Boring stated that if the City were to adopt regulations regarding odor control, this case would be grandfathered in. Nevertheless, in view of the City's plans for neighborhood gathering places, it may be prudent to consider such legislation. Mr. Masri stated that many other communities have developed methods to address odor issues. In California and New York, for instance, the law states that there can be no exhaust from restaurants without proper provision. In Hong Kong, the law is that if the odor cannot be filtered properly for the area, the restaurant cannot be located there. There are proficient filter systems available. Ms. Chinnici - Zuercher asked if it would be appropriate to require Mary Kelley's to use a higher quality filter. Public Services Committee March 19, 2001 Page 9 Ms. Readler stated that the City has not checked to see what is currently in place regarding filters and cleaning. If the current system is not deficient, the City cannot require more expensive filters. It is impossible to enforce regulations imposed because some people find the food odors offensive. Mr. Masri stated that it is not the odor of food that is offensive; it is the odor of dirty grease and oil mixed. Butane can cause asthma attacks, skin problems, eye irritations, and other health concerns. But it could be easily addressed with the nuisance ordinance. It does not indicate similar action must be required of every other restaurant in the City. The City has had no complaints regarding other restaurants, and not every restaurant in Dublin is within 50 feet of a home. Ms. Readler stated that the first step is to request the Fire Department to investigate. For a nuisance citation, the violation must meet the definition of noxious fumes and the burden of proof. If Mr. Jones identifies an odor that he is willing to cite, the magistrate must be brought out to make a judgment call. Much of the case law regarding the nuisance law relates to trash and chemicals. Mr. Jones stated that this is within the jurisdiction of the Franklin County Health Department, which conducts regular food service inspections. Perhaps their records would reveal if they have also identified a problem. Ms. Chinnici - Zuercher stated that the Committee will recommend the following steps: 1. City staff will request Washington Township Fire Department to make an inspection of Mary Kelley's to determine if/any source of the odor problem. 2. Mr. Jones will contact Franklin County Health Department regarding their inspection. 3. Mr. Masri will give her a call the next time the offensive odor is pervasive. If able, Ms. Chinnici - Zuercher will go to the area to assess the odor situation. Mrs. Boring inquired if the Committee is interested in requesting the Community Service Advisory Council (CSAC) to research the issue of restaurants and odor problems. Ms. Chinnici - Zuercher stated that it would be necessary to identify the goal in doing so. Other than this restaurant, for what other restaurant has the City received a complaint? Mr. McCash stated that they could research what other jurisdictions have as tangible standards, either pervasiveness or frequency of the complaint. Thomas Kohler has land zoned that is near Heather Glen. The plan for that development could include a deli, which would be near residences. It would be better to address the issue now, rather than wait until the City has another business that would have to be grandfathered in. Mrs. Boring stated that with the filtration devices available to restaurants, it may make sense for Dublin to consider this type of legislation as a quality of life guarantee to its citizens. In addition to the CSAC's study, it would be good to have a legal opinion on such legislation. Ms. Chinnici - Zuercher will also recommend to the Council that they refer this issue to the CSAC. Ms. Chinnici - Zuercher adjourned the meeting at 6:55 p.m. Public Services Committee March 19, 2001 Page 10 Submitted by: Clerk of Council