CITY OF ROCKY RIVER

JUNE 2, 2008

The Committee-of-the-Whole was called to order by Mr. Moran, President of Council, at 8:00 p.m.

Council Members Present: Mr. Hunt, Mr. Shepherd, Mr. Mylen, Mr. Furry,

Ms. Arabian, Mr. Long, Mr. Moran

Administration: Mayor Bobst, Mr. Linden, Mr. Beirne

Law Director: Mr. Bemer

Press: Mr. Saylor

The meeting was opened with the Pledge of Allegiance.

MAYOR'S REPORT:

This Sunday, the first of the free Summer Concert Series will be held at the Don Umerley Civic Center at 7:00 p.m. An e-update has been sent and the dates of the subsequent outdoor concerts are posted on the City's website. This Sunday's program will feature the Rocky River Community Band and Chorus.

The Mayor was pleased to report that the Governor's economic stimulus package was passed by the General Assembly last week. The Mayor recalled that this bill will provide additional infrastructure funds and is now awaiting the Governor's signature. She reported that this is good news regarding Ohio Public Works and that funds could be available in the near future.

Tomorrow evening, consultant D.B. Hartt will meet with members of the Administration and Council in the next step in the comprehensive update of the Development Code. Discussion will revolve around the company's findings following its 30 interviews and what the next steps should be. The meeting will be tomorrow at 7:00 p.m. in the David J. Cook Council Chambers.

Demolition of playground equipment at City Hall Park is beginning. City crews will be working on demolition and are currently removing some structures, but others will be re-used. The installation of the new equipment will be accomplished in approximately four days next week.

Paving contracts for Gasser and Cottonwood have been sent out for bids, and should come to Council in the next two weeks.

Dye-testing of the mains for the Valley View Sewer Project, a preparation for the entire project, will commence soon. This will assist in evaluating the next necessary steps.

An article in today's Plain Dealer featured Bradstreet's Landing. The Mayor recommended that all take the time to read the article in the Metro section.

The Mayor commented that on Friday, she had the honor of attending Olympic Gym Day, a program of St. Christopher School which was held at the high school stadium. Preparations began in January with students in each classroom studying a specific country. Different aspects of the study were integrated into every subject. Banners and flags were prepared, and on Friday, students marched around the track in a procession culminating in the passing of the flame and the lighting of the torch. Their guest, Bud Shaw of the Plain Dealer, was the keynote speaker. A huge Olympic day followed back at their school. The Mayor commended the teachers and administrators as well as the public school administrators who coordinated the ambitious effort. She said they all did a tremendous job, and that the students learned a great deal from their studies.

As a result of fund-raising activities, Beach Cliff Women's Club and the Seniors Council donated $1233.00 to the Fire Department. The Mayor thanked them for their generosity.

The Relay for Life co-chairs have announced that, although they are still counting receipts from their event last weekend, as of last Thursday, $92,000 has been raised. Last year, approximately $60,000 to $66,000 was raised. Especially outstanding was the service learning class at the high school which raised more than $12,000 to contribute to Relay for Life.

UNFINISHED BUSINESS:

Ordinance No. 36-08: This ordinance adds right-of-way administration to the City's Code. A draft of changes to the exhibit is expected shortly from the Law Department. Mr. Shepherd asked that the revised exhibit have changes indicated.

Ordinance No. 63-08: Mr. Furry noted that this ordinance had a second reading last week. It has been referred to the Planning Commission, which recommended it at their last meeting. Following approval of their minutes on June 17, Mr. Furry expects a third reading on June 23.

Ordinance No. 64-08: Mr. Furry noted that this companion ordinance to Ordinance No. 63-08 also had its second reading on May 12 and was also referred to the Planning Commission. As with Ordinance No. 64-08, he is awaiting approval of Commission minutes on June 17. A third reading for this ordinance on June 23 is also anticipated.

MISCELLANEOUS BUSINESS:

Proposed Chapter 1313: Green Infrastructure Practices for New Construction

Controlling Riparian Setbacks and Wetlands Setbacks:

Mr. Moran welcomed Building Commissioner Kevin Beirne, whose background and expertise in riparian issues will be helpful to Council's discussion. Mr. Beirne noted that two possible ordinances have been presented as listed above. These are alternate solutions to the problem, and confusion has arisen over which plan is better for Rocky River. He recommended the original ordinance which sets riparian setbacks. With the green infrastructure ordinance, no provisions are made for variances. With setbacks, residents who own property along a river, creek, or the Rocky River can apply for a variance and, if they choose, apply some green infrastructure measures. Under this ordinance, to remedy problems in an existing structure, demolition and reconstruction within six months will not require a variance. In his opinion, the green infrastructure ordinance is much more involved because of silty clay conditions and shale in this area. Ordinances No. 63-08 and 64-08, when passed, will incorporate many green infrastructure requirements, e.g wetlands, retentions, sediment control measures. The information in the green infrastructure ordinance can be utilized to mitigate variances for riparian setbacks. He also feels that setbacks would be enforceable.

Mr. Moran recalled that when these concepts were presented, a great deal of information was presented at once. The ordinances presently on the agenda seem to be less controversial, and Council seems to be in agreement. These proposed chapters, however, are not as clear.

• •Mr. Beirne has conferred with Mr. Todd Houser of the Cuyahoga Soil and Water Conservation District (CSWCD), whom Mr. Beirne referred to as an authority on this subject. He says that they can find nothing which makes adoption of either legislation mandatory. Ordinance No. 63-08, presently under consideration, includes the post-construction management of water runoff, and is part of the storm water management of runoff from existing lots. The state EPA requirements include a six item non point source management program which is recommended for implementation. Mr. Beirne emphasized "recommended", noting that it is not "mandatory". Rocky River is reviewing actions of other communities and their views regarding setbacks. Because the Rocky River drains more than 20 square miles, setbacks could be 160' to 200', and lots would not be buildable. If requirements could be varied in bulkheaded areas of the river, setbacks could be set at 25' to 50', which would be more reasonable. Other areas, such as Spencer Creek which are undeveloped, can maintain the 100-year floodplain as a setback requirement. Bulkheaded areas, however, will not contribute to the contamination of waterways as there is no vegetation along the river.

Mr. Furry asked if any consideration has been given to bulkheaded areas.

• •Mr. Beirne acknowledged that, at this point, there is no differentiation, but updates are constantly being made.

Mr. Long noted that the green infrastructure Section 1313.14 discusses variances. He asked if this is a revision. Mr. Bemer responded that this is a right of appeal and does not identify remediation by green infrastructure.

Mr. Furry, noting that he has spoken with councilmembers and consultants in other cities, has found much uncertainty and misinformation and he has been told that it is not mandatory, but it will be mandatory, but no one knows when or what will be required. He suggested that being on the leading edge of drafting legislation before requirements are known may pose problems. He respects the intent, but, for example, in one place, it states that regulations are not applicable to Lake Erie unless it is defined as a category 3 wetland, and he asked if it is.

• •Mr. Beirne said that it is not certain; some may say yes and others, no. The Army Corps of Engineers and the ODNR regulate the shore.

Mr. Furry continued that our consultant stated that Bay Village has adopted a setback ordinance, and he disagrees.

• •Mr. Bemer reported that the Bay Village Council is still reviewing the issue for their committee meeting this week. Their understanding is similar to ours, with a 25/25 setback or 25/50. However, the issue is still being deliberated. Mr. Bemer is also in the process of contacting the City of Lakewood. He noted, however, that Mr. Beirne has a great deal of expertise and experience in these issues and has worked with many green infrastructure measures, e.g. the retention basin outside the Civic Center which is also a filtering system for sediment control.

The issue is that the standard is unknown. The NOACA standard was used in the model and presented as a recommended level. Those setbacks are 120' and 300'. This model works for and has been adopted by communities which do not have riparian properties such as Fairview Park whose residents are not impacted by the legislation. Mr. Bemer said that the question remains as to what the standards are and what action, if any, will be taken by the Ohio EPA for cities which have not met their standards. These standards will be established in the future. Action taken regarding storm water management by the City may have an impact on the environment and wildlife in the Lake and rivers according to the extent of the storm water runoff. At a meeting this morning with members of the Administration, one recommendation was to consult and work with communities in a situation similar to ours. Mr. Bemer agrees with Mr. Beirne that the riparian setbacks are preferable to the green infrastructure practices because it will be less onerous for residents. Riparian setbacks would give them the option of a mitigation process through variances. Green infrastructure could be implemented during that process.

Mr. Moran briefly explained riparian setbacks, indicating that properties which are adjacent to lakes, rivers, ponds or other bodies of water are subject to building regulations which govern how near the water construction can occur. This is done to protect the wetlands environment. He agreed with Councilman Furry that caution is indicated because many residents can be affected by Council's decision. Mr. Beirne added that the Rocky River drains over 20 sq. mi. which means any construction would have to be 120' from the water's edge. Because standards at present are recommended rather than mandatory, he is not certain if this is the true standard. Mr. Moran asked what would happen if one of these ordinances is not passed.

• •Mr. Beirne said that nothing would happen because riparian setbacks are not mandatory at the present time. This measure is one of the six to be implemented for non point source pollution controls.

• •Reviewing this morning's discussion, the Mayor added that there is no hurry in the enactment of legislation. If the City were to enact riparian legislation, provisions could be made for requiring green mitigation with variances. When the time comes, those measures could be put into place, working with neighbors, Lakewood and Bay Village. The EPA would be interested in the City's entire storm water management program. If they wish changes to be made in any area, they will communicate that information. Right now, there is no answer to what type of legislation is expected. The model ordinance is being passed by communities that do not have the bodies of water which this legislation is specifically designed to address.

Mr. Mylen asked if there are incentives to be among the first to pass legislation, such as added flexibility or grant monies. He wondered if, by early passage, Rocky River could set the standard rather than wait for another community to set a standard with which our City is not comfortable.

• •The Mayor believes that a case can be made for working with Bay Village and Lakewood, three like communities, and to work together to set a standard. There may be others, as well. This could create the standard for each situation in those communities, and would have the advantage of consistency. The EPA will definitely communicate with City officials if it does not believe that its standards have been met or exceeded.

Mr. Furry said that he believes that, from what he has read, at some point the City will be required to address this issue, but no one knows when.

Asked by Mr. Moran if there are any parts to this legislation that Mr. Beirne would like to have immediately, the Building Commissioner responded that if he has a development near a wetland, current regulations require that the area be delineated and that construction not affect it in any way. Existing floodplain and floodproof construction requirements are in force.

• •Mr. Beirne commented that with the 20 sq. mi. drainage area of Rocky River, Bay Village and Lakewood, setbacks would be higher than in communities like Berea. There is also the question of whether lakefront properties would be included. If they were, setback requirements would be enormous.



• •Responding to Mr. Furry's question of what wetlands exist in the City, Mr. Beirne explained that developers must prove to the City that property is not located on a wetland before construction is approved. If wetlands exist, they cannot be disturbed in any way, so requirements to stay away from wetlands areas are being enforced. This is something needed throughout the state as part of the clean water act mandated by the federal government. This is a step toward cleaner water and keeping people away from flood areas.

Mr. Furry noted that consultant, Joseph Koncelik, commented that no other cities in Ohio have adopted a green infrastructure policy. He asked if this is something the Administration believes should be officially incorporated.

• •Mr. Beirne said it would be nice to have the option of using those measures, but not for mandatory enforcement. There are, however, areas where people want to use these measures. There is a development along the Rocky River now which is considering green roofs. The developers say they are insulating and environmentally safe. With a green infrastructure requirement, any large development, such as Rockport, would have to meet not only pre- and post-construction requirements, but also green infrastructure. It would therefore cost approximately 10% more to renovate the property.

Mr. Moran questioned a discrepancy in distances as cited by the ordinances. Mr. Bemer explained that some requirements had been changed from the model ordinance in response to requests from the City.

• •Mr. Hunt agreed with Mr. Furry regarding moving forward too quickly. There are unique prospects of applications to the Yacht Club Basin and/or Lake Erie relative to other communities which have adopted the model. He would not be in favor of taking action without more specifics.

Mr. Bemer pointed out that Mr. Beirne's input comparing the green infrastructure vs. a modified process with green infrastructure as a mitigation is very important as to applicability, enforcement aspects and impact on the community. He said the Administration was seeking Council's thoughts on applying green infrastructure throughout the community on lots of more than one acre, or as a part of mitigation for riparian setbacks.

• •Mr. Beirne said that in the second case, it would be necessary to educate Board members on ways to mitigate through variances.

Mr. Shepherd agrees with his colleagues, and said that he appreciates the efforts of those who are providing guidance. He said it is a great start, but he does not feel that Council should take action now. It is necessary to find out if Lake Erie is a wetland. As a fully developed city, there will be minimal impact on the environment. Not too many properties will be immediately affected, but for those who are, it will be expensive. Measures to protect the environment are necessary, but may be premature at this point.

• •Mr. Bemer suggested, the view of Mr. Beirne's presentation and the comments of Council, using the proposed Chapter 1313, controlling riparian setbacks and wetland setbacks as a model and make changes to address Council questions. This will be an ongoing work for a future presentation.

Ms. Arabian commented on Mr. Mylen's question of any benefit to moving forward at this time. She noted that there would probably not be a cost to not moving forward because there are no mandates at present. By waiting to define and understand more clearly, the goal will be clear, and a solid decision can be made.

Mr. Moran summarized by saying that the message from Council regarding green space and protection of the environment is that members are in favor of it. But Council would like to be sure about the best way to implement these concepts. He expressed appreciation to the

Administration for the time already spent and said he will look forward to their sharing more information as it becomes available.

Mr. Mylen asked if the City is hiring any outside contractors to further investigate the question. Mr. Beirne responded that most of the questions are being answered through Cuyahoga Soil and Water as part of the City's engagement with them for storm water management. Questions are also being asked of the Ohio EPA such as, is this mandatory? If mandatory, when does it have to be implemented? Can setback requirements be varied? Can 25' be set instead of 120' without protest from the EPA? Mr. Beirne said that he will pursue those answers.

NEW BUSINESS: NONE

ANNOUNCEMENTS: NONE

As there was no further business by members of Council, the meeting was adjourned at 8:47 p.m.

______________________________ ______________________________

James W. Moran Misao Kurokawa

President of Council Clerk of Council