NEWBERRY COUNTY COUNCIL
MINUTES
MAY 21, 2008
The Newberry County Council met on Wednesday, May 21, 2008, at 7:00 p.m. in Council Chambers at the Courthouse Annex, 1309 College Street, Newberry, SC, for a regularly scheduled meeting.
Present were: Henry B. Summer, Chairman
William D. Waldrop, Vice-Chairman
Mike Hawkins, Councilman
John David Dawkins, Councilman
Edgar Baker, Councilman
Henry H. Livingston, III, Councilman
Wayne Adams, County Administrator
Susan C. Fellers, Clerk to Council
Debbie S. Cromer, Finance Director
Absent: John E. Caldwell, Councilman (attending NACo Finance Meeting)
Press: Cindy Pitts, The Newberry Observer
Heather Hawkins, WKDK
Notice of the meeting was duly advertised as required by law.
Mr. Summer called the meeting to order and determined a quorum to be present.
Mr. Livingston had the invocation followed by the Pledge of Allegiance.
1. Personal Appearances.
Mr. Summer said that since the Newberry Medical Society wants to discuss the new ambulance this would be more appropriate to be discussed during the budget session. Mr. Dawkins stated that was correct and under agenda item 7 there will be a proposed amendment as far as the EMS. Mr. Summer said this would be moved to agenda item 7.
2. Adoption of Consent Agenda.
Mr. Livingston moved to adopt the consent agenda consisting of minutes of May 7, 2008 and May 8, 2008; second by Mr. Baker. Vote was unanimous.
3. Additions, Deletions and Adoption of Agenda.
Mr. Baker moved to adopt the agenda; second by Mr. Livingston. Vote was unanimous.
4. Ordinance #03-06-08: An Ordinance amending Chapter 153 of the Newberry County Code of Ordinances setting forth special conditions for the use of recreational vehicles, and for other matters related thereto.
Mr. Waldrop moved for second reading as amended at the work session of May 8, 2008; second by Mr. Hawkins.
Mr. Adams met with the Planning Commission yesterday, and one of the things discussed was the progress of this ordinance. The Planning Commission asked that recreational vehicles be treated the same as mobile homes in terms of their being allowed as temporary dwellings during the construction of a permanent residence in all of the zones. To do this, and Mr. Adams was not proposing that Council take it up tonight as an amendment, in Section 4(H) of the ordinance, Council would need to add the RS-1 District. It was left out before we didn’t have the RS-1A. Also, there would have to be provisions for RS-3 and RS-4 Zoning Districts. Both of these allow the mobile homes as a temporary dwelling during the construction of a primary residence without going before the Board of Zoning Appeals. RS-1 and RS-2 require that you do go before the Board of Zoning Appeals. Again they just want them treated the same as mobile homes with regard to their being used as temporary dwellings during the construction of a primary residence.
Mr. Baker said if you were building a house in RS-1 or RS-1A, you would still need something for an office in there. Do we need to leave that open to special permission or can we just go ahead and put it in where something can be put on that lot while building.
Mr. Adams said that is something that could be discussed while looking at an amendment. He didn’t come to propose an amendment tonight, but this is something that can be considered if we do an amendment to fix these other problems.
Mr. Hawkins thought Mr. Adams was talking about residing in it and using it as a residence. Mr. Adams said that was correct. It would be a dwelling to live in while the home is being built. The Planning Commission is saying wherever you allow the mobile homes as the temporary dwelling while you are constructing a primary residence, that you treat recreational vehicles the same as you treat mobile homes for that purpose.
Mr. Hawkins agreed and would vote to do that but he thought Mr. Adams said we might change RS-1. Mr. Adams said if you look at the ordinance we reading now in Section 4(H), it references allowing that in RS-2 and requiring that you go before the Board of Zoning Appeals to get that exception. Now that we have RS-1A you might want to consider putting RS-1 in that paragraph as well. In RS-3 and RS-4 they would want it treated similarly there, too. The same way you treat the mobile homes in those districts, allow recreational vehicles for those purposes. Mr. Adams was just relaying the Planning Commission’s concern before the reading process was over.
There being no further discussion, Mr. Summer called for the question. Vote was unanimous.
5. Ordinance #05-15-08: An Ordinance amending Chapter 153 of the Newberry County Code of Ordinances, commonly known as the Zoning Ordinance, so as to add a new single family residential zoning district, to be known as RS-1A, and to define the permitted uses, conditional uses and special exceptions within the RS-1A Zoning District, and to make such other amendments to Chapter 153 of the Code of Ordinances as are necessary to incorporate this new zoning district within the zoning plans for Newberry County, and other matters related thereto.
Mr. Waldrop moved for second reading; second by Mr. Dawkins.
Mr. Adams said there was no concern about the substance of the ordinance as such, but one thing we began talking about, as staff regarding this is how we have envisioned it being driven, the desire for this RS-1A district. We said that the neighborhoods that want it would ask us for it. In thinking about that and back on some prior experience and particularly a case from the South Carolina Supreme Court from Mt. Pleasant that says you can’t zone by petition. We need to be careful of that with this being a petition driven process. Mr. Adams didn’t say it couldn’t be so, but we need to be careful and see what our liability might be down the road. What happened in the Mt. Pleasant issue was that there was a zoning ordinance that was being adopted by this referendum initiative whereby 15% of the electoral signed a petition to get an ordinance passed. The ordinance is put on a referendum, and it is voted upon. The Supreme Court said you couldn’t zone that way. While it may be intuitive to say that let the majority rule, the Supreme Court may be more powerful than the majority because they have said you can’t zone by a petition. In that case they were talking about a referendum being voted on by the public.
Mr. Adams suggested we might get into a situation that is a very short walk from that same situation. Consider we might have a neighborhood, a subdivision, that comes to us and they want to be in RS-1A. That presupposes that “they” means all of them. You might have some folks in there that say they don’t like that and don’t want to be a part of that. If you get in the business of counting the number of petitions from people who want to be in the RS-1A zoning district and you have more people that want to be in than don’t. The county then zones all the property. We are a very short walk from zoning by petition. It is the same principle. It might be okay, but Mr. Adams suggested legal counsel on before going much further. Not with reading the ordinance but how the adoption is driven. He felt it would be fine for a member of Council to propose an RS-1A district for a defined area, hold a public hearing, and then Council can vote whether to adopt it. That doesn’t get you in the business of counting these petitions and deciding that a majority has ruled, and you have had something like a voting process.
Mr. Waldrop thought that was what we did. Mr. Adams was not aware of it, but it has been talked about in this case right here. We have individuals petition their own properties to be rezoned, but we are talking about individuals petitioning other people’s property to be involved in it.
Mr. Waldrop asked if Mr. Adams was concerned about a lawsuit. Mr. Adams said if someone says they don’t want it, and we have counted the petitions of all the people in the neighborhood, and a majority of them want to be in RS-1A, so the county is going to do this. The Supreme Court says basically that is not a reason to do it. You go through the process of defining the Planning and Enabling Act, which involves the consideration of an ordinance in public and discussion of it and a public hearing, but not anything like a voting. Mr. Adams concern was that we get too close to what the ION case prohibited and that was to say we are going to put this to a vote and go based on what the vote is. The Supreme Court says you don’t zone on that basis.
Mr. Hawkins asked if we were about to begin the process of updated the land use plan and asked if that would help take care of some of this. Mr. Adams said any time you do a zoning amendment you want your comprehensive plan to support it or at least not conflict with it. He didn’t know that we could undertake the process of when neighborhoods want to be in RS-1A we are going to count petitions for and against and go with the majority.
Mr. Hawkins said the land use plan could be worded in such a way that it would be available to areas and then somebody could come up with the idea that it needs to be done. There is a way to do this. Mr. Adams said there is no problem about doing it if you go about it in the traditional way of saying Council Member, District #1, introduces an ordinance that says we are going to rezone this defined area as RS-1A. Then you have a public hearing on it. People get to come and talk. You vote. You haven’t gotten in the business of counting the fors and againsts.
Mr. Dawkins said basically in public we would have to say even though the majority of our constituents want us to vote this way, we are not voting your way; we are doing it our way. Mr. Adams said he was not saying that. The Supreme Court may have laid the groundwork that creates those circumstances and it is just because we have talked about this being neighborhood driven, let them come and tell us. We have assumed that “they” are all of one stripe and they are all going to support this. Mr. Adams wants Council to guard against the aggrieved parties who didn’t want it, and then they say that the ION case in Mt. Pleasant says that you can’t do this. Mr. Adams wants to be sure we are protected. If we can say this is something different from ION and is not a concern. If we get legal counsel that gives us that buffer of comfort, we are fine to go on as planned. There is a trap here we need to run with specialized legal counsel that can tell us.
Mr. Hawkins asked if the case Mr. Adams referred to was a community with a homeowners’ association. Mr. Adams didn’t recall if the homeowners’ association was involved. Mr. Hawkins felt that would simplify it if a group like that voted to come forward and say we wanted it. It wouldn’t be quite like somebody going up and down the street getting a petition signed.
Mr. Adams has contacted an attorney who is familiar with this issue, but he wont’ be in until Friday. This is not saying anything about the substance of the ordinance. It is guarding against adopting or applying this on the map in a way that some party might be aggrieved down the way.
Mr.
Livingston asked Mr. Adams his recommendation at this time. Mr. Adams said go ahead with the reading of
the ordinance. We have talked so much
in this process about the neighborhoods could come to us if they want
RS-1A. We need to be careful about the
way they come to us in the sense that we need to see if we can get in the
business of counting these petitions.
It is intuitive to all of us to say that we count up the fors and
againsts and decide which way to go.
The Supreme Court has said in this kind of instance at least as regards
the ION case in having a formal referendum that this is not appropriate. The Court said in that case that the
planning and enabling act lays out all of the concerns that go into making land
use ordinances and adopting them. They
give that process precedence over some majority rule. Mr. Adams said this was not his construct. This is the Court’s, and the question is if
we just count the petitions who are for going into this, how much different is
that from a referendum. It looks like a
short walk particularly if you take the sentiment of everybody in that district
and a majority of them petitions and some minority does not, and then the minority’s
property get zoned RS-1
A, and they don’t like it, they will say you have just zoned by petition. That is not saying you couldn’t adopt
RS-1A. You just need to be careful
about how you adopt it.
Unidentified man – It concerns him when Mr. Adams said the majority of this country doesn’t rule, and he didn’t care if it was the South Carolina Supreme Court. The only other comment he would make is when you think about something like this is if you went to every zoning group, segment that you have in the county right now, you won’t get a majority, 100% for it. What you are saying is there is going to be somebody might opt out and you would force them into a zone that maybe 5% don’t want. You have that today. This is not any different than what you already have. A referendum and making known a desire to change things – why are you even dealing with recreational vehicles if somebody didn’t ask for a change.
Mr. Adams wanted to separate what he was saying to the Council from rhetoric. Factually the Supreme Court has issued a decision that relates to this kind of zoning and this process. As far as anybody here being against majority rule, Mr. Adams was only telling what the Supreme Court said in this particular case and that it might be related to this. He did not want his comments mischaracterized as saying we should not have majority rule.
Unidentified man said it was not a very far walk in using Mr. Adams’ words when what you said was sounding like majority doesn’t rule, and there is enough of that in this country already. He was expressing a concern that Mr. Adams should think about before he tried to bend too far with what constitutes what people want in saying you will let somebody else make those decisions for them regardless of what the majority want. His opinion was you get on dangerous ground when you start saying the majority is not something you listen to.
Mr. Dawkins called for the question.
Mr. Waldrop asked to make a statement before voting. If we don’t have certain rules and regulations like RS-1A and we are going to let recreational vehicles or tents or whatever go into an area that is highly developed with stick built homes, when we have the reassessment, how is that type of property going to be reassessed. These people are going to have a legitimate complaint to come and complain that the value of their property has gone down. If they are paying $4,000 or $5,000 a year to this county, he would want it reduced in half if that is the way it is going to be.
Mr. Summer said we were not talking about not going forward with RS-1A but the County Administrator is saying we need to go forward with RS-1A in a way to minimize any potential lawsuits because we don’t want to spend any more money on lawsuits than we have to.
Mr. Adams said you might get an opinion from the attorney that says that it is okay or that it isn’t. The opinion of an attorney who deals with this is more important than Mr. Adams’ opinion. Mr. Adams was only telling Council that we need to do all the research that we can to see that we are not going to be afoul of this Supreme Court decision.
Mr. Waldrop said the county is always going to get sued. That’s why we have to hire these high priced lawyers. It is nothing new.
Harry Greisser lived through the original zoning process and zoning itself was voted in by referendum. No referendum has been done on any particular community coming into RS-1A although opinions have been voiced but no referendum has been conducted by County government on the issue even though people have expressed their opinion on how they want to be treated. He felt that was relevant to the issue since there was no referendum. Beyond that we need to be conscious of the fact that there is a strong opinion in neighborhoods about how they want to be treated. We have seen other groups come in and voice their opinion and get zoning changed. What is different? Finally, when zoning did come in, zoning categories were imposed in neighborhoods and those who were in non-compliance were told that they could continue as non-complying people in that community. It didn’t change their status. It just meant that they were now zoned RS-1 or RS-2 or whatever and that non-compliance would be allowed to continue until they sold or changed something. If you have someone who is in non-compliance of the existing ordinance, we are talking about giving that person an exception under the new ordnance, which is not precisely grandfathering.
Mr. Adams said you don’t want someone from the minority position in such a disagreement to come in and undo something on a technicality. Mr. Greisser understood that but he was trying to go through the thought process that says this is different than that situation because the County did not conduct a referendum.
There being no further discussion, Mr. Summer called for the question. Vote was unanimous.
6. Ordinance #05-13-08: An Ordinance to provide appropriations for the fiscal year beginning July 1, 2008 and ending June 30, 2009 for the Newberry County Library, Piedmont Technical College and the Newberry Agency for the Developmentally Disabled; to provide for the levy of taxes on all taxable personal and real estate properties in Newberry County for said purposes; to provide for the expenditure of said taxes and other revenues coming to the County during said fiscal year for said purposes.
Mr. Dawkins moved for second reading; second by Mr. Hawkins. Vote was unanimous.
7. Ordinance #05-14-08: An Ordinance to provide appropriations for the fiscal year beginning July 1, 2008 and ending on June 30, 2009 for the Newberry County Budget for County Ordinary purposes and for other County purposes for which the County may levy a tax and receive revenues; to provide for the levy of taxes on all taxable personal and real property in Newberry County for all County purposes, including sufficient tax to pay the principal and interest on outstanding indebtedness of Newberry County payable during said fiscal year; to provide for matters relating to Newberry County; and to provide for the expenditure of said taxes and other revenues coming to the County during said fiscal year, and to provide for the borrowing in anticipation of tax collections by the issuance of one or more Tax Anticipation Notes.
The following amendments as discussed at the May 8, 2008 work session were proposed:
|
|
|
Funding Level |
Proposed |
|
Budget Code |
Description |
as of First Reading |
Amendment |
|
|
|
|
|
|
010-010-01200-01010 |
Personnel |
$ 120,000 |
$ 75,000 |
|
010-010-01200-01110 |
Social Security |
7,160
|
5,738 |
|
010-010-01200-01120 |
Retirement |
10,892 |
$ 7,043 |
|
010-010-01200-01130 |
Insurance |
9,137
|
$ 9,137 |
|
010-010-01200-01200 |
Workmens Comp. |
250 |
$ 201 |
|
010-010-01200-02021 |
Contracted Svcs. |
$ 6,500 |
|
|
010-010-01200-02050 |
Contracted Maint. |
2,125
|
$ 2,125 |
|
010-010-01200-02090 |
Non Salary Legals |
100,000
|
$ 100,000 |
|
010-010-01200-02250 |
Office Expense |
2,200
|
$ 2,200 |
|
010-010-01200-02260 |
Postage |
200 |
$ 200 |
|
010-010-01200-02350 |
Subscriptions |
3,200
|
$ 3,200 |
|
010-010-01200-02360 |
Telephone |
500 |
$ 500 |
|
010-010-01200-02380 |
Travel |
965 |
$ 5,000 |
|
|
|
|
|
|
TOTAL LEGALS |
|
$ 256,629 |
$ 216,844 |
|
Legal Budget Savings |
$ 39,785 |
|
|
|
Increase council contingency (line item 010-010- 15000-02011) by
$ 39,785, |
|
|
|
Explanation of Proposed Amendment: The proposed amendment reduces expenditures in the FY 08-09 legal budget and transfers the difference to the council contingency expenditure line item.
Explanation of Proposed Amendment: The department head’s request for the solid waste collections contracted services expenditure line item was $192,800; however, the annualized expenditure for this purpose is projected to total $210,000. Additionally, the Council on Aging, which staffs the County’s recycling centers, is seeking additional funding to compensate for the $0.70 per hour increase in the federal minimum wage, beginning July 1, 2008.
Explanation of Proposed Amendment: The amendment transfers vehicle insurance funds from a public works expenditure line item to a collections expenditure line item in order to account for appropriations more accurately.
Explanation of Proposed Amendment – This amendment transfers funding among animal control budget expenditure line items to resolve the oversight in the original budget draft of not funding cleaning supplies for the department.
Mr. Waldrop moved that, as agreed at the May 14, 2008 work session, items 1 through 4 above be approved as a single amendment to the fiscal year 2008-2009 General Operating Budget; second by Mr. Livingston. Vote was unanimous.
Mr. Dawkins requested consideration of an amendment concerning expanding the Newberry County EMS by 12 hours a day 7 days a week as follows:
Proposed Budget Amendment: Provide staffing of an additional two-person EMS ambulance crew for 12 hours per day; provided that, the Emergency Services Board shall make findings of fact and recommendations to the County Administrator as to the appropriate base of operations for this service:
(A) Service Cost Increases
Increase line item 010-010-14270-02020 by $209,917, from $690,505 to $900,422.
Increase line item 010-010-15000-02011 (Council Contingency) by $35,193.
(B) Funding the Service Cost Increase
Reduce line item 010-010-14250-04070 by $177,281 (from $515,815 to $338,534) by converting the cash purchase of two ambulances ($230,000) to five-year lease purchases ($52,719).
Further reduce line item 010-010-14250-04070 by $32,636 (from $338,534 to $305,898) by converting the cash purchase of four “twelve-lead” EKG monitors ($88,000) to five-year lese purchases ($20,171).
Mr. Dawkins moved to approve the amendment and that the Emergency Services Board do a study to determine where the ambulance should be placed; second by Mr. Hawkins.
Dr. Alan Paysinger, President of the Newberry County Medical Society, read into the record a Resolution from the Medical Society in support of the increased ambulance coverage (original Resolution attached to minutes). Other persons speaking in response to questions of Council and in support of the increased staffing: Lynn Beasley, Bill Grigsby, and Dr. Oscar Lovelace.
After discussion, Mr. Summer called for the question. Voting for the motion: Councilmen Hawkins, Dawkins, Livingston and Summer. Voting against the motion: Councilmen Waldrop and Baker. Councilman Caldwell was absent. Motion passed by majority vote.
Mr. Hawkins moved for second reading as amended; second by Mr. Dawkins. Vote was unanimous.
8. Ordinance #05-16-08: An Ordinance amending Chapter 153 of the Newberry County Code of Ordinances altering the requirements for the conditional use of a manufactured home as a temporary residence during construction of a permanent residence in Zoning District R-2.
Mr. Hawkins moved for second reading; second by Mr. Waldrop. Vote was unanimous.
9. Ordinance #05-17-08: An Ordinance acting on a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone two tracts containing a total of 4.31 acres designated as TMS Parcel #339-3-54 and 339-3-55, from General Commercial (GC) to Single Family Residential (RS-1).
Mr. Livingston moved to approve the recommendation of the Planning Commission and for first reading; second by Mr. Baker. Vote was unanimous.
10. Ordinance #05-18-08: An Ordinance acting on a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone a tract containing a total of one acre designated as TMS Parcel #698-24, from Single Family Residential (RS-1) to General Commercial (GC).
Mr. Dawkins moved to approve the recommendation of the Planning Commission and for first reading; second by Mr. Livingston. Vote was unanimous.
11. Committee Reports.
No committee reports.
12. Appointments.
No appointments.
13. Acceptance of St. Paul’s Church Road from the State Highway System into the County Road System.
Mr. Waldrop reported that this road goes around St. Paul Lutheran Church and the Road Committee recommends the County accept this road from the State Highway System. The County will then deed this road to St. Paul Lutheran Church.
Mr. Waldrop moved to accept the road from the State and in turn transfer the road to St. Paul Lutheran Church; second by Mr. Baker. Vote was unanimous.
14. Requests by Councilmen.
Mr. Baker reported that paving at the Airport would start on May 29th.
15. Public Comments (by those who signed up at the meeting).
No comments from the public.
16. Vote for
Executive Session, When Necessary.
Mr. Waldrop moved to go into Executive Session to discuss a personnel matter in the Council/Administrative offices; second by Mr. Dawkins. Vote was unanimous.
17. Executive
Session on personnel matter in Council/Administrative Offices.
[EXECUTIVE
SESSION 8:29 P.M. – 9:10 P.M.]
Mr. Baker moved to return to open session; second by Mr. Livingston. Vote was unanimous.
18. Necessary
Action on Matters Discussed in Executive Session.
Mr. Adams reported that discussions have been held regarding an organization change in the administrative offices. Pertaining to that we discussed with Council a contract under which the Clerk to Council would continue to perform her functions under some conditions that fit more with our objectives and also with where she is with other responsibilities in her life. To that end we also are suggesting that Council consider the employment of an Assistant to the Administrator to work in the Administrator’s office. The position we talked about staffing for receptionist, we are going to ask that those dollars be reduced and that we hire instead of a full time person there a receptionist who would work three days per week at an approximate rate of about $10 an hour. The sum of all of this is that we are not asking for any more money than was in the first reading of the budget or the second reading as approved tonight. This is a reallocation of resources rather than an increase in resources over first or second reading. Again that would involve, if Council approves, contractual relationship with the Clerk to Council to continue performing her core of duties, the hiring of an Assistant to the Administrator and reducing the position originally requested of a full time receptionist to three days per week. Again, the same spending level would be involved as in the first and second readings of the budget.
Mr. Livingston moved to approve the Memorandum of Understanding and the rough draft of the new job description; second by Mr. Baker.
Mr. Dawkins stated that basically Ms. Susan Fellers, the Clerk to Council, is going from a full time position to a part time.
There being no further discussion, Mr. Summer called for the question. Vote was unanimous.
19. Comments
from County Administrator.
Mr. Adams plans to announce sometimes next week the hiring of an interim county attorney. We have also begun the advertisement process to fill that position on a permanent basis and would hope to have a candidate on a permanent basis within 60 days.
20. Comments
from Council Members.
Mr. Hawkins asked if the media had any questions. No questions from the media.
Mr. Dawkins advised there was no millage increase to the budget as a result of tonight’s amendments to the budget.
Mr. Summer advised the Nursing Home Committee met last week. Mr. Parks is working hard to cut staffing costs. He gave a report that said the net income profit year to date is $225,398. There are plans for capital improvements with a five-year plan at a cost of approximately $100,000 per year, and all of those improvements will be paid for by operations. He is in the process of trying to fix up the interior and furnishings at J.F. Hawkins at a cost of approximately $82,000 and that will be paid for by operations.
21. Future
Meetings:
The next council meeting is June 4. The June 12th budget work session has been rescheduled to June 11 at 4:00 p.m., and the June 18th council meeting has been rescheduled to June 12.
Mr. Adams asked if someone wants to sponsor a recreational vehicle amendment to address the Planning Commission’s wishes, he needed to know so he could draft that before third reading. Mr. Dawkins said he would be glad to do that. He didn’t feel the RS-1 should be in there but the other districts that allow it and if Mr. Adams wanted, he could go ahead and draft it.
22. Adjournment.
Mr. Summer declared the meeting adjourned at 9:17 p.m.
NEWBERRY COUNTY COUNCIL
________________________________________
Henry B. Summer, Chairman
________________________________________
Susan C. Fellers, Clerk to Council
APPROVED: June 4, 2008