MINUTES
INDIAN LAKEBOROUGHPUBLIC HEARING
PROPOSED ZONING ORDINANCE AMENDMENT
JUNE 16, 2007
The public hearing of the Indian Lake Borough Council on the proposed zoning ordinance amendment was held on June16, 2007 at 10:00A.M. at the Shanksville Stonycreek School Cafetorium.
THOSE PRESENT:THOSE ABSENT:
Terry L. St. Clair, Council President
Michael D. Miscoe
Charles McCauley
P. Scott Moore
John Walters
Bryan Bozovich
Patricia Dewar
Barry S. Lichty, Mayor
Daniel W. Rullo, Solicitor
Theresa L. Weyant, Borough Manager
Harry Huzsek, Superintendent
Dean Snyder, Zoning Officer
Visitors –Bill and Pat Yates, Terry and Karen Shober, Tammy Sheeler, Paul Brodt, Ken Helsel, Lee Nearhoof, Ron Schirf, Rege Turocy, Al Diehl, J. M. Moses, Mr. and Mrs. Mohlman, Ron Petrina, Jim and Laurel Lyons, Lori Dooley, Donald Graft, J. Evan Jones, Bob Hanson, Dorothy Mock, Mark Griffith, Robert Marhefka, Chris Gwin, Carl Chapman, Susan Dabbs, Barbara and Bill Sivi, Phil Daschner, Karen Lingenfelter, Gay and Don Reed, Robert Balint, Michael Sahlaney, Jeanne Holman, Rege and Mary Walsh, Vin and Darla Jannetty, Gary Kovac, Elissa, Jack and Abby Butler, John and Judy Emerick, Mary Morgan, Louis Horvath, Don and Sue Newman, Lois Campbell, William Schillinger, Daniel Kovacs, Bob Wertz, Bill McQuaide, Dave and JoAnn Beatty, Paul Tarnutzer, Chris and Steve Corey, John Bedillion, Roy Haebich, Terry Iseman, Kathy Ridella, Mary and Robert Littlefield, Pam and Roy Leukhardt, George and Sarah Arnold, Sandra Upor, Nancy and Mark Good, Dan Orange, Jim Brant, Bruce Thomas, Gerald Mock, Glenn Griffith, Don McFarland, Chris Cable, Bill and Mary Swaney, Colleen Boozer, William Cairns, Donald and Barbara Bird, George and Kathy Tarrazi, Josephine Miller, Biorg and William Beitler, Pat Buchnowski, Jane Anderson, Gloria Black, Sam Greenwood, Bob and Lori Vogel, Janet Kovac, Peggy and James Polson, Denis Milke Ray Myers, Kathleen and Joseph Landy, Paul and Natalie Cornez, John McGrath, Al and Rose Lichtenfels, William Kitsko, Val McClatchey, Robert Bantly, Alain Couch, David and Allison Finui, Jeff Griffith, Kathy Moore, Ed and Terri Madden, Tom and Lucy Sholtis, Jim and Vita Cevenini, James Conley, Kathleen Hopkins, James Takacs, Dan Kingery, Keith Perl, Wayne Lehman, Paul Balint, Ilona and Paul Martincsek, Burt and Jean Budlong, Judy and Jerry Brant, Richard Stern, Joe and Susan Mandarino, George Ralph, William Parry, Donald Kuhn, Vanessa Keiser, Jim Renziehausen, and Tim Walters.
The public hearing was called to order at 10:05A.M. by Attorney Daniel Rullo.
Copy of the full transcript is on file at the Borough Office.
The public hearing was being held on the proposed Zoning Ordinance Amendments. This meeting was advertised in the Daily American along with a summary of the proposed amendments. A copy of the proposed amended ordinance was posted on the Borough’s Website, a copy was also available at the Borough Office, the Daily American, and the law library in the Somerset County Courthouse.
Attorney Rullo noted that the date for consideration for adoption, additional modifications or changes has been changed from the date in which it was identified in the notice from June 27, 2007 to June 20, 2007 at 7:00 P.M. and this meeting change has been advertised in the Daily American.
A number of questions have been raised about the potential conflicts of interest of members of Borough Council relative to their ability to vote on the final enactment of the proposed ordinance. Attorney Rullo informed
Council that he received a letter from Attorney Robert P. Ging, Jr. who is representing Jim Lyons, regarding statements made during the March 28th public meeting concerning the conflict of interest issue.
Attorney Ging has raised questions relating to the appropriateness of certain members of Council voting on the proposed Zoning Ordinance Amendment. In particular, Attorney Ging is objecting to Terry St. Clair voting due to his role as President of St. Clair Resort Development, LLC; to Patricia Dewar, because her husband James Dewar is a certificate holder of the IndianLake Golf Club; and to John Walters, because he allegedly built a garage that is non-conforming.
Attorney Ging incorrectly made reference to Attorney Rullo’s earlier opinion. Attorney Ging indicated that Attorney Rullo had recommended that Mr. St. Clair recuse himself only with respect to the commercial docking issue. Attorney Rullo expressed the opinion that St. Clair should recuse himself from all aspects of the proposed amendments to the zoning ordinance because of his development in the CR District, and because he is essentially the sole owner of the affected part of that particular district.
As to Patricia Dewar, it is Attorney Rullo’s understanding that all but two members of the Borough Council are certificate holders of the Indian lakeGolf Club. It is further his understanding that all land surrounding the IndianLake Golf Club is already zoned residential and that the only land that the amendment to the Zoning Ordinance would affect as it pertains to expanded use of multi-family dwellings in the CR District would be the golf course itself. In other words, in order for the CR District at the Peninsula Golf Course area to be affected, the golf course or a portion thereof would have to be eliminated and used for construction of residential or multi-family residential purposes. There has been no indication that there is even a remote possibility for that to occur. Such a circumstance seems speculative at best.
Under the circumstances, Attorney Rullo is not convinced that a certificate holder of the Golf Club would have sufficient “private pecuniary benefit” to constitute a conflict of interest under the Public Official and Employee Ethics Act. However, even assuming, without deciding, that a conflict would exist for Golf Club certificate holders, they would nevertheless not be precluded from voting because of a “voting by necessity” provision in the Ethics Act.
Section 1103 (j) – Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein.
Since five of the seven members of Borough Council would have the same conflict of interest, if there is one, i.e., being a certificate holder or immediate family member of a certificate holder of the Indian Lake Golf Club, once the information is disclosed, an appropriate vote could be taken and these people could vote; otherwise, a legally required vote of approval would be unattainable. Attorney Rullo is therefore recommending that each and every member of Borough Council who is a certificate holder or member of the immediate family of a certificate holder should announce their certificate ownership, indicate that for purposes of the vote they will assume (without admitting) it to be a conflict of interest and, after such disclosure is made and the required disclosure form is completed, they should proceed to vote on the questions.
Lastly, Attorney Ging, on behalf of Mr. Lyons, raises the question that Council Members John Walters may have built a garage that is non-conforming. He further contends that the voting on this Ordinance would allow the non-conforming use to now be accepted under the amended Zoning Ordinance that would result in a private pecuniary benefit to Mr. Walters. It is Attorney Rullo’s understanding that Mr. Walters last year constructed a garage in conformance with an appropriate building permit that was issued to him and that no appeal was filed to the Zoning Hearing Board relative to the issuance of the building permit by the Zoning Enforcement Officer or with respect to the alleged failure of the construction to meet the requirements of the Ordinance. While Attorney Rullo understands there may now be a question raised by Attorney Ging as to whether appropriate measurements were made, there has, to his knowledge, been no determination in any proper forum that Mr. Walters garage is non-conforming and, therefore, the Borough must assume it to conform to the relevant requirements.
Also, because of the fact that no appeal was taken to the issuance of the building permit within 30 days after commencement of construction was visible, the time period for challenging his construction is long since past. Thus, Mr. Walters does not need the proposed amendment to validate the construction of his garage. Accordingly, Attorney Rullo does not see any “private pecuniary benefit” to Mr. Walters from adoption of the amendment, and therefore, he sees no reason why the Ethics Act would preclude him from voting on the proposed amendment to the Zoning Ordinance.
Although neither the Borough nor Council Members are required to accept his advise, because the Ethics Act provides for certain protections for public officials who act in good faith reliance on a written, non-confidential opinion of the Solicitor, he wanted to give the Borough this written non-confidential opinion.
Commercial Docking in the CR District – In the proposed zoning ordinance amendment, there is a proposal that commercial docking be permitted in the remaining area at the base of the lodge in the commercial recreational area. There is 300 feet of land that is still in the CR zone that is waterfront property. The first proposal that Council considered was to allow the identical commercial docking that already occurs at the Marina, which is 100 feet from the shoreline. That proposal has been modified and adjusted to take advantage of the natural contour or regression of the shoreline such that it exceeds 50 feet at the furthest most portion from the shoreline on essentially a 90-degree angle thereafter. At one point, it will actually be out 70 feet, but will still be less than the 50 feet on the other side.
A lot of questions arose at the second public meeting that there may be significant traffic flow, safety, and boating issues. Council has relied upon their own belief and the belief of the police chief relative to the safety issues and that was perceived as not being enough. Council had requested that Attorney Rullo attempt to engage an expert in recreational and boating safety. Council did obtain an expert, Dr. Robert Kaufman, who did a study, independent of any discussions with Borough Council Members, to determine whether or not the proposed docks in this CR zone would be a hazard to the health and safety of citizens operating boats on the lake.
Dr. Robert Kaufman, who is a Ph.D. from Frostburg has provided a written opinion and he is here today to present his opinion and answer any questions.
Dr. Kaufman had the opportunity to look at the site and where the proposed commercial docks were going to be placed. Buoys were placed in the lake 50 feet from shore and Dr. Kaufman evaluated the area to see if any potential restriction to navigation would occur. In addition, Dr. Kaufman did a web site search, particularly focusing on TVA, federal and any other management areas, in search of restrictions on docks and particularly restriction to navigation.
TVA and the Army Corp. of Engineers seem to have the regulations. Generally the regulations state that a dock should not extend more that 150 feet into the water or one-third the distance to the opposite shoreline. It should not restrict or enter into any navigation channels in the lake. Now most of these regulations are written for small coves and what the Borough has here is a very wide shoreline.
Regarding the safety issue and the curvature of the shoreline. The marking with the buoy and the photographs that were taken clearly indicates that there is ample visibility and there is no navigational hazard or safety issue with the proposed 50 foot docks. As a footnote, over time with increased boat traffic on the lake there maybe a slight chance that boat traffic may approach close to the docks. If this occurs, regulatory buoys can easily be installed in the area to move the boat traffic further out into the channel.
Robert Littlefield – What is being proposed is if we, the property owners, using the lake be inconvenienced.
Jim Jones – In your professional opinion, Dr. Kaufman, what is your professional opinion? What type of certification do you have?
Dr. Kaufman – My formal training is in outdoor recreation. Dr. Kaufman has done several outdoor recreation resource management plans and he has been involved in boating safety for over 30 years. Dr. Kaufman has written a book on boating safety and he has been involved in numerous boating safety educational projects. Dr. Kaufman has studied fatalities for the State of Maryland and made recommendations. Dr. Kaufman has studied fatalities on the main stem of the Potomac River and made recommendations.
Jim Jones – It sounds like you are very well qualified to make this decision on safety. You say there is no safety hazard in one paragraph, and then the next paragraph you say, if there is a safety problem, buoys can be put out. Why do buoys need put out if you say there is no safety hazard?
Dr. Kaufman – My recommendation was if for some reason over time because of increased traffic flow.
Jim Jones – If you build boat docks, you then have more boats. Have you also studied the maximum amount of boats that this lake can sustain?
Attorney Rullo – The Borough did not engage Dr. Kaufman to do a complete study of the lake relative to the boat traffic and the number of boats. That is a different issue and Council is not prepared to do that yet.
Jim Jones – You don’t think that is germane to the subject of how many boats are on this lake and whether you can put more on it?
Attorney Rullo – The only way you are going to be able to have a complete study of the safety factors of the entire lake would be a study almost like a road traffic study that would count the number of boats that are on the lake at any point in time, over the 4th of July weekend or those types of things. That is a much bigger study and Council is starting to look at this. Another issue that has come is where the appropriate place on the lake for the slalom course is. Council has agreed to put the slalom course at the same location as last year, but a study needs to be done to try to determine if that is the appropriate place or whether is should be relocated. Your point is very well taken and there needs to be a study done, but that was not the focus of what we are here about today.
Jim Jones – I understand that, but the focus of this meeting is the lake.
Attorney Rullo – The focus of this meeting is the zoning. This is not a boat permit issue, this is a zoning issue and zoning does not affect boat permits, it affects docking.
Jim Jones – Zoning should affect the use of the lake and when you say we, I don’t know what that means, but we, you as the attorney for the board?
Attorney Rullo – I represent the Borough Council.
Jim Jones – And anyone else on there?
Attorney Rullo – I represent the Borough Council.
Jim Jones – Do you represent anybody else on the Council? When you say we, I can’t discern whether you are saying we as the attorney for Council, or we as someone you represent on the Council.
Attorney Rullo – When I was engaged as Borough Solicitor, I disclosed what conflicts of interest or what my involvement was with any members of this Borough Council. My firm represents PBS Coals in some matters and my firm has done work for Terry St. Clair. Borough Council has known this from the first day I was engaged. My opinions have been expressed here solely as counsel for Indian LakeBorough. Attorney Rullo has told Mr. St. Clair that he cannot vote on the Zoning Ordinance, and to his knowledge, he has done nothing relative to act on any of the actions that are being considered here today.
Roy Haebich – There is a big conflict of interest. If you are representing Mr. St. Clair, then you are not representing the Borough. You are not representing any of the people sitting out here. I would think that you, at this time, would just say, I’m sorry, I’m out of here.
Attorney Rullo – You did not engage me, the Borough Council engaged me. If the Borough Council asks me to recuse myself, I will. The fact of the matter is the disclosure took place at the very beginning of my engagement with the Borough Council. I have done nothing that I believe in any way jeopardizes my representation of the Borough Council and that is who I answer to, not you.