MOUNT VERNON — After hearing public comments, Councilman Sam Barone said that council will make some “substantial changes” to clarify the proposed amendment to the city's stormwater ordinance.
Speaking during a public hearing on Monday evening at City Hall, residents Dennis Swingle, Cloyd Yough, and Bruce Malek noted several areas where the language is unclear, confusing, or seemingly contradictory. Comments included the following areas:
— In what situations an undeveloped lot will or will not be charged an ERU (equivalent residential unit)
— Whether curb damage caused by city snow plows will be a stormwater expense or a street expense
— How much authority council is willing to cede to the city engineer when making credit adjustments
— Why a minimum 20% credit can be given to nonresidential property owners who do what they are required to do
Swingle said the ordinance was overly punitive and excessive and should not be presented in its current form.
Yough said the city engineer has too much control under the ordinance and questioned whether the stormwater utility is responsible for consultants' fees.
“You better make sure this ordinance is right because it will be with us a long time,” he told council.
Malek said the stormwater utility is needed but agreed that it is important to get it right. Regarding the city engineer's authority to grant credits to nonresidential properties, he asked, “Are you as council willing to give up control and give it to the city engineer?”
Keith Burley spoke in favor of creating the utility. He said being a member of the Storm Water Advisory Committee provided a good opportunity to learn more about the whole city's needs regarding storm water.
“I became convinced that a stormwater utility is necessary for our community to properly fund for our residents and comply with the EPA requirements,” he said.
Following adjournment of the public hearing, council members commented and city officials responded to questions and concerns in a Utilities Committee meeting.
Regarding undeveloped properties being charged an ERU, Barone said fees will be assessed based on address, not by parcel. If a house (address) has an attached vacant lot, it will be one ERU. If a house has a lot attached that includes a garage, it will be one ERU if it is a single address. If the lot is vacant but has an address, it is considered an undeveloped lot and will not be charged an ERU.
City roads and alleys will not be assessed, but all city facilities and buildings will be.
“We will be responsible for paying into the stormwater utility,” said City Engineer Brian Ball.
In response to comments regarding control by the city engineer and lack of appeals process, Barone said, “That is not the case. At every step there are appeals … whether to council or common pleas court or both.”
Noting “there seems to be some illusion that the money will be collected and deposited in the city engineer's account to be spent as he or she sees fit,” Barone said that every stormwater project, just as with capital improvement projects, will go before council several times: for project approval, appropriation of money, and consultant services.
“There are multiple points where the city engineer and council are working in synchronicity,” he said.
Regarding the penalty section, Ball said the language is not optional.
“A minimum requirement of the city's MS4 [stormwater] permit is that you have to be able to issue fines. The language currently in the code doesn't meet EPA regulations,” he said.
Choosing not to include the penalties could result in the EPA writing the language, which could be more stringent.
Lisa Jeffrey, a consultant with the stormwater firm Hazen and Sawyer, said the EPA is charged with implementing the federal Clean Water Act and has certain minimum standards to do that.
“They want to make sure that the cities are doing what they are responsible for. If there are violations and you are not enforcing them, the EPA will be sued by the [Clean Water Act],” she explained. “If you don't have the penalty clause, then you don't have the teeth to enforce.”
“All of the standards we have chosen to adopt is the absolute minimum of what we have to do,” said Law Director Rob Broeren.
Councilwoman Nancy Vail voiced concern about the property owner being assessed court costs and fees plus an administrative fee equaling the expenses incurred resulting from noncompliance.
“I think that is excessive,” she said.
Jeffrey said that was “pretty standard” language and a protection against frivolous lawsuits. Broeren said that a clause can be included to state the property owner will be responsible for these fees if the city prevails in a court case.
For clarification purposes, council agreed to change “residential credits” to “residential adjustments.” Credits are only available for noncommercial properties that do retention/detention activities, such as planting a rain garden.
Ball said that a minimum 20% credit for noncommercial properties doing what they are supposed to is appropriate because it eases the city's costs relating to enforcement and inspections. The maximum credit of 50% is appropriate for noncommercial properties that do more, such as adding a retention pond or retrofitting their current system to reduce discharge to zero.
Councilwoman Janis Seavolt was concerned about subdivision residents who might also pay a homeowners association fee for stormwater issues relating to private property.
“In their mind, they are being taxed twice,” she said.
Barone responded that private and public stormwater management is separate. The ERU that residents will pay through the utility is for stormwater management in public areas. Association fees are for private property management.
Councilman John Francis pointed out the city is not creating something new; it is amending a current ordinance.
“The amendment is happening because we have a mandate from the federal level,” he said. “We can't lose sight of that. We are not trying to steal their billfold … We are trying to be in compliance.
“I think we've been really good about being transparent,” he added, referring to comments made about council and city officials working in secret.
At the end of the committee meeting, council formally returned to the special council meeting and gave the ordinance a second reading. Changes and clarification in language will be made in time for the next council meeting on Tuesday, Nov. 12, at which time the ordinance will be up for its third and final reading.
If passed, the city will publish the rules and regulations, and the community will have a 45-day public comment period before the ordinance takes effect in July 2020.