Alderman Berg's personal commentary on the item, if any, appears in this typeface. Alderman Berg takes sole responsibility for the comments and they might not represent the official policy of the City of Brookfield or the opinions of other individual alderman.

THESE ARE THE MINUTES OF A REGULAR COMMON COUNCIL MEETING HELD AT 7:45 P.M., TUESDAY, FEBRUARY 4, 2003, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER Presiding

ALDERMEN PRESENT: Thomas Schellinger, Steven Ponto, Kari Clappier, Gary Mahkorn, Scott Berg, Richard Brunner, Jim Heinrich, Cindy Kilkenny, Karl Schulz, Jerome Wolff, James Garvens, Brad Steinke, Jack Shaw

ALDERMEN ABSENT & EXCUSED: Mike Franz

ALSO PRESENT: City Attorney Sue Schalig, City Clerk Kris Schmidt, Director of Finance Robert Scott, Chief of Staff Dan Waffenschmidt, Fire Chief John Dahms, Director of Public Works Tom Grisa, Director of Community Development Dan Ertl, City Engineer Jeff Chase, Director of Parks and Recreation Bill Kolstad

Mayor Jeff Speaker called the meeting of the Common Council to order at approximately 7:45 p.m. Two people spoke during the segment set aside for the public to address the Council, concerning the Capitol Heights Center project and to support the renaming of Brookfield Soccer Park to Voigt Soccer Park.

The next Common Council meeting will be held February 18, 2003.

Alderman Schellinger led the Common Council in the Pledge of Allegiance to the American Flag.

Alderman Schulz moved approval of the Regular Common Council minutes of January 21, 2003. The motion was seconded by Alderman Shaw and carried unanimously.

ACTIONS OF THE COMMON COUNCIL

PARKS AND RECREATION COMMISSION - Alderman Schellinger, Acting Chairman

Alderman Ponto moved out of the order Item #12, the Resolution recommending re-naming Brookfield Soccer Park to Voigt Soccer Park. The motion was seconded by Alderman Mahkorn and carried unanimously.

Alderman Schellinger moved approval of the Resolution recommending re-naming Brookfield Soccer Park to Voigt Soccer Park. The motion was seconded by Alderman Schulz and carried unanimously. Resolution No. 7028*

Mr. Voigt has been a supporter of Brookfield youth soccer for decades. Some say is is the driving force that established the elaborate and exceptionally well attended soccer program that Brookfield enjoys today. The city is fortunate to have such an active volunteer and the Council was delighted to recognize such dedication.

PLAN COMMISSION

The City Clerk referred to the actions and recommendations of the Plan Commission as represented in the January 27, 2003, Plan Commission minutes requiring Common Council action.

The first item was the request of Capitol Heights Center LLC, 19275 W. Capitol Drive, Brookfield, WI 53045, for approval of a PDD-Specific Plan (Phase I), a Development Agreement, and a Certified Survey Map at 17600 W. Capitol Drive, creating three parcels from two existing parcels. Two multiple-family residential lots and one commercial lot will be created. (SE 1/4 of Sec. 4)

On the official meeting agenda, the above was all that was written. It is quite simple and non-controversial sounding.

The Plan Commission recommended the following motions:

Specific Plan Approve the staff recommendation (see pp. 18-19 of the minutes) regarding the Specific Plan with the following conditions:

1. Technical corrections: same except as removed by the Plan Commission this evening. For example, in the building section, all are removed except comment A-4.

2. Aerator installation in wet pond if required and determined in compliance with City codes by the Plan Commission and at developer's cost.

3. Planting of evergreen trees and shrubs along the north lot line as discussed earlier in the staff report subject to 12' high evergreen trees in gaps in the tree line, shrubs in the south end of the courtyard, conversations with immediate residents to determine possible placement of plantings on their property and/or removal of existing deciduous trees to accommodate the suggested trees, and review of the maximum spacing of trees by City Forestry Supervisor. (The removal of existing trees shall only be considered as determined necessary to accommodate desired effect of evergreen plantings since the goal of the General Plan was preservation of the tree line along the north property line).

4. Including a statement of financial capabilities of the applicant as included and referenced in the General Plan as documentation in the Specific Plan.

5. References to condominium association document as contained in the Development Agreement.

6. Shielded lights along the north side of the project.

7. Building design adjustments are limited to staff comment A-4 (garage).

8. Deferral to district aldermen in regards to the Stonewood Subdivision entry sign.

Development Agreement Approve the staff's recommendation (see p. 26 of the Plan Commission minutes) regarding the Development Agreement, dated January 27, 2003, with the following changes:

1. Phase II (initial two buildings) build-out would be 2007.

2. Remove letter of credit requirements for all off-site infrastructure improvements.

3. Maintenance of the pond by all property owners.

4. Re-locate and replace the subdivision sign.

5. Include the words "architectural rendering" in Section 6.

6. Remove the last sentence from Article 32.

7. Add "add Section 20" to the last line of paragraph 1, Section 16 (p. 17) so it reads, "...Traffic Impact Analysis and subject to the terms and conditions of Sections 19 and 20."

Certified Survey Map Approve the staff's recommendation (see p. 27 of the Plan Commission minutes) regarding the C.S.M. with the additional easements required.

Deed Restrictions Approve the staff recommendation (see p. 27 of the Plan Commission minutes) regarding the Deed Restrictions.

Alderman Shaw moved approval of the Plan Commissions recommendation for the PDD-Specific Plan (phase 1). The motion was seconded by Alderman Mahkorn and carried unanimously.

This is where the wheels came off. None of the Alderman had ever seen the use of so many unusual parliamentary procedures as was done for this item.

The motion was to accept the agenda item, which included all of the items shown in these minutes, but which were omitted from the written Council agenda. When Alderman Kilkenny and Wolff realized that they had just approved the very thing they were dead set against, they demanded some sort of debate. According to Council rules (City Ordinances which are derived from, and supplemented by, Robert's Rules of Order) this is known as a "reconsideration". A reconsideration may be requested by an alderman who voted in the majority at either the same or the immediately following Council meeting.

Keep this point in mind: The initial vote was 13-0 (Alderman Franz was absent) and the final vote (see below) was 11-2. That means 11 out of 13 alderman, or 85%, voted exactly the way they intended to, yet they were willing to provide an opportunity to debate the issue. The whole notion that the Council was "learning the rules as they went along" is ridiculous, since 85% of the Alderman got it right the first time.

Alderman Shaw moved to suspend the rules to permit the reconsideration of the PDD-Specific Plan (phase 1) vote at this meeting. This would allow discussion on all matters pertaining to Capitol Heights. The motion was seconded by Alderman Steinke and carried 12 "ayes" and one "no". Alderman Schellinger voting "no".

Alderman Shaw recommended "suspending the rules", which is also allowed under Council rules. Technically, this suspension was not required since a simple reconsideration would have sufficed, but both techniques are so rarely used that the Council felt this was appropriate. Note that Alderman Shaw and Steinke supported the debate, even though they were well known to support the project and the Plan Commission recommendation.

Alderman Kilkenny moved to reconsider the vote to approve the Plan Commissions recommendation for the PDD-Specific Plan (phase 1). The motion was seconded by Alderman Wolff and carried with 11 "ayes" and two "nos". Aldermen Schellinger and Berg voting "no".

With this motion, the previous vote was nullified and a debate could start. Both Alderman Berg and Schellinger believed the meeting was getting out of hand and that the final outcome would be the same, which, after 80 minutes of debate, turned out to be the case.

Alderman Schellinger opposed the rules suspension and subsequent reconsideration. He reasoned that any alderman who was paying attention had the opportunity to start a debate on the issue. Reconsideration is primarily used when new information comes to light after the initial vote so that a significant number of Alderman who initially approved the action would be likely to change their vote, rather than having just made a simple error. Still, in the interest of fairness to the public, the Council decided to err on the side of more debate rather than less.

Alderman Shaw moved to limit debate to 1 hour and 40 minutes. The motion was seconded by Alderman Berg. After discussion the motion and second was withdrawn.

The proposed project had been analyzed and discussed many times by both the Council and the Plan Commission. There was no new information to be presented at this meeting, just a debate over whether previous decisions still sounded reasonable. As it turned out, the debate actually lasted 1 hour 20 minutes, so this motion would have been irrelevant. Council President Ponto even suggested changing the motion to 30 minutes.

Alderman Shaw moved approval of the Plan Commissions recommendation for the PDD-Specific Plan (phase 1). The motion was seconded by Alderman Mahkorn.

Alderman Wolff moved to amend the motion to request that the Community Development/Planning Office include the immediate residents (Jankes) in the decision-making and recommendations regarding the evergreens to be planted per the final landscape plan, to ensure that the trees can be planted along the north edge of the dry pond without removal of the existing deciduous trees, in accordance with the approved Neighborhood and PDD Plan for the preservation of the existing trees along the North Lot line. The motion was seconded by Alderman Heinrich. After discussion, the motion and second was withdrawn.

A careful analysis of the documents showed that the intent of this motion, getting the immediately affected neighbors involved in the landscaping, was already a part of the proposal. Since this motion was redundant, it was withdrawn.

Alderman Clappier moved to amend the motion to direct staff to give serious consideration for a fence on the north property line while working with residents on options. Matter should be brought back to the Plan Commission if no consensus could be made. The motion was seconded by Alderman Kilkenny.

Alderman Schulz moved to call the question. The motion was seconded by Alderman Shaw and carried unanimously.

The motion by Alderman Clappier to direct staff was voted and failed with Aldermen Clappier, Wolff, and Kilkenny voting "aye" and ten voting "no".

Fences in Brookfield are always a contentious issue. There is a long standing planning policy referred to as "The Brookfield Concept" which states that buildings should be laid out so as to give a very open, almost rural, appearance. That's one of the reasons why residential lots created since about 1960 are at least a half acre big and that fences are allowed under very few conditions, e.g. surrounding a swimming pool. This vote reaffirmed the Council's view that a split rail fence running along one edge of the proposed flood control pond would be difficult to install correctly (too little room), would look out of place and would not add any security.

Alderman Ponto moved to call the question on the original motion to approve the Plan Commissions' recommendation to approve the PDD-Specific Plan (phase 1). The motion was seconded by Alderman Schulz and carried 11 "ayes" and two "nos". Aldermen Kilkenny and Wolff voting "no".

This is a parliamentary procedure to end the debate and vote. It is conceivable that the motion itself would still be defeated, it's just that the debate would end.

The original motion to approve the Plan Commissions' recommendation to approve the PDD-Specific Plan (phase 1) carried 11 "ayes" and two "nos". Aldermen Kilkenny and Wolff voting "no".

Alderman Shaw moved approval of the Plan Commissions" recommendation to approve the Developer's Agreement. The motion was seconded by Alderman Schulz .

Alderman Berg moved to amend the Plan Commission's recommendation to approve the Developer's Agreement to modify the timetable of 4 years of the first two commercial buildings and 8 years for the last two commercial buildings to 3 years for the first two commercial buildings and 8 years for the last two commercial buildings. The motion was seconded by Alderman Clappier and failed Aldermen Berg, Kilkenny, Clappier, and Heinrich voting "aye" nine voting "no".

In explaining this motion, Alderman Berg noted that in the previous week's Plan Commission meeting, which he attended as an observer, he heard the argument that the developer had an economic incentive to develop this project as quickly as possible, since that's the only way the owner could get rental income. If the goal is to develop fast, why was the original staff recommendation of three (3) years to build the condominiums and subsidized senior apartments lengthened to four (4) years? Isn't this a non sequitor?

Further, the part of this project that caused Alderman Berg to become a supporter was the rapid creation of senior housing, which could now be pushed out one more year. Finally, the sooner the buildings are completed, the sooner the city would get the property tax revenue from them.

Alderman Heinrich and Clappier represent the 6th District, which will have many large projects in the coming years, e.g. renovation of the Brookfield Mall and development of the WTMJ/Ruby Farms area. They don't want their district to become a never ending construction zone.

Alderman Kilkenny moved to amend the Plan Commission's recommendation to approve the Developer's Agreement to modify the timetable of 4 years of the first two commercial buildings and 8 years for the last two commercial buildings to 3 years for the first two commercial buildings and 6 years for the last two commercial buildings. The motion was seconded by Alderman Wolff and failed, Aldermen Kilkenny and Wolff voting "aye" eleven voting "no".

Based on the discussion of this motion, it was clear to Alderman Berg that a majority of the Council was going to approve the Plan Commission recommendations as written.

Alderman Ponto moved to call the question. The motion was seconded by Alderman Garvens and carried.

The original motion to approve the Plan Commission's recommendation to approve the Development Agreement was voted 11 "ayes" and two "nos". Aldermen Kilkenny and Wolff voting "no".

So, after 80 minutes of debate and attempts at altering the project, it got approved exactly as it had been in the first place. Was the reconsideration a waste of time? Was it political posturing for the next election? Was it the result of not paying attention? You be the judge.

If only the meeting had been televised...

Alderman Schulz moved the Plan Commission's recommendation to approve the Certified Survey Map for Capitol Heights. The motion was seconded by Alderman Shaw and carried 11 "ayes" and two "nos". Aldermen Kilkenny and Wolff voting "no".

MJS - Feb 5, 2003 - Council OKs Capitol height's Detailed Plans

The next item was the request of RKM Investments LLC, 3360 Gateway Road, Brookfield, WI 53045, John M. Manion, Managing Member, for approval of a new plan and method of operation permitting construction of a 19,850 sq. ft. commercial building at 3330 Gateway Road.

The Plan Commission recommended approval of the plan and method of operation as recommended by staff (see p. 28-30 of the Plan Commission minutes).

Alderman Shaw moved adoption of the Plan Commission recommendation. The motion was seconded by Alderman Schulz and carried unanimously.

The next item was the request of First Security Credit Union, 13005 W. Bluemound Rd., Brookfield, WI 53005, Robert J. Carlson, President, for approval of a new plan and method of operation permitting construction of a 5,000 sq. ft. commercial building at 13600 W. Greenfield Avenue.

The Plan Commission recommended approval the new plan and method of operation as recommended by staff (see pp. 32 and 33 of the Plan Commission minutes), including execution of a storm sewer easement.

Alderman Shaw moved adoption of the Plan Commission recommendation. The motion was seconded by Alderman Schulz and carried unanimously.

FINANCE COMMITTEE - Alderman Garvens, Chairman

Alderman Garvens moved approval of the Vouchers, exceeding $50,000 requiring immediate action. The motion was seconded by Alderman Wolff and carried unanimously.

Alderman Garvens moved approval of the Resolution approving 2002 special revenue fund budget amendment, requested by the Director of Finance: increase Transfers from Public Site Fund, account #205-215-579-503 by $110,000. The motion was seconded by Alderman Schellinger and carried unanimously. Resolution No. 7029*

Alderman Garvens moved to deny the Notice of Claim: Valerie Kraemer. The motion was seconded by Alderman Brunner and carried unanimously.

LEGISLATIVE AND LICENSING COMMITTEE - Alderman Clappier, Chairman

Alderman Clappier moved approval of one original bartender's license. The motion was seconded by Alderman Shaw and carried unanimously.

Alderman Clappier moved adoption of the Ordinance amending Chapter 6.08 of the Municipal Code dealing with Animal Ownership Restrictions (dogs and cats). The motion was seconded by Alderman Shaw. A roll call vote was taken and carried unanimously. Ordinance No. 1903*

LEGISLATIVE/BOARD OF PUBLIC WORKS

Alderman Schulz moved adoption of the Ordinance amending Section 15.24.060 of the Municipal Code limiting height of vegetation in vision triangles and City right-of-way of road intersections. The motion was seconded by Alderman Shaw. A roll call vote was taken and carried unanimously. Ordinance No. 1904*

BOARD OF PUBLIC WORKS - Alderman Schulz, Chairman

Alderman Schulz introduced the Resolution vacating the westerly 120 feet of Lewis Avenue in the City of Brookfield. (No action taken.)

PARK AND RECREATION COMMISSION - Alderman Schellinger, acting Chairman

Alderman Schellinger moved approval of the Resolution approving the Addendum to the Lease between the City of Brookfield and the Elmbrook Little League, Inc. for installation of asphalt paving and concrete curbing for the parking lot, not to exceed $50,000. The motion was seconded by Alderman Schulz and carried unanimously. Resolution No. 7030*

Alderman Schellinger moved to adjourn. The motion was seconded by Alderman Kilkenny and carried unanimously. 10:00 p.m.

______________________________ Kristine A. Schmidt, City Clerk

* May be viewed in the City Clerk's Office.

9907 REGULAR COMMON COUNCIL FEBRUARY 4, 2003