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 OF THE 26TH COMMON COUNCIL, HELD AT 7:45 P.M., TUESDAY, OCTOBER 19, 2004, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER PRESIDING

ALDERMEN PRESENT: Scott Berg, Cindy Kilkenny, Thomas Schellinger, Jim Garvens, Richard Brunner, Gary Mahkorn, Steve Ponto, Dan Sutton, Rick Owen (present via teleconference call), Ron Balzer, Christopher Blackburn, Mike Franz, Beverly Wentz, Jim Heinrich

ALDERMEN ABSENT & EXCUSED: None

ALSO PRESENT: Director of Public Works Tom Grisa, Director of Community Development Dan Ertl, Director of Finance Robert Scott, City Clerk Kristine Schmidt, City Attorney Vince Moschella, Director of Administration Dean Marquardt, Economic Development Coordinator Patrick Drinan, Police Chief Dan Tushaus, Deputy Police Chief Dean Collins

A Citizen's Petition was received requesting the Common Council in the City of Brookfield to vote to change the ordinance pertaining to the video gambling machines, as recommended by the Legislative and Licensing Committee of the City of Brookfield. (The signed petitions may be viewed in the City Clerk's office.)

The next Common Council meeting is scheduled for November 2, 2004.

Economic Development Committee Patrick Drinan presented the Third Quarter 2004 Featured Business Award to Michael Wilson, Chief Executive Officer, and Dean Ossanna, Senior Director of Marking and Membership, of the International Foundation of Employee Benefit Plan.

Boy Scout Troop 127 of the Church of Latter Day Saints led the Common Council in the Pledge of Allegiance to the American Flag.

Alderman Heinrich moved approval of the Consent Agenda, except for Item f. The motion was seconded by Alderman Ponto and carried unanimously. Recorded as a roll call.

REGULAR COMMON COUNCIL 10091 OCTOBER 19, 2004

a) Minutes of the Regular Common Council meeting of October 5, 2004.

b) Approve the actions and recommendations of the Plan Commission as represented in the October 11, 2004, minutes, except for Items 3, 4, 7b, 8b, 9, and 10; and the Plan Review Board actions and recommendations of September 23, 2004, except for Item 3.

c) Approve Vouchers exceeding $50,000 requiring immediate action.

d) Request to deny Notice of Claim – Rachel Yerkes/Joann & Thomas Yerkes.

e) Approve Original Bartender's Licenses (see Legislative and Licensing agenda for names).

f) Removed from the Consent Agenda.

g) Resolution approving the application for an urban forestry grant for the purpose of preparing street tree planting and landscape plans for the curbed medians located along Capitol Drive, implementing a phased planting program within designated sites as funding permits, and authorizing the City cost share of the project not to exceed $25,000 from the Forestation Account. Resolution No. 7302-04*

h) Direct staff to reject an Offer to Purchase for a City-owned parcel located at 17550 W. Greenfield Avenue and hold the property until further notice.

i) Final Resolution levying special assessments for water main against 19500 Gebhardt Road, BRC 1085-995, $1.952. Final Resolution No. 7303-04*

j) Resolution rescinding the previous water main assessment in the amount of $11,450 levied on July 20, 2004, against 15450 Fieldstone Drive. Resolution No. 7304-04*

k) Mayor's Reappointments: J. Nathan Cunniff to the Community Development Authority – Four year term expiring November 20, 2008.

l) Proclamation proclaiming November 8, 2004, as "World Town Planning Day".

f) Alderman Mahkorn moved adoption of Item #f – Ordinance amending Section 15.16.280 D. of the Municipal Code relating to Political Signs with the amendment to change the wording to reflect that, "Any illegal signs or unusable signs due to wear, tear or damage shall be removed without notice by the Director of Administration". The motion was seconded by Alderman Berg. A roll call vote was taken and carried unanimously. Ordinance No. 1982-04*

This change was in response to recent court rulings that stated the display of political signs ("Vote for Bob", etc.) to be a free speech right and thus exempt from most regulation.  Specifically, the city code stated that the signs could only be shown up to 30 days before the election and must be taken down at most 10 days after the election.  Those restrictions were removed.  The amendment allows signs that have become eyesores to be removed.

(End of Consent Agenda)

Alderman Ponto moved adoption of the Ordinance creating Section 5.28.160 of the Municipal Code relating to Enforcement & Video Gambling Machines presented at the Legislative & Licensing Committee meeting earlier this evening. The motion was seconded by Alderman Sutton. A roll call vote was taken and carried Ayes 10, Nays 4 with Aldermen Owen, Wentz, Mahkorn and Heinrich voting nay. Ordinance No. 1983-04*

The Wisconsin state constitution outlaws gambling.  State law defines and prohibits certain game machines as gabling devices, just like roulette wheels.  In the last state budget, the state legislature added a clause proposed by the Wisconsin Tavern League that the law be enforced by the state's Department of Revenue.  Due to a shortage of agents in that department, the state decided not to enforce the law for five or fewer machines.  That means small taverns can still have enough machines to make money without being arrested.  However, Brookfield had a separate ordinance adopted in 1961 prohibiting gaming machines.  Ald. Ponto's motion leaves the city's prohibition on the books but requires city police to "defer to the State Department of Revenue for enforcement."  Thus, Ald. Ponto can still claim to be opposed to gambling machines (the ordinance is still on the books) yet tavern owners can still have the machines.

Note that payouts from the machine are still illegal.  If a tavern keeper pays you for win, even if it's just a free drink, it is a violation of state law.  In addition, the money put into the machine must be reported as income by the tavern.

This ordinance was vetoed by Mayor Speaker, as allowed by state law.  The Council is required to reconsider the vote at its next meeting.  A veto may be overturned by a two-thirds (10 to 4) majority vote.

See: Video Gambling in Brookfield

MJS - Oct 21, 2004 - Aldermen firm on allowing gambling machines

MJS - Oct 19, 2004 - Brookfield eases rules against video gambling

MJS - Oct 6, 2004 - Mayor favors Brookfield's ban on gambling machines

MJS - Sep 22, 2004 - Brookfield May End Video Gaming Ban

Alderman Wentz moved approval of the actions and recommendations for Item #9 from the Plan Commission minutes of October 11, 2004 – Department of Community Development staff initiatives for 2004-2005 (see below). The motion was seconded by Alderman Owen and carried Ayes 11, Nays 3 with Aldermen Schellinger, Brunner and Sutton voting nay.

Ald. Schellinger, Brunner and Sutton believe that the highest priority for development should be the corner of 124th and Capitol Drive, with Village area development being downgraded to a much lower priority.

The Plan Commission recommended that as part of the 2004 initiatives, staff would complete work on the Village area neighborhood plan first for the following reasons:

1. There are some projects in the Village area that are ready to go forward.

2. The market for industrial projects is not strong at this time.

3. There is more danger of bad planning in the Village area if projects come forward and there isn't a plan in place.

4. The Village area plan was started some years ago and there needs to be closure in that area.

The next item was Item #5 from the Plan Commission minutes of October 11, 2004 – Request of NFI Properties, LLC, 450 N. Sunnyslope Road, Suite 270, Brookfield, WI 53008-0825, Joseph C. Niebler Sr., Manager, for approval of a resolution granting an exception to Ordinance No. 1958-04, the Waste Management Landfill – Shire Outlot Development Moratorium – relative to grading and storm water management in said moratorium area related to the development of The Shire, a 25-lot subdivision. (SE 1/4 of Sec. 20 and NE 1/4 of Sec. 29)

The Plan Commission recommended approving the resolution granting an exception to the moratorium ordinance to allow implementation of the approved grading and storm water management plans. This exception does not apply to any other improvements exclusively serving outlots, specifically identified as roadway, storm sewer, sanitary sewer and water main improvement along Misty Mountain Parkway east of the west line of outlot 11.

Alderman Wentz moved approval of the Plan Commission recommendation. The motion was seconded by Alderman Garvens.

Alderman Ponto moved to amend the motion making the approval contingent upon the engineering department checking with the appropriate agencies that they took the information from the soil borings, within the area in question, into account when making their recommendations. The motion was seconded by Alderman Wentz. The vote carried Ayes 11, Nays 3 with Aldermen Sutton, Kilkenny and Owen voting nay.

A Roll Call vote was taken. The motion as amended carried Ayes 11, Nays 3 with Alderman Sutton, Kilkenny and Blackburn voting nay.

Alderman Wentz moved approval of the Resolution granting an exception to the moratorium to Ordinance No. 1958-04, the Waste Management Landfill – Shire Outlot development moratorium – for DNR approved activities and implementation of the entire grading and storm water management plans. The motion was seconded by Alderman Owen and carried Ayes 11, Nays 3 with Alderman Sutton, Kilkenny and Blackburn voting nay. Resolution No. 7305-04*

Alderman Brunner moved approval of a substitute Resolution forming The Waste Management Review Committee to monitor environmental data from the Waste Management site and appointing Aldermen Thomas Schellinger and Christopher Blackburn as Co-Chairman and they shall name interested citizens as members of the Committee. The motion was seconded by Alderman Schellinger.

Alderman Ponto moved to amend the Resolution with the following changes:

• The membership to consist of seven members appointed by the Mayor and subject to the approval of the Common Council. Members to be taken from different Brookfield neighborhoods.

• Substitute original item 2 from resolution drafted by City Attorney Vince Moschella which indicated that the Committee would use information available under the public records law to review the collection and analysis of the data from the Waste Management site and the decision making process of the DNR and Department of Health in regard to the safety of the moratorium area

• Finally that the Committee shall not expend any City funds and shall make a non-binding advisory report to the Common Council.

The motion on the amendment was seconded by Alderman Heinrich and carried Ayes 11, Nays 3 with Alderman Mahkorn, Kilkenny and Wentz voting nay.

Ald. Mahkorn and Wentz thought this committee was a bad idea and opposed it at every turn.  Ald. Kilkenny thought the committee was a great idea but that this amendment gutted its intent.

A Roll Call vote was taken on the motion as amended. The motion carried with Ayes 8, Nays 6 with Aldermen Brunner, Owen, Garvens, Balzer, Wentz, and Mahkorn voting nay. Resolution No. 7306-04*

The opposing aldermen believe he committee is a bad idea because the Council has no authority in the area, finding good people for the committee would be difficult and that some people would misuse the committee to harass the developer.

There were six legislative referrals.

a. Alderman Franz: Review of coverage for retirees relative to single/single plus one

b. Alderman Kilkenny: Request to amend 2.36.060 as per draft in writing.

c. Alderman Heinrich : Requested that items of consequence not be placed on a Council Agenda until minutes are available.

d. Alderman Kilkenny requested a tracking mechanism be made available relative to the status of referrals.

e. Alderman Brunner asked that the Illumination Ordinance be sent to the Legislative and Licensing Committee and that a status report on the referral relative to political activity on the fourth of July be given.

 Alderman Ponto moved to adjourn the meeting. The motion was seconded by Alderman Kilkenny and carried unanimously. 10:40 p.m.

Kristine A. Schmidt, City Clerk

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