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02-17-2011 Capital Improvement Advisory Committee Minutes for the Meeting on Thursday, February 17, 2011 1:30 p.m. Utilities Center Conference Room 218 Committee Members Present: City Staff Present: Kirk Clifton, Chair Jorge Garcia, Utilities Director Jeffrey D. Mann, Vice-Chair Mike Johnson, Public Works Director Judd Singer, Committee Member Loretta Reyes, Engineering Services Administrator Scott Witt, Committee Member Brian Denmark, Interim Assistant City Manager Maryln Zahler, Committee Member Eric Martin, Project Management Administrator Marcy Driggers, Senior Assistant City Attorney Other Attendees: Travis Brown, Fire Chief Isaac Chavez, LCAR Lori Romero, Utilities Office Asst. Senior Meeting began at approximately 1:30 p.m. 1. Acceptance of the Minutes Regular Meeting of January 20, 2011. Clifton: I call this meeting to order, I believe we have a quorum. Have you all had a chance to look at the minutes? Singer: Yes. Did you look at them Maryln? Zahler: Yes I looked at them. Clifton: Okay? Zahler: I think they are too damn long. Singer: Yes I think they are too long. Clifton: Do I have a motion and a second? Zahler: I move that we accept the minutes as presented. Singer: I will second that. Clifton: Okay, all in favor? Witt: Aye. Singer: Aye. Clifton: Aye. CIAC Minutes, 2/17/11 1 Zahler: Aye. Clifton: Minutes approved. 2. Committee General Discussion a. Explanation of Board Procedures and Functions Clifton: Okay, Committee General Discussion and we have Marcy here from the City Attorney's Office to talk about Explanation of Board Procedures and Functions and if you would please and then I think we might have some questions on the Open Meetings Act and the inspection of public records. Driggers: Maybe it would be easier since I was not apparently fully briefed as to my purpose here. I had understood that there had been some sort of general questions in the past as to the level of advocacy and then I was to address that and seek clarification. Ms. Zahler or Maryln had indicated that there are issues with Open Meetings Act, she asked me if I had brought my book and I had said, no because I had not realized that there were Open Meetings Act concerns. So if you find me not prepared today, I would be glad to come back prior to the next meeting and fill in maybe some gaps. If you would like to ask questions, maybe that would be the way to start. Clifton: Probably a good starting point is if we could all get a copy, the most up-to-date copy from the State Attorney General's Office of the Open Meetings Act and Public Inspections Records. Driggers: Oh Public Records Inspection too. Clifton: Yes that one as well. Driggers: I can, do you all have email capabilities that I could attach them? Clifton: Yes. Driggers: As separate emails attach them that might be easier. Clifton: Yes that might be cleaner. Driggers: That might be easier if you all have printers, you could print copies because otherwise we could send you photocopies, if you could provide me with a mailing address. Would that be acceptable? Clifton: That would be fine. Driggers: Does Lori have all of your email addresses? Clifton: Yes. Singer: Yes I believe she has that, yes. Witt: Yes. CIAC Minutes, 2/17/11 2 Zahler: Mr. Chairman, I do not need anything to me but if you send it all out I can give it to someone else. I would like to make a motion for our guest that perhaps we just do the advocacy and table the Open Meeting materials until our next meeting which she can be prepared for it. Clifton: I do not know that we need a motion. Zahler: Okay. Clifton: This is really just a discussion item; it was not advertised under "New Business" so we can. Driggers: If possibly you could tell me what issues have come up in the past that make you think that you need sort of a generalized instruction as to what is required of the Board to comply with both the Open Meetings Act and the potentially burdensome Public Records Inspection. Clifton: I do not know, I mean just a brief summary of the Inspection of Public Records but you know we do have new members on the committee that probably have not been instructed appropriately on the Open Meetings Act. I know historically as a committee in years past, there has been a tendency to communicate by email and I have pointed out that you know we need to be cautious of that because if we are talking as a committee by email that could be taken as a serious violation. Zahler: It is a "rolling poll". It is called a "rolling poll". Driggers: It has the potential to be characterized as that. In other words, Mr. Witt has been on the committee for a while, Ms. Zahler has been on a number of other City Boards and Commissions so she is aware. Probably Mr. Mann is the only one that might not be aware but the "gist" of a "rolling poll' concern is you send either email, which is the current trend where in the past we just had communications with individuals to derive at consensus. So the question is, does deriving that consensus outside of the public forum are you conducting public business without complying with the Public Records Inspection Act and there is really "gray" area. For instance, often times you will see emails going out; do we want to meet on this subject? Basically you are saying, is there enough interest among the Board for us to put this particular item on the agenda and I do not think that is really a "rolling poll" as long as you are going to discuss the item at a public meeting but then some people might say, well if the consensus is no, then basically you are not going to consider it, have you in affect denied it? Clifton: Probably a good rule of thumb is there could be an appearance of a violation, do not do it. Zahler: I think that is the best thing. Singer: I have a question, if you do not mind with regards to advocacy. As you know I represent the BIA on the CIAC Board here and so often times they ask me either to do a presentation at the Homebuilders Association meetings or make a presentation elsewhere on behalf of homebuilders. Recently they asked me if I would write an article for the newsletter and even though I wrote the article I said, I do not know if I can give you an article. So I do not know where I stand, in other words am I allowed to have an opinion? You know, I mean it is. CIAC Minutes, 2/17/11 3 Driggers: Every committee is unique because we look at the ordinance that set forth your duties and responsibilities. You are one of the few City committees in which members represent specific groups. It says that two of the five members and only two of the five, no more, no less must be representatives of designated groups; the other three, it does not say who's interests they represent. We have always said they represent the interests of the public in general but they all come with certain backgrounds and hopefully specialties. So you do represent or you are representative of that segment of the community, it is real estate development or building industry and therefore it is in your interest to as a representative of that segment to encourage that area to know what is going on with the CIAC because this is not televised, the minutes may be detailed but they do not quite convey what is necessarily going on. So if you were asked for instance, to write a letter, you were asked to just write a summary of what is going on? Singer: You know given my lack of journalistic experience, I have to tell you the truth, they said can you write an article for the BIA's newsletter, so I say to myself, is that an editorial, is it an information article, is it an opinion based? So you know in going through the exercise of writing the article to try to figure out whether I could put my name on it or not, you know I tried to of course not say, you should do this or you should that, here is the information you know, this is you know, what do you think? In other words, generate a discussion because you know our membership has such a varying degree of understanding of some of these issues that there are you know some members that do not know, that do not understand it at all, at most basic level. Then there are others that see it at even maybe a different way than some developers may see it just because they may stand to benefit from aspects of Impact Fee Legislation. So you know you have varying interests and I guess I am asking, can I write a letter that gets published in the newspaper because now the BIA submits their newsletter, it shows up in the actual newspaper. Driggers: Oh as an insert in the Sun News. Singer: Yes I would not want everyone to realize what a poor writer I am but you know. Zahler: You would do well. Driggers: Generally what you often times see and Brian may want to confirm is, is that you indicate that you are a member of the CIAC but you do not speak on the behalf of the CIAC. I have seen that sort of disclaimer in a number of opinion or off end pieces that have gone into the Sun News. I think I would be concerned probably Brian would be concerned if you wrote it as if you were speaking for the committee when in fact they had not approved the informational editorial and you did not have authority to speak and that is what we have seen in the past when a Chairperson writes opinion pieces prior to even having heard all of the information and there has been issues with that; not with this committee, with other City Boards and Commissions. So would that be your consensus Brian also? Denmark: Yes, thank you Mr. Chairman and just for the benefit of Marcy, I think what Mr. Singer is bringing up is really the purpose of this whole issue and why I asked Pete to have this on the agenda is because of the exact thing you are talking about Judd because what you are saying is what we are really kind of concerned. There is a line and Marcy is correct; this is a unique Board because you are representing an interest and so you have that responsibility but conversely there is a line that needs to be drawn between your responsibility as a Board member versus you know, true representation of an interest group. Just as an example, it is very concerning to staff when the CIAC takes an actual vote, makes a recommendation to Council and then having you as example get up on behalf of BIA say having a different opinion. In that case you would say that is probably crossing that line. I think you are answering your CIAC Minutes, 2/17/11 4 own questions earlier, if you are not comfortable maybe doing an article, I would say you should not do the article. If they want to interview you as a CIAC member representing BIA well then you are probably okay but if you are sitting there writing an opinion and it comes across as the opinion of the Board, then obviously there is conflict there. Driggers: Or that you are pre-judging something before. You are an advisory board and you hear an incredible amount of information, some of it very technical and so if you are issuing an opinion prior to having fully received that information then you would be considered to having pre-judged it. Now you come on to the Board with an interest in these different areas but the banks interests may not necessarily be interests of a real estate developer. Vice-Chairman Mann joined the meeting at approximately 1:42 pm. Denmark: We would prefer, I mean you certainly have the right to vote as you see "fit" given the interests you are representing and that to me is where your power is, right? Singer: Yes. Denmark: And you are asked, do you have your own personal opinion? Of course you do but we prefer that someone else get up in front of a public hearing, in front of Council, where there is a different person representing BIA or the real estate community or whatever not you because once you make a vote, sorry that is the committees determination, that is the recommendation, they either did not support it or they supported it or whatever the conditions may be. Witt: Why isn't a disclaimer enough? I mean why isn't a disclaimer that says, I am not speaking as a member of the Capital Improvements Advisory Committee but as a member of Building Industry Association. Why isn't that enough? Driggers: Well I think you do not want to give the impression that you have pre-judged your advisory capacity before you have heard all the information. Witt: Yes but that amends entirely on the content of an article. Driggers: Correct. Witt: I mean is the content a judgment article, an opinion article? Driggers: Has the article been written? I have not seen the article. Singer: I have not put it out there, it is not out there. I guess you know, it is difficult to not, as I said, I am not a journalist so I have not been trained in writing without an opinion. Obviously my opinion is going to show up in the language that I use because it is the language that is going to reflect probably my thoughts or whatever. So and I have tried to steer pretty straight course in the thing and I am sure it probably weaves around like this you know, it is good, it is bad, it is up, it is down, you like it, you do not like it, here are the benefits, here are the non-benefits. So but I guess my question was asked because I am kind of struggling with this because this is probably the third time they have asked me to write something for the newsletter and each time start to write it and I go you know I can not do this; I feel conflicted, just like you are saying. do not want to, I mean I guess I could go in there and I could sell them this way or sell them that way and I do not want to do that, that is not my objective, that is not why I am here, it is not CIAC Minutes, 2/17/11 5 why I am there for them, it is more informational. The question is though, is there a way to get a clearinghouse. If I wrote an article, could I have someone review it and say this meets the standard? Zahler: They can not. Singer: I mean I understand but that is what I mean, I can not even send it to these guys and say, what do you think either? So I guess it leaves me a little lonely. Zahler: No, you can bring it to the committee at the next meeting if we review it okay and then we vote on it and then we say it is acceptable. Singer: But then we are writing it as the association, as the CIAC. Zahler: Yes as the committee. Singer: And I think that is something entirely different. Zahler: Yes and you do not want to do that. Clifton: Yes. Singer: Well that is not what I have been asked to do and it is really informational and it is written at a level where you got to know something about this because otherwise it is like I ask my wife to read it, proofread it, she goes. Zahler: Then my other recommendation is you do it, put it out and if the Attorney wants to challenge it so be it and then it gets sent to the Attorney General for you know and you get slapped on the hand and say, do not do it again. We still have, no, we really do gentlemen, we have freedom of speech in this country, alright and if we allow the City Attorneys' to tell us what to do, we really have a problem. I say that you do it right and when somebody challenges you on it after, you say phooey on it. Witt: Another point of view is that you are here specifically because you are a representative of a specific industry and you are expected to represent and to some degree advocate okay. We all hear the same facts here all the time and frequently come to different conclusions about what we ought to do about it. There is no conflict there okay you have not recommended anybody to do anything. You have not decided anything about anything. You are merely advocating what you are supposed, your industry, for your industry which is what you are supposed to do anyways. So I do not know what the issue is? I mean a short disclaimer, you know. If you really do not want to do it, just have somebody else do it you know but I would say you know go for it. Zahler: Correct. Clifton: So I mean if Judd or I are asked to attend a certain special interests group meeting to convey information from this committee that we discussed publicly, what Pete led me to believe is that is a big no-no. We can not do that. Johnson: If you express an opinion on it though. Clifton: No but if we are presenting the facts that were discussed in a public hearing. CIAC Minutes, 2/17/11 6 Driggers: Passing on, well summarized, passing on what was heard at a public meeting that is not. Clifton: And then as far as. Driggers: No, no I think the question is of advocacy before you have heard all the information that you are going to base your decision on. So it is always safe well after the fact you could say, this is what the CIAC decided but I have concerns or something after you know this decision has been rendered and heard all the information. I am not sure what content Pete expressed concern but I think that if it appears that you are advocating for conclusion before you have heard all the information, I think that was Pete's or should have been the concern. Witt: Well what is the material difference between what we do and the City Council? The City Council does all the things that you just said, you should not be doing. Clifton: They will present a resolution or ordinance to a special interest group. Witt: They frequently express their opinions in public whether they support something or not well before the vote is in, well before discussion is undertaken or finished. They frequently express disagreement with a vote that was taken in the Council and so forth, what is the difference? Driggers: Correct and during the Council meeting during the discussion of the item they will recommend not adopting it or modifying it but then of course that is done in a public meeting forum. Witt: What I mean Councilors they write "stuff' to the newspaper that gets published, disagreeing with Council activities or actions or something like that all the time. Clifton: They send emails out to the neighborhoods, I have got them saying we got a dust control ordinance, please show up; you need to look at this. Singer: In fact, I think they are expressing an opinion, I guess. Driggers: Yup that is not the problem. It is when they are advocating to show up in opposition to or to show up to in support asking them to attend because it may be a critical concern for their particular area of the community or the development and there is lots of dust to it. I do not think I have seen the Council advocate that members of their district attend just to oppose or to support to show political pressure for a particular item that I am aware of. Denmark: I think you got to put it in perspective; the concern is and this is what we have had from other committees too. The committee makes the decision and one of the Board members goes before Council to dispute that decision. Witt: As a Board member? Denmark: As a Board member. Witt: Right. Denmark: That has happened. CIAC Minutes, 2/17/11 7 Witt: Right. Denmark: That has happened with this Board. Witt: Yes. Denmark: That is what we are saying you need to "curb" that type of activity. Once a decision is made, it is made and you can vote it down as an interest, if you do not support it, vote it down. I think that is the line here with Judd and his dilemma is the decision has been made so as long as he is not conveying anything after the decision is made, representing the interests of the BIA there should not be any problems. Clifton: I think it gets tricky though with the pre judging issue because in any Board or Council, you know if you have a work session or like last month we had a discussion on the Impact Fee Report, even though we are not taking action, I mean obviously we are pre-judging it. Anybody is going to pre-judge it, we read through it, we either like it or we do not and whether you guys want to say, you can not pre-judge it, well guess what, every committee, City Councilor has pre- judged information prior to they take action. Driggers: By pre judging I mean you only get a bit of the story; you have not received it all. Now if the report is the extent of the information that you get, well certainly you can make a decision but if you just get one report and then three more reports will be coming in and you comment based on one report out of a full array of information, I would have concerns with that. Clifton: if the information does not essentially change, then you would be pre-judged and made a decision before the next meeting where you are suppose to take action. I mean in my mind it is no different then the meeting with the neighborhood group hearing what they have to say and then making a decision, going to P & Z the next night and saying, I do not support it because of this. I mean I think there is a gray area there that we have always done it for many years, it just always been the way that it is but I still think it just opens up a lot of questions in my mind about pre judging and where is that line crossed. I mean it is almost like, do not even have a work session, bring us the information cold and we will make a decision on it. Driggers: Well you bring the information and then you are able to understand. I do not follow the CIAC well but you have the consultant physically present in most of your meetings. You can ask questions, you can address concerns; you could have him come back and do follow up reports on something. Isn't that the usual procedure that you follow? Witt: You know, is pre judging even an issue, I mean under the law? For instance, here is an example, when I came to the CIAC four years ago we were well into the Impact Fees and Land Use Assumptions and all of that so I did a lot of homework and met with one of the City Councilors just to find out how this thing works and all that sort of stuff and got you know a "brain" down from him and that sort of thing, it was pretty helpful. Then I started doing my own research and that is actually what I do for a living, I am a professional researcher and I discovered there are lots of ways to pay for this stuff besides impact fees. Pre-judging, my pre- judging at that time was, why are we just looking at impact fees? It is not a good idea based on what I found. I am still here, I am still voting you know and that sort of thing. Everybody pre- judges and it is evident in the kinds of questions they ask and it is evident in the sorts of people we ask to come to talk to us. We can certainly have someone speak in opposition if we wanted to in what the consultant is saying. I mean if you do remember our initial go around with the CIAC Minutes, 2/17/11 8 consultants two and a half years ago we thought it was "cock-eyed". You know the information that they had provided, it was just wrong. It was not just born out by physical inspection, so there is pre-judgment that goes on all the time and who cares. Okay as long as it is clear, who is speaking about what, what is the issue? Even in the instance that Brian is talking about where we have voted on something, what if there is no uniamitaty on the vote, what if it is a 3 to 2 vote? Is any member then prevented from discussing his or her opinion on the vote? If the answer is yes, under what construct? Johnson: I think it is a discussion before the vote. Driggers: Correct. Johnson: It is advocating to an outside group besides yourself that you have this opinion or this is going to do this. You need to be aware you know, the sky is falling look what they are doing. You are on the Board; you are relaying that information to another outside agency. Witt: Isn't that what. Johnson: Now pre-judging (inaudible). Witt: The minutes are public and it is all in there. Johnson: Right, well it is one thing to say, be aware of this, it is another thing to say, the sky is falling you better jump up and down. Singer: In other words, it comes down to us giving the group that we are speaking to some sort of directive. Driggers: Correct. Singer: In other words, speak to the group and say, support this or do not support this; obviously you have crossed the line. Witt: I still do not get it that is exactly what you are supposed to do. That is why the Board is constituted the way it is. I consider, I am a at large member, I consider myself fair game to anybody who wants to come to make a point with me okay and tell me what they think, a good idea, bad idea, you know that sort of thing, give it a listen. Likewise I feel once I have concluded okay based on the evidence and the information there is no reason not to advocate a point of view, in fact that is the job. Commissions and Councilors do it every single day you know we got a "body" of Councilors who are very "green" and believe in the only way ahead is sustainability; the only way ahead is conservation, the only way ahead is leer super green and there are lots of people who disagree with that. Yet they advocate it all the time well before the facts are in, well before the voting is done and there is nothing wrong with advocacy, there is nothing wrong with building support. At the end of the day, the responsibility is always ours based on everything we have heard in every forum from everyone that wants to talk about it to make the decision and go with it. That is the whole point, anything else is restraining the flow of information and I do not get how that is good. Denmark: Well I think the problem is when you cross the line and you start participating in unethical behavior. CIAC Minutes, 2/17/11 9 Witt: But what have we talked about today that is unethical? Zahler: Yes I would like to know, no tell me, can I ask. Witt: Well all the examples that have come up, you know we are talking about Board members that have decided, so be quiet! No, not if they think, if I am one of the two instead of the three and I think the Board has made a mistake, the last thing I am going to do is shut up about it. Johnson: Okay, so you voted. Witt: I did vote. Johnson: You concluded your words were you concluded. Witt: Yes Johnson: But if you do that "blindly" you take that position before you concluded there is an issue there. Witt: Why? I mean I am stupid for having done it without all the facts but what are all the facts? I can always find facts not in evidence that never came before the Board that we should have considered; I guarantee it. We are never done gathering facts until we say we are. Denmark: Even after a vote? Even after a decision is made? Witt: Yes, especially sometimes after a decision is made because after a decision is implementation. Denmark: A Board makes a decision and you feel you got the right to express the opinion of the Board contrary to the vote? Witt: I am not expressing the opinion of the Board. Denmark: That is what we are talking about. Clifton: You are expressing your opinion. Denmark: That is where we have had members in the past cross that line and that is what I am talking about. Witt: Yes I get what you are saying Brian; I am not trying to be difficult here but it is a vague opinion. I tell someone that I am not speaking as a member of the CIAC, how did I come by all my information, member of the CIAC; how did the vote happen, member of the CIAC, why am even talking about it, member of the CIAC. I can go ahead and say, I am not speaking as a member of the CIAC who is taking action on this okay; I am speaking as a concerned citizen. Well who is it? I mean it is an invidious distinction okay it really does not exist so therefore there is no line to cross and certainly nothing illegal about it, that I know of. Driggers: Oh no and that question is not elite or invalid. Witt: It might be inappropriate or it might annoy some people. CIAC Minutes, 2/17/11 10 Denmark: It is between right or wrong. Zahler: Mr. Chair. Witt: Well no it is not a moral question it is a legal question when you are in this, it is an entirely different thing. Clifton: Okay Maryln and then let us try to wrap this up so we can move on to business. Zahler: Yes when we talk about the Open Meeting Act, I am sorry Pete is not here but what he told our Chairperson I have problems with it because you need to state, where in Open Meeting Act, okay, what page, what article, define it, I find that the attorneys, I have dealt with attorneys for a hundred years it seems, will quote things but when you challenge them and say, tell me where it is, well then they stumble around. So I think it is important if you come back next time and you know what pages because I will challenge, I will ask you because I have these books, I have them memorized, what page, what paragraph that argues what our Chair did and what the gentlemen down there said. I am a member at large too and when you speak of things like it is unethical or it is unmoral it is not right. Define it when you say something is well you are stepping over the line, define it, and tell me where in the Open Meeting Act guide book that says, here is where you overstepped the line. You better be able to prove it to me and that is what I have a problem with. So I agree too that I can go out, I am a member at large and even the Board voted on it, if I disagree with it and I am asked to speak about it; I am going to state my opinion whether it is with the Board or opposite of the Board. I was on a Charter Review Committee and we had a person who disagreed with the whole Charter Review Committee and got up there and spoke as his opinion okay and it was accepted. They allowed him to do it. So you know you are asking sometimes for things that I think it may bother staff but we are an independent organization, we have certain guidelines and we follow those guidelines. So in the public, we are able to speak our minds I feel and if someone wants to challenge it, fine but I will always ask, show me where it is okay do not tell me something that it has come out of your head. I want to see the legal opinion for it okay that is my quote. Singer: Mr. Chairman, do we have a resolution to the discussion of whether or not to distribute the minutes prior to voting on the minutes? Clifton: I think it is okay, don't you Marcy that we distribute minutes to the committee prior to the meeting so everybody can look at them? I mean most committees get them in a packet form before hands anyways. Driggers: Sure. Zahler: And it does say "draft" on there. Driggers: Yes and they do not become official until you "adopt" the minutes with whatever corrections you want. Clifton: Okay. Driggers: Why, has that been an issue? CIAC Minutes, 2/17/11 11 Clifton: No, we just wanted to make sure it was, you know, we are acting on it okay because we may be communicating by email when Lori sends out the minutes, if there is a question or something, you know. Singer: In that same regard, I guess this may have actually been brought to "head" by something that I did which I sent out by email the "draft" Capital Improvement Advisory Committee Annual Report to all of the members for their input regarding anything that I may have missed or something they wanted to see in it. Driggers: Draft (inaudible). Singer: Now I did write it up as a "draft" in the title line, it does say, "draft" but that is where kind of the concern came up because it is almost like if I ask everybody to put an opinion into this thing, am I violating the Open Meetings Act by doing that? Zahler: No. Driggers: In my opinion, would be no, you are not adopting public policy it is a "draft" document as you are preparing for final approval. Singer: Right which we will vote on publicly here. Driggers: The "draft" document, in fact you are trying to be inclusive by asking for the others rather than assuming the sole responsibility for "drafting" it and submitting it for final approval on your own. I do not see a problem with that at all. Singer: Okay. Clifton: And with that said if possible on "draft" minutes, could you label them "draft" before we actually "adopt" them? Zahler: It does say "draft". Clifton: Does it? Zahler: But I do not know if the minutes say that. Romero: I put the word "draft" on the subject line and on the "body" of the email to the committee. Clifton: That is fine, that is fine. Singer: Actually it does say that. Driggers: Those little stamps are always nice. Zahler: The minutes should say "draft". Singer: It should say it. Zahler: On the top, it should say "draft". CIAC Minutes, 2/17/11 12 Clifton: Okay and just one last point I just would like to convey to staff that you know we may not agree with your recommendations, your views or your opinions or data said and the public may not, you know let us try to keep it on the level here and not take it personal. You know everybody does have a right to their opinion and let us just try to get through this thing you know in a congenial manner, if possible. b. Parks and Recreation Master Plan Update Clifton: Okay let us move on to Parks and Recreation Master Plan Update. Martin: Mr. Chairman and members of the committee, Eric Martin with the Facilities Department, Project Management, just a brief update for you. The Selection Advisory Committee did go through and review five proposals at the end of December. Zahler: Could you go up to there to the "mike"? Witt: Because she needs the microphone. Martin: Yes sorry about that. Zahler: And give us your name again for the minutes. Martin: Eric Martin with the Facilities Department, Project Management Section and so this is just a brief update on our Parks and Recreation Master Plan for the committee. Mr. Chair and members of the committee, we have been through the proposal process with the Selection Advisory Committee and we received five proposals back in December. In January 11th they were evaluated by the Selection Advisory Committee and Conservation Techniques was the highest ranked proposer. We have met with the proposed company and have been able to basically negotiate a successful contract to work with them on this project and so we will be going forth with City Council on the 22nd that is next week for approval by the City Council. Once that occurs, we will then get the contract signed and everything in place and it is anticipated that they will be able to start work hopefully by about the first week of March. So the scope of services that we are working with, it is part of the contract is they will be soliciting public input via public meetings as well as the telephone survey reviewing our current level of service and assessing that, updating our Master Plan document and then performing an analysis of Park Impact Fees and then proposing various options which could include Neighborhood Park Impact Fees, some type of developer regulations, Community Park Impact Fees or some variation there of for consideration. Witt: What is the value of the contract? Martin: I do not have, I did not bring the resolution with me. Denmark: 80, $80,000 range. Martin: I say somewhere in the 80 to $85,000 range. Singer: Cheap, it seems like it got less than it use to be. CIAC Minutes, 2/17/11 13 Denmark: Well that is because we are not making them do a complete rewrite. We are actually going to internal it by staff to actually clean up the document to a certain point where the consultant would go out to solicit input in the community to see what the wants are and the level of service they are willing to live with and pay for and incorporate that information. So they will have a starting point so we are not like starting from "scratch". Singer: We do not have to redo Land Use Assumptions, do we for this? Denmark: Well yes we will "piggyback" off what was approved and just do an addendum to it. You have to have everything done by the calendar year and then that gives you six months to make a recommendation to Council before the deadline. So we will have to do an addendum to the Land Use Assumptions that were approved by the end of this calendar year. So we will have a new census data of course by the end and whatever adjustments. It should not change too much because on the Parks side you know we do not get non-residential data. Singer: Right. Denmark: So it is only factoring in really residential development so it should not be that cumbersome. Singer: Thank you. Martin: We have an internal committee that is set up that is meeting bi-weekly to help address those issues and work on revising that so we can keep that as more of an update and so they will turn those revisions over to the company probably in May. Then from there they will work on preparing our "draft" and final reports and Master Plan by the end of the year to be ready for your committee's review, we anticipate until January of 2012, right, beginning of the year? Clifton: Okay, thank you, any questions from the committee? Zahler: No. Clifton: Thank you. Witt: Thank you. c. Proposed Policy-Developer Impact Fee Credits for Road and Drainage Clifton: Okay, Proposed Policy Developer Impact Fee Credits for Road and Drainage, Mike? Johnson: Actually if it is alright and an update. Clifton: And update? Johnson: Yes well it does not say that. Clifton: Okay well it is not advertised Mike so we will have to wait until next month to discuss it. Johnson: Well then I will not give you the update. What is this? Clifton: Oh we can wait, trust me I do not think we are in rush to do this. CIAC Minutes, 2/17/11 14 Johnson: Maybe even less of a rush after I am done. Driggers: Well that is prejudging. Johnson: Well what I would kind of like to do is give you an update. The last CIAC meeting we had our consultant here, John Stott from Duncan and Associates and he presented the first presentation to the CIAC on the Phase II report; the report that actually identifies the projects and calculated the amount of each impact fee for the Drainage, Road and Public Safety Impact Fee. So since that time, we did that on January 20th took your feedback at the time. We went out the next day and spoke with the building industry on the 21St as well as the realtors in the afternoon of the 21St. John presented to each of those groups and we had a public meeting this past Tuesday evening again and solicited input and comments and feedback from the general public. Clifton: How was that attended? Johnson: There was about five, about five people there, five to seven. Clifton: Man, did you have enough room? Johnson: But it lasted an hour and a half. Okay so I kind of like to touch base a little bit, some of the concerns that were expressed just to bring it back to the Board. BIA, a big question on the BIA side was, how are we going to be credited for infrastructure prior to the enactment of the fees and I will talk about that that is what the policy is. I will kind of tell you where we are on that a little bit as we go through, that was one of the big discussions. I am not actually going to go through each of these with you. The other discussion was pretty primary at the meeting was the commercial impact fees. They felt they were pretty substantial and could potentially impact business development in Las Cruces. Our consultant and I tend to agree with him, said that would probably only be for marginal businesses but you know that is a debate that we could go back and forth on for several times. Witt: Marginal meaning struggling? Johnson: Yes marginal like the project was marginal to begin with and the need to have that fee may drive it where it would not be but there was a discussion somebody some of your bigger corporations are going to leave Las Cruces because of the fee. Singer: My point being like you say the marginal business I think to a certain degree over the last ten years maybe we have had a certain level preempted style growth; a great example being Walgreens, Walgreens on every corner in Las Cruces that was simply to preempt QVS. Johnson: CVS. Singer: CVS and even though they are still going to try to come into town; there plans went from aggressive to you know tentative really fast. They originally planned to come in with three locations and they are only coming in with one. So when we talk about marginal businesses I do not want to mislead the group into thinking that I am just talking about low profitability marginal businesses. It is when the decision, a corporate decision is made to come into our market that is a, okay it is not necessarily going to be a profit move but will be there before anybody else. CIAC Minutes, 2/17/11 15 Johnson: Preemptive strike. Singer: Preemptive strike. Johnson: In your words and these meetings were well attended by the way. I do not know would tell you fifty, sixty people. Singer: Yes. Johnson: Realtors, Isaac, probably more. We talked with the realtors, some specific points made, we need to build Dripping Springs to the new high school, Dripping Springs actually in that area up around Sonoma Ranch kind of "hop-scotch" us through the County and the City which proposes, poses another issue. Discussion held at the BIA as well as the Realtors about, when would you pay the impact fee and I think the consensus was, it is probably better to pay at the time of the building permit. I know Judd does not want to hear that but that ensures someone does not default if you try to do it at certificate of occupancy or something like that; so that was the discussion around that. We talked a little bit about the fees in a separate account and I know I think we solved that problem. Again developer credits, when would they be implemented, phasing plan for the fees, at this time we are not recommending, I do not think we did talk at all in the Phase II report about any type of phasing plan. The consultant has actually recommended more about looking at if you rather giving some "lag" time from the enactment. In other words if we approve it today, we do not do it until January 1 of 2012, or somewhere along those lines, give that kind of lead time on it as opposed if you try to phase it in potentially it can impact the amount of fees that will be collected over your initial five year period and your ability to do some of your projects that you have that expectation for. So again we talked about when you would pay the fee, so again we are pretty much at this point recommending on the building permit as the being at that point of being able to do it. The public meeting we did have about five people, Jeff was there. I do not know if you were in your private capacity or as a member. No, I am kidding. Mann: In this capacity. Johnson: Don Curts and Bob Hearn were there from the public and a great deal of time we spent at that meeting because they felt the fees should be higher. So we got a totally different perspective that we were reducing the fees based on the VMC/VMT ratio that we were not actually building, that we were not doing new growth at the level of service that existed on our streets today, we were doing it at a lesser level of service. So we had a pretty good discussion about that, that we were penalizing the taxpayers ultimately in the end over new growth by not charging an impact fee that was potentially high enough. So when we made those comparisons at that last presentation. So moving to the actual topic, Developer Credits for Impact Fees, when we talk about this, I think the one thing we have done is I have talked a lot with Dr. Garcia because he already has impact fees in place. How did he handle them when they first came in? How has he handled them since? I think it is important that we have consistency between that so one of the things we have looked at, we have two alternatives when you talk about credits for impact fees. You can give them offsets or you can give them credits, if a particular developer or business owner wants to build a project or we can potentially reimbursement them actual dollars for doing the project. The actual reimbursement for dollars could be problematic because if you go out and bond for a project, you potentially may not have to funds to reimburse somebody that actually did that. So there is a lot, as Utilities has done there is a big emphasis on credits and CIAC Minutes, 2/17/11 16 reimbursements would occur to a project if it was specifically identified to be built and funding was available and somebody stepped forward and said, I want to build that for you, I could do it cheaper and then potentially we could enter into an agreement. Again at our end, not with Utilities, we have to go to Council for improvements, so those items would have to be approved. Terms of pre-ordinance credit which is the big discussion after we had the big meetings last month I had several different emails, I had emails from individuals wanting to reclassify streets from collectors to arterials to that they could get credits from something they built 15 years ago. Singer: I know it is a tough deal but they do, some people make a fairly decent point. Johnson: Well but let me kind of say where we are standing so we can at least have the discussion. If the cost of business model is out there and a developer is using that properly, the cost of a lot of those improvements have already been put into the cost of the properties that were sold during the particular times that development was being enacted. When we talk about credits before the ordinances act, we are basically looking at this point we got, we are still revising a position paper that we will present to you, not today but that it has to be done within the last year and it has to be part of an unfinished development or project. In other words, let me use an example, if somebody were to build their pro-rata share of an arterial like they are suppose to do under the road standards today and it was part of a three phase subdivision and they built their share of a particular major arterial roadway, it is part of that three phase subdivision and they have only done Phase I at this point. So then there could be an argument made, Phases II and III should have that same benefit from that infrastructure provided the projects on the ICIP list of projects that we have identified as needing improvements with the revenue from the impact fee. Then we would potentially like to be at a specific time limit that you could go back for that as well as the time that you could actually apply for and ask for a credit for it going forward. So you want to have a time limit, we are saying one year either side at this point. Singer: Would there be any value in talking to the Accounting guys? Johnson: Accounting guys from the City? Singer: Yes, the reason I say that is because the accountant will sit down and tell me, oh no you got to spread this over this period of time because that is the Generally Accepted Accounting Principles for this kind of infrastructure improvement and it would be nice if we were all on the same page. Johnson: Well I do not think it would preclude you from being able from taking that as depreciation on your private side, would it? What the City would be doing? Singer: No. Well I guess it just comes down to the value or the length of the value of a product or the depreciable life, if the government looks at it when I am writing it off at ten years, why doesn't the government look at it when I am building it over ten years? Johnson: I do not know that is why I am not an accountant; I am not going to. Singer: You know just one of those questions floating around in my head. Johnson: So that is pretty much where we stand on that. Did you have a question Jeff? Mann: Yes I just have a quick question on that. As you described that subdivision example, wouldn't there be a problem if the, if a road, part of an arterial was going to be built by a CIAC Minutes, 2/17/11 17 particular subdivision, would it show up on the ICIP? I mean if it was already allocated to be built by a subdivision. Johnson: Well we have an instance, maybe I should have used this instance, let us say Roadrunner Parkway north of US 70 or Del Rey, both of those are probably the first roads, if we had a road impact fee we would finish because we have the two lane, four lane (inaudible). If there was a particular developer that built their half of Roadrunner Parkway or of Del Rey and still had some unfinished lots and subdivisions in there that that was attributable to what they built. Potentially that is the type of argument that could be made, ultimately would have to go to Council and would have to be considered at that point; that is kind of what we are referring to when we say that. So we talk about credits after the ordinance is placed, would be identical to what Utilities currently does if you build something that is in the ICIP you would get credits for it and then if in fact there was an example of a developer built something and it cost more than actually the City had credits for, there would have to be a discussion on how we would handle that at that point. Again, that could pose some problems at that but we are still getting some clarification on that so I am not entirely clear on that. When we come back in March which I am going to show you in a second, we will have our consultant back here for full discussion on that at that point. So again eligible improvements should only be spent on improvements in the ICIP credits only provided for improvements in the ICIP and then right-of-way will not be eligible for credit if it is given to the City. Clifton: So I mean back on that and I raised the question on rational nexus last month. I mean okay so you are only spending on improvements listed in the ICIP, shouldn't you only be collecting impact fees that are on or near that improvement or that directly benefits proving that rational nexus? If I am developing in Sonoma Ranch yet you spend the money on the west side of town that has no benefit to my development, yet I am still paying into the fund. I mean to me you do not meet the rational nexus. Witt: Yes but it is still a service area test as well, it is all one service area, that is my whole understanding of the discussion of service area. Clifton: Yes but even though it is one large service area the rational nexus is not being met. Singer: Yet the question remains if it is one service area and my development is going in the one service area that does not happen to be next to the ICIP project. Witt: By definition it is a rational nexus because it is a single service area. Johnson: Okay say I think that test has been met and fought in court already in this particular instance when you identify a particular service area. Witt: That is why we had the whole discussion about remember they had this whole thing they created during the discussion about benefit areas inside the single service area trying to treat them differently in terms of funding. Singer: Right, right, yes I guess you are right. Witt: But the law says, if it is a single service area and it happens within the service area it is almost by definition a rational nexus. Mann: So that service area is the City? CIAC Minutes, 2/17/11 18 Witt: Right now it is, yes. Singer: More or less. Johnson: In this particular instance we identified, we took out the "infill" area. Witt: Yes took out then we have the "infill" area and then all others. Johnson: Roads and Drainage is in the growth area and then the Public Safety fee is city-wide. Witt: We had a pretty before Jeff you came on the committee here, we had a pretty animated discussion about whether we ought to have single service area or multiple and we went on for a while about that one. Singer: You are right it comes down to the benefit area. Witt: Yes and the benefit area was something that does not exist in the law, you can not find it described okay but it was in the turpitude within the single service area which is what the law does recognize. We had several benefit areas where would be able to localize this spending okay and to talk about what we just said here okay. If you are building over on East Mesa, then East Mesa impact fees ought to be the ones you are using to pay for that and not the ones over here on the west side. However, it is all a single service area and that is the only entity recognized under the law at this point. Mann: The (inaudible) we have is. Witt: "Infill". Mann: "Infill" and growth so the benefit area for these fees would need to be growth areas. Witt: Right, yes and it is overfill, you still have these circumstances that Judd just described here. Mann: Right. Witt: I am building on the East Mesa; you know they are building on the East Mesa, why am paying from the West Mesa, you know it is a fair question and there is no elegant answer. As recall, just to recover the conversation a little bit, for a while there were some of us who were pushing pretty hard for multiple service areas with staff pushed back a little bit back on that, mainly it was an administrative inconvenience, I would say nightmare but it was really an inconvenience. The other issue was the service area gets so small you do not generate sufficient income. Johnson: That leads to the problem that we had with parks. Mann: If that determination is in May, I mean obviously this is a (inaudible) of the matter if the determination made as long as it is in an entire service area which is the City growth area then if that is the way we are proceeding, then that addresses that issue. If we are talking about yes having to have fees spent on the arterial you are next to that is going to hurt the whole podium making those connections every time you had a project come in because then you would have developers who would say, that does not apply to me, there is nothing close to me on the ICIP. CIAC Minutes, 2/17/11 19 Johnson: Well yes I think you still see that argument made when we go to Council a lot of times because that is the argument that is getting made, well I built my portion of Roadrunner Parkway twenty years ago and I contributed already right and I want to do my next door thing there and I already, I want to do something next door on a vacant land and Roadrunner is already there. Well no what you are building is taking a little piece of the pie away that when you pay the impact fee it makes the pie whole again. Does that make sense? We have talked a lot of analogies on this about Lego's and you know. Witt: Yes like I said there was never really an elegant answer. One of the things that was produced during this discussion and I saw it just recently in one of the presentations was actually really useful was, how Las Cruces has grown going back to about the 60's or something like that and we color coded where the growth occurred; you can actually track it. Johnson: Was that the annexation history? Witt: Yes the annexation history and one of the things you could consider for instance, if you wanted to have that discussion again about multi-service areas is to and the nice thing about multi-service areas is you can have different impact fees within the areas okay to account for the differences in the areas. So you could take that growth model, that annexation model, "infill" is basically done okay any impact fees are nominal okay simply because there is not much that needs to be done there okay it could be low. You can see where we grew out as we started to move out of the downtown Las Cruces area and where you have the high growth areas right now you could identify that as a service area based on percentage of growth over time, you could use any sort of number you wanted probably to make that determination to distinguish it from the others and have a higher impact fee in that area; okay because things cost more now then they did 60 or 50 years ago or whenever you know there are all sorts of reasons for doing that but it is a pretty significant administrative burden because the Act also requires you give back fees that are not spent seven years, blah, blah, blah. So you have to actually track each one of those. So there are possibilities but that is not what we ended up with. Johnson: Any more questions or I can kind of, so what is next? At this point we are going to take comments, including today's comments and if there are any additional and then over the next couple of weeks we are going to finalize this Phase II report and then we are going to bring it back to CIAC at your March meeting and request action on each of the fees individually, we are not going to make you vote like so we are going to say, do you want to, we would like to move forward with the Public Safety fee, yes or no, Roads yes or no, Drainage yes or no. Clifton: Make sure it is advertised on the agenda like that separate action items. Johnson: We will and that is the way we will ultimately end up taking it to Council after recommendations come from the CIAC. Clifton: Okay by March 17th we will be able to answer the question, how you are going to be able to collect these fees? Johnson: Well I think our recommendation at this point is at the point of building permit. Clifton: Okay. Johnson: That is what I would tell you. CIAC Minutes, 2/17/11 20 Clifton: Does that need action on our part or is that just something that can be handled at a staff level? Johnson: No I think we need to include how that would happen to you when we come back, so we can specifically do that. Yes I think one thing we could also do over the next couple of weeks is prepare maybe an information sheet, here is this, here is that, here is this and then we can send it to you all so you can share it with groups you may represent. Clifton: I mean I am not going to speak for the committee but personally before I even want to take a look at these for action, I want to know how it is going to be collected or how you are going to recommend it to Council because I do not know if I can act on it until I know. Johnson: Well at this point I would tell you we are going to recommend it to Council it be collected at time of building permit. Clifton: Okay just solidify that if you could on March 17tH Johnson: Okay. Mann: If it is collected at building permit, that addresses the issue than this being passed to the future buyers, so does that address that issue? Clifton: I do not think it does. Singer: No I do not think it makes any difference on that. I think critically the issue is from a builder's perspective, when you take it at the building permit time that means I am going to pay interest on that money for the whole entire construction job; so it is an expense issue. From the City perspective is, is if I collect that fee at the time of occupancy permit, you know if a down turn in the economy occurs like it did this last one, there would be a lot of builders who did not have the money to pay that fee at that point and time. Honestly I do not know what that would cause as you know a problem, I do not know really I do not even know where that bill would end up, God forbid it ended up with the banks because the banks would say, oh your fee is 5,000 here is a dollar. Clifton: Or give us a dollar. Singer: That is what they do, so I think your, I just. Johnson: And certainly if CIAC can say, we want to recommend this as part of fees collected at "x" instead; I mean that is certainly a recommendation that can be moved forward. Clifton: You know something to "chew" on Mike and I keep bringing this up and it keeps getting shifted to the side is the family or the customer the individual resident that maybe move into three or four new houses over the course of their lifetime it is one impact but they keep paying a fee and I guess the consultant which I disagree with completely, tried to argue that well there is always a family behind them so they are an impact, so there is an impact being created by the time you are moving. Well I mean yes if you want to look at it literally I guess you can but the reality is again that one resident keeps paying an impact fee. Now with that said, will you guys be able to look at something like if I showed up with documentation that I already paid an impact fee, could you apply that as a credit like a developers credit but to an individual resident that CIAC Minutes, 2/17/11 21 okay yes you documented that you have paid an impact fee, you are the one impact so we could apply this to your next impact fee that you would pay on your new house? Johnson: See but that would essentially be providing a credit. Singer: It would be a waiver. Johnson: Well but. Clifton: No it is not a waiver it would be a credit. Johnson: I guess when you look at when I go back to the system; we are looking at a system right? We are adding a new home; you are saying the person has already paid a fee, we are adding a new home to that, you get the argument somebody is coming behind to take the old home. So the system has been impacted by one more home or "x" number of residents or "x" number of car trips, so the system has still been impacted but we are not receiving a fee to compensate for that growth, so that system is still growing. Witt: That makes sense if you view the new home and the resold home as the same market and it is not. Johnson: We can look at it Kirk, I am not, we can certainly ask our consultant to bring back a discussion about that. Mann: Okay let me just make sure I am clear on that. So you are saying, I buy a new home and in the price of my home I have paid an impact fee but of course the builders rolled into the price of the house and then a few years later I buy a new home again the builder has put in an impact fee and you are saying that they should not pay at both times when you buy a new home. Clifton: Correct. Mann: And I guess I understand what Mike is saying, you got a new home, you got a new impact, you have expanded the impact and therefore there would be a new impact fee paid even though again unfortunately it is in the price of the home but you have I mean that is the whole point. At least I understand the impact; it is one new home, so it is one new impact. Clifton: Dr. Garcia. Garcia: If I may add to your comment Mr. Chairman because I heard the comment last time and this refers to the water and wastewater impact fees. If you move into a new house and the house already has a meter and if the prior owner did not defer the fee, you are not paying a new impact fee. If you build a brand new house every time, every new meter adds to the capacity of the system and therefore yes you have to pay the fee. So it is different the fact if you buy a new house already which the builder may have paid already the fee, in that case if the full fee is paid then you do not have to pay a fee. So the question is, you pay a fee over and over again only if you buy a brand new house that does not have a meter but if there is a meter and no deferment of the prior fee, you do not pay a fee. So that needs to be clarified inside, I heard that comment twice and it depends on what happened before. Mann: Yes water and sewer I mean as opposed to impact fees there is also you can just charge capacity improvement fee as part of a development. CIAC Minutes, 2/17/11 22 Johnson: Well it is the very same concept; I think your impact and your capacity with a new home being it a road or a new utility line. Singer: I do have a question actually since we are discussing that new meter old meter kind of discussion with this. So what would happen in the case of a redevelopment? Let us just say for example, we use Encantada Park as your example, we have an excellent system now with impact fees to account for all 100% of all new growth but we have no system to account for redevelopment which is not necessarily growth but simply redevelopment and the City might actually benefit to some degree from redevelopment by upgrades to the existing sewer lines, etc., gas lines, water lines, underground infrastructure. Garcia: Mr. Chairman, Board members, in terms of redevelopment let us say and I will talk about a specific parcel of land and let us say there is a park or a big building that has a two inch meter already, you go demolish it, you are going to do a new development. If the new park or the new development in that area requires the same two inch meter then you do not have to pay fees again. If it requires more capacity the fee is only the differential of what you need and what was there. So we try to accommodate the ability to sort of credit what is there alright. Singer: This works well in utilities but how does it work on roads? Garcia: Well I know it is not simple in roads probably but we already do it with the utilities so that nobody has to say, I have to pay again because I am putting a new building permit. If the meter is there and it is suitable, then no problem. Singer: Always I always say that Utilities Department's impact fees are a whole lot easier to deal with and understand because of all of these reasons that you are saying right here but they do not necessarily exist like when you are doing Park Impact Fees. Denmark: It is the same with Parks; the redevelopment is not increasing dwelling units you are not paying a thing. Singer: Well but if I went into Encantada Park which is a mobile home park today and let us say for example I bought that park and I wanted to redeveloped it as a site built residential. Denmark: It does not matter. Singer: I would have to take a permit for each one of those houses. Johnson: But you are in an "infill" area you would not have to pay Roads and Drainage. Denmark: It is an increase (inaudible). Singer: So I used a bad example. Denmark: You are only paying for the difference in amount under the (inaudible) so if you have a development that is a 100 dwelling units and you went in and redeveloped it and ended up with 114 dwelling units, you are only paying 14 dwelling units worth of impact fees not 114; okay because 100 has already been paid the only difference, no different than (inaudible). Singer: Not withstanding the "infill". CIAC Minutes, 2/17/11 23 Johnson: I think that would be the same as roads that is a good example the same way. You are adding 14 more building lots so that would be what the fee would be. Singer: Because the fee is against the lot not against the building permit? Johnson: I would say you had 100 hundred residential lots in the original level of service calculation. Singer: Yes let us say I am just doubling it. Johnson: Okay then it would be the differential just semi. Mann: Is that spelled out in the ordinance? Johnson: I do not know if we spelled that out but I think that is a common sense. We can spell it out I do not think that is a problem. Denmark: You can easily spell that out. Singer: I do not think that would be a bad idea to clarify that and the only reason I say that is because Las Cruces over the next ten years will probably began to go through some redevelopment in some of the older areas of town. Already Encantada Park was up for sale once and I mean it was an opportunity. Brown: Mr. Chairman, Mike my question, you know when you talk about credits and so forth do those have to go to Council so that when that potentially would be a situation where in that situation the developer could come to the Board and say, I think I deserve a credit for those 100 lots that were already there and show up on the next 100 since that is truly the impact in the new development and that ultimately go to City Council? Singer: I would hate to leave it there quite honestly because talk about no guarantee. Johnson: We could certainly research that and further discuss that that is a good point. Mann: Mr. Chair, are we also going to get a draft of the ordinance prior to March 17th? I mean because all this presentation has to be translated into the actual because we have not seen it have we? Clifton: No. Johnson: A draft ordinance is being worked on right now. Mann: So we will be able to see that prior to. Johnson: You will see that, you should have something in two weeks or so. Mann: Okay. Johnson: Loretta is looking at me. Well you will have it prior to the meeting let us put it that way. Let us not tie it two weeks and say, where is it? CIAC Minutes, 2/17/11 24 Zahler: Are you going to send it by the computer? Johnson: Well how do you want it? We just send things through e-mail. Clifton: E-mail. Mann: E-mail. Zahler: Yes e-mail. Johnson: We will e-mail it. Clifton: I guess I mean I will bring it up again next month; I still have issue with the individual residential impact fees. I mean the very argument to justify the "infill" area is the very argument that does not work in the growth area. I mean we are not charging impact fees in the "infill" area because people are moving in there. Well people moving in the growth area as an existing residences but that same person keeps paying the fee. I mean it is just; it is not equitable, what it boils down to. It is like saying a marginal business; we do not care about you because you are marginal and you are probably not going to make it anyways so we will collect that impact fee. I mean that is not fair for the government to say that so just keep those things in mind. Johnson: I guess that is your opinion, I am not going to debate you on it; any other comments or questions about this? Clifton: No. Johnson: Okay. Public Participation. Clifton: Members of the public, Isaac, do you have anything? Chavez: I was not planning to but just a little bit about the building permit fee since we keep talking about this and I am Isaac Chavez from the Realtors Association. We have been obviously advocating that it be pulled at the building permit be it at the building permit only because not that it would hurt the developers or the builders but it would actually allow the buyer to have it amortized into their mortgage and it is a lot easier for $3,000 to be paid by a buyer over 30 years than it would to be at the closing table and the reason that is a danger is because there is a huge time difference between a pre-approval of a mortgage loan and closing so you might go and get pre-approval for a $140,000 house, four months later when the house is done and you get to the closing table, you might not be able to have all those closing funds especially when there is $3,000 or $2,000 added and that is why we have been opposed to it. It works a little bit better with these current impact fees because at least partially some of it is born by the buyer through their utility bills. We have never really been told if that is feasible or not for these new fees; the impression we keep getting from City staff it is not, that they do not want to do it that way because they can not really put road fees on a utility bill. I mean I guess you could technically but that is not something that is easy to do. Yes but I do not know so as long as it is going to be levied somewhere, we feel you know it is more safer for everybody involved because if that buyer defaults and can not close, then the builder lost a client there as well; so everybody hurts. I know the lenders and the title companies are all in favor pretty much as well of it being here because everything has to be on the hub statement. So there is no way to do it halfway, it is either on the hub or it is not, you can not say it is not. So one thing that we talked CIAC Minutes, 2/17/11 25 about in our meeting is that maybe we could keep it like this but have some type of disclosure just so the buyer knows, you know that it has no legal value except to address to the buyer, okay Mr. Buyer we just want you to know that in the price of your house there was a $3,000 impact fee included, just to make them aware. Clifton: That is reasonable. Chavez: So you know other than that that is why we really pushed forward for it to be in the closing or in the building permit. You know the Realtors are pretty much down to the point it is hard for us to be against the Public Safety Fee. I mean, I know there is some concern with other associations but I mean our members feel that that is just pretty much a no brainer. I think we still have some concerns sometimes with the Roads and the Drainage but over all I think I told Mr. Johnson, if you had done these three years ago and just came one at a time instead of trying to "ram" them all through in one package. If he had come to you with the Public Safety Fee three or four years ago, you might have had that one passed immediately and you might even have some new fire stations because of that. So I think it was a strategical, tactical mistake on the City but you know, you live and learn. Zahler: Mr. Chairman I have a question. Clifton: Yes. Zahler: Okay Mike a question in my ignorance I still have to understand some of this. What happens with all this money, impact fees? Where does it go? What is it used for? Johnson: Well in the Phase II report we have identified projects that you also have input on you can if you do not like or you want to see something else that is also up for discussion but most projects have been identified and then the revenue comes in so we get an idea based on the Land Use Assumptions. How many single family homes are going to be built? What that revenue is going to be on an annual basis? Then after we have established kind of a history of that over a couple of years we will be able to go to the bond market and say, we are collecting "x" amount, we are projecting this amount over the next ten years, borrow a lump sum and then address the projects that we have identified. Zahler: Okay and who monitors that because in reading when I first came aboard I read some of the old minutes, there were questions about money that was received by the City and then it sort of sat there. Johnson: You all monitor that. Zahler: Sometimes it went to some projects that were not listed as what the money was for. So I want to know who is going to monitor that, is that the City? Johnson: The CIAC monitors that; there are also internal controls within the City that would monitor that and the Council Zahler: Alright. Johnson: Because Council is going to ultimately approve the projects and the funding because obviously we have identified more projects than we are going to have funding for. CIAC will ultimately have the initial discussions and then it goes to Council. You have seen Dr. Garcia CIAC Minutes, 2/17/11 26 come and give you presentations on this status and that status and here is how we have used these funds. Zahler: Right but the City Councilmen members will change; there is going to be three members next year up for, well two because one is going to try for the Mayor. So you get brand new people on that, how do they learn? Who makes sure that they know to do this, to follow through on it? Johnson: Well that is just part of our budgeting processes and things that we go through, part of how we have to speed as a Council. Ultimately project would come to CIAC, you would all have an input into here are the priorities we think; ultimately we approve these, we come back and say, here is the project, what is your order of the projects you want to see? Obviously we have an idea and then we would take that forward, the bonding versus what we want and go from there. Zahler: But who, I guess I still. Johnson: There is an entire process that is in place for a new elected official. Zahler: Okay. Denmark: Ultimately it is the Finance Department Maryln; they give us reports every month that define the spending, you know what the spending has been, what the minimum spending requirements are for that particular year, how much has been collected so and then that is audited every year. Zahler: Okay. Denmark: So the problems you are talking about, there were problems in the early 2000 range, those all have been corrected by Finance, so we have not had an audit finding for eight years now, ten years or whatever it was, it has been several years. Zahler: And since it is public information, we could ask for those reports? Denmark: That is correct. Zahler: Okay, thank you. Mann: Again we have this process on the ICIP staff recommendations, our review, recommendations to the Council, Council adopts on the ICIP so that is going to basically start over again with the adoption of these fees. So we will basically be adopting a new ICIP with the adoptions of these fees for these features. Johnson: Right, that list of road projects is in the document, so if the fee is adopted those are the projects that have been identified for use of those fees over the next five years. Mann: Okay but they have not been prioritized? So that is a process that would still have to be done? Johnson: If I was to prioritize them, I mention Roadrunner and Del Rey all the time. CIAC Minutes, 2/17/11 27 Mann: Yes and then that same process coming up to the Parks, when that gets updated then that whole process starts again for the Parks, their prioritization? Denmark: The difference is there is a deadline; you will have to make a decision no later than about a year from (inaudible) right, Council has to make a decision no later than June 2012 because of the five year timeframe that they are under. What Mike is presenting there is no timeframe because there is not an existing impact fee, once you start that process five years from now you know you will have to make another decision. Clifton: Okay is there anything else on this? d. Review of Draft 2010 CIAC Annual Report Clifton: Okay let us move on to the Review of the Draft 2010 CIAC Annual Report; Judd do you want to "kick" that off? Singer: Yes I went ahead and drafted an annual report for the CIAC as per our requirement. I have distributed it to all of the members and requested input or comments. I have not received any at this point; I am assuming that any comments that wanted to be made would be made at the meeting today, so unless there are any comments. Clifton: I did not have any comments, Maryln? Zahler: Yes on page one down at the bottom of the page it says, at the request of member Mrs. Zahler, Miss, it is Miss. Singer: Okay. Zahler: And Maryln is wrong there, it is M-a-r-y-I-n, you got two y's in there, that is all. Singer: Oh I was going to say, I knew how to spell. Zahler: Well my name is spelled "crazy", the (inaudible) did not know how to spell Maryln. The other comment I would like to make that even though it was done by Judd it should be sent by the new Chairperson to the City Council and what I would recommend is like I did last year, that a letter be attached to it saying and we get a copy of the letter, sent by Kirk to the fact that we are sending in this report and you do a letter that way you have a copy of the letter, that is it. Singer: Okay very good. Zahler: I thought it was very well done. Singer: So you want me to give you the letter or do you want. Clifton: I can just do a short. Singer: Okay so I will just forward you the, I will take the "draft" off of it. Clifton: Yes that is fine. Zahler: So I move that we accept. CIAC Minutes, 2/17/11 28 Clifton: Do you guys have anything? Zahler: I move that we accept the report as presented to us. Clifton: Actually since this was not advertised as "New Business" we probably should adopt it at next months meeting. Zahler: Okay. Clifton: We will put it under the "New Business" items for action, if that is okay with the Committee? Zahler: I withdraw the motion then. Mann: That is fine. Clifton: Okay anything else from the Committee? Yes sir. Witt: I am tendering my resignation from the CIAC for two reasons, some personal things have come up and our life is upside down at this point and we have my mom living 24/7 at the house, it is a serious situation so I am backing up from a lot of stuff. Second thing I am a big believer in term limits, my four years is up next you know for the folks, so I have a letter here, I have mailed one off to Esther Martinez and to the Mayor okay; here is one for you guys. I would just like to say. Johnson: Could you step down in three months? Witt: What? Yes it is two to two, it is an even number. Yes I would just like to say a couple of things; first of all I really appreciated the opportunity to serve with you guys, all of you, new guys and old guys. I have learned a tremendous amount; it has been a great experience. I have no idea how I ended up here though, I was trying to figure out, how I even ended up on the CIAC, can not remember, someone talked to me and told me I should go pay attention and there it is. would also like to say thanks to Dr. Garcia, Mike all your staff and all those people. I have asked a lot of questions, I have not counted them all but there is a lot okay and you guys have been more than patient sharing your expertise with me and getting me up to speed on a lot of stuff and I know enough now to be dangerous. So anyway I do this with regret, if it were not for these circumstances, I would certainly stay on and keep helping where I can but unfortunately I am going to have to "bail". So it is effective the end of the month, that will actually complete a four year tenure for me; so my thanks to everyone once again. Clifton: Thank you; you have been a very intelligent voice for the Committee for a number of years. Singer: Thank you Scott. Witt: Luckily it is only once a month. 3. Next Meeting Date Clifton: Okay our next meeting date will be March 17th 2011 at 1:30 pm. CIAC Minutes, 2/17/11 29 4. Public Participation. Discussed earlier in the meeting. 5. Adjournment Clifton: Do I have a motion to adjourn? Zahler: No, I have something, is that I have noticed that I have not seen anything in the papers, announcements of our meetings and it concerns me that we really do not have the public here at our meetings. I mean we do have Isaac and a few other people but as a general rule, I look at the list and I see staff, I see us and just a few people that I think that we need to really make sure that it gets into the paper under "Community Service" and there are other sections that if you submit it they will put it in. Witt: I routinely see it in the paper. Clifton: Under "Legal Notices"? Zahler: Where do you see it? Witt: It is not under "Legal Notices". Clifton: No? Witt: No, it is under one of those sections, "Upcoming Events" kind of stuff. Zahler: "Community Service"? Garcia: Mr. Chairman, I believe it is in the "Briefs" because it is published like any other public City meeting. Zahler: Okay good I have not seen it, I am sorry. Garcia: I will double check but we do publish it just like any other City meeting and I believe it is called the "Briefs" in the paper. Mann: Yes, something like that. Zahler: Yes I have seen that but I have not seen it but maybe it is the distance out here, okay that is it for me. Singer: Okay I will make a motion that we adjourn. Zahler: Second. Clifton: All in favor? Singer: Aye. Witt: Aye. CIAC Minutes, 2/17/11 30 Mann: Aye. Zahler: Aye. The meeting adjourned at approximately 2:52 pm. i� -W - g') 1 - 17 - H Kirk Clifton Date CIAC Chair CIAC Minutes, 2/17/11 31