SALEM - Claiming council rules may have been violated, Councilman Clyde Brown said he wants a legal opinion on a vote taken Tuesday night regarding a rezoning ordinance for an apartment development.
At issue is whether Councilman Dave Nestic could second the motion to have an ordinance prepared and then vote on the motion since Brown contends he was acting as president of council in Mickey Cope Weaver's absence.
By law, the council president cannot move or second a motion and can only vote in the case of a tie after the council members present have voted.
Council had opted in November to dispense with the holding of their second meeting in December, but then the rezoning issue came up. The notice for Tuesday's meeting advertised it as a public hearing of council and the Salem Planning Commission specifically regarding two rezoning requests.
The notice did not refer to the meeting as a regular session or as special session of council or as a Committee of the Whole meeting of city council. Committee of the Whole includes all seven council members. Nestic said the meeting was simply to discuss the issue and decide whether to put a motion forward to have the law director prepare an ordinance which would then go before council.
The NRP Group of Cleveland submitted plans to the city last month for a three-phase housing development of apartments and single-family homes along East Pershing Street, Butcher Road and Cunningham Road on a 67.7-acre parcel the company has an option to purchase.
NRP asked to rezone 6.9 acres of land just south of the East Pershing Street extension to Butcher Road, from C-2 General Commercial to RA Multiple Family, where a portion of Phase I will be located. Phase I consists of a 120-unit walk-up apartment complex.
The Planning Commission agreed to recommend the rezoning request in November and agreed earlier this month to recommend rezoning 14.3 acres of land 400 feet east of the ends of the streets of Oak, Tanglewood, Kennedy and Edgewood from RA Multiple Family to RS-2 Single Family Residential. The idea was to create a buffer zone for the residents between their homes and the apartment complex besides the natural buffer from a wetlands and creek.
At the meeting Tuesday, after a lot of discussion, Nestic asked whether anyone wanted to forward a motion. Councilman Rick Drummond moved and when no one else spoke, Nestic gave the motion a second and the vote was taken. The decision was 3-2 in favor of having an ordinance prepared for council's consideration. Nestic, Drummond and Councilwoman Cyndi Baronzzi Dickey voted yes, while Brown and Councilman K. Bret Apple voted no. Councilmen Brian
Whitehill and Jeff Cushman were unable to attend.
According to Brown, Nestic should have never seconded the motion since he was acting as president of council. If he had not seconded the motion, the motion would have died and there would have been no vote taken. Brown sent e-mails regarding his thoughts to city Law Director Brooke Zellers and Mayor John Berlin and had e-mails sent to the other council members. He said he wanted a legal interpretation of what happened, but as of Wednesday night, he had not heard from either Zellers or Berlin.
He said he didn't think what happened was Nestic's fault, but that it was a communication problem.
"I think they made a mistake...The people expect us to abide by the laws of the city and I don't think we did that," Brown said by phone.
Dickey said she was contacted by Brown Wednesday morning and by another person who questioned the process of the vote and whether it was legal. She said she had no intention of seconding the motion, but did vote yes to have an ordinance prepared once a vote was taken. She said if it didn't reach council, they could lose the buffer zone, so this would get the issue to council for a decision.
"What they'll do, I don't know. Probably have to revote," she said concerning the legal question.
Drummond when contacted by phone said he saw the email from Brown, but also saw an email from Nestic asking Zellers to look into the situation. He said it was his understanding that the meeting was not a council meeting, but a meeting of council members with the Planning Commission.
He said he saw no problem with bringing an ordinance forward to council so that Whitehill and Cushman would have a chance to give their opinions on the issue. As for the legal question, he said it's probably best to let the law director decide.
"We'll see what Brooke has to say," Drummond said.
Messages were left for both Nestic and Apple on their cell phones regarding the issue, but calls weren't returned as of Wednesday night.
Mary Ann Greier can be reached at firstname.lastname@example.org