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TC Minutes 01-08-1991• MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD JANUARY 8, 1991 - 7:30 P.M. The regular meeting of the Avon Town Council of the Town of Avon, Colorado, was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Jerry Davis at 7:34,P.m. A roll was taken with David Garton, Albert Reynolds, Mike Bennett, Gloria McRory, Jim Stovall and Tom Ptach present. Also present were Town Attorney John Dunn, Town Manager Bill James, Director of Engineering Norm Wood, Director of Municipal Services Larry Brooks, Director of Community Development Rick Pylman, Police Chief Art Dalton, Town Clerk Patricia J. Doyle, as well as, members of the press and public. The Mayor called for Citizen Input. There being no one wishing to be heard, the Mayor closed that portion of the discussion. Resolution No. 91-1, Series of 1991, A RESOLUTION OF THE TOWN OF AVON, COLORADO, AMENDING PENSION ARRANGEMENTS WITH PENSION MANAGEMENT ASSOCIATES AND ADOPTING PENSION PLANS FOR THE FIRE DEPARTMENT OF THE TOWN OF AVON. Bill James stated that back in October of 1990, the Council passed a resolution in respect to changing the Fire Pension Plan. He stated that, at that time, the Council also passed a resolution for the Police Department and the general employees. The Fire Department requested additional time to review the documents. He stated that this was the same plan, the only issue now was to make the effective date January 1, 1991 instead of October 1, 1990. Councilman Garton moved approval of Resolution No. 91-1, Series of 1991. The motion was seconded by Councilman Reynolds and was unanimously carried. Resolution No. 91-2, Series of 1991, A RESOLUTION SUMMARIZING THE EXPENDITURES AND REVENUES FOR EACH FUND AND AMENDING THE 1990 BUDGET FOR THE TOWN OF AVON, COLORADO, FOR THE CALENDAR YEAR BEGINNING ON THE FIRST DAY OF JANUARY, 1990, AND ENDING ON THE LAST DAY OF DECEMBER, 1990. Bill James stated that Van Schooneveld and Company had completed their preliminary work on the 1990 Audit in December. As part of this work they reviewed entries made for both of the bond issues (Wildridge Special Assessments and Railroad Improvement/refunding bonds). As a result of this,Audit, they had made several adjustments to the general, public works, debt service and Wildridge Special Assessments Funds. He stated that this resolution makes those adjustments. Councilman Reynolds moved approval of Resolution No. 91-2, Series of 1991. The motion was seconded by Councilwoman McRory and was unanimously carried. Next on the agenda was discussion of the Intergovernmental Agreement between Town of Avon and Eagle County in respect to Animal Control. As per this Agreement the County would provide animal control services for Avon. The services would include: a. Two randomly scheduled patrols of the Town each day for 5 days of the week. b. 24 hour a day on-call emergency service. c. Administration and enforcement of Eagle County Animal Control Resolution No. 90-48 presently in effect may be subsequently amended. d. Cost of service $360.15 per month or $4,321.80 per year. e. County has agreed to cite violations into Avon Municipal Cort. Our local ordinance may need some modification to meet County guidelines, which would be done at the next meeting. Discussion followed on the definition of "Control". Both Councilmen Stovall and Ptach had concern of the definition of control, which was strictly leash control. Councilman Ptach stated that a dog could be under voice control very easily. Councilman Stovall stated that he would like to have staff look into some changes in the ordinance/resolution, such as voice control, or limited times in the park that dogs could be without leash control, but attended by owner. The Mayor stated that laws were made not for people that were not offenders, but for people that were offenders. Councilman Ptach stated he would like to see a less stringent enforcement. -2- • • Further discussion followed. John Dunn stated that if Avon amended its ordinance then there would be an overlap of jurisdiction between the courts. Councilman Garton moved approval of the Intergovernmental Agreement between the Town of Avon and Eagle County in respect to Animal Control. The motion died due to a lack of a second. Councilman Ptach requested that the attorney converse with the County on this "Control" issue, to direct the Town Attorney to look at the Town's ordinance and come back to Council at the next meeting. The Town Manager had received a letter from Conrad Parra, American Government Teacher of Battle Mountain High School requesting donation to send a student to Washington, D.C. in respect to their Close- Up Program. This program reflects the belief that a close-up look at our government encourages students to formulate their own ideas and opinions. The total cost for each student for the week's program including travel, room and board, is $965.00. Each student has paid an initial deposit of $50.00, leaving a balance of $915.00. Mr. Parra was requesting a contribution from the Town of $915.00. Councilman Reynolds moved approval of the expenditure of $915.00 to send a student (Shannon Loomis) to Washington, D.C. in regard to the Close-Up Program. The motion was seconded by Councilman Ptach and was unanimously carried. The students would leave either March 30th or April 1st, of this year. It was requested that when Ms. Loomis returns that she come before the Council for a presentation of her trip. The Town Attorney report was next on the agenda. Mr. Dunn reported on the Bain Case. He stated that the Court of Appeals reversed Judge Jones decision of the Bain Case. The Court of Appeals ruled that Judge Jones needed to make determination on whether the work was taking place on land owned by Doyle. The other issue was in respect to residency requirements of three of the Councilmembers. Mr. Dunn provided the Council with a memorandum which was prepared by Larry Hartlaub and Mr. Dunn, which dealt with the requirements of councilmembers to remain in residency of the Town while in office. Mr. Dunn reviewed the memorandum with the Council (See attached to these minutes). He stated that two principle provisions were certain circumstances which could be taken into consideration in determining primary place of residency. Those certain circumstances could be, business, employment, income sources, residence as reported on tax returns, location of real property and motor vehicle registration. He stated that the third provision was the definition of "Residence". A person who leaves his home for a different county just temporary with the intention of returning.to the Town where they are in office as a Councilmember. -3- The three Councilmembers responded to the Mayor's question of whether they were residents-of the Town of Avon Councilwoman McRory stated that she was not a resident at this time. She stated that this.was just a temporary move and that she intended. -to move back into Avon as soon as the home sold. She had no idea how long that would be. She stated that she had a business in Avon, and that she spent more time at the business than she did at the residence. Councilman Bennett stated that he believed hi was a resident of Avon. =Councilman.Garton stated that he was a resident of Avon. Mayor Davis stated that question was how long a period of. time goes by, that you'are not a resident, and still can comply to function as a Counclmember.- Councilwoman McRory that she could not answer that question.. Mayor Davis stated that this was a concern that Council had to come to grips with. There being to further discussion or input, the Mayor closed that portion of the meeting. No action was taken. The Mayor report was next on the agenda. Mayor Davis stated that there was a work shop scheduled for the newly elected Councilmembers on January 12, 1991. Also the Colorado Municipal League was having their Legislative Work Shop on January,31; 1991 in Denver..•,Councilmembers were invited to attend. Mayor Davis stated that he had received a letter from the'Town of Redcliff in respect to the Television Translator Licenses that the Town-of Avon owned. Redcliff was requesting that'Avon release-those 'five licenses to them so.-they could use•them:for expansion and. improvement of their television system. Councilman Bennett so moved. The motion was'seconded by Councilman Garton and was unanimously-carried. -4- • • Mayor Davis stated that he had received a letter from Pat Conran, Superintendent of Schools, in respect to the Town of Avon drafting an ordinance for an annexation process for land for future schools. He asked that staff look at the drafted sample proposed ordinance to see if Avon would be interested in an ordinance for the above. Bill James reviewed a letter from Jim Collins in respect to Edwards Fire Station Site Access to Highway 6 and 24. He stated that the Ambulance District had purchased the property adjacent to the Edwards Fire Station. He stated that the ambulance building would be located in Edwards instead of Avon because they were unsuccessful of finding land in Avon. The Financial Matters were next presented to the Council. Councilwoman McRory moved to receive items #1 through #15. The motion was seconded by Councilman Stovall and was unanimously carried. Councilwoman McRory moved approval of the General Fund of Accounts Payable for January 8, 1991. The motion was seconded by Councilman Stovall and was unanimously carried. Councilwoman McRory moved approval of the Reconciliation Sheet of Accounts Payable for January 8, 1991. The motion was seconded by Councilman Stovall and was unanimously carried. Councilwoman McRory moved approval of the December 11, 1990 Council Meeting Minutes as presented. The motion was seconded by Councilman Ptach and was unanimously carried. Under other business: Councilwoman McRory commended the Avon Fire Department for their response of a Fire Alarm at the Charter. She stated that the Manager of the Charter appreciated the way the fire department diverted water out from the building, which saved them a large amount of money. -5- • • It was the consensus of the Council that Bill James attend a meeting on Friday with the Grand-on-Avon. Bill James reviewed with the Council the idea of the Town of Avon taking over the Avon Metropolitan District. He asked that the Council review the figures that were presented to them, and that this matter come back to the Couneil for additional discussions. There being no further business to come before the Council, Councilman Stovall moved to adjourn. The motion was seconded by Councilman Garton. The meeting was adjourned by Mayor Davis at 8:48 p.m. -6- APPRC)A7Rn e 9 • LAW OFFICES COSGRIFF, DUNN & ABPLANALP A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION PETER COSGRIFF JOHN W. DUNN ARTHUR A. ABPLANALP, JR. TIMOTHY H. BERRY ALLEN C. CHRISTENSEN LAWRENCE P. HARTLAUB VAIL NATIONAL BANK BUILDING SUITE 300 108 SOUTH FRONTAGE ROAD WEST VAIL,COLORADO 81657 IN LEADVILLE= COSGRIFF, DUNN & BERRY P. O. BOX 11 LEADVILLE, COLORADO 60461 (716) 466-1663 January 8, 1991 MEMOPUMDUM TELEPHONE: (303) 476-7552 TELECOPIER: (303) 476-4765 To: Avon Town Council From: John W. Dunn & Larry Hartlaub Re: Residency requirements for 'Councilmembers Town of Avon Issues: 1. After an election, what are the requirements for councilmembers to maintain residency in the Town? The Town Charter, at Section 4.7(a) provides that a vacancy shall occur in an elective office whenever the officer ceases to be a resident of the Town. This indicates that the vacancy is automatic, without any resignation of the councilmember or action of the Council in removing such a member. However, if a question is presented to the Council about the qualifications of a member, Section 4.6 (a) provides that the Council shall be the judge of its members' qualifications. Section 4.7 (a) provides that an elected official shall continue to hold his office until his successor is duly qualified. This would be in conflict with the mandatory vacancy provisions described above. It is our opinion that the vacancy would occur even though a successor has not yet been appointed and qualified. That an elected official continues until his successor is duly qualified and appointed, assumes that the prior official would remain qualified to act until his successor is qualified. There is no Charter or ordinance provision defining residency. Thus, we must refer to the Colorado Election Code, C.R.S., Section 31-10-201. The residence of a person is his or her principal or primary home or place of abode. Principal or primary home or place of abode is that home or place in which his habitation is fixed and to which a person, whenever he is absent, has the present intention of returning after a departure or absence, regardless of the duration of the absence. A person does not lose his residency in Town if he leaves his home and goes somewhere else merely for temporary purposes with an intention of returning. The corollary is that a person does lose residency in Town if he or she moves out of Town with the intent to make the THE PROFESSIONAL CORPORATION IS DUNN & ABPLANALP, P.C.IN VAIL. new out-of-town home his or her permanent residence. "Intent", as mentioned above, can be shown from such matters as motor vehicle registration, driver's license, location of owned or leased residential dwelling property, ownership and location of personal property used for dwelling purposes, mailing address, and documents that have been filled in by the councilmember showing an intent to be a resident of the Town. 2. What is the effect on votes made by a councilmember who lost the residency qualification? The Charter provision mentioned above, Section 4.7 (a) indicates that the councilmember automatically and without any action by the councilmember or the Council, loses his or her position on the council if residency in the Town is lost. Thus, the votes made by such a person would be null and void. If any matter voted on would not pass but for the vote of the disqualified member, the entire motion is probably likewise null and void as having failed to pass by the required number of votes. The same problem is present when using the disqualified member to make a quorum - it may mean that the Council had no quorum for a particular meeting and therefore all actions of the Council at the meeting were void. Naturally, the Council can later re-enact any such ordinance or otherwise pass again any defective motions - however, the effective date (other than ratifying an action previously authorized by the void ordinance or motion) could not relate back to the earlier void ordinance or motion. 3. Who can raise the question of continued residency for a council member? Each councilmember must be aware that just as he or she was required to be a registered elector of the Town in order to be elected (and hence a resident of the Town), so too must the person continue to maintain the residency. Thus, a concilmember who has a question of continued qualification for herself or himself, or for any other councilmember, should raise the question to the Mayor. As mentioned above, the Council is the judge on determination of qualifications (as long as the decision is not arbitrary or capricious and is supported by some credible evidence).