Sunday, November 11, 2018

Constitutional Issues Delay New Parkland Dedication Fees, Tree Ordinance and Cell Tower Ordinance Pass Planning Commission

I attended the election night Planning Commission meeting last Tuesday night to speak against two proposals 

(1.) the proposed parkland dedication fee for new residential Smart Growth developments, used for purchasing parkland not in the same area as the development and 

(2.) the tree ordinance changes (as written)-- having developers who remove trees from a development contribute to a tree fund, in lieu of planting trees elsewhere in the development or on public land. (see my November 4 post). 

Parks Ordinance Changes Tabled

I was successful in convincing the Planning Commission to table the the parkland dedication fee, so that the City Attorney could give an opinion on the constitutionality of the law.  A PowerPoint I found online from a Tennessee Recreation and Parks conference confirmed that fiscal impact fees must relate directly to the specific development being charged. The morning of the meeting I saw Alderman Forrest Owens campaigning, and I took the opportunity to express my belief that the measure could be unconstitutional (he is a voting member of the Planning Commission). He seemed familiar with the requirement that fiscal impact fees relate directly to the development, and stated he would not be at the meeting but that he would look into it. Based on my conversation with him, I halfway expected this proposal to be withdrawn before the meeting, but that was not the case.

Here are my remarks (I used free voice to text):

Pauline: I looked at this because I was trying to figure out whether this measure was a tax, or fee, and I believe this is probably a fiscal impact fee.

And I know a little bit about that because I've studied Williamson's county's fiscal impact fee for the schools, and they are currently in litigation with developers. And the reason is that the fiscal impact fee is not spent in the same neighborhood as the development. I actually went online and I finally found a PowerPoint that was given at a Tennessee Recreation and Parks conference. It was specifically about park land dedication ordinances, and it said this was a fiscal impact fee. There are specific rules about fiscal impact fees that I found on the Power Point and particularly about parkland dedication fees.

And there two actual their court cases that have to do with constitutional issues. One is Nollan vs. California Coastal Commission and one is Dolan vs. City of Tigard, Oregon. 

And the upshot of it was that the new park must be located in proximity of the new residential development.

The land or fees dedicated must be spent according to a park system master plan that divides the jurisdiction in the geographical districts.

The fees collected in the district should be spent in the district.

And the development may only be charged a proportional amount of the usage.

I don't see any of these things in what you all are voting on. I just wanted to bring up this possibility. I don't want to see any more lawsuits against the city.

I didn't know if this had been looked at by the attorneys. I'm not a lawyer I don't know if this is right or not. I just thought you should run it by people that know something about it. Another thing is the money must be collected and spent in a timely fashion. 

Also I think is that in addition to this there's something about the parks director deciding things instead of the park commission. Is that the fees?

Staff:   Not the fee that is related to the plans. 

So that is a proposed development is it says here that it should go to the Parks and Recreation commission in here that the parks director is the one that can determine whether or not that there should can be if the park land dedication is needed actual land over the fee would be needed.


So in the in this case the parks director would have more say than the Park Commission?


Not necessarily more say but that the parks director maybe has a better idea of where that greatest need would be for the park lands or the fee 

Pauline: Okay I I just like to see a little more oversight on this. Okay thank you.


Thank you Ms.Lathram. Appreciate your comments.


David Harris, City Attorney: 

I thank you Mr. Chairman, I consulted Mr. Ross and in light of what's been pointed out I think it might be wise to not take action on this tonight let us have an opportunity to look at what's been brought for us and then we could more properly advised Planning Commission there of course a lot of other steps in an ordinance amendment goes from here to the inmates there's a lot of times to look.

But it does seem wise to stop at this point tonight and we could take it back up after fed for the chance to review

Commissioner: Commissioners, do you have any objection to the table in this amendment?


None noted.Commissioner: 

The amendment will be delayed and reviewed during the next thirty days so so we would have it up for our December meeting is that correct.

In addition to being unconstitutional, the proposed ordinance is poor policy. Apartment dwellers need neighborhood parks even more than home dwellers, for the simple reason that apartment dwellers have no backyards. To me, the whole premise smacks of "unkindness", and I thought we were a "culture of kindness".  I truly hope that this proposal returns in a form that is  constitutional, and that the City requires park funds from developers of residential Smart Growth Projects that are spent for neighborhood parks.  
Let's also hope that the City leaders take some refresher courses on their authority to levy fees and taxes. This measure would most likely have passed if I or someone else had not questioned it. If not for my fortuitous discovery of the PowerPoint, I likely would have been unsuccessful in getting the measure tabled, and the risk of even more lawsuits by developers against the City could have skyrocketed.

Tree Fund May be Spent on Maintentaince, rather than Mitigation; Fee Blatantly Favors Large Developments over small ones 

I had no luck in convincing the Planning Commission to tighten the regulations of the "tree fund" they propose. The proposal is to charge developers a fee in lieu of planting replacements for trees that are removed from projects, and that this fee would be placed in a "tree fund." The problem is that the tree fund is not a mitigation fund, as written. The staff even spoke of using the funds to clean up storm damage. In other words, trees removed from a development will not have to be replaced on the development itself or on public land, and the fee charged in lieu of the replacement may be used on maintenance expenses rather than on planting new trees. The fees may be used for things such as tree trimming, spraying, and cleanup. I have to conclude that the goal of the ordinance has nothing to do with  mitigating the loss of trees, and everything to do with creating a new income stream for City Government. The City should of course be doing maintenance and cleanup of trees even if there are no further residential developments in the City!  
The maximum tree fee of $200,000 per project blatantly favors large developers over small ones. A maximum fee should be calculated on a per acre basis, rather than per  development. I maintain that a 100 acre development does not need the same maximum tree fee as a 5 acre development. Wrap your mind around that for a minute. Why would the City want to favor large developers over small developers? 

Cell Tower Ordinance Passes 

I still do not fully understand the ordinance on cell towers. It seems the federal and state government have both passed new legislation forcing municipalities to allow certain types of cell tower equipment on public easements and public land. The City ordinance keeps us in compliance with the new laws. However, our citizens may not like the placement of some of the equipment. I am not in favor of the state and national government telling municipalities how they must use their public lands, and the members of the Planning Commission agree with me. I have no idea how this will affect our city. The cell phone industry has powerful lobbyists. 

Watching the Planning Commission Meeting  

The Planning Commission Meeting may be watched online at the City website. I do not see it on YouTube.

Thursday, November 8, 2018

Media Sources Covering This Election, a Brief History of this Blog, and Comments by Mayor Palazzolo


When I started this blog a couple of years ago, I had a very simple goal. I wanted to put my commentary about Commercial Appeal reporting on transparency issues in Germantown together, in a place where it was easily accessible in the future. I had read about Patrick Lawton taking a car allowance while driving a city-issued car (see July 11, 2016 post and October 16, 2016 post) in the Commercial Appeal. As an ex-Finance Director, was absolutely appalled. That was unacceptable to me and the "explanation" was pathetic. Even worse, the City did not undertake an outside investigation. I contacted Jon Thompson, whom I had met in that past, and proposed that I start a blog linking the articles with some of my commentary, so that they would be more easily accessible. I specifically asked Ms. Roberts to tell me if there was any problem with occasionally taking snapshots of her articles from the print version of the newspaper. At that time, protecting content was not as big a deal. I urged people to subscribe to the newspaper, and she did not indicate an issue with my occasional snapshots.

After Jane Roberts left the Commercial Appeal, there was no further reporting by the newspaper on transparency issues in Germantown. She had written not only the car/car allowance incident, but also the vacation buyback policy, and the improper insurance policies that the City had purchased (note: we are still paying on them for many City ex-aldermen, 
such as Frank Uhlhorn, who voted themselves the benefit, ).

Why did Jane Roberts leave the Commercial Appeal? I don't have first hand knowledge of this, and she certainly did not tell anyone that I know of. It was very abrupt, though, and followed a particular incident. She was looking at open records requests on a City computer and she took out her smart phone camera and snapped a picture of the screen. She had not been warned that there was a policy against that. The City was unhappy about this reporter doing her job. The City wants to make it as difficult as legally allowable for anyone to report on public information, and therefore does not allow anyone to snap photos of a computer screen. It even monitors the actions of citizens viewing records with a camera. Although the spy camera is creepy, I have been known to wave at the camera at times. In truth, I don't sit at City Hall viewing information much at all, and rarely make open records requests requiring that.

If you want to read more about the issue of taking pictures of computer screens at City Hall here is a good source: Taking Pictures of Public Documents Banned Under Personal Equipment Prohibition

Once Jane Roberts left the Commercial Appeal, I had to resort to writing things. Writing is not in my comfort zone, as some of you have probably noticed. I get an earful from my husband, who still knows the ins and outs of diagramming sentences. My mind thinks in images and numbers. It is only because of my devotion to transparency that I have attempted this journey. I would love to sit back and let other media take over again. 

That is then, but what now? 


An interesting turn of events happened late in this election cycle. Ben Ferguson, a nationally syndicated radio talk show host, began covering the Germantown election. Frankly, I don't love most radio talk shows, and had never heard of him. I also have no idea where he gets his information. I probably would not agree with most of the things he talks about on other subjects, although I can't really say because I do not listen to him. I do agree with almost all of what he has said about Germantown politics, although I choose not to use incendiary language, which is exactly why I don't listen to talk radio. Some of us cannot get past the car/car allowance incident, and that includes both me and Ben Ferguson, apparently.  For some of us, integrity is paramount, and should be the foundation of government at all levels. Because that is a core principle for me, I am astonished that other people in this community do not feel the same way. Do you choose to believe that there was no impropriety? Fine. You should welcome an outside investigation, because it would prove all of us "haters" wrong, and we would be put in our place!

We also have had more straight news reporting about the candidates and the election from Abigail Warren, a new reporter at the Commercial Appeal (message to AW: If you happen to have a need to look at records at City Hall, please keep your Smart Phone away from the computer screen, and just wave to the camera).

While it lasts, I am grateful to be able to take a step back and let Ben Ferguson and the Commercial Appeal take the lead on reporting on the results of the election, and any other things that they want to report in our City, as I did when I first began the blog. I will give links to their reports when possible, using their content in a limited way while commenting on it.  In doing so, I can only use "fair use" summaries and quotations of what they say, unless I am given permission to post more. I will continue to report on all things Germantown if something is not covered elsewhere. It was never my purpose to do original reporting, and only resorted to that when everyone else seemed to drop the ball. And, I will continue to choose among the subjects that happen to interest me-- integrity, transparency, and competence. Below is an example of how I will use mainstream media sources. 


Now for some commentary from what I read in Abigail Warren's article: 

Germantown mayoral race: Palazzolo has 127-vote lead; Barzizza won't concede 

Notable to me were comments made by Mike Palazzolo on Tuesday night. Normally I would assume that someone who was leading in an election result would be unifying and attempt to reach out to the "other side". That is too much to ask for some people I guess.  

According the the article, election night, Mr. Palazzolo said,

"Tomorrow morning, we win this thing, we're gonna start anew," Palazzolo said Tuesday night. "We're gonna build a new Germantown. We're gonna make sure that we bring this back together. And I tell you what, good is great in Germantown and all the haters, they can go somewhere else."

Have we heard this type language before? You know, aimed at all the people who have felt, and continue to feel, that the car/car allowance incident with City Administrator Patrick Lawton should have been fully investigated? Yes we have.

Recall that during the last election cycle, then School Board Chairman Lisa Parker says "Bye, Bye".  

"Bye, Bye", Lisa Parker Channels Willie Herenton 

Lisa Parker said in a social media message,  

Lisa Parker wrote the above in response to a post about Patrick Lawton and the car/car allowance incident. The old Commercial Appeal article about this Lisa Parker incident is still available here

Clay Bailey (then with The Commercial Appeal) reminded us:

"Somewhere back in the past, former Memphis Mayor Willie Herenton famously told those who didn’t like the way he was running the city that they could just leave."  

Stay classy, Germantown. And note to Mr. Palazzolo: Willie Herenton is not the greatest mayoral role model.

Also notable was the language used in the comment--"build" and "new Germantown". Is that what the Mayor wants to bring "back together"? More building (Smart Growth), Watermark Version 2.0, the policies that led to the temporary apartment moratorium?  In the later part of the election cycle, Mr. Palazzo attempted to distance himself from the policies that led to the moratorium. We shall see how that works out.

Sunday, November 4, 2018

Tree Ordinance Getting Axed?; also Towers and Parks


The tree lovers in our community need to know that major changes may be coming to our tree ordinances. The likely outcome could eventually mean many fewer trees in our city. 

This coming Tuesday, election night, the Planning Commission meets to vote on the following proposal:   

Click to enlarge.

The entire measure is here:    

Currently, the city requires developers to mitigate tree loss by planting new trees in other parts of the property, or in parks in the city. The proposed change will allow a developer to pay a fee to the City for the trees that the developer removes, rather than forcing the developer to replace trees. The proposed fee is capped at $200,000 per development. There is a need for a change in the ordinance, as it isn't always convenient for the developer to replace the trees on the property, and the City feels it does not always need new trees in parks. The proposed ordinance states that this new tree fund will be used to either buy trees when needed, or for tree maintenance. As I will explain, this language is not specific enough to ensure that our tree cover will remain the same. In fact, by giving the city administration wide latitude over the way the funds are spent, the city could lose a good deal of its tree cover. Below is the language of the proposed addition to our code (in red). The original code is black. Although this is for commercial developments, the same changes (in red) apply to residential developments:  

The Tree Fund Should Actually "Mitigate" the Loss of Trees--  

I haven't looked at the specifics in the current budget for tree maintenance, but I suspect that the upkeep of trees presently comes from the Parks budget. One can envision the likelihood that the new fee may end up simply paying for tree maintenance that now comes from this Parks budget. To the extent that the new fee simply pays for tree maintenance on existing trees, it does not mitigate the loss of trees due to the development.

There is no mention of how the "tree maintenance and replacement fund" is to be administered, other than the vague language in the ordinance. Will the city administration have the  discretion to determine the specific expenditures from the fund? It appears so. It may be a good idea to have a tree mitigation fund, but I would like to see a citizen board have oversight of the expenditures, and I don't see anything in this ordinance change that calls for that.  Specific guidelines concerning a tree mitigation fund should be written into our ordinances. An example is Portland's ordinance on a tree mitigation fund, which provides the detail that our proposed ordinance lacks. The city needs something similar to Portland's ordinance to ensure that we do not lose our tree cover. Notice that "maintenance" of trees is not included in the allowable expenditures from the fund. It is crucial to specify that the City's fund be administered separately from the general operating funds, or general park funding, and Portland's ordinance does exactly that:  

As I explained, the fund for trees should not be merely a funding source for the City to pay for regular maintenance of existing trees, but should truly mitigate the loss of trees due to development, as the mitigation fund does in Portland. At its heart, this is a transparency issue. If this ordinance is adopted as written, it would mean a steady erosion in the number of trees in our community. Is that what we want?

In the City's proposed ordinance, the Design Review Commission has the authority to approve the use of the City tree fund rather than the replacement of the trees for a project, but the ordinance does not give that commission or any other commission any oversight role in approving the specific mitigation fee that is calculated. The ordinance
 calls for the City (either the Parks Director or the Director of Economic Development) to determine the mitigation fee for the developers by using a the formula written into the ordinance. There appears to be no citizen oversight of the fees that are charged, through specific Planning Commission, BMA or other approval.  The fees are due before the development comes before the commissions.  We need more checks and balances. 

Without citizen oversight over both the fees charged and the expenditures from the fund, the tree mitigation fund could morph into a City slush fund. 

A Fixed Dollar Cap Makes no Sense, and Favors the Largest Developments over Smaller Ones

The City looked at other cities with tree ordinances, and may have cherry picked some of their provisions. A few of the cities do have mitigation funds (Oxford, Chattanooga, Charlotte, and Portland), but the City has provided us with no information about the "caps" for mitigation amounts in those cities. Apparently the City came up with the proposed $200,000 cap by looking at the cap the City has for public art. There really wasn't any other justification for the cap that I could see. I would want to know more. Why is it necessary? Which of the cities that they studied had such caps, and how much?  Which specific projects in the future will likely have this cap reached? How much would projects owe if we had no cap? We need the answers to these questions.

Charlotte has a cap, which can be found here. In Charlotte,  the mitigation rate is a a per acre amount based on the tax valuation of the property. If the tax base of a development is above the average per acre tax base for the city, the cap comes into play. Due to this "cap", developments on relatively expensive land do not pay higher mitigation amounts per acre than developments on average priced land. Thus the cap is based on the number of acres rather than a flat dollar amount. This makes sense. Why should a seventy five acre development have the same cap as a five acre development? Isn't that just punishing the smaller developer in favor of the larger one? If there needs to be a cap, it should be on a sliding scale, and determined by a per acre amount, not a flat dollar amount. 

It is particularly infuriating that the largest developers will be able to gut a plot of land of all of its trees, and then pay a capped amount that is a fixed dollar amount rather than a per acre amount. And, again, there is no oversight on how the funds will be used. How can this possibly be justified?

Change in the Future? 

A possible future change to the ordinance is also mentioned: 

This language needs to be clarified. It does appear the city wants to change the current 1:1 ratio of tree replacement to something less stringent. I am not getting much help on interpretation of this possible *future* suggestion by looking at the Collierville ordinance, which the above quote cites as an example. The Collierville ordinance states that the BMA and Planning Commission set the tree replacement ratio for each development:


The proposed change to the cell tower location ordinances is found here:  

Approval of the Amendments to Wireless Transmission Facility (sec. 23-86) Ordinances 

The ordinance is responsive to this state legislation-  

Public Charter No. 819 

This 2018 state law takes precedence over local attempts to regulate cell tower placement. I have not studied these measures in detail.  Please let me know if any of you can explain these pieces of legislation to me.



There are likely two sides to the issue, but I personally come down strongly against the park proposal that will come before the Planning Commission Tuesday. Here it is: 

Park Proposal Change 

Here is the important snippit: 

It does make sense for the city to be able to charge all residential projects for parkland designation. One strength of our city is in its outstanding system of neighborhood parks. Unfortunately, under this proposed change, the parkland designation funds from developers can be spent anywhere in the city! Why would we want to abandon our tradition of neighborhood parks and have developments be charged a fee for parks that are not built in the same neighborhood?

The City wants to do this to help pay for its $72 million dollar Parks proposal, the majority of which I believe is a boondoggle, unnecessary, irrelevant for the average citizen, and likely a financial overhang for the City for years into the future. The City took feedback from citizens interested in the parks about a year ago, and here are some of the results:  

The respondents to the survey agree with me. Note that the citizens prioritize maintenance of existing neighborhood and community based parks over acquisition of new parkland. That is how much we value neighborhood parks. New neighborhoods, who indirectly bear the fees charged developers for parkland dedication should also have the benefit of having neighborhood parks developed with the funds collected from their developments. Even though the respondents did not rate the development of new neighborhood parks highly, I am sure the answers would be different if they knew the burden would simply fall on the developers of the new neighborhoods rather than current taxpayers.

The parts of the Parks proposal that I object to have little to do with community wellness. One example is the over twelve million dollars proposed for a sports complex in the Forest Hill Heights area. There is no demonstrated need for such a project, and no cost/benefit analysis has been done. The City is simply moving serviceable soccer fields from the Poplar Pike area to Forest Hill Heights, and installing artificial turf tournament level playing fields. This will harm citizens by the necessity of charging higher usage fees for these fields, and the project will likely bring in far fewer dollars to the city coffers than the city spends on upkeep. There are also costly changes to the Poplar Pike parks that do not benefit the average citizen. Let's keep our emphasis on neighborhood parks. That is what the citizens desire. All other proposals that are sold to the citizens on the basis of an income stream should be subject to an unbiased cost/benefit analysis. 

I have noticed that the City likes to propose major ordinance changes around election time, and this year is obviously no exception.


Thursday, November 1, 2018

How Informed are you about current issues in Germantown? A Fun Fact Quiz

Here is a fun quiz. Spend three minutes to answer twenty-questions and find out just how informed/misinformed you really are on current issues in Germantown. Just the facts!

                                Web Link to Quiz


Update: Results of Quiz are here:  Link

Are you Smarter than the "Willingly Misinformed"? A Short Quiz

No doubt many of you have seen or heard the comment, repeated multiple times by a certain local political candidate, that there is a group of Facebook and other social media users who are "willingly misinformed" on significant issues facing the City. Spend three minutes to take this twenty-question quiz and find out just how informed you really are on current issues in Germantown.  

                                Web Link to Quiz