HomeMy WebLinkAbout2012-04-09 12-133 ORDINANCECOUNCIL ACTION
Item No. 12 133
Date: April 9, 2012
Item/Subject: ORDINANCE,, Ordinance, Amending Chapter 268, Stormwater, of the
Code of the City of Bangor, By Adding Article II, Stormwater Utility
Responsible Department: Legal
Commentary:
The City of Bangor is facing increasing state and federal requirements for handling stormwater
runoff. In order to meet these requirements, a stable, sustainable funding source is needed.
An increasingly common way to help pay for stormwater management is through a stormwater
utility fee. These fees are often based on the amount of pavement, rooftop, and other
impervious areas on the property, as this is a good indication of how much a property is
contributing to stormwater problems. This approach is generally considered more equitable than
placing an additional burden on the property tax.
This Ordinance would create a stormwater utility run by the City. The utility would use funds
collected from all property owners, including government agencies and nonprofits, to pay for
new stormwater needs. Many properties that already have stormwater treatment in place would
be eligible for a credit, reducing their stormwater fee.
A stormwater utility would help the City to meet regulatory requirements and improve the City's
stormwater system, including the six streams in the City which are currently listed by the State
as impaired.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
Passage
x First Reading
x Referral to the Infrastructure Committee at 5:00 p.m. on April 17, 2012
Department Head
ManagerCity
Finance Director
City Solicitor
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Assigned to Councilor - Gratwick April 9, 2012
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CI`T'Y OF BANGOR
TED. I
(TITLE.) Ordinance, Amending Chapter 268, Stormwater, of the Code of the City of
Bangor, By Adding Article II, Stormwater Utility
WHEREAS, the city faces increasing regulations regarding stormwater management;
WHEREAS, an appropriate method for the City to pay for certain costs associated with stormwater
management is the implementation of a stormwater utility;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT,
Article H, Stormwater Utility, be added to Chapter 268 of the Code of the City of Bangor as follows:
ARTICLE II. STORMWATER UTILITY
§ 268-11. Legislative findings.
A. Water quality in the watersheds within and surrounding the City, including but not limited to
watersheds associated with the Penjajawoc Stream, Birch Stream, Antic Brook, Capehart Brook,
Shaw Brook, Sucker Brook, and Kenduskeag Stream, along with their tributaries, are potentially
threatened by pollutants associated with existing land use and future development.
B. Poor water quality in these watersheds can threaten public health, safety, and welfare.
C. The existing stormwater management system is in need of upgrades and improvements and may
be inadequate to meet existing and future needs, and flooding concerns may arise.
D. The U.S. Environmental Protection Agency ("EPA") requires a comprehensive approach to municipal
stormwater management, and the City must take action to meet these requirements.
E. Stormwater management needs of the City have been identified in the Updated Stormwater
Feasibility Analysis dated August 2009 by CH2M HILL, the Stormwater Funding Concept Study Final
Report dated September 4, 2009 by AMEC Earth & Environmental, Inc., and watershed
management plans for the Penjajawoc, Birch Stream, and Capehart Brook watersheds. These
indicate how more effective stormwater management in the city would contribute to the health,
safety and welfare of the residents, and show that stormwater facilities and activities associated
with stormwater management provide services and benefits to all properties, property owners,
residents and citizens of the City.
F. Given the scope of stormwater management needs identified by the stormwater studies, it is
appropriate and necessary to authorize the formation of a stormwater utility, as a program
comprised of staff from the City's Engineering, Public Works, Sewer, and other divisions and with
dedicated funding components, and charged with the responsibility to establish, operate, maintain,
control, and enhance the stormwater management programs, services, systems, and facilities of
the City.
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G. In order to establish, operate, and maintain the stormwater infrastructure of the City, ensure the
future usefulness of the existing system through additions and improvements, and provide other
services associated with stormwater and watershed management, sufficient and stable funding is
required for the operation, maintenance and improvement of the stormwater management
programs, services, systems, and facilities of the city.
H. A stormwater utility service fee schedule that efficiently takes into account impervious surface area,
using intensity and nature of land use as the most appropriate and equitable method of allocating
the cost of stormwater management programs, services, systems, and facilities of the City between
and among the properties of the City for governing assessments and collections of the Utility, is the
most appropriate way of providing for the aforementioned sufficient and stable funding.
§ 268-12. Purpose.
Stormwater runoff is one of the largest contributors to water quality violations In urban and urbanizing
areas of Maine. According to the US EPA, polluted stormwater runoff is a leading cause of impairment
to the nearly forty percent of surveyed U.S. water bodies which do not meet water quality standards
(U.S. EPA, 1995). When polluted stormwater runoff is discharged directly into surface water bodies,
several adverse effects can occur: public health can be threatened from polluted drinking water
sources, food sources, and recreational waters; aquatic habitats can be damaged or destroyed; and
aesthetic values of waterways can decline. Management of stormwater is critical to ensuring the
integrity of valuable surface water resources. An effective approach to managing stormwater and
related impacts is creation of a utility that delivers stormwater management services to a community.
Therefore, the City hereby establishes a stormwater management utility for the following purposes:
A. To determine the necessary level of municipal stormwater management services for the City.
B. To maintain and improve the drainage facilities of the City, to ensure that they perform to design
capacity while using stormwater management practices to meet local, state, and federal water
quality standards.
C. To reduce the damaging effects of uncontrolled and unmanaged stormwater runoff.
D. To support and promote sound stormwater management practices that reduce nonpoint source
pollution, reduce flooding, and enhance area drainage within the City.
E. To support the goals and objectives of the City ordinances addressing stormwater management in
other sections of this Code of Ordinances and to comply with applicable law, including Maine
Department of Environmental Protection stormwater management regulations.
F. Where appropriate, to provide for potential future inclusion of other municipalities in this Utility and
other stormwater funding, planning, and implementation activities.
§ 268-13. Authority and jurisdiction.
A. Under the authority of the Maine Constitution, Article VIII, and Title 30-A M.R.S.A. § 3001, the City
hereby establishes the Bangor Stormwater Utility as a program comprised of staff from the City's
Engineering, Public Works, Sewer, and other divisions to provide stormwater management
programs, services, systems, and facilities of the City. The Director of Public Services shall carry out
the responsibilities of the Utility.
B. The Utility or its designee is authorized to assess and collect service fees from all persons and
entities owning land within the municipality that benefit from the services provided by the Utility,
including all persons and entities that own land from which stormwater runoff discharges directly or
indirectly to the stormwater management systems and facilities, streams, and other bodies of water
in the City.
C. The Utility will assume responsibility for providing and managing stormwater management
programs, services, systems, and facilities of the City, including maintaining and improving
stormwater infrastructure and stormwater management practices; providing engineering services
for stormwater management; and collecting Utility fees. The services and systems provided and
managed shall include services and systems on private (i.e. non -City owned) land pursuant to any
agreements or ordinances providing for the same. The Director of Public Services, or his or her
designated representative, is authorized to make recommendations for stormwater management
plans during any required review process for new and/or existing development.
D. The boundaries and jurisdiction of the Utility shall include all areas within the municipal boundaries
of the City of Bangor.
§ 268-14. Definitions.
The definitions contained in Maine's Stormwater Management Law and Regulations (38 M.R.S.A. §
420D; 06-096 CMR Ch. 500 (Oct. 30, 2005), as the same may be amended from time to time, are
incorporated herein by reference. Additional terms used in this article are defined as follows:
CITY -- The city shall mean the City of Bangor.
CREDIT -- A reduction in the amount of a stormwater service fee to an individual property based on
the provision and continuing presence of an effectively maintained and operational on-site SMP that
reduces the Utility's cost of providing services and is approved by the City.
IMPERVIOUS SURFACE -- An area that prevents or impedes the infiltration of stormwater into the soil
as it entered in natural conditions prior to development. Impervious surfaces include, but are not
limited to, rooftops, sidewalks, walkways, patio areas, driveways, parking lots, storage areas,
compacted gravel, sand, or clay surfaces, awnings and other fabric or plastic coverings, and other
surfaces that prevent or impede the natural infiltration of stormwater.
POLLUTION -- The alteration of the physical, chemical or biological properties of any natural waters of
the City of Bangor, or the discharge of any liquid, gaseous, solid or radioactive or other substance into
any such waters in such a way as will or is likely to create a nuisance, or render such water harmful,
detrimental, or injurious to the public health, safety and welfare or to other beneficial uses. Pollutants
include, but are not limited to, nutrients, sediment, temperature, excessively low or high flow, oil, salt,
and heavy metals.
RATE PAYER -- A person or entity responsible for paying a stormwater service fee.
STORMWATER -- Precipitation, surface runoff and drainage, and paths taken by such water.
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STORMWATER MANAGEMENT PRACTICES (SMP) -- Stormwater management practices, or SMPs, are
stormwater management programs, services, systems, and facilities, including structural SMPs and
administrative, engineering, operational, regulatory, and capital improvement activities and functions,
plus all other activities and functions necessary to support the provision of such programs, services,
systems, and facilities.
STORMWATER SERVICE FEE -- Stormwater service fee shall mean the periodic service fee imposed
pursuant to this article for the purpose of funding costs related to stormwater management practices.
STORMWATER SERVICE FEE SCHEDULE -- The schedule approved by the City Council identifying the
specific fee structure and formulas upon which stormwater service fees and credits will be based.
STORMWATER SYSTEM -- The stormwater system shall mean and include stormwater and flood
control devices, structures, conveyances, facilities or systems, including natural watercourses, streams,
and rivers used wholly or partly to convey or control stormwater or flood water within the City of
Bangor. The stormwater system shall include, without limitation, conveyances (a) for which the City
has assumed maintenance responsibilities, (b) to which the City has made improvements, (c) which
have or may pose a threat to public property because of flooding, or (d) for which the City is
accountable under federal or state regulations governing protection of water quality.
STRUCTURAL STORMWATER MANAGEMENT PRACTICES (Structural SMP) -- Structural stormwater
management practices, or structural SMPs, are those man-made channels, swales, ditches, reservoirs,
ponds, drainage ways, inlets, catch basins, pipes, head walls, storm sewers, wetlands, filtration
systems, plantings, and other physical works, properties, and improvements which transfer, control,
convey or otherwise influence the movement of stormwater runoff and its discharge to and impact
upon receiving waters.
UTILITY -- The program within the City of Bangor, administered by the City Manager or his or her
designee, that is responsible for providing stormwater management practices pursuant to this Article.
§ 268-15. Establishment of stormwater fund.
A. The City Manager shall establish a dedicated stormwater fund in the City budget and an accounting
system for the purpose of managing all funds collected for the purposes and responsibilities of the
Utility. All revenues and receipts of the Utility shall be placed in the stormwater fund, which shall be
separate from all other funds, and only the expenses of the Utility shall be paid by the fund.
B. The Utility and the stormwater fund may also accept loans, state, federal and private grants, and
allocations of funds from the City's general fund or special purpose funds.
C. Stormwater service fees will be set at a rate that covers the costs necessary to carry out the
stormwater management practices approved by the City as necessary to carry out the functions of
the Utility.
D. Expenditure of funds from the stormwater fund is limited to the following:
(1) Operating expenses;
(2) Non-operating expenses, such as equipment and supplies;
(3) Payment on principal and interest on debt obligations;
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(4) Capital investments, including structural SMPs;
(5) Maintenance expenses;
(6) Reserve accounts; and
(7) Others costs of the City's stormwater management program as deemed necessary by the City
Council.
g 268-16. Services provided.
A. For the purposes of operating, maintaining and improving stormwater management practices, the
City owns or has legal access to portions of the system that:
(1) Are located within public streets, easements, and rights-of-way of the jurisdiction; and/or
(2) Are subject to access provisions established by City for the purpose of operating, maintaining,
and/or improving stormwater management practices.
B. Unless otherwise provided by agreement, stormwater management practices located on private
property or non -City public property for which no access provisions have been made shall be
considered the responsibility of the property owner. The city is not responsible for ensuring that
private or other non -City properties meet permit requirements, such as a private property's
Industrial Stormwater Permit.
C. The Utility may provide some or all of the following services in exchange for collecting a
stormwater service fee:
(1) Administer the stormwater management program for the City;
(2) Perform necessary studies and analysis of the service area or potential service area(s);
(3) Acquire, construct, operate, maintain, manage, protect, and enhance stormwater
infrastructure;
(4) Provide mapping of natural and man-made features affecting stormwater management;
(5) Detect and eliminate illicit discharges to the stormwater system;
(6) Periodically inspect properties to determine contribution to municipal stormwater load;
(7) Inventory stormwater management practices employed throughout the City;
(8) Maintain an up-to-date database of residential and non-residential properties in the service
area, runoff contributions of each property to the stormwater system, and charges and
payments for each account;
(9) Determine compliance with applicable local regulations of the stormwater discharges from
parcels contributing to the stormwater system;
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(10) Perform inspections of structural SMPs, both during and after development/construction;
(11) Perform planning and engineering for watershed management and capital improvements;
(12) Recommend and provide advice for updating and revising local comprehensive plans with
respect to stormwater management;
(13) Obtain federal and state permits necessary to conduct its duties;
(14) Obtain and administer grants and loans from public and private sources as authorized by the
City Council;
(15) Receive and track stormwater service fees collected by the City;
(16) Review development plans and provide comment to the Planning and Code Enforcement
Divisions of the City;
(17) Make recommendations regarding acquisition of property, easements and rights-of-way in
critical areas serving as buffers, retention or infiltrating areas, or providing means to gain
access to properties to perform Utility duties.
(18) Educate and inform the public about the impacts of stormwater runoff and the components of
a stormwater management plan; and
(19) Perform any and all other necessary functions in connection with the City's stormwater
management program.
D. The Utility will be responsible for addressing all state and federal water quality and quantity
standards for stormwater required by the City's National Pollutant Discharge Elimination System
(NPDES) municipal separate storm sewer system (MS4) permit. As the City of Bangor is regulated
under Phase II of the NPDES permit program, the Utility will assume responsibility for meeting
federal NPDES permit requirements for the City's MS4 permit, including compliance with the six
federally mandated minimum control measures:
(1) Public education and outreach
(2) Public participation/involvement
(3) Illicit discharge detection and elimination
(4) Construction site runoff control
(5) Post -construction runoff control
(6) Pollution prevention/good housekeeping
§ 268-17. Service area.
The service area of the Utility will include all areas within the municipal boundaries of the City of
Bangor.
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§ 268-18. Stormwater service fees.
A. Rate schedule. The City Council shall, from time to time, establish a schedule of stormwater service
fees of the Utility.
(1) The Utility shall recommend a rate schedule for properties served by the Utility based on the
cost of stormwater management practices to be paid for by the City. The recommendations of
the Utility shall be submitted for approval by the City Council by Council Order. The rate
schedule approved by the City Council shall be designated as the stormwater service fee
schedule. No bills will be issued to rate payers prior to City Council approval of the
stormwater service fee schedule.
(2) Periodic rate studies may be conducted by the Utility. Any revision to the stormwater service
fee must first be approved by Council Order.
B. Calculation of fee. In general, funding for the Utility shall be equitably derived based on methods
that establish a link between a fee and the degree of impact imposed on the stormwater system.
The primary method shall be based on the amount of impervious cover of properties.
(1) In order to minimize administrative burdens and expenses, the City may set a base rate for a
certain number of square feet of impervious cover.
(2) In addition to paying any base rate set in accordance with subsection (A)(3), properties shall
be charged a fee for the area, measured in square feet or multiple thereof, of impervious
surface beyond that covered by the base rate.
(3) Properties that do not discharge stormwater off the property or into or through the
stormwater system and properties with less than 500 square feet of impervious surface shall
not be subject to a fee. An owner of such a property who receives a bill for the stormwater
service fee may submit a request in writing to the Utility that the Utility investigate the
applicability of the stormwater service fee for the property. The City Manager or his or her
designee shall review the service fee and issue a decision, in writing, within 30 days.
Properties that are found to meet the criteria for exemption shall not be charged the
stormwater service fee, and are also entitled to a refund of stormwater service fees previously
paid for a period not to exceed six months. A rate payer may appeal the decision of the
Director or his designee to the Infrastructure Committee of the City Council within 30 days of
the date of the decision. The rate payer may appeal a decision of the Infrastructure
Committee to a court of competent jurisdiction within 30 days of the date of the
Infrastructure Committee decision.
(4) Public streets, sidewalks, and other portions of public rights-of-way shall not be subject to a
fee, given their use by the general public and their role as a part of the City's stormwater
system. This includes any portions of driveways and sidewalk aprons on public rights-of-way.
(5) The Utility shall periodically review all properties in the City to ensure property owners are
being billed for the correct amount of impervious surface area. Upon completion of a periodic
review, if a property's amount of impervious surface area has changed, the Utility will adjust
the property owner's stormwater service fee accordingly to reflect the updated amount of
impervious cover.
C. Responsibility for payment of stormwater service fees shall fall upon the owner of a property.
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D. To the extent that other funding methods are employed by the City to manage stormwater both
within and outside the service area, stormwater service fees shall support and be consistent with
plan review and inspection fees, special fees for services, fees in lieu of regulatory requirements,
impact fees, special assessments, and other fees. Fees collected to fund stormwater management
activities of the Utility can also be supplemented by other revenues available to the City, including
but not limited to state, federal, and private grants or loans and the City's general fund.
§ 268-19. Credits.
A. Purpose. Credits against service charges will be allowed when appropriate to account for mitigation
of stormwater runoff impacts on water quality. Credits against service charges may be granted for
properties providing on-site stormwater management practices, provided that such practices meet
performance standards specified under Maine's Stormwater Management Law and regulations as
well as any stormwater management performance standards imposed by the City.
B. Standards. The City Council, by Order, shall from time to time establish a schedule for credit
standards. The primary factors taken into consideration shall be the amount of impervious surface
area treated and the effectiveness of the treatment method at reducing the quantity of or
increasing the water quality of stormwater runoff to the Stormwater System.
C. Application.
1. To qualify for credits, a property owner must complete a stormwater service fee credit
application and submit it to the Utility.
2. It is the responsibility of the properly owner to apply for a credit, and to provide such
additional substantiating information as the Utility requires. The Utility may require the
applicant to submit a site plan, design calculations, as -built drawings, and/or other data.
Should the Utility deem it necessary, it may require certain substantiating data to be signed
and sealed by a professional engineer.
3. The Utility shall not be responsible for initiating applications, performing engineering
calculations, or otherwise assisting with the preparation of credit applications.
4. The Utility will review credit applications within four weeks after a complete application is
submitted. If approved, the credit will be applied for the billing cycle in which it was received
complete by the Engineering Department.
D. Maximum credit. The Council may set by Council Order a maximum credit that can be received.
The cap on the credit amount recognizes the principle that all properties that contribute to the
stormwater system should pay for that portion of the stormwater service fee that goes toward
maintaining the stormwater system, monitoring water quality, and preventing illicit discharges, and
that no stormwater management practice is completely effective in removing the adverse effects of
stormwater. In accordance with § 268-18(8)(3), however, this maximum credit shall not apply to
any property that does not discharge stormwater off the properly.
E. Maintenance. The property owner must submit a maintenance plan and annual documentation on
all structural controls and non-structural activities that serve as the basis for a credit. A post-
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construction stormwater maintenance plan submitted in accordance with Chapter 268 of the
Bangor City Code may, upon approval of the Utility, fulfill the maintenance plan requirement. If
maintenance is performed by the City at the City's expense, a partial credit may be given at the
discretion of the City. A credit may be reduced or revoked at any time that it is determined by the
Utility that the qualified control structures or qualified control programs are not performing
adequately or are not being maintained to function as designed.
F. Inspection. The City maintains the right to inspect the property at the time of credit application and
at any time that the site is receiving credit to determine credit applicability. Failure to allow
inspection may result in revocation of all or part of the credit.
G. Change in credit system. If the City changes its method of calculating credits, resulting in a change
in the amount of credit a property received, a property already receiving credit which would receive
a lower amount of credit under the new method shall continue to receive its original amount of
credit for a grace period of two years. The new credit amount shall apply in the third and
subsequent years.
§ 268-20. Fee collection schedule.
Stormwater service fees shall be billed quarterly. To minimize administrative costs, notification and
collection of stormwater utility fees shall be coordinated, to the extent possible, with the collection of
sewer fees. A rate payer shall have 30 days from receipt of a stormwater service fee bill to make
payment. Interest shall be charged on delinquent accounts after 30 days at a rate equal to the
prevailing interest rate for overdue property taxes in the City of Bangor, as may be amended from time
to time by the City Council.
§ 268-21. Right to enforcement and violations.
A. The city Manager, or his or her authorized designee, is the enforcement authority who shall
administer, implement, and enforce the provisions of this article.
B. Delinquent fees.
(1) Any rate payer that fails to pay a stormwater service fee when due shall be responsible for:
the amount of the unpaid service fee; interest on the unpaid amount at a rate equal to the
prevailing interest rate for overdue property taxes in the City of Bangor, as may be amended
from time to time by the City Council; attomeys' fees and other costs of collection. Delinquent
amounts may be collected by a civil action against the person.
(2) A rate payer may request review of the amount of the service fee imposed on such rate payer
by written request to the Utility within 30 days of the date the rate payer receives a service
fee bill. The Utility shall review the service fee and issue a decision, in writing, within 30 days.
The rate payer may appeal a decision to a court of competent jurisdiction within 30 days of
the date of the decision.
§ 268-22. Limitation of liability.
Floods from stormwater may occasionally occur which exceed the capacity of the storm drainage
facilities constructed, operated, or maintained by funds made available under this chapter. This chapter
shall not be interpreted to mean that property subject to the fees and charges established herein will
be free from stormwater flooding or flood damage, or that stormwater systems capable of handling all
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storm events can be cost-effectively constructed, operated or maintained. Therefore the following
limitations on liability are set forth:
A. It is the express intent of the City that this stormwater utility ordinance will protect the public
health, safety and welfare of properties and persons in general. However, this ordinance does not
create any special duty or relationship with any individual person or specific property either within
or outside the jurisdiction of the Utility.
B. The City shall not be held liable for flood damage or assessing and removing pollution sources, and
reserves the right to assert all available immunities and defenses in any action seeking monetary
compensation from the City or its officers, agents or employees for alleged damages arising from
alleged failure or breach of duties or relationship as may now exist or hereafter be created.
C. The issuance of any permit, plan approval or inspection shall not constitute a warranty, express or
implied, nor shall it afford the basis for any action seeking the imposition of monetary damages
against the City or its officers, employees or agents.
D. Operation of stormwater systems located on private property or public property not owned by the
City of Bangor and for which there has been no separate agreement made with the City for
operation, maintenance and/or improvements of the system by the City shall be the legal
responsibility of the property owner, except as may be required by the laws of the State of Maine
and the United States of America.
§ 268-23. Severability.
Each section of this ordinance is severable from all other sections. If any part of this ordinance is
deemed invalid by a court or competent jurisdiction, the remaining portions of the ordinance shall not
be affected and shall continue in full force. Whenever this ordinance conflicts with any other ordinance
of the City, State of Maine, or federal government, the stricter standard shall apply, except as limited
by state or federal law.
§ 268-24. Appikability.
This ordinance and the fees, obligations and requirements identified herein shall apply to all use of and
benefit from the stormwater system occurring on or after April 1, 2013. All persons owning land within
the municipality that benefit from the services provided by the Utility shall be subject to service fees
for their use of the stormwater system occurring on or after April 1, 2013.
IN CITY COUNCIL
April 9, 2012
First Reading and Referral to the
Infrastructure Committee Meeting
on April 17, 2012 at 5:OO p.m.
Zoe? 10&1
APO
IN CITY COUNCIL
May 30, 2012
Motion made and seconded for passage
Vote: 8-1
Councilors Voting Yes: Baldacci,
Blanchette, Durgin, Gallant, Gratwick,
Longo, Hawes, Weston
Councilors Voting No: Sprague
Passed
CITY CLPM
ORDINANCE
(TITLE,) Amending Chapter 268, Stormwater, of the
Code of the City of Bangor, By Adding Article II,
Stormwater Utility
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Assigned to Councilor c�-1 kA cit _ C"u