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October 6, 2009 Minutes CITY OF DENTON CITY COUNCIL MINUTES October 6, 2009 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, October 6, 2009 at 5:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Heggins, Council Member Mulroy, and Council Member Watts. ABSENT: None. 1. Receive training on the Granicus voting system in the City Council Chambers. Council and staff moved to the Council Chambers at 4:05 p.m.to receive training on the Granicus voting system and returned to the Work Session at 4:50 p.m. 2. Requests for clarification of agenda items listed on the agenda for October 6, 2009. Mayor Burroughs stated that Consent Agenda Item 3C dealt with an annual bid award for heavy equipment. He asked about how the bids were awarded in terms of lowest bidder and the 5% local preference. Tom Shaw, Purchasing Agent, stated that the 5% local preference was arbitrary if awarded and was based on economic contributions. The bid specification indicated that if a bidder wanted to be considered for the 5% preference, he needed to supply the requested information. In this case, the bidder that received the award, provided that information while the other bidders did not. Those that did not supply that information did not give a justification. Mayor Burroughs stated that at some point he would like review the criteria for economic contributions. Shaw stated that a past council had requested that whenever the local preference applied, staff was to bring that item to Council with an ordinance showing the preference. Mayor Burroughs stated that a second issue dealt with an award not going to the lowest bidder. Shaw stated in that award, the bidder did not meet the specifications and quoted different specifications for the items. Staff reviewed the items side by side and determined that the bidder had failed to meet the required specifications. 3. Receive a report, hold a discussion and give staff direction regarding the 2010 City Council meeting schedule. City Secretary Walters presented the draft schedule to the Council. Consensus of the Council was to proceed with the schedule as presented. 4. Receive a briefing and hold a discussion regarding Texas annexation procedures in accordance with Texas Local Government Code. The briefing and discussion will include City of Denton City Council Minutes October 6, 2009 Page 2 the requirements of (1) a 3-year Annexation Plan; (2) an Inventory of Services and Facilities; (3) a 2½-year Service Plan; and (4) Development Agreement for land appraised for agricultural land use. Mark Cunningham, Director of Planning and Development, stated that on September 1, 2009 Council directed staff to proceed with the process of annexing 18 areas totaling approximately 9,035 acres of land. The 18 areas were identified as PAA1, PAA2S, PAA3, PAA4, and DH1-14. DH7 and 12 contain 348 and 382 separate tracts of land with one or more residential dwellings while DH9 contained 99 such tracts. These tracts would need to be included in a 3-year Annexation Plan. The purpose of the Plan would be to clearly state the City's intent with respect to future involuntary annexations. These annexations may not occur before the 3rd anniversary of the date the Annexation Plan was adopted. Written notice within 90 days after the date the Annexation Plan was adopted must be given to each property owner in the affected area, each public entity or private entity that provided services in the area, each railroad company that served the municipality and the DISD. The Annexation Plan must be posted and maintained on the City’s Internet website until the date the areas were annexed. The annexation of DH7, 9, and strd 12 must be completed before the 31 day after the 3 anniversary of the date the area was included in the Annexation Plan. City Manager Campbell stated that once an area was in the Plan for 3 years, it had to be annexed within 30 days after the 3 years or lose the opportunity for annexation for 5 years. Cunningham stated that some procedures would stay the time during the annexation period such as legal action. This only applied to the areas in the annexation plan. Mayor Pro Tem Kamp stated that assuming everything would be in place, could the public hearings be done during the three year period. Cunningham replied that all that would have to be done after the 3 year period would be the actual annexation in that 30 day period. Areas outside the annexation plan would have to be annexed within 90 days after the first reading. Mayor Burroughs asked if the first reading were completed but nothing more in the process, what would happen. Cunningham stated that the annexation process would have to be started over but there would be not delays such as the five year delay. As part of the process, the City would have to compile a comprehensive inventory of services and facilities provided by public or private entities in area proposed for annexation. This would be done after adoption of the Annexation Plan. A written request would also have to be sent to all public and private service providers indicating a list of services provided and the method of service delivery. The inventory had to address utilities, roads, engineering reports, a summary of capital, operational and maintenance expenditures for that infrastructure. Police, fire and emergency medical services must provide an average dispatch and delivery time, a schedule of equipment including vehicles, a staffing schedule that disclosed certification and training levels of personnel. Public or private entities must provide the information no later than 90 days after the date of the request. The City must complete the City of Denton City Council Minutes October 6, 2009 Page 3 inventory within 60 days. The City could monitor the services provided in an area proposed for annexation and verify that the services were being provided. Service Plan - by the end of the 9th month the City must have completed a service plan which would address how to provide full municipal services to the annexed areas. Services must be provided within 2 1/2 years after the effective date of the annexation. The service plan may not required the creation of another political subdivision, require a landowner in the area to fund the capital improvement, provide services in the area in an manner that would have the effect of reducing by more than a negligible amount the level of fire, police protection or EMS provided within the city municipality before annexation. If the area annexed had a level of service lower than that which was provided within the city boundaries before annexation, the Service Plan must provide a comparable level of services. If the annexed area had a level of services, infrastructure, and infrastructure maintenance that was equal to that which was provided within the city boundaries before annexation, the Service Plan must maintain that same level of services. Council Member Engelbrecht asked who determined the area for comparison in the city. Cunningham stated that the Local Government Code did not specifically say but staff felt it would be best to use land use, topography, and population. If the annexed area were a rural area it would be treated the same as another rural area. The Service Plan was a contract and not subject to amendment or repeal except if done through a public hearing. The Plan could be amended but the standards could not be lowered. An amended service plan must provide for services that would be comparable to or better than those established in the Service Plan before amendment. If something changed in the 3 year process the Service Plan could be upgraded but the standards could not be lowered. Immediate Services – police, fire, EMS, solid waste collection and the operation and maintenance of water and wastewater facilities, operation and maintenance of roads and streets, operation and maintenance of parks, playgrounds, and swimming pools were services which had to be provided on the effective date of the annexation. Required Negotiations – The city had to negotiate with the property owners of the area included in a 3-year Annexation Plan for the provision of services. If the residents did not agree with the service plan, the Denton County Commissioners Court would select 5 representatives to negotiate with the City for the provision of services. If no agreement could be reached through negotiations, the issue would go before an arbitrator. If the City did not agree with the decision of the arbitrator, it would have to wait 5 years from date of the decision before annexing the area. Development Agreement - if areas proposed to be annexed were assessed as agricultural use, wildlife or timberland harvest, the City would have to offer an agreement before annexing. The agreement could not extend beyond 15 years and allowed for extensions but not longer than 45 years. Mayor Burroughs stated that the City did those types of agreements long before the legislature provided for them. City of Denton City Council Minutes October 6, 2009 Page 4 Cunningham continued that once an agreement was reached, if the property owner filed any type of subdivision plan or development agreement, the agreement would be void and the City could proceed with a voluntary annexation. The development agreement was not a permit under the Vested Rights Act. The upcoming 2010 census plus the proposed annexations will likely cause the redrawing of the council districts. It will be necessary to get the annexations completed so the new city boundaries would be established before the next city council election. He noted that a family farm meant areas assessed by the Appraisal District for tax purposes as agricultural land use. Council Member Gregory requested information on determining all the costs for the City to fulfill the requirements for the proposed annexations. Cunningham noted that there would be a meeting later in the month with various departments to determine those costs. Council Member Engelbrecht stated that a careful analysis would have to be done of personnel needed for police and fire. Cunningham stated that all the research and ground work would be done up front and staff would bring back from a budgetary prospective a realistic picture of the challenges for the annexations. 5. Receive a report, hold a discussion and give staff direction regarding the release of the City of Denton Extra Territorial Jurisdiction (ETJ) to the City of Pilot Point. Howard Martin, Assistant City Manager, stated that the City Manager of Pilot Point had requested a meeting to discuss potential overlapping of existing City of Denton ETJ with Pilot Point’s ETJ now that Pilot Point was transitioning to a home rule city. Pilot Point was interested in Denton releasing ETJ in areas around Pilot Point based on Denton’s intent to provide services to the area. This area was generally north of FM 455 and east of Lake Ray Roberts. Points to consider with the request included: (1) a general policy of “no net loss of ETJ”, (2) the area was beyond the current water and wastewater service boundaries for Denton, (3) the area was outside any meaningful planning boundary in the Denton Comprehensive Plan, (4) the City owned park property and recreational facilities in the area of Lake Ray Roberts, (5) in some areas, Pilot Point was already providing water service to areas outside the existing city limits, and (6) existing Denton boundaries in this area were difficult to identify. Staff was recommending releasing a portion of Denton’s ETJ area north of FM 455 and east of Lake Ray Roberts. If Council agreed with that proposal, staff would move forward to work with Pilot Point and develop a mutual agreement for Council to consider. Mayor Pro Tem Kamp questioned what would be the net loss. Martin replied that there would be about 1000 acres of overlap but the key consideration was the park facility outside Denton's ETJ. Staff would work with Pilot Point so that the boundaries around the park area would be in Denton’s ETJ. Mayor Pro Tem Kamp stated that there were no future plans for water/wastewater in that area. City of Denton City Council Minutes October 6, 2009 Page 5 Martin stated that there were no plans to go outside the City’s established CCN. Consensus of the Council was to proceed as recommended by staff. 6. Receive a briefing and hold a discussion regarding the purpose and goals of the Neighborhood Empowerment Summit to be held Saturday, October 24, 2009 at the Civic Center, 321 E. McKinney. Katia Boykin, Senior Planner, stated that a neighborhood empowerment summit was a first initiative in community planning. The purpose of a summit was to provide education, leadership development and civic empowerment to community leaders, grassroots organizers, and the citizens at large. The summit was designed to equip residents in performing the tasks necessary to be their own agent to effect positive change in their respective neighborhoods. Overall CDNPP issues included (1) neighborhood organizations could have a lack of purpose, vision, mission and leadership; (2) the City could lack credibility with neighborhood organizations, (3) new employees might have inadequate knowledge of city functions, and (4) budgetary limitations. The workshop would assist in recruiting and maintaining members; community building; planning neighborhood projects; provide nuts and bolts of an effective neighborhood watch program; assist with neighborhoods influencing decision-making; help provide for grants and grassroots fundraising; and show that youth and seniors were assets in community building. Some expected outcomes of the summit included develop neighborhood partnerships and/or collaborations; cultivate city credibility; and assist in assembling a complete neighborhood association, Homeowner’s Association and Tenant Association database. Post summit activities and future expectations were also discussed. The Council went into Closed Session at 6:10 p.m. 1. Closed Meeting: A. Consultation with Attorney - Under Texas Government Code Section 551.071; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. 1. Discuss, deliberate, and receive information from staff and provide staff with direction regarding the valuation and possible acquisition of fee title to a 15.85 acre tract of land situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, said tract to be acquired for municipal purposes. Consultation with the City’s attorneys regarding legal issues associated with the acquisition of fee title to the 15.85 acre tract, where a public discussion of these legal matters would conflict with the duty of the City’s attorneys to the City Council under the Texas Rules of Disciplinary Conduct of the State Bar of Texas, or would jeopardize the City’s legal position in any administrative proceedings or potential litigation. B. Deliberations regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; Consultation with Attorneys - Under Texas Government Code, Section 551.071. City of Denton City Council Minutes October 6, 2009 Page 6 Council Member Gregory motioned, Council Member Mulroy seconded that it was appropriate for Council to meet in Closed Session under the Public Power Competitive Exception. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. 1. Discuss and deliberate the status of pending mediation efforts regarding several public power issues involved with the Texas Municipal Power Agency litigation described below and receive a briefing from a City representative. Receive a briefing and status report from the City’s attorneys regarding the litigation entitled Ex Parte Texas Municipal Power Agency, Cause No. D-1-GN-08-003426, pending in the 126th Judicial District Court in and for Travis County, Texas; as well as Ex Parte Texas Municipal Power Agency - II, Cause No.D-1-GN-08-003693, in the 261st Judicial District Court in and for Travis County, Texas; and the Texas Municipal Power Agency, Plaintiff v. City of Bryan, Texas, Defendant, Counter-Plaintiff and Third-Party Plaintiff; v. City of Denton, Texas and City of Garland, Texas, Third- Party Defendants, Cause No. 28169, now pending in the 506th Judicial District Court in and for Grimes County, Texas. Discuss and deliberate and provide the attorneys with direction. A public discussion of these legal matters would conflict with the duty of the City’s attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. C. Consultation with Attorneys - Under Texas Government Code, Section 551.071. 1. Receive a legal briefing from the City’s attorneys and discuss legal issues regarding the request for a Specific Use Permit to allow for gas well drilling and production on property located within Town Center of the Rayzor Ranch Overlay District with a base zoning of Neighborhood Residential Mixed Use (NRMU), the approximately 3 acre site located on the west side of Bonnie Brae Street, north of Scripture Street. D. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorney - Under Texas Government Code Section 551.071. 1. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the grant of property within the Denton Rail Corridor to the DART, the limits of said corridor being all that certain lot, tract or parcel of land described in that certain Quitclaim Deed from Missouri Pacific Railroad Company to the City of Denton, Texas dated August 9, 1993, and filed on August 24, 1993, as Clerk No 93-R0058485 in the Real Property Records of Denton County, Texas; and also being that same property described in that certain Correction Quitclaim Deed, dated June 1, 2001 and filed for record in the Real Property Records of Denton County, Texas as Volume 4857, Page 020211 where such deliberation in an open meeting would have a detrimental effect on the position of the City Council in negotiations with DCTA. Consultation with the City’s attorneys regarding legal issues associated with the granting of said property above described where a public discussion of these legal matters would clearly conflict with the duty of the City’s attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton City Council Minutes October 6, 2009 Page 7 Regular meeting of the Denton City Council on October 6, 2009 in the City Council Chambers. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Heggins, Council Member Mulroy, and Council Member Watts. ABSENT: None. 1.PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag - I pledge allegiance to thee, Texas, one state under God, one and indivisible." The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2.PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1.Fire Prevention Week 2.National Arts and Humanities Month Mayor Burroughs presented proclamations for Fire Prevention Week and National Arts and Humanities Month. 3.CONSENT AGENDA Mayor Burroughs indicated that Speaker Cards were submitted for the Consent Agenda. Bob Clifton spoke in opposition to Items E, K, and O. Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. Approved the Parks, Recreation and Beautification Board’s recommendation. A. Consider approval of the Parks, Recreation and Beautification Board’s recommendation to select artist George Cadell’s sculpture Harmony as public art for the City of Denton. The sculpture will cost $27,900 and will be paid from the 2010 Hotel/Motel Occupancy Tax (HOT) funds. The Parks, Recreation and Beautification Board recommends approval (4-0). City of Denton City Council Minutes October 6, 2009 Page 8 Approved the Parks, Recreation and Beautification Board's recommendation. B. Consider approval of the Parks, Recreation and Beautification Board’s recommendation to select two black and white Flowing Light Images by artist Carlotta Corpron as public art for the City of Denton. The photographs will be funded from a preexisting trust account designated for art in the Denton Municipal Complex (DMC), which is currently named City Hall East. The Parks, Recreation and Beautification Board recommends approval (4-0). Ordinance 2009-242 C. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the rental of heavy equipment for various City departments; providing for the expenditure of funds therefor; and providing an effective date (Bid 4373-Annual Contract for Rental of Heavy Equipment awarded to the lowest responsible bidder meeting specification for each item in the annual estimated amount of $750,000). Ordinance 2009-243 D. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of soil, sand, aggregate and lime for various City departments; providing for the expenditure of funds therefor; and providing an effective date (Bid 4375- Annual Contract for Soil, Sand, Aggregate and Lime awarded to the lowest responsible bidder meeting specification for each item in the annual estimated amount of $2,000,000). Ordinance 2009-244 E. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the installation of roadway pavement markings for the City of Denton Traffic Department; providing for the expenditure of funds therefor; and providing an effective date (Bid 4383-Annual Contract for Installation Roadway Pavement Markings awarded to Striping Plus, Inc. in the annual estimated amount of $204,450). Ordinance 2009-245 F. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a purchase order through the Buy Board contract #281-07 for the acquisition of a bucket truck with aerial device for the City of Denton Electric Substation department by way of an Interlocal Agreement with the City of Denton; and providing an effective date (File 4413-Purchase of Bucket Truck With Aerial Device awarded to Southwest International Trucks in the amount of $134,503). The Public Utilities Board recommends approval (4-0). Ordinance 2009-246 G. Consider adoption of an ordinance of the City of Denton, Texas approving change order seven and amendment to a professional service agreement between the City of Denton, Texas and Innovative Transportation Solutions, Inc. dated March 5, 2002, extending said agreement, and authorizing and ratifying the expenditure of funds for work to be performed; authorizing the City Manager or his designee to execute the change order on behalf of the City and expend funds authorized by the change order; and providing for an effective date. (File 4155-in an amount not to exceed $126,000). The Mobility Committee recommends approval (2-0). City of Denton City Council Minutes October 6, 2009 Page 9 Ordinance 2009-247 H. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of a second Analog SMARTNET Simulcast System from Motorola, Inc., which is available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas local government code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 4404-Purchase of Motorola Two Site Simulcast System for Denton Municipal Electric in the amount of $2,615,550). Ordinance 2009-248 I. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Fort Worth Drive Substation for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 4356-awarded to the lowest responsible bidder meeting specification, MasTec North America, Inc. in the amount of $872,000). The Public Utilities Board recommends approval (5-0). Ordinance 2009-249 J. Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of tire repair and tire changing services for various City of Denton departments; providing for the expenditure of funds therefor; and providing an effective date (Bid 4385-Contract for Tire Repair and Tire Changing awarded to Briscoe Tire Inc. in the annual estimated amount of $200,000). Ordinance 2009-250 K. Consider an ordinance of the City of Denton, Texas to declare the intent to reimburse expenditures from the unreserved fund balance of the General Fund with certificates of obligation with an aggregate maximum principal amount equal to $1,579,614 so that General Fund vehicles and equipment may be purchased, and providing an effective date Ordinance 2009-251 L. Consider adoption of an ordinance of the City of Denton, Texas amending Section 22-32 of the Code of Ordinances of the City of Denton relating to the possession and consumption of alcohol in Quakertown Park and buildings situated therein; providing a severability clause, a penalty clause and an effective date. The Parks, Recreation and Beautification recommends approval (4-0). Ordinance 2009-252 M. Consider adoption of an ordinance approving the "Amendment to Municipal Maintenance Agreement for the furnishing, installing, operation and maintenance of cameras on state highway rights-of-way to monitor compliance with traffic control signals" entered into by and between the City of Denton, Texas and the State of Texas, acting by and through its Texas Department of Transportation; providing the City Manager with authority to execute said agreement and to carry out the rights and duties of the City regarding said agreement; and providing an effective date. City of Denton City Council Minutes October 6, 2009 Page 10 Ordinance 2009-253 N. Consider adoption of an ordinance approving the Municipal Maintenance Agreement regarding the Assistance of the State of Texas in the maintenance and operation of state highways within the city limits of the City of Denton, Texas by and between the City of Denton, Texas and the State of Texas, acting by and through its Texas Department of Transportation; providing the City Manager authority to carry out the rights and duties of the City regarding said agreement; and providing an effective date. (traffic control maintenance) Ordinance 2009-254 O. Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a third amendment to agreement for professional legal services with the law firm of Walker Sewell, LLC for professional legal services relating to litigation styled: ex parte Texas Municipal Power Agency, Cause No. D-1-GN- 08-003426, pending in the 126th Judicial District Court in and for Travis County, Texas; ex parte Texas Municipal Power Agency - II, Cause No. D-1-GN-08-3693, pending in the 261st Judicial District Court in and for Travis County; and the litigation styled Texas Municipal Power Agency, Plaintiff vs. City of Bryan, Texas, Defendant, Counter-Plaintiff and Third-Party Plaintiff; vs. City of Denton, Texas and the City of Garland, Texas, Third- Party Defendants, Cause No. 28169, pending in the 506th Judicial District Court in and for Grimes County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (5-0). Ordinance 2009-255 P. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a professional and personal services agreement with KEMA, Inc., a corporation for examining for TRE/NERC regulatory compliance of the Denton Municipal Electric System; authorizing the expenditure of funds therefor in the amount not to exceed $169,580; and providing an effective date (File No. 4412). The Public Utilities Board recommends approval (5-0). Approved the minutes noted. Q. Consider approval of the minutes of: August 18, 2009 September 1, 2009 September 2, 2009 September 15, 2009 Resolution 2009-036 R. Consider approval of a resolution approving the recommendation (2-0) of the Mobility Committee appointing Council Member Gregory as the City’s representative to the Tarrant Regional Transportation Coalition (TRTC); and providing for an effective date. 4. PUBLIC HEARINGS A. Hold a public hearing and consider adoption of an ordinance granting approval of the use of a portion of Carl Young, Sr. Park and Woodrow Lane Park for the purpose of an underground public utility easement in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for a public utility easement; and providing an effective date. The Parks, Recreation and Beautification Board recommends approval (4-0.) City of Denton City Council Minutes October 6, 2009 Page 11 Bob Tickner, Parks Plan Administrator, stated Denton Municipal Utilities had requested use of a portion of parkland in the Carl Young, Sr. Park and Woodrow Lane Park to replace an aging existing sewer line. Under Chapter 26 of the Texas Parks and Wildlife Code, a public hearing must be held to determine that there was no feasible and prudent alternative to the use or taking of the land. Staff plus the Parks Board had recommended approval. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed public hearing. The following ordinance was considered: NO. 2009-256 AN ORDINANCE GRANTING APPROVAL OF THE USE OF A PORTION OF CARL YOUNG, SR. PARK AND WOODROW LANE PARK FOR THE PURPOSE OF AN UNDERGROUND PUBLIC UTILITY EASEMENT IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVIDING FOR A PUBLIC UTILITY EASEMENT; AND PROVIDING AN EFFECTIVE DATE Council Member Mulroy motioned, Council Member Heggins seconded to adopt the ordinance. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. 5.ITEMS FOR INDIVIDUAL CONSIDERATION A. Tabled - Consider adoption of an ordinance of the City of Denton, Texas approving an interlocal cooperation agreement and granting an easement to the DCTA on the Denton Branch Rail Trail for the purpose of building a public commuter rail line; and declaring an effective date. The Mobility Committee recommends approval (3-0). (Tabled from March 3, 2009) This item remained on the table. B. Tabled - Consider adoption of an ordinance of the City of Denton, Texas approving a Specific Use Permit to allow for gas well drilling and production on property on a three (3) acre site on the west side of Bonnie Brae Street, north of Scripture Street, within the Town Center of the Rayzor Ranch Overlay District with a base zoning of Neighborhood Residential Mixed Use (NRMU); and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date. (S09-0006) The Planning and Zoning Commission recommends approval (4-0). (Tabled from July 21, 2009) City of Denton City Council Minutes October 6, 2009 Page 12 Mayor Pro Tem Kamp motioned, Council Member Mulroy seconded to remove the item from the table. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. Mark Cunningham, Director of Planning and Development, stated that this request was for a specific use permit for gas well drilling in the proposed Town Center of Rayzor Ranch. The current zoning was NRMU and gas wells were permitted in the zoning category with a specific use permit. The proposal had been reviewed by the Development Review Committee and the Planning and Zoning Commission with recommendations for approval subject to conditions. The conditions had changed since the printing of the agenda materials. The current conditions were developed by staff after reviewing the noise level study and management plan recently submitted by the applicant. The conditions included (1) approval of the SUP would not grant any waiver to the overlay conditions approved with Ordinance No. 2008-284; (2) the operator of the gas wells shall install a limestone screening and security fence around the site with an access gate on the northern wall, as well as a type “D” vegetative buffer on the portion of the site along Bonnie Brae Road, (3) the screening fence and type “D” buffer shall be constructed within 30 days after drilling operations were complete or planted during the first dormant season after drilling if approved by the City Landscape Administrator, (4) if screening or landscaping was damaged or removed during fracturing or refracturing operations, the operator of the gas well would be responsible for replacing the damaged or removed portions of the landscaping, (5) the site plan submitted shall guide development of gas wells on the site, (6) the maximum permissible ambient noise level shall not exceed 79 db as measured 300 feet from the drill site, (7) if the operator was in compliance with the approve noise plan and a violation occurred, a 24 hour of notice to correct would be issued before a citation was issued with additional extensions granted if the source could not be identified, (8) the operator shall instruct and ensure that employees involved in the operation of the gas wells park on site only, (9) prior to drilling, a sound barrier would be installed along the perimeter of the 3-acre site at a minimum of 14 feet high except for a 30' security gate and fence, (10) the operator would monitor the site daily to ensure noise levels did not exceed 79 db as measured 300 feet from the boundary of the drill site, (11) the operator shall install and utilize an atmosphere monitor during drilling to detect the accumulation of any hydrocarbon gases at or above the lower explosive limit, (12) ingress/egress in and out of the gas well site would be restricted to the hours of 8:00 am to 5:00 p.m. Monday through Friday and 11:00 am to 5:00 p.m. on Saturdays and Sundays, (13) drilling, fracturing of all the five gas wells will be completed within two years from the date actual drilling was started on the first well, (14) gas well operations will incorporate the best practices recommended in the letter dated July 8, 2009, (15) violation of above conditions will be cause for revocation of the SUP, (16) the operator shall use a closed loop mud system during drilling operations, (17) directional lights shall be optimized to minimize disturbance of residential neighbors to the east of the site, and (18) flaring will be done 8:00 am-5:00 pm Monday through Friday and 11:00 am to 5:00 pm on Saturdays and Sundays. Jerry Drake, Deputy City Attorney, stated that an additional condition was that the operator would utilize best efforts to obtain access to and from the gas well site from the west, through the Allegiance property, to the proximity of IH-35 and Scripture Road and the operator would promptly notify the city of its inability to obtain such access. City of Denton City Council Minutes October 6, 2009 Page 13 Council Member Gregory asked that the condition regarding the air quality monitoring be read again. He asked if some type of notification was required if the level went above the acceptable limit. Cunningham stated that the operator would have to cease operation until the reading went below that level. Council Member Gregory asked if a condition could be added to specify some type of notification. Drake stated that language could be added to cease operations or notify the City when that limit was reached. Council Member Gregory felt that such language was needed but he wanted to discuss with Range if the technology was available for continuous testing and notification. Mayor Burroughs asked if the term should be “accumulation of hydrocarbon gases” or the “emission of hydrocarbon gases”. Drake replied that Mr. Poole from Range would be better equipped to answer that question. Council Member Watts questioned the condition dealing with a violation of the noise management plan in conjunction with the last condition dealing with violation of any of the conditions would be cause for revocation of the SUP. He felt those two conditions might be in conflict because one issued a citation and the other was cause for revocation. He questioned what kind of monitoring mechanism would be in place such as a complaint driven procedure and who would determine whether the SUP was to be revoked. There seemed to be an inconsistency in the violation procedures. Cunningham stated if there was a violation, the City would act in good faith to try to render the violation. The SUP could be revoked but it was not the first option or first action. The operator would be given a chance to correct the violation. Council Member Watts questioned if the flaring noise would automatically exceed the noise limitations and if, so, how that would be rectified. Mayor Pro Tem Kamp asked for the hours for the flaring. Cunningham stated that the flaring hours would be 8:00 a.m.-5:00 p. Monday through Friday and 11:00 a.m.-5:00 p.m. Saturday and Sunday. Mayor Pro Tem Kamp asked about the surface use road through the property. Drake stated that the operators would use their best efforts to obtain access to and from the gas well site from the west, through the Allegiance property, to the proximity of IH-35 and Scripture Road. He noted that the wording of the violation could be changed to read “violation could be cause for prosecution or revocation of the SUP”. In terms reaching the lower limit of the City of Denton City Council Minutes October 6, 2009 Page 14 hydrocarbons, he noted that Council could add “operator shall _________ within ____ hours of receiving such detection”. Mayor Burroughs requested an addition to Condition (19) indicating that failure to obtain the access shall be reported promptly to the City prior to the institution of drilling operations. Council Member Mulroy suggested using the proximity of IH-35 and Scripture Road instead of just IH-35. He also suggested changing the wording regarding the hydrocarbons reaching the unacceptable limit to notify the Fire Department to abate the condition within 48 hours or cease operation. Council Member Watts requested that during the public comments staff prepare the conditions for Council. Council Member Engelbrecht requested that the height specification of the screening fence be set at a minimum of 8'. He did not like the idea of waiting 24 hours to abate the condition of being over the limit for hydrocarbons. He suggested that the Fire Department be notified and drilling be shut down immediately if over the limit. Council Member Mulroy stated that during drilling there might be ancillary emissions and collection of fumes and suggested that the operator be given time to abate it otherwise there might be a disincentive to accurate reporting. Not have an immediate shut down unless there was a major threat. Council Member Gregory expressed a concern that Council did not know enough technical knowledge on the subject to craft wording that was appropriate. City Attorney Burgess stated that staff was taking the concerns expressed by Council and crafting language that was enforceable but language that did not create a situation where it would be impossible for the operator to operate his business. On the operational side it might be necessary to have help to craft language that would be appropriate and legitimate and be in good business practices in this industry. Mayor Pro Tem Kamp stated that the special use permit would be in addition to the Texas Railroad Commission and TCEQ requirements. Council Member Mulroy suggested simplifying the language to trigger notification of the Fire Marshal and the corrective action should be defined by the Fire Marshal’s office. Third party input could then be obtained if necessary. David Poole, Range Production Company, stated that they were disappointed that they were not able to secure an alternate site from Allegiance. They were aware of the conditions imposed and felt that they could conform to those conditions. Mayor Burroughs asked if the accumulation of explosive levels of gases was regulated by the State. City of Denton City Council Minutes October 6, 2009 Page 15 Poole replied not at the level of concern as he understood from the Council. There were some instances during drilling when there may be some gas levels but it was the accumulations at the lower level that would prompt action to remedy the situation. Mayor Burroughs stated that in the drawing of the well sites, it appeared that the wells were towards the center of the site. He questioned if the wells could be moved to the western most edge of the site. Poole felt that the wells would be located in center of site and that they would give up part of the site during the drilling which was on the western side. Mayor Burroughs felt that the more favorable side to push the physical locations of the wells would be to the west. Giving up land on the west would be no good. He suggested within the 3 acre site to move the wells towards the western edge. Mary Patton, Regulatory Manager for Range, stated that the pad site was 3 acres and they were giving up the western one acre back to Allegiance so there would be no room to move the wells to the west. Poole stated that they needed room around the well heads for equipment but would try to move some to the west. Mayor Burroughs stated that even a 50 or 100 foot move would make a difference. Council Member Mulroy requested a scaled site plan to review prior to a vote on the issue. Council Member Heggins asked if there were known health risks for living too close to a drill site. Poole replied that he was not aware of any known health risks. Mayor Pro Tem Kamp stated that Exhibit 6 in the backup materials was the site plan and it showed the wells closer to eastern side than on center. Poole stated that they would try to flip the site but he was not sure how the other areas of Rayzor Ranch would be developed. Council Member Watts asked if Poole knew the decibels of the flaring. Poole stated that he did not know but it was their expectation to comply with the noise limitation to all of the operations inclusive of flaring. They would look for equipment to minimize the noise of the flaring and other options to reduce noise. Council Member Gregory stated that he had previously asked for information from Poole regarding air monitoring but did not recall getting any of that information. He wanted to be sure to follow up on that information and asked for a time line for a follow-up. City of Denton City Council Minutes October 6, 2009 Page 16 Poole apologized to the oversight and stated that he would be glad to commit to a time line to respond and should be able to follow up with the Planning staff within two weeks from today. Council Member Mulroy stated that it was difficult to see the dimensions shown on the site plan. He offered an additional condition that the well bores be located within the western most north south configuration allowable by the permitting process and Railroad Commission. Poole stated that he felt the condition would be to optimize the well heads as far to the west as possible. Council Member Engelbrecht asked about the maximum number of storage tanks with each well and where they would be located. Poole stated that there would be one storage tank per well located that the southwestern corner of the site. Council Member Engelbrecht suggested a condition be added to limit five storage tanks on the site. Additional speakers included: Jake Hendricks, 1014 Hillcrest, Denton, 76201 – opposed Charles Wahlert, 803 Thomas, Denton, 76201 – opposed Andrew Teeter, 1108 Panhandle, Denton, 76201 – opposed David Williams, 819 Stanley, Denton, 76201 – opposed Dean Wynn, 818 N. Bonnie Brae, Denton, 76201 – did not speak but was opposed Davlin Kerekes, 536 Alegre Vista Drive, Denton, 76205 – opposed Elizabeth Clinton, 412 ½ Fry Street, Denton, 76201 – opposed Charles Grand, 1710 Sam Bass Blvd, Denton, 76205 – opposed Stewart Minor, 907 Avenue A, Denton, 76201 – opposed Jason Netek, 1203 Avenue A, Denton, 76201 – opposed Will Wooten, 980 Ranch Road, Denton, 76201 – opposed Jake McClendon, 1006 Alice Street, Denton, 76201 – opposed Katie Trice, 921 N. Carroll Blvd., Denton, 76210 – opposed Bob McFarling, 915 Stanley, Denton – opposed Sammie Haren, 804 Hillcrest, Denton, 76201 – opposed Comment cards were received in opposition from: Steve Friedson and Elise Ridenour, 2044 W. Oak, Denton, 76201 David Wright, 1819 W. Oak, Denton, 76201 Brad Mezei, 1016 Stanley, Denton, 76201 Gena Williams, 819 Stanley, Denton, 76201 Marsha Keffer, 815 Ector, Denton, 767201 Cooper Barner, 1919 Houston, Denton, 76201 Joseph and Heidi Klein, 621 Hillcrest, Denton, 76201 Mayor Burroughs stated that the applicant was allowed a five minute rebuttal. City of Denton City Council Minutes October 6, 2009 Page 17 Poole stated that he would address any issue the Council might have. Council Member Engelbrecht asked what other equipment would be on the site when finished. Poole stated that there would be separators to separate the gas from the water, the tanks that were already mentioned and later in the life of the wells there might be a need for a compressor to put the gas into the pipeline. Mayor Burroughs asked about insurance requirements. Poole stated that they had a bonding requirement with the Railroad Commission to ensure their compliance with all of the Commission’s requirements. They were not required to carry general liability insurance but they did in the area of $50 million Mayor Burroughs asked about the possibility of having a third party monitoring of the downstream water quality. Poole stated that they did not have the right to drill a monitoring water well on someone else’s property. In terms of ground water protection they were under very strict regulations by the TCEQ and had restrictions to cement from the bottom of the well to the top of the pipe to protect ground water. Mayor Burroughs asked what kind of diesel engines would be operating after the wells were drilled. Poole stated that the only diesel engines used would be during the drilling because the rig had diesel engines to operate the drilling rigs. That would be for about 20 days per well. Trucks were also operated by diesel engines during fracking. Council Member Engelbrecht stated that in the event compressors were needed, he would propose that they be operated by electric motors because by that the time sound walls would be gone. Patton stated that this same type of discussion had taken place in Keller and Encana showed that the electric compressor was just as loud as a gas driven engine. Their application did show sound mitigation for a compressor. Council Member Gregory stated that reading the conditions supplied by staff, he noted that #2 would have a minimum 8 foot tall fence, Condition #5 seemed to contradict #19 so it might be best to indicate that Condition #5 followed the layout but with the provision of Condition #19. Council Member Engelbrecht stated that the eight feet provision was attached to Condition #20 and he was not sure that was correct. Council Member Watts questioned that at the time the overlay was submitted there were four gas well sites labeled on that original plan. Cunningham replied correct. City of Denton City Council Minutes October 6, 2009 Page 18 Council Member Watts asked if this particular site was one of the original sites. Cunningham replied correct. Council Member Watts stated that the City had not removed the three other sites from the plan or rejected any of the three other sites. Cunningham replied correct. Council Member Watts stated that they were still viable sites. Cunningham stated that from the staff perspective that was correct. Council Member Watts asked if at the time the plan was submitted, was there a requirement to specify how many well heads on a potential site or just a place holder in the plan for the drill sites. Cunningham stated that there was no specification of well heads. Council Member Mulroy questioned that prior to submission and accepting of the concept plan with the four sites identified, where on the property would the applicant have been allowed to drill by right. Cunningham stated that the overlay was approved in November of 2008 which applied the NRMU zoning. Prior to November 2008 the site was zoned regional center commercial downtown which allowed gas well drilling by right. Council Member Mulroy stated that in the process there were many areas by right in the whole southern section and staff reduced those areas to four locations in the Development Review Committee process. Cunningham replied correct that with the adoption of the Rayzor Ranch concept plan, rather than gas well being allowed anywhere, it was restricted to the four locations noted. Council Member Mulroy stated that the effect of staff's action was to reduce the geographical discretion that the mineral rights owner and developer had to four specific areas and by adding the specific use permit enabled Council to revisit and add on additional conditions. Cunningham stated that the previous zoning district of RCCD would allow for a permit and as long as the developer was in compliance, would have received that permit. The overlay district and specific use permit added two additional layers of review. Council Member Mulroy stated that there would be a higher standard of operation with the specific use permit as opposed to the RCCD zoning. Cunningham replied correct that with the previous zoning there would be no conditions such as the ones suggested at this meeting. City of Denton City Council Minutes October 6, 2009 Page 19 Council Member Mulroy stated that in the development process when Allegiance came into the process with the concept plan, they were agreeable to reduce the well sites to the four locations and the specific use permit requirements. Cunningham replied that was correct as noted in Ordinance 2008-248. Council Member Mulroy stated that Council was not advocating the denial of the right when the reconfiguration was done. Cunningham stated that even though the geographical area was reduced, there were opportunities to obtain drilling rights in the overlay district via the specific use permit. Mayor Burroughs indicated that there was a long term history and a short term history with this property. The short term history dealt with the tabling of the proposal in order to try and accommodate current disapproval of the surrounding neighbors to the location of the site. During the last several weeks the staff, driller and mineral rights owner had been working on trying to find another location on the site which was the reason the item remained on the table for so long. The long term history was that the property was zoned prior to Rayzor Ranch and the current ownership. That zoning allowed wells to be placed anywhere on site without approval, as long as the basics of the Development Code were met. Nothing could have been done about that as it was a matter of right. When the current ownership and the mineral rights owner came before Council with the concept of the Razor Ranch development, they agreed to limit that right to drill anywhere to four sites. Through agreements with the driller, the mineral rights owner and the property owner, not through the city, the site was limited to one. Instead of four drilling sites there was now only one. The City now had one location to consider with the power of a specific use permit. The specific use permit allowed reasonable actions to protect citizens. Council had now added 22 conditions over what was already negotiated. The concerns of the citizens generally centered on safety, traffic, the environment and noise. Council had been addressing each concern. Council would have liked to have the site moved to a better location but could not force them to move it. Barring the movement of well, the Council had the ability to try and put in as many protections as possible on the site. There currently there was a lawsuit between the surface owner and the driller which the City was not involved in but which might have a large impact on the outcome of the issue. The surface owner would like to not have any drilling on the site. Some specific concerns raised included a fear of a lawsuit. That was not the case but the City had to have a legal basis to deny the request. The history of the State of Texas was to favor mineral right owners over surface owners. The conditions suggested addressed as best as possible the noise issue. The traffic issue was constrained but there was the hope to build a gravel road to keep the heavy trucks off the city streets. The closed loop system would eliminate many of the environmental concerns. Air quality, visual barriers and safety had also been addressed as best as possible with the conditions suggested. Council was trying to come to the best conclusion possible. Council Member Gregory stated that when this first came up for a vote, he had voted against tabling the proposal because he was ready to vote against it. As Council worked through the process he found out how diligently all the council members had worked to mitigate concerns. Council was trying to mitigate the proposal and was not trying to regulate it away as that would be illegal. Council was putting appropriate regulations on the proposal to protect the City of Denton City Council Minutes October 6, 2009 Page 20 neighborhood as much as possible. The laws of the State did not work in the City’s favor and Council had to make a decision in the long run that would be in the best interest of the city. Council Member Heggins stated that in order for her to sleep at night, she would be voting her conviction. She would be voting no because the neighbors did not want it. Two of her doctors had signed a petition in opposition and she believed in her doctors. The hospital was in the path of the gas well with sick people there and babies being born there. It had been proven that drilling did cause and produce earthquakes. Council Member Engelbrecht stated that Council was being asked to approve a specific use permit on an industrial use in a residential area. The difficulty for him was that to deny the proposal under the current state law put the city at a tremendous risk. The Flower Mound case referenced was different than this case. It disturbed him greatly that what began as a State law that would allow drilling in fields would now be interpreted to allow drilling in residential neighborhoods. There would be a cost either way to the citizens on the outcome. Council Member Watts stated that this was one of the most difficult decisions he had to make. He really wanted people to come before Council with integrity and did not want them to lay their problems at the Council’s feet. He felt that was what had happened in this situation. There was a right drill when the zoning was RCCD but operator at that time and surface owner came to Council and asked for something to maximize their business potential on this site. In exchange for that, they agreed to limit the drill sites to four sites and Council approved the overlay district with four sites. This site was one of them but it did not mean that this particular site was the only site. Now they say that they want to drill but that they have entered into an agreement to limit the drilling to only this one site. He did not like the way that was done. He understood the law of the mineral state. The driller and the property owner were in a fight because of limiting the drilling to one site. Now he was forced to do something against his conviction because of some other risk. Mayor Pro Tem Kamp stated that she did not want to vote for the proposal even with all the concessions because they had been trying to get everything for the neighborhood. She asked the young people to get in touch with the local State representative and get her attention on the issue and the Council would back them. They had an obligation to uphold what choices they had been given by state law but they did not have a choice. Council Member Mulroy stated that he had retraced the issue and the mineral owner had by rights, access to drilling on the site. Everything downstream from that had been raising the restrictions. As of this evening, 21 restrictions above what the normal permitting process would require had been added to the proposal. There was no latitude on denial since approval of the concept plan. The mineral owner had this by right as far back as could be researched. The end product was a highly restricted drilling proposal. Council was going to implement all restrictions as practical. But the ultimate duty was stewardship and when Council had to weigh the financial risk versus compliance with the law, he had to do that judgment. The following ordinance was considered: City of Denton City Council Minutes October 6, 2009 Page 21 NO. 2009-257 AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A SPECIFIC USE PERMIT TO ALLOW FOR GAS WELL DRILLING AND PRODUCTION ON PROPERTY ON A THREE (3) ACRE SITE ON THE WEST SIDE OF BONNIE BRAE STREET, NORTH OF SCRIPTURE STREET, WITHIN THE TOWN CENTER OF THE RAYZOR RANCH OVERLAY DISTRICT WITH A BASE ZONING OF NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU); AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. Council Member Mulroy motioned to approve the specific use permit with the 21 conditions listed plus an additional comment that the fence in Item #3 would be 8' tall and would include all recommendations including the Planning and Zoning Commission recommendations. City Attorney Burgess asked for a clarification on the third condition with regard to the eight foot fence and felt it should be with the Condition #2 instead. Council Member Mulroy said that was correct. City Attorney Burgess stated that Condition #5 would be redrafted and tied back into Condition #19. Council Member Gregory seconded the motion. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "nay", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried with a 6-1 vote. Resolution R2009-027 C. Consider approval of a resolution nominating members to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. Bryan Langley, Director of Finance, stated that the terms for the members on the current Board of Directors would expire on December 31, 2009. The District was seeking nominations from the taxing jurisdictions in the district. The City could make up to five nominations. Once the District received get all the nominations a ballot would be sent to the City for a vote. The City and Denton Independent School District collectively voted and elected Rick Woolfolk and Charles Stafford to the Board. Both members were eligible and willing to serve another term. Mayor Burroughs stated that historically the Council had nominated people from Denton. He had received call from Steve Mossman who indicated that he was seeking to be nominated. Mr. Mossman already had a seat by the statute that created the Board but it was an ex-officio seat. He was trying to get a voting seat. Mayor Pro Tem Kamp motioned, Council Member Mulroy seconded to nominate Charles Stafford and Rick Woolfolk. On roll call vote, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member City of Denton City Council Minutes October 6, 2009 Page 22 Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. D. Consider an appeal of the denial of a Certificate of Appropriateness by the Historic Landmark Commission (6-0) for new development located at the northeast corner of N. Bell Avenue and E. University Drive (S.H. 380). The site is located within the Neighborhood Residential 3 and Neighborhood Residential 4 (NR-3 and NR-4) zoning districts; and is within the Bell Avenue Historic Conservation District. (COA09-0002, Lux at Bell Avenue) Mark Cunningham, Director of Planning and Development, stated that this was an appeal for denial of a Certificate of Appropriateness for a residential development at Bell Avenue and University Drive. The property was located within the Bell Avenue Historical Conservation District. The Historic Landmark Commission had denied the request. Proposed architectural features, brick color and color palates were presented. Council Member Watts questioned if the development consisted of 36 units. Cunningham stated that each unit had 3 bedrooms. Council Member Watts stated that it looked like three lots on the subject site and questioned if they were platted as one or if they were three individual lots. Cunningham stated that they were three individual lots and would have to go through the full development review process. Council Member Watts questioned how the boundary of the historic conservation district was developed. Cindy Jackson, Preservation Officer, stated that the neighborhood itself worked on the boundaries. Council Member Watts commented that it looked like the district was made up of homes mainly on the east or west side of Bell Avenue. Mayor Burroughs stated that he had not seen an undeveloped property zoning request at the same time as a certificate of appropriateness. He felt the certificate of appropriateness would come after the zoning. The property would be zoned for a particular use and then the certificate of appropriateness would be considered for elevations. Cunningham stated that the use was already permitted. The zoning was to increase the density of the use. The duplexes were an approved use in the current zoning district but at a lower density. Mayor Burroughs stated that the certificate of appropriateness and the elevations were being considered at this meeting. City of Denton City Council Minutes October 6, 2009 Page 23 Cunningham stated that this was an appeal of the denial of a certificate of appropriateness. This specific proposal was governed by Section 35.7.10.5 of the Development Code which dealt with architectural preservations. There were eight conditions governed this development. Mayor Burroughs stated that he read and understood those conditions but that they presupposed that the Historic Landmark Commission had renderings of elevations to rule upon. In an appeal it was presupposed that the elevations were binding. His basic question was what made the elevations binding because this was not a zoning case with elevations attached. Cunningham stated that included in the presentation were elevations of the proposed duplexes. If the Historic Landmark Commission had approved the certificate of appropriateness, then the elevations shown would have been binding. Mayor Burroughs stated that because the proposal was in a historical conservation district, the developer could not build before receiving the certificate of appropriateness. Cunningham replied correct. Council Member Watts stated that Council had received a packet of information during the Work Session and questioned where it came from. Cunningham stated that it had been submitted by members of the neighborhood. Council Member Watts stated that the packet made references to new homes on Roberts and Saul Street and questioned that those homes were not in the district. Cunningham replied correct. Mayor Burroughs noted that Speaker Cards had been submitted. Rod Taylor, 1300 Apache Trail, Corinth, 76210, was the applicant. He stated that the reason for the appeal was that the hearing was unfair. The significant portion of the discussion related to planning and zoning issues which came after this process. He felt the proposed design made a good transition from TWU to the homes on Bell Avenue. Another reason he felt the hearing was unfair was that Subchapter 7.35.7.7.9, Step 3 of the Certificate of Appropriateness guidelines was disregarded in the due process. That step stated that if the Commission felt that the proposal did not meet the guidelines for the certificate, the Commission was to make recommendations that would bring the proposal into compliance with the guidelines. There were no recommendations made by the Commission for approval. There was a strong denial and the Commission voted on something that had nothing to do with certificate of appropriateness. The Chair of the Historic Landmark Commission did not like scale of buildings and had made some very pointed comments during the meeting. Council Member Watts stated that the zoning request was to change to NRMU-12 to increase the density. If the proposal went to the Planning and Zoning Commission and received either approval or denial of the zoning request, the proposal could proceed from that point. He felt that the procedure was backwards. City of Denton City Council Minutes October 6, 2009 Page 24 Taylor stated that if the NRMU-12 zoning was not allowed and they had to do the smaller units, the economics would not support a bank funding. He had already checked into that and needed the larger number of units for economics. Council Member Watts stated that he knew of some areas that had a series of duplexes by UNT and that area was a disaster with parking on the lawns and he could understand the concerns of the neighbors for the renting of duplexes. Council Member Gregory stated that he couldn’t tell from the site plan if the developer had been asked to make any modifications to the corner of Bell and University such as widening the street. Cunningham displayed a sketch of how the property would be developed. If and when the certificate of appropriateness was acquired and rezoning was acquired, the site plan would be reviewed to make sure all standards were being adhered to. Council Member Gregory felt that based on comments the problem might not be the scale of one of the duplexes but the number of duplexes and parking. One concern he heard was adequate parking on the site as there was no parking on Bell or University. He asked for the parking space to bedroom ratio. Cunningham stated that 32 parking spaces were proposed over the 12 structures. The current code provided for two spaces per unit and this proposal was meeting that minimum requirement. Council Member Gregory stated that parking spaces were designated per unit and not per bedroom. Cunningham replied correct. Multifamily parking was based on bedrooms but duplexes were considered single family so the parking was based on units as opposed to bedrooms. Taylor stated that initially they had presented 32 parking spaces but could work with his engineers to increase the number of spaces if needed. Council Member Engelbrecht stated that student housing apartments constructed had parking established by the bedroom. Cunningham stated that duplexes were considered single family while apartments were multifamily and done by bedroom for parking spaces. Council Member Heggins asked if the proposal was within code for signage. Taylor replied correct that the proposal was within the requirements. Council Member Heggins stated that she had read all the staff analysis and felt the developer had done everything he had been asked to do. Taylor stated that they had tried to comply with all regulations and had three meetings with the neighborhood. City of Denton City Council Minutes October 6, 2009 Page 25 Additional speaker cards were received from: Rick Baria, 5138 Edwards Road, Denton, 76208 – favor Theresa Prosperon, 8220 Greenwood, Plano – favor Dusty Broadway, 1888 Sinclair, Lewisville, 75067 – favor DeCarlo Noble, 3400 Mustang Drive, Denton, 76210 – favor Donna Morris, 913 West Oak, Denton, 76201 – opposed Mayor Burroughs asked Ms. Morris if the Commission had considered recommendations on how to make the proposal appropriate for the certificate of appropriateness. Morris stated that no recommendations were suggested because the proposal was inappropriate for a historic conservation district. Mayor Burroughs asked if there had been any discussion or suggestions made. Morris stated no. Council Member Watts asked if her objection was to the individual design in the way the buildings looked or the close proximity to one another. What about the proposal was inappropriate to her – the density or the elevations? Morris replied that it was the density. Another developer put homes in the district that were much like the homes already there. This development did not look like the homes already there. The Historic Landmark Commission worked to keep the flavor of the area and this proposal did not do that. Speaker cards continued with: Gary Hayden, 2105 North Bell Avenue, Denton, 76209 – opposed Ernie and Angela Stripling, 1815 N. Bell, Denton, 76209 – opposed Brandt Davis, 1902 N. Bell, Denton, 76209 – opposed Deb Conte, 2106 North Bell Ave, Denton, 76209 - opposed Mayor Burroughs stated that density was a zoning issue, traffic was a zoning issue and felt that a number of the issues raised in the discussion of the Historic Landmark Commission were inappropriate for that Commission to discuss. There were a number of issues that he did not get a good sense on how they were addressed. He wanted to go through those issues with the developer for a sense of how the issues were addressed. The first was the issue of dumpster orientation. Taylor stated that in the first submittal of the proposal, the dumpsters were shown but he had since learned that there would be no need for dumpsters. Mayor Burroughs stated that his second question dealt with the orientation of the driveways. He questioned what faced into the district. He knew the facades of the buildings would face University Drive and questioned what was oriented to Bell Avenue. City of Denton City Council Minutes October 6, 2009 Page 26 Taylor stated that the façade that faced Bell Avenue was the side of one of the buildings. The Code stated that the façade must match the other buildings but did not address what must face Bell Avenue. Mayor Burroughs asked about the driveways and parking that would be off Bell. Taylor stated that there would be a single driveway on Bell. Mayor Burroughs stated that his third question dealt with preserving the existing trees. Taylor stated that there was an existing hackberry that would be removed. There were two very old oak trees that would remain and one on the corner that would remain. Two trees would have to be removed. Mayor Burroughs stated this fourth question dealt with the sign ordinance and how it went with a certificate of appropriateness for the Historic Landmark Commission to review signage. Jackson stated that a sign plan had not been presented to the City but before any signs could be approved, there would have to be a certificate of appropriateness. Mayor Burroughs questioned the discussion of a four foot chair link fence separating the property. Taylor stated that a fence would be installed between his property and an adjoining property owner. He planned to install an eight foot wooden fence but the neighbor did not want him to touch her fence so his fence would come off from her fence and then be installed. Mayor Burroughs questioned at what point was the fence an issue for the Historic Landmark Commission or an issue for another process for the city. Cunningham stated that Chapter 7 addressed fencing; windows, parking and whatever might be germane to the development fell into the provisions of Chapter 7. Mayor Burroughs asked if the fence issue had been before the Historic Landmark Commission. Jackson stated that the fence was included in the staff report and was noted to the Historic Landmark Commission that an eight foot wooden fence would be located and the remainder would be landscaping. Mayor Burroughs stated that the fence issue did not come before the Historic Landmark Commission. Jackson replied correct. Mayor Burroughs stated that the parking space issue was questionable as to whether it would be under zoning and a density issue and not a Historic Landmark Commission issue. City of Denton City Council Minutes October 6, 2009 Page 27 Jackson stated because this proposal would not require a site plan review until the building permit stage, parking was pointed out in the staff report. The site did meet the requirements for parking spaces. Mayor Burroughs questioned under what circumstances the Historic Landmark Commission made a determination on how the spaces would look, how they would be oriented, how they would be screened. Jackson stated that was not addressed in the ordinance. Council Member Mulroy stated that the requirements of the historical conservation district stated that new construction should promote the existing spatial and visual quality of the district. There were some elements that were listed dealing with lot coverage and visually how it would look with existing housing. Council Member Gregory felt that part of the issue of scale dealt with permeable and non- permeable surfaces as compared with all of the other lots. One of the three lots would be for parking which would be out of character, out of scale, with the rest of the neighborhood. Duplexes were in character with the neighborhood but six duplexes were out of scale with the neighborhood. Mayor Burroughs stated that the Historic Landmark Commission did not comment on the parking spaces in terms of permeable versus non-permeable. That was a different issue. The Historic Landmark Commission’s concern was that there was not enough parking and it would spill over onto adjoining streets. Council Member Mulroy felt that it was a matter of coverage with so many structures it would be out of character for the neighborhood. There was a need to have the spatial and visual elements retained. This would not be a problem if there was a smaller scale. Mayor Burroughs asked again about the orientation of the buildings to Bell versus University. He had read in the backup that it was a staff driven request to have the buildings oriented to University. Taylor stated that it was his interpretation on what was more acceptable. Taylor was allowed a rebuttal. He stated that his proposal was for duplexes and not apartments. In terms of the number of parking spaces, he could increase the number of spaces as there was room to do so. He could increase the number of parking spaces to match the number of bedrooms if necessary. He would have asked the Historic Landmark Commission for that type of information had he been able to do so. He was willing to meet with the neighborhood to make the design more appropriate and wanted the development to blend in with the conservation district. He was open to shape the development to make it more acceptable. He was trying to take infill lots to make something better. Council Member Watts stated that recommendations were not made at the Historic Landmark Commission hearing per the ordinance to try and reach a compromise on the proposal. He suggested remanding the proposal back to the Historic Landmark Commission for City of Denton City Council Minutes October 6, 2009 Page 28 recommendations on how to comply with the ordinance. Council was being asked to override the Historic Landmark Commission but he wanted to make sure all procedures were complied with before a decision was made. City Attorney Burgess stated that Council could remand the matter back to the Historic Landmark Commission for further consideration with conditions, could approve the appeal or deny the appeal. Mayor Burroughs stated that the orientation of lighting was another issue and felt that Council needed to give some direction to the Historic Landmark Commission if it were remanded back to them. Council Member Mulroy asked if the appeal were denied, would there be a waiting period before the proposal could come back for consideration. City Attorney Burgess indicated that she would check into that provision. Council Member Mulroy stated that the way the proposal was packaged, if the Council approved the appeal, it would then go to the Planning and Zoning Commission for the zoning. It might be a better choice to remand it to the Historic Landmark Commission for a second look. Mayor Burroughs stated that if the density was not approved, many problems would go away. It appeared that many of the difficulties dealt with a number of the structures in the space and the spatial element. If the proposal did not have the same number of units, it might not be a problem. He still felt consideration of the issue was out of sequence. He felt it might be better to remand and wait to see if the density was approved or not. If it were turned down, it would be a very different proposal. Council Member Engelbrecht stated that he was uncomfortable with the parking and if the units were rented out by the bedroom, there would be no green space in the parking lot. That was not in character with the neighborhood. Council Member Watts felt that the issue seemed to be one of scale and the number of units. Orientation was another problem. If the proposal were remanded back to the Historic Landmark Commission, discussions were needed on what kinds of modifications would be acceptable. City Attorney Burgess stated that in answer to Council Member Mulroy’s question, there was a one year bar from the time of final decision if denied at this meeting. Council Member Gregory motioned, Council Member Heggins seconded to refer the proposal back to the Historic Landmark Commission for reconsideration. Mayor Burroughs stated that the Council’s thoughts should be communicated to the Historic Landmark Commission and to be aware that there was another process for Planning and Zoning Commission consideration. Mayor Pro Tem Kamp felt that something transitional was needed in the neighborhood which would be compatible with the existing neighborhood. City of Denton City Council Minutes October 6, 2009 Page 29 On roll vote to remand back to the Historic Landmark Commission, Mayor Burroughs "aye", Mayor Pro Tem Kamp "aye", Council Member Engelbrecht "aye", Council Member Gregory "aye", Council Member Heggins "aye", Council Member Mulroy "aye", and Council Member Watts "aye". Motion carried unanimously. E. Consider nominations/appointments to: 1. Historic Landmark Commission There were no nominations/appointments made at this meeting. F. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: a. Dawn Paradise regarding urban chickens. Ms. Paradise requested a change in the city ordinance to allow chickens closer to residences. She presented the advantages for urban chickens and requested that the ordinance be changed to allow for eight domestic fowls per house, that the animals would not be allowed to run free, no roosters would be permitted and incorporate an annual permit. b. Robert Donnelly regarding large phased in developments and DCTA. Mr. Donnelly stated that he was in favor of the train coming to Denton but was concerned about the comments made at the last meeting in regards to the DCTA project. He felt it would open the door to allow them to start the project without having everything in place. He felt DCTA could start the Denton project at the south end to get Medpark done first. The City would have the train a long time and he didn’t want them to get started until everything was in order. G. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Council Member Gregory requested staff work on revising the drilling ordinance to include such items as setbacks, noise abatement, fencing, light control, and air quality monitoring. H. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of Closed Meeting. I. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. City of Denton City Council Minutes October 6, 2009 Page 30 There was no official action on Closed Meeting items. With no further business, the meeting was adjourned at 12:41 a.m. ________________________________ MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS ________________________________ JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS