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September 15, 2009 Minutes CITY OF DENTON CITY COUNCIL MINUTES September 15, 2009 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 15, 2009 at 4:00 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. Requests for clarification of agenda items listed on the agenda for September 15, 2009. Mayor Burroughs questioned the interlocal agreement with the City of Euless. He noted that Euless offered a 5% discount for local vendors and questioned if a 5% discount was given for Denton vendors. Karen Smith, Senior Buyer, stated that this situation had not come up before. The vendor was not located in Euless so there would not be an issue with a local vendor preference. She stated that staff would research the issue for future situations. Council Member Gregory asked about the funding for Consent Agenda Item A and whether it was from the 2009-10 budget money. Brian Lockley, Development Committee Review Administrator, that that the funds were not from the 2009-10 budget. It was part of bond fund money previously approved by the voters. Council Member Mulroy asked about the contract amendment to add a bike lane from UNT to the downtown train station. He questioned if that was a staff initiative or how it evolved and was it designed to take it from the Traffic Safety Commission and the Planning and Zoning Commission for public hearings. Lockley stated that the bike lane portion of the contract was brought forward to Council at a prior work session. Staff was still negotiating with Jacobs for the scope of the project and in order to not have any more delays, the project would be incorporated in the contract with Jacobs and taken from the Traffic Safety Commission. Council Member Gregory asked if the additional money for the change order for Consent Agenda Item E was also from bond money. Emerson Vorel, Director of Parks and Recreation, stated that funding for the change order was CIP money. 2. Receive a report, hold a discussion, and give staff direction concerning proposed amendments to Subchapter 13 of the Denton Development Code regarding tree preservation and mitigation. The discussion will include proposed tree fund expenditures for eCognition and CITYgreen software as well as the possible formation of a Tree Committee including the duties and responsibilities of the committee. (DCA08-0006, Tree Code Amendments) City of Denton City Council Minutes September 15, 2009 Page 2 Chuck Russell, Planning Manager, presented the information on the tree code amendments. His presentation consisted of background information, the tree canopy survey, tree fund and tree committee. Staff was asking for the expenditure of tree fund money to move forward to purchase software called CITYgreen and eCognition that would result in reports, hard copy printouts, and a GIS layer product that would show the complete overall tree canopy assessment. Part of the assessment would involve a project with UNT to collect satellite imagery on tree stands. Staff was also asking guidance for the establishment of a tree committee and a specific charge for that committee. The current tree ordinance was adopted in 2004. At that time, a committee was established to see how the ordinance was operating with a follow-up on how it was being implemented and its effects. A consultant was hired to provide recommendations and town hall meetings were held. Staff was working with the Planning and Zoning Commission on the issues with specific staff objectives. Survey benefits would determine the true value of trees, provide an accurate geographic location of trees, provide appropriate DDC percentages, and assist with modeling/accountability. Staff was recommending use tree fund money for the purchase of this software. The tree fund had specific criteria for the use of the funds. The criteria included purchase, plant and maintain trees on public property; preserve wooded land in a naturalistic state in perpetuity; perform and maintain a city-wide tree inventory; and educate citizens and developers on tree benefits and value. The current balance of the fund was $633,000. Payment into the tree fund was not penalty money. It was money that under the current code a developer could pay into for tree mitigation. Up to $100,000 of that money could be used in the next budget year. The citizen's tree committee had met several times to determine how well the ordinance was working. Three recommendations from the committee were to hire an urban forester, enforce the tree code and establish a committee to oversee tree fund purchases. Staff was recommending that a clear mission and set of objectives be developed for the committee, that the committee be limited to 7 members appointed by Council, the meeting frequency would be once a month, criteria for treed land purchases be developed and parcels of land be ranked by the committee. Staff would bring recommendations to the committee and the committee would rank the areas to consider in terms of using the tree fund money. Council Member Mulroy asked if the committee could suggest other parcels for consideration. Russell stated that they would not have to wait for eCognition and CITYgreen to begin. They could start now to formulate recommendations. Council Member Mulroy stated that another source of funding for the purchase of tree land was through CIP funds. He questioned that amount and when it would be in the queue. Mayor Burroughs stated that the amount was $250,000. City of Denton City Council Minutes September 15, 2009 Page 3 Council Member Mulroy suggested putting that money under the umbrella for the proposal of the tree committee to take care of those funds. Mayor Burroughs stated that the CIP Committee felt that the bonds should not be sold before there was a functioning tree committee that was ready to use the funds. Mayor Pro Tem Kamp asked if this would be a permanent committee like the City's other boards and commissions. Mayor Burroughs felt that it would not be a standing committee at this point in time but could be established as one as time went on. Russell stated that the objective was that the tree fund would go away with enough incentives for developers to do tree preservation and tree planting. Mayor Burroughs asked if the survey would help with enforcement from developers cutting down trees. Russell replied yes but to be cautious as this would be a snap shot, a one-time look at the property. The level of detail from the software programs would help with the identifying of the tree stands. Mayor Burroughs felt that this would be a good time for the committee to identify potential conservation easements. It was very beneficial that the program could tell between natural tree stands versus manicured lawns with planted trees. The committee could make recommendations between expenditures with natural stands and places where there might be a need to plant trees where they didn't exist. He felt that one of the first things the committee could do was an outreach program to existing neighborhood organizations as they would know what tree stands were in local areas that might be at risk. Council Member Watts expressed concerns with the survey, specifically the cost and the amount of money that was spent on the Burditt study which went nowhere. He also felt that they might be moving ahead too fast as there was no committee in place and the fact that enforcement was the biggest problem at this time. He questioned if the current ordinance was being enforced and if tree stands were purchased, would the purchases be subject to eminent domain. He would be hesitant to use that process for the purchase of a tree stand. City Attorney Burgess stated that it was her understanding that the process would be voluntary and not subject to eminent domain. Council Member Watts felt that the committee was a great start and the survey might be beneficial in the future. He thought it would be best to not just start spending the tree fund money but start at a grass roots level and get policies and procedures in place first. Russell stated that the Burditt contract was $30,000 with $15,000 reimbursed through a grant. There was quite a bit of Burditt information collected that was still incorporated and being used for the recommendation for the tree survey. He felt the value of the information was worth the expense. In terms of the existing GIS versus this proposal, the level of detail with the satellite City of Denton City Council Minutes September 15, 2009 Page 4 imagery was much greater than the existing GIS. The details would come with the CITYgreen components. Staff would like to start in December/January using an existing contract with UNT. The tree survey had been an original recommendation from the original tree committee in 2005. Council Member Watts asked if this would have to be done on a regular basis to keep the information current. Russell stated that in terms of canopy coverage, it would be hard to enforce an ordinance without a knowledge of the tree canopy. The survey might have to be done once every five years. Council Member Gregory stated that as a policy maker, if the canopy goal was 30%, it would be nice to know how close the City was to that figure. He found it easier to make decisions with data and a lot of discussion about trees was emotional. This proposal would provide non- emotional data and quantify the value of green infrastructure in savings to the City. Council Member Mulroy stated that the two numbers Council was looking was the tree fund mitigation money and the price to pay for the software plus future CIP money. He asked what happened to the penalty fine money for violations of the tree ordinance. Russell indicated that there was a separate fund for the Rayzor Ranch money in the amount of $150,000. Council Member Engelbrecht stated that parts of the City didn’t need a 30% tree canopy because they were part of the plains area without natural tree stands. Council Member Mulroy felt it would be better to get a data base established sooner than later. He asked if the Council was in agreement on the direction of the committee to have seven members. Consensus of the Council was to establish the committee with seven members. Russell asked if the tree committee would report directly to the Committee on the Environment. Consensus of the Council was that the tree committee would report directly to the Committee on the Environment. Council Member Watts stated that Rayzor Ranch was assessed the penalty because they took out trees without a permit. He questioned if the City could draw down on that amount to plant trees. Russell replied correct that it was different from the other tree fund. The Rayzor Ranch fund was a guarantee that if they didn’t plant the trees, the City could use that money to plant them. The mitigation trees would be in addition to the regular tree plantings. Russell confirmed that Council was in favor of moving forward with the expenditure of tree fund money for the software. Consensus of the Council was to proceed as proposed. City of Denton City Council Minutes September 15, 2009 Page 5 3. Receive a report, hold a discussion and give staff direction on the City of Denton’s property tax exemption for designated historic sites. Bryan Langley, Director of Finance, stated that at the September 1st council meeting, staff was directed to prepare various options for council consideration on the property tax exemption for designated historic sites. The four options prepared by staff included: Option 1 - allow the current ordinance to expire. No new properties would be eligible for new exemptions and current exemptions would expire after the initial 15 year period. Option 2 - approve a 15 year 50% exemption for newly designated properties, a 25% exemption for previously designated properties with no expiration date, and establish an open designation period. Option 3 - approve the recommendations from the Historic Landmark Commission which was to extend the designation and exemption period for 15 years. Option 4 - approve another exemption based on methods used by other cities. Council Member Mulroy stated that the current ordinance did not require any expenditures to receive the exemption. He suggested the Council might want to consider a minimum baseline expenditure what would apply to new exemptions. When a property owner applied for the exemption, he would have to show what expenditures had been done to the house. Council Member Watts questioned if Council Member Mulroy was indicating that for the 50% exemption, the property would have to show related expenditures but when it rolled off the 15 years and went into the 25%, there would be no further indication of expenditures. Council Member Mulroy replied that he was talking about the initial application. Council Member Watts stated that the exemption went with the property and not with the owner. If the property was sold, no other application was needed for the exemption. Council Member Engelbrecht expressed a concern with no expiration for the second exemption. He felt there should be an expiration date to review the property as it might have started to deteriorate. Council Member Mulroy felt the exemption was justified but would like to see the monies being spent to maintain the property. Langley stated that the exemption could be for 15 years for 50% and tied to some type of initial investment. Council Member Gregory questioned if more time might be needed before consideration of the item in order to do more research. City of Denton City Council Minutes September 15, 2009 Page 6 Council Member Mulroy suggested having the Historic Landmark Commission look at the initial investment. Langley stated that on the maintenance exemption, Council was proposing to put a limit on the exemption. He questioned if it would be for an additional 10 or 15 years as long the property was maintained. Mayor Burroughs stated that the Commission had recommended an additional 15 years. Consensus of the Council was an additional 15 years. Langley stated that the exemption then could be as long as 30 years. Mayor Burroughs stated the extension would be renewable and could go on indefinitely as long as the property was maintained. Council Member Watts felt that when the property was up for a renewal of the extension, the Historic Landmark Commission should look to see if there was a value for the maintenance portion. Mayor Burroughs felt that in the qualification process to receive the renewal exemption, the property owner would have to demonstrate reasonable maintenance in the historic designation. 4. Receive a report, hold a discussion, and give staff direction on the 2009-10 City Manager’s Proposed Budget, Capital Improvement Program, and Five-year Financial Forecast. Bryan Langley, Director of Finance, reviewed the process that they had been following regarding the budget procedures. The budget was scheduled to be adopted September 22, 2009. The following adjustments had been made to the proposed budget: (1) phase in the Jazz Fest permit fees over the next three fiscal years; (2) restore the funding for the Kiwanis fireworks show, (3) restore the funding for the overtime reduction in the Fire Department, (4) restore the funding related to City Council contingencies, and (5) in the Airport Gas Well Fund, reduce the funding for the Airport Entrance Project from the proposed $455,000 to $50,000. The total budget for 2009-10 would be $91 million which was increase of about $300,000 from the original proposed budget. Council Member Mulroy stated that in regards to the Jazz Fest, staff had provided information per council request on the economic impact. He would like staff bring back additional information because the information provided showed that 200,000 people attended the Jazz Fest with 100,000 people from out of town and 50% of those people spent the night in Denton. That might mean that 33,000 hotel rooms were occupied. He would like to see some information on how many hotel rooms were really rented on the Arts and Jazz weekend as well as some of the City’s other festivals. He did not feel that 33,000 hotel rooms were rented on Arts and Jazz weekend. Another figure indicated that in 2009 there were 200,000 visitors at Arts and Jazz; 100,000 were from out of town and 100,000 local residents. While the event was crowded, he was not sure everyone who lived in Denton attended the festival. He suggested staff bring back an accounting total of all the dollars spent and the manner in which Council could City of Denton City Council Minutes September 15, 2009 Page 7 have better empirical data on crowd count and hotel rooms. He felt the numbers didn’t make sense for the Denton population and hotel rentals. He also stated that with these types of festivals, each department was providing a service and absorbing that service in their budget and Council did not see that unless specifically asked for. He would like to have a work session on developing a fund for those festivals so departments would not have to use their own funds. In terms of the Fire Department overtime and the $184,000 number, he thought the $118,000 had to do with sustaining the 4 man engine. The $184,000 was the total dollars including the funding for the battalion chiefs. Langley stated that the total figure was $184,000 which represented all the money being restored plus the fringe benefits associated with it. Council Member Mulroy felt that the Council’s point of focus was the manning of the engines and that component was $118,000. Council really did not discuss the battalion chief rearrangement. Langley asked if the consensus of the Council was to use the lower figure. Council agreed to use the lower figure. Council Member Engelbrecht supported the idea of determining what the city was gaining for various festivals and to determine the dollar value of them. Council Member Watts agreed that Council needed to know what was being spent on these community activities and to have a better division of dollars. Mayor Burroughs noted that the proposed budget held the line on property taxes and utilities. However, the next year was projecting a 2.5 cent tax increase in order to keep on the projected line for reserves. Council Member Mulroy noted that an additional charge was to present different ways to change the trend line in the out years of the five year forecast in order to correct the imbalance. Council Member Watts stated that the goal was to close the gap without having to use the reserve fund except for extraordinary circumstances. Council went into Closed Session at 5:40 p.m. 1. Closed Meeting: A. Deliberations regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. 1. Receive competitive public power information from staff in the form of a proposed operating budget for Denton Municipal Electric ("DME") for the upcoming fiscal year, including without limitation, revenues, expenses, commodity volumes, and commitments, and the direction of DME; and discuss, deliberate, consider adoption of the budget and other City of Denton City Council Minutes September 15, 2009 Page 8 matters, and provide staff with direction regarding such matters. 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. 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. 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. D. 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. City of Denton City Council Minutes September 15, 2009 Page 9 2. Discuss and consider strategy, status, and possible approval of a change in the tariffs of CoServ Gas Ltd. A public discussion of these legal matters would conflict with the City’s attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. E. Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. 1. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding the construction of needed infrastructure in the industrially zoned area along Airport Road, west of Interstate 35 in support of Project Teacup. Council Member Mulroy motioned, Council Member Heggins seconded that it was proper for Council to go into Closed Session on the Denton Municipal Electric item in terms of the Public Power Utilities 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. Regular meeting of the City of Denton City Council on Tuesday, September 14, 2009 at 6:30 p.m. in the Council Chambers 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.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 There were no proclamations/presentations for this meeting. City of Denton City Council Minutes September 15, 2009 Page 10 3.CONSENT AGENDA Mayor Burroughs indicated that Item F was pulled from consideration. Council Member Mulroy motioned, Council Member Heggins seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Item F. 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. Mayor Burroughs indicated that the following Speaker Cards had been submitted for items on the Consent Agenda: Item 3A-Andrew Teeter, 1108 Panhandle, Denton, 76201-spoke on gas wells-Mayor Burroughs asked him to keep his comments relative to Item 3A and not the gas wells. Stewart Minor, 907 Avenue A, Denton, 76201-spoke on gas wells. Mayor Burroughs asked him to keep his comments relative to Item 3A and not the gas wells. Jason Netek, 1203 Avenue A, Denton, 76201-spoke on gas wells. Mayor Burroughs asked him to keep his comments relative to Item 3A and not the gas wells. Elizabeth Clinton, 1203 Avenue A, Denton, 76201-spoke on the gas wells. Mayor Burroughs asked her to keep her comments relative to Item 3A and not the gas wells. Ordinance No. 2009-204 A. Consider adoption of an ordinance authorizing the City Manager to execute a professional services agreement (PSA) with Jacobs Engineering Group, Inc. to provide planning, architectural design, and engineering services in association with the development of the Downtown Implementation Plan for the City of Denton; authorizing the expenditure of funds therefor; and providing an effective date (RFP 4237 in an amount not to exceed $224,995). Ordinance No. 2009-205 B. Consider adoption of an ordinance of the City of Denton, Texas, finding that the current rates of CoServ Gas Ltd are unreasonable; approving CoServ Gas Ltd.’s revised and uncontested tariffs; setting the effective date of new tariffs as October 1, 2009; finding rate case expenses reasonable; finding that any relief requested by CoServ Gas Ltd not specifically granted herein is denied; finding that the meeting at which this Ordinance is passed is open to the public as required by law; providing for notice of this Ordinance to CoServ Gas Ltd.; and providing an effective date. Ordinance No. 2009-206 C. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with the City of Euless, Texas under Section 271.102 of the Local Government Code, to authorize participation in various City of Euless contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 4393-Interlocal Agreement with the City of Euless, Texas). City of Denton City Council Minutes September 15, 2009 Page 11 Ordinance No. 2009-207 D. Consider adoption of an ordinance accepting competitive bids by way of an Interlocal Cooperative Purchasing Program Participation Agreement with the City of Euless under Section 271.102 of the Local Government Code for the purchase of street slurry seal services; providing for the expenditure of funds therefor; and providing an effective date (File 4395-Interlocal Agreement for Street Slurry Seal Services with the City of Euless, contract awarded to Viking Construction, Inc. in the estimated amount of $150,000). Ordinance No. 2009-208 E. Consider adoption of an ordinance authorizing the City Manager or his designee to execute Change Order One to the contract between the City of Denton and H.C.I. General Contractors Inc., providing for the expenditure of funds therefor; and providing an effective date (RFSP 4206-Denton Senior Center Renovations-Change Order One in the amount of $38,919). F. Consider adoption of an ordinance terminating that certain airport lease dated June 21, 2005 by and between the City of Denton, Texas and NTDenton Leasing, Inc for the property known as 4600 Spartan Drive; authorizing the City Attorney or her designee to take appropriate action to effectuate the termination; and, providing an effective date. The Airport Advisory Board recommends approval (6-0). This item was not considered. Ordinance No. 2009-209 G. Consider adoption of an ordinance of the City of Denton, Texas, amending the fiscal year 2008-09 Budget and Annual Program of Services of the City of Denton to allow for an adjustment to the Risk Retention Fund of four hundred thousand ($400,000) to provide for additional appropriations related to litigation; declaring a municipal purpose, providing a severability clause; providing for an open meetings clause; and providing an effective date. Ordinance 2009-210 H. Consider adoption of an ordinance approving a "Fifth Amended Agreement" to the agreement originally entered into by and between the City of Denton, Texas and the Greater Denton Arts Council, dated October 15, 1990; authorizing the City Manager to execute the fifth amended agreement; approving the expenditure of funds therefor; and providing for an effective date (authorized annual expenditure of $93,000). Ordinance No. 2009-211 I. Consider adoption of an ordinance approving an agreement by and between the City of Denton, Texas and the Denton Community Theatre; a Texas non-profit corporation; authorizing the City Manager to execute the agreement; approving the expenditure of funds therefor; and providing for an effective date (authorized annual expenditure of $8,000 for FY 2009-2010). City of Denton City Council Minutes September 15, 2009 Page 12 Ordinance No. 2009-212 J. Consider adoption of an ordinance of the City of Denton, Texas, adopting a City logo, to be used as the official logo of the City of Denton, prohibiting the use of the official City logo by any person, firm, corporation, or organization, other than the City of Denton without written approval of the City Manager or his designee, providing for a penalty not to exceed five hundred dollars for each day of violation, providing for a repealer clause, providing for a severability clause, and providing for an effective date. Approved the minutes listed below. K. Consider approval of the minutes of: August 3, 2009 August 4, 2009 August 6, 2009 August 7 & 8, 2009 4.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 regarding a Specific Use Permit to allow forty-six (46) attached and fifty-four (54) detached single family dwelling units on approximately 30.7 acres located within a Neighborhood Residential 3 (NR-3) zoning district on the southwest corner of Hinkle Drive and Windsor Street; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date. (S09-0002) The Planning and Zoning Commission recommends denial (5-0). A SUPERMAJORITY VOTE BY COUNCIL IS REQUIRED FOR APPROVAL. (Tabled from July 21, 2009) Council Member Mulroy motioned, Council Member Engelbrecht 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 the last time this item was considered there were three issues left unresolved. Those issues included access from the site from Windsor, traffic calming devices throughout the community and other architectural standards for single family attached units. The applicant had addressed those issues and staff had reviewed them. The Development Review Committee had recommended approval with five conditions and staff was now recommending approval with those five conditions plus three additional conditions. The three additional conditions included (#6) the design of the attached single-family homes shall be similar to the elevations shown in Exhibit “C” and shall be constructed utilizing at least five of the following design features-dormers, gables, recessed entries, covered front porches, cupolas, architectural pillars or posts, bay window, clay tile, slate copper of high definition composition roofing materials, fireplace chimneys matching the City of Denton City Council Minutes September 15, 2009 Page 13 exterior finish of the home, windows and doors made of wood, metal clad or metal with bronze anodized finish, decorative wrought iron, wood, stucco or masonry railings as extensions of the architecture of home or exterior finishes consisting of brick, stone or stucco, similar to the elevations depicted in Exhibit C; (#7) all single-family attached homes shall have rear vehicle entry with access provided through the alley system shown on the site plan and shall be constructed and paved to City standards, shall not be used to satisfy access requirements for utilities or city services and shall not have direct access to Hinkle Drive or Windsor Street; and (#8) the minimum heated floor area for the attached single-family homes shall be 1,620 square feet per unit. The last item addressed with the residents concerned the installation of traffic calming devices in the community at-large. Those could be installed along the neighborhood streets. Jim Coulter, General Manager-Water Administration, stated that the residents would have to petition the Engineering Department for speed humps in the neighborhood. It would require approval of 2/3’s of the neighbors to be installed. Council Member Mulroy asked that Planning and the City take the initiative to meet with the neighbors to go the through steps. Council Member Engelbrecht asked if other traffic calming devices could be used rather than the speed humps such as 4-way stops in the cross streets. Coulter stated that they would have to look at the criteria. With established neighborhoods the normal device was speed humps. Mayor Pro Tem Kamp suggested placing an electronic sign indicating how fast a vehicle was moving through the neighborhood to try and keep the speed down on vehicles. Council Member Watts stated that there was some discussion last time regarding access from Windsor which was classified as a secondary arterial and curb cuts and ingress/egress was not allowed from that type of street. Cunningham stated that there could not be a driveway from that classification of road. It would have to be a full right-of-way and not a driveway. Council Member Watts asked if Windsor would have to be widened at that location. Windsor still went down to one lane in each direction to Hinkle. PS Arora, Division Manager, stated that a small section would have to be expanded for stacking distance and allow traffic to move towards the existing drive. Council Member Watts stated that Hinkle was one lane each direction and additional land would be required for the widening and questioned if that additional land would be coming off the developer side on Windsor. Arora replied correct. City of Denton City Council Minutes September 15, 2009 Page 14 Council Member Watts stated that condition six related to elevations shown in Exhibit C and that the design features had to be at least five of those features but did not specifically include Item L relative to the exterior finishes. Cunningham replied correct that the developer could pick five of the features listed. Council Member Watts stated that condition six indicated that the design had to be similar but given the options, the developer could choose not to use any of the materials shown in Exhibit C. He felt that the materials for construction should also be the same. He was also concerned that the recommendation only applied to the attached homes and not the detached homes. Cunningham stated that the applicant was opposed to that as this was a specific use permit and as such, conditions were allowed to be added or deleted as described in the Code. Council Member Watts questioned why they were not brought separately - one set of conditions for the detached homes and one set for the attached homes. Cunningham stated that the conditions were being added via the specific use permit. Council Member Mulroy asked how the specific permit use was noticed. Cunningham stated that it was noticed for the total land area. Council Member Mulroy asked if the way the proposal was presented could changes in the conditions be made on the detached as well as the attached. Cunningham stated that the staff conditions were just limited to the attached homes. Council Member Engelbrecht stated that condition one indicated that approval of the specific use permit would not grant any waiver to the overlay conditions. That overlay indicated the requirements for the exterior of the single family structures and had not changed from the previous zoning. Cunningham stated that the other conditions would be above and beyond what the current overlay restrictions were. He indicated that condition six could be changed to indicate the developer would choose five from Item A-K and Item L would be required. Council Member Heggins stated that in viewing the elevations of the attached units, she hadn’t seen such townhomes in Texas and saw those elevations as an imbalance. She did not like them. Mayor Burroughs stated that the following individuals had submitted Speaker Cards: Robert Curry, 1210 Meadow Ridge, Denton, 76201 - opposed Gail Garber, 1200 Meadow Ridge, Denton, 76201 – opposed Darby Remko, 701 Northridge, Denton, 76201 – opposed Jack Frisby, 405 Magnolia, Denton, 76201 – opposed Kirk Pierce, 500 Mimosa, Denton, 76201 – opposed City of Denton City Council Minutes September 15, 2009 Page 15 Comment cards were received in opposition from: Albin and Helen Houdek, 428 Mimosa, Denton, 76201 William Charles Borth, 626 Magnolia, Denton, 76201 Jeff Fairchild, 625 Northridge, Denton, 76201 Hatice Salih, 300 Northridge, Denton, 76201 Dan and Denise Rhine, 525 Headlee, Denton, 76201 Daniel Garza, 300 Northridge, Denton, 76201 Bobby Morris, 700 Magnolia, Denton, 76201 Margaret and Tom Hook, 721 W. Windsor, Denton, 76207 David Spiker, applicant, presented information on the proposal. He stated that the density of the property at NR3 was the lowest residential density in the area. Some neighboring areas were NR6 and NR12. He reviewed the lot sizes of the proposal as compared to the homes on Meadow Ridge and the surrounding neighborhoods as well as the costs of the homes and landscape plan. Council Member Gregory asked about the number of attached homes that could be together. Spiker replied that he was only allowed to do five together. He continued his presentation with information on the public road to Windsor and the outside public improvements including a bike path. Council Member Mulroy asked about the bike lane in the development. Spiker stated that there would be a bike/pedestrian trail the full length of the development. Council Member Watts stated that the traffic count assumed that none of the cars on Windsor would go right onto Hinkle. On Windsor a vehicle could only go east to get to Carroll or west to Bonnie Brae. There would be some traffic on Hinkle. He indicated that when Council previously considered this development for the NR3 zoning and based on a meeting with the neighbors, it was indicated that the trees would be preserved but now those trees were gone. He also questioned why the developer would request NR3 zoning two years ago and could build the same amount of homes in a similar category but would now want to build attached homes. Spiker stated that that the lot sizes would be smaller if 104 lots were developed. He felt that there was a need for these types of homes. He was trying to create something unique and increase the property value of all the surrounding property. He indicated that he was not aware of condition nine until he got to the meeting. He was not in agreement to build a right and left turn lane. He felt this should be handled at the time of final platting. He intended to do a traffic impact analysis even though it was not required. Council Member Mulroy asked if the developer had a problem with the minimum heated floor area relating to the ground floor. Spiker stated he had no problem with that. Council Member Mulroy stated that the developer would have vehicle access on Windsor but was not in favor of the turn lanes. City of Denton City Council Minutes September 15, 2009 Page 16 Spiker replied correct. Arora indicated that if the developer performed a traffic impact analysis, condition nine could be changed to have the requirement be based on the outcome of the analysis. Mayor Pro Tem Kamp expressed a concern about Meadow Ridge drainage. Arora stated that it could not exceed the existing condition of runoff on the property. Council Member Mulroy asked if there was anything in the proposal that was adverse to the Denton Plan as adopted. Cunningham stated that it was consistent with the Denton Plan and in some cases went above and beyond some of the requirements. He indicated that the trees were cut in an unauthorized fashion and that the developer was fined for the removal of the trees. Mayor Pro Tem Kamp stated that she had received emailed from retirees about the need for townhomes in Denton. The reason there were none in Denton was that no one up to this point had built any. The proposal had more restrictions with the specific use permit conditions than would be there without the permit. Council Member Gregory indicated that he had also received emails about having townhomes in Denton. He felt this was a good proposal and if it were going to be located near undeveloped land, it would be good. His conflict was that it was a good overall development and felt that the neighbors would be sorry if regular NR3 development was done. On the other hand he represented the voters and they were against the proposal. In this case he would have to go with the voters. Council Member Mulroy stated that he was conflicted because this was the most attractive development that had been proposed on this property while the neighborhood still was not in favor of the proposal. Council had asked staff to guarantee quality and that had been done to ensure higher end development. The bike lane was not going away and would actually be safer than what currently was there. The gap seemed to be a slow education on the development plan and the transition to this type of home. The layout had been done exactly what the Denton Plan had required and the townhomes would have separate titles. This had to be a consideration of the entire community and felt that this was the highest quality development proposed in many years. Council Member Heggins stated that when there were more against than in favor of a proposal, then that was the way to go. She would be voting against the proposal. Council Member Watts stated that in 2007 the developer asked for NR3 zoning and the restrictions that were placed along with the NR3 zoning now seemed to be restricting the property for economic goal. The property had been there for 12 years with all kinds of versions for development. He had a problem that restrictions were placed on the property regarding the trees and then the trees were torn down after the ordinance was passed. He was not in support of the specific use permit. City of Denton City Council Minutes September 15, 2009 Page 17 Council Member Engelbrecht stated that the neighbors had been in one position all along against the proposal. They were against it in 2007 and were still against it. He would be voting against the proposal. Mayor Burroughs stated that the reason for the specific use permit was primarily for compatibility. There was some multi-family in the area but mostly there were single family detached homes. The developer had addressed many issues which in straight NR3 zoning would not have been addressed. With straight NR3 zoning there would be no buffer, no bike lane, no materials issue. The specific use permit tried to address compatibility issues to make the proposal more acceptable to the existing land uses. The developer had gone far beyond what normally would be seen. This was not a quality issue but that did not mean it was necessarily compatible. Each individual objection stemmed from the fact that the neighbors did not feel the proposal was compatible because of the multi-family component. He indicated that he could not support the proposal. Council Member Mulroy stated that the Denton Plan called for exactly this type of plan. This was an opportunity to have townhomes in nice neighborhood. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to deny. 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 "nay", and Council Member Watts "aye". Motion carried with a 6-1 vote. C. 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) This item remained on the table. Ordinance No. 2009-213 D. Consider adoption of an ordinance of the City of Denton, Texas, authorizing and directing the City Manager to execute an amendment to expand the scope of activities and extend the term of a right of entry and possession, dated March 3, 2009, and extended on May 5, 2009, and extended on June 23, 2009, and subsequently extended on September 1, 2009 in favor of the Denton County Transportation Authority (DCTA) and authorizing DCTA to enter upon and take possession of certain real property of the City of Denton for the purpose of performing activity as described in Attachment "A" hereto; and providing an effective date. Robert Donnelly submitted a speaker card in opposition. City of Denton City Council Minutes September 15, 2009 Page 18 Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to adopt the ordinance with the extension date to September 22, 2009 without an expansion of the scope of work. 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. E. Consider nominations/appointments to: 1. Construction Advisory and Appeals Board 2. Historic Landmark Commission 3. Zoning Board of Adjustment Council Member Engelbrecht nominated Jeff Wawro to the Construction Appeals and Advisory Board. Council Member Heggins nominated Jchon Paradise to the Zoning Board of Adjustment. 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 "any", and Council Member Watts "aye". Motion carried with unanimously. F. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: a. Rudy Rivas regarding abuse of authority-impersonating a civil servant. Mr. Rivas was not present at the meeting. b. Gilmore Morris regarding driving safety on the Square. Mr. Morris was concerned about safety on the Square. One of the problems on the Square was that there were no speed limit signs posted. He felt the speed limit should not exceed that of a school zone. There also were no instructions for pedestrians to use the crosswalks. He also felt that cell phone usage should not be allowed while driving on the Square. 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 Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by City of Denton City Council Minutes September 15, 2009 Page 19 a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Mayor Pro Tem Kamp stated that the Police Chief had also spoken with Mr. Morris and th requested a report from him on the issues. She indicated that on Saturday, September 26 there would be a “Wild Beast Feast” on the Square with Council cooking and serving food. She encouraged everyone to come out and support the arts. Council Member Engelbrecht asked for a report regarding bike and pedestrian lanes and whether it was illegal for bikes to be on sidewalks. Council Member Heggins invited everyone to the upcoming 11th Blues Fest in Quakertown Park. Council Member Gregory requested that staff work on procedures for items on table so that residents would have a good indication when one might be coming off the table. Mayor Burroughs asked staff to contact DCTA and inquire about the possibility of not closing off the entire trail corridor during their work but rather close the particular section they were working on. H. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of the Closed Meeting. I. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting items. With no further business, the meeting was adjourned at 8:45 p.m. _______________________________________ MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS _______________________________________ JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS