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August 21, 2012 Minutes CITY OF DENTON CITY COUNCIL MINUTES August 21, 2012 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, August 21, 2012 at 3:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden ABSENT: Mayor Pro Tem Kamp; Council Member King 1. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for August 21, 2012. Council Member Watts indicated that he would not be considering Item 4L due to a conflict of interest and requested Item T be pulled for individual consideration. Council Member Roden questioned if the public art purchases would all be housed in a particular location. Emerson Vorel, Director of Parks and Recreation, stated that some of the pieces would be at the South Branch Library per the wishes of the donor. The six watercolor donations were stipulated that they remain together. The other ones did not have a definite location at this time. Council Member Roden asked if there was anything in the policy regarding placement of the art. Vorel replied no. Council Member Engelbrecht asked about placing information with the pieces for public information Vorel stated that there were brass tags noting the pieces at this point. Council Member King arrived at the meeting. Janie McLeod, Special Events Coordinator, stated that all of the pieces were being inventoried and that information on them would be placed on the City’s website along with artist information. Council Member Gregory asked about art work at the North Branch Library. McLeod stated that there were a few pieces there and that they were still building and growing the collection. Council Member Watts asked about Item T and if the ordinance specifically indicated that the funding came from gas well money. City of Denton City Council Minutes August 21, 2012 Page 2 Bryan Langley, Chief Finance Officer, stated he was not sure if the ordinance said that was the funding but it was the source. City Attorney Burgess stated the ordinance did not have that information. Council Member Engelbrecht stated that Item B indicated that there was a public hearing st conducted on August 21. Langley stated that the organization held a public hearing earlier today with no comments and no citizens attending the meeting. Mayor Burroughs asked about Item U regarding the health insurance funding. He questioned if there was any other way of procuring insurance. He questioned if there was a way to predict or address the additional insurance. Langley stated that some of the expenses were unexpected but that there was no way to predict the costs. Staff was discussing ways to mitigate those costs in the future. Mayor Burroughs suggested an approach in the future to help adjust for the claim might be to look at different options to see how those claims might have calculated out. Mayor Burroughs stated that the 2012-13 proposed budget had a 6% increase in the City’s contribution and questioned when the 6% was proposed and whether it happened before or after this item. Scott Payne, Risk Manager, stated that the long term financial forecast had this increase in it for several years. Langley stated that staff had a number of conversations knowing that inflation would be larger than 6%. The difference would have to be made up either with increased employee contributions or higher premiums. Council Member Watts questioned if a determination had been made on whether to increase premiums or have a different plan design. Payne stated that it had been discussed with the Employee Insurance Committee, the City Manager and the Assistant City Managers. There was the possibility of having changes to deductibles and out of pocket maximum figures. Council Member Watts suggested tracking what effect the changes might have on city participation. Payne stated they would watch that trend. 3. Receive a report, hold a discussion, and give staff direction to develop a legal process for Tree Trusts as a mitigation option for the Denton Development Code, Subchapter 35.13.7, and the creation of a Tree Fund advisory committee to make recommendations on the criteria used to purchase properties, and suggest guidelines for Tree Fund City of Denton City Council Minutes August 21, 2012 Page 3 expenditures for community education, as well as planting new trees to increase Denton's tree canopy. This item was not considered. 4. Receive a report, hold a discussion, and give staff direction regarding an ordinance to repeal the current Chapter 13 Food and Food Service Establishments of the Denton Code of Ordinances with a new Chapter 13 Food and Food Service Establishments ordinance. Kurt Hansen, Building Official, presented information on the history of the public meetings concerning the proposed changes to the ordinance. The current version was adopted in 2004. The Texas Food Establishment Rules set the minimum standards for the City’s ordinance. There were nearly 600 food establishments in the City. Council recommended changes to the proposed ordinance following the initial discussion of the amendments to the current ordinance. Recommended deletions from the initial discussion included: Mobile food establishments – deleted the requirement for background checks for food vendors, the minimum distance from a school, the requirement to obtain permission from property owners, and regulation prohibiting tables, chairs, awnings, etc. Farmer's market – deleted the requirement for ANSI approved equipment. Food establishments – deleted the requirement to post inspection scores. Hansen stated that Council had asked if the new regulations would close currently permitted establishments. He indicated that no currently permitted mobile food establishment would be closed due to the new food code regulations. Council Member Roden asked about hot dog stands such as the one in front of Home Depot and where it would fit in the regulations. Hansen stated that it would be a hybrid between Type 1 and Type 2. Staff was working with them to be in compliance. Hansen stated that another Council concern was whether current fees covered costs. He indicated that Building Inspections would be conducting a comprehensive fee analysis within the next few months. This analysis would include Building Inspections and Health Inspections fees. The analysis of the information would be presented at a later date. Requiring a Certified Food Manager on site was another Council concern. Proposed exceptions to that requirement included (1) selling only uncut produce or commercially packaged food, (2) providing only beverages or prepackaged food that was not potentially hazardous, (3) bars and lounges that did not serve potentially hazardous foods, (4) food processing plants that were inspected by a state or federal food inspector or only stored prepackaged food that was not potentially hazardous, (5) concession stands run by volunteers, (6) nonprofit organizations that served food only to members, (7) vending machine or a mobile food establishment that offered only prepackaged food, if a certified food manager was in charge at the central preparation facility that supplied the products, or (8) temporary event food vendor. City of Denton City Council Minutes August 21, 2012 Page 4 Council Member Gregory stated that some nonprofit organizations such as churches invited people who were not members to an event with food. Hansen stated that was where the line was drawn. If an event was open to the public and the public was being served, then that was where the line was drawn. The letter of the law would be that a food permit would be needed if open to the public. Council Member Gregory asked if there would be a difference if the organization was selling the food or giving it away. Hansen stated it would not be an issue unless there was an open invitation to the public. Mayor Burroughs asked about such events as pancake suppers. Hansen stated that those would be temporary events. Currently temporary permits were allowed for city sponsored events and three extras. That was changed to six additional events. Council Member Roden questioned the definitions in the ordinance dealing with city sponsored, community event, and special events. Hansen stated that if the City was involved in any way with the city’s logo on the event, it was considered a city sponsored event. Council Member Roden stated that there might be instances where someone was in the 30 day waiting period for a non-city sponsored event when another such event was coming up. He felt this might be a seasonal issue in terms of the waiting period. Hansen stated that according to the proposal, an individual would have to wait 30 days between temporary permits except for city sponsored events. The intent was to try and keep a temporary event temporary and eliminate someone from setting up a little business each weekend. He felt staff could work on the definition of a temporary event and in some instances have a temporary permit extend from one weekend to another. Mayor Burroughs suggested it might be attached to a specific time of the year for seasonal events. Council Member Gregory stated that the proposal was trying to avoid those individuals who call themselves temporary from operating in same location every weekend. The intent was to put more restrictions on that type of activity but still work to allow vendors to work multiple events. Council Member Roden asked about an existing food establishment selling food outside on their property. Hansen stated that was not addressed at this time. The Texas Food Establishment Rules (TFER) wanted a restaurant to be enclosed with a roof and floor but not to expand a back patio to do that unless it could be enclosed. Staff was unsure how to craft language to get around that. He presented a side-by-side comparison of various mobile food requirements with various area cities. City of Denton City Council Minutes August 21, 2012 Page 5 Section 169.4 dealt with commercially manufactured mobile food vehicles. A definition was added that the vehicle needed to be done by a professional showing a high degree of skill or competence. Hansen indicated that Council had expressed a prior concern with this amendment. Council Member King felt that the concern was with use of the term “professional”. There might be a vendor who knew how to prepare such a vehicle who might not be a professional installer. He suggested deleting “professional” from the definition. Council Member Gregory thought it was one or the other as long as it was done with a high degree of competence or skill. What was wanted was that high quality work would be done. Hansen stated that another Council concern dealt with the proposal to require a Certificate of Occupancy for all units that stopped and sold food in one location for more than one hour. It was felt that if a unit was going to stop for more than one hour, an itinerary was needed to be sure the area was zoned for a food establishment. Council Member Gregory stated that some mobile food establishments stayed in one location for a long time, others moved. He questioned what would be the process if a food unit wanted to change itinerary and how much time would be needed to make the change. If the location were tied to the certificate of occupancy, could the unit lose the certificate of occupancy if it changed location. Hansen stated that staff would want notice within a couple of days for a change to make sure the new location met zoning criteria. Council Member Gregory stated that he wanted the units to be able to notify the City where they were located when in the City but also would like more flexibility for the notice. Hansen stated that the notice was for two days before the change. The two day notice was for convenience of checking the locations. Council Member Gregory asked about email notices. Hansen stated that the ordinance indicated written notice but that email would work. Council Member Gregory noted that some churches or schools had festivals in a residential neighborhood that was not zoned for food establishments and questioned if they could have a mobile food establishment. Hansen stated that they were not looking at private property such as schools and churches. Council Member Engelbrecht questioned the definition of "one location" as a unit could move a few feet and still be in compliance. Hansen stated that staff would rework the definition. Council Member Roden stated streets were not discussed. City of Denton City Council Minutes August 21, 2012 Page 6 Hansen stated that the ordinance was designed to not have businesses sit on the right-of-way. Council Member Roden asked about setbacks. Hansen stated that the setback was 12 feet. Council Member Roden asked about a unit that might want to set up in a business parking lot. If the business met the set back distance, there might not be a place where a unit could set up. Hansen stated that businesses had parking specifications for the maximum number of spaces for patrons and employees and the feeling was to keep those open as designated in the certificate of occupancy. The intent was to not be in the visibility triangle but in some cases it might not harm anything to do that. Hansen continued with mobile food establishments in residential zones. It was felt that wording could be drafted to allow for the units in a residential area when an event was being held. Council Member Engelbrecht asked about ice cream trucks. Hansen stated that those were selling non-potential hazardous foods as it was all prepackaged. Hansen stated that Council had expressed concerns regarding food establishments serving as commissaries. The proposed ordinance would indicate that an existing food establishment could serve as a commissary for a mobile food establishment if (1) it was approved by the health officer, (2) there was an approved vehicle storage facility, (3) there were approved potable water hookups, (4) there were approved wastewater drainage facilities, (6) there were approved grease interceptor hookups and size, and (7) any other accommodations as determined necessary by the health officer to ensure compliance with all regulatory codes. Basically the provision was that in some cases, a food establishment could serve as a commissary. Council Member Gregory stated that the proposal was for the food trucks to go to a commissary every day which would make it impossible for trucks or trailers which remained in one location on a semi-permanent basis. He questioned if TFER required that provision. Hansen stated no but it was required in order to have the units cleaned and resupplied. Council Member Gregory stated that if a unit could be washed out in place so that it was clean, could the requirement to go to a commissary every day be eliminated as long as the vehicle was clean. Mark Cunningham, Director of Planning and Development, stated that staff was looking at a possible Code amendment to allow a mobile food park with water, grease traps, hookups etc. so as to be able to stay for a long period of time. Hansen stated that staff would work on language that a commissary would not be needed as long as a unit could show that it had a place to dump used grease, to get potable water and supplies from a permitted commissary. He stated that staff felt that it was prudent for Denton Health Inspectors to continue to issue Mobile Food Establishment permits only after a thorough City of Denton City Council Minutes August 21, 2012 Page 7 inspection and not just accept a permit from another city. He indicated that the Health and Building Standards Commission was recommending a six month trial run period and then a re- evaluation of the ordinance. Council Member Gregory asked if concession stands would have to meet the requirement of air curtains or an automatically closing door as an alternative to an air curtain. Hansen stated that those were not required with a concession stand. Council discussed whether or not to have push carts in the City. They felt it might be worth exploring some regulations such as where they could be located or if sidewalks were large enough to handle them. Council Member Gregory asked about the definition of a Farmer’s Market and expressed a concern to have some type of a percentage in a market be produce vendors. Hansen stated that nothing in this ordinance dealt with those regulations. 5. Receive a report, hold a discussion and give staff direction regarding the creation of a Public Improvement District within the Rayzor Ranch Town Center development. Linda Ratliff, Director of Economic Development, reviewed the definition of a Public Improvement District (PID). She indicated that this request was different from the 2007 PID request as a majority of the Rayzor Ranch Development was retail. Mark Curran, Piper Jaffray, reviewed the elements of a PID, what a PID could finance, when PID bonds could be issued, and what the payment mechanism was for the PID bonds. In this case, the land was the source of the PID bond credit. The PID debt was secured by a Special Assessment Lien on the PID land. All development entitlements should be in place. The land, not the owners or the City, was the credit. The PID financing for a project benefited the city in that it accelerated project development and the related growth in the City’s total tax base, enhanced project viability by assuring infrastructure would be in place when needed, facilitated private equity investment and debt financing, and was the only available infrastructure financing mechanism to provide upfront funding at long term tax-exempt rates. Rick Rosenberg, DPFG, presented information on how the City’s financial risk was protected. (1) the PID bond issuance and structure were controlled by the City, (2) PID bonds were non- recourse to the City, (3) PID bonds did not reduce the City’s bonding capacity, (4) all out of pocket costs of the City were funded by the PID, (5) there was no reduction of City sales and ad valorem tax revenues, and (6) assessment structure was designed to ensure market acceptable rental rates and equivalent tax rates. He also reviewed the details of the proposed PID structure, the project overview and the detailed improvement areas. A schedule of the proposed financing for the initial PID bonds was also presented. Council Member Gregory asked about qualified expenses. Rosenberg stated they would include roads, wastewater, water, and transaction costs. City of Denton City Council Minutes August 21, 2012 Page 8 Council discussed the pros and cons of the PID proposal, the benefits to the City, financing details, and how the PID was a financing tool for infrastructure. A benefit of a PID was to get the financing up front as opposed to 380 Agreements. The money was only for public improvements and not all done at once. Ratliff stated that staff was seeking direction from Council on how to proceed. Consensus of Council was to bring back a formal proposal for consideration. 6. Receive a report, hold a discussion, and give staff direction regarding the FY 2012-2013 Proposed Budget, Capital Improvement Program, and Five-Year Financial Forecast. City Manager Campbell stated that this item was on the agenda for questions only with no formal presentation. The public hearing on the budget and tax hearing was on this agenda. Council Member Roden asked how much was recommended for the neighborhood incentive grant. Bryan Langley, Chief Finance Officer, stated that an additional $50,000 was included in the proposed budget. Currently there was $33,000 in the fund. Council Member Roden asked about the funds that were already taken out of the program. Langley stated that staff would get more information to Council on the cost of the program. Council Member Roden suggested a separate line item for the grant amount. 7. Hold a discussion and give staff direction regarding the establishment of a standing committee of the City Council of the City of Denton, Texas to be known as the Committee on Citizen Engagement. City Manager Campbell stated that Council Member Roden had asked for consideration of this committee. Staff had provided a resolution and charge for the committee and would place it on a future agenda if the consensus of Council was to proceed. Consensus of the Council was to proceed with the committee. Following the completion of the Work Session, the Council convened in a Closed Session to consider the following: 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 City of Denton City Council Minutes August 21, 2012 Page 9 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 matters, and provide staff with direction regarding such matters. This item was not considered. B. Deliberations Regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Discuss, deliberate, and receive information from Staff and provide Staff with direction pertaining to the acquisition and value of easement lands for public purposes situated in the Gideon Walker Survey, Abstract Number 1330, situated in the City of Denton, Denton County, Texas; and Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. C. Deliberation Regarding Personnel Matters - Under Texas Government Code Section 551.074. 1. Review and discuss the evaluation, duties and status of goals established for the City Manager. The Council convened in a Regular Meeting on August 21, 2012 at 6:30 p.m. in the City Council Chambers. 1. PLEDGE OF ALLEGIANCE 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. Fall Prevention Awareness Month Mayor Burroughs presented the proclamation for Fall Prevention Awareness Month. 2. United Way of Denton County Month City of Denton City Council Minutes August 21, 2012 Page 10 Mayor Burroughs presented the proclamation for United Way of Denton County Month. 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Jerry Vela regarding the naming of a new soccer field complex. Mr. Vela requested that Council consider naming the new soccer field complex after his father, Dr. G. Roland Vela. He spoke regarding the sense of family and community that was evident in his family life. 2. Rudy Rodriguez regarding the naming of a new soccer field complex. Dr. Rodriguez stated that he would like to see the Council approve the naming of the new soccer field complex after G. Roland Vela. He introduced those in attendance who were in favor of the naming. Mayor Burroughs requested that the three citizen reports at the end of the meeting be moved to the front of the agenda. Council was in agreement with that change. 1. Dorothy Damico regarding the naming of a new soccer field complex. Ms. Damico requested that Council consider the naming of the new soccer field complex after Dr. Vela. She presented information on Dr. Vela in the context of a friend who had served the Denton community. 2. Don Smith regarding the naming of a new soccer field complex. Dr. Smith requested that Council consider naming the new soccer field complex after Dr. Roland Vela. He presented information on Dr. Vela's citizenship qualities and how he was an asset to the Denton community. 3. Popo Gonzalez regarding the naming of a new soccer field complex. Mr. Gonzalez stated that he would also like to request Council name the new soccer field complex after Dr. Vela. He presented information regarding Dr. Vela in terms of his community involvement. 4. CONSENT AGENDA Mayor Burroughs noted that Items L and T would be withdrawn and considered individually. City of Denton City Council Minutes August 21, 2012 Page 11 Council Member Gregory motioned, Council Member Roden seconded to approve the Consent Agenda ordinances and resolutions with the exception of Items L and T. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. Approved a noise exception for the event listed below. A. Consider a request for an exception to the Noise Ordinance for the purpose of the 35 Denton Presents: Hot Wet Mess music festival. The event will be held in the North Texas State Fairgrounds on Saturday, September 1, 2012, from noon to 10:00 p.m. The exception is specifically requested to increase decibels for amplified sound from 70 to 75 decibels. Resolution No. R2012-024 B. Consider approval of a resolution approving the issuance of Revenue Bonds by the Housing Finance Development Corporation (HFDC) of Central Texas, Inc. (Lutheran Social Services Of The South Obligated Group Project), Series 2012 in an estimated aggregate principal amount not to exceed $24,000,000; recognizing that the City Of Denton is not responsible for issuing the bonds and has no financial obligation to pay any principal or interest on the bonds; making certain findings in connection therewith; and providing an effective date. Ordinance No. 2012-174 C. Consider adoption of an ordinance accepting competitive bids and awarding a four year contract for the purchase of Fiber Optic Cable for various City departments; providing for the expenditure of funds therefor; and providing an effective date (Bid 4937-Four Year Contract for Supply of Fiber Optic Cable awarded to the overall lowest responsible bidder meeting specification Stuart C. Irby Company for an annual estimated expenditure of $57,500 and a four year estimated total of $230,000). Approved the request listed below. D. Consider approval of the Parks, Recreation and Beautification Board's recommendation to purchase a cast stone sculpture, Ecce Homo, by Octavio Medellin from the Russell Tether Fine Art Galley as public art for the City of Denton. The sculpture will cost $5,000 and is pursuant to the City of Denton Public Art policy approved by Ordinance 2006-105, and funded with Hotel Tax revenues previously authorized and encumbered for expenditure to such purposes; and declaring an effective date. The Parks, Recreation and Beautification Board recommends approval (5-0). Approved the request listed below. E. Consider approval of the Parks, Recreation and Beautification Board's recommendation to purchase a drawing by Coreen Mary Spellman from the Beuhler Fine Art Galley as public art for the City of Denton. The drawing, which will cost $900, is pursuant to the City of Denton Public Art policy approved by Ordinance 2006-105, and funded with Hotel Tax revenues previously authorized and encumbered for expenditure to such purposes; and declaring an effective date. The Parks, Recreation and Beautification Board recommends approval (5-0). City of Denton City Council Minutes August 21, 2012 Page 12 Approved the request listed below. F. Consider approval of the Parks, Recreation and Beautification Board's recommendation to purchase a lithograph, The Slide, by Coreen Mary Spellman from the David Dike Fine Arts Galley as public art for the City of Denton. The lithograph, which will cost $750, is pursuant to the City of Denton Public Art policy approved by Ordinance 2006-105, and funded with Hotel Tax revenues previously authorized and encumbered for expenditure to such purposes; and declaring an effective date. The Parks, Recreation and Beautification Board recommends approval (5-0). Approved the request listed below. G. Consider approving the acceptance of copies of art by Martha Robbins donated by Amanda Addington as public art; pursuant to the City of Denton's Donation of Public Art policy. The Parks, Recreation and Beautification Board recommends approval (5-0). Approved the request listed below. H. Consider approving the acceptance of six watercolor paintings by the late Rob Erdle, donated by Millie Giles, as public art; pursuant to the City of Denton Criteria to Accept Public Art policy. The Parks, Recreation and Beautification Board recommends approval (5-0). Approved the minutes as listed. I.Consider approval of the minutes of: July 16, 2012 July 17, 2012 August 2, 2012 Ordinance No. 2012-175 J.Consider adoption of an ordinance of the City of Denton, Texas, approving an Interlocal Agreement by and between the City of Denton, Texas, and the City of Highland Village, Texas, for the City of Denton Municipal Court to provide a teen court program for the City of Highland Village; providing a ratification clause; and providing an effective date. The Audit/Finance Committee recommends approval (2-0). Ordinance No. 2012-176 K.Consider adoption of an ordinance of the City of Denton, Texas, revising the fats, oils and grease control provisions contained in Chapter 26 of the Denton Code of Ordinances, relating to "utilities," and hereby repealing Sections 26-190 and 26- 191 of the Denton Code of Ordinances; and hereby adopting Article XII - Liquid Waste, Divisions 1, 2, 3 and 4; providing for the purpose and policy of the ordinance; providing for the incorporation by reference of the provisions and recitations contained in the preamble of the ordinance into the ordinance; providing for the applicability and prohibitions of the ordinance; providing for definitions promulgated in Section 26-153 of this chapter; providing for other definitions; providing for installations of grease traps for new facilities and existing facilities; providing for responsibilities of persons subject to the City of Denton City Council Minutes August 21, 2012 Page 13 ordinance; providing for the requirement of a permit; providing for manifest requirements for persons who generate, collect, and transport grease interceptor and grit trap/oil waste; providing for responsibilities for each grease interceptor or grit-trap/oil separator that is pumped; providing for abatement of violations; providing that the City Manager or his designee may seek any and all enforcement remedies necessary to ensure continued compliance; providing a savings clause; providing a misdemeanor punishment of not-to-exceed $2,000 per day for violations of this ordinance for any provision of the ordinance that governs the public health and sanitation, or fails to comply therewith or with any requirements thereof, or a permit or certificate issued thereunder; providing a civil penalty not-to-exceed $5,000 per day for violations of this ordinance that relates to point source effluent limitations, or the discharge of pollutant, other than a non-point source, into a sewer system, including a sanitary or storm water sewer system owned by the city; providing that any person or entity violating this ordinance shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of this ordinance is committed, or continued; together with other designated legal and equitable remedies that are available to the city; providing for publication thereof; and providing for an effective date. Ordinance No. 2012-177 M.Consider adoption of an ordinance authorizing the execution of a Purchase Agreement (herein so called), as attached to the ordinance as Exhibit "A", by and between the Marvin Henderson Estate trust, as Owner, and the City of Denton, Texas, as Buyer, regarding the sale and purchase of (I) fee simple to a 34.92 acre tract situated in the James Edmonson Survey, Abstract No. 400 and the S. Pritchett Survey, Abstract No. 1004; and (II) a drainage easement encumbering a 0.42 acre tract situated in the James Edmonson Survey, Abstract No. 400, all tracts located in the City of Denton, Denton County, Texas, as more particularly described in the Purchase Agreement, located generally in the 3400 block of South Bonnie Brae Street (the ?Property Interests"), for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway for the purchase price of Three Hundred Fourteen Thousand, Eight Hundred Sixty Nine Dollars and No Cents ($314,869.00), and other consideration, as prescribed in the Purchase Agreement; authorizing the expenditure of funds therefor; and providing an effective date. Ordinance No. 2012-178 Consider adoption of an ordinance finding that a public use and necessity exists to N. acquire fee simple to a 1.364 acre tract situated in the M.E.P. & P.R.R. Company Survey, Abstract No. 927, located in the City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 1000 block of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to make an offer to J.G. Duncan and wife, Frances Duncan to purchase the Property Interests for the purchase price of Eighty Three Thousand Six Hundred Eighty Dollars and No Cents ($83,680.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement"), as attached to the ordinance and made a part City of Denton City Council Minutes August 21, 2012 Page 14 thereof as Exhibit "B"; authorizing the expenditure of funds therefor; and providing an effective date. Ordinance No. 2012-179 O.Consider adoption of an ordinance authorizing the execution of a Purchase Agreement (herein so called) attached to the ordinance as Exhibit "A", by and between Youvonne Matzinger and the Estate of Philip Hardy Matzinger, deceased, as owner, and the City of Denton, Texas, as Buyer, regarding the sale and purchase of fee simple to a 0.019 acre tract situated in the M.E.P. & P.R.R. Company Survey, Abstract No. 927, located in the City of Denton, Texas, located generally in the 1000 block of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway, for the purchase price of Three Thousand Six Hundred Dollars and No Cents ($3,600.00), and other consideration, as prescribed in the Purchase Agreement; authorizing the expenditure of funds therefor; and providing an effective date. Ordinance No. 2012-180 P.Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to a 0.398 acre tract located in the M.E.P. & P.R.R. Co. Survey, Abstract Number 927, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 1100 block of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to make an offer to Leroy Barber and Lucy I. Barber, Trustees of the Leroy Barber and Lucy I. Barber Family Trust, dated May 18, 1994 (the "Owner") to purchase the Property Interests for the purchase price of Fifty Five Thousand Dollars and No Cents ($55,000.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement"), as attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. Ordinance No. 2012-181 Q.Consider adoption of an Ordinance finding that a public use and necessity exists to acquire fee simple to a 1.968 acre tract in the M.E.P. & P.R.R. Co. Survey, Abstract Number 927, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 1200 block of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to make an offer to Haeussler Properties, LP (the "Owner") to purchase the property interests for the purchase price of Two Hundred Eleven Thousand Five Hundred Dollars and No Cents ($211,500.00), as prescribed in the Contract of Sale (the "Agreement"), as attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. City of Denton City Council Minutes August 21, 2012 Page 15 Ordinance No. 2012-182 R.Consider adoption of an ordinance finding that a public use and necessity exists to acquire (I) a sanitary sewer easement encumbering a 0.438 acre tract, and (II) a temporary construction, grading and access easement, encumbering a 0.134 acre tract, all tracts located in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 3900 block of South Interstate Highway 35 East (the "Property Interests"), for the public use of expanding and improving the municipal sanitary sewer system; authorizing the City Manager or his designee to make an offer to Mahogany Run Investments, L.P., a Texas limited partnership (the "Owner") to purchase the property interests for the Purchase Price of Two Hundred Ninety One Thousand Three Hundred Forty Four Dollars and No Cents ($291,344.00), and other consideration, as prescribed in the Easement Purchase Agreement (the "Agreement"), as attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefor; and providing an effective date. Ordinance 2012-183 S.Consider adoption of an ordinance of the City of Denton, Texas, authorizing the execution of a first amendment of right-of-way use and license agreement, by and between the City of Denton ("City") and Wells Fargo Bank Texas, N.A. ("Wells Fargo"), amending that certain right-of-way use and license agreement, between the City and Wells Fargo, dated April 4, 2006, granting Wells Fargo rights to utilize certain City rights-of-way located generally at the southwest corner of the intersection of East Walnut Street and South Austin Street, as more particularly described therein; and providing an effective date. Ordinance No. 2012-184 U.Consider adoption of an ordinance of the City of Denton, Texas, amending the Fiscal Year 2011-12 Budget and Annual Program of Services of the City of Denton to allow for an adjustment to the Health Insurance Fund of one million four hundred twenty eight thousand, two hundred fifty one dollars ($1,428,251) from the original budget amount of eighteen million, five hundred twenty four thousand, eight hundred sixty two dollars ($18,524,862) to nineteen million, nine hundred fifty three thousand, one hundred thirteen dollars ($19,953,113) to provide for additional expenditure authority related to health care claims and fees; declaring a municipal purpose, providing a severability clause; providing an open meetings clause; and providing an effective date. The Audit Finance Committee recommends approval (2-0). Ordinance No. 2012-185 V.Consider adoption of an ordinance of the City of Denton, Texas, amending the Fiscal Year 2011-12 Budget and Annual Program of Services of the City of Denton to allow for an adjustment to the Traffic Safety Fund of four hundred sixty thousand, eight hundred eighty four dollars ($460,884) from the original budget amount of three hundred seventy seven thousand dollars ($377,000) to eight hundred thirty seven thousand, eight hundred eighty four dollars ($837,884) to provide for additional expenditure authority related to red light camera contract City of Denton City Council Minutes August 21, 2012 Page 16 costs; declaring a municipal purpose, providing a severability clause; providing an open meetings clause; and providing an effective date. The Audit Finance Committee recommends approval (2-0). Council considered Item L. Council Member Watts left the meeting with a conflict of interest. Ordinance No. 2012-186 L. Consider adoption of an ordinance finding that a public use and necessity exists to acquire (I) fee simple to a .07 acre tract; (II) a utility and slope easement encumbering a 0.07 acre tract; (III) a utility and drainage easement encumbering a .01 acre tract; (IV) a drainage easement encumbering a .03 acre tract; (V) a slope easement encumbering a 213 square foot tract; and (VI) a temporary construction, grading and access easement encumbering a 0.08 acre tract, all tracts located in the City of Denton, Denton County, Texas, and situated in the O.S. Brewster Survey, Abstract Number 56, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 2200 block of South Bonnie Brae Street (the "Property Interests"), for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway; authorizing the City manager or his designee to make an offer the Christopher M. Watts (the "Owner") to purchase the Property Interests for the purchase price of Nine Thousand Three Hundred Twenty Two Dollars and No Cents ($9,322.00), and other consideration, as prescribed in the Purchase Agreement, as attached to the Ordinance as Exhibit "B"; authorizing the expenditure of funds therefore; and providing an effective date. Council Member Gregory motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. Council Member Watts returned to the meeting. Council considered Item T. Ordinance No. 2012-187 T. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the execution of a Contract for Sale of Real Estate ("Contract"), by and between the City of Denton, Texas ("City") and Denton County, Texas ("County") contemplating the purchase by the City from the County of a 2.0 acre tract, more or less, located in the Hiram Sisco Survey, Abstract No. 1184, Denton County, Texas, and located generally at the southeast corner of the intersection of East McKinney Street and Oakland Street, as more particularly described therein, for the purchase price of Seven Hundred Seventy Nine Thousand Eight Hundred Ninety Five and No/100 Dollars (779,895.00); and providing an effective date. City of Denton City Council Minutes August 21, 2012 Page 17 Council Watts questioned page 4 of the contract, the final paragraph, as it discussed indemnities and situations after closing. He questioned if the County would be leasing the property from the City after closing. Richard Casner, Deputy City Attorney, stated that at this point in time, the County indicated that they would be able to move everything out on time with no lease back. Council Member Watts questioned the funding mechanism and if the funding was from the non- Airport and non-park gas funds. City Manager Campbell stated that was correct. Council Member Watts stated that he did not have a problem with the purchase but because the property was identified as catalyst for the downtown area, it was eligible for TIF reimbursement at the same time. If the City partnered with someone and exchanged the property for development, a mechanism was still there to get some value back to the General Fund. He questioned if the Council would be willing to add a condition that the TIF refund would reimburse at least the purchase price back to the General Fund. City Manager Campbell stated that right now it was not known about the use of the property. Council Member Watts stated if the property was used for a governmental purpose, then he could see no refund. At this time there appeared to be no need for a municipal purpose for the property and it seemed to be a catalyst for development in the downtown. City Manager Campbell stated he was not sure that type of language could be in the ordinance at this point because it was not known what would be the use of the property and what were the limitations for TIF money for a reimbursement. Council Member Watts stated that in the financing documents the property was a TIF proposal and the location was an identified location for a catalyst project. The proposed funding was from the General Fund as opposed to TIF funds. He assumed the City could get at least the purchase price returned to the General Fund. City Manager Campbell stated that Council could express a desire to do so at the time something was done with the property. Council Member Engelbrecht asked if the funds would go back into the account they came from. Council Member Watts agreed with that and questioned how many years down the road might that fund no longer be in existence. The main thrust was to get the money refunded to the City. Council Member Engelbrecht stated that he would agree in terms of bringing it back and restrict the use in the future. Council Member Gregory questioned if either an amendment or separate ordinance would work to remind future Councils of what this Council would hope would happen if the building was not used for governmental purposes. He questioned if an ordinance passed by this Council would City of Denton City Council Minutes August 21, 2012 Page 18 bind a future Council or could a future Council pass an ordinance to negate what the current Council approved. City Attorney Burgess stated that a future Council could amend an earlier dated ordinance. There were a couple of ways to approach what the Council was trying to do. One was to pass the ordinance as written due to time constraints and then return with a resolution indicating the intent of the Council in terms of reimbursement. If Council wanted such language in the proposed ordinance, staff could craft the language, but it might be best to table the item for a short time to allow staff to prepare that language. Council would then return to the item once the language was completed. Council Member Gregory felt it was important to have something to memorialize the Council's intentions. He was not sure that it could be done at this meeting. He felt some of the language would indicate that if the building were for governmental usage, there would be no reimbursement. He also felt that if additional environmental work had to be done, the city should be reimbursed. City Attorney Burgess noted that it was usually helpful to have time to craft the language so long as the deadlines for the real estate transaction were met. Council Member King indicated that he was not sure if the funds should come from the TIF but was in agreement with the reimbursement. Council Member Watts stated that he had asked the TIF Board to consider this item several months ago. This property was specifically listed as a catalyst project. The TIF Board could decide when and how to do the reimbursement. Council Member King did not see it as a requirement that the TIF Board consider the item first as there was not much funding at this point in the TIF account. Council Member Roden asked if there was a particular fund or group of funds the money would be going into other than the General Fund. Council Member Watts stated no but it was just that the Council enacted an ordinance that created the TIF with financial documents that accompanied that. One of those documents was the location of this property as a specific project. The City was spending money that it might not get back into whatever fund it came out of to allow expenditures for a community usage. He did not want it to go back into the TIF fund. He was hesitant to vote on the contract without that assurance. A resolution in the future might not pass. Council Member Gregory stated that earlier conversations also expressed concern about using the gas well money again in another situation. If the property sold and the money went back in that fund, it would be available to use for another project. He was interested in being able to repay that fund if the property were sold in the future. Mayor Burroughs stated that he agreed with concept of returning the funding. He felt the best way to approach it was in the form of a resolution as there were many facets involved. If the property were resold into private development the City would also get reimbursed which was a City of Denton City Council Minutes August 21, 2012 Page 19 different possibility which could be done in a resolution. A question was raised whether to define where the funds were coming from as it was not listed in the ordinance. City Attorney Burgess stated that would not have to be done. The language states that the City Manager would determine where the funds would come from. Council Member Engelbrecht questioned discussing the resolution at this point in time as it was not posted on the agenda. Mayor Burroughs stated that the resolution could be done at a subsequent meeting regarding utilization of the property but not at this meeting. Council Member Watts motioned, Council Member Roden seconded to adopt the ordinance as presented. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district classification and use designation subject to a restrictive overlay on approximately 3.3 acres. The property is located east of Bell Avenue, approximately 500 feet north of the northeast intersection of Sherman Drive and Bell Avenue and is approximately 185 feet south of Sunrise Cove within the City of Denton, Denton County, Texas: providing penalty in the maximum amount of $2,000.00 for violations thereof severability and an effective date. (Z11-0026) The Planning and Zoning Commission recommends approval (7-0). This item was postponed from the July 17, 2012 City Council meeting. Erica Marohnic, Senior Planner, presented the details of the proposal. This was a proposed rezoning of 2400 North Bell with the intent to rehabilitate the existing structure and allow for Assisted Living. She would be reviewing the recommendations as directed by Council at the July meeting. The Council directed Legal and the Planning staff to draft language that would allow the proposed Elderly Housing use to continue on the subject property and ensured that the preservation of the façade. However, no tools could be found to maintain the old usage. An overlay district was crafted with six conditions. (1) The exterior facade of the former Fairhaven Nursing Home would not be altered, except for maintenance, without City Council approval. (2) The height of the structure would not be altered, except for maintenance, without City Council approval. (3) With the initial rehabilitation of the structure, the property owner responsible would submit a plan and building elevations for any proposed alternations or maintenance to the City of Denton City Council Minutes August 21, 2012 Page 20 exterior façade and height of structure. The site plan and building elevations would be reviewed by staff in accordance with Section 35.3.7 of the Denton Development Code. After the structure was restored, rehabilitated or improved, any future maintenance would not require a site plan and building elevations. The property owner would need to advise staff on the maintenance activity proposed so staff could verify that the activity was not an alteration. (4) Staff had the authority to approve a site plan and building elevations that propose only maintenance to the exterior façade or to the height of the structure. Any proposed alteration to the exterior facade or height of the structure would be approved the City Council at a public meeting. Staff would review and make recommendations to the City Council. (5) Maintenance was defined as the repair, replacement or stabilization of deteriorated or damaged architectural features. It also included alternations necessary to meet applicability accessibility standards or to otherwise facilitate use by the elderly, or other persons with impaired mobility. All maintenance, to the extent practicable with modern materials, methods, components would endeavor to preserve the appearance of the original façade. (6) Alteration was any construction, renovation or improvement that changed the appearance of the structure’s functional exterior components. Council Member Roden asked if the six conditions were the substance presented at the last meeting with no real difference. Marohnic stated that the conditions were much more defined. The Historical Preservation Officer would review any changes as to whether maintenance or an alteration was being done. Council Member Roden questioned if an alteration was proposed to change the appearance of the facade what mechanism would bring it to Council. Marohnic stated that it would come directly to Council for approval. Aaron Leal, Deputy City Attorney, stated that if an alteration was proposed, staff would request a site plan and building elevation which they would review and forward to Council for consideration. Council Member Roden stated that Council would consider an amendment to the site plan. Leal replied correct. Council Member Watts questioned who signed the application for the zoning request. Marohnic stated that Larry Reichhart had provided an owner authorization letter to act on behalf of the owner. Mayor asked how the proposed overlay was different structurally as far as enforcement than if there had been a tool to reinstate the exception. That was the reason he wanted to delay the proposal from the prior meeting. He recognized that the City didn't have that tool but if it did what would be the difference to do the exception. City of Denton City Council Minutes August 21, 2012 Page 21 Leal stated that this affected the site design and would differ from the proposed tool. Mayor Burroughs noted that the overlay was more restrictive than the special exception. The overlay proposed would accomplish preservation of facade, with restrictions that were not imposed when the exception was in place. He questioned if the owner flipped the property a day after approved, could someone else ignore the overlay and build multi-family or a larger structure. Leal stated that in order to not follow the overlay, someone would have to come to Council for a zoning amendment or change to a different zoning category. Zoning goes with the land and not with the property owners. Mayor Burroughs stated that it would be the same process as Council was doing now in that it would have to go to the Planning and Zoning Commission and Council. He felt people were afraid that the overlay was less restrictive than keeping the current zoning. Council Member Gregory questioned if these restrictions prohibited the owner from razing the building. Leal stated that they did not prevent that. Mayor Burroughs stated that the property owner could build NR3 right now and could bulldoze the property if the change in zoning were denied. Council Member Roden stated that the Development Code as it related to a historic landmark property prevented obtaining a permit to demolish until it went through a specific process. That could be an added provision to the other six provisions. Leal thought that might be best for a Closed Session discussion. City Attorney Burgess stated that the issue was sensitive and Council might consider a Closed Session for discussion or she could present information in her staff report. Council Member Watts stated that the exterior facade as shown in Exhibit B could not be altered without City Council approval. He questioned how a demolition was not an alteration and how could it be torn down and rebuilt with something not representative of Exhibit B. Mayor Burroughs noted in his experience a tear down was a different definition. Council Member Gregory stated that the agenda wording contained a provision that Council could go into a Closed Meeting for any issue allowed and indicated that he would like to go into Closed Session. City Attorney Burgess stated that the agenda could be used to go into Closed Session if necessary to provide guidance to the Council. Mayor Burroughs suggested tabling the item, completing the rest of the agenda, going into Closed Session, and then coming back into session. City of Denton City Council Minutes August 21, 2012 Page 22 Council Member Gregory motioned, Council Member Watts seconded to table the item until the last item on the agenda, have a Closed Session and then return to consider the item. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. B. Consider nominations/appointments to the City's Boards & Commissions. Council considered nominations/appointments to the following boards: 1. Airport Advisory Board 2. Animal Shelter Advisory Committee 3. Community Development Advisory Committee 4. Health & Building Standards Commission 5. Library Board 6. Parks, Recreation and Beautification Board 7. Planning and Zoning Commission 8. Public Art Committee 9. Traffic Safety Commission 10. Zoning Board of Adjustment Council Member Roden motioned, Council Member Watts seconded to approve the nominations. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. 6. PUBLIC HEARINGS Ordinance No. 2012-159 A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating the property located at 903 W. Oak Street as a historic landmark under Section 35.7.6 of the Denton Development Code; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date. (HL12-0002) The Planning and Zoning Commission recommends approval (6-0). Bran Lockley, Development Review Committee Administrator, stated that this was an application for a historic designation for 903 W. Oak. The property was located in the center of the Oak-Hickory Historic District. The Denton Development Code listed criteria for approval which the property had met. The Planning and Zoning Commission and the Historic Landmark Commission recommended approval. The Mayor opened the public hearing. Mike Cochran, 610 W. Oak, spoke in approval. The Mayor closed the public hearing. City of Denton City Council Minutes August 21, 2012 Page 23 Council Member Watts motioned, Council Member Gregory seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. C. Hold a public hearing and receive citizen input on the 2012-13 Proposed Budget. Brian Langley presented information on both items B and C. He stated that the proposed budget presented to Council maintained the current tax rate, had no base rate for electric, an 8% increase for water, a 9% increase for wastewater and other miscellaneous rate increases. Final adoption of the budget was scheduled for September 11th. A second public hearing would be held next week on August 28th. The Mayor opened public hearing on both items. The following individuals spoke during the public hearing: Sharon Ersch, PO Box 668, Krum, 76249 – against the proposed budget. Trevor Bundy, 3825 Willowick Circle, Denton, 76201 - against the proposed budget. Larry Reichhart, 1608 E. Windsor, Denton - concerned about increases in water and wastewater rates. Pricilla Samano, 206 E. McKinney, Denton - hard to pay increased fees. The Mayor closed the public hearings for B and C. Comment Cards were submitted by: Barbara Halbert, 2301 Hollyhill Lane, Denton, 76205 – opposed Joyce Poole, 3021 N. Bonnie Brae, Denton, 76207 - opposed Mayor Burroughs read a statement required by the Tax Code indicating “this budget will raise more total property taxes than last year’s budget by $2,099,160 or 4.75%, and of that amount $918,440 is tax revenue to be raised from new property added to the tax roll this year.” No action was required by Council at this time. C. Hold a public hearing on a proposal to adopt a tax rate of $0.68975 per $100 valuation, which will exceed the lower of the rollback rate or the effective rate. This item was considered with Item B. 8. CONCLUDING ITEMS A. 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 City of Denton City Council Minutes August 21, 2012 Page 24 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 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. Council Member Gregory requested that when staff was ready to purchase the property for the new soccer complex, they submit a resolution to name the complex after G. Roland Vela. Council Member Gregory requested a report from staff regarding a request for a historic landmark designation for City Hall West and what that would involve and the implications for the building. Council Member Roden asked for a discussion on parking regulations in the downtown area. There appeared to be a new environment created with increased activity in that area. Council Member Watts requested a resolution regarding the purchase of the County property. Mayor Burroughs announced that the North Texas State Fair was open and encouraged all to attend. Council Member Gregory commented that the Council would be hosting a reception for th new/board commission members and a swearing in ceremony on September 5. That would be followed by a board and commission training session. Council returned to Closed Session at 9:04 p.m. to discuss the following as applicable under Consultation with Attorney, under Texas Government Code Section 551.071. A. Consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 3 (NR-3) zoning district to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district classification and use designation subject to a restrictive overlay on approximately 3.3 acres. The property is located east of Bell Avenue, approximately 500 feet north of the northeast intersection of Sherman Drive and Bell Avenue and is approximately 185 feet south of Sunrise Cove within the City of Denton, Denton County, Texas: providing penalty in the maximum amount of $2,000.00 for violations thereof severability and an effective date. (Z11-0026) The Planning and Zoning Commission recommends approval (7-0). This item was postponed from the July 17, 2012 City Council meeting. Council returned to Open Session at 9:27 p.m. City of Denton City Council Minutes August 21, 2012 Page 25 Council Member Engelbrecht motioned, Council Member Gregory seconded to remove Item 5A from the table. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. Deb Conte, 2106 N. Bell, Denton, 76209, spoke against the proposal. She suggested any alterations to the building should go to the Historic Landmark Commission and not to Council. Council Member Roden asked Conte if there would be an added sense of protection to add a condition that would restrict the ability to demolish the property without going through City Council. Conte stated yes and the alternations, etc would be more appropriate at the Historic Landmark Commission instead of the Planning Department. Larry Reichhart, representing the property owner, stated that they would be opposed to a Historic Landmark Committee review due to a timing issue. The building was not historic and staff could review a sample of what the property owner wanted to do. If the proposal would change the appearance of the structure, it would go to Council after a review by staff. If the proposal was similar to what was there and would not change the appearance, then the property owner could just do it. He was in favor of staff approval or going to Council. He felt the overlay and conditions in the overlay protected the neighborhood whether this developer or another developer worked with the building. He was willing to put demolition in the definition of alternation. The main issue of contention was a trust factor in the applicant. Any developer would have to adhere to the overlay conditions. Council Member Gregory asked Reichhart that as a representative of the applicant was he comfortable with the language to include demolition in alterations. Reichhart replied correct. Mayor Burroughs questioned what different could be done with the property if there were a new owner who did not like overlay. He questioned what could they could do if pushed to the extreme with the property other than leaving the current facade preserved or come back to Council with anything else. Marohnic stated that some of the other permitted uses in the overlay included agriculture, single family, home occupation, live stock, elderly housing. Mayor Burroughs stated that the property owner would have to come to Council to demolish the property. Marohnic stated that staff had left all of the permitted uses by right. Council Member Engelbrecht stated the property could be used as a church by right. Marohnic replied correct. City of Denton City Council Minutes August 21, 2012 Page 26 Council Member Gregory asked if the request was denied, what would be the zoning on the property. Marohnic stated it would be NR-3. Council Member Gregory asked if with that zoning could the owner request a demolition permit and would that go to the Historic Landmark Commission or Council. Marohnic stated that yes they could request a demolition permit and would not have to go the Historic Landmark Commission or Council. Council Member Gregory stated that any kind of construction allowed under NR-3 except for elderly housing could be done. Marohnic replied correct. Council Member Gregory stated that the proposed zoning change with the restrictions discussed including placing demolition in the definition of alternation would provide more protection on the property than currently was there. Marohnic replied there were more restrictions on the property. Council Member Watts questioned if the neighborhood was more comfortable with NR-3 and the ability to have the structure torn down or with NRMU-12 with restrictions. If the zoning change was denied and the property remained NR-3, the building could be torn down with only a demolition permit. He felt that was less acceptable than the zoning with the restrictions in place. Conte stated that there were two issues - one was with the building and one was the usage by the zoning change. She felt the owners would be less likely to flip the property with the underlying zoning of NR-3 than NRMU-12. Council Member Watts stated that with NR-3 zoning the likelihood that the building would be torn down was remote due to financial statements. Conte replied yes because the property could not be flipped with the NR-3 zoning. Mayor Burroughs stated that if the property could not be flipped because of the NR-3 zoning, the property would not be used and would remain a vacant building with no possible use unless to go through this same procedure again. There was no other way to keep the building as elderly housing except for exactly what was being doing at this meeting. The options were to either shutter the building that could not be used or bulldozed the property unless the proposal with the overlay restrictions was approved. Conte stated that the neighborhood did not want a blighted building. She felt that the restrictions gave as much protection as possible to the neighborhood. Council Member Gregory motioned to adopt the ordinance as presented with an amendment to Item #6 that alteration would include demolition of the structure. Any alteration including City of Denton City Council Minutes August 21, 2012 Page 27 demolition would have to come before Council. He felt that provided the neighborhood more protection than the current zoning. Council Member Roden felt that having preservation of the building was a win-win and changes to the use of building would have to come to Council. Council Member Watts stated that he heard two primary interests from the neighborhood. One was not to have a blighted area and the other was not to tear down the structure. Trust needed to be with Council that they had worked hard to craft something for the neighborhood and there was a need for a level of trust in elected officials and all parties involved. The restrictions in place were very stringent and any developer would have to come to Council to make any changes Council Member Engelbrecht stated that one concern was to save this building which currently only had one use. He felt it should have several uses in order to save it for the future. The trend today was mixed use in neighborhoods and not single use. Council Member King felt Council did the best they could do under the circumstances. He felt that doing business in Denton might result in businesses remaining empty because of so many restrictions on the property. Mayor Burroughs noted that one problem with a special exception was that it would not protect the facade or prevent it from being demolished. It would not have protected it at all. If the City had a planned development tool, it might be a spot zoning issue which could not be done. Placing restrictions that forced it to come into public view was the only logical procedure. Council Member Gregory motioned, Council Member Engelbrecht seconded to adopt the ordinance with the addition of demolition to the definition of alteration. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no further continuation of the Closed Meeting. With no further business, the meeting was adjourned at 10:10 p.m. ____________________________________ ____________________________________ MARK A. BURROUGHS JENNIFER WALTERS MAYOR CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS