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November 13, 2012 Minutes CITY OF DENTON CITY COUNCIL MINUTES November 13, 2012 After determining in Open Session that a quorum was present, the City Council convened in a Closed Meeting on Tuesday, November 13, 2012 at 3:00 p.m. in the City Council Work Session Room at City Hall. PRESENT: Council Member King, Council Member Gregory, Council Member Engelbrecht, and Council Member Roden ABSENT: Council Member Watts, Mayor Pro Tem Kamp, Mayor Burroughs Council Member Engelbrecht called the meeting to order, announced that a quorum of the Council was present and that Council would be going into a Closed Session. 1. Closed Meeting A. Consultation with Attorneys - Under Texas Government Code Section 551.071; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. 1.Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the A.N.B. Tompkins Survey, Abstract Number 1246, Denton County, Texas (located generally in the 2100 block of South Bonnie Brae Street), within the City of Denton, Texas. Consultation with the City's attorney's regarding legal issues associated with the acquisition or condemnation of tracts 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 Denton 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 proceedings or potential litigation. B. Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Phase I and proposed Phase II Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, moratorium on drilling and production and claims associated therewith, statutory preemption and/or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement of the ordinance. Mayor Burroughs and Mayor Pro Tem Kamp arrived during the Closed Session discussions. City of Denton City Council Minutes November 13, 2012 Page 2 Council recessed from the Closed Session at 5:25 p.m., convened in Open Session and considered the following in a Special Called Session. Ordinance No. 2012-319 1. Consider adoption of an ordinance of the City of Denton, Texas to declare the intent to reimburse expenditures from the unreserved fund balance of the General Fund with Certificates of Obligation with an aggregate maximum principal amount not to exceed $200,000 to allow for architectural services and Leadership in Energy and Environmental Design ("LEED") certification of the Linda McNatt Animal Care and Adoption Center Facility, and providing an effective date. Captain Scott Fletcher, Denton Police department, stated Item #1 dealt with the funding of the Linda McNatt Animal Care and Adoption Center facility with Certificates of Obligation. The next Capital Improvement Program bond sale was scheduled to occur in April 2013. Staff would like to proceed with the design of the facility prior to the sale of the Certificates of Obligation. To accomplish this, staff was recommending that these expenses be paid out of the Unreserved Fund Balance of the General fund. With the approval of the ordinance, these funds would be reimbursed once the Certificates of Obligation were sold. Item #2 dealt with an amendment to the architect contract for the Animal Services building for LEED certification. Staff was looking at achieving the LEED Bronze certification. Currently the construction documents had 30 LEED points with 40 points needed for the Bronze certification. It was felt that additional points could be achieved through minimal changes to the drawings, comprehensive changes to the General Requirements and specifications of the construction contract, and the necessary LEED consultant project management. The addition of LEED Certification was estimated to require a delay of approximately two months for design elements and construction. Staff discussed the issue with the Committee on the Environment at their November 5, 2012 meeting with the Committee voting to recommend the pursuit of LEED certification. Mayor Pro Tem Kamp stated that past councils, this council and the City desired to have sustainable buildings. LEED certification was mentioned in the 2008 Master Plan for the shelter and was discussed in joint building committee discussions. When the project was made smaller, LEED certification was one of the first options that went away due to the funding. She did not see that it had been left out of the contract at that time. It was uncertain at this point if the addition of the LEED certification would result in a delay of the facility. There were funds available to pursue this certification. The Committee on the Environment asked Council to approve both of these items Mayor Pro Tem Kamp motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. Council Member Engelbrecht requested a report on the cost of the LEED certification once the project was completed. City of Denton City Council Minutes November 13, 2012 Page 3 Ordinance No. 2012-320 2. Consider adoption of an amendment an ordinance of the City of Denton, Texas amending a Professional Services Agreement (PSA) with Connolly Architects and Consultants for design services and construction oversight for the Linda McNatt Animal Care and Adoption Facility entered into on January 10, 2012; and providing for an effective date. Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden – “aye”. Motion carried unanimously. 3. 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 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 did not have any items. Mayor Pro Tem Kamp left the meeting. Following the completion of the Special Called Session at 5:34 p.m., the Council returned to the Closed Session to continue discussion of the items listed. Following the completion of the Closed Session, Council convened in Open Session at 6:52 p.m. nd to consider the 2 Tuesday Session Items. 1. Receive a report, hold a discussion, and give staff direction regarding a project submittal for the 2012 Texas Transportation Enhancement Program Call for Projects. Jim Coulter, Director of Water Utilities, stated that staff was bringing forward a grant application for the TxDOT Transportation Enhancement Program. To be eligible for consideration, all projects had to demonstrate a relationship to the surface transportation system and incorporate at least one of 12 categories of projects. Staff worked with the Parks Department to determine a project to submit in the Facilities for Pedestrian and Bicycles category. Eighty percent of the construction costs were reimbursable and the City’s share of the project had to be cash, not in- kind services. Engineering and right-of-way acquisition were not reimbursable. The proposed project would involve city parks, streets, state roadways and state property. City of Denton City Council Minutes November 13, 2012 Page 4 Emerson Vorel, Director of Parks and Recreation, presented the details of the project. The Evers Park Bridge and Trail Project would connect Evers Parks, Evers Park Elementary School, Strickland Middle School and the North Branch Library to the McKamy Evers Estate and North Point subdivisions to the north. Currently there was no direct linkage of those areas without traveling along FM 2164 to the east. The project would also extend the hard surface trail north to the UNT Discovery Center and North Lakes Park, and south to connect with the planned bicycle lanes on Windsor and Hinkle Streets and the existing Cooper Creek Trail. Staff was still developing projects costs but it appeared that the project would be in the $1.25 million range. Council Member Roden asked if Vorel was aware of the existing trail at Discovery Park. Vorel indicated that he was not familiar with that trail. Council Member Roden said he would get Vorel some information on the trail. Council Member Gregory directed staff to move forward with project and to bring a ratification resolution to the November 19, 2012 Council meeting to attach to the proposal. 2. Receive a report, hold a discussion, and give staff direction regarding the Phase II amendments of the City's Gas Well Ordinance. Darren Groth, Gas Well Administrator, presented an update on the proposed ordinance. The presentation would contain background information, AIS exhibits and emergency response information. Background information – At the November 6th Work Session Council received a briefing regarding previous actions and meetings, Phase II revision processes, future timeline and a description of exhibits to the backup material. During Work Session Council requested staff to provide additional information which was included in the AIS Exhibits. Exhibit 1 was revised to include current and proposed provisions, Exhibit 2 compared items presented in the DAG Report and the Minority Report, Exhibit 3 was a comparison table of municipal bonding amounts, and Exhibit 4 was a municipal comparison table of required insurance amounts. Council Member King suggested alternative amounts for the liability insurance and workers compensation insurance in order to provide better coverage. Council Member Roden stated that he did not see Pre-Kindergarten listed as a protected use. Groth stated that there was a similar provision in the zoning provisions which was used instead of making another category. Aaron Leal, Deputy City Attorney, stated that additional wording could be added to include preschool and kindergarten. Council Member Gregory suggested an overall look at expanding that definition for the whole Denton Development Code to include pre-kindergarten or nursery schools and community colleges. City of Denton City Council Minutes November 13, 2012 Page 5 Council Member Roden suggested including universities and colleges and questioned if dormitories should be included. Council Member Engelbrecht suggested also looking at other large concentrations of people. Groth stated that the protected use category was for more receptive receptors such as young children. Council Member Roden questioned the definition section regarding habitable structure verses dwelling. Groth stated that a change could be made in order to be consistent with matching definitions. Council Member Roden noted that public libraries and public parks were included but there were other similar uses such as public pools, a senior center, recreation centers, city halls, public transit facilities that might fall under a similar framework for protected uses. Groth stated that suggestion could be added to the Items to Consider matrix. Mayor Burroughs stated that the key would be to identify the purposes of the protected use and the city's ability to regulate that usage. He suggested broader brackets and tie more into the concept of why that use was being protected rather than a detailed list of examples. He did not want this to be an exhaustive list. Council Member Gregory stated that he had several items for staff to work on: (1) cathodic protection devices to prohibit degradation of piping in the well which might damage city nearby city assets, (2) storm water issue in terms of contaminated water going through a well site and depositing contaminants on nearby soil and damaging that area, (3) require some type of a plan that would prohibit or restrict the pollution of the soils in or around the drilling site, (4) roads and driveways associated with the drilling sites in terms of subjecting the development to the same kinds of requirements such as curb cuts and access so as to not cause damage to current roadways with mud and gravel. Mayor Burroughs felt that if permanent roadways were added out in vacant areas there might be an effect on water movement and cause unintended consequences. Restoration of the land would be difficult to do with a permanent roadway as it was difficult to undo. Council Member Gregory stated that on one hand it appeared that gas well developers should prepare a site like any other developer in the city and be held accountable like other developers. City trucks were washed before leaving the landfill to keep City roads clean and he felt that should happen with the gas well areas. On the other hand it might be more appropriate to have a certain amount of the roadway back towards the drilling site to be more permanent or have an area to clean off the trucks. A gas well should not have a negative impact on the roads when other areas were not allowed to do that. Groth stated that there was a TxDOT permit for a temporary roadway with a mud shaker. City of Denton City Council Minutes November 13, 2012 Page 6 Council Member Gregory stated that he wanted to keep dirt and dust off the roadway. Perhaps a standard would be to pave the entire roadway if the well was within a certain amount of distance from a residence. Council Member King suggested giving a consideration for a certain time frame to do any paving as not all wells were successful. Mayor Burroughs noted to keep in mind what could be regulated and what could not be regulated. Council Member King stated that a rural area might be different from a city setting. Council Member Roden questioned the measurement of setbacks as one measurement was indicated from the production site and another was from the center of the well rather than from the site. He wondered if the amount of setback was a completed issue or if Council would want to revisit that in Phase II. Council Member King stated that in Phase I, Council was trying to figure out a balance for the setbacks in order to not do a taking. Council Member Gregory requested an updated comparison of protected uses compared to the other cities staff was looking at. Mayor Burroughs requested feedback on options for creating public notices of wells that were drilled within the City in order to provide individuals notice that they were in existence so that future owners had the ability to know that they were there. He requested options for notices as the wells might affect potential property values and would also help in making future decisions for protected uses. Council Member Engelbrecht asked if there was a process in the GIS system to track when a well was permanently closed. Groth stated that the proposal was to keep the identification in the GIS system to track the locations. Council Member Roden stated that he was concerned about the provision to allow a reduction in the setback upon a notarized statement by the property owner. Some of those might be a public park or public school and then who would be the owners of those. Groth stated that an option might be to require a specific use permit made through the Planning and Zoning Commission to reduce the setbacks. Council Member Roden stated that he was concerned about dwellings that were not owner occupied. It was one thing if the property owner lived on the property and agreed to have the setback reduced and another if the property owner did not live on the property. If the property owner did not live on the property, he would be making a decision for other people. He felt it was not clear that the owners could do that. Another example would be an apartment complex with the owners living in another state. The current provision could allow the owners to reduce City of Denton City Council Minutes November 13, 2012 Page 7 the setback provision and thus affect many people. He questioned if there was a way to change the ordinance so that would not occur. A provision that if a property owner was authorizing a reduced setback for a dwelling the property would have to be a permanent residence/owner occupied residence. Mayor Burroughs stated that ownership was the question as it might affect value, future use, etc. It might be hard to define an occupant as a higher value than an owner. The drilling might not be noxious to some people and they would allow the owner to opt out of the setback. Deputy City Attorney Leal stated that an ordinance might be drafted through the zoning authority and a general process with certain actions for surrounding property owners and could be sent out to those surrounding properties. Mayor Burroughs suggested identifying a level of inspection over and above the one in Phase I in reference to items the City had authority to inspect and identify potential costs associated with that inspection. He also suggested a potential fee relief associated with best practices relief. Council Member Roden felt that more work was still needed on the sections dealing with pits, definitions, liners, etc. Ross Chadwick, Fire Chief, presented information on a normal Fire Department response to a gas well incident. The first step was to start with prevention and make sure the fire code was being followed. Every well in the City had a file at the Fire Department with certain requirements included. All of the documents in the file were scanned so that they would be available to the HazMat personnel. He stated that the Department had a high level of training already for most firefighters. Another consideration was the location of the incident. The Department was in the process of developing standard operating procedures to assist with these incidents. He felt that the Department currently had all of the equipment that would be needed in the case of a well fire. Mayor Burroughs stated that the gas well files needed to include what was in the individual pits. Chadwick stated all that information was already in the files. There was a materials file sheet that listed all materials on site from the mud to fracking materials, etc. By law the gas well company had to provide that information to the Fire Department for full disclosure for first responders. Council Member Gregory asked if the site plan that was provided indicated that there fire lanes were available and sufficient access once inside the drilling site. Chadwick stated that was also included. Council Member Gregory asked how the Fire Department would access a location if the property were secure. Chadwick stated that they had tools that could provide access. Council Member Gregory asked if there was a legal problem entering the property in an emergency. City of Denton City Council Minutes November 13, 2012 Page 8 City Attorney Burgess stated that it would not be a problem due to the emergency situation. There was a distinction between just doing an inspection versus an emergency. Council Member Roden stated that he had asked for a tally of how many old pad sites existed in the City. He was curious about how many projects were in the pipeline that could become vested projects. Groth stated that there could be infinite possibilities for the number of acres permitted. He could give a number since 2010 but the number of possible wells for an 800 acre parcel would be difficult. Mayor Burroughs suggested separating specific sites and other platted areas from existing wells sites that had not been abandoned. With no further business, the meeting was adjourned at 8:00 p.m. ____________________________________ MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS ____________________________________ JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS