May 14, 2013 Minutes
CITY OF DENTON CITY COUNCIL MINUTES
May 14, 2013
After determining that a quorum was present, the City Council convened in 2nd Tuesday Session
on Tuesday, May 14, 2013 at 4:00 p.m. in the City Council Work Session Room at City Hall.
PRESENT: Council Member King, Council Member Watts, Council Member Gregory,
Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council
Member Roden
ABSENT: None
1. Receive a report, hold a discussion, and give staff direction concerning ground water
sampling for gas well drilling activities.
Ken Banks, Director of Environmental Services and Sustainability, presented information
regarding ground water sampling for gas wells. He stated that the discussion needed to start with
some basic questions concerning sampling such as where, what, and when. He presented
examples of what other cities in the area were doing regarding water well setbacks, types of
sampling and specified parameters. Types of sampling included pre and post drilling sampling
that included some with time frames and some testing done beyond the setbacks. The specified
parameters included the types of chemicals that were tested for in the water sampling.
One of the policy issues to consider was where the sampling would occur. Issues connected with
where the sampling would occur included (1) should the sampling involve those wells in
proximity to existing gas wells or only those wells in proximity to new gas well; (2) if existing
wells, how would overlapping setbacks and notification to well owners be handled; (3) what
setback distance would be used for sampling; (4) should monitoring be conducted only for
freshwater wells that were closer than the current 1200 foot setback; (6) should monitoring be
conducted for both irrigation and drinking water wells or only for drinking water wells.
Mayor Burroughs asked who would pay for the sampling.
Banks stated that in other cities, the operators of the gas well paid for the testing of the water
well on someone else's property.
Mayor Burroughs stated that in the other cities, if the water well owner said no to the testing that
would end the procedure.
Banks replied correct.
Mayor Burroughs asked if these would be operating wells or non- operating wells.
Banks stated that would be included in the definition of the procedures. Typically there would
be an element of use associated with the well.
Council Member Roden asked for an explanation of the underground water science.
Banks stated that before drilling was done, information would have to be submitted to the
Railroad Commission describing the underlying aquifer with a prescribed distance below the
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Page 2
aquifer. When a well drilled into the aquifer, it would go through the aquifer and the
requirements for casing would be put in place in the area of the aquifer.
Council Member Roden asked if leakage affected the water, what distance would do in terms of
getting rid of pollution.
Banks stated that the directionality of water in the aquifer would have to be taken into
consideration. There could also be pressures associated with them. Leakage events would be the
result of a failure of some type such as casing.
Council discussed the drilling process and the effect on the underlying aquifer. In the absence of
pre-drilling samples would it be beneficial to have post drilling samples.
Council Member Gregory asked if there was some type of notification of water wells required so
there was a listing of where they were located.
Banks stated that a permit was required for drilling in the City and drillers had to register with
the Water Development Board. However, the records might not be complete especially with
older wells.
Council Member Gregory asked how it would be verified that an operator made contact with a
landowner and the result of that contact when dealing with a new well.
Banks stated that process would have to be developed.
Mayor Burroughs asked if the results of the test would be public or private.
Banks stated that was a policy issue that needed to be addressed.
Richard Casner, Deputy City Attorney, stated that the documents would be subject to an open
records request.
Banks continued with another issue to consider – what would be tested. He reviewed the
common chemicals that were tested in other cities. There were also concerns with naturally
occurring compounds. Aquifers may have naturally occurring compounds in excess of drinking
standards. Evaluations of the two aquifers in this area indicated health based standard
exceedences for some parameters were likely. He reviewed naturally occurring groundwater
contamination in Texas.
When would sampling be done was another issue to consider. For Denton, pre-drilling sampling
was not possible for water wells in proximity to existing gas wells. Local examples from other
municipalities tend to have pre and post drilling with one municipality also specifying post
fracturing.
Council Member Roden asked about procedures in other cities once a problem was discovered
with post drilling.
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Banks stated he did not know that answer and that he was not aware of a program where it came
back and was actually documented Additional issues to consider included (1) wells will be on
private property so a process for obtaining access agreements would need to be developed, (2) a
process was needed to document situations where the well owner did not wish to have testing,
(3) how would data be reported to owners of freshwater wells in terms of just data, data with
comparisons to appropriate standards, etc., (4) sampling should be done under a full quality
assurance/quality control plan and field sampling plan, and (5) collecting representative samples
from water wells required specialized techniques and training,
A summary of the issues/concerns included:
#1 – Where to sample whether in setback, previously drilled or new.
#2 – when would wells be sampled such a pre-drill only or pre and post drilling.
#3 – What would be tested with a consideration for volatiles and semi-volatiles.
#4 – Reporting results with a suggestion for comparisons with the Safe Drinking Water Act and
the Texas Risk Reduction Program.
Mayor Burroughs questioned if an inspection was done on a well and the results were reported
publically and if the results exceeded the Sate criteria for drinking water, what would happen.
Banks replied nothing would happen.
Mayor Burroughs stated that the State provided guidelines but didn't say that the water could not
be used. He questioned if the testing did not exceed the State levels in pre-testing but did in
post-testing, would nothing happen again from the State.
Banks stated that would depend on what and the amount of concentrations.
Council Member Watts stated that the purpose of the information would be to provide some type
of evidence for someone to take a course of action. On the State level this would not be a
criminal act, but more of a private party act.
Richard Casner, Deputy City Attorney, stated that it could be a criminal act if it were an
environmental issue or it could be a civil matter by the landowner.
Mayor Burroughs stated that the process was a voluntary one from the water well owner. The
results of the test could be harmful to a property owner such as in the sale of the property. He
favored the third policy with a list of items to be tested but be done by an approved consultant
but have an obligation of the driller and to the water well owner the results of the test and to
maintain those results. The same procedure would be done with post drilling results. That
would allow the voluntary well owner to make the call. He questioned whether the results would
be confidential to the water well owner only as the City was only a bridge between the property
owner and the well operator.
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Mayor Pro Tem Kamp felt that if the information did not have to be public knowledge there
might be more volunteers for testing.
Council Member Roden assumed the Mayor's scenarios would be for new wells. One of the
reasons for considering this was not from the well owners but from others who had the
perception of contamination. It was a benefit from the public perception to have the data open.
It would prescribe a track record that was not polluting or was polluting. That data was helpful
moving forward. The concern from citizens would not go away.
Council discussed parameters of reworking a well, notifications of a reworking of the well and
whether water testing could be done in the time frame for notification of reworking procedures
for reworking a well.
Consensus of the Council was to discuss some of the issues in a future Closed Session and
following that work on developing a policy.
Council Member King left the meeting.
Following the completion of the 2nd Tuesday Session, the Council convened in a Closed
Meeting at 5:23 p.m. to consider the item listed below.
1. Closed Meeting:
A. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with City's attorneys with regard to Item #1 on the May 14, 2013
Special Called Meeting Agenda, as it concerns legal issues associated with
that item where a public discussion of this legal matter would conflict
with the duty of the City's attorneys under the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas.
Following the completion of the Closed Session at 5:50 p.m., the Council convened in a Special
Called Meeting to consider the following:
1.Consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning
change from a Rural Residential (RD-5) zoning district classification and use designation
to an Employment Center Industrial (EC-I) zoning district classification and use
designation for approximately 27.76 acres of land, generally located north of University
Drive and west of Masch Branch Road and legally described as Lot 2, Block 1 of the
Marriott Gardens Addition, in the City of Denton, Denton County, Texas; providing for a
penalty in the maximum amount of $2,000.00 for violations thereof; and providing a
severability clause and an effective date. The Planning and Zoning Commission
recommends approval (7-0). (Z12-0014, Masch Branch Rezoning) The City Council
postponed this item to the May 14, 2013 Council meeting (7-0).
Brian Lockley, Director of Planning and Development, provided the details of the proposal. The
request was for a zoning change from Rural Residential to Employment Center Industrial.
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Council postponed this item at their May 7 meeting to allow staff and the applicant to meet to
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discuss public safety issues and infrastructure improvements. The Employment Center
Industrial zoning district would bring existing uses into conformance (including existing light
manufacturing) and allow for new permitted uses. A review of the development chronology pre
2001 development and post 2001 development activity was presented. In terms of building
permit review and inspections, the Fire Department performed annual review/inspections with
operational permits, hazardous permits, and flammable/combustible material permits. The
Building Division performed inspections only during Certificate of Occupancy applications.
Code Enforcement performed pro-active enforcement and inspections during Certificate of
Occupancy applications and as part of their routine inspections program.
If the property were developed today, the following comments would apply: (1) Masch Branch
Road was classified as a Commercial Mixed-Use Collection street. Appropriate dedication of
right-of-way was made during the approval of the final plat; (2) Masch Branch Road was
classified as an unimproved perimeter street with requirements for construction of 25-feet wide
concrete pavement, 8-foot wide sidewalk, curb and gutter, and required drainage improvements;
(3) based on the size of the proposed development, a Traffic Impact Analysis would be required;
(4) the Traffic Impact Analysis would determine if Signal Cost Participation was required for
the intersection of Masch Branch Road and University Drive; and (5) the Traffic Impact Analysis
would analyze the condition of the existing Masch Branch Road pavement up to University
Drive to determine if offsite improvements to Masch Branch Road were required.
Council Member Roden questioned if the mentioned infrastructure improvements would be what
would be required if the proposal came to Council today.
Lockley replied correct.
Council Member Roden asked if at the time of the annexation in 2006 if Masch Branch Road
was a county road.
Lockley stated at the time of the annexation it became part of the city.
Mayor Burroughs asked about the uses of the property at the time of the annexation.
Lockley stated that the uses were office/warehouse. The most appropriate zoning district would
have been Employment Center which was the lowest of the industrial classifications.
The following individuals submitted speaker cards:
Patricia Adams, representing the property owner, spoke in favor.
Don Fraizer, 1740 Westminster, Denton, 76205 – spoke in favor.
Council Member Watts asked if the property was rezoned from RD-5 did that eliminate the legal
non-conforming status that existed at the time of rezoning.
Richard Casner, Deputy City Attorney, stated it would make the uses at the time of zoning legal
and others would be legal non-conforming.
Council Member Roden questioned what other avenues would trigger improvements on the road.
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Lockley stated that future developments would have to be several pieces in the area. Some
would have to be annexed first.
Mayor Pro Tem Kamp stated that due to the Development Review Committee and Planning and
Zoning Commission recommendations for approval, she motioned to approve the request.
Motion died due to the lack of a second.
Council Member Gregory motioned to deny due to the insufficient structural integrity of the road
and the width of the road for the zoning designation.
Motion died due to the lack of a second.
Council Member Roden felt the issue of concern was the road and questioned if at any point was
the road mentioned to the property owner.
Casner stated that it was unlikely that public improvements were discussed.
Council Member Watts stated that two motions had been made with no second. If no further
motions were made or if a motion was made again with no second, what would happen to the
proposal.
Casner stated that the zoning request would fail due to the fact that it was not passed.
Council Member Watts stated that a zoning request that failed at the Council level had to wait a
year to be resubmitted. He questioned if this would be the case in his example of motions.
Casner stated he was not sure at this point.
Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to postpone the item to the
th
June 4 City Council meeting.
Council Member Gregory felt that if the motion to approve had no second and the motion to
deny had no second then there was no denial. If there was no denial of the proposal there would
not be a time set for reapplication.
Council Member Roden asked if Council could go into Closed Session to get these points
clarified.
Casner stated that he would need time to research the questions asked by Council.
On roll call vote to postpone the item to a date certain of June 4th: Council Member Gregory,
Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden – “aye”. Council Member
Watts and Council Member Engelbrecht – “nay”. Motion carried with a 4-2 vote.
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Page 7
Ordinance No. 2013-131
2.Consider adoption of an ordinance authorizing the City Manager of the City of Denton,
Texas ("City") to execute, for and on behalf of the City, an Easement Grant and
Abandonment agreement ("Agreement"), by and between the City and 52241, L.P., a
Texas limited partnership ("Owner"), providing for (a) the granting to the City of (i) a
public utility easement (herein so called) for public utility purposes, encumbering a 0.786
Acre tract, being more particularly described in the public utility easement, being
attached to and made a part of the Agreement; and (ii) a Temporary Construction,
Grading and Access Easement ("Temporary Easement"), encumbering 0.488 Acre of
land, being more particularly described in the Temporary Easement, being attached to
and made a part of the Agreement; and (b) the partial abandonment and release
("Release") by the City of (i) that certain Sanitary Sewer Easement, dated on or about
January 1, 1961, from Walter M. Lea and wife, Jane C. Lea to the City, recorded in
Volume 464, Page 188, Deed Records, Denton County, Texas; (ii) that certain Public
Utility Easement, dated on or about August 7, 1980, from Calusa Development, Inc. to
the City, recorded at Volume 1029, Page 480, Deed Records, Denton County, Texas; (iii)
that certain All Purposes Public Utility Easement, dated on or about May 14, 1982, from
RepublicBank Dallas, National Association to the City, recorded in Volume 1143, Page
125, Deed Records, Denton County, Texas; and (iv) that All Purpose Public Utility
Easement, dated on or about October 6, 1981, from Leon McNatt Motor Co. to the City,
recorded in Volume 1106, Page 73, Deed Records, Denton County, Texas (collectively,
the "Affected Easements"), insofar and only insofar as the Affected Easements encumber
a 0.095 Acre tract and a 0.489 acre tract, both tracts being more particularly described in
the Release, attached to and made a part of the Agreement, all tracts of real property
being located in the M.E.P. & P.R.R. Company Survey, Abstract No. 950, and the
Gideon Walker Survey, Abstract No. 1330, Denton County, Texas and being generally
located at the 4000 Block, South Interstate Highway 35 East; providing a savings clause;
and providing an effective date. (State School Sanitary Sewer Interceptor - Phase II)
Paul Williamson, Real Estate Manager, presented the details on the property which involved the
trading of easements. The route would follow a new line around the property and abandon the
easements and line going through the center of the tract.
Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to adopt the ordinance.
On roll call vote: Council Member Watts, 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
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Page 8
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 Watts mentioned an upcoming event at TWU for the opening of a dorm.
With no further business, the meeting was adjourned at 6:25 p.m.
____________________________________
MARK A. BURROUGHS
MAYOR
CITY OF DENTON, TEXAS
____________________________________
JENNIFER WALTERS
CITY SECRETARY
CITY OF DENTON, TEXAS