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1992-04-27 CITY COUNCIL REGULAR MEETING MINUTES45 MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF PEAR - LAND, TEXAS, HELD ON APRIL 27, 1992, AT 7:30 P. M. IN THE COUNCIL CHAMBERS, CITY HALL, 3519 LIBERTY DRIVE, PEARLAND, TEXAS The meeting was called to order with the following present: Mayor Mayor Pro Tem/Councilmember Councilmember Councilmember Councilmember Councilmember Interim City Manager City Attorney City Secretary INVOCATION AND PLEDGE OF ALLEGIANCE C. V. Coppinger D. A. Miller Benny Frank Randy Weber Joy Colson William Wolff Glen Erwin Lester Rorick Pat Jones The invocation was given by Councilmember Weber. The Pledge of Alle- giance was led by Councilmember Colson. APPROVAL OF MINUTES It was moved by Councilmember Weber, seconded by Councilmember Frank, that the minutes of the regular meeting of April 13, 1992, be approved as presented. Motion passed 5 to 0. It was moved by Councilmember Colson, seconded by Councilmember Wolff, that the minutes of the special meeting of April 20, 1992, be passed and approved as presented. Motion passed 5 to 0. MAYOR'S ACTIVITY REPORT Mayor Coppinger presented a proclamation proclaiming "Scouting for Food Week" ,for the period of May 9 - 16. Local scouts accepted the proclamation. Mayor Coppinger also presented a proclamation to the Elks, proclaiming "Elks National Youth Week" for the week beginning May 1st. COUNCIL ACTIVITY REPORTS Councilmember Weber reported he has received calls concerning the through traffic on Westminster and requested that City Manager Erwin check into this and report back to Council. Mr. Weber also questioned whether Hampshire Street could be opened across the airport and Old Alvin Road. Councilmember Frank had nothing to report at this time. Councilmember Miller reported he chaired the monthly meeting of the Brazoria County Cities Association in Clute. On April 24th, Mr. Miller attended the EMS fundraiser and on Saturday, April 25th, Coun- cilmember Miller sat in on interviews for the position of city manag- er. Councilmember Colson had nothing to report at this time. Councilmember Wolff read a letter addressed to Mr. Erwin from David Smith of the Clear Creek Regional Flood Control Steering Committee: WE The letter reads as follows: "As Pearland Is representative on the steering committee, please con- sider the following at the Council meeting on Monday, April 27, 1992. As you are aware our committee has been charged with arriving at the best plan for handling flooding on the main stream of Clear Creek and its tributaries. The U. S. Corp of Engineers is handling the dis- charge from Clear Lake into Galveston Bay. There will be three out- lets instead of the one outlet that has existed for years. We, as a group, are recommending in Pearland a combination plan of regional detention sites and channel improvements. This plan is not set in concrete as to the size and location of detention sites and size and depth of channels. What we need at this time is a letter stating that the City of Pearland agrees with the concept of this plan only. Time is important on this matter. Please give a copy of this letter to the Mayor and Council. Thanks." Councilmember Wolff stated this group has determined that channeliza- tion and detention are the immediate answers. It was moved by Councilmember Wolff, seconded by Councilmember Colson, that we adopt the concept of this approach to flood control and give Mr. Smith's group the desired letter from the City of Pearland endors- ing this approach. Mayor Coppinger called upon Mr. Lloyd Yost, recently retired from the Drainage District, who gave his approval to this concept. Motion passed 5 to 0. MAYOR'S ACTIVITY REPORT: Continued Mayor Coppinger informed a meeting would be held in the morning at the San Jacinto College campus regarding the Brio site and asked Mr. Erwin to see that our city is represented with this representative reporting back to Council at a future meeting. Mayor Coppinger commented on a letter from City Manager Erwin setting'i, forth the schedule for the acquisition of right-of-way along Mary's Creek which will start on the 28th of this month with a letter being mailed to property owners. The acquisition phase will begin in Sep- tember if Council approves, Mr. Erwin had stated in his letter. Mayor Coppinger commended the Emergency Medical Service for their recent fundraiser. In closing, Mayor Coppinger reported on the Saturday interviews of candidates for the position of city manager. DEPARTMENTAL REPORTS: None CITIZENS: Mayor Coppinger stated that due to the large number of citizens to be heard, he would invoke the five minute rule and asked City Secretary Pat Jones to be the timekeeper. 1. George Rush, 3340 E. Walnut. Mr. Rush had asked to be rescheduled. 2. 3. 4. Donna Snowden, 2304 Green Tee. Mrs. Snowden spoke about the extension of Hughes Road and urged the Council to write a letter requesting a more southerly alignment of Hughes Road. Council recommended this item be placed on the May 4th agenda for possible action. Frances Jamison, FM 518. Mrs. Jamison spoke about rights-of-way. Alice Moore, 6002 Kelly. Mr. Donald Hickman, president of Hickory Creek Place Civic Club, spoke about road expansion 47 in his subdivision. 5. Dorothy Medearis, 4824 W. Broadway. Mrs. Medearis spoke about right-of-way and requested the City pay her as previ- ously requested. 6. Tom Kemper, 4009 Spring River. Mr. Kemper spoke about homes in Springfield subdivision and building methods of Pulte Home builders which he stated were unethical and unprofes- sional. Mayor Coppinger asked City Manager Erwin to check into this matter. Mayor Coppinger asked City Manager Erwin and City Attorney Rorick how long it would be before a response to Mrs. Medearis' questions was ready. City Attorney Rorick responded it was ready now and inquired of Mayor Coppinger if he wanted him to read it now. It was moved by Councilmember Frank, seconded by Councilmember Weber, that Mr. Rorick be allowed to read his letter to Council regarding the Medearis matter at this time. Motion passed 5 to 0. City Attorney stated the following: "The question before the Council, as presented by Mrs. Medearis, is simply whether, in all cases, a taking or exaction of right-of-way necessarily must be compensated. In so far as she has told us previ- ously that Article V of the United States Constitution, applicable to the 'states by reason of the incorporation clause of Article XIV and the companion legislation in Article I, Section 17 of the Texas Con- stitution require compensation for taking - that is a correct state- ment of law. However, just as surely as the governmental body is bound by the provisions of the Constitution in that regard, so too has the Supreme Court told us ever since the Spann and Lombardo cases of the 19201s, that all land held by a person within the boundaries of a municipality is held subject to the lawful exercise of the police power of the city. That is to say, that there is this constant sort of tension existing between the obligation of the city, on the one hand, to compensate for a taking, and, on the other hand, to take where it is in the exercise of its lawful police power. Striking this balance, the courts in Texas, over the years, have simply held that the donation or exaction of right-of-way must bear a substantial relationship to the health, welfare, and safety of the people. This is standard police power kind of language. The requirement here is an exaction or taking of right-of-way. The courts in Texas, again, have held this to be a fair use of police power over the years. One commentator has recently commented, and I quote simply for the sake of not making a mistake in this regard, that the probably remedy, and because it's a commentator I say its a proba- ble remedy is as follows: As long as land is not developed the city can require no exaction because there must be a use before regulation through exaction may occur. The landmark case in Texas is one simply where a person, in fact, it was a church that applied for a building permit. They required some right-of-way and the Supreme Court said no. You can't exact right-of-way in connection with a simple issuance of a building permit. In this case, however, what we have here is a plat of Medearis Subdi- vision. This is a subdivision which was platted by the Medearises as you can see on this copy of the plat. In Texas, under the Local Government Code, a subdivision is a division of a tract or parcel of land into two or more portions for the purpose of letting out a subdi- W_'9 vision of that tract or building lots or any lots. We have a companion ordinance, our subdivision ordinance, in Pearland which has a similar kind of requirement - that when you subdivide a tract or parcel of land into two or more portions for the purpose of laying out lots, you've created a subdivision. This subdivision then triggers the proper use of police power. If you have a subdivision, said another way, you can require the exaction or dedication of right- of-way. The most common kinds of examples are the kinds of examples when a developer puts in a subdivision. We don't buy those streets -- never have and probably never will. We have a developer putting in, subdividing land, and making a dedication, not only of the streets, but of the alleys, the easements, and other utility functions at th-- time that he does that. The commentators go further and they say there must be a reasonable— connection easonableconnection between the effects of the development and the claimed need for increased public services. There must be a reasonable connection between the funds collected or lands dedicated and the benefits accru- ing and ordinances describing the procedures must be specific. In this case, we have a provision in our subdivision ordinance, 27-7 to be exact, that says when any street forms any part of the bound- aries of a subdivision and some part of the width of the street has been dedicated or committed to improvement, then the subdivider shall be required to dedicate and/or improve the balance of the width of any such street. Further, there is a development plan for the City of Pearland and I think Mr. Frank had a copy of the street right-of-way plan on it which provides that the street right-of-way on John Lizer Road ultimately is to be 120' and the street right-of-way on Hwy 35 is, ultimately, to be 120' feet. What happened in the Medearis case is simply this in retrospect. When the Medearises provided their plat to the city engineer, he apparently examined the plat in connection with Section 27-7 of the subdivision ordinance and further in connection with the right-of-way plan. Seeing that these were each 120' rights-of-way and that this was, further, a subdivision within the meaning of the ordinance, the cit,, engineer wrote the Medearises a letter saying, as a condition prece• dent to your plat approval, we will require a dedication of the re•--- maining right-of-way to conform with the master plan for the city. That additional right-of-way then brought the center line of the right-of-way boundary on Hwy 35 to be 60' and the same on John Lizer Road to be 601. Accordingly, what we have here is an application of the principles of law that say a dedication or exaction of right-of- way is a proper exercise of police power when and if you have a subdi- vision of land. We have a city ordinance which says that when part of that right-of-way has already been dedicated, then it's proper in connection with the subdivision of land that the rest of it be exacted or dedicated. We have a plan which says how much land ultimately will be required. That this bears on the problem on John Lizer Road and Hwy 35, and this is parenthetical, was underscored last week for this Council. The chief of police stood up at this podium and stated my officers call that (intersection) "coffin corner." Mrs. Medearis last week told this Council that there is a terrible traffic problem in that right-of-way. The exaction of this right-of-way ultimately then serves a logical nexus in providing additional right-of-way to allevi- ate traffic congestion and problems with accidents at what is, and what certainly will be in the future, an increasingly congested and used right-of-way. It seems to me in looking at what happened and looked at a cold record like everybody else in this case, that what wF have here is we have a city engineer who did what the Code of Ordi ` - nances of the City of Pearland at the time required of him." MEETING RECESSED AT 8:33 P. M. MEETING RECONVENED AT 8:44 P. M. DOCKETED PUBLIC HEARING: 1. Request of Richard and Linda Lemmon, owners, for approval of abandonment of a twenty foot access easement on Lot 22, Block 7, Green Tee Terrace Townhouse Reserve. PERSONS SPEAKING FOR THE PROPOSED REQUEST: 1. Linda Lemmon requested Council to abandon the easement as there were no utilities in this footage and this area is needed to build a patio home on this lot. ,...- PERSONS SPEAKING AGAINST THE PROPOSED REQUEST: None ADJOURN UNFINISHED BUSINESS: None NEW BUSINESS COUNCIL DECISION ON REQUEST FOR ABANDONMENT OF 20' ACCESS EASEMENT IN GREEN TEE TOWNHOUSE RESERVE BY RICHARD AND LINDA LEMMON Councilmember Wolff moved that this item be unfavorably considered. Councilmember Frank stated he would second the motion for purposes of discussion. There followed a lengthy discussion concerning such items as why the access was there to begin with. Mrs. Lemmon explained they were originally there to provide access to the power lines; however, there is plenty of access back there. It was brought out that the Planning and Zoning Commission is aware of this request and Houston Lighting and Power Company has sent the City a letter stating they have no objection. Mayor Coppinger informed this item has been held up pending the re- ceipt of the letter from HL&P. Councilmember Wolff stated it is customary that an abandonment be submitted with a request for reversion. In the case of reversion, the City has exchanged rights-of-way that it owns in various places for other pieces of right-of-way. In past history, the City has sold right-of-way that has been abandoned, Mr. Wolff continued, and ques- tioned whether Mrs. Lemmon is willing to pay for the abandonment. Mrs. Lemmon explained she had followed the procedure as outlined in Ordinance 559 and explained the various steps. Mrs. Lemmon explained the type homes she plans to have built on these lots and this lot will not be wide enough without abandonment of this easement. This proposed abandonment will simply make the lot usable. Upon call for the question, Council voted as follows: Voting "Aye" - Councilmember Wolff. Voting "No" - Councilmembers Weber, Frank, Miller, and Colson. Motion failed 4 to 1. r-- It was moved by Councilmember Frank, seconded by Councilmember Colson, that we approve the abandonment of the 201 access easement. Councilmember Miller apologized to Mrs. Lemmon for any inconvenience experienced in trying to obtain this abandonment. Motion passed 4 to 1, with Councilmember Wolff voting against. RESOLUTION NO. R92-11, ACCEPTING UPDATED EMERGENCY OPERATIONS PLAN City Manager Erwin informed he had met with the Emergency Management Coordinator and the City Secretary to clarify a few minor changes, 50 mainly concerning assignment of duties under this plan, and Staff is now recommending adoption of this updated plan. Resolution No. R92-11 was read in caption by Councilmember Colson. It was moved by Councilmember Colson, seconded by Councilmember Wolff, that Resolution No. R92-11 be passed and approved on its first and only reading. Said Resolution No. R92-11 reads in caption as follows: RESOLUTION NO. R92-11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEAR - LAND, TEXAS, UPDATING THE EMERGENCY OPERATIONS PLAN. Voting "Aye" - Councilmembers Weber, Frank, Miller, Colson, and Wolff. Voting "No" - None. Motion passed 5 to 0. AUTHORIZATION FOR CITY MANAGER TO EXECUTE CONTRACT WITH SOUTHWESTERN BELL TELEPHONE COMPANY FOR PAY PHONES IN CITY BUILDINGS City Manager Erwin informed we currently have a contract with South- western Bell and recommended that we extend this contract. This contract has been reviewed by City Attorney Rorick and Director of Finance Janet Eastburn. It was moved by Councilmember Weber, seconded by Councilmember Frank, that we accept this contract with Southwestern Bell for public tele- phones in our buildings. Motion passed 5 to 0. REAPPOINTMENT OF TWO MEMBERS, AL LENTZ AND EMIL BELTZ, TO THE PLANNING AND ZONING COMMISSION TO FILL EXPIRING TERMS AND APPOINTMENT OF ONE, NEW MEMBER, PAT LOPEZ, TO THE COMMISSION TO FILL THE EXPIRED TERM OF PAT COURTIN (THREE YEAR TERMS) Mayor Coppinger recognized Mr. Pat Lopez from the audience. It was moved by Councilmember Frank that Al Lentz and Emil Beltz, as well as Pat Lopez, be appointed to the Planning Commission. Motion died for lack of a second. Councilmember Frank questioned whether the current members would retain their positions until appointments are made. Councilmember Miller commented that he would like to see this matter wait until after the election and that these names be looked at indi- vidually and not as a package deal. Mayor Coppinger apologized to Mr. Lopez and stated this action had nothing to do with his appointment. Councilmember Colson questioned if it would be proper to appoint one member to the vacant position. It was moved by Councilmember Colson, seconded by Councilmember Frank, that Pat Lopez be appointed to Pat Courtin' s present position on the, Planning and Zoning Commission. Motion passed 5 to 0. REAPPOINTMENT OF TWO MEMBERS, MAX WHITE AND HANK CLORE, TO THE ZONING BOARD OF ADJUSTMENT TO FILL EXPIRING TERMS AND REAPPOINTMENT OF FOUR ALTERNATE MEMBERS, E. A. WASEK, BEN LENAMON, MARVIN ELAM, AND DOROTHY BURGETT TO THE BOARD TO FILL EXPIRING TERMS (TWO YEAR TERMS) It was moved by Councilmember Colson, seconded by Councilmember Weber, 51 that Max White and Hank Clore be reappointed to the Zoning Board of Adjustment to fill expiring terms and also reappoint four Alternate members, E. A. Wasek, Ben Lenamon, Marvin Elam, and Dorothy Burgett, to the Zoning Board of Adjustment to fill expiring terms. Motion passed 5 to 0. REAPPOINTMENT OF DR. DAVID ARMBRUSTER AS HEALTH OFFICER (ONE YEAR TERM) It was moved by Councilmember Wolff, seconded by Councilmember Colson, that Dr. Armbruster be reappointed as the City's health officer. Motion passed 5 to 0. RESOLUTION NO. R92-12, CHANGING THE SECOND REGULAR MEETING DATE IN MAY, 1992, DUE TO THE MEMORIAL DAY HOLIDAY Council discussed dates agreeable to all. Resolution No. R92-12 was read in caption by Councilmember Frank. It was moved by Councilmember Frank, seconded by Councilmember Weber, that Resolution No. R92-12 be passed and approved on its first and only reading, with the meeting date being changed from May 25 to May 27. Said Resolution No. R92-12 reads in caption as follows: RESOLUTION NO. R92-12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEAR - LAND, TEXAS, CHANGING THE SECOND REGULAR MEETING DATE IN MAY, 1992, DUE TO THE MEMORIAL DAY HOLIDAY. I" Voting "Aye" - Councilmembers Weber, Frank, Miller, Colson, and Wolff. Voting "No" - None. Motion passed 5 to 0. DECISION ON THE PROPRIETY OF AN INTERIM SALARY ADJUSTMENT FOR THE ACTING CITY MANAGER Mayor Coppinger informed this item would be deferred until after Executive Session. OTHER BUSINESS MEETING RECESSED TO EXECUTIVE SESSION AT 9:17 P. M. UNDER TEXAS RE- VISED CIVIL STATUTES, ARTICLE 6252-17, SECTION 2 Mayor Coppinger read from the posted agenda the following topic to be discussed in Executive Session: UNDER SUBSECTION (g) PERSONNEL - Discussion of Salary Adjustment for the Interim City Manager. MEETING RETURNED TO OPEN SESSION AT 9:30 P. M. NEW BUSINESS: Continued DECISION ON THE PROPRIETY OF AN INTERIM SALARY ADJUSTMENT FOR THE ACTING CITY MANAGER It was moved by Councilmember Frank, seconded by Councilmember Colson, that the Interim City Manager be paid, retroactive from the day he took the position until the City hires a new city manager, the same salary the last city manager was making. 52 Motion passed 4 to 0, with Councilmember due to illness, Wolff having left the chamber ADJOURN The meeting adjourned at 9:31 p. M. Minutes approved as submitted and/or corrected this A. D. , 1992. _ //y _ day of ATTEST: City Secret y