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1979-12-17 CITY COUNCIL REGULAR MEETING MINUTES210 1 MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, HELD ON DECEMBER 17, 1979, AT 7:30 P.M. IN THE CITY HALL, 2335 N. TEXAS AVENUE, The meeting was called to order with the following present: Mayor Councilman/Mayor Pro Tem Councilman Councilwoman Councilman Councilman City Manager City Attorney City Secretary INVOCATION AND PLEDGE OF ALLEGIANCE: Tom Reid Dennis Frauenberger Charles Mack Fran Coppinger Carlton McComb Morris Wilson William E. Wolff Bobby J. Williams (Entered at 7:40 P.M.) Dorothy L. Cook The invocation was given by Lee Palonco. The Pledge of Allegiance was led by Councilwoman Coppinger. MAYOR'S ACTIVITY REPORT: Mayor Reid advised that he instructed City Manager Wolff to install two traffic control devices, speed zone signs, on Hamm Road. The ratification of the two traffic control devices will be on the next agenda. APPROVAL OF MINUTES: It was moved by Councilman Wilson, seconded by Councilman Frauenberger that the minutes of the regular meeting held on December 3, 1979, be approved as submitted. Motion passed 5 to 0. MAYOR'S ACTIVITY REPORT (CONTINUED): Mayor Reid referred to a clipping out of the Houston Chronicle regarding the Clear Lake Council of Cities voting to support the Clear Creek Flood Control Project if a second channel is cut into Galveston Bay. This, in effect, would help break the stalemate that has persisted in the Clear Creek Flood Control Project. COUNCIL ACTIVITY REPORTS: Councilman McComb reported that the O'Day Drilling Company cored the property where the depot is to be moved and found that there is 25 feet of gumbo in this area. With this report, there should be no difficulty in designing a foundation for the depot building. City Engineer Malcolm Collins has agreed to design this foundation, free of charge, for the Chamber of Commerce. DEPARTMENTAL REPORTS: None CITIZENS: Mr. C. D. Anderson, 3215 Jacquelyn Drive, Pearland, Texas, appeared before the City Council to speak about the traffic light at Walnut Street and Highway 518. He advised that he felt a stop sign would be much more effective in this area due to the angle of Walnut's intersection with Highway 518. He advised that getting out of Regency Park Subdivision was very difficult because of the fact that as soon as the traffic clears from the light on Walnut and Highway 518, the traffic light on Old Alvin Road and Highway 518 changes and traffic flows heavily from this direction. Mr. Anderson also advised the City Council that the condition of the extension of Dixie Farm Road was poor. He discussed the possibility of turn signals or left turn lanes on Highway 518 at Dixie Farm Road. Ron Wicker, Director of Planning and Transportation, advised that the City has been working with the State Department of Highways in an effort to get three left turn lanes on Highway 518. The City would like one at Green Tee entrance, one at Woodcreek entrance, and one at Dixie Farm Road; however, the State Department of Highways have only agreed to build a left turn lane at the Green Tee entrance. Mr. Anderson suggested that the City continue to pursue this matter with the Highway Department since the opening of Dixie Farm Road to the freeway will bring about additional traffic. CHANGE IN ORDER OF BUSINESS - OTHER BUSINESS: 1. MAYOR REID RECESSED THE MEETING TO EXECUTIVE SESSION UNDER TEXAS OPEN MEETING'S LAW, SECTION 2, SUBSECTION (e), LEGAL AT 7:45 P.M. 2. RECONVENED TO OPEN SESSION AT 9:00 P.M. NEW BUSINESS: PETITION SUBMITTED BY PAUL CARLIN ON NOVEMBER 13, 1979: Mayor Reid advised that by minute order the City Council had instructed him to contact Mr. William Olson, Sr., to review and report back on the Petition submitted by Paul Carlin. Mayor Reid asked Mr. Olson, who was present at the meeting, to report at this time. Mr. Olson advised that he had prepared a written report as requested by the Mayor and that he has not talked to any member of the City Council or any other officer of the City regarding this matter. He advised that he has made one correction in his written report due to a clerical error this being reference to the last paragraph of page 1 which should read Article II, Section 5. The report submitted by William Olson, Sr. was read by the Mayor as follows: "December 17, 1979 Honorable Tom Reid, Mayor City of Pearland P. 0. Box 1157 Pearland, Texas 77581 Re: Petition Submitted on November 13, 1979, Regarding Proposed Charter Amendment Election Dear Mayor Reid: The following is submitted prusuant to your request that I review the captioned petition and advise you of those matters bearing on its sufficiency and its effectiveness. The courts of this State have long held that the general rule of construction of provisions of law in government and as to remedial legislation is that the same be liberally construed to the end of promoting the principle of government by the people. Therefore, any initiative petition presented to the City Council upon a matter expressive of public policy should be construed as liberally in favor of the power reserved to the people as the Constitution and laws of Texas and as the petition itself will permit, to the end that the right of the people to determine all proper issues by democratic election be secure. The foregoing notwithstanding, it is my opinion that the captioned petition contains certain deficiencies which render its effectiveness questionable. The first issue raised relates to the timeliness of the petition. Article II, Section 5, of the Texas Constitution, the city home rule amendment, provides in part as follows: "Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and pro- viding that no charter shall contain any provision inconsistant with the Constitution of the State, or of the general laws enacted by the Legislature of this State; ... and provided further, that no city charter shall be altered, amended, or repealed oftener than every two years." Article 1165, Revised Civil Statutes of Texas, 1925, contains comparable language. The charter of the City of Pearland was last amended on April 1, 1978; 6 therefore, under the specific language of the Texas Constitution and statutes, such charger may not again be amended until on or after April 1, 1980. The petition in issue was submitted on November 13, 1979; the City Secretary's certification to City Council concerning the number of qualified signatures was dated November 21, 1979. Article 1170, Revised Civil Statutes of Texas, 1925, as amended, provides in part: "When the governing body desires to submit amendments to any existing charter, said body may on its own motion, in the absence of a petition, or shall, upon receiving a petition filed by qualified voters in such city... in number not less than five percent (50) thereof or twenty r— thousand (20,000) signatures, whichever is less, submit any proposed amendment or amendments to such charter. The ordinance providing for the submission of such amendment or amendments shall require the sub- mission thereof at an election to be held not less than thirty days nor more than ninety days after the passage of said ordinance..." This statute contemplates that the ordinance calling the election be timely passed; that is, that it be enacted as soon as possible following a determination that the petition is in all things sufficient. If sufficiency of the petition were assumed here, an election called now would fall on a date less than two years after the charter was last amended; an election currently called for a date in April would be more than ninety days following passage of the ordinance calling the same. Insofar as can be determined, the courts of Texas have not addressed the question raised by the foregoing; that is, how long may a City Council defer calling a charter amendment election after receipt of a petition filed less than two years after the charter was amended. In State v. City Commission of San Angelo, 101 S.W. 2d 360 (Tex. Civ. App. - Austin 1937 ref'd) petitioners sought a writ of mandamus to compel the calling of a charter amendment election within such two year period. Such writ was refused on the grounds of the two year constitutional limitation; however, in such case, the petition was filed at a time much closer to the date of the last charter amendment than is the situation here. In addition to the foregoing, the petition in issue contains certain irregularities. From a reading of same, it is readily apparent that it was filed in reliance on the iniative and referendum provisions of the charter relating to ordinances and resolutions rather than pursuant to Article 1170 re- lating to qualified voters initiating a charter amendment election. Illustrative of this fact is use of the term "referendum vote", a call for said "referendum" to be held within sixty days after submission of the petition, and reference to number of signatures exceeding "...thirty percent in number of those voting at the last city election and/or the one hundred fifty qualified voters for such a special election to be held (City Charter, Section 6.13, page 26)." These numbers relate, of course, to those required under the charter for the initiation or referral of an ordinance or resolution, and have no relationship to the number of signatures required to initiate a charter amendment election. However, it should be noted, that according to the information provided in the City Secretary's certification there are enough qualified signatures to such petition (308 out of 5,688) to meet the statutory requirement of at least five percent of the qualified voters of the City to initiate a charter amendment election. Obviously, the election could not be called within the sixty day period specified within the petition for the reason that such date would be in conflict with the two year limitation on charter amendments. However, under the rule of liberality of construction, neither this nor the other above mentioned irregularities would likely render the petition fatally defective. Perhaps the most serious defect in the petition is the uncertainty as to the proposed charter changes sought to be submitted to the voters. Article 1170 contemplates that any charter amendment proposed by petitioners be set forth with certainty and specificity. Such is not the case here. A petition should not only identify the sections of the charter proposed to be amended, but also should contain the precise language of the proposed amendments. To do otherwise, as was done here, fails to inform the City Council of the specific changes sought; rather, it places the Council in the position of having to speculate as to the intent and purpose of petitioners. Absent certain and definite language, the petitioners themselves may have different thoughts or views as to what charter modifications are being sought. Certainly, Council should not be called upon to speculate as to the precise amendments desired by petitioners and then, from such speculation, draft the language of the proposed amendments to be submitted. Of course, deficiencies in the subject petition notwithstanding, under the provisions of Article 1170, the City Council may on its own initiative submit proposed charter amendments. Should Council choose to do so, it could speculate as to the intent of petitioners and, at an appropriate time, enact an ordinance calling a charter amendment election for an authorized date after April 1, 1980. Z6 4 Should City Council conclude that this approach is not in the best interest of all concerned, it could return the petition to the representative of petitioners, detail for him the reasons for Council's inaction on the request for an election at this time, and assure him that upon timely resubmission of an adequate petition setting forth the specific amendments proposed, City Council will call a charter amendment election pursuant to the provisions of Article 1170. Respectfully submitted, s/William A. Olson WAO:bkc" It was moved by Councilman Mack, seconded by Councilman Frauenberger that the Petitions submitted on November 13, 1979, regarding proposed Charter Amendments be returned to the representative for the petitioners because of the reasons set —' forth in the opinion submitted by William Olson on December 17, 1979. Motion passed.4:to 1. Councilwoman Coppinger_ opposed. UNFINISHED BUSINESS: ORDINANCE NO. 411, AN ORDINANCE REGARDING CREATION OF WATER AND SEWER DISTRICTS WITHIN THE EXTRATERRITORIAL JURISDICTION OF THE CITY: This item to be considered later in the meeting. NEW BUSINESS: DECISION OF CITY COUNCIL ON APPLICATIONS 74. 75. 76 - LAND USE CHANGES: APPLICATION NO. 74, GEORGE & RUBY OWENS - MF TO GENERAL BUSINESS: It was moved by Councilman Wilson, seconded by Councilman McComb that Application No. 74, request for land use change from MF to General Business submitted by George and Ruby Owens, be denied. Motion passed 5 to 0. APPLICATION NO. 753 C. F. MANN, AGENT - PLANNED UNIT TO R-1: C. F. Mann advised the City Council that it was his intent to withdraw his application since his purchase of the property was based on obtaining R-2 classification of the land described in Application No. 76 which has been denied. The City Attorney advised Mr. Mann that it would be necessary for him to file an official letter of withdrawal. The City Council took no action pending receipt of official withdrawal from Mr. Mann. APPLICATION NO. 76, C. F. MANN. AGENT - PLANNED UNIT TO R-2: It was moved by Councilman Frauenberger, seconded by Councilwoman Coppinger that Application No. 76, request for land use change from Planned Unit to R-2 submitted by C. F. Mann, Agent, be denied. Motion passed 5 to 0. UNFINISHED BUSINESS - CONTINUED: ORDINANCE NO. 411, AN ORDINANCE REGARDING THE CREATION OF WATER OR SEWER DISTRICTS WITHIN THE EXTRATERRITORIAL JURISDICTION OF THE CITY: Mayor Reid read a letter dated December 13, 1979 from Rick Gadd, Senior Vice - President of Homecraft requesting that the second and final reading of this ordinance be delayed until a later date due to the fact that both Attorneys representing U. S. Homes and General Homes are out of the City for the entire week. MEETING RECESSED AT 9:45 P.M. - RECONVENED AT 9:48 P.M. The City Council felt that this ordinance should be passed within the 120 day period and in the event that changes needed to be made later on, an amendment could be considered by the City Council. Ordinance No. 411 was read in caption by Councilman Wilson. (Second Reading) It was moved by Councilman Wilson, seconded by Councilman Mack that Ordinance No. 411 be passed and approved on second and final reading. Said Ordinance reads in caption as follows: ORDINANCE NO. 411 AN ORDINANCE OF THE CITY OF PEARLAND, TEXAS, REGARDING THE CREATION OF WATER OR SEWER DISTRICTS WITHIN THE EXTRA- TERRITORIAL JURISDICTION OF THE CITY; PROVIDING DEFINITIONS; CONTAINING GENERAL PROVISIONS RELATING TO THE SUBJECT; A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. Voting "Aye" - Councilwoman Coppinger, Councilman Mack, Councilman Frauenberger, Councilman McComb and Councilman Wilson. r Voting "Nay" - None Motion passed 5 to 0. NEW BUSINESS - CONTINUED: HOUSTON LIGHTING & POWER COMPANY'S TEMPORARY RATE INCREASE: City Attorney Bobby Williams advised that it was originally thought that a final rate would be set by the Public Utility Commission by December 10, 1979, and based on this, the Houston Lighting _& Power Company put interim rates into effect under bond. The Examiner's Report has now been remanded back to the Public Utility Commission and the Final Order will not be issued prior to January 4, 1980. A letter from Houston Lighting & Power Company dated December 12, 1979, was entered into the records of the City. COMMUNITY PUBLIC SERVICE COMPANY'S FILING WITH PUBLIC UTILITY COMMISSION: City Attorney Bobby Williams advised that the Community Public Service Company's letter of December 5, 1979, was a notification that when the Houston Lighting & Power Company's rate increase goes into effect their rates will also increase since they purchase power from the Houston Lighting $ Power Company. AUTHORIZATION TO BID REHABILITATION OF SANITARY SEWER SYSTEM: City Engineer Malcolm Collins advised that the plans and specifications for the rehabilitation of the sanitary sewer system w s now ready to be advertised for bids. It was moved by Councilman McComb, seconded by Councilman Wilson that the City Manager and staff be authorized to bid the rehabilitation of the sanitary sewer system, and that the bid due date be Noon, January 23, 1980. Motion passed 5 to 0. AUTHORIZATION TO BID MYKAWA ROAD PROJECT: City Engineer Malcolm Collins advised that the plans and specifications for the Mykawa Road Project from Orange Street to North City Limits was now ready to be advertised for bids. It was moved by Councilman Wilson, seconded by Councilman McComb that the City Manager and staff be authorized to bid -the Mykawa Road Project, and that the bid due date be Noon, January 14, 1980. Motion passed 5 to 0. AUSTIN BRIDGE COMPANY - WORK COMPLETED THROUGH OCTOBER 31. 1979 - FINAL ESTIMATE: It was moved by Councilman Frauenberger, seconded by Councilman McComb that Engineer's Final Estimate No. 6 for work completed through October 31, 1979, in the amount of $24,595.98, Austin Bridge Company, Inc. for the extension of Mykawa Road be approved for payment from the appropriate bond fund. Motion passed 5 to 0. City Manager Wolff asked that the City Engineer furnish him with the cost of 2 the width of this street that abuts Bunker Hill Townhouses so that John Garner can be invoiced for this amount. LEM CONSTRUCTION COMPANY - WORK COMPLETED THROUGH NOVEMBER 30. 1979: It was moved by Councilwoman Coppinger, seconded by Councilman Wilson that Engineer's Estimate No. 10 for work completed through November 30, 1979, in the amount of $34,461.11, Lem Construction Company for Sewer Plants 2 and 3 be approved for payment from the appropriate bond fund. Motion passed 5 to 0. RESOLUTION NO. R79-33, A RESOLUTION APPROVING CLAIM FOR PERSONAL SERVICES IN DEVELOPMENT OF DRAINAGE STUDY: Resolution No. R79-33 was read in full by Councilman Wilson. It was moved by Councilman Wilson, seconded by Councilman Mack that Resolution No. R79-33 be passed and approved on first and only reading. Said Resolution reads in caption as follows: RESOLUTION NO. R79-33 A RESOLUTION APPROVING CLAIM FOR PERSONAL SERVICES IN THE DEVELOPMENT OF A DRAINAGE STUDY FOR THE CITY OF PEARLAND, TEXAS; AUTHORIZING THE DELIVERY OF TIME WARRANTS FOR THE PAYMENT OF SUCH CLAIM; CONTAINING OTHER PROVISIONS RELATING — TO THE SUBJECT AND PROVIDING THAT THIS RESOLUTION SHALL BE EFFECTIVE UPON AND AFTER ITS ADOPTION. Voting "Aye" - Councilman Wilson, Councilman McComb, Councilman Frauenberger, Councilman Mack, and Councilwoman Coppinger. Voting "Nay" - None Motion passed 5 to 0. FINAL APPROVAL OF WOODCREEK SECTION III: City Engineer's letter of December 12, 1979, noting certain corrections was read into the records. It was moved by Councilman Wilson, seconded by Councilman Mack that this item be tabled until corrections have been made. Motion passed 5 to 0. REVIEW AND AWARD OF BID NO. B79-13, FOUR POLICE PATROL VEHICLES: The following bids received for review by the City Council: VENDOR MAKE PRICE DELIVERY DATE TRADE INS Tom Peacock 1979 Chevrolet in stock $600.00 (2) Impala 4dr $6,925.00 Malibu 4dr 6,400.00 River Oaks Chrysler Plymouth Co. $28,390.44 total (4) $700.00 (2) 1980 Plymouth Gran Fury 4dr $7,097.61 A. C. Collins Ford, Inc. $30,494.56 total (4) $1,000.00 (2) 1980 Ford LTD 4dr $7,623.64 It was moved by Councilman McComb, seconded by Councilman Mack that Bid No. B79-13 be awarded to the River Oaks Chrysler Plymouth Company, Inc. for four 1980 Plymouth Gran Fury police patrol vehicles in the amount of $28,390.44 less $700.00 for two 1977 Dodge trade-ins. Motion passed 5 to 0. ORDINANCE NO. 410, AN ORDINANCE OF THE CITY OF PEARLAND AMENDING SECTION 7-13.1 OF ARTICLE II, CHAPTER 7 OF THE CODE OF ORDINANCES: Ordinance No. 410 was read in caption by Councilwoman Coppinger. (First Reading) It was moved by Councilwoman Coppinger, seconded by Councilman McComb that Ordinance No. 410 be passed and approved on first of two readings. Said Ordinance reads in caption as follows: ORDINANCE NO. 410 AN ORDINANCE OF THE CITY OF PEARLAND, TEXAS, AMENDING SECTION 7-13.1 OF ARTICLE II, CHAPTER 7 OF THE CODE OF ORDINANCES OF j THE CITY OF PEARLAND, TEXAS, PROVIDING FOR THE REPEAL OF ALL j CODES OR PARTS OF CODES IN CONFLICT HEREWITH; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE AND CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT. Voting "Aye" - Councilwoman Coppinger, Councilman Mack, Councilman Frauenberger, Councilman McComb, and Councilman Wilson. Voting "Nay" - None Motion passed 5 to 0. Kenneth Page, representing Houston Helicopters, Inc. spoke in opposition to this ordinance. -66' 71 RESOLUTION NO. R79-32, A RESOLUTION AUTHORIZING MAYOR TO EXECUTE RECIPROCAL AGREEMENT WITH FRIENDSWOOD RELATING TO WATER AND SEWER SERVICE FOR CERTAIN AREAS: Resolution No. R79-32 was read in full by Councilman Frauenberger. It was moved by Councilman Frauenberger, seconded by Councilman.Wilson that Resolution No. R79-32 be passed and approved on first and only reading. Said Resolution reads in caption as follows: RESOLUTION NO. R79-32 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT AND AGREEMENT BY AND BETWEEN THE CITY OF PEARLAND AND THE CITY OF FRIENDSWOOD. Voting "Aye" - Councilman Wilson, Councilman McComb, Councilman Frauenberger, Councilman Mack, and Councilwoman Coppinger. Voting "Nay" - None Motion passed 5 to 0. EXTENSION OF EMPLOYMENT FOR NOBLE HALE: It was moved by Councilman Wilson, seconded by Councilman McComb that the employment of Noble Hale be extended for a six month period in accordance with Section 8.4 of the Personnel Ordinance No. 266. Motion passed 5 to 0. RECOMMENDED SPECIFICATIONS FOR DESIGN AND CONSTRUCTION OF STORM SEWERS: It was moved by Councilman Mack, seconded by Councilman Frauenberger that Exhibit "B" City of Pearland Specifications for design and construction of storm sewers, 'Chapter 1, Design Standards, be adopted by the City Council and that under item 1.3-4 open channels, on the sixth line "minimum feet 50 feet" be changed to "minimum feet 35 feet". Motion passed 4 to 1. Councilman McComb opposed. ADJOURN: The meeting adjourned at 11:20 P.M. Min u approved as submitted and/or corrected this day of A. D., 1980. Mayor ATTEST: City Secretary