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Agenda Packet TC 05/18/2009 - Supplementas 01 d l NORTH TEXAS a.• COMMISSION DSP:dm Enclosures RI IILI7FNG TI•IC F.LGN?h fli fl-Ir)Rf tSdaS arceE>,?rl Parkway, 411ile 6.10. Irving, Teals 7$061 M,tlul+,: R-0- R,rx nk1�gar,, 17Fw Yirl* 1, Tc�.r,. rSih9-II -11; METRO: 9 -2 -f,11.1] -M FACS1MILF: '1- 0.'4.9,IIY16 E-MAIL: 11106-tic-116w.i 9 IViniltE: kVW-111411w,rlrg April 27, 2009 2009-2009 Officers and Honorable Nick Sanders Executive Cum mittee Mayor Town of Trophy Club Kenneth Barr Chalpinapt 100 Municipal Drive Club, Texas 76262 Wendy LopezTrophy Vice Chairnmin Dear Mayor Sanders: Robert F. Pence &cmlory As you know, programs of the North Texas Commission {NTC} in transportation, Tom Gppcnh6rn aviation, clean air, water resources development, economic vitality, workforce training Trea.mrer and education, regional marketing, workshops and seminars are available to the members Hal T. Thorne of the Commission. The Commission is lite one and only public-private regional Genera! Counsel organization committed to enhancing the overall economic vitality and quality of life of Dan S. petty North Texas. PresidentICE0 The NTC is hilly cognizant of the economic challenges facing our members and partners H- Dan Farell 1=I:n,ediare Past Chairman and while the road to recovery is long and uncertain, we must be diligent in our efforts to ensure sustainability in programs critical to our region. The NTC remains vigilant in Robert Cluck ensuring sound fiscal policies and has steps to reduce costs while being careful not to Bill KefIler jeopardize the quality of our programs and services. For example, the NTC Window newsletter is now produced in electronic format only which amounts to a significant Wright Lassitu savings in printing and postage expense. Stanley R. Levenson Since your budget planning for the next year is already underway, we wanted to let you Donna R. pat}et know ,khat the annual dues formula for the October 1, 2009 - September 30, 2010 year Holly Reed will be. In accordance with the Bylaws of the North Texas Commission, the investment formula is $.0$5 per capita with minimum of $1,200. Based on the North Central 'Texas Council of Governments recent population estimate of 7,600 for the Town of Trophy Club, the annual dues amount would then be $1,200. Thank you for your continuing support of the North Texas Commission. Your membership investment is making possible a wide range of program initiatives. Enclosed is the 2009 NTC Program of Work. If you have any questions, please do not hesitate to contact me at 972/621-0400 or email dan@ntc-dfw.org, Sincerely, Dan S. petty President/CEO DSP:dm Enclosures RI IILI7FNG TI•IC F.LGN?h fli fl-Ir)Rf tSdaS arceE>,?rl Parkway, 411ile 6.10. Irving, Teals 7$061 M,tlul+,: R-0- R,rx nk1�gar,, 17Fw Yirl* 1, Tc�.r,. rSih9-II -11; METRO: 9 -2 -f,11.1] -M FACS1MILF: '1- 0.'4.9,IIY16 E-MAIL: 11106-tic-116w.i 9 IViniltE: kVW-111411w,rlrg eo' NORTH • • TEXAS ` •`' ' COMMISSION .e. 2009 Kev Priorities Mission The purpose of the North Texas Commission is to enhance and promote the economic vitality and quality of life of the 12 -county Dallas -Fort Worth region by providing leadership, identifying regional problems and issues and creating solutions For these issues. The North Texas Commission is a regional non-profit consortium of business, cities, counties, chambers of commerce, economic development entities and higher education institutions. NTC is the one and only public-private regional organization committed to enhancing the overall economic vitality and quality of life of North Texas. The NTC provides a platform for regional collaboration through committees, events and supporting programs that join together business leaders and public officials to solve and address issues facing our region. Committees • Board of Directors • Executive Committee Finance and Audit Committee Nominating Committee North Texas Future Fund Regional Logistics Committee North Texas Aviation Marketing Committee Innovation Economy Committee Branding Committee 'programs Supported by the RITC Transportation and Regional Rail Funding,. The NTC con- tinues to support revenue and funding measures to enable in- creased investment in a regional rail and transportation solu- tion during the 81st Texas Legislative Session. • Partners in Mobility: Each spring this event in Austin at- tracts more than 200 business, community and transporta- tion leaders for a reception and presentation to the Texas Transportation Commission. • Texas Urban Transportation Alliance: An alliance formed to urge the Texas Transportation Commission and the Texas Legislature to declare urban mobility a Texas prior- ity and take specific actions to address the growing threat of roadway congestion in the metro areas. Legislative Transportation Advocacy Environmental Regional Water Resources and Air Quality: The NTC remains active as a founder of the North Texas Clean Air Coalition and continues to support and participate in the work of the Region. C Water Planning Croup. • North Texas Cleary Air Coalition: Helps increase awareness of the air quality problem in North Texas and its solutions. • North Texas Clean Air Steering Committee: The NTC is part of this regional advocacy coalition of business and civic leaders formed to formulate strategies to reduce emis- sions that pollute the air and cause health problems. InterLink: A regional quality workforce planning organiza- tion, InterLink is a partnership among business, education and government entities that works to improve workforce develop- ment in the North Texas region and helps snatch the supply and demand of a skilled labor force. Super Bowl XLiV Host Committee: As a member of the Board and Host Committee, we are working toward a spectacular event that will make every citizen of North Texas proud to host and participate in one of sports biggest events. DFW International Airport `Welcome Home a Hero' Pro- gram; NTC facilitates the volunteer -based program to wel- come home more than 200 troops daily for rest and recupera- tion. June 2009 marks the programs fifth anniversary. BIODFW: The NTC was a founder of BIODFW, a partnership that provides leadership to promote the regions biomedical in- dustry initiatives through education, collaboration, innovation, and excellence. North Texas Future Fund: Created by NTC to identify, study and seek long-term solutions for issues facing the region. • North Texas Literacy Coalition: Comprised of literacy providers, advocates, community organizations and busi- ness leaders dedicated to fighting illiteracy in North Texas, • Leadership North Texas: A leadership program aimed at recruiting, developing and supporting regional leaders. • Nanomaterials Design and Commercialization Commit- tee: The centerpiece of a new innovation infrastructure. Regional Logistics Committee: Markets the North Texas lo- gistics industry throughout the county. Events Fortune 500 Reception: Each year, the NTC honors the For - time 500 companies headquartered in our region. Annual Membership Luncheon: The NTC will host the 2009 Annual Membership Luncheon at the new Dallas Cowboys Sta- dium - the newsest regional asset - on Sept. 22. Issues Forums: NTC hosts forums to provide members with thought leadership and discussion for today's workplace. North Texas Future Fund Bridge Awards. In April 2009, the NTFF held its first Bridge Awards honoring individuals, non- profit organizations and corporate partners that have made Significant strides in ending illiteracy in the region. Apri[ 2009 .. ev •C• •.• NORTH e oa . TEXAS o p COMMISSION MISSION The purpose of the North Texas Commission is to enhance and promote the economic vitality and quality of life of the Dallas/Fort Worth Metroplex by providing leadership; identifying regional problems and issues; and helping create solutions for these problems and issues. The North Texas Commission is a regional non-profit consortium of business, cities, counties, chambers of commerce, economic development entities and higher education institutions in the North Texas Region. The Commission is the one and only public-private regional organization committed to enhancing the overall eco- nomic vitality and quality of life of North Texas. TRANSPORTATION • Lead and support the effort to bring together the region to secure funding for Rail North Texas. • Work with legislators throughout the 81st Texas Legislature to seem more resources for increased investment in transportation infrastructure. • Attend key transportation meetings to stay informed and collaborate in the effort to sustain mobility. • Make presentations to clubs, organizations, boards, councils, etc. to build an informed constituency for transportation investment • Support coalitions such as the Dallas/Fort Worth Area Partners in Mobility and the Texas Urban Transportation Alliance. • Evaluate individual and organizational efforts for out- standing contributions to the improvement of mobili- ty for consideration for the Transportation Excellence Award in Mobility (TEAM). AVIATION • Strengthen the growing workforce in aviation by part- nering with universities to offer a four-year aviation degree. • Continue to assist D/FW International Airport with its efforts to increase air service and air routes to the region. • Work with D/FW International Airport's staff to assist with the Air Cargo Association for the region. • Support air cargo development for North Texas by marketing its cargo airports through dissemination of information and presentations to prospective busi- nesses interested in the region 2008 - 2009 NTC Program of Work Market North Texas general aviation airports to help expand facilities and increase business development. Assist North Texas general aviation through advo- cacy of public policy issues critical to their growth and increased activity. Coordinate and assist regional allies in legislative, intergovernmental and surface transportation issues that complement the growth of regional aviation and, in particular, D/FW International Airport. Coordinate joint attendance and booths at. selected aviation trade shows, including the annual National Business Aviation Association (NBAA), to market the aviation assets of the region. 40VATION ECONOMY Market North Texas assets to maintain and enhance our region's competitiveness in a globally competi- tive, innovation driven economy. Enable university research excellence, to include support for state and federal grant funding. Facilitate collaboration among universities and industry to discuss the expansion of the innovation economy of North Texas. Create regional capacity to drive the commercial- ization of products from technologies developed in North Texas. Provide leadership and support for the North Texas Clean Air Steering Committee, a regional coalition of business and civic leaders formed in 1999 to reduce emissions that pollute the air, cause health problems and jeopardize the regions mobility and economic vitality. (www.northtexasair.org) Actively participate in the Texas Clean Air Working Group, a coalition of Texas non -attainment and near non -attainment areas. The purpose is to exchange information and to formulate and advocate consensus on regulatory, administrative and legislative policy positions related to federal Clean Air Act compli ante. As a founding member of the North Texas Clean Air Coalition, actively participate in this regional air quality advocacy and education group. Monitor clean air bills filed in the Texas Legislature and lobby for or against them as appropriate to help North Texas improve its air quality and sustain eco- nomic prosperity. 9%2!2008 Continued on other side Police Department Stats - 2009 Activity January February March April May June July August September October November December Total Accidents -Minor 4 0 4 4 12 Accidents -Major 0 0 0 0 0 Accident - Hit & Run 0 1 0 2 3 Assaults 1 0 1 1 1 1 1 1 1 1 3 Burglar Alarms 31 19 13 15 78 Burglary In Progress 0 1 1 1 3 Burglary Investigations 0 2 2 5 9 Suspicious Activity 13 6 5 8 32 Deceased Person 0 0 0 1 1 E.D.P. 1 4 1 1 7 Distubance 8 9 5 8 30 Domestic Disturbance 2 3 5 9 19 Animal Complaint 29 30 33 47 139 Intox. Person 0 1 0 3 1 1 1 1 4 Burg. Motor Vehicle 1 0 3 3 7 Fight 0 0 0 0 0 D.W.I. 1 1 1 2 5 Assist Fire Dept. 8 10 12 6 36 Bicycle Patrol 1 1 0 0 1 1 1 1 2 Assist EMS 12 8 9 8 37 Meet Complainant 9 12 9 5 35 Parking Violation 67 105 41 50 263 Traffic Stop 293 300 367 370 1330 Person wl A Gun 0 0 0 0 0 Prisoner Detail 2 0 1 0 3 Prowler 0 0 3 0 3 Suspicious Person 7 13 12 7 39 Suspicious Vehicle 27 32 27 32 118 Theft Investigation 4 3 4 1 12 Abandond Vehicle 0 0 2 0 2 Abandond/Found Property 0 2 2 2 6 Court 0 1 2 1 4 Escort 1 0 4 1 6 Equipment Service 1 7 2 2 12 Information 5 3 7 14 29 Criminal Mischief 2 3 5 7 17 Missing Person 0 1 2 1 4 Open Door 1 9 8 15 10 1 42 Arrest 14 14 10 17 55 Stolen Vehicle 0 1 2 0 3 Assist Citizen 13 5 9 12 39 Assist Officer 79 78 74 71 302 City Ord. Violation 10 12 29 7 58 Civil Standby 1 2 2 0 1 5 Criminal Trespass 1 2 0 0 3 Follow Up 6 6 8 6 26 Forgery 4 1 1 2 8 Harassment 3 0 1 1 5 Premise Check 167 144 171 172 654 Runaway 0 1 0 0 1 Special Assignment 2 3 6 1 12 Suicide/Threat 0 0 0 0 0 Surveillance 0 0 0 0 0 Traffic Detail 15 24 12 19 70 Training 8 3 12 5 28 Warrant Service 2 1 0 2 5 Write Report 11 4 9 12 36 Crime Prevention 7 1 10 1 15 1 6 38 Deliver Packets 28 1 64 1 17 1 36 145 Foot Patrol 71 1 110 1 102 1 76 359 House/Business Check 121 116 137 110 484 Narcotics Violation 5 5 1 6 17 Terroristic Threat 2 0 1 4 7 Crimes Against Children 0 1 1 0 2 Warrant Indicated 0 1 0 2 3 Assist Motorist 4 7 12 10 33 Vehicle Complaint 5 6 7 2 20 Assist Other Agency 19 9 16 15 59 Juvenile Complaint 5 4 13 4 26 School Related 18 21 12 12 63 911 Hang Up 6 12 4 2 24 Admin Duty 49 52 61 51 213 Identity Theft 0 1 2 4 7 Welfare Concern 4 1 3 4 12 Total Number of Calls 1,219 1,308 1,348 1,299 5,174 Texas " Municipal League April 30, 2009 Number 17 IS THE TEXAS OPEN MEETINGS ACT UNCONSTITUTIONAL? Indeed, the Supreme Court's decisions demonstrate that the First Amendment's protection of elected officials' speech is robust and no less strenuous than that afforded to the speech of citizens in general. Further, the [U.S. Supreme] Court reaffirmed that "[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance. " -U.S. Court of Appeals for the 5th Circuit On April 24, 2009, the U.S. Court of Appeals for the Fifth Circuit released its long-awaited opinion in the City of Alpine Open Meetings Act lawsuit (Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, and the State of Texas). The question presented in the appeal was whether the speech of local government officials made pursuant to their official duties has the same constitutional protections that the First Amendment to the U.S. Constitution grants to other types of speech. The Fifth Circuit did not directly answer that question, but rather returned the case to the trial court for further proceedings. That action is significant because the legal standard of review imposed by the Fifth Circuit presents a very high hurdle for the government to overcome. Essentially, the state must now prove that the criminal provision of the Open Meetings Act is not unconstitutional. What started the lawsuit? A city councilmember in Alpine sent an e-mail to four other councilmembers asking whether they felt that a particular item should be placed on a future agenda. The following day, one of the four councilmembers responded to the first e-mail, stating that she agreed that the item was relevant and should be discussed. Later, two of the councilmembers involved in the exchange were criminally indicted by a grand jury under the criminal illegal meeting provision of the Open Meetings Act. The indictments were ultimately dismissed "without prejudice," meaning the councilmembers could be charged again. Fed up with the tortured interpretations and absurd applications of the Act, two councilmembers sued the district attorney and the State of Texas. They claimed that speech made outside of a council meeting is entitled to the same First Amendment protections as any other speech. Following a bench trial in 2006, a federal judge concluded that the First Amendment's protection of elected officials' speech is limited (just as it is for the speech of public employees). The plaintiffs then appealed to the Fifth Circuit. The question presented in the appeal was whether speech of elected state and local government officials made pursuant to their official duties is less protected by the First Amendment than other speech. While the district court held that the First Amendment affords absolutely no protection to speech by elected officials made pursuant to their official duties, the Fifth Circuit reversed and held that there is a meaningful distinction between the First Amendment's protection of public employees' speech and other speech, including that of elected government officials. The court held that, when a state seeks to restrict the speech of an elected official on the basis of its content, a federal court must apply "strict scrutiny" review. Strict scrutiny review: (1) shifts the burden of proof to the government; (2) requires the government to prove that its action or regulation pursues a compelling state interest; and (3) demands that the government prove that its action or regulation is "narrowly tailored" to further that compelling interest. Because the district court did not apply the required strict scrutiny analysis, the Fifth Circuit reversed the district court's judgment and remanded the case to the trial court for the performance of that task. The Fifth Circuit opined that "[w]e agree with the plaintiffs that the criminal provisions of [the Texas Open Meetings Act] TOMA are content -based regulations of speech that require the state to satisfy the strict scrutiny test in order to uphold them." Section 551.144 of the Open Meetings Act, which criminalizes the discussion of public matters by a quorum of public officials when outside of an open meeting, is "content -based" because whether a quorum of public officials may communicate with each other outside of an open meeting depends on whether the content of their speech refers to "public business or public policy over which the governmental body has supervision or control." The court points out, however, that the fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying" that standard. 2 Neither the Texas Municipal League nor its member city officials are opposed to open government, and we do not favor "backdoor deals in smoke-filled rooms." What city officials favor is serving their communities without the constant threat of fines and jail time for doing so. It is hoped that the final resolution of this case will give them what they need. EMINENT DOMAIN: SENATE BILL 18 MAY BE THE OMNIBUS "REFORM" BILL The Committee Substitute for S.B. 18 by Sen. Craig Estes (R—Wichita Falls) may emerge as the session's primary eminent domain bill. It attempts to strike a reasonable balance between the needs of condemnors and the property rights of landowners. In 2007, H.B. 2006 was the omnibus eminent domain reform bill. That bill made sweeping and dramatic changes to eminent domain law and the condemnation procedures that go with it. It was vetoed by the governor because it could have unreasonably modified the way condemnation damages are calculated and would have cost the state millions of dollars. This session, more than 20 bills and joint resolutions proposing constitutional amendments, most of which would be extremely harmful to municipal authority, have been filed. Unlike those bills and unlike H.B. 2006 (2007 session), S.B. 18 appears to make more subtle changes in an effort to promote fairness for property owners. The version of the bill that has been voted out of the Senate State Affairs Committee has the following selected provisions: • Public Use: A governmental or private entity may not take private property through the use of eminent domain if the taking is not for a "public use." The bill would rely on existing court precedent defining public use and would preserve the "safe harbor" provision in current law that authorizes the acquisition of property for transportation projects, utility projects, and public buildings. • Record Vote: A record vote of the governing body, with specific procedures and wording, will be required to take each parcel of land through the use of eminent domain. • Report to Comptroller: Any entity authorized to exercise the power of eminent domain must submit to the state comptroller, by December 31, 2010, a letter stating that the entity is authorized to exercise the power of eminent domain and identifying the provision or provisions of law that grant the entity that authority. The entity's authority to use eminent domain will expire if the letter is not sent by the deadline. • Property Owner's Appraisal: When an entity with eminent domain authority wants to acquire real property, it shall disclose to the property owner any and all appraisal reports produced or acquired by the entity relating specifically to the owner's property 3 and prepared in the ten years preceding the offer; and the entity must pay for an appraisal of the property at a property owner's request. • Bona Fide Offer: When an entity with eminent domain authority wants to acquire real property for a public use, it must make a bona fide offer to acquire the property from the property owner voluntarily. If a court determines that a condemnor did not make a bona fide offer to acquire the property from the property owner voluntarily, it will abate the suit, order the condemnor to make a bona fide offer, and order the condemnor to pay costs and attorneys' fees. • Condemnation Petition: A condemnation petition must state with specificity the public purpose for which the entity intends to use the property. The petition must state that the entity and the property owner are unable to agree on the damages after negotiating in good faith, and an entity that files a petition must provide a copy of the petition to the property owner. • pecial Commissioners' Hearing: Each party has a reasonable period to strike one of the three special commissioners appointed by the judge in the case, with the judge appointing a replacement. • Compensation: The special commissioners shall consider an injury or benefit that is peculiar to the property owner and that relates to the property owner's ownership, use, or enjoyment of the particular parcel of real property, including a material impairment of direct access on or off the remaining property that affects the market value of the remaining property, but the commissioners may not consider an injury or benefit that the property owner experiences in common with the general community, including circuity of travel and diversion of traffic. (Note: This provision is directed at the Texas Supreme Court's opinion in State v. Schmidt. That case dealt in part with damages caused by a highway improvement. The court held that owners were not entitled to compensation for diminution in value of the remainder due to diversion of traffic, increased circuity of travel to property, lessened visibility to passersby, or inconvenience of construction activities. [These are commonly referred to as the "Schmidt factors."] The Schmidt case dealt with the expansion and elevation of Highway 183 in Austin, and thus the facts are urban. However, the Texas Farm Bureau is likely interested due to the construction of the Trans -Texas Corridor or other highway projects that are moving through rural areas. The compensation provisions in S.B. 18 appear to be more balanced than those in other bills because they offer some certainty from existing court precedent.) • Relocation Assistance: As a cost of acquiring real property, a city must provide a relocation advisory service for an individual, a family, a business concern, a farming or ranching operation, or a nonprofit organization that is compatible with the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act. The city must also pay moving expenses and rental supplements, make relocation payments, provide financial assistance to acquire replacement housing, and compensate for 4 expenses incidental to the transfer of the property if an individual, a family, the personal property of a business, a farming or ranching operation, or a nonprofit organization is displaced in connection with the acquisition. The bill would also modify current statutory provisions that allow a property owner to repurchase condemned property if it isn't used by the condemnor within ten years of the condemnation. Finally, the bill would provide that the standard for determining the fair value of the state's interest in access rights to a highway right-of-way shall be the same legal standard that is applied by the Texas Transportation Commission under the Texas Transportation Code, which may include the impairment of highway access to or from real property where the real property adjoins the highway. As the Texas population grows, citizens demand more services. Parks, libraries, police buildings, and other public facilities are not generally considered options in cities that want to remain livable, and the use of eminent domain to acquire land for projects to accommodate all current and future city residents is inevitable. Providing a way in which citizens can live and work in close proximity, safely and healthfully, is the very reason cities have eminent domain authority in the first place. The provisions of S.B. 18, in its current form, might make the use of eminent domain more complicated, and nominally more expensive. But the bill is not nearly as bad as virtually every other alternative. The bill now heads to the Senate floor. BILL ADDRESSES CITY ELECTED OFFICIALS' ELIGIBILITY FOR THE LEGISLATURE A bill that has been reported from a House committee and is now in the House Calendars Committee would provide that no person who holds a "lucrative office" in a political subdivision is eligible "to serve in the legislature during the term for which the person is elected or appointed," even if the person resigns to run. The bill H.B. 957 by Swinford) defines a "lucrative office" as any office in which a person receives "any salary, fee, or other compensation, no matter how small." The bill is intended to clarify a series of conflicting court decisions that interpret Section 19, Article III, of the Texas Constitution, relating to eligibility of current office holders to serve in the legislature. 5 HOUSE COMMITTEE APPROVES BILL TO BAN RED LIGHT CAMERAS On Monday, April 27, the House Urban Affairs Committee approved H.B. 2638 by Rep. Carl Isett (R -Lubbock). The bill would prohibit cities from operating photographic traffic enforcement cameras for red light violations, speeding, or any other traffic violations. The committee vote on the bill, which occurred four days prior, was a close 6-5 in favor of banning cameras. Strangely, the bill emerged from the committee without any kind of state fiscal note attached to it. This is despite the fact that 50 percent of fine revenue from camera operations is diverted by current law to the state for regional trauma funding. While the explanation of the bill's fiscal note is confusing, it appears to be based at least in part on the fact that the legislature forgot to actually appropriate the state's share of the money during the 2007 legislative session. This misleading lack of a negative fiscal note undoubtedly helped the bill pass the committee. Cities that use red light cameras, or are considering doing so, should contact their House members and urge them vote against H.B. 2638. City officials should point out that cameras fund regional trauma hospitals and that this funding source would end if cameras are banned. CORRECTION The April 23, 2009, edition of the TML Legislative Update reported that S.B. 1498 (see "Significant Committee Actions") would establish a "complaint and hearing process for a veteran who believes he/she was denied an employment preference granted under the law." For cities, the bill establishes a complaint procedure but not a hearing process. We apologize for the error. SIGNIFICANT COMMITTEE ACTIONS H.B. 206 (J. Jackson), relating to the on -premises consumption of alcoholic beverages. Reported from the House Licensing and Administrative Practices Committee. H.B. 240 (Alonzo), requiring that an appointment to a municipal governing body be made with the intent to ensure that the governing body is representative of the constituency served by the governing body. Reported from the House County Affairs Committee. H.B. 632 (S. Turner), relating to water and sewer utilities near the Gulf of Mexico. Reported from the House State Affairs Committee. As reported, this bill would: (1) mandate that a retail public utility (including a municipally -owned utility), within 100 miles of the Gulf 6 of Mexico must maintain (or have access to through a mutual aid program) auxiliary power generators capable of ensuring that, in the event of a local power outage, the retail public utility maintains the ability to provide water to the local distribution system with at least the minimum water pressure required under Texas Commission on Environmental Quality (TCEQ) rules, and sewer services to all existing customers; (2) provide that the TCEQ by rule shall prescribe standards relating to the auxiliary power generators and create and implement an inspection schedule that ensures the inspection of each retail public utility for compliance with the new mandate at least once a year; and (3) authorize the TCEQ to impose an administrative penalty on a retail public utility that violates the new requirement or permit the commission to revoke the utility's license to operate. H.B. 1229 (C. Howard), requiring that appraisal review board members shall be appointed by the county commissioners court rather than by the appraisal district's board of directors as current law provides. Reported from the House Ways and Means Committee. H.B. 1254 (Callegari), requiring any city with a red light camera system to attach a flashing caution light to the sign that indicates the presence of a red light camera. Reported from the House Urban Affairs Committee. H.B. 1648 (Menendez), relating to cities covered by Chapter 143 of the Local Government Code (fire/police civil service). Reported from the House Urban Affairs Committee. As reported, this bill would enact, in Chapter 143 cities, a "police bill of rights." Specifically, this bill would limit the way in which a covered city may investigate a complaint against a police officer or firefighter, including: (1) limiting the times at which a police officer or firefighter may be interrogated; (2) not allowing interrogation of a police office or firefighter at his/her home; (3) specifying the individuals who may perform the investigation; and (4) limiting the way in which an interrogation of a police officer or firefighter may be conducted. H.B. 1932 (Thompson), relating to health benefit plan labeling. Reported from the House Insurance Committee. As reported, this bill would apply to most health benefit plans, including one issued by an intergovernmental risk pool. It would provide that certain documents issued by a health benefit plan must contain a "fact label" that includes the monthly premium, expenses paid in -network and out -of -network, annual out-of-pocket expenses, and much more. H.B. 2000 (McCall), requiring health benefit plans to provide coverage for amino acid -based elemental baby formulas. Reported from the House Insurance Committee. H.B. 2116 (Pickett), relating to the issuance of state general obligation bonds for highway improvement projects. Reported from the House Transportation Committee. H.B. 2253 (Hancock), relating to political advertising. Reported from the House Elections Committee. As reported, this bill would change the statute relating to unlawful political advertising on measures as follows: (1) require that violations of the statute be knowing; (2) 7 require the Texas Ethics Commission (the Commission) to adopt rules defining unlawful advocacy; (3) provide that a member of a city council whose only action in connection with a proposed communication describing a measure is to approve the spending of public funds for a communication that does not violate the statue does not commit an offense if, at the time the spending was approved, the proposed content does not advocate passage or defeat of the measure, but the content of the communication is later changed; (4) provide that a city officer or employee does not violate the statute based solely on the conduct of others; (5) provide that it is an affirmative defense to prosecution under the statute that a city official or employee relied on a written opinion of a court, the attorney general, the Commission, or the city attorney; (6) provide that a civil penalty for violation of the statute bars criminal prosecution for the same conduct; and (7) provide that a sworn complaint alleging violation of the statute may not proceed beyond a preliminary review hearing unless the Commission makes a finding that the complaint is not frivolous and states in writing the basis for that finding. H.B. 2291 (Gattis), relating to adoption of a property tax rate. Reported from the House Ways and Means Committee. As reported, this bill would provide that: (1) a city's effective tax rate is the default tax rate for each tax year; (2) a city council must affirmatively vote to adopt a tax rate that is higher or lower than the effective tax rate; (3) the meeting to adopt a tax rate that differs from the effective rate must be an open meeting; and (4) a city must hold two hearings to adopt a rate that exceeds the effective tax rate. (To a great extent, this bill simply restates current law.) H.B. 2535 (Creighton), relating to dam safety and increasing state penalties for certain dam - related violations. Reported from the House Natural Resources Committee. H.B. 2639 (Isett), prohibiting cities from operating photographic traffic enforcement cameras. Reported from the House Urban Affairs Committee. H.B. 3244 (Riddle), relating to sex offenders. Reported from the House Criminal Jurisprudence Committee. As reported, this bill would: (1) authorize a commissioners court is a county with a population greater than 100,000 to designate a city police chief's office as the mandatory centralized sex offender registration site for the entire county; and (2) require a department thus appointed to register all sex offenders in the county, regardless of specific residency, and then report that information back to the other cities in the county. (Companion bill is S.B. 2048 by Williams.) H.B. 3731 (Coleman), permitting a county commissioners court to adopt a county assistance district sales tax without an election of the residents of the county. Reported from the House County Affairs Committee. As reported, this bill would allow a city governing body to exempt the city (but not the city's extraterritorial jurisdiction) from the sales tax. H.J.R. 17 (Guillen), relating to a property tax exemption. Reported from the House Ways and Means Committee. As reported, this legislation would amend the Texas Constitution to: (1) permit a city to adopt a tax freeze (ceiling on total taxes paid) on the homesteads of active duty military personnel; (2) provide that the military tax freeze may be adopted by action of N. the city council; (3) provide that the freeze may also be adopted by popular election, which must be called by the city council upon receipt of a petition of five percent of the registered voters of the city; and (4) permit the legislature to statutorily define eligibility for the military tax freeze. S.B. 18 (Estes), relating to eminent domain. Reported from the Senate State Affairs Committee. (Please see the separate article elsewhere in this update.) S.B. 20 (Williams), relating to the property tax. Reported from the Senate Finance Committee. As reported, this bill would: (1) permit two or more adjoining appraisal districts to consolidate certain appraisal operations; (2) provide that the appraised value of a residence homestead must be determined solely on the basis of its use as a residence homestead, regardless of the otherwise "highest and best use" of the property; (3) require that the comptroller's property value study take place once every two years instead of yearly for districts that are currently in compliance; (4) expand the scope of the comptroller's power to review appraisal district standards and operations; and (5) establish a pilot program for the appeal of certain property disputes to an administrative law judge in Bexar, El Paso, Harris, Tarrant, and Travis Counties. S.B. 700 (Patrick), requiring a city to automatically conduct a property tax rate ratification election any time the city wishes to adopt a tax rate that exceeds the rollback rate. Officially reported from the Senate Finance Committee. (Note: this bill was the subject of the lead article in the April 23, 2009, TML Legislative Update. City officials who oppose this legislation should contact their senator(s).) S.B. 815 (Watson), relating to health benefit plan labeling. Reported from the Senate State Affairs Committee. (Note: this bill is the same as H.B. 1932, above, except that it does not apply to intergovernmental risk pools.) S.B. 1068 (Wentworth), allowing a governmental body to redact certain personal information under the public information law without requesting an attorney general decision. Reported from the Senate State Affairs Committee. S.B. 1202 (Deuell), generally giving priority for the intrastate sourcing of city sales tax to the location at which a retailer first accepts payment for goods. Reported from the Senate Finance Committee. S.B. 1358 (Seliur), relating to the Texas Municipal Retirement System (TMRS). Reported from the Senate State Affairs Committee. As reported, this bill would allow a TMRS member city to calculate the amount of a retiree's cost of living adjustment (COLA) annually as an increase in the current benefit only. S.B. 2048 (Williams), relating to sex offenders. Reported from the Senate Criminal Justice Committee. (Note: this bill is the same as H.B. 3244, above.) E S.B. 2242 (Zaffirini), relating to ethics reports. Reported from the Senate State Affairs Committee. As reported, this bill would: (1) permit, but not require, a city or a candidate for city office to use Texas Ethics Commission software and other resources to file certain campaign reports; and (2) permit the commission to assist local governments in adopting their own software for managing campaign disclosures. SIGNIFICANT FLOOR ACTIONS H.B. 8 (Otto), changing the frequency of the comptroller's property value study of each appraisal district from annually to biennially and providing for biennial review of appraisal district methodologies. Passed the House. H.B. 360 (Kuempel), relating to the Texas Municipal Retirement System. Passed the House. H.B. 774 (T. Smith), relating to the protest and approval of zoning changes. Passed the House. H.B. 1174 (Hartnett), providing that a city may pay damages arising from the backup of the city's sanitary sewer system regardless of whether the city would be liable for the damages under the Texas Tort Claims Act. Passed the House. H.B. 1177 (Guillen), broadening the applicability of Subchapter A of Chapter 614 of the Government Code, relating to required legislative leave for peace officers and firefighters, from cities of 200,000 or more in population to cities of 50,000 or more in population. Passed the House. H.B. 1998 (McCall), relating to housing and emergency shelters provided by a political subdivision for disaster victims. Passed the House. H.B. 2082 (Isett), providing that the five -percent "local preference" in purchasing may be granted only for an expenditure of less than $100,000. Passed the House. H.B. 2317 (Villarreal), relating to appraisal review boards (ARBs). Passed the House. As this bill went to the House floor, it was related only to training of members of ARBs. A floor amendment, however, provides that in a county with a population of 300,000 or more, the ARB members shall be appointed by the county commissioners court, not by the appraisal district board. H.B. 2527 (Aycock), relating to municipal regulation of commercial fertilizer. Passed the House. H.B. 2532 (Bonnen), relating to information regarding the location of infrastructure. Passed the House. As passed, this bill would require each city to provide the State Division of 10 Emergency Planning with the location of infrastructure within the city that is critical to public health and safety and that requires electricity to respond to a disaster or emergency. H.B. 2555 (Hilderbran), extending from three years to five years the period of time for which a property may be exempted from the property tax as low-income housing. Passed the House. H.B 2571 (Gonzales), related to vehicle towing. Passed the House. As passed, this bill would give to the Texas Commission on Licensing and Regulation the authority to establish fees for a non -consent tow from a private parking facility. On the House floor, the House added an amendment that will prohibit a city from charging a vehicle storage fee for a vehicle that is being stored as the result of a recovery after the vehicle was stolen. H.B. 2572 (Gonzales Toureilles), relating to pipelines. Passed the House. As passed, this bill would allow a gas company to lay a line under a road (as well as over or across a road) if the company pays the required compensation to the city. H.B. 3062 (Bohac), requiring that when a city orders an election, it must provide a copy of the order to the voter registrar. Passed the House. H.B. 3612 (Otto), creating a pilot program to allow taxpayer appeals of certain appraisal review board determinations in certain populous counties to be heard by the State Office of Administrative Hearings. Passed the House. H.B. 3613 (Otto), requiring that an appraisal of a residence homestead be based on its use as a residence only, regardless of the "highest and best use" of the property. (Note: please see H.J.R. 36, below.) Passed the House. H.J.R. 36 (Otto), proposing to amend the Texas Constitution to permit the legislature to provide that appraisals of residential homesteads shall be limited to the highest possible appraised value when used only as a homestead. (Note: current law can permit appraisal at the level of "highest and best use" of the property, which might include uses other than residential.) (Note: please see H.B. 3613, above.) Passed the House. S.B. 11 (Carona), addressing various street gang and graffiti issues. Passed the Senate. As reported, this bill would: (1) make a street gang or member of a street gang liable for damages arising from gang activity, including the increased cost of governmental services and the loss of property tax revenue due to decreased value of property; (2) make a street gang or member of a street gang liable for damages stemming from injury by nuisance; (3) allow the property of a street gang or gang member to be seized in execution of a judgment against the gang; (4) require an affirmative finding of fact to be entered in the judgment if the judge determines that the conduct in question was engaged in as part of the activities of a criminal gang; (5) make any property used in certain organized crime offenses eligible for felony forfeiture proceedings; (6) create a statewide law enforcement integrity unit, run by DPS, to investigate peace officers suspected of engaging in organized crime activity, including 11 requesting information from local police departments; (7) authorize a city to pass an ordinance controlling aerosol paint sales and to impose a surcharge of $1 or less on the sale of spray paint to be collected by the city and used for purposes related to graffiti abatement; and (8) authorize a city to require certain property owners to remove graffiti within ten days of notice by the city, or authorize the city to abate the graffiti and charge the owner in accordance with a fee schedule adopted by the city. S.B. 12 (Carona), relating to emergency management. Passed the Senate. S.B. 20 (Williams), relating to the property tax. Passed the Senate. (Please see S.B. 20 in "Significant Committee Actions," above.) S.B. 263 (Carona), relating to the issuance by TXDoT of general obligation bonds for highway improvement projects. Passed the Senate. S.J.R. 48 (Williams), proposing to amend the Texas Constitution to permit the legislature to provide that appraisals of residential homesteads shall be limited to the highest possible appraised value when used only as a homestead. (Note: current law can permit appraisal at the level of "highest and best use" of the property, which might include uses other than residential.) (Note: please see S.B. 20, above.) Passed the Senate. TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League. 12 dft Texas I Municipal League May 7, 2009 Number 18 LEGISLATORS USE LAST-MINUTE MANEUVERS TO MOVE BILLS In the final weeks of each legislative session, the legislature resorts to time -tested ploys to resurrect dying bills and revive bad ideas. This session is no exception. For example, a bill relating to important immigration issues S.B. 357 by Patrick) which died on a 4-4 Senate committee vote on April 29 (when a missing committee member in favor of the idea was allegedly in the restroom) was instantly resurrected.' The author simply filed a new bill, similar to the first, even though the bill -filing deadline was long past. The new bill S.B. 2568) was immediately referred to the same committee (the Senate Transportation and Homeland Security Committee) on the very same day. The committee then met at a senator's desk to vote on the bill again, all on the same day. The missing senator, now returned from the restroom, voted in favor, and the bill was approved on a 5-4 vote. Here's another example: An effort to subject volunteer firefighters to state regulation—an idea that hasn't appeared in any filed bill—was brought up for the first time in two committee substitute bills, effectively denying cities the chance to testify against it in the committee of origin. (See the following article for more information.) There are many more examples. The League staff remains vigilant to uncover these ploys and to prevent damage to municipal authority. 1 As reported at auorumreport.com. BILLS WOULD AFFECT VOLUNTEER FIRE DEPARTMENTS Two House sunset bills relating to the Texas Commission on Fire Protection (H.B. 3390 by Harper -Brown and H.B. 2298 by Y. Davis) were revised in committee to apply new provisions to volunteer firefighters. Specifically, the bills would permit the Commission to establish minimum educational and training standards for volunteer firefighters, an idea that had never before been seen this session. These bills were already troubling because of provisions that extend regulation over paid fire departments. They are now worse. Cities knew such efforts relating to volunteers were coming. An August 2007 "Self Evaluation Report" prepared by the Texas Commission on Fire Protection in preparation for a sunset review mentioned the possibility that efforts may be made to let the state directly regulate volunteer firefighters and fire departments, similar to the way paid firefighters are licensed and regulated. According to the report, such regulation would pose "significant costs" on cities. The fact that this bad idea now shows up on a sunset bill is significant. A sunset bill must pass to keep the agency alive. Tacking bad ideas on to a sunset bill eliminates one way to realistically fight back against the idea—killing the bill entirely. While education and training standards don't amount to full-blown regulation of volunteer fire departments, they certainly represent the proverbial camel's nose under the tent. Cities with volunteer fire departments should contact their House members about these bills. SWINE FLU MAY AFFECT VOTING LOCATIONS The Texas Secretary of State's Elections Division has prepared a memo regarding recent school closings to combat the spread of the H1N1 influenza (i.e., the "Swine Flu"). The memo provides directions for a city that receives a last-minute request from a school district or other entity to use a city building as a substitute polling location: htip://www.sos.state.tx.us/elections/laws/ciiylaws.shtml Questions should be directed to: Elections Division Staff Texas Secretary of State 1-800-252-8683 Electionsgsos.state.tx.us 2 FTC IDENTITY THEFT RULES EFFECTIVE AUGUST 1, 2009 Federal Trade Commission (FTC) rules requiring city utilities to adopt identity theft programs will start being enforced on August 1, 2009, pursuant to the Fair and Accurate Credit Transactions (FACT) Act of 2003. See the Federal Trade Commission's Web site for information on this latest deadline extension: htt2://www.ftc.gov/opa/2009/04/redflagsrule.shtm. City officials should contact their city attorney or the TML Legal Department with any questions regarding adoption and implementation of a program. Contact Laura Mueller at the TML Legal Department at 512-231-7400 or by email at laura(ktml.org. (For more information please see "FTC Requires Businesses to Adopt Identity Theft Programs" in the August 21, 2008, edition of the TML Legislative Update (http://www.tml.org/leg_updates/legis_updateO82108d_identity.html), and "FTC Identity Theft Rules" in the October 9, 2008, edition, of the TML Legislative Update (http://www.tml.org/leg_updates/legis_update l 00908e_theft.html).) STIMULUS PACKAGE MAKES AVAILABLE ADDITIONAL NEIGHBORHOOD STABILIZATION FUNDS Pursuant to the passage of the American Recovery and Reinvestment Act of 2009, more commonly referred to as the federal economic stimulus package, a total of $1.93 billion was allocated to the U.S. Department of Housing and Urban Development (HUD) for the implementation of a second round of funding for the Neighborhood Stabilization Program (NSP). The purpose of the NSP is to provide funding to state and local governments to acquire property, demolish or rehabilitate abandoned properties, and offer financial assistance to low- and middle-income homebuyers. Unlike the first phase of NSP funding, which allocated roughly $178 million to Texas cities, counties, and non-profit associations through the Texas Department of Housing and Community Affairs, this round of NSP funding is to be provided directly from HUD to certain governmental and non-profit entities nationwide. The federal stimulus bill directed HUD to narrow the field of eligible entities to those areas with the highest need, and HUD will soon determine eligible areas using a need -calculation formula. 3 On May 4, HUD released its Notice of Funding Availability (NOFA) for the NSP funds provided under the federal stimulus bill. Eligible cities' applications for NSP funding must be submitted in paper form to HUD by 5:00 p.m. on July 17, 2009. According to HUD, proposals for funding generally will be judged based on the following guidelines: (1) capacity of the lead applicant to execute projects; (2) leveraging potential; and (3) concentration of investment to achieve neighborhood stabilization. For more details on the allocation of the NSP funds, and to access the NOFA, please visit http://www.hud.gov/offices/cpd/communi . development/programs/neighborhoods /p arraf actsheet.cfm. STATE WILL SAVE MILLIONS ON COPIERS: CITIES CAN SHARE IN THE SAVINGS (Reprinted with permission of Texas Comptroller Susan Combs.) A new approach to purchasing will save Texas taxpayers millions of dollars by cutting the amount of money state government spends on photocopy machines. "In these tough economic times, Texans are tightening their belts and so should government," Texas Comptroller Susan Combs said. "The state needs to spend wisely. By negotiating the best possible deal on copiers, we expect to save $33.5 million in three years." Currently, state agencies can choose from over 950 copier models — most of which perform the same functions. By bargaining with contractors and limiting choices to 11 standardized models, the state will achieve a 36 -percent cost savings. This new contract is the latest phase in the Comptroller's Texas Smart Buy initiative. In December 2008, Combs launched the initiative to renegotiate state contracts and save money by leveraging Texas' enormous buying power. The state already expects to save about $28 million a year in purchasing for mail services, mail equipment, fleet vehicles, road asphalt, and food services for Texas prisons. With the addition of a new photocopier contract the potential savings could increase to about $39 million a year. The new photocopier contract takes effect in May. School districts and local governments are eligible to purchase photocopiers through the state contract, and Combs urges them to look at the state's prices and see if they can save money. More information is available on the Comptroller's Web site at: http://www.window.state.tx.us/txsmartbuy/sourcing info.html. E TML LEGISLATOR -OF -THE -MONTH FOR APRIL 2009 Representative Carol Alvarado is the TML Legislator -of -the - Month for April 2009. Rep. Alvarado represents House District 145, which includes parts of Houston and South Houston. Representative Alvarado was elected to the Texas House of Representatives in 2008 after serving on the Houston City Council from 2002-2007. She currently serves on the very important House Land and Resource Management Committee and the House Urban Affairs Committee. Representative Alvarado served as President of the Texas Municipal League from 2006-2007. She understands local government issues and has been a tireless advocate on behalf of cities during committee meetings and House floor debates. We hope that city leaders across Texas, and particularly those in Representative Alvarado's district, will express their appreciation to this outstanding leader. LAWMAKERS STILL FILING BILLS - TOTAL REACHES 7,600! Nearly 60 days after the official bill -filing deadline, lawmakers continue to file bills by convincing their colleagues to suspend the rules. The total reached 7,600 on May 5. (This count includes bills and proposals to amend the Texas Constitution.) A very quick TML review has found that no legislative body — including Congress — has ever filed as many bills in a two-year legislative cycle. The Texas Legislature did it in just 114 days. The previous bill -filing record (6,374 in 2007) has been exceeded by nearly 20 percent. SIGNIFICANT COMMITTEE ACTIONS H.B. 300 (Isett), relating to the Texas Department of Transportation (TXDoT). Reported from the House Transportation Committee. This is the TXDoT sunset bill. As reported, it makes multiple changes to the agency's governance and operations. Of particular interest to cities is a section relating to billboards: if outdoor advertising located in a city or the city's extraterritorial jurisdiction must be removed because of the widening, construction, or reconstruction of a road, and if relocation of the outdoor 5 advertising would be allowed under department rules but is prohibited by charter, ordinance, or a decision of the city, the city shall pay just compensation: (a) to the owner for the right, title leasehold, and interest in the outdoor advertising; and (b) to the owner or, if appropriate, the lessee of the real property on which the outdoor advertising is located, for the right to erect and maintain the outdoor advertising. The bill also provides that "the rights associated with an off -premise sign that is lawfully in existence but no longer complies with current applicable laws and regulations... vest in the owner of the off -premise sign." H.B. 387 (Pena), exempting volunteer fire departments from the payment of state motor fuel taxes. Reported from the House Ways and Means Committee. H.B. 637 (Guillen), relating to residential homestead exemptions. Reported from the House Ways and Means Committee. As reported, this bill would make the following changes to the local -option, residential homestead exemption: (1) permit a city to grant an exemption of a percentage of appraisal value, as current law allows, or alternatively to exempt a specific dollar amount, similar to the senior homestead exemption; (2) provide that if the city chooses to exempt a specific dollar amount, the amount exempted must be between $5,000 and $30,000; and (3) provide that the city may not grant both types of homestead exemption. (Note: please see H.J.R. 40, below.) H.B. 818 (Eiland), relating to indemnification provisions in construction contracts. Reported from the House Judiciary and Civil Jurisprudence Committee. (Companion bill is S.B. 555 by Duncan, which has passed the Senate.) H.B. 1046 (Homer), relating to cruelly treated animals. Reported from the House Committee on Judiciary and Civil Jurisprudence. As reported, this bill would repeal the stipulation that the animal owner from whom ownership is divested may not further appeal a decision made by a county court or county court -at -law to which an initial appeal from municipal court has been made. H.B. 1344 (Menendez), relating to the Texas Municipal Retirement System (TMRS). Reported from the House Committee on Pensions, Investments and Financial Services. As reported, this bill would require the TMRS Board to establish a nine -member advisory committee. (Note: TMRS has had an advisory committee for many years. This bill would establish the committee in state law.) The advisory committee would include representatives from police and fire associations, TML, and other groups. H.B. 1389 (Y. Davis), relating to eminent domain authority. Reported from the House Urban Affairs Committee. (Note: while this bill has been reported from a committee, it is generally accepted at this time that the eminent domain legislation with the most momentum is S.B. 18. Please see "Significant Floor Actions," below, and see "Eminent Domain: Senate Bill 18 May be the Omnibus Reform Bill" in the April 30, 2009, edition of the TML Legislative Update.) Co H.B. 1392 (Leibowitz), relating to health benefit plans. Reported from the House Public Health Committee. As reported, this bill would generally prohibit health benefit plans, including plans issued by an intergovernmental risk pool, from disseminating information that ranks, classifies, compares, or rates a physician's performance, efficiency, or quality of practice. H.B. 1801 (Bohac), exempting certain backpacks and school supplies from the sales tax during the annual "back -to -school" sales tax holiday. Reported from the House Ways and Means Committee. (Note: the bill's fiscal note estimates the annual cost to cities statewide will be roughly $1.5 million.) H.B. 1988 (McReynolds), relating to DWI. Reported from the House Public Safety Committee. As reported, this bill would require a peace officer to make and attach a photocopy of a driver's license to a temporary driving permit issued to a person suspected of an intoxication offense. H.B. 2298 (Y. Davis), relating to the Texas Commission on Fire Protection (TCFP). Reported from the House Urban Affairs Committee. As reported, this bill would: (1) authorize the TCFP to establish minimum educational and training standards for volunteer firefighters; (2) allow the TCFP to enter a default order if a fire department fails to take action to correct a violation found by the TCFP during an inspection; and much more. (Note: fire chiefs should review this bill thoroughly. See also H.B. 3390, below. Also see the lead article in this update.) H.B. 2524 (Anchia), relating to elections. Reported from the House Elections Committee. As reported, this bill would require the general custodian of election records, upon the receipt of an electronic voting system from a vendor, to: (1) verify that the system is certified by the secretary of state; (2) perform a hardware diagnostic test on the system; (3) perform a public test of logic and accuracy on the system, as well as any additional test required by the secretary of state; (4) create a pre-election security procedure; (5) secure access control keys or passwords to voting system equipment; and (6) create a contingency plan for addressing the failure of an electronic voting machine. H.B. 2705 (Gattis), relating to annexation. Reported from the House Land and Resource Management Committee. As reported, this bill would clarify current law regarding provision of services after annexation to provide that, if the annexed area had a level of services for maintaining and landscaping rights-of-way superior to the level of services provided within the corporate boundaries of the city before annexation, a service plan must provide annexed public rights-of-way with a level of maintenance and landscaping that is comparable to the level of maintenance and landscaping available to other public rights-of- way in the city. H.B. 2828 (Menendez), relating to a property tax exemption. Reported from the House Ways and Means Committee. As reported, this bill would: (1) permit property owned by 7 certain limited partnerships to claim a community housing development organization (CHDO) property tax exemption; (2) expand the application of special appraisals for low- income or moderate -income housing to include apartments and land owned by persons other than certain nonprofit organizations; and (3) alter the application of the income method of appraisal to low-income or moderate -income appraisals. The bill's fiscal note states that the bill "could" impose costs on the state and on local governments. This bill is the same as H.B. 2980, below. H.B. 2909 (Marquez), allowing a city to redact certain types of personal information under the Public Information Act without first requesting a decision from the attorney general. Reported from the House State Affairs Committee. H.B. 2967 (Coleman), requiring certain health benefit plans to provide coverage for the treatment of anorexia and bulimia nervosa. Reported from the House Insurance Committee. H.B. 2980 (Hilderbran), relating to a property tax exemption. (Please see H.B. 2828, above.) H.B. 3282 (Gattis), relating to cottage food production. Reported from the House Public Health Committee. As reported, this bill would, among other things, prohibit cities from regulating the production of food at a cottage food production operation, which is defined as "an individual, operating out of the individual's home, who produces a baked good for sale." H.B. 3390 (Harper -Brown), relating to the Texas Commission on Fire Protection. Reported from the House Urban Affairs Committee. (Note: this bill is identical to H.B. 2298, above.) H.J.R. 14 (Corte), proposing to amend the Texas Constitution to provide that no person's property shall be taken by the state or a political subdivision unless the taking is necessary for the possession, occupation, and enjoyment of the property by a common carrier, a utility, the public at large, or by the state or a political subdivision. Reported from the House Land and Resource Management Committee. H.J.R. 40 (Guillen), proposing to amend the Texas Constitution to authorize the governing body of a political subdivision to adopt a local -option, residence homestead exemption from ad valorem taxation of not less than $5,000 or more than $30,000. Reported from the House Ways and Means Committee. (Note: please see H.B. 637, above.) S.B. 358 (Patrick), relating to immigration. Reported from the Senate Transportation and Homeland Security Committee. As reported, this bill would: (1) prohibit a city from adopting a policy under which the city's police department or other city officials would not fully enforce state or federal laws relating to immigration; (2) penalize a city that adopts N. such a policy by taking away state grant funds; and (3) allow a citizen residing in a city that adopts such a policy or fails to enforce state or federal law to file a petition in a district court to compel compliance with this law. S.B. 505 (Ogden), authorizing the designation of an area adjacent to a state highway project as a transportation finance zone and directing that the revenue from the state sales tax imposed in the zone be deposited in a revolving fund and used to repay financial assistance from the funds for highway projects. Reported from the Senate Finance Committee. S.B. 1118 (Ellis), relating to certain drug possession offenses. Reported from the Senate Criminal Justice Committee. As reported, this bill, among other things, would impose a $50 state fee on convictions of public intoxication and open container convictions in municipal court. S.B. 1354 (Jackson), relating to the licensing and regulation of plumbers. Reported from the House Licensing and Administrative Procedures Committee. As reported, this bill would: (1) allow plumbing by someone who is not a licensed plumber in a city of less than 5,000 in a county of less than 50,000 if the city or county has authorized non -licensed plumbing; and (2) provide that a plumber who is required to have a local permit need not pay a local fee. S.B. 1714 (Hegar), relating to groundwater control districts (GWCDs). Reported from the Senate Natural Resources Committee. As reported, this bill would: (1) prohibit water in a GWCD from being transferred outside the district for municipal use except in specific situations; and (2) require "evidence of beneficial use" before a well could be approved by a district. S.B. 2568 (Patrick), relating to immigration. Reported from the Senate Transportation and Homeland Security Committee. (Please see the lead article in this update.) SIGNIFICANT FLOOR ACTIONS H.B. 410 (Isett), relating to concealed handguns. Passed the House. On the House floor, lawmakers added an amendment that requires the Texas Department of Public Safety to promulgate a rule under which "... a peace officer who provides the department with a person's driver's license number, personal identification certificate number, or vehicle license plate number as part of a motor vehicle stop or other law enforcement inquiry is prohibited from receiving information from the department as to whether the person is the holder of a license issued under this subchapter unless the officer indicates that information is necessary for proper law enforcement purposes related to the person's possession or carrying of a handgun." (Note: police chiefs should take note of this bill.) E H.B. 806 (Gallego), requiring that health benefit plans provide coverage for prosthetics. Passed the Senate. H.B. 1054 (Mallory Caraway), relating to proof of financial responsibility for a vehicle. Passed the House. As passed, this bill would provide that: (1) a court shall dismiss a charge of not having proof of financial responsibility if the defendant proves that financial responsibility was valid at the time the offense occurred; (2) the court may assess a $10 administrative fee on such occasions; and (3) a motor vehicle operated by a person who cannot show proof of financial responsibility may be impounded by a police officer if the city has written policies authorizing but not mandating the impoundment. The bill appears to provide that a police officer may impound the vehicle or issue a ticket, but may not do both. H.B. 1433 (Lucio), raising the cap on the annual water quality fee imposed on a city by TCEQ. Passed the House. As passed, this bill would, on September 1, 2009, raise the maximum fee from $75,000 to $100,000. The bill would also allow the TCEQ to thereafter raise the maximum fee annually by an amount that reflects growth in the CPI, up to a maximum amount of $150,000 annually. H.B. 1526 (Crownover), relating to placing natural gas pipelines in a public right-of-way. Passed the House. H.B. 2230 (Parker), repealing the requirement that interest is due on back taxes when land loses its agricultural appraisal. Passed the House. H.B. 2685 (Callegari), requiring that an entity with eminent domain authority provide to a landowner a copy of the landowner's bill of rights when the entity first represents to the landowner that the entity has eminent domain authority and before the entity makes a final offer to acquire the property. Passed the House. H.B. 3454 (Otto), relating to property tax appraisals. Passed the House. As passed, this bill would: (1) provide that "all available evidence" relating to the value of property must be taken into account in appraising property; and (2) enumerate detailed conditions regarding the consideration of comparable sales, including a requirement that a comparable sale must have been completed within 24 months of the date of the appraisal. S.B. 18 (Estes), relating to the use of eminent domain authority. Passed the Senate. As passed, the bill would do the following. 1. provide that a governmental or private entity may not acquire private property through the use of eminent domain if the taking is not for a "public use." 2. require a record vote with specific procedures and wording to acquire each parcel of land through the use of eminent domain. 3. require that any entity authorized to exercise the power of eminent domain must submit to the state comptroller, by December 31, 2010, a letter stating that the entity is authorized to exercise the power of eminent domain and identifying the 10 provision or provisions of law that grant the entity that authority; and the bill would provide that the entity's authority to use eminent domain will expire if the letter is not sent by the deadline. 4. provide that: (a) an entity with eminent domain authority that wants to acquire real property shall disclose to the property owner any and all appraisal reports produced or acquired by the entity relating specifically to the owner's property and prepared in the ten years preceding the offer; and (b) require the entity to pay for an appraisal of the property at a property owner's request. 5. provide that: (a) an entity seeking to acquire property may not include a confidentiality provision in an offer or agreement to acquire the property; and (b) the entity shall inform the owner of the property that the owner has the right to discuss any offer or agreement regarding the entity's acquisition of the property with others or keep the offer or agreement confidential (subject to the requirements of the Texas Public Information Act). 6. require an entity with eminent domain authority that wants to acquire real property for a public use to make a bona fide offer to acquire the property from the property owner voluntarily, in accordance with a list of specific criteria that must be met under the bona fide offer requirement. 7. provide that a court that determines that a condemnor did not make a bona fide offer to acquire the property from the property owner voluntarily must abate the suit, order the condemnor to make a bona fide offer, and order the condemnor to pay costs and attorneys' and other professionals' fees. 8. provide that a condemnation petition must state with specificity the public purpose for which the entity intends to use the property, the reasons the property is necessary for that public use, and that the city made a good faith offer to acquire the property voluntarily. 9. provide that each parry has a reasonable period to strike one of the three special commissioners appointed by the judge in the case, with the judge appointing a replacement. 10. provide that the special commissioners shall consider an injury or benefit that is peculiar to the property owner and that relates to the property owner 's ownership, use, or enjoyment of the particular parcel of real property, including a material impairment of direct access on or off the remaining property that affects the market value of the remaining property, but they may not consider an injury or benefit that the property owner experiences in common with the general community, including circuity of travel and diversion of traffic. 11. require a city, as a cost of acquiring real property, to: (a) provide a relocation advisory service for an individual, a family, a business concern, a farming or ranching operation, or a nonprofit organization that is compatible with the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act; and (b) pay moving expenses and rental supplements, make relocation payments, provide financial assistance to acquire replacement housing, and compensate for expenses incidental to the transfer of the property if an individual, a family, the personal property of a business, a farming or ranching operation, or a nonprofit organization is displaced in connection with the acquisition. 11 12. modify the current provisions that allow a property owner to repurchase the property if it isn't used by the condemnor within ten years of the condemnation. 13. provide that the property may be used for a substantially similar public purpose without the right to repurchase being invoked by a property owner. 14. provide that a city council may adopt a development plan for a public use project at a public hearing to toll the ten-year right to repurchase. 15. modify the standard for determination of the fair value of the state's interest in access rights to a highway right-of-way to be the same legal standard that is applied by the Texas Transportation Commission according to the Texas Transportation Code, which may include the impairment of highway access to or from real property where the real property adjoins the highway. S.B. 61 (Zaffirini), relating to child safety seats. Passed the Senate. As passed, this bill would: (1) reduce the fine for transporting a child without a proper safety seat from $100- $200 to $25; and (2) require a city to remit the entire fine to the state comptroller. S.B. 1120 (West), relating to racial profiling. Passed the Senate. (Note: police chiefs should read this bill carefully.) S.B. 1202 (Deuell), relating to the collection and allocation of local sales taxes. Passed the Senate. S.B. 1358 (Seliger), relating to the Texas Municipal Retirement System (TMRS). Passed the Senate. As passed, this bill would allow a TMRS member city to calculate the amount of a retiree's cost of living adjustment (COLA) annually as an increase in the current benefit only. S.B. 2145 (West), relating to publication of notice for certain municipal procurements. Passed the Senate. S.B. 2242 (Zaffirini), relating to ethics reports. Passed the Senate. As passed, this bill would: (1) permit, but not require, a city or a candidate for city office to use Texas Ethics Commission software and other resources to file certain campaign reports; and (2) permit the commission to assist local governments in adopting their own software for managing campaign disclosures. TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League. 12 TOWN OF TROPHY CLUB PLANNING AND ZONING COMMISSION MINUTES FEBRUARY 19, 2009 The Planning and Zoning Commission of the Town of Trophy Club, Texas met on February 19, 2009, at 7:00 p.m. in the Council Chambers, 100 Municipal Drive, Trophy Club, and Texas 76262. COMMISSIONERS ATTENDANCE: Chairman Hill Present Vice Chairman Stephens Present Commissioner Reed Present Commissioner Sheridan Present Commissioner Forest Present Commissioner Ashby Present Commissioner Davidson Present STAFF AND GUESTS PRESENT: Carolyn Huggins Planning & Zoning Coordinator Mellany Gibbon Trophy Club Women's Club Bill Durham Gallery Custom Homes Kyle Salzman Jacobs Consulting David Keener Project Manager, Centurion American CALL TO ORDER AND ANNOUNCE A QUORUM. Chairman Hill called the meeting to order at 7:00 p.m. with a quorum present. 1 REVIEW AND APPROVE MINUTES OF THE DECEMBER 18, 2008 PLANNING AND ZONING COMMISSION MEETING. Vice Chairman Stephens motioned to approve the minutes of the December 18, 2008, Planning & Zoning Commission meeting. The motion was seconded by Commissioner Reed. Ayes: Hill, Stephens, Reed, Sheridan, Forest, Davidson Nays: None Abstain: Ashby (absent on December 18, 2008) Action: 6-0-1, Approved dft Texas Municipef League , May 14, 2009 Number 19 TxDoT SUNSET BILL: RED LIGHT CAMERAS, BILLBOARDS, AND MORE The TxDoT "sunset" bill, H.B. 300, passed the Texas House on May 11 on a 138-6 vote. Buried in this massive bill are the following city -related provisions. 1. If outdoor advertising located in a city or the city's extraterritorial jurisdiction must be removed because of the widening, construction, or reconstruction of a road, and if relocation of the outdoor advertising would be allowed under TxDoT rules but is prohibited by charter, ordinance, or a decision of the city, the city shall pay just compensation: (a) to the owner of the outdoor advertising for the right, title leasehold, and interest in the outdoor advertising; and (b) to the owner or, if appropriate, the lessee of the real property on which the outdoor advertising is located, for the right to erect and maintain the outdoor advertising. (This provision would shift one of the incidental costs of Texas highway projects from the state to cities. These provisions would force an unfunded mandate on Texas cities and deny city officials the authority to decide what the landscape of their city will look like. Essentially, these sections single out the billboard industry for special treatment and grant that industry greater rights than any other use along a highway. Special treatment for one industry is bad public policy and runs afoul of sound transportation planning.) 2. The rights associated with an off -premise sign that is lawfully in existence but no longer complies with current applicable laws and regulations, including those enacted by a city, vest in the owner of the off -premise sign. 3. TxDoT shall have jurisdiction over red light camera systems in this state and shall adopt rules governing them, including: (a) the specifications for the systems; (b) the identification of intersections where a system may be installed; and (c) the operation and maintenance of the systems. 4. TxDoT may not approve the implementation or operation of a red light camera system that was not in operation on June 1, 2009, or for which a contract for the administration or enforcement of the system had not been entered into by a local authority on or before that date. 5. A city may not enter into or renew a contract for the administration or enforcement of a red light camera system after June 1, 2009. 6. TxDoT by rule shall require that the change interval of a traffic light equipped with a red light camera system must be at least one second longer than the minimum change interval established in accordance with the Texas Manual on Uniform Traffic Control Devices. Items 3 through 6 would undermine the effectiveness of local law enforcement, jeopardize traffic safety and life-saving law enforcement technology, and eliminate state revenue. (The 25 cities using red light technology sent $7.3 million to the state in 2008, money that should have gone to trauma care but for an appropriations oversight by the legislature.) 7. The Texas Local Participation Transportation Program would be created to encourage "local project sponsors" (e.g., a city, county, regional mobility authority, or regional tollway authority) to participate in pass-through toll transportation projects. 8. A driver who does not have proof of insurance is presumed to have committed the offense of driving without insurance unless a peace officer determines through use of an electronic verification program that financial responsibility has been established for the vehicle. 9. The definition of "junked vehicle" is a vehicle that is self-propelled and displays an expired license plate or invalid motor vehicle inspection certificate or does not display a license plate or motor vehicle inspection certificate and that meets other criteria in current law. 10. The transportation of fireworks in unopened and original packaging may not be prohibited or regulated. 11. A common carrier, energy transporter, or gas utility has the right to lay and maintain lines over, under, and across a municipal street or alley only if it: (a) is subject to the jurisdiction, control, and regulation of the Railroad Commission of Texas; and (b) complies with all applicable state and federal regulations on the accommodation of utility facilities on a highway or right-of-way. The bill would also provide that: (a) the right to use a municipal street or alley is subject to the payment of franchise fees; (b) an energy transporter shall when necessary relocate its pipeline facilities at the energy transporter's expense unless it has a property interest in the land occupied by the pipeline to be relocated; and (c) a common carrier, energy transporter, or gas utility that lays or maintains lines shall promptly restore any transportation facility to its former condition of usefulness after the installation or maintenance of the line is complete. 2 12. A law enforcement agency may equip each vehicle used in a K-9 law enforcement program with a heat alarm system that is activated when the vehicle stops running or the temperature in the vehicle's interior becomes dangerous to a police dog in the vehicle. What started out as a bill to extend the existence of TxDoT and to modify or update that agency's authorities, responsibilities, and functions has become, in a part, an assortment of totally unrelated restrictions on cities. City officials concerned about any of these issues should contact their senator(s) now. EMINENT DOMAIN REFORM: BAD CONSTITUTIONAL CHANGES LAST FOREVER On Monday, May 11, the Texas House unanimously passed a joint resolution, H.J.R. 14 by Frank Corte, that proposes to amend the Texas Constitution in the following ways. • Require that compensation for eminent domain be "just." • Require that land condemned by a city be strictly for the "possession, occupation, and enjoyment" of the property by "the public at large ... or by a political subdivision of the State...". • Require that specific relocation and standard -of -living damages be paid for condemnation of a homestead or farm. As reported in a previous edition of the TML Legislative Update, a related bill S.B. 18 by Duncan) is moving through the legislative process and is likely to pass. That bill addresses many of the same topics as H.J.R. 14, but with one important difference: it wouldn't change the Texas Constitution, as H.J.R. 14 proposes to do. That's important because changes to the Texas Constitution are for all practical purposes permanent. Should such a constitutional amendment do something unintended, legitimate eminent domain necessary for state and local public projects could grind to a halt. For example, the resolution as it passed the House requires that the public or the governmental unit exercising eminent domain exercise "possession, occupation, and enjoyment" of the condemned property. This language is intended to overturn the authority of governments to condemn land and sell or lease it to third parties for economic development purposes. What the resolution fails to resolve, however, are situations in which a government may wish to lease a small portion of condemned property to a third -parry vendor who provides servicesa maintenance facility at an airport, for instance. As it stands, H.J.R. 14 would jeopardize the authority of all levels of government to allow private vendors to provide ancillary services at public facilities. 3 There may be other serious problems with the resolution that could surface later on during legal proceedings when it would be too late for the legislature to easily undo them. City officials should contact their senators now with the following message: Please oppose H.J.R. 14 because it will place a cloud of doubt over legitimate eminent domain actions. As a result, mistakes made in the process (and there will undoubtedly be some) could haunt Texas governmental operations for years to come. FEDERAL STIMULUS PACKAGE UPDATES The League's American Recovery and Reinvestment Act (ARRA) Web page can be accessed at www.tml.org, by clicking on "Federal Stimulus Information." Various information on the TML Web page has been updated, including information relating to: • Rural Broadband: The U.S. Department of Agriculture has released grant guidance for $13.4 million to expand broadband service to rural areas. • Community Development Block Grant (CDBG): CDBG entitlement cities must submit their application to their U.S. Department of Housing and Urban Development (HUD) field office by June 5, 2009. • Neighborhood Stabilization Program (NSP): HUD has released its Notice of Funding Availability for the NSP funds provided under the ARRA. League staff will continue to monitor the implementation of the ARRA. SIGNIFICANT COMMITTEE ACTIONS H.B. 141 (Gonzalez Toureilles), relating to proof of financial responsibility for a vehicle. Reported from the House Transportation Committee. As reported, this bill would provide that: (1) a court shall dismiss a charge of not having proof of financial responsibility if the defendant proves that financial responsibility was valid at the time the offense occurred; and (2) the court may assess a $10 administrative fee on such H.B. 360 (Kuempel), relating to the Texas Municipal Retirement System. Reported from the Senate State Affairs Committee. H.B. 451 (Allen), requiring health benefit plans to provide coverage for autism in a child up to age nine. Reported from the House Insurance Committee. H.B. 987 (Creighton), relating to purchasing and change order requirements. Reported from the Senate Intergovernmental Relations Committee. 2 H.B. 1221 (C. Howard), relating to property tax. Reported from the House Ways and Means Committee. As reported, this bill would: (1) eliminate the requirement that appraisal value notices must include the estimated tax liability based on an application of last year's tax rate to this year's appraised value; (2) require tax assessors to submit the appraisal roll to a city not later than 21 days after the date the appraisal roll is certified to the assessor; (3) require a city to calculate its effective tax rate not later than 30 days after it receives the certified appraisal roll from the assessor; (4) require the person who calculates the effective tax rate to submit the rate to the city council within five days of making the calculation; (5) require the calculation of a "same services tax rate;" and (6) require a city council, before giving notice of tax increase hearings, to take a record vote on the proposal to increase taxes and that the motion for that vote must be as follows: "I move that a proposal to increase property taxes by the adoption of a tax rate of (specific tax rate) be placed on the agenda for the meeting to be held on (date on which the governing body anticipates adopting the tax rate);" and much more. H.B. 1377 (Thompson), relating to reallocation of sales tax. Reported from the House Ways and Means Committee. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) H.B. 1433 (Lucio), raising the cap on the annual water quality fee imposed on a city by the Texas Commission on Environmental Quality (TCEQ). Reported from the Senate Natural Resources Committee. As reported, this bill would, on September 1, 2009, raise the maximum fee from $75,000 to $100,000. The bill would also allow the TCEQ to thereafter raise the maximum fee annually by an amount that reflects growth in the consumer price index, up to a maximum amount of $150,000 annually. H.B. 1952 (Callegari), relating to an agreement between a city and a municipal utility district. Reported from the House Natural Resources Committee. (Any city that has an agreement with a MUD should read this bill.) H.B. 1998 (McCall), relating to housing and emergency shelters provided by a political subdivision for disaster victims. Reported from the Senate Intergovernmental Relations Committee. H.B. 2166 (Rose), relating to water supply and sewer service corporations. Reported from the House Natural Resources Committee. As reported, this bill would affect the ways in which corporation directors are nominated and elected. (Note: since this bill has not appeared on a House calendar, it will most likely miss the deadline for House passage, but please see the companion bill, S.B. 1960 by Wentworth, below.) H.B. 3184 (J. Jackson), requiring that a ballot proposition allowing voters to approve a tax or the issuance of bonds must: (1) state the total dollar amount of bonds that will be issued or the amount of the tax or tax increase; and (2) describe any projects to be supported by the bonds. Reported from the House Elections Committee. 5 H.B. 3203 (Hartnett), allowing a person who sues a city in a contract claim to recover attorney's fees. Reported from the House Judiciary and Civil Jurisprudence Committee. H.B. 3335 (Callegari), strengthening the authority of special districts relative to cities. Reported from the House Natural Resources Committee. (Any city that has an agreement with a special district should read this bill.) H.B. 3484 (Coleman), relating to tax increment financing. Reported from the House County Affairs Committee. H.B. 3699 (Isett), altering the "Prop 2" pollution control property tax exemption as follows: (1) provide that the exemption is available for certain carbon dioxide equipment necessary to comply with state or local rules, as opposed to current law which addresses only federal rules; and (2) provide that the exemption is available for carbon dioxide transport equipment, as opposed to current law which addresses only carbon dioxide capture equipment. Reported from the House Ways and Means Committee. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) H.B. 4033 (McCall), reported from the House Elections Committee. As reported, this bill would: (1) permit any city official to use Texas Ethics Commission electronic services and software to file certain reports; and (2) permit certain vendors to file a lobbying report with the Texas Ethics Commission whenever the vendor makes expenditures in relation to lobbying the city. H.B. 4144 (Gattis), relating to a city's comprehensive development. Reported from the House Land and Resource Management Committee. As reported this bill would provide that: (1) the governing body of a city shall adopt by resolution or ordinance a comprehensive plan as defined by the bill that details current and future land uses and serves as a basis for making planning or zoning decisions of the city; (2) the governing body shall review its comprehensive plan not less often than every three years; (3) the governing body shall appoint an advisory committee to make recommendations regarding the adoption, amendment, and review of its comprehensive plan; (4) that advisory committee shall be made up of at least five members appointed by a majority vote of the governing body, and at least 40 percent of the membership of the advisory committee must be representatives of the real estate, development, or building industries who are not employees or officials of a political subdivision or governmental entity; (5) the governing body may not adopt or amend the comprehensive plan until it conducts at least one public hearing on the recommendations made by the advisory committee, and may not amend or adopt the comprehensive plan before the 30th day after the date the governing body receives the advisory committee's report, unless each of the landowners affected by the plan or amendment consents to the plan or amendment; (6) at the public hearing, a landowner may object to any land use applied to the landowner's tract by the comprehensive plan; (7) a landowner may petition the county commissioners court to appoint three disinterested persons, who reside in the county, as special commissioners to Co assess the reasonableness of a land use applied to the landowner's tract under the city's comprehensive plan if the landowner objects in writing to the land use and has been unable to sell or develop the tract in conformity with the land use for a period of three years; (8) the special commissioners shall conduct their proceedings and shall have the same powers as special commissioners in an eminent domain proceeding; (9) if a majority of the special commissioners determines that a land use applied to a landowner's tract by the comprehensive plan is unreasonable, a majority of the special commissioners may determine a reasonable land use for the tract and order that the comprehensive plan be amended to reflect that use. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) S.B. 254 (Estes), exempting volunteer fire departments from the state motor fuels tax. Reported from the House Ways and Means Committee. S.B. 257 (Estes), relating to the sale or delivery of salvia divinorum to a child. Reported from the House Criminal Jurisprudence Committee. S.B. 555 (Duncan), relating to indemnification provisions in construction contracts. Reported from the House Judiciary and Civil Jurisprudence Committee. S.B. 638 (Nichols), relating to the collateralization of public funds. Reported from the House Pension, Investments and Financial Services Committee. S.B. 1011 (Estes), relating to the Texas Commission on Fire Protection (TCFP). Reported from the House Urban Affairs Committee. As reported, this bill would: (1) authorize the TCFP to establish minimum educational and training standards for volunteer firefighters; and (2) allow the TCFP to enter a default order if a fire department fails to take action to correct a violation found by the TCFP during an inspection; and much more. (Note: fire chiefs should review this bill thoroughly. This bill is now the same as H.B. 3390. Also see the May 7, 2009, TML Legislative Update.) S.B. 1023 (02den), relating to eminent domain. Reported from the Senate State Affairs Committee. As reported, this bill would provide that: (1) a condemnation petition must state that the facts to be proven are that the petitioner is authorized to condemn property for the purpose for which the property is sought, the use for which the property is sought is a public use, and the property sought is necessary to accomplish that public use; and (2) if a condemning entity fails to prove any of the facts, the court shall deny the condemnation and award to the property owner the owner's court costs and reasonable attorney's fees and expert witness fees incurred in relation to the condemnation proceeding. S.B. 1960 (Wentworth), relating to water supply and sewer service corporations. Reported from the Senate Natural Resources Committee. As reported, this bill would affect the way in which corporation directors are nominated and elected. 7 S.B. 2085 (Davis), relating to political advertising. Reported from the Senate State Affairs Committee. As reported, this bill would amend the statute criminalizing certain political advertising on measures as follows: (1) require that certain violations be "knowing"; (2) provide that it is an affirmative defense to a violation if the city relied on a written opinion by a court, the attorney general, or the Texas Ethics Commission; and (3) require the Texas Ethics Commission to prepare an advance written advisory opinion regarding a potential communication on a measure. S.J.R. 42 (Duncan), proposing to amend the Texas Constitution to provide that "public use," for the purposes of eminent domain, does not include the taking of property for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenue. Reported from the Senate State Affairs Committee. SIGNIFICANT FLOOR ACTIONS H.B. 229 (Pitts), relating to bond/insurance requirements for on-site sewage disposal systems and county regulation of such systems. Passed the House. H.B. 300 (Isett), relating to TxDoT sunset. Passed the House. (Please see the lead article in this update.) H.B. 1229 (C. Howard), providing that: (1) in a county over 300,000 in population the members of the appraisal review board shall be appointed by the county commissioners court, not by the central appraisal district board; and (2) in all counties, the board of the appraisal district is expanded to include two elected members. Passed the House. H.B. 1399 (Guillen), relating to inquests. Passed the House. As passed, this bill would authorize a municipal court judge to conduct an inquest and would require the city council to pay the fees of any experts the judge may require, unless the county agrees to pay the fees. (Note: it is assumed that, under the bill, the city could refuse to conduct an inquest.) H.B. 2291 (Gattis), relating to adoption of property tax rates. Passed the House. As passed, this bill would provide that when a member of a municipal governing body makes a motion to set a property tax rate that exceeds the effective tax rate, the member must state the percentage by which the proposed rate exceeds the effective tax rate, and the city must include the same information in the adopted tax rate ordinance or resolution and on the home page of any Internet Web site operated by the city. H.B. 2524 (Anchia), relating to elections. Passed the House. As passed, this bill would require the general custodian of election records, upon the receipt of an electronic voting system from a vendor, to: (1) verify that the system is certified by the secretary of state; (2) perform a hardware diagnostic test on the system; (3) 8 perform a public test of logic and accuracy on the system, as well as any additional test required by the secretary of state; (4) create a pre-election security procedure; (5) secure access control keys or passwords to voting system equipment; and (6) create a contingency plan for addressing the failure of an electronic voting machine. H.B. 2682 (Alvarado), relating to speed limits. Passed the House. As passed, this bill would limit the ability of cities to regulate vehicular speed in non-residential areas. H.B. 3896 (Oliveira), extending tax abatement authority through September 1, 2019. Passed the House. H.J.R. 14 (Corte), proposing to amend the Texas Constitution with regard to eminent domain authority. Passed the House. (Please see the related article elsewhere in this update.) S.B. 61 (Zaffirini), relating to the offense of failing to secure a child in a motor vehicle. Passed the House. As passed, this bill would impose a 15 -cent state fee on each conviction in municipal court for failure to secure a child passenger in a motor vehicle, with the revenue being dedicated to the purchase of child safety seats for low-income families. S.B. 820 (Duncan), relating to the adoption of building codes. Passed the House. As passed, this bill applies only to cities over 100,000 in population. It would require a city to either: (1) have an advisory board to provide input on the city's adoption of model codes, or (2) provide enhanced notice of and public comment on the adoption of model codes. The bill would also generally require a city to delay implementation and enforcement of a code provision for 30 days following its adoption. S.B. 1023 (Ogden), relating to eminent domain. Passed the Senate. As passed, this bill would provide that: (1) a condemnation petition must state that the facts to be proven are that the petitioner is authorized to condemn property for the purpose for which the property is sought, the use for which the property is sought is a public use, and the property sought is necessary to accomplish that public use; and (2) if a condemning entity fails to prove any of the facts, the court may deny the condemnation and award to the property owner the owner's court costs and reasonable attorney's fees and expert witness fees incurred in relation to the condemnation proceeding. S.B. 1630 (Wentworth), providing that in lieu of furnishing requested information, a city may inform an open records requestor that the requested information is available on the city's Web site and provide a means of accessing the Web site to the requestor. Passed the Senate. S.B. 1714 (Hegar), relating to groundwater control districts (GWCDs). Passed the Senate. As passed, this bill would provide that a district may not transfer groundwater out of the district unless the applicant shows evidence of "beneficial use." E S.B. 2085 (Davis), relating to political advertising. Passed the Senate. As passed, this bill would amend the statute criminalizing certain political advertising on measures as follows: (1) require that certain violations be "knowing"; (2) provide that it is an affirmative defense to a violation if the city relied on a written opinion by a court, the attorney general, or the Texas Ethics Commission; and (3) require the Texas Ethics Commission to prepare an advance written advisory opinion regarding a potential communication on a measure. S.J.R. 42 (Duncan), proposing to amend the Texas Constitution to provide that "public use," for the purposes of eminent domain, does not include the taking of property for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenue. Passed the Senate. TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League. 10 2 DISCUSSION AND APPROPRIATE ACTION RELATIVE TO A TEMPORARY USE REQUEST FOR TWO COMMUNITY GARAGE SALE EVENTS GRANTED BY SPECIAL PRIVILEGE. APPLICANT: MELLANY GIBBON, CO -CHAIRPERSON, TROPHY CLUB WOMEN'S CLUB. Chairman Hill called the applicant to come forward. Mellany Gibbon, Co -Chairperson, Trophy Club Women's Club. Ms. Gibbon stated that she is before the Commission this evening to seek approval to hold two community -wide garage sales in 2009 — one on April 18 and the other on October 10. She stated that they will be asking the Town Council to waive the permit fees as all funds generated by these events are donated back to the community and local charities. Ms. Gibbon thanked the Commission for their consideration of this request. There were no questions or comments from the Commission and the Chairman called for a motion. Commissioner Sheridan motioned to recommend Town Council approval of this request. The motion was seconded by Vice Chairman Stephens. Ayes: Hill, Stephens, Reed, Sheridan, Forest, Davidson, Ashby Nays: None Action: 7-0, Approved 3 DISCUSSION AND RECOMMENDATION REGARDING A REQUEST FOR APPROVAL OF A TEMPORARY USE FOR OFF STREET PARKING FOR MODEL HOMES IN PLANNED DEVELOPMENT NO. 27, NEIGHBORHOOD 2, PHASE 1A, FOR A PERIOD OF TIME OF NOT GREATER THAN ONE YEAR. APPLICANT: BILL DURHAM, GALLERY CUSTOM HOMES. Chairman Hill called the applicant forward. Bill Durham, Gallery Custom Homes, requested approval for a parking lot at 2416 Trophy Club Drive which will serve as the parking lot for the Gallery Custom Homes' model home. Ms. Huggins, Planning & Zoning Department, stated that this request has been reviewed by staff and although Gallery Custom Homes was willing to put in a few trees on the parking lot site staff asked that the trees be removed and replaced with smaller landscaping that can more easily be removed when the parking lot is no longer needed and a single family home is built on the lot which would require removal of pavement and landscaping. The applicant has complied with staff's request. Staff recommends approval of this request. Commissioner Ashby requested hash marks across the driveway from the van access parking space to the walkway. Mr. Ashby also asked that the applicant work with the Building Inspector, Chris King to ensure that the walkway from the parking lot to the front entrance of the model home is ADA compliant. There were no other comments or questions from the Commission and the Chairman called for a motion. Commissioner Ashby motioned to recommend Town Council approval of this request. The motion was seconded by Commissioner Sheridan. Ayes: Hill, Stephens, Reed, Sheridan, Forest, Davidson, Ashby Nays: None Action: 7-0, Approved 4 PUBLIC HEARING TO CONSIDER AN AMENDMENT TO PD -PLANNED DEVELOPMENT DISTRICT NO. 27, KNOWN AS THE HIGHLANDS AT TROPHY CLUB, ORDINANCE NO. 2007-15 P&Z BY AMENDING EXHIBIT "B" — DEVELOPMENT STANDARDS, SECTION V. NEIGHBORHOOD REGULATIONS, SUBSECTION "J" VILLAGE CENTER, ITEM 1. PERMITTED USES. APPLICANT: HIGH TROPHY DEVELOPMENT, LLC REPRESENTED BY JIM WIEGERT, JACOBS (PD AMD -09-030) 5 DISCUSSION AND RECOMMENDATION REGARDING AN AMENDMENT TO PD - PLANNED DEVELOPMENT DISTRICT NO. 27, KNOWN AS THE HIGHLANDS AT TROPHY CLUB, ORDINANCE NO. 2007-15 P&Z BY AMENDING EXHIBIT "B" — DEVELOPMENT STANDARDS, SECTION V. NEIGHBORHOOD REGULATIONS, SUBSECTION "J" VILLAGE CENTER, ITEM 1. PERMITTED USES. APPLICANT: HIGH TROPHY DEVELOPMENT, LLC REPRESENTED BY JIM WIEGERT, JACOBS (PD AMD -09-030) Chairman Hill announced the case and explained the protocol for a public hearing. The public hearing was opened and the Chairman called the applicant forward. Kyle Salzman, Jacobs Consulting, representing High Trophy Development, LLC came forward and stated that they wish to change the list of permitted uses for Village Center in PD -27. Mr. Salzman's client is asking that the uses be amended to include those uses shown in the packet. David Glaser, 15 Overhill Dr., stated that he is a member of the Parks and Rec Board, Trophy Club Park Subcommittee, and EDC4B. He would like to see commercial development that will generate sales tax revenue for the Town of Trophy Club, which is badly needed as very little space is available for commercial development in the Town of Trophy Club. He would also like to see this property developed in an aesthetically pleasing way. Before Mr. Glaser joined EDC4B, the Board conducted a survey among citizens regarding the types of establishments they would like to see. Mr. Glaser looked at this list with those things in mind. He stated that many of the businesses requested by the applicant are what Mr. Glaser would consider to be non -sales tax revenue producing entities. He stated that administrative or business corporate headquarters, consumer and mercantile credit reporting, engineering, and family home/group home will not generate sales tax. Mr. Glaser stated that the area is located next to Northwest Park and the Commission should consider the fact that there will be a lot of kids running around in the park area and businesses should be compatible. He stated that once this decision is made the Town will not have any way to stop an allowable use from going in there. From a previous Town he lived in, he was told, "we don't need a 37'" dry cleaner in the Town but we can't stop it." He would like input and thought ahead of time for what will be allowed. Mr. Glaser stated that ridership has increased lately in Trophy Club Park. Two weekends ago there were over 300 people riding motorcycles or ATVs in that park. He suggested businesses that cater to that ridership might be interested in being located in Village Center. He feels a good look should be taken at this overall request. Ms. Huggins gave a staff report explaining that this request will amend PD -27 specifically regarding permitted uses for the commercial portion of PD -27 which is known as Village Center. The currently allowed uses are on Page 26 of the Commissioner's packet and the uses the applicant is requesting are listed on Pages 26 and 27. Staff recommends approval of this request, in general, but there are some specific items staff wishes to bring to the Commissioner's attention. Staff hopes to encourage the developer to consider businesses that will produce sales tax revenue for the Town. Of the additional permitted uses requested by the applicant, several are more desirable than others because of the sales tax revenue that could be generated. In addition, the developer has been given a list of retailers that could be a good match for the Town of Trophy Club versus those that are already located in the surrounding communities. Ms. Huggins stated that the request for a "family home" must be deleted as it will not fit in the Village Center zoning district. The Human Resources Code requires that a family home be located in a caretaker's own residence and Village Center is commercial zoning which does not allow a residence. A "group home" could be allowed, as per the Human Resources Code, it is defined as a day care facility. Restrictions include not more than 12 children, none can be older than 14 years of age, and it cannot be a 24-hour operation. Ms. Huggins stated that there is the potential for another day care coming forward in the Town close to the Tom Thumb shopping center, as well as other day care operations already established in the Town so staff does not feel a day care is ideal for Village Center. Staff asks that retirement home/nursing home be removed from the list of permitted uses as those types of facilities increase EMS runs and the Town does not have the funds to handle an increase in EMS runs at this time. Chairman Hill closed the public hearing and moved to discussion of this item. Chairman Hill asked that "wholly enclosed without outside display or storage" be added to the appliance rental item. Commissioner Sheridan asked Mr. Glaser what is desirable to the park. Mr. Glaser stated that the park won't be developed anytime soon as money is required and who knows what funding will be available. He stated that the concept plan calls for ball fields. He would prefer that kid - friendly, rather than undesirable, businesses be located next to the park. He also stated that Trophy Club Park is growing rapidly in terms of people coming out there to ride motorcycles and ATV's. Redbull has put a huge motocross park in there. A consultant has been hired to determine uses for the other 600 to 700 acres out there — everything from nature trails and mobile classrooms and fishing spots. Perhaps there will be a regional sports complex out there one day. A guy from Bridgeport stopped by and told us to put in 20 ball fields and with the proximity to DFW Airport national tournaments could be held there; which is a little bit ahead of us at this point, but is indicative of the potential of the area. Northeast Park is just down the road and to get to Trophy Club Park and Northeast Park everyone would go by Village Center. Commissioner Sheridan wondered what would be considered "undesirable". He wondered if, for instance, restaurants with alcohol sales were a possibility in this tract due to their proximity to schools and parks. [Town of Trophy Club Code of Ordinances does not allow alcohol sales within 300 -ft. of a church, public or private school, or public hospital.] Commissioner Sheridan stated, for the record, that no homeowners were notified because there aren't any within 200 -ft. of this tract. Commissioner Sheridan asked if this request is meant to change the original concept. The applicant responded that it is not meant to change the original concept of the PD, but rather to further define the uses. Commissioner Sheridan asked for an explanation of the motivation of the request. Vice Chairman Stephens responded that it is to allow a restaurant with drive-through. Ms. Huggins responded that staff does not consider this request a change from the original concept of the PD. She stated that the applicant's motivation to change the permitted uses is to allow broader marketing of the tracts. Commissioner Sheridan stated that as he goes through the list he realizes that it gives someone large latitude of discretion without coming before the Town — either P&Z or Council. He stated that these uses can be placed on either tract. Commissioner Sheridan offered the following comments on the uses. He would like to avoid any office warehouse industrial use. Building material and hardware is an industrial use. Hardware store is a retail use. The ordinance doesn't include a definition of building materials so if the hardware store sells 2x4's is that building material? Additionally, a lot of these uses would allow excessive parking of company vehicles. For instance, a security company installation would most likely need company vehicles. Land surveyors and appliance rental might also need company vehicles and/or overnight parking. The ordinance is very specific on the type and size of parking and some of the uses don't seem compatible with the required parking and the original thought of the PD. Page 29 and 65 of the ordinance show the type of buildings allowed, as well as the parking allowed, and yet some of these uses could possibly have five bobtails parked overnight. Some of these uses also don't seem to be compatible with the architectural design allowed by this PD. Commissioner Sheridan stated [to Mr. Glaser, EDC Board Member in the audience] that the PD has a requirement of transparency on the front of the building with a clear view of merchandise; no less than 50% must be windows. Commissioner Sheridan stated that the reason he asked about alcohol is that if this is opened up for alcohol sales he would like the following uses removed: kindergartens, religious institutions, schools—public and private, and day care. Anything that would prohibit or interfere with a possible restaurant with alcohol sales, which would be a high tax base, should be removed. Commissioner Sheridan stated that the ordinance already controls the type of atmosphere that is allowed in this Town for restaurants, food service and alcohol and percentage thereof. Mr. Sheridan would also wish to remove anything else in the permitted uses that would prohibit restaurant with alcohol sales. Retirement and nursing homes do not belong in that area. He stated that he objects to the appliance rental and building materials. Chamber of Commerce should be off the list if they don't provide taxes of any kind. He stated that he is a contractor and he maintains a very nice office, but to allow a "contractors office" doesn't define what a contractor is and what type of office is being talked about. "No outside display is permitted" should be amended so that no outside display of any type of merchandise at all is allowed, i.e., motorcycles for sale. Employment services should not be allowed. Would laborers be hanging around that office? It shouldn't be allowed in that location. Land surveying is an industrial use. A museum should be removed if it doesn't provide sales tax revenue. Mr. Sheridan stated that every type of medical offices is listed. He stated that he doesn't know what a "recording studio" would be. He stated that he is for having drive- throughs. He believes a security installation is an industrial use and this is not an industrial area. An indoor theater doesn't fit for this location. "Utility offices" is too broad a spectrum. Should "photography studio" be limited by definition? Commissioner Reed stated that he believed the uses should not be "broad brushed". Commissioner Ashby stated that he has concerns with quite a few of the items, along the lines of Commissioner Sheridan's concerns. It is too broad and ambiguous. It leaves way too much open for the applicant to do whatever they want. He asked to make a motion, but Chairman Hill denied the request and continued discussion of this item. Commissioner Davidson stated that he would like a more consolidated list. There is a considerable amount of discussion that needs to take place on this. He agrees with many of Commissioner Sheridan's comments. Ms. Huggins indicated to Chairman Hill that two members of the audience wished to ask permission to speak. Chairman Hill granted permission. J.D. Stotts, 1 Narrow Creek, serves on the Park Board and stated that he wished to see development of a commercial/retail venture that would provide high sales tax. He stated that this Town needs something to offset property taxes with other revenue to allow the Town to provide services. He stated that as Mr. Glaser mentioned there is going to be a park developed adjacent to that area and he would like to see something developed there that would integrate well with youth sports, outdoor activities and fitness. A new high school will be right across the street. There is a middle school not far away and Trophy Club Park is increasing in use. People visiting Trophy Club is increasing. That park has been improved for Motocross and the trail riding areas have been improved as well. The Park Board is working on grants with the State of Texas to put in additional foot trails. Improvements will begin in June for Northeast Park, which is currently being surveyed and an engineering site plan is being done. A site plan for Northwest Park should begin in the next few months. Hopefully, all of this will be a great selling point for all of the new development going in and for all of the homes being built for young people and families to come to Trophy Club. The Town is investing a lot in all of these projects and it would be nice to see a diversification of income from property tax to sales tax for the Village Center. Mr. Stotts stated that he isn't against churches and he isn't saying Trophy Club doesn't need another one as we could all probably work on being a little more holy in our lives, but at this point the Town needs commercial/retail. Councilman Moss commented that in the past there was an art gallery in the Tom Thumb shopping center that didn't make it. He also commented that in the past a drive through restaurant was turned down because of the location and inaccessibility of the site but Village Center seems to be an ideal location for something of that nature. Commissioner Ashby stated that he is pro -drive through in the larger tract. He is opposed to drive throughs in the smaller tract. He stated that he would not wish to see drive throughs abut the park or residential property. Commissioner Sheridan would like further discussion on this item with the applicant coming back with a new list. He stated that he'd like to see this developed as two story buildings with a multi -use — offices limited to the second floor and retail with transparency on the first floor, which would keep the intent of the original PD. David Keener, Centurion Development, stated that they are here because they wish to make the tract more marketable. They'd like to have more flexibility as the current list of permitted uses is vague. They wish to avoid having to come back for every use that might be interested in Village Center. They wish to have a drive-through. He stated that this is not an "A" retail site. The Tom Thumb site has 114 frontage and even that shopping center is struggling. He stated that, "We can all wish for a major retail, but that wasn't the original intent and the reality today is that there might be some sort of restaurant there, but not alcohol sales. Alcohol sales is going to be challenging. It's too close to the school sites." He stated he'll come back but there should be a realistic understanding of what they see as plausible and not. The original PD allowed uses that would not produce sales tax, i.e., community facilities. They feel the site has to have flexibility. A small Alzheimer's facility on that site is a realistic use. Ms. Huggins added that Marshall Creek Road will become a new road, Bobcat Blvd., and will expand to two lanes in each direction with a center median. Staff feels that a drive through restaurant would fit well on the smaller tract. Staff would like the larger tract developed in a way that provides more sales tax revenue for the Town than those uses that won't provide revenue for the Town. Commissioner Ashby asked to make a motion. Chairman Hill denied the request, but asked the Commissioners to wrap up their comments on this item. Commissioner Sheridan stated that the original resistance to drive-throughs in this Town was very specific to location. Those locations had residents who lived in the area before the commercial occurred. At this location in Village Center, the commercial came first. Vice Chairman Stephens added that the traffic created to get in and out of the other drive through locations would have created a problem, pure and simple. He stated, "Mr. Keener, the Planning and Zoning Commission is interested in developing that property for a number of reasons. Representatives of the City are interested in developing that property. We do have some restrictions we will place on what we will allow in there. We understand your marketing and we aren't going to do anything to prevent your marketing, but we are going to have to have time to go over this item by item." Mr. Keener responded that he will resubmit the list, clarifying what they desire. Mr. Keener stated that he does not want to restrict the uses to first story versus second story. Vice Chairman Stephens motioned to continue the item to the next P&Z meeting, March 5, 2009. The motion was seconded by Commissioner Ashby. Passed by unanimous vote, 7-0. ADJOURNMENT Chairman Hill adjourned the meeting at 8:12 p.m. Gene Hill, Chairman Jff[F S4 S� Carolyn Huggins, Planning & Zoning Coordinator TOWN OF TROPHY CLUB PLANNING AND ZONING COMMISSION MINUTES MARCH 5, 2009 The Planning and Zoning Commission of the 2009, at 7:00 p.m. in the Council Chambers, 76262. COMMISSIONERS ATTENDANCE: Chairman Hill Present Vice Chairman Stephens Present Commissioner Reed Present Commissioner Sheridan Absent Commissioner Forest Absent Commissioner Ashby Present Commissioner Davidson Present Town of Trophy Club, Texas met on March 5, 100 Municipal Drive, Trophy Club, and Texas STAFF AND GUESTS PRESENT: Carolyn Huggins Planning & Zoning Coordinator Kyle Salzman Jacobs Consulting David Keener Project Manager, Centurion American CALL TO ORDER AND ANNOUNCE A QUORUM. Chairman Hill called the meeting to order at 7:00 p.m. with a quorum present. 1 PUBLIC HEARING OF A REQUEST TO AMEND PERMITTED USES FOR VILLAGE CENTER LOCATED IN PD -PLANNED DEVELOPMENT DISTRICT NO. 27 (PD -27), KNOWN AS THE HIGHLANDS AT TROPHY CLUB, APPLICANT: HIGH TROPHY DEVELOPMENT, LLC REPRESENTED BY KYLE SALZMAN, JACOBS CONSULTING, AND DAVID KEENER, CENTURION AMERICAN (PD AMD -09-030) 2 DISCUSSION AND TAKE APPROPRIATE ACTION OF A REQUEST TO AMEND PERMITTED USES FOR VILLAGE CENTER LOCATED IN PD -PLANNED DEVELOPMENT DISTRICT NO. 27 (PD -27), KNOWN AS THE HIGHLANDS AT TROPHY CLUB, APPLICANT: HIGH TROPHY DEVELOPMENT, LLC REPRESENTED BY KYLE SALZMAN, JACOBS CONSULTING, AND DAVID KEENER, CENTURION AMERICAN (PD AMD -09-030) Chairman Hill announced the case and opened the public hearing. He asked Ms. Huggins to read into the record two emails received regarding this case. The first email was from Damian Olthoff, 528 Indian Creek Drive to Chairman Hill. It read: "As I am unable to attend the P&Z meeting on Thursday, I wanted to take this opportunity to specifically express my support for the proposed changes to the permitted uses of the Village Center property (including drive through businesses) which will generate either sales taxes or significant ad valorem taxes for the city." The second email was from Glenn Strother, Trophy Club Town Council, who wrote: "I understand that you will be looking at possible changes to PD -27 at this Thursday's meeting. I have conflicts with that date so I will not be able to attend. As the Council Liaison to EDC4B I would encourage you to help us optimize the property with businesses that will increase ad valorem and sales taxes. Another business which would fit well next to the high school could be a fast food restaurant with a need for a drive thru. Again, I encourage the members of the Commission to be open minded to the requests. One of our goals in EDC413 is to work hard to be Developer Friendly in ways to assist them in the process of future development. The right commercial/economic growth is important to the future of our Town." Chairman Hill then called for those present wishing to speak in the Public Hearing. Larry Crosser, 17 Overhill Dr., stated that he is here as a citizen although he does serve on the Economic Development Committee 4B as well and he would ask that the Commission be sure that the property is developed to generate sales tax. Dave Glaser, 15 Overhill Dr., stated that he believes the Town needs to generate revenue -- sales tax and ad valorem tax -- on that property. He stated that at the last P&Z meeting he mentioned that there had been a survey done a couple of years ago and it took a while but he managed to find some of the results of that survey. It is very limited, but basically respondents were asked about a very select list of types of businesses that they would like to see along Highway 114. It is not the Village Center, but it is only a short distance away from the highway. Highest on the list was a full service sit down restaurant. 94% of the members of the Town that were polled would like to see that. They even said they would attend functions there. They also were high on drive thru restaurants and fast food sit down restaurants. They also asked that the Town be more pro -active in bringing retail business to Town. Chairman Hill closed the public hearing and moved to discussion of the item, asking the Commissioners to be a little less formal with the meeting this evening to give a free-flow exchange of ideas to and from the developer's representative. Ms. Huggins gave the Commissioner's a copy of the list of permitted uses requested by the applicant which had been revised to show staff requests. Those are: • Combine item b and j to allow Bank and Financial Institutions WITHOUT drive through. Staff does not wish to see a bank with a drive through located in Village Center. Even in good economic times, banks often change locations, leaving empty a bank building that is very difficult to re -develop into something else. Staff feels there are plenty of banks in the area and would not wish to see a drive through bank at the Village Center location. • Combine item f and n to allow Community and Municipal Facilities, removing "to include libraries" because a library is a community facility and does not need to be listed separately. At the time that the PD was created, a library was needed and desired by the Town and perhaps that is why it was specifically listed, but as it is a community facility, it would be allowed in Village Center. • Remove item "g", day care, because there are several other day care facilities in Town and the Ehrenberg's property behind Tom Thumb was rezoned in the past year from Commercial Recreation to Commercial General with the main business of that property designated as a pre-school and day care. Staff would prefer businesses other than day care at Village Center. • Remove item "m", kindergarten, as well as item "s", schools, private or public, as Village Center is surrounded by an elementary, middle and high school that will provide for the needs of the Community. • Staff asks that item "p", Professional and administrative offices" be limited to 30% (approximately 4 acres) of Tract 1 (the larger tract), with no offices allowed in Tract 2 (the smaller tract). Staff would like to see the smaller 3.3 acre tract developed as a drive through restaurant. • Remove item "q", churches, which would not provide revenue for the Town. Ms. Huggins stated that at the last P&Z meeting, Commissioner Sheridan had brought up alcohol sales within a certain distance from churches and schools. Ms. Huggins stated that Town regulations do not allow alcohol sales within 300 -ft. of a church, public or private school, or public hospital. The smaller tract will not be able to have a restaurant with alcohol sales as it is within 300 -ft. of a school. If a church is allowed on the larger 13.3 acre tract of land, that will remove any possibility of a sit down restaurant with alcohol sales. • Limit item "u", retirement, elderly care facility, to 2 -acres on the larger 13.3 tract (Tract 1). David Keener, Centurion Development, stated that the goal is to add uses to make the tract more marketable, rather than remove uses to make it less marketable, which is a counter- productive cycle of this request. Mr. Keener stated that there are certain requests that they cannot agree to and they just need to stop with this request if that's the way it's going to be; they'll leave the tract the way it is. He stated they have debt to pay and a business to run and they are trying to sell the tract and make it a viable venture for Centurion. He stated they have spent a lot of money on putting a street through the little tract and putting the drainage facility in and they need to recoup their investment which is why they are here trying to get drive throughs and a few other little things added to make it to where they can go to users who are not currently allowed. They don't wish to take users off, adding one for every three taken off. That was not the point of this request. Mr. Keener stated the following: "Going down our request versus staff there's really not a whole lot -- I don't care about the banks and financial institutions. Again, we have a taste of what I call the wishes for this tract and then the reality for this tract. This is a "B" commercial site. Banks are not going to go there anyway. They are going to be on the freeway. It's not going to happen so we are fine with that removal. But, to that goal, to compare this tract to being close to 114 is a ridiculous comparison. The car count is 100,000 a day versus 500 a day or whatever it is. We need to be real in this discussion. We've been trying to be real in our expectations to find some things that we think can happen for that tract. When we look at the tract, we agree that we'd like to get some fast food on the corner. That's a viable use for second tier. Not McDonalds. Not going to happen there, but maybe like a Sonic or something where a little less capital is required and a little less car count. We are talking to a Mexican restaurant but alcohol sales is a problem; not a Taco Cabana but something along those lines might be possible. That's going to be an issue for that tract. We want the flexibility of moving a drive through over to the other corner next to the park or whatever, but again, I don't know how the 300 -ft. is going to apply to the high school. Is it the front door or the property line?" Ms. Huggins stated that the requirements are: "in a direct line from the property line of the public school to the property line of the place of business". Mr. Keener asked if there is a distance requirement from a public park. Ms. Huggins stated that public parks are not included in the alcohol sales distance. Mr. Keener stated that they are ok with the limitation on the offices. That is probably more office space than that site can absorb in the next 10 years anyway. A 4 -acre cap is fine. Even if they were to just do single story buildings that would give a yield of 36,000 sq. ft. of office space which is plenty of offices for that site. Mr. Keener stated that religious institutions are a must. He stated that he had offered a compromise to staff of limiting "religious institutions" to the east part of the larger tract, which would be the east side of the ditch/drainage easement. Mr. Keener anticipates offices on the eastern part of the tract as well. He stated that they consider that area to be the less desirable part of that tract due to the nearness of the surrounding houses. A drive-thru probably wouldn't work on that side of the tract as there wouldn't be enough traffic count and there would be an issue with the residences. Mr. Keener stated that religious institutions are already allowed, which is the point he is trying to stress. He stated that they would limit it on the fast food tract and the western part of the larger tract. Mr. Keener stated that he thinks schools would be a good use for that tract although whether or not there is a "need" is arguable. Mr. Keener would like to have the retirement and elderly care facility restricted to four acres (rather than 2 acres as requested by staff). If a buyer wants to build 32 beds versus 16 beds, four acres will be needed with parking. Chairman Hill asked about the realignment of Parkview. Ms. Huggins explained that the current Parkview street on the west side of the smaller Village Center tract will become a one- way southbound. [The existing Parkview will become a private street with two-way access to the school only. There will not be access to Bobcat Blvd. from this street once it becomes a private street.] Parkview will be realigned to the east side of the smaller Village Center tract and intersect into Bobcat Blvd. Mr. Keener stated that he envisioned the west side of the smaller tract as being the rear of the site. Vice Chairman Stephens stated that he does not have a problem with a drive through restaurant on the smaller tract of land. He stated that he is in agreement with the EDC Board members who spoke during the public hearing that there is a need to generate revenue for our community. He stated that there is very little commercial property left in the Town and it must be maximized. He stated that he wouldn't have a problem with limiting any facility or business that didn't generate some type of revenue for the Town. He asked Mr. Keener if a sit-down restaurant could go in the southeast corner of the larger tract. Mr. Keener responded that he doesn't feel that is a viable restaurant location. Commissioner Reed stated that he agrees with trying to get all the revenue we can, but at the same time he agrees with Mr. Keener that there is a marketability problem. He wonders if the Town would be better off with something in there that would pay some property taxes, even if they don't pay sales taxes, than to have a vacant lot. He feels some things other than sales tax producing businesses should be considered. Vice Chairman Stephens stated that until the economy kicks back in there will be a marketability problem out there. Commissioner Reed stated that even when the economy improves there will be a marketability problem there. Vice Chairman Stephens disagreed. The Town is expanding to add 1500 households in The Highlands over the next 15 years so whatever is put in out there could survive and make money. Commissioner Ashby stated that as far as the issue with sit-down restaurants with alcohol sales being too close property line to property line, perhaps state law allows some exceptions. Chairman Hill stated that a special use permit (SUP) would be required for any restaurant wishing to sell alcohol and at that time measurements would be made to see if the sales are outside the 300 -ft. range. If they are not outside the 300 -ft. requirement, at that time research could be done to determine whether or not an exception could be requested. Commissioner Ashby asked for a definition of "not restricted to drop off only" for item "i", dry cleaning. Vice Chairman Stephens stated that they would clean clothes on-site. Mr. Keener explained that it is a bit of a dated restriction. Many dry cleaners today clean clothes on site whereas 10 to 15 years ago the technology wasn't available to clean in the smaller spaces they can use now. Items are processed in-house versus shipping them out. Ms. Huggins stated that staff had discussed this item with the Fire Chief, who stated that chemicals are different today and whereas it used to be that if you were cleaning clothes on site an SUP was required because of the chemicals that were used and discarded, that is no longer the case. Commissioner Ashby asked that for #27 on page 2, "radio recording & television broadcasting offices and studios", add: "without exterior antennas and/or satellites". Mr. Keener stated that he didn't have a problem with that. Commissioner Ashby stated that he may sway on item "q" religious institutions. Commissioner Davidson stated that it appears that there really isn't much in disagreement. The only heartburn he sees is with religious institutions and maybe four acres instead of two acres to build a retirement facility. The rest seems to be non -issues. He stated that he is curious as to what on the list is No. 1 and No. 2? Mr. Keener responded that drive-through restaurants were desired. Commissioner Davidson stated that everyone seems to be in agreement regarding drive through restaurants. Mr. Keener stated that they want the blue items on the list to clarify "professional and administrative offices" as well as "specialty shops" and that religious institutions are a must. They cannot have religious institutions struck [from the list of permitted uses] or they will have to pull the case and just live without drive throughs. He is not in a position to take religious institutions off the table. He stated that they are not asking for anything that is not already there. He stated that he is willing to restrict religious institutions to the east side of the drainage ditch which he feels is the inferior part of the site anyway. They are willing to work on a design charrette with staff for the remainder of the site to the west of the drainage ditch. Vice Chairman Stephens stated that a religious institution is a church, and as someone who was in church planning for a number years, he stated that he knows that would require a minimum of 5 -acres. Mr. Keener responded, "you could do less". Vice Chairman Stephens stated, "you could do less, but I don't know of a main line denomination that is growing that would invest that kind of money in that piece of property out there for anything less than 5 - acres and most of them want 22, 25, even 50 acres today." Mr. Keener stated that he is willing to limit "religious institutions" to the west side of the drainage ditch, which is 7 -acres. Kyle Salzman pointed out the location of the drainage ditch in relation to Village Center [see diagram highlighted below; orange -drainage ditch; yellow -Village Center]. SILT TEN PARC :QNSTRWflON ENTRANCE OETWL M22 CONTROL MEASURES Lgg o Commissioner Ashby clarified that 7 -acres would be for a church and six acres would be left on the west side of the drainage ditch for other businesses, along with 3.3 acres on the smaller tract on the other side of the park. Vice Chairman Stephens stated that as a former church planner he believes this Town does not have enough churches, but as a small town that needs to generate revenue he could live with eliminating that use. He hears Mr. Keener saying that if churches are disallowed he is going to fold his folder and walk. Mr. Keener responded that he has to. Mr. Keener stated that a church can buy today. He stated that an Alzheimer's age -restricted facility can buy today. Some of the other uses, with the way things are going in today's market it might be 10 -years before there is any interest. Vice Chairman Stephens stated that the northeast corner of the 13.3 acres is where a church would want to be. Commissioner Reed stated that with six or seven acres gone a lot of tax paying business will be eliminated. Mr. Keener stated that he is not asking to add churches to the list of already approved uses. He stated that they are trying to add stuff to help make the tract more marketable. If churches weren't on the approved list, then there would be a different discussion. He stated that he is offering to restrict the rest of the tract, which right now they could put ten churches on there; "Not that that's what anyone wants to do. Churches aren't known for paying a high price for land." Vice Chairman Stephens stated that 7 -acres represent 40+ percent of the total 16.6 acres. Chairman Hill stated that it is 50+ percent of the eastern 13.3 -acre tract. He stated that a church at that location would knock out the possibility of a restaurant with alcohol sales. Ms. Huggins stated that staff did not believe a sit down restaurant with alcohol sales would be attracted to that area, however, smaller restaurants with drive-thru capability could be a possibility. She stated that if the eastern portion of the larger tract is built out as a church, staff believes it will create quite a bit of dis-interest to the entire tract. Staff believes that a church on 7 -acres of the larger tract will decrease the value of the rest. Mr. Keener disagreed. He stated that the drainage easement splits the tract anyway. Commissioner Ashby stated that he thought the drainage easement is a box culvert that will be buried. Mr. Keener stated that it is, "at our expense we're putting about a million bucks into that". Commissioner Ashby stated that it will be buried with pavement over it. Mr. Keener said, "you can't build on it". Vice Chairman Stephens stated that it can be parking. Vice Chairman Stephens stated that he is torn — which is going to do the community more good — dollars or a place of faith? Mr. Keener stated that's not really the question because a church is already an approved use. Vice Chairman Stephens stated that the Commission is looking at disapproving it. Mr. Keener stated that he will pull the application if that is what it comes down to. They'll withdraw and leave it the way it is. Dave Glaser, EDC Board Member in the audience, requested to speak and was granted permission to speak by Chairman Hill. Mr. Glaser stated that the applicant would like 7 -acres, which really wipes it out as far as what EDC4B is trying to accomplish. Mr. Glaser stated that the applicant also wants 4 -acres for a retirement/Alzheimer facility and 2 other acres for professional office, which is the entire 13 -acre large tract, which is non-productive as far as sales tax. From an economic standpoint for a Town that is landlocked and is hurting financially, this plan is terrible. Discussion continued for approximately 15 additional minutes between Commissioners, staff and the applicant regarding the permitted uses for Village Center. Bob Radder, from the audience, asked Chairman Hill for permission to speak. Mr. Radder stated that about four years ago the Mayor had a vision of development in that area and brought that vision to the Town Council. Mr. Radder suggested revisiting that presentation to see if it matched what is desired today. Chairman Hill stated that the platting of the high school changed that vision and it might not apply today. Vice Chairman Stephens thought that plan was discussed during Horton's initial presentation by a designer from Austin. At the time, that area was supposed to be a second location for a fire department. All of that went away when Horton's initial plan was rejected. Mr. Radder asked what level of nursing care is planned for a facility in that area. Mr. Keener responded that he doesn't have a contract but he has been told it's an Alzheimer's assisted living 16 -bed facility. Mr. Radder responded that it would be acute care then. Chairman Hill asked to bring the discussion to a conclusion. Commissioner Davidson concluded that the applicant is stating that he will withhold his initial request to change the allowed uses in order to have a church. By withdrawing his request, he loses the ability to have restaurants with drive-throughs. His option of taking it off the table simply says he's going to have a church, with the other uses still in play, other than a drive- through restaurant. It comes down to a church versus a drive-through restaurant. That's where we are at. Vice Chairman Stephens stated that he would like to see both — a church and a drive-through. He stated that staff and the applicant should negotiate something that is a trade-off if the church is allowed. Commissioner Ashby made a motion to table the item and have staff and the applicant continue discussions to come to a good, viable conclusion for everybody. Vice Chairman Stephens seconded the motion. The motion passed unanimously 5-0. ADJOURNMENT Chairman Hill adjourned the meeting at 8:07 p.m. Gene Hill, Chairman Carolyn Huggins, Planning & Zoning Coordinator