HomeMy WebLinkAbout11/04/1996 City Council MINUTES OF THE CITY COUNCIL MEETING
HELD ON
NOVEMBER 4, 1996
The Regular Session of the City Council of the City of The Colony, Texas, was called to order
at 7:30 p.m. on the 4th day of November, 1996, at City Hall with the following Council roll call:
William W. Manning, Mayor Absent (business)
Bill Longo, Councilmember Present
Mary Watts, Councilmember Present
David Stanwick, Councilmember Present
Wilma Avey, Councilmember Present
John Dillard, Councilmember Present
Dave Kovatch, Councilmember Present
and with six present, a quorum was established and the following items were addressed:
INVOCATION - Councilman David Stanwick
1. PLEDGE OF ALLEGIANCE
Mayor Pro-tem Dillard reminded everyone to vote tomorrow.
2. CITIZEN INPUT
Lou Gomez, 5081 Shannon, stated that for the last two months, Councilmembers Longo,
Watts, Avey and Kovatch have acted irresponsibly and without regard for the best interests of
the community. Continuing, Mr. Gomez said neither of them had stopped to think and learn
from the error of their ways. Mr. Gomez said the citizens are in awe over the arrogance,
confrontational and dictatorial mode they have exhibited.
Mr. Gomez went on, stating that recently some of the plaintiffs in th~. lawsuit against the
city claim that Councilmember Avey misled them because she covertlY encouraged the suit only
to fred that it (lawsuit) had stopped all bond activity and all planned municipal improvement
projects in their area. He said this apparent activity clearly shows a lack of leadership,
responsibility and representation of the city's best interests.
Mr. Gomez stated that in reviewing Councilmember Watts' campaign contribution report
he found no mention of an individual contribution he gave to her campaign nor did he fred
mention of a $350.00 contribution by a local land developer. He asked for a written response
as to whether or not she received these contributions. He also asked w~iiy Councilmember Watts
is turning the 121 corridor issue into a wet/dry election.
Mr. Gomez said he would like Councilmembers Longo, Watts, Avey and Kovatch to
address either in a memo or in a public setting, the question of secret meetings and alle~tions
of their violations of the Texas Open Meetings Act. He said the citizens deserve to know the
truth.
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Mr. Gomez stated that Councilmember Kovatch had recently been invited to meet with
a group of citizens in a private residence to dispel minors about child care issues and the fact that
Councilmember Longo is against such businesses. He asked why Councilmember Kovatch was
not willing to stay and debate the issues and why he arranged to have the meeting taped.
Mr. Gomez asked the city secretary to hand out envelopes to the Councilmembers and
stated that he hopes they use the crayons and coloring books, appropriately named "Think and
Learn" as a tool in considering the error of their ways and doing the right thing by resigning.
Councilman Longo responded stating, "It is amazing how you (Gomez) can get in his
mind and make a statement that I am against child care because you don't live in my house, you
don't know what I'm talking about. For a couple of months now, you have been slandering me
and other members of the council and I would like to have the City Secretary pass this out to the
audience to show what type of person you are that on April 1, 1991, a petition was presented to
the council to ask you to get off the council because you were a disgrace to the council. So
you're really getting unbelievable. You don't know what you're talking about, you've been going
around spreading rumors about people left and right. You don't know a dam thing about what
I've said about home care or child care. You've turned around and told people you must sign the
recall petition against us four because we're trying to drive child care out of the City of The
Colony. You are wrong sir, you have been wrong more than once. You just nm through the
railroad yard with your eyes closed and one of these days the railroad train is going to cross over
your butt. This shows what type of person you are, really, you shouldn't get up and talk. It is
free to anybody who wants to see what type of person they are following."
Mayor Pro-tern Dillard said that normally the Mayor or City Manager handles Citizen
Input, but asked if any other Councilmember wished to respond. Councilman Kovatch said he
found about the tape recording (of the meeting at a private residence) last Wednesday night,
stating it was done without his knowledge. "It was done without anyone asking me or looking
to me for permission or guidance in that respect." He said he did not stay at the meeting because
he knows what Mr. Gomez is capable of and he did not feel he needed to be subjected to that
kind of situation. "I gave you my honest answer, that's all I can give you."
Mike Alianell, 5628 Terry, addressing Councilmembers Longo, Watts, Avey and Kovatch,
stated that their decision to force the City Manager to resign has created a crisis in our city. He
said as a concerned taxpayer he is asking them to resign in response to their tremendous errors.
Mr. Alianell, addressing, Councilman Longo, said his son, Andy is a sergeant in The Colony
Police Depamnent and everyone knows he is an outstanding member of the force. Continuing,
Mr. Alianell said the fact that his son is a member of the department simply reflects that he has
a personal tie and it stands to reason that he should not interfere with that department in any
Inanner.
Mr. Alianell then addressed Councilman Watts asking what background she has to second
guess the highly trained police chief or fire chief in her request for a patrol boat on Lewisville
Lake. Addressing Councilman Avey, Mr. Alianell asked if she lives in Eastvale and if she is
connected with the current lawsuit against the city that has brought about a virtual shutdown of
all bond projects.
Mr. Alianell then addressed Councilman Kovatch, stating his non-response to citizens who
support him represents his disdain for the general public and went on to say if he is planning to
mn again, that he should not waste his money.
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Mr. Alianell continued, stating that these four (Councilmembers) are attempting to micro-
manage the various departments in the city and this is a very dangerous precedent which has
mused an acute morale decline. He said he'has heard that Mr. Smith is of the highest moral
character and the most professional manager this city has ever had. Mr. Alianell asked them to
please reconsider their positions on the council. He said we (the city) needs to move forward.
He said he has heard Councilmembers say "that's the way it used to be in The Colony" and he
went on to say The Colony used to be barren fields and if the council continues to make these
kinds of decisions, we may well see our city in that situation again.
Jerry_ Schultz, 5041 Gibson, said he has been before Council several times recently and
that he spoke last week regarding procedures. He was told at that time about a memo written
by the Police Chief and that he has a copy of that memo which is full of lies. He said that the
Councilmembers who received crayons should give them to Mr. Smith, Mr. Dunlap and Chief
Clark. Going on, Mr. Schultz said Councilman Watts is the only one to respond to him about
his problems. He said this problem is with the City of The Colony and said we don't have time
for these four Councilmembers to resign because we have to get on with doing business.
Mr. Schultz said Johnny Smith has hidden the reason he resigned too and if he wants to
go he should just go on and leave because we will get along without you. He said you (Smith)
"bamboozled" a lot of people. He said people say he (Smith) is the best City Manager we ever
had, but the best one is the fh'st one and her picture is not even in the lobby.
Councilman Longo said next Tuesday is going to be Veteran's Day. In my house on my
wall I have some awards given to me by the United States Government for service in World War
II, the Korean War and I went through the years of 1950 when one man, Senator Joe McCarthy,
got up and spouted a lot of evil rumors, accusations and destroyed careers of many people. And
when I look at you, Mr. Gomez, I remind myself that you look just like Mr. McCarthy. And you
mm around and say we're doing a dis-service to The Colony by not resigning. I think you're
doing a dis-service to The Colony by not pulling together and trying to get this city going again,
and worry about election time, because that's the time to take me out of office, and not get up
here and spout a lot of evil thoughts. I've spent 22 years in this city. I've done a lot for this city
and I've tried to remember just what the heck you've done for this city. Mr. Gomez replied, "A
lot more than you have". Councilman Longo continued, No you have not done a dam thing, sir.
No sir, you have not. I built a fire department. I built a police department. I built a lot of
things. You built nothing. Mayor Pro-tem Dillard asked that Councilman Longo not get into
swapping various charges. Councilman Longo said he (Gomez) has had his shot at me and now
I am shooting back at him. Mr. Gomez said to take your best shot. Mayor Pro-tern Dillard told
Mr. Gomez he had had his time to speak, and if he wished to come back at another time to do
SO.
Liz Ripperger, 5640 Terry, advised she is the person who held the meeting that was taped
and stated she appreciated what Councilman Kovatch had said. She said he (Kovatch) was very
cordial and advised Mr. Gomez had been cordial as well. She said she was disappointed that Mr.
Kovatch left. She went on saying the child care business owners became concemed when they
learned Mr. Smith was leaving because he is pro-home child care and they understood
Councilman Longo was upset with a person on his street who has a home child care business.
She said she is disappointed that the council forced Mr. Smith to resign because he has done a
wonderful job and she is sorry to see him go. She reiterated that there was no attack during the
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meeting at her home.
Elizabeth Talley, 7510 Lakeland Drive, said she has spoken to the council before and that
she had written the paper about this issue. She said she is sorry for the rubbish that is being
tossed around and the lies and innuendos Mr. Gomez is spreading. 'Ms. Talley said it is
unbelievable that he can stand before you (council) and judge you. She said she hates to see this
city degraded and that is it a shame that so many can be led by nose without checking out the
person they are following.
Ms. Talley thanked Councilman Longo for his support of the police department and his
efforts to boost morale. She thanked Councilman Watts for her concerns about lake safety and
she thanked Councilman Avey for helping with the Etheridge Extension problems. She went on
to say she had never heard a word about the law suit from Councilman Avey. Ms. Talley
thanked Councilman Kovatch for removing himself from a volatile situation. She asked them
to please continue to enjoy the seats they are in. She then asked Mr. Smith if he offered to
resign and if that is not true, asked him to tell the citizens why he is leaving. Ms. Talley said
Copperas Cove made it without you (Smith) and we can too.
Mayor Pro-tern Dillard advised that he had just learned that The Colony High School
Cougar Marching Band had made it to the finals.
3. MAYORAL PROCLAMATION DECLARING NOVEMBER 15, 1996 AS TEXAS
RECYCLES DAY
Mayor Pro-tern Dillard read the proclamation in its entirety. Carolyn Rapasarda, member
of the Recycling Committee, accepted the proclamation. She advised the committee is
sponsoring an essay contest in the schools and invited everyone to attend the reception and
awards celebration on November 15 at 6:30.
4. CONSENT AGENDA
Mayor Pro-tem Dillard summarized the items on the Consent Agenda.
A. CONSIDERATION OF APPROVAL OF THE MINUTES OF THE COUNCIL
MEETING HELD OCTOBER 21, 1996
Motion to postpone these minutes until the November 18, 1996 meeting - Kovatch; second -
Longo, carried with a unanimous roll call vote.
B. CONSIDERATION OF APPOINTING DR. GARY VOLLENWEIDER TO
SERVE A TWO YEAR TERM AS HEALTH AUTHORITY' FOR THE CITY
Dr. Vollenweider has served as the Health Authority for the 'City since 1990. He has
agreed to serve another two year term and staff has recommended his appointment.
Motion to appoint Dr. Vollenweider as recommended - Longo; second - Kovatch, carried
with a unanimous roll call vote.
C. CONSIDERATION OF A RESOLUTION AUTHORIZING AND DIRECTING
AN AMENDMENT TO THE ARTICLES OF INCORPORATION OF THE COLONY
MUNICIPAL ECONOMIC DEVELOPMENT CORPORATION
Previously, the City Council directed that an amendment to the Articles of Incorporation
for The Colony Municipal Economic Development Corporation be drafted to establish
staggered terms for its members. This resolution is required and following council action
it will be sent to the Secretary of State of the State of Texas for filing.
Motion to approve the resolution as written - Longo; second - Kovatch, carried with a
unanimous roll call vote.
D. CONSIDERATION OF APPROVAL OF A RESOLUTION FINDING A PUBLIC
NECESSITY FOR THE ACQUISITION OF REAL PROPERTY FOR A BUFFER ZONE
EASEMENT ACROSS CERTAIN TRACTS OF LAND AROUND THE SEWER
TREATMENT PLANT; AUTHORIZING THE CITY ATTORNEY TO INSTITUTE
EMINENT DOMAIN PROCEEDINGS; PROVIDING FOR A FINAL OFFER;
PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
On July 15, 1996, the City Council authorized the City Attorney to proceed with making
a final offer to Robert Camiero with regard to purchasing property necessary for a buffer
zone for the wastewater treatment plant. In order to complete that process, it is required
that council pass the above resolution.
Motion to approve the resolution as written - Longo; secOnd - Kovatch, carried with a
unanimous roll call vote.
E. CONSIDERATION OF A RESOLUTION PROVIDING FOR A PUBLIC
HEARING ON AMENDMENTS TO THE LAND USE ASSUMPTIONS
State law requires a public heating be held to discuss the above named subject. This
resolution the hearing for December 16, 1996 at 7:30 p.m.
Motion to approve the resolution as written - Longo; second - Kovatch, carried with a
unanimous roll call vote.
5. FIRST PUBLIC HEARING FOR THE ANNEXATION OF 24.459 ACRES OF LAND,
MORE PARTICULARLY DESCRIBED BELOW
A 24.459 ACRE TRACT OF LAND CONTIGUOUS TO THE CITY OF THE
COLONY, LOCATED IN THE WEST PORTION OF THE CITY, ADJACENT
TO LAKE LEWISVILLE, SOUTH OF SOUTH COLONY BLVD., AND NORTH
OF SH 121
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This is the fu'st of two required public hearings regarding the above named annexation.
The City of Lewisville took action on September 16, 1996, to disannex the tract of land and
provide for release of extraterritorial jurisdiction to the City of The Colony. The second public
hearing will be held November 11, 1996 at 7:00 p.m.
Mayor Pro-tern Dillard opened the public hearing. There was no input, the public hearing
was closed.
6. SECOND PUBLIC HEARING FOR THE ANNEXATION OF APPROXIMATELY 40
ACRES OF LAND, MORE PARTICULARLY DESCRIBED BELOW
APPROXIMATELY 40 ACRES OF LAND CONTIGUOUS TO THE CITY OF
THE COLONY, LOCATED IN THE WEST PORTION OF .THE CITY,
BOUNDED ON THE WEST BY STEWART CREEK PARK, AND ON THE
NORTH, EAST AND SOUTH BY STEWART PENINSULA DEVELOPMENT
SUBDIVISION
Stewart Peninsula Development Partners is in the process of purchasing approximately
40 acres of land just outside the city. The current owners have agreed to begin the annexation
process. This is the second of two required public hearings. There will be joint public hearing
of the Council and the Planning and Zoning Commission on November 18, 1996 to discuss a
zoning request on this property.
Mayor Pro-tern Dillard opened the public hearing. Councilman Kovatch said he noticed
the last public hearing had been postponed and asked if the timing was still O.K. for the
annexation. The City Secretary advised that it is. Mayor Pro-tem Dillard said this 40 acres has
been outside the city for a long time and now it will be a part of the new subdivision. Mr. Jerry
Schultz asked the purchase price, and Mayor Pro-tem Dillard advised this is an annexation, the
city is not purchasing the property. There was no further input, the public hearing was closed.
7. RECEIVE REPORT FROM THE CITY ATTORNEY AND STAFF REGARDING A
REQUEST TO ESTABLISH A CORRIDOR ALONG STATE HWY.. 121 RESTRICTING
THE SALE OF ALCOHOL FOR OFF-PREMISE CONSUMPTION
At the October 21, 1996 council meeting, the EDC presented a request to establish a
corridor along State Hwy. 121 in which 'the sale of alcohol for off-premise consumption would
be restricted. Staff has worked with the City Attorney regarding this request and a report will
be made at this time.
Mr. Sam Chavez said he met with Dan Sefko of J.T. Dunldn & Associates and with the
City Attorney on Friday, October 25, 1996 to discuss the possibilities of prohibiting and/or
restricting the sale of alcoholic beverages for off-premise consumption' along S.H. 121. He said
section 109.57 (b) of the V.T.C.A., Alcoholic Beverage Code, says it is the intent of the
legislature that this code shall exclusively govern the regulation of alcoholic beverages in this
state. He said based on that section, the regulation of alcoholic beverage establishments by any
governmental entity is prohibited. Mr. Chavez said a. possible alternative for limiting the location
of such facilities that was discussed involved establishing a new zoning district along S.H. 121
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which would permit the sale of alcoholic beverages "by right" and require specific use permits
in the remaining districts. This option, on the surface, would not apply stricter standards or
regulations on the sale of alcoholic beverages, however, the city would lose its ability for site
plan approval on such facilities. The city would simply trade its ability to approve site plans
on the proposed facilities in order to apply locational standards. However, Mr. Chavez said,
should the site plan approval be required, it could be argued that stricter standards are now being
applied on such establishments thus negating the intent of section 109.57 which allows regulation
amendments as long as those restrictions lessen any restrictions enacted after June 11, 1987 on
the licensee or permittee.
Mr. Chavez said the city's current regulations appear to work well. Applicants are
required to apply, and do so voluntarily, for a specific use permit for the sale of alcoholic
beverages for either on-premise or off-premise consumption. Site plans are reviewed for design
and layout, landscaping, buffering, traffic impacts, etc. Mr. Chavez said the City Council must
decide if they want to restrict or prohibit the sale of alcoholic beverages for off or on-premise
consumption along S.H. 121, or restrict or prohibit beverage stores/liquor stores along S.H. 121.
He recommended the council meet in a work session to further discuss this matter and to give
further direction before any formal action is taken.
Councilman Watts asked if the owners have to apply for a Specific Use Permit, stating
that she has heard they do it out of courtesy, but that as a matter of fact, they do not have to.
John Hill, attorney, said that under the current zoning ordinance, specific use permits are required
in every district for sale of alcohol. He said he believes that zoning has been in effect since
before 1987. Councilman Watts asked what reasons the council could use to decline a Specific
Use Permit. Mr. Hill said anything that is arbitrary or capricious, for example traffic, a serious
traffic concern. If it is going to cause additional traffic and there is not sufficient access, then
it could be denied for that reason. You might not want a proliferation of businesses one next
to the other, for example, five liquor stores in a row. That would be a legitimate reason, when
it could be moved 1000 to 1500 feet away. A legitimate planning goal is that you don't want
them stacked together. There may be other planning reasons.
Councilman Watts said she had some overheads she would like to share, but before she
does, she wished her granddaughter a happy birthday, who was at the ~counCil meting.
Councilman Watts said, "We have heard a great deal lately about citizens .Wanting to be better
informed and since the face of The Colony is beginning to change rapidlY' I would,!ike to let
them see how things have transpired and use the 121 liquor issue as an example. I think it will
be informative to council also. I've thought long and hard about how to go about this and I think
chronologically would be pretty good. With our packets tonight we Were P.r~yided tlfis n~P, the
top showing the worst case scenario. Because we have voted o.urs~lves wet'{i would be legal to
put liquor stores on 121 one thousand feet apart. Now he did mention that if there was a
proliferation, we could deny a special use permit and move it down a little bit. That ~ould put
15 liquor stores on the north side of 121 because the south side is not wet. If the south side
would ever vote itself wet, or we the city would do that, then conceivably we would have
additional liquor stores in this area, the shaded area. The non-shaded area is not!In our city
limits. The more likely scenario and I agree I don't think there is enoug~ ~siness to, sup~port 15
liquor stores on '121, is the lower one, which would have 7 liquor store§ and that is b~cally a
liquor store at every intersection at 121 and streets in The Colony. I thought the citizens would
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appreciate seeing that.
On September 19, Mayor Manning wrote a memo to the council and in it, he stated in
the center paragraph...this was about a work session council wanted to discuss a myriad of issues
and we just didn't have the format to that .... and he stated, 'for example some time ago, I (the
Mayor) requested staff to determine whether we could limit the number of liquor stores in the
city and what we must do if they can be limited. As of now, I've not received an answer. My
concern is that if we wait too long, we may not be able to act. However, if there is not
consensus among councilmembers for this action, there's no reason for staff to act on my request,
since it would take considerable time to do the research.' Councilman Watts continued, stating
"I disagree with that, I think staff is here to answer the questions that council has and perhaps
because some of those questions are generated by residents. On September 26, it was put on an
agenda, this became the now infamous September 30th work session and you can see it was
under the economic development heading. It has nothing to do with wet/dry, it has to do with
economic development. And we were supposed to discuss liquor stores...the meeting pretty well
fell apart before we got there and it never has been discussed. Subsequent to that, after that, I
read a staff meeting summary. I guess staff meeting is on Tuesday mornings, as staff gets
together, department heads, city manager to discuss things, and I was on vacation in this time
frame. I noticed in the staff meeting, after the Mayor's written request, after it appeared on an
agenda for discussion, that Centennial Liquor Store is ready to submit their preliminary plat to
Planning and Zoning. Now once they submit the plat, we can't keep them out unless we have
some particularly good legal reason to do that. It is my understanding if we every let one liquor
store in on 121, we cannot turn any away because it would discriminatory. So after the Mayor
expressed his desire_and I think all department heads were in that September 30 meeting because
there was virtually something on the agenda for every department. The reason the Economic
Development Corporation (EDC) had this on the last agenda was because they had been studying
the economic future of the city and some of the concerns we had were image. The image of The
Colony is not the greatest in the world. And with the development on 121 we are beginning to
create a new face. It is an opportunity to do a make over of our image and in this you'll notice
in the third paragraph, second sentence 'Generally, The Colony citizens are strongly family
oriented and exert an admirable sense of pride in their community.' Now that was carried out
through Ray Turco's survey. The people that serve on EDC are citizens of The Colony, they are
residents, they live here, some have lived here 18 years, they know the heart beat of this
community. The very last item says, 'I'he majority of residents favor and support controlled
economic growth and development with emphasis on growth that supports, encourages and
respects family values.' Seven to fifteen liquor stores,-I do not believe represents that.
I wish you guys knew how much documentation it took to do this, you could have asked
me to share in our discovery process. This is a Goals Work Sheet we did, Goal number two was
to attract targeted, industrial and business firms...targeted businesses. Goal Number four was to
establish, expanding quality, and family oriented tourism and commercial development. And
Goal Number Six_develop high quality, highly reputable, youth oriented recreation entertainment
facilities in conjunction with programs described in Goals Two, Three and Four. We have over
10,000 children in a population of 26,000 and I don't think we need to encourage problems.
This is the Vision Work Sheet. We are now in the year 2001. And through the directed,
targeted, focused efforts of EDC and all the departments in the city working together to make
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this community the family oriented community, that it has been my understanding we were, it
is now The Colony in 2001. It's a progressive city of 30,000 working together through a strong,
family oriented economic base. Farther down, you'll see The Colony is a city meeting the
challenges of change. It is a challenge, tremendously challenging, yet holding firm to its family
values base. The Colony Economic Development Marketing Program implemented in 1997 has
effectively altered outsiders' perception of The Colony. It is now recognized as an attractive,
competitive, 'can do' city with high principles. I think that's a wonderful image, but we may have
to drop back to square one and re-write it. Subsequently, the EDC, I am on the Board of
Directors, brought to their attention the staff meeting of October 1 and the fact that the
preliminary plat was going to be presented. We thought perhaps with the input of Worth Blake,
who was hired by the city to guide us through this process that I just reviewed, the goals, the
year 2000, through his instruction, direction, and encouragement, EDC put forth a resolution.
He said it should go to Planning and Zoning, because they would be the ones challenged with
addressing that most immediately.
I had asked that John Hill, our city attorney, look into the possibility of a 121 corridor
off-premise liquor ordinance on October 19. This was preparing for the October 21 council
meeting where the EDC resolution was going to be discussed. I wanted to be sure we had the
attorney's input at that time so that we would have a leg up on what needed to be done. I am
concerned that tonight's agenda, Item No. 7, 'To Receive a Report From the City Attorney and
Staff Regarding the Request to Establish a Corridor Along State Highway 121 Restricting the
Sale of Alcohol for Off-Premise Consumption', that is again, to receive a report. A verbatim
transcription of what was said at the October 21 meeting, I said 'Quite often things get delayed
because there does not seem to be a consensus of council to pursue something, I would like to
make a motion that the city attorney proceed with looking into the possiblity of writing an
ordinance that, excluding the Centennial, because at that point they had already submitted the
preliminary plat, would define a corridor on 121 that would prohibit the sale of liquor for off-
premise consumption.' That's a pretty definitive statement. The Mayor's response to that,' I have
to ask that that be put off until the next meeting because it's not on our agenda this evening, but
we will pUt it on the agenda as an action item for the council to address'. It is not an action item
on the agenda, and, therefore, no action can be taken tonight.
On October 28, I wanted confirmation that John Hill was looking into the city's ability
to set zoning standards of development for off-premise consumption of liquor within the 121
corridor. 'Again, anticipating that there would be an ordinance, if it were at all legally possible,
despite the ramifications, if it were legally possible, the ordinance would be made available to
us tonight, we would be able to review the pros and cons and pass or not pass that~ordinance.
But at least it would be an action item on there. On October 28, in response to my written
request, I had asked Mr. Hill if he was pursing that and he said he had spoken with Pete Eckert
and Pete' has informed him that he has met and discussed this matter ~ detail with Sam Chavez.
Why is that important? Well, we discussed consensus before and back in July we received a
letter (and I have blocked out certain pieces of information) from our law fmn~, that we get our
city attorney services from. They have several different attorneys, we can go to different ones
at different times. This is not a contractual arrangement, its is something 'that can be changed
without major stress in the city. Because of the receipt of that letter, we had an eXecUtive session
on August 1, and you'll notice this item no. 12 Executive Sesstion to discuss city attorney
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services. It was my recollection of that meeting that there was a consensus that we use someone
other than Pete Eckert for our legal needs. I was told that was not true when I had requested
John Hill address this liquor issue on 121. So, I'm sorry, I'm confused, my memory was,'there
was a consensus we use someone else. For further clarification, that's all this document was
supposed to do, I'm asking council to sign below if they prefer someone other than Pete Eckert.
Any attorney, any city attorney, Cowles & Thompson, whomever, someone other than Pete
Eekert to represent the city. If you don't agree, just put a line through your name. Four people
signed it. That's a consensus, so I sent it to the Mayor and said please advise staff to proceed
based on this consensus. What I received back were three memos, one from Councilman
Dillard...'After seeing your memo in the Council Library concerning the council's continuance
of the relationship with City Attorney Pete Eckert, I am concerned about actions outside of the
normal city council public meeting, therefore, I will not sign or be a part of this event. The
continuance of this relationship with the city attorney should be discussed during regular
scheduled city council meetings.' The issue had been discussed in depth, in executive session."
Mayor Pro-tern Dillard said, "Mary, now that you've brought that up, what has this got
to do with the liquor issue?" Councilman Watts, "If I may proceed. Then I got a memo from
Councilman Stanwick, he does remember it being discussed and says in the first paragraph, 'I
believe what was requested was a vote on whether we should continue to use his services. I
don't believe the memo is the proper form.' I've asked the city attomey, he believes there is
absolutely nothing wrong in what I did. Until this is brought up in a formal meeting, I thought
executive session was pretty formal, I believe city manager, city staff and law fu'm should best
assign resources that are ...... Councilman Stanwick, "Just a minute, Mary, if you are going to put
that up, please mention the second paragraph, the second paragraph specifically says regardless
of the intention of that memo, I personally do not remember any conversation or direction from
council stating the opinions you had in your memo, so I do not want to be misrepresented in that
first paragraph by saying I remember that conversation because I don't." Councilman Watts,
"You do remember conversation about this, you indicated you thought it should come for a vote.
That is what this first paragraph says." Councilman Stanwick, "I understood that your memo was
requesting a vote on city attorney services, that's what that references." Councilman Watts, "It
says for clarification. You want to see it again?" Councilman Stanwick, ';No, I know what it
says, but my opinion was that was requesting a vote and I just don't want to be misrepresented.
That second paragraph clearly states that I didn't remember any conversation or direction from
council regarding city attorney services." Councilman Watts, "I understand. So you have four
signatures on a document the city attorney says is O.K., a request to the Mayor for it to be put
into action and his response is, 'Please understand I will have no part in action taken outside the
public meeting, therefore, I refuse to act on your memo.' So I have in the last council meeting
a very specific request for an action item and told by the Mayor that it will be on this agenda
as an action item. It is not. This is a document that came from the Attorney General's Office
of Texas and it states, 'In reference to the Texas Open Meetings Act, Section 2A was added in
1987 and requires governmental bodies to maintain a certified agenda or a tape recording of
executive sessions. A tape recording of the executive session like the certified agenda is a
record. Members of the governing body may not participate in a closed meeting knowing that
a cert'.ffled agenda is not being taken or a tape recording is not being made. The certified agenda
and tape recording mentioned the provisions we have cited record the proceedings of the
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executive session. In our opinion, subsection 2A bars release of certain records but does not
prevent members of a governmental body from talking about the recollection of the subject
matter of discussions. The purpose of enacting section 2A was to ensure that a record of
executive sessions would be available in the event of a law suit alleging an open meetings act
violation.' Patti, I believe we do the certified agenda, but we don't have a recording?" Patti
Hicks, City Secretary, "That's correct." Councilman Watts, "Could you explain what a certified
agenda is?" Ms. Hicks replied, "It states, the uh, a certified agenda simply states the date and
time, the time the executive session began, the subject matter that was discussed, the people who
were present in the room at time, and then it just says what time it was adjourned, and that no
action was taken. Any action, of course is taken in open session." Councilman Watts, "O.K. my
recollection at that meeting was that no action needed to be taken, as far as having some other
attorney represent the city and our discussion was that whatever historically there was that Pete
had, he could continue with those, but new items, and I think this 121 corridor is someting that
is new, would be done by another attorney. And no formal action needed to be taken on that
because there was no contract. Am I wrong, is there a contract with the City Attorney?" Ms
Hicks, "Cowles & Thompson has been appointed as our city attorney." Mayor Pro-tern Dillard
said Mr. Hill needed to address some of these issues. Mr. Hill, "Actually, I don't think Cowles
& Thompson is your city attorney, I think it's Pete Eckert. The charter establishes who the city
attorney is and he or she answers to the council directly. The position is established by charter
and I believe it is Pete Eckert. I may be wrong, but I don't think it's Cowles & Thompson, but
I believe Pete Eckert has been appointed as your city attorney." Mayor Pro-tern Dillard, "Mr.
Hill, before you sit down, on the format that was used to get the signatures and consensus of
council outside a normal voting mode which is this particular forum, is that a proper format to
be used?" Mr. Hill, "If it's a matter that, as I discussed with Ms. Watts today, if it's a matter that
must be decided in public, then clearly it needs to be decided in public forum. If it's a matter
that must be decided, obviously the council can't, as the Open Meetings Act states clearly, can't
take action outside of an open meeting. You can discuss a matter, but you can't formally take
action".
Councilman Watts, "So four councilmembers were remembering what was basically stated
here, and that we were told in that executive session that based on the consensus that's what
would happen. Now am I understanding, am I being told that it.takes a formal vote?" Mr. Hill,
"Well, if the issue is, who is your city attorney and the Charter says that the council shall appoint
the city attorney, to change the city attorney you haveto take the polled vote by Charter. I think
you would have to do that." Councilman Watts, "I am confused, we have to have a Charter
election?" Mr. Hill, "No, no, you have to take vote, council would have to vote, just like you
have to hire a city manager. You can't agree by consensus to hire somebody as city manager.
It's the same way with the city attorney. You've got to do that, uh, in an open (meeting) it's by
your Charter. It's pursuant to your Charter, not an ordinance, not a state law, it's by your
Charter." Councilman Watts, "If Pete Eckert is our city attorney, why are you here tonight?"
Mr. Hill, "Well, the way our office works is that, we represent a number of cities, as I think
everybody on the council knows, we are in the business of being city attorneys. And frankly,
we help one another out, we work with each other, we support one another, we help each other
with legal issues, we cover meetings when that needs to be done and so forth, and uh, it's been
my experience, and I've been doing this for fourteen years, it's my experience that it is common
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amongst smaller cities, cities smaller than Carrollton and Richardson and so forth that have full
time city attorneys. It is very common where they might hire a law fa'm, or a lawyer, and that
lawyer is unable to make it or whatever, that other lawyers cover those meetings. And support
and help out the other lawyer. And that's why I'm here really because, we support one another
in our f'n'm. We help each other out, that's just the nature of our practice." Councilman Watts,
"So we need to find out whether Cowles & Thompson is our law f'u'm of if Pete Eckert is our
city attorney." Mr. Hill, "Yes, ma'am, I think it is Pete Eckert who is employed as your city
attorney, not John Hill, not Cowles & Thompson." Councilman Watts, "Would that be revealed
in this letter from Cowles & Thompson?" Mr. Hill, 'I think it would be in your minutes
somewhere probably eight years ago, or so, back in the late eighties, because that is when Pete
was appointed, I believe. Before that was John Boyle, it was Hutchison, Boyle, Price, Brooks
and Fisher, and I worked with John at the time and came out here for meetings then back in '85
and '86." Councilman Watts, "So we're remembering the consensus was reached to do something
and we were told at that time, no action needed to be taken to accomplish that." Mr. Hill, "Well,
I guess there are a couple of ways to look at it. I am more than willing and I think our fa'm,
Cowles & Thompson, more than willing for me to come to the meetings, for me to respond to
you, to draft resolutions, contracts, and so forth. But, and Pete can remain your city attorney,
that's--of course the council call. That's your judgment, that's your decision. But, within the
framework of the fu'm, Pete is city attorney, and John Hill does a lot of the work. And I think
that's just kind of the way, at least for the last several weeks, at least, and probably since August
or September, that's just the way it's been working."
Councilman Stanwick, "Mr. Mayor, I'd like to call a point of order. This whole
discussion is not on the agenda. I don't remember a consensus ever. I remember conversations,
but I don't think that there was a consensus taken." Councilman Watts, "Which was the purpose
of my memo." Councilman Stanwick, "I'd still disagree that was the improper forum for that,
regardless this is not on the agenda tonight and I would like to move on. If we're going to
discuss the alcohol, let's move to the alcohol issue and let's put the city attorney issue on another
agenda." Mayor Pro-rem Dillard, "I have to agree with him, because this was designed to discuss
the alcohol issue, if we're not going to discuss that, I'm going to item..." Councilman Watts, "It
has everything in the world to do with the alcohol issue." Mayor Pro-tern Dillard, "No, this is
your personal agenda against Pete Eckert, it's very obvious where you're headed with it. If you
wish to call a vote on Pete Eckert, we dan schedule that at a future time." Councilman Watts,
"That has nothing to do with it, Mr. Dillard. It has been quite sometime and I will remind you
the Mayor's memo back in July saying he has asked staff to look into this for a long time and
it hasn't been done. And now we've got a liquor store." Mayor Pro-tem Dillard, "Mr. Smith
would like to clarify something and I'm going to rule you out of order if you don't get back to
the alcohol issue."
Johnny Smith, "Sam, would you clarify that last statement about the Mayor not being
gotten back with." Sam Chavez, "Yes, the Mayor asked me to take a look at this issue sometime
ago, during a dental visit. He asked me what my thought was about our ability to limit alcohol.
Right off the top of my head, my fu'st response to him was 'I don't believe we can do so because
of state law'. Now we can look at other avenues, but other than just fiat out restricting them or
prohibiting them anywhere in the city, at this point, my answer would be no, and that was the
gist of that conversation."
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Mayor Pro-tem Dillard, "Councilperson Wilma Avey, if you would like to speak to the
alcohol issue, feel free~" Councilman Avey, "May I clarify what my understanding of something
was?" Councilman Watts, "I can't hear you, Wilma." Councilman Avey, 'I was asking if I could
clarify my understanding of the memo.'.' Mayor Pro-tem Dillard, "Well, the agenda properly
pointed out by Councilperson Stanwick is to receive a report on the sale of alcohol for off-
premise consumption not to discuss the future of the relationship of the city attorney, nor our
views on that issue. We really drifted off base and I'm going to have to ask you to restrain
yourself from that, get back on the alcohol issue and ask for this to be placed on an agenda at
a future date." Councilman Watts, "I want to again show you the Mayor's memo on September
19. 'I requested staff to determine whether we could limit the number of liquor stores and what
we must do, as of now I've not received an answer.' On tonight's agenda, they are asking does
city council want to restrict or prohibit the sale of alcoholic beverages for off or on premise
consumption along 121 or restrict or prohibit beverage stores/liquor stores along 121. Once
council's direction is stated, any options and/or impacts will be defined and presented. Again,
my, uh, I thought it was pretty well stated at our last council meeting when I said, 'I would like
to make a motion that the city attorney proceed with looking into the possiblity of writing an
ordinance that, excluding the Centennial, because at that point they had already submitted the
preliminary plat, would define a corridor on 121 that would prohibit the sale of liquor for off-
premise consumption.' So I don't know what needed to be clarified tonight to create an ordinance
for next time. We have to read an ordinance twice. So we have put off the decision. Also, in
today's..development stagnation as a result of potential mixed .... "Mayor-pro-tern Dillard, "Mary,
the audience is having a hard time hearing, try to speak louder into the microphone."
Councilman Watts, "Development stagnation is the result of potential mid-stream regulations.
In summary, developers purchase and make investments on property based on the property's land
use designation, the type of uses permitted within that designation and its marketability.
Potention mid-stream regulations create a "cloak of doubt" as to the viability for future
development of the property and thus affect its marketability. Some of the things that are coming
out there, like a Boston Market, a dry cleaners, grocery store, which would not be affected by
this because they can get their SUP. Restaurants, liquor by the drink, that would still be
permitted. I don't think it would stagnate any development other than that of liquor stores. In
mary, you have the Mayor wanting something and staff says it's too busy and they need a
consensus. We had a consensus last week. I thought council had a consensus on an issue but
staff says no. So I tried to get written clarification and the Mayor refuses to act on it. I asked
the attorney, he said having that for clarification purposes was not out of line. In open session,
I asked for an ordinance to be written and be on the next agenda for action. The Mayor says it
will be. Instruct someone to do it and it doesn't happen and you people wonder why things don't
get done in the city. If this whole conversation is not going to change the 121 corridor because
a preliminary plat has been issued and quite probably we could do something without having
serious ramifications. I do hope they (staff) will find the time to look into it and come back to
us so that council can decide the ultimate impact and whether a family value, family oriented
community would like to deal with that impact. I thank you for your time. And now you seem
to be a pretty well informed audience."
Mayor Pro-tem Dillard, "Mr. Smith." Mr. Smith, "Pretty well informed from one side.
Clarification, I'm Sorry the Mayor is not here tonight to explain his memo. I think his memo was
15
addressed by staff whether it was at the time or shortly after, I don't 'know the time' frame
involved. The reason that an ordinance is not on the agenda and I believe you said for action,
and I believe the city attorney was sitting here at the last meeting too. Did you understand what
kind of ordinance you were supposed to write? (To John Hill) Or did you wan~ to come.back
for clarification, based on our conversations-in putting this agenda item together?" John Hill,
"Actually any ordinance, ff you amend the zoning ordinance, it's going to have to fa'st go to
Planning and Zoning. It's got to come from them. You have to hold a publc hearing and P &
Z would have to sign off on it. My understanding was, and I may have misinterpreted, my
understanding was, this would be put back on this agenda tonight if council decided then to direct
the city attorney. It was not an action item last time, it would then be put on this agenda tonight
and, if there was a consensus of council, that we wanted to move forward with an ordinance, you
would then direct the city attorney to draft an ordinance. That was the way I interpreted it two
weeks ago and I may have been wrong in my interpretation, but that's what I heard."
Councilman Watts, "So the Mayor was wrong in saying it would be back on the agenda as an
action item?" Mr. Hill, "As an action item to direct the city attorney to draft an ordinance.
That's the way I heard it." Councilman Watts, "My statement was 'you do the ordinance and put
it on this agenda.'" Mr. Hill, "Right, and I just didn't understand that. I will do whatever. We'll
draft an ordinance and do whatever we are directed by the council to do. What got put on the
agenda for tonight was to discuss the matter, f'md out what the council wanted to do. If you
thought it was a good idea, to talk about the matter further. It is a very complicated matter and
a very serious matter." (I could not understand everything Mr. Hill said at this point.) He was
making the point that this is a tough matter which should not be taken lightly and without serious
council consideration. He referenced the Texas Alcoholic Beverage Code, which says the state
pre-empts any regulation of alcoholic beverages in cities and that you can't essentially
discriminate between a liquor store or restaurant or another kind of retail store that doesn't sell
alcohol.
Councilman Watts, "Which is why if we never let a liquor store in on 121 we would
never have to. We would not be discriminating if we said no to the liquor store to begin with."
Mr. Hill, "Right, it says you can't impose stricter standards on a business required to have an
alcoholic beverage permit." Councilman Watts, "So we could have the Mobil station that's there
and fourteen other service stations that sell beer and wine but if we say no to a liquor store, that's
not discriminatory because the Mobil station is beer and wine as opposed to liquor." Mr. Hill,
"They're beer and wine, that's correct, I .think you can make that argument. The problem is when
you change the roles you have in effect today, assuming that you have an ordinance in effect
prior to 1987 which requires a specific use permit for the sale of alcoholic beverages, that
ordinance would be "grandfathered" by the Alcoholic Beverage Code. (I could not understand
the rest of Mr. Hill's comments at this point.)
Councilman Watts, "So if six months ago, you had drafted an ordinance for a corridor on
121, it would have been possible' to do without all of this hullaboo?" Mr. Hill, "Wall, we
certainly could have looked at the issue and again I really believe that it's a tough, tough, issue.
I am not saying it's impossible, I'm just saying I think it's a tough road, based on all of the
legislative pre-emption of cities to regulate alcoholic beverages." At this point, Mr. Hill cited
the 1993 case where the Supreme Court overruled the City of Dallas regarding this issue. Mr.
Hill continued, reiterating that this is a very serious concern.
16
Councilman Stanwick, "I'd like to make two comments. Number one, we are talking
about stores who derive more than 75% of their revenues from liquor. If we had a whole row
of Mobil stations and every Mobil station wanted to sell beer and wine, as long as they were
under 75% we couldn't do anything. Correct, we already have a Mobil station there, we couldn't
do anything about that, correct?" Mr. Hill, "Well, they would have to go through the specific
use process to get approved." Councilman Stanwick, "We can't deny it. We can't deny them
unless there was a legal reason. My second comment is, I don't believe that there is a consensus
of council to anything. So far I've one councilmember who has directed staff and our legal
counsel to look at ways to bend the law around what we want to do. Now I've been on the EDC,
I understand what the issues are, I don't want to see a whole row of liquor stores and
convenience stores and Mobil stations. I want to see some industry up and down 121, but I have
a problem with us trying to find, trying to read between the lines and find every loop hole that
we can f'md to try to get around.., to try to get what we want. I don't have a problem with
putting together some guidelines, let's say a liquor store every 1500 feet, or let's say no more
than two liquor stores within the 121 corridor that sell more than 75%, you know, let's set up
some guidelines so that there's no misunderstanding when a developer comes in what our
guidelines are toward a specific use permit." Councilman Watts, "That's all I've been trying to
do." Councilman Stanwick, "But I have a problem with us trying to put together an ordinance
to get through loop holes or to try to bend the law according to what we want. Let's do what
we can, let's do what's legal, let's do what's fight and let's do it quickly, let's put together some
guidelines. Let's have the work shop, let's do what we need to do. I don't necessarily think it's
necessary. I think we have those things in place to do what we want to do. Now we may need
to clarify some things, we may need to provide more detail, and that's fine. We, as a council,
can work together to do that."
Mayor Pro-tern Dillard, "We have several citizens that wish to speak on this issue, if
you'll come forward to the microphone. You won't need to fill out the form, but identify
yourself.
Lou Gomez, 5081 Shannon - 'I am amazed at the turn of this meeting. It's completely off
the agenda for some reason and no justification that you can bring up, Councilman Watts, can
justify deviating that much. I will say this, four of you got caught with your pants down. This
is another illegal meeting behind the scenes." Councilman Watts, "Not according to the City
Attorney." Mr. Gomez, "I hope the District Attorney looks at this, you people are above the law,
it's unbelievable. You people think you are above the law. Why don't you go and do this, fire
the rest of the staff. You are very capable of managing this city by the four of you. It's
shocking. And it is a wet/dry issue and you are bringing it up again. The last people that tried
to do that got shot down publicly. And it's going to happen to you again. Personally I don't care
about where your morality line is, to the left or the fight of the center. And it's not your job to
legislate the morality. How would you like it if somebody said there were too m,3n~ y Baptist
churches in this town? It's no different, and I'm not advocating that, but you sit up there in your
pompass way and try to force laws down the citizens' throat about issues like alcohol. Maybe
next time it will be something else. Shove it down our throat. "And you're so far above the law
that you're willing to hold little secret memo meetings." Councilman Watts, 'According to the
city'attomey, it was not illegal." Mr. Gomez, "That is still left to be seen, Ms. Watts. That is
still left to be seen." ~
17
00626i
At this time, several members of council and the audience were speaking simultaneously,
and the tape was very unclear.
Bernetta Henville-Shannon - Ballard Trail, said, "We are here to work together. In spite
of all our differences, which we have many, we need to work together. I personally do not:-want
to see a long string of liquor stores come down our front door. I don't mind them coming in,
but not have a liquor store on every corner. 'We need to look like a family community. She
agreed that guidelines need to be drafted. She asked if the city engineer is on staff or a
consultant." Mr. Smith said we use consultants and some work is done without a contract, but
on certain projects, work orders or contracts are issued.
Roosevelt Johnson, Thompson Drive, said he is a bit concerned, stating something scares
him. He said he watched the presentation by Ms. Watts regarding a consensus agreement. He
said you can't take consensus on matters of personnel and stated that her memo violated the
Texas Open Meetings Act. He went on, stating she had asked for a way to restrict the sale of
alcohol and that is discrimination. He said, "I live here and money comes out of my pockets,
but you (Watts) don't seem to care." He said she doesn't trust P&Z. He again stated she had
violated the Texas Open Meetings Act by her own admission.
David Heiman, Fox Drive, said he was on Council before and that it was common to ask
the council to sign off on items. He said he does not think the memo was a violation of the law.
Mr. Heiman said he doesn't want to see a whole string of liquor stores on 121 and that there is
a potential for that to happen.
Jerry Schultz, Gibson Drive, said this was not her (Watts) own agenda, because it effects
the whole city. He said you can change the zoning, just look at Plano. He said people need to
come out and let the council know what they want.
Daniel Martin, I have been a resident since 1968 and I am not normally politically active.
I have been here 2-1/2 hours and have heard a lot of name calling and finger pointing on both
sides. We do have to work together and I wanted you to see my face because I will be getting
involved.
Mayor Pro-tern Dillard asked Mr. Hill if the memo was the proper format or if it was a
violation. Mr. Hill said if a memo was just to request an item be placed on an agenda that would
have been O.K., but if the intent was to select a new city attorney without the benefit of a public
meeting then it was a violation.
Mayor Pro-tem Dillard asked if there was a consensus of council to hold a work session
to discuss the alcohol issue. At this time, Councilman Watts read her memo as followsi
"After discussing the above subject in several meetings, it was my understanding
(based on a consensus of Council) that Pete Eckert would only continue to be used
for legal counsel on issues he had previously been involved with and therefore
might have historical knowledge of.
The request for legal advice regarding 121 Corridor Standards for Liquor for off-
premise consumption seems to be "new," so I'm wondering why Pete has been
asked to respond to Council's desire for information.
For further clarificaion I am asking Council to please sign below if they prefer
someone other than Pete Eckert to represent the City. If you do not agree, please
18
put a line through your name."
Mr. Hill said that was something that needed public action and you can't take a vote
outside of a public meeting. He said he was not aware she (Watts) was talking about the City
Attorney issue.
Mayor Pro-~em Dillard called a work session for November 26, 1996, at 7:00 p.m. to
discuss the alcohol issue.
8. CITY MANAGER AND STAFF REPORTS
Tony Johnston advised that since the State Treasurer's office has been abolished that it
is now necessary to execute updated agreements for participation in TexPool. After a brief
presentation and explanation, council directed staff to have the city attorney review the agreement
and bring it back to them at the November 11, 1996 special session for action.
Sam Chavez handed out the land use assumption report for the council to review.
9:29 p.m. Recess into Executive Session
9. EXECUTIVE SESSION AS AUTHORIZED BY SECTION 551.071 OF THE LOCAL
GOVERNMENT CODE RELATING TO LITIGATION, TO-WIT:
A. RICHARD KAMEN, et al, v. CITY OF THE COLONY, TEXAS,
Case No. 4:96CV335
9:47 p.m. Reconvene into open session.
10. CONSIDERATION OF ANY APPROPRIATE ACTION TO BE TAKEN AS A RESULT
OF THE EXECUTIVE SESSION
With no business to address, Mayor Pro-tem Dillard adjourned the meeting at 9:48 p.m.
APPROVED:
William W. Manning,
ATTEST:
Patti A. Hicks, TRMC, City Secretary
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