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HomeMy WebLinkAbout11/26/1996 City Council MINUTES OF THE CITY COUNCIL MEETING HELD ON NOVEMBER 26, 1996 The Joint Work Session of the City Council, Planning and Zoning Commission and The Colony Municipal Economic Development Corporation Board of Directors of the City of The Colony, Texas, was called to order at 6:00 p.m. on the 26th day of November, 1996, at City Hall with the following roll call: City Council: William Manning, Mayor Present Bill Longo, Councilmember Present Mary Watts, Councilmember Present David Stanwick, Councilmember Present Wilma Avey, Councilmember Present John Dillard, Councilmember Present Dave Kovatch, Councilmember Present Planning and Zoning Commission: Steven Swerdloff, Chairman Present Barbara Crocker, Member Present Joe Agnew, Member Present John Anderson, Member Present DeVille Hubbard, Member Present Economic Development Corporation Board of Directors: Gary McClure, Chairman Present Rick Manser, Member Present Ronnie Fischer, Member Present Tommy Thompson, Member Present and with a quorum established for each body, the following items were addressed: 1. DISCUSSION AND REVIEW OF THE STATE HIGHWAY 121 CORRIDOR STANDARDS REGARDING THE SALE OF ALCOHOL FOR OFF-PREMISE CONSUMPTION AND SEXUALLY ORIENTED BUSINESSES Due to pending, proposed and/or anticipated development along State Highway 121, the City Council, Planning and Zoning Commission and the Economic Development Board met in a work session to discuss standards along that roadway with regard to alcohol sales for off-premise consumption and sexually oriented businesses. In order to pursue ordinances, standards or guidelines, staff and the city attorney will need direction from 2 council with regard to these matters. Chairman Swerdloff thanked the EDC and Council for joining in this discussion on developing a plan for addressing these issues. Mr. Swerdloff asked the members present to please raise their hand to be recognized before speaking due to the large number of participants. He advised there would be no public input at this work session. Mr. Sam Chavez referenced his memorandum of October 30, 1996 outlining what State law allows the city to do and doesn't allow the city to do and a memorandum from Mr. John Hill outlining the same issues. Mr. Hill's recommendation at this time is to maintain the process as it is. Mr. Chavez said currently the sale of alcohol requires a Specific Use Permit (SUP) in every zoning district in the city. He gave a brief overview of the current process for granting SUP for the sale of alcohol. The application, which has to comply with all ordinances in effect in the City, is reviewed by staff, Planning and Zoning and then the Council. Staff reviews the application, including the site plan to ensure it complies with all ordinances and guidelines and may add stipulations as needed. Planning and Zoning then reviews the case and may add their own stipulations before forwarding it to the council who has the final approval of granting a SUP, not only for the sale of alcohol but for other purposes as well. Mr. Chavez said that so far this process has worked well and it gives us the ability to ensure compliance with our ordinances. State law allows you to restrict by ordinance as long as those restrictions are less than their current restrictions. He stated that because the SUP ordinance was in place before June, 1987, we can continue to use that process for zoning cases regarding the sale of alcohol, and Mr. John Hill believes they are enforceable. Councilman Stanwick asked how the council could deny a request for a SUP based on current ordinances and guidelines. Mr. Chavez said they are very much like zoning and we have the ability to deny based on general welfare, safety, and total non-compliance with the zoning ordinance or corridor standards. Mr. Hill agreed and said Mr. Chavez has given a good overview of the law. Mr. Hill continued stating that the standard that a court will look at in reviewing whether or not the council made a proper decision with respect to denying or granting a SUP is whether or not "reasonable minds could differ." If the issue is debatable, if there is a legitimate basis on which the decision was made to deny a SUP, then the court is not going to over turn the council decision. The issue is whether or not the matter is debatable. If it is arbitrary or capricious or the court finds there is no reasonable basis upon which to deny, then the court would probably overturn the council decision. Mr. Hill said the more factors included in the reason for denial, the better. He said that because you have an ordinance, the SUP process was in effect prior to June of 1987, that process was "grandfathered" by Section 109.57 of the Alcoholic Beverage Code. You can continue to apply your ordinance. Some of the things that you might consider are: Is it a use that is compatible with the surroundings? Does it contribute to or enhance the welfare of the area? The city can use these questions in making the decisions and it could be a reasonable basis on which to deny a request. You may consider having an analysis done to determine how many alcohol beverage stores you want within the city. You may make a decision at some point that we have enough in the city. You may set a number that 3 you think is sufficient based on the population. For example, you may allow only a certain number of alcoholic beverage stores along S.H. 121, however, it would be good to have other factors involved as well, such as traffic, etc. The more reasons included in the denial the better the case. Mr. Hill said he had looked at establishing a district allowing the sale of alcoholic beverages as a matter of right. That would take out the SUP use from the Business Park zoning for that district. Our recommendation is to leave in effect what is in place today and is allowed by State law. Discussion followed regarding limiting the number along S.H. 121 and if that number should be included in the 121 Corridor Guidelines. Mr. Hill said you can project out what you want to see, but stated each case should be taken on its own merit, because there may be some businesses that the city wants to allow and if the number is strictly limited, then that business may not be allowed. He said you can state what you would like to see on that corridor, state the reasons you want to limit the number, then when you receive an application you have that before you to use as your reasons to grant or deny the SUP. Mr. Hill said this could be used city wide as long as it was a reasonable basis. Councilman Dillard asked, based on the fact that we are wet with no limitations on the legal business for sale of alcohol, if this could be interpreted as a restraint of trade? As an example, Councilman Dillard said if he owned property and wanted to put a liquor store on his property and the city said he couldn't because there are too many, that he would see that as a direct restriction on his ability to do business. Mr. Hill said that is a federal law issue and the federal trade issues do not apply to municipalities. He said the city does have authority to regulate location through the SUP and that the council does have discretion, but it can't be arbitrary or capricious. Mayor Manning asked what would be brought against the city assuming we have established our strongest case and deny a SUP. Mr. Hill said the first question would probably be, is our SUP ordinance grandfathered and second is the decision arbitrary and capridous. The applicant would want to know why the city would not allow one more business...what basis was used to make the decision. Mr. Hill said the city would have to provide evidence at the public hearing which established the basis for the decision. Discussion regarding types of businesses that sell alcohol; convenience stores, restaurants. Councilman Watts quoted Section 2-100 from the Zoning Ordinance as follows: "It is hereby declared to be the purpose and intent of the city council in enacting this ordinance with a comprehensive master plan for the purpose of promoting the health, safety, morals and general welfare of the city." Continuing she quoted Section 4 (4-115 Specific Use Permits) - proposed zoning district it says, ..."The indication that it is possible to grant a specific use does not constitute a grant of privilege for such use nor is there any obligation to approve the SUP unless it is the finding of the city planning and zoning commission and the city council that such specific use is compatible with adjacent property use and consistent with the character of the neighborhood." Councilman Watts stated that in Section 10-902 the Code says that (The designation of a specific use permit as possible on the use schedule, 10-200,) "in a given district does not constitute an authorization or an assurance that such 4 use will be permitted. Rather, each specific use permit application shall be evaluated as to its probable effect on the adjacent property and the community welfare and may be approved or denied as the findings indicate appropriate." She asked Mr. Hill if these are sufficient statements, already existing in our ordinance, to empower the city to deny an SUP. Mr. Hill said they are, however, there should be something in the record of the public hearing, stating what the reasons are for denying the SUP. He said that is very good language to support the decision to grant or deny. Mr. Hill said if the city sets a number then it should only be a guideline, not a hard and fast number because there may be a case where the city will want to approve the SUP. Mr. Chavez asked to play "devil's advocate", in response to the Mayor's request for arguments the developers may use. He asked how the city can deny a SUP when they have approved them in the past that are not in compliance. Mr. Chavez said that is the type of question the developers will ask. Mayor Manning said it appears that what we have on our books is as good as we can get and Mr. Hill agreed. The Mayor continued, stating then if the council chooses to deny a SUP, we are rolling the dice, because we could be challenged. Mr. Hill agreed. Councilman Stanwick said we need concrete items not just morals and general welfare. Mr. Chavez said each case will be judged on its own merit with respect to traffic, etc. and then if there is a negative impact, the council can deny. Member Agnew asked if the city can say that mistakes were made in the past, but that is not germane to the case at hand and Mr. Hill agreed that could be done. Mr. Hill said Flower Mound has denied a SUP for a convenience store because of the number of such stores in the area. Councilman Watts said the EDC recommendation to P &Z dearly indicated values of the city and asked if that can be used to supplement current zoning. Mr. Hill said that could be used to help in the argument. Councilman Watts noted that a SUP has not been granted on 121, and it is my understanding that once a preliminary plat is presented to P&Z, council cannot deny the SUP. Mr. Hill said once at the platting stage, that is correct. He stated however, that Centennial is not at the platting stage. Mr. Chavez explained there are two permit processes; the platting process vests the property owner with the ordinances in place, except for zoning. This happens at the time the submittal for approval of a preliminary or final plat or replat is made. The other permitting process is zoning. Mr. Hill agreed and stated the zoning is normally in place and the the platting is done and once complete, the developer has the right to proceed with the guidelines or ordinances in effect on the date filed. Member Crocker pointed out that we are talking about amending the 121 Development Guidelines and that they are aesthetic, not types of business or zoning. Chairman Swerdloff asked the EDC why the resolution to prohibit the sale of alcohol for off-premise consumption and if that was all encompassing. Gary McClure, Chairman of EDC, said in their vision statement, they said The Colony is a place with family values and they felt that along the 121 corridor the market would force liquor stores to line up along the highway. He said that would not be conducive to a family community. Mr. McClure said their resolution only dealt with package stores. Councilman Watts clarified that what is in place will support the council if they 5 choose to deny a SUP. Mr. Hill agreed, but said the reason cannot be just because we don't like liquor, it has to be planning reasons. Councilman Watts asked if the distance of 1000' can be changed and Mr. Hill said he believed that was passed after June, 1987, and it would be questionable as to its enforceability because it is more restrictive than the Alcoholic Beverage Code. Mayor Manning again stated it seems the tools are in place and that at some point we need to set a number, as a part of planning, not a hard number. Councilman Stanwick asked if we need separate guidelines for on-premise and off- premise. Mr. Hill explained that State Law allows cities to regulate the location of bars. Councilman Avey asked, if the SUP ordinance is changed across the board to allow only a certain number of SUP's in the city, could that apply to alcohol. Mr. Hill said he does not think the number should be put into an ordinance. Councilman Watts said she thought the council could not deny a SUP, but now she knows that they can with certain factors in place. Councilman Watts said she had discussed with Mr. Hill the possibility of grandfathering all the existing SUPs, all of the existing businesses that sell beer, wine and alcohol and then have a vote by the citizens to make this city a dry city. Continuing, she had asked if all those existing businesses continue to have the ability to conduct business and if they sold their business 10-15 years from now, could the SUP pass on to the new owner. Councilman Watts said if we are concerned about denying a SLIP and rolling the dice, if we were to grandfather them (businesses) in and vote dry then it would not be a roll of the dice. Mr. Hill said it is his understanding of State law that in an area that is wet and they then vote dry, the existing businesses have a right to continue. He said he is not sure whether the State would continue to renew their licenses after the city voted dry. Mr. Hill said the zoning ordinance would then have to be amended to take out all the alcoholic beverage uses. Councilman Watts asked if that (grandfathered businesses) would be on the ballot and Mr. Hill said he did not believe the ballot would be the place for that. Councilman Watts asked if that was something the council wanted Mr. Hill to look into and Mayor Manning said he is not in favor of that. Councilman Watts asked if there is a consensus of the council. She said she wants to be as informed as possible. Consensus would be to ask the City attorney to see if the existing businesses could be grandfathered in, the residents vote the city dry, and ail of the existing businesses continue to operate. Mayor Manning stated he is not in favor. Councilman Dillard stated he is not in favor of a wet/dry election and that is what this issue will become. Councilman Watts said the issue is to be informed. Councilman Dillard said he sees no need to incur legal expense for this purpose. Councilman Longo said we have to watch what we are doing and if we look at Lewisville which is dry, a lot of these businesses are leaving Lewisville and going into Flower Mound which is wet. "We don't know what's going to happen a year from now; I'm not in favor of grandfathering anyone and taking a chance on voting dry or wet. I'd rather see us continue on with the guidelines we have now." Councilmembers Avey, Stanwick and Kovatch all stated they are not in favor of pursuing this matter. Mr. Johnny Smith asked the City Secretary who is in charge of a wet/dry election; Ms. Hicks responded, the County Commissioners. Member Crocker said the risk with a 6 wet/dry election is that what is now dry could become wet and we could then have even more liquor stores. Councilman Watts said she is not interested if existing businesses cannot be grandfathered. Chairman Swerdloff said it appears the consensus is to judge each case on its own merit and continue with the SUP process. Councilman Kovatch said we need to go ahead and establish guidelines and rationale now and not wait until we reach the "number". Councilman Stanwick asked if the council can give direction to P&Z to move ahead with guidelines on 121 for types of businesses, not just alcohol. Member Agnew said the P&Z is in the midst of the Comprehensive Plan and part of that is the Economic Development Plan. He suggested letting the EDC look at types of businesses then when the whole document is done, the council will have a document on which to base their decision. Chairman Swerdloff agreed. Councilman Stanwick said he didn't want a formal document, just a description of guidelines we can apply to all SUPs to use until we get the Comprehensive Plan. Mayor Manning suggested the council could produce those guidelines in a work session. Chairman Swerdloff then moved the discussion to the Sexually Oriented Business (SOB) Ordinance. Mr. Chavez said the current ordinance provides for licensing, permitting and location, but the zoning ordinance doesn't recognize that SOBs exist. He said we will have to allow them by right. Mr. Hill agreed and said this is a first amendment issue, noting the city cannot prohibit them, but can control their location. He said our ordinance is based on the Dallas Ordinance which has been upheld in court. He continued stating we need to revisit our ordinance to ensure it is as "tight as can be." With regard to zoning, he said we cannot be too restrictive. Councilman Avey asked if we can designate a new zoning district and Mr. Hill said we can. Councilman Watts said the steering committee mentioned overlaying new zoning and calling it an entertainment district. Councilman Avey asked if something could be on the next council agenda to give the city attorney direction. Mayor Manning, Councilman Dillard and Councilman Kovatch all stated that the City Attorney will already be reviewing the ordinance to ensure that it is up to date. Councilman Watts said (she supposed) that with the Thanksgiving holiday and the packets being out early, there is no chance of any action on either of these issues being on Monday's council agenda. Mayor Manning said he did not know of any action item that is needed. Mr. Hill is going to review the SOB ordinance. Councilman Watts said she doesn't want to ask him to review but to have it ready. Mayor Manning said he did not think it fair to ask Mr. Hill to prepare an ordinance over his Thanksgiving either. Councilman Watts said she knew he (Hill) had looked extensively at the liquor issue and she wondered if it was already planned for the agenda on Monday night. She agreed he should not be asked to do that (over the holiday). Councilman Watts continued, asking if we wanted to wait an additional two weeks or if we need to call a special session. She asked if Sam will be inundated with requests in the next two weeks. Mayor Manning said in all likelihood that will not be a problem. Mr. Chavez said there is no urgency on the SOB ordinance at this time. Mr. Chavez said the Council needs to set a work session on December 4, 1996, to 7 discuss the Land Use Assumptions, future land use plan and the thoroughfare plan. The first public hearing for the land use assumptions is set for December 16. All agreed to set the work session for that time. Mayor Manning adjourned the City Council work session at 7:25 p.m. Chairman Swerdloff called a 10 minute recess for P&Z. APPROVED: ~qilliam W. Manning, Mayor A~'EST: Patti A. Hicks,TRMC, CMC/AAE City Secretary 8