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HomeMy WebLinkAbout12/27/1996 City Council MINUTES OF THE CITY COUNCIL MEETING HELD ON DECEMBER 27, 1996 The Special Session of the City Council of the City of The Colony, Texas was called to order at 7:00 p.m. on the 27th day of December, 1996, at City Hall with the following Council roll call: William W. 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 and with seven present, a quorum was established and the following items were addressed: 1. PLEDGE OF ALLEGIANCE 2. RECEIVE REPORT FROM MAYOR MANNING REGARDING ALCOHOL MATFERS AND DISCUSSION REGARDING SAME Mayor Manning addressed the council and the audience, stating this matter has been wrestled with for some time and in an effort to resolve the issues he met with the principles of various interested parties regarding liquor stores (along 121). He shared with them the council's concern for the number of liquor stores on 121 and ask how that number can be limited to satisfy both the businesses and the council. The Mayor continued, stating we currently have applications pending from Centennial at Paige and 121 and from S&S Liquors at 423 and 121. A third company, Goody-Goody, is in negotiations with Centex for property between Paige and Blair Oaks. The deal is not complete at this time. Mayor Manning indicated on the map where the existing applicants are requesting these stores. Centex representative Steve Bilheimer agreed there would be only one store between Blair Oaks and Paige, if indeed the Goody-Goody deal is done. JNC representative Bill Shevlin believes his partner will agree to only one other store, in a shopping center, not free-standing. And they all agree that due to the limited access which will be along 121 when the freeway is complete that it is unlikely stores would be located anywhere else. They did say it might be possible to place one at the far west end at Standridge. All have agreed to limit the number to no more than 5, 3 free standing and two in shopping centers. If the Goody-Goody deal does not go through there may not be one in that location at all. These investors have paid between $20.00 and $24.00 a square foot for there land which is substantial investment. Mr. Jeff Stone said that two restaurants interested in his shopping center have already pulled out and the banks are getting nervous 2 due to the questions about the sale of alcohol. Mayor Manning said we must consider the economic impact of these developments and if we delay them, they may go to Frisco and The Colony will be left with those businesses that can't develop there (Frisco). Mayor Manning said the city made a major move in getting Josey Lane opened and the development we see today would not be happening if it were not for that action. He said we must be cautious and keep the standards in these developments high. Pete Eckert addressed the council, first responding to a letter received by Mr. John Hill (Cowles & Thompson) from Mr. Ed Walts (Strasburger & Price), attorney for Centennial. Mr. Eckert said the letter makes the point that everything we enacted regarding liquor after June 11, 1987 would be pre-empted by Texas Alcoholic Beverage Commission (TABC). Mr. Eckert gave background on the two cases cited in Mr. Walts' letter; City of Sherman and the Dallas Merchants' Association. The Sherman case dealt with percentage of food and alcohol sold at businesses and the Dallas case dealt with distance requirements. Both cases were struck down by the higher court. Mr. Eckert said our SUP ordinance is dated prior to June 11, 1987 and should be enforceable, however those ordinances passed after that date, may not be valid. That would have to be decided by a higher court if litigation is pursued. He said although, in the cases cited by Mr. Walt the cities's ordinances were not upheld, that does not mean our ordinances would not be upheld. He did state however, that we need to be cautious, advising that SUP's cannot be denied without testimony giving valid reasons for denial. He said the denial must have proper justification, noting that is true for any SUP, not just those dealing with alcohol. Councilman Stanwick asked Mr. Eckert to explain the statement made during discussions about this matter, "If reasonable minds can differ." Mr. Eckert said the decision must be based on facts, not on personal feelings or opinions. Mr. Eckert said if the council denies an SUP, goes to court and it is found that the council acted arbitrarily and capriciously, then the court will find against the city. He said individual Councilmembers are immune from personal litigation if they act in their legislative capacity. Mr. Eckert then reminded the council of the Mayor's suggestion of allowing a maximum of 5 (liquor stores), stating that is even better than the Planner's scenario of 7. Councilman Watts asked if citizen input received at previous meetings and the EDC resolution presented earlier would be considered as testimony if these matters go to court. Mr. Eckert advised the citizen input would, and the EDC resolution might be if it was part of the record. Councilman Watts asked if the EDC plan (vision), the Ray Turco survey and existing ordinances would be considered testimony. Mr. Eckert said the EDC plan might possibly be used, the survey would go to the weight of the issue and the ordinances would be considered as testimony. Councilman Watts asked if Mayor Manning's memorandum of September 1996 indicating that the city has talked about this for a while would be considered testimony. Mr. Eckert said it could be. Councilman Watts said the Mayor had talked about the investment of the land owners and stated that the citizens have made an investment too. She said considering the 60 people that spoke or sent letters, using an average of $75,000 per person, that is over five million dollars invested in the city. She went on to say there is limited property along S.H. 121 and it should be the best possible and meet the needs of the citizens. Councilman Watts said she had spoken with a representative from Loews Building Materials, a company based in North Carolina, which is moving into the area. She said they told here they have a corporate covenant which will not allow them to place a store in the area with a liquor store. Councilman Watts said she also spoke to someone in the corporate offices of Wal- Mart. She was told they want a super store in The Colony, but not has been done by the City toward that. She said their corporate covenant will not allow them to locate in the area of a liquor store. Councilman Dillard said that the P&Z recommended approval of these SUP's and that would be part of the testimony as well. He said P&Z looked at the facts, which is what the council should be doing. These two businesses are committed to come here, the businesses Councilman Watts referred to are not. Councilman Dillard said we have not discussed this issue for a very long time as was indicated by Councilman Watts. He said he believes the city would lose if sued. Mr. Eckert said if the city does limit the number of liquor stores along 121 they must be careful not to get into contract zoning. He said the mayor's suggestion made it clear this was some being done voluntarily by the property owners and business people. Mayor Manning said he found (Councilman Watts') comment strange regarding Wal-Mart since Jeff Stone, owner of the property at 423 and 121 (proposed site for one of the liquor stores) said he had spoke to Wal-Mart and they expressed an interest in putting a super store or a Sam's behind the S&S Beverage store. Councilman Watts said she understands that if we let one liquor store in we cannot keep others out. Mr. Eckert said each case must stand on it's own. The council can reach a place where enough is enough, but the records must be good. Councilman Longo said sine this is an emotional issue, he had come up with a plus and minus system. He cited filling vacant land, increasing tax base, etc. as pluses, and on the minus side he cited taking revenue away from existing businesses in The Colony~-O~T,~-g-g000 Councilman Stanwick said all the items mentioned by Councilman Watts earlier are what he calls subjective. He said it is difficult to define family values, images, etc., because each person may have a different concept of those things. He said as for adjacency, there is nothing even close to where these stores are proposed. Councilman Stanwick asked Mr. Eckert if he had heard any objective testimony that would lead him (Eckert) to believe that the city has a strong defense for denial of these SUP's. Mr. Eckert said if the SUP ordinance is good, then it can be used and that would be done first. He said there is always some subjective and some objective evidence. He said the council has to weigh that and make the best decision they can based on the facts. Councilman Stanwick said he has asked time and time again what is the magic number. Councilman Watts said zero and now I hear 5. What is the number? Let's decide and let it be known. Councilman Kovatch asked Mr. Eckert if the council could pass a resolution on January 6, 1997 that establishes nor more than two liquor stores will be allowed along 121, citing the reasons already given. He said that would allow the two already in the process and there would be no more. He asked if that would be defensible in court. Mr. Eckert asked if his intent was to amend the zoning ordinance or comprehensive plan. Councilman Kovatch said (his intent is) to do whatever it takes, outlining all the reasons. 4 Mr. Eckert said such a resolution would go to the weight of the issue, but would not be a totally determining factor. The question would be if this (resolution) is a rule and that it is being passed after June 1987. Mr. Eckert said the resolution could be a guideline but not a hard and fast rule. Mr. Eckert said we (legal counsel) has steadfastly advised not to amend any ordinance dealing with alcohol if they were passed before June 1987. Councilman Watts asked if deed restrictions change when the property is sold and Mr. Eckert advised that once filed, a deed restriction is in place forever. He noted that the city does not enforce deed restrictions, but that he believes they can be used to achieve what Mayor Manning suggested. He said again, the city must be cautious. Councilman Watts said she thinks putting out the number 5 is just a tactic to make people think that when we settle for 2 we are lucky because we didn't get 5 and reality, we could have zero. Mayor Manning asked the council where we are going on January 6 with this matter. He said of course there would be no vote tonight. Councilman Watts said she thinks it has been discussed and it is time to vote on the 6th. At this time, Mayor Manning allowed citizens to speak. Margaret Wallis, 4636 Archer Drive, voiced her opposition to allowing any liquor stores on 121, stating it is not in the best interest of the city, that it would not enhance the quality of life. She asked the council not to be scared that without these liquor stores the city will miss a golden opportunity. She said she fears this will turn into another Harry Hines (Boulevard in Dallas, Texas). Kathy Ferguson, 4148 Durbin Drive, asked if we know the economic status on the existing liquor stores, how much revenue the new stores would bring in, if all the new stores are owned by one company, what impact The Colony has on the development of 121, who will buy all this liquor and why we are not look at other stores for the area. Joe Agnew, 5301 Nash, said he thinks the argument is good in both directions. He said he also does not want a line of liquor stores on 121, but he does not believe that will happen. He said it will never turn into a Harry Hines, the standards are too high. He said the emotions have to be taken out of this issue. Mr. Agnew said the council cannot decide what businesses fail and which ones make it. He said he fears litigation, although that should not be the reason for making a decision. He fears litigation will once again delay growth. He asked that the council work with the land owners and try not to be confrontational. 3. CONSIDER EXTENSION OF AMENDED EMPLOYMENT AGREEMENT FOR JOHNNY SMITH, CITY MANAGER Mayor Manning said he believes it is very important to keep continuity at the helm (of the city). He said there are several crucial issues which Mr. Smith has been involved with and which need to be resolved, and suggested a 90 day extension so Mr. Smith can try to complete these matters. The Mayor then allowed citizen input. Joyce Fulco, 4712 Clover Valley, said she would like to see closure on this matter. Mr. Smith has already been paid $38,000. Patti Hicks is very capable of running this city and has capable staff to assist. 5 Bernetta Henville-Shannon, 4156 Ballard Trail, said she was glad the city attorney was present because she thinks the people need to know the liability here. She asked what the city's liabilities are and if Mr. Eckert has reviewed the amended agreement. She said the people understood there was a unanimous agreement by council to accept the resignation and asked how a resignation is extended. She asked about the money paid out, how much additional money this will cost and if it is legal. Ms. Henville-Shannon asked the council what has changed to warrant this extension. Kathy Ferguson, 4148 Durbin, asked how we are approaching the search for a new city manager, if any applications have been received, if this extension will be considered contract labor, how this affects the money already paid and if this is what we want why we don't just keep Mr. Smith. Rich Lewis, 5016 Ashlock, said there is no one to step in for this man. Mr. Lewis said (Smith) has integrity and urged the council to approve the extension. He said the search should continue so we can find someone the council can work with, the council can believe in and who can direct the city. He said it won't be easy to fill this position. He expressed concern for what is going on and said he does appreciate the time the council gives, even though he does not agree with everything they do. He again asked them to keep Mr. Smith in the City Manager position. Councilman Dillard cited several key issues going on right now, i.e., regional wastewater treatment plant, railroad condemnation, Wynnewood lease. Motion to extend the amended employment agreement for Johnny Smith for a 90 day period - Dillard; second - Stanwick. Mayor Manning stated the only amendment is the termination date. It would be moved to April 6, 1997 instead of January 6, 1997. The duties, salary, etc. would remain the same. Councilman Watts said there are things should would like to discuss that would be better done in executive session. Mr. Eckert said it can be, however, Mr. Smith requested this be discussed in open session. Councilman Avey said the Mayor is requesting the council to vote on this when there is nothing in writing. Mayor Manning explained the agreement has not changed except for the date and all the council was present and discussed the amended agreement so he thought it was not necessary to have it copied again. Councilman Watts asked what (would happen) if the council wanted to make changes to the contract before it was approved and asked who requested this item. Mayor Manning said he requested the item for the reasons cited earlier. Councilman Watts said she was invited to lunch several months ago with two developers and they were discussing this issue. She continued stating that one (developer) told her he was going to hire Johnny when he left the city. She said that would mean Johnny would be negotiating on matters that he would later be working on with the developer and she felt that was a conflict of interest. Councilman Watts told Mr. Smith this has nothing to do with his integrity. Mr. Smith responded that it does. Councilman Watts continued stating that this is business and that it is not uncommon in the business world for 6 agreements to be made that an employee will not work for a competitor for a certain period of time, and said this would be a similar situation. Mr. Smith responded stating that he was not privy to the conversation she had with a developer but stated that he does not have an agreement with any developer regarding future employment. He said he is very aware of conflict of interest matters and that is careful not to let that happen. Mr. Smith said he was asked if he could agree to continue for the sake of continuity in the city and he said he would. He said he would not agree to any amended to the contract, other than the 90 day extension. Councilman Longo told the Mayor that he (Mayor) had sandbagged him (Longo) because the Mayor did not call and ask him (Longo) what he thought about this item. Mayor Manning stated that he will not call the council and to find out their vote on any issue. The vote was then taken on the motion. Motion carried with the following roll call vote: Aye - Stanwick, Dillard, Kovatch, Manning No - Longo, Watts, Avey With no further business to address, Mayor Manning adjourned the meeting at 9:00 p.m. APPROVED: William W. ~la~nin~ ATI'EST: Patti A. Hicks, TRMC, City Secretary 7