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02 City Council (6/5/03)MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL June 5, 2003 The City Council of the City of Paris met in regular session, Thursday, June 5, 2003, 6:00 P.M. at Paris Junior College, Applied Technology Building, Room 1206, 2400 Clarksville Street, Paris, Texas. Mayor Curtis Fendley called the meeting to order with the following Council Members present: Jim Bell, Jay Guest, Joe E. McCarthy, Francine Neeley, Willie Weekly, Jr., and Benny Plata. Also present were City Manager Michael E. Malone, City Attorney Larry W. Schenk, and City Clerk Mattie Cunningham. City Manager Malone presented the minutes of the June 2, 2003, meeting of the Planning and Zoning Commission and attached hereto as Exhibit A. Mayor Fendley advised the City Council that Agenda Item No. 3, Public Hearing to consider the petition of Henry Starks for a change in zoning from a One-Family Dwelling District No. 2(SF-2) to a Two-Family Dwelling District (2F) on Lot 18, City Block 259, located at 514 25t'' N.E. Street; Agenda Item No. 4, An ordinance amending Zoning Ordinance No. 1710, changing the zoning from a One-Family Dwelling District No. 2(SF-2) to a Two-Family Dwelling District (2F) on Lot 18, City Block 259; Agenda Item No. 5, Public Hearing to consider the petition of David Glass for a change in zoning from a One-Family Dwelling District No. 2 (SF-2) to a Commercial District (C) on Lot 1, City Block 249, located at 2404 Lamar Avenue; and Agenda Item No. 6, an Ordinance amending Zoning Ordinance No. 1710 changing the zoning from a One-Family Dwelling District No. 2(SF-2) to a Commercial District (C) on Lot 1, City Block 249, being number 2404 Lamar Avenue, were tabled by the Planning and Zoning Commission and no action is required for the items. Mayor Fendley declared the public hearing open to consider the petition of E. A. Stewart for a change in zoning from an Agricultural District (A) to a Commercial District (C) on Lot 4, City Block 167, being number 2705 3rd Street S.E. Mayor Fendley called for proponents to appear and Aaron Steward came forward stated that he represented his grandfather, A. E. Steward. He said they propose to build a shop for paint contractors on this property. It will be a 100' x 200' building Regular City Council Meeting June 5, 2003 Page 2 with a house-like appearance and a store front on it. There is an older house on the property that will be removed. He added that there will not be any walk-in business. There will be some early morning activity with vehicles pulling in and loading paint and equipment and leaving out to go to work. Barry Cope came forward representing his father-in-law who owns the lot and stated that the lot next to this property has been commercialized and it is next to the Loop. Mayor Fendley called for opponents to appear and Chad Clair, 2640 3rd S. E. , appeared stating that the property in question is just west of this lot and is directly in front of his home. He further stated that there is a house between the lot that he is wanting to purchase and the lot near the loop that is commercialized. Mr. Clair felt a change would devalue their home. He said the reason they located in town was because of the country atmosphere and the trees and pool on the property in question, and he is going to remove the trees and fill the pool in. He said there would be a home between him and the commercialized lot that is on Loop 286. The lot that is commercialized is behind his home, which is two acres from the highway back, and it is a five acre lot behind it, which is not commercialized on that road anywhere except right on the end of the loop. Ralph Taylor, 2710 3rd S. E., came forward stating that his property is directly across from where they are going to build this building. Mr. Taylor stated that they have lived there for 33 years. He said this is a residential area and this would make a commercial area and there is not another business around them. Mr. Taylor said what they were opposing is the fact that there will be seven or eight crews coming in and out, maybe night activities, or coming in the morning and the evening. Mr. Taylor said there were children in the area and this would create a dangerous area. Mr. Taylor pointed out that the city would be placing commercial zoning at this location and if these people do not build, he questioned what type business could be placed in this commercial zoning. Mr. Taylor stressed the fact that this is a residential area. Councilman Guest asked what the Master Plan called for. Steve Methven came Regular City Council Meeting June 5, 2003 Page 3 forward advising that it shows to be retail and commercial, which is the long term plan for the future. Debra Moore, 2735 3rd S. E., came forward speaking in opposition to the zoning. Ms. Moore said that she lives directly between the commercial property and where they want to build. Mr. Stewart said that he was going to build as far away from the residential area as he could without putting him right next to her property. Ms. Moore stated that she did not want a business next to her home. She said her children cross that street every day. She stated that this is a residential area and it should stay that way. No one else appeared, and the public hearing was declared closed. City Manager Malone presented an ordinance amending Zoning Ordinance No. 1710, changing the zoning from an Agricultural District (A) to a Commercial District (C) on Lot 4, City Block 167, located at 2705 3rd Street S. E. A motion as made by Mayor Pro Tem McCarthy to accept the recommendation of the Planning and Zoning Commission to deny the zoning change. The motion was seconded by Councilman Weekly and carried 6 ayes, 1 nay, Councilman Plata voting no. Mayor Fendley raised a point of order, saying the City Council needed to move back to Agenda Items No. 3, 4,5, and 6. As these items were tabled at the Planning and Zoning Commission meeting, he called for a motion to table these items. A motion was made by Councilman Bell, seconded by Councilwoman Neeley, to table action on Agenda Items No. 3, 4, 5, and 6. The motion carried 7 ayes, 0 nays. Mayor Fendley declared the public hearing open to consider the petition of Benton Rainey for a change in zoning from a One-Family Dwelling District No. 2(SF-2) to a Commercial District (C) on part of Lot 8, City Block 361, located in the 3400 Regular City Council Meeting June 5, 2003 Page 4 Block of Jefferson Road. Mayor Fendley called for proponents to appear and Benton Rainey, 835 39t'' S.E., came forward. He said the National Resources Conservation, Soil Conservation, Farm Services Agency, RCD Conservation Development and Lamar County Soil Conservation are requesting the change because they want to purchase two acres to building an office building. Mr. Rainey said it will house several government offices. Alfred Mackin, 660 Twin Oaks, appeared before the City Council telling them that he is also a director of the Lamar Soil and Water Conservation District. He advised that the district is wanting to build a building for the Farm Service Administration and the Natural Resource Conservation and the RCD District. Mr. Mackin said this will be one building and it will be on the two acres of Mr. Rainey's property that they are going to purchase. David Basinger, Deport, Texas, the Lamar County Soil and Water Conservation Chairman, was present speaking in favor of the zoning change. He said Loop 286 access is very good. They will be out of the way, and all the farmers can come in and out without any problems. Mayor Fendley called for opponents to appear; none appeared; and the public hearing was declared closed. ORDINANCE N0.2003-021 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AlVENDING ZONING ORDINANCE NO. 1710 OF THE CITY OF PARIS, PARIS TEXAS, AND CHANGING THE BOUNDARIES ESTABLISHED BY THE ZONING MAP OF SAID CITY; ESTABLISHING A COMIVERCIAL DISTRICT (C) ON PART OF LOT 8, CITY BLOCK 361, ON PROPERTY BELONGING TO BENTON RAINEY, SO AS TO INCLUDE THEREIN TERRITORY FORIVERLY DESIGNATED AS A ONE-FAMILY DWELLING DISTRICT NO. 2(SF-2); DESIGNATING THE BOUNDARIES OF Regular City Council Meeting June 5, 2003 Page 5 THE COMIVERCIAL DISTRICT (C) SO ESTABLISHED; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000.00; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND DECLARING AN EFFECTIVE DATE, WAS PRESENTED. A motion was made by Councilman Weekly, seconded by Councilwoman Neeley, for adoption of the ordinance. The motion carried 7 ayes, 0 nays. Mayor Fendley declared the public hearing open to consider the petition of Donald G. Wilson for a change in zoning from a One-Family Dwelling District No. 2(SF- 2) to a Planned Development District - Retail Shopping Center (PD-a) on part of Lot 14, City Block 259, being located in the 700 Block of Collegiate Drive. Mayor Fendley called for proponents to appear and Donald G. Wilson, 3310 Stacy Lane, came forward as representative of and part owner in a group called HW Group and they are requesting rezoning of this property. The property is located along Collegiate Drive across from the East Paris Baptist Church. Mr. Wilson said they were asking for new zoning on a part of the property that at this time is zoned Commercial. He explained that there is about 150 feet along Collegiate Drive, a small wedge shape piece that they purchased to tie to their property, and that was already zoned Commercial. Mr. Wilson said they have an offer on the north most 120 feet of this property along Collegiate Drive from Norment & Landers Insurance. Norment & Landers want to buy this property and have instructed HW Group attorneys to draw-up a deed restriction on this entire property. He said that deed restriction will require anyone who builds on the property in the future to have brick construction on all four sides. There will be no metal allowed to show from the street or the back. If they use a metal building they have to completely enclose it in brick. Mr. Wilson said that Norment & Landers will have a deed restriction requiring them to build a conventional type building with a roof that is similar to those in the area and the homes that they will be adjacent to. He explained that this would be a transition building to the rest of the commercial property. They felt that this is a good transition from residential to commercial and with the traffic, he could not see it ever being residential in this area. Regular City Council Meeting June 5, 2003 Page 6 Mayor Fendley called for opponents to appear, and Kelly Ferguson, 2955 Ridgeview, appeared in opposition to the zoning change. She said that she just moved from the country to the city. She knew that Mr. Wilson said he is going to place restrictions on the buildings in this area. She questioned whether the land behind the building is going to turn into multi-family units, apartments, or what. She said that when they moved to Paris, they purchased their first home in this residential neighborhood and there is already heavy traffic on N. Collegiate. She stated that putting another business in here whether it is brick or not is not going to matter. Ms. Ferguson wanted to know why they have to continue turning residential property into commercial property. No one else appeared, and the public hearing was closed. ORDINANCE NO. 2003-022 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AND CHANGING THE BOUNDARIES ESTABLISHED BY THE ZONING MAP OF SAID CITY; ESTABLISHING A PLANNED DEVELOPMENT DISTRICT -RETAIL SHOPPING CENTER (PD-a) ON PART OF LOT 14, CITY BLOCK 259, ON PROPERTY BELONGING TO DONALD G. WILSON, SO AS TO INCLUDE THEREIN TERRITORY FORIVERLY DESIGNATED AS A ONE-FAMILY DWELLING DISTRICT NO. 2(SF-2); DESIGNATING THE BOUNDARIES OF THE PLANNED DEVELOPMENT DISTRICT - RETAIL SHOPPING CENTER (PD-a) ; DESIGNATING THE BOUNDARIES OF THE PLANNED DEVELOPMENT DISTRICT - RETAIL SHOPPING CENTER (PD-a) SO ESTABLISHED; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000.00; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND DECLARING AN EFFECTIVE DATE, WAS PRESENTED. A motion was made by Councilman Weekly, seconded by Councilwoman Neeley, for adoption of the ordinance. The motion carried 7 ayes, 0 nays. Mayor Fendley declared the public hearing open to consider the recommendation Regular City Council Meeting June 5, 2003 Page 7 of the Historic Preservation Commission and the Planning and Zoning Commission to establish a Historical Overlay District (HD) and accompanying Rehabilitation Standards for a substantial portion of the Downtown area, and called for anyone who wished to speak to come forward. Barbara Wilson, 3110 Stacy Lane, came forward giving background information about the certified local government status of the City of Paris. She said that the city applied for and became a certified local government in January of this year. She said that certified local government status is the economic tool they have chosen to use, and it is being used by towns and cities in the State of Texas to help revitalize aging city centers and downtowns. Ms. Wilson advised that this creates a partnership with the State and Federal government to encourage reinvestment in the aging part of the city. Certified local governments accomplish revitalization by creating a Buildings and Standard Commission and creating a Historical Preservation Commission. These commissions allow the city to deal with burned-out, abandoned, and neglected properties, which this city has an enormous amount of. They are not generating income for the owners, and they are not generating sales tax revenue for the city and the schools. People can be encouraged to revitalize or put their resources into worthy historic structures when they know the Buildings and Standards Commission is taking care of the neglected properties that are devaluing adjacent properties. Their investment can be more secure when they know that when a neighbor neglects or abandons their property something can be done about it. If they are in a historical overlay district, these property owners will also know that the Preservation Commission can help them access federal funds and state monies for historic properties and the city and school tax relief can be enacted for properties designated in a Historic District. To this end, they are asking the Council for approval of this Historic Overlay District. Ms. Wilson stated that the incentives that come along with being a Historic District and being a Certified Local Government can only benefit property owners. She said that it can also benefit our city, schools, and can increase the quality of life. Councilman Bell requested that Ms. Wilson explain the procedure that a property owner would go through to change their property and add on to it; removal of a Regular City Council Meeting June 5, 2003 Page 8 structure that needed to be demolished; or what they would do to maintain their property, such as put a new roof on. Ms. Wilson explained that ordinary maintenance, which would be painting and simple repairs such as roofing, do not require permits by the City of Paris. She said that even before this was started there were permits required to do new construction, major construction, removal of structures and things like that. You had to go to the city to get a permit to do these things, and you still have to do that. She said that if you are in the Historic Overlay District, city staff will refer your request to the Historic Preservation Commission. If you are proposing a major change, the Commission will look at it to see if it is appropriate for the area. A major change in the way a building looks will probably come to the Commission, which meets every thirty days, or it can meet on demand. They will have time to talk about it and figure out the most economic way to do what they are trying to do and see if there are government funds available. They would request a variance or a Certificate of Appropriateness. If it is approved then they will grant a Certificate of Appropriateness if it is major construction. If you are requesting something minor, it can be handled that day of or within a five day waiting period by the Preservation Officer, who is a City of Paris employee and a member of the Commission. Councilwoman Neeley wanted to make clear that routine maintenance does not require anything. Ms. Wilson assured her that it did not. Councilman Plata questioned whether there is a form or pamphlet or something that you can give the people with the requirements that are needed to do the additions to their property. Ms. Wilson said that they hoped that, through a series of education steps that they can take, to make people more familiar with what can and will happen, that people would come to them to ask questions first before they would invest with an architect or whatever. She said the makeup of the Commission is pretty much spelled out and there are professional people with a lot of knowledge about building on the Commission. She also advised that they Regular City Council Meeting June 5, 2003 Page 9 have access to state and federal Architects who give them a lot of information. As they are dealing with historic properties, those things can be talked through, and planned ahead before they start trying to get building permits to do things. Councilwoman Neeley asked if this includes the commercial downtown property. Mrs. Wilson said that was correct. She said that this is the overlay district as it is proposed and it corresponds to a district that was recognized in 1985 by the National Register when a historical survey was completed and it is already considered a National Register Historic District. She said they are simply incorporating it into the local Code of Ordinances so that they can protect what is there. Councilman Guest wanted to know if there was anything like a flow chart to simplify the process. Ms. Wilson said they could create something like that. Councilman Guest said that would eliminate a lot confusion. She said they could do that very quickly and get that out as they have been talking about having a town meeting format sort of thing for everybody that is in that district to come back. Ms. Wilson informed the Council that everyone in the district has been sent certified letters of the hearings. Arvin Starrett, 629 S. Church, came forward stating that the subject at hand is simply one of entrepreneurial opportunity and economic development for our city. He said that it is an opportunity that is rooted in our past but looks very much to our future. They are talking about a product. He described historic preservation as a product where you live or work, as a product that you drive by every day, and, in most cases, a product that usually is not organized or delivered to the consumer. The economic benefits of this historic preservation, in particular, is both the public policy side and related business and development opportunities in an industry that is called Heritage Tourism. He said that recently the Texas House of Representatives identified the Heritage Tourism Program of the Texas Historical Commission as the most significant economic development program in rural Texas for the past decade. Cities in Texas that have an active historic preservation program can increase property values by as much as 20%. Private property owners invest more than one hundred and seventy-two million dollars in historic building Regular City Council Meeting June 5, 2003 Page 10 rehabilitation annually. That is over 4% of total building construction activity in the State of Texas. Public entities add another twenty million for a total annual historic rehabilitation product in Texas of over one hundred and ninety-two million dollars. The production is history and the consumer is every tourist. The target consumer is the boomers who are going to start touring it for a very long time beginning in the next 3 to 5 years. Mr. Starrett said that their j ob is to figure out the delivery system. In Texas, they have found that historic tourism accounts for 11 % of all travelers to the state and that segment is worth 1.4 billion dollars. It creates more that 32 thousand jobs each year in Texas. Mr. Starrett advised that for every one million dollars spent by those travelers, 22 jobs are created, 480 thousand dollars of income is created, 92 thousand dollars in state and local taxes result, and the gross state product goes up by 825 thousand dollars. Historic preservation is our city saying that this is worth our investment. Mr. Starrett urged passage of this ordinance. Pike Burkhart, 524 Church Street, was present stating that he was present to represent himself and Keep Paris Beautiful and was speaking in favor of this proposal. Mr. Burkhart said they believe it is the cornerstone for excellence for our community. They have been an advocacy of this since it's inception and they hoped that the City Council would vote in favor of the ordinance. Garvey House, 29 E. Plaza, a property owner downtown, was present speaking in favor of this proposition. He had heard the argument for and against this proposition and he understands there are good reasons for people to be concerned. Mr. House said a lot of people are concerned because they do not know the requirements of the ordinances. He said it is his understanding that they cannot make someone to things to their home. If an owner want to remodel or reconstruct something on his property he would need permission. He felt that the process discussed by Councilman Bell, Councilman Guest, and Mrs. Wilson would help everyone understand what they can do. Mayor Fendley called for opponents to appear, and Dorothy Rader, 2565 Clark Lane, appeared stating that she has been in the City of Paris since she was 13 years old and she is now 72 years old. She also stated she did not know if she was for Regular City Council Meeting June 5, 2003 Page 11 or against it, but she needed to ask a few questions. Ms. Rader said she wanted to know who this we is, and who this person is, and who the committee is that they go to if they want to make change in their property or put a shingle on their roof. She wanted to know what to do. Their buildings are beautiful. They own the old Sears building, the old Kress building, and the Gene the Jeweler building. She stated that they also own the old Belk building and it is beautifuL Ms. Rader said it appears that they are getting into bureaucracy and she wanted to know who the people are that they will meet with who will help them if they need to do something. Ms. Rader said she thought that downtown Paris is beautiful. There may be a few exceptions. Ms. Rader said that parking is the worst situation and she did not know what could be done about it. Ms. Rader felt that some of the people that work downtown need to go to another place to park and not park in front of their business. Betty Stokes, 136 Bonham Street, came forward stating that she was not for or against this. She said that all of the downtown people feel like this was thrown on them and they had no say in the matter. Ms. Stokes said she had checked on little things regarding her business as to what she would have to do for different towns that she used to lived in. She suggested taking areas downtown that were not in use and making two level parking garages for workers or for c u s t o m e r s . Ms. Stokes said that the lack of parking is what hurts downtown. Freddy Swaim, 375 Laurel Lane, came forward stating that if we are going to do this, he thought that the City of Paris should get behind this and step out f r o n t and put some money up there like they talked about, like Clarksville, Tyler, Ft. Worth, and Sulphur Springs. He said that the city should start Monday morning getting the asphalt off our pretty brick streets downtown. He said that would be a good start and it would not cost much. He said that the most historical street we have in Paris is Bois D' Arc Street. He suggested that we take the asphalt off of that street and reveal the bois d' arc blocks that the street was originally built from. This is something that the City of Paris could do and it would not cost very much. Mr. Swaim said that they wanted to make Paris Regular City Council Meeting June 5, 2003 Page 12 beautiful and historic like it was in 1919, and that Bois D'Arc Street may be t h e o n 1 y o n e like it in the country. Mr. Swaim suggested that we put it back like it was. He wanted to know if the city has the money to do that, or are there grants for this. He said the brick streets are really nice. Gene Rader, 2565 Clark Lane, appeared stating that the little lady did not explain how the laws and the rules are done. If you vote for this historical ordinance you are going to have laws that are going to kill downtown. Mr. Rader stated that he was downtown when Gibson's came to Paris and he was downtown when Mirabeau shopping center came to Paris. He spoke of the difficulties of being in a whirlwind like that and having to pay for your bread and butter. Mr. Rader said they did not need any laws to tell us how to maintain their property. That is not the American way. He said for the Council to think about that because you will be gone in a few years and he will never ask this Historical Commission for anything; but some of his children and grandchildren may want to stay downtown. He said that if the City Council lets this go through you will kill downtown because owners will not be able to sell their property. There will not be anyone that is going to come in with laws where you have to hire an architect to tell you what kind of roof you have to put on your building. Mr. Rader said he had been downtown for 57 years and has lived through it all, and said it has been a hard fight. Mr. Rader stated that these people who are wanting this Historical District should go outside of town where they are going to build their shopping center and build them an old town. No one else appeared, and the public hearing was declared closed. ORDINANCE NO. 2002-023 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AMENDING ZONING ORDINANCE NO 1710 OF THE Regular City Council Meeting June 5, 2003 Page 13 CITY OF PARIS, PARIS, TEXAS, AND CHANGING THE BOUNDARIES ESTABLISHED BY THE ZONING MAP OF SAID CITY; ESTABLISHING A HISTORICAL OVERLAY DISTRICT FOR A SUBSTANTIAL PORTION OF THE DOWNTOWN AREA, IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE PLANNING AND ZONING COMMISSION, AND THE HISTORICAL PRESERVATION COMMISSION, WHILE PRESERVING THE RESPECTIVE EXISTING USE AND ZONING DESIGNATIONS OF THE PROPERTY INCLUDED THEREIN; DESIGNATING THE BOUNDARIES OF THE HISTORICAL OVERLAY DISTRICT SO ESTABLISHED; PROVIDING FOR A PENALTY NOT TO EXCEED$2,000.00; APPROVING REHABILITATION STANDARDS APPLICABLE TO SAID DISTRICT; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND DECLARING AN EFFECTIVE DATE, WAS PRESENTED. A motion was made by Councilwoman Neeley, seconded by Councilman Guest, for adoption of the ordinance. Councilman Bell wanted to know if there is a variance on an appeal process to the City Council from someone who might object to what the Historical Commission did. Councilman Bell said they received a letter today that talks about the fact that the City Council does not necessarily get to have the final say on some issues. City Attorney Schenk advised that first of all, Ms. Wilson referred to the fact that there is a variance process that is available within the Historical Preservation Commission itself. He said that the commission can address some of those issues under criteria of hardship. He said that, secondly, Section 7-163 of the ordinance provides that a person aggrieved by the decision of the commission relating to hardship or issuance of certification of appropriateness may, within 30 calendar days of receipt of the written decision, file a written application with the city council through the office of the City Regular City Council Meeting June 5, 2003 Page 14 Clerk for review of the decision The City Council shall hold public hearings to consider the appeal and the decision of the City Council is final. After further discussion, the motion carried 7 ayes, 0 nays. Mayor Fendley called for consideration of and action on the Preliminary Plat o f the Hills, Phase IV. A motion was made by Mayor Pro Tem McCarthy, seconded by Councilman Weekly, for approval of the Preliminary Plat of the Hills, Phase IV subject to t h e recommendations of the City Engineer. The motion carried 7 ayes, 0 nays. Mayor Fendley announced that the next item on the agenda was consideration of and action on an ordinance granting a variance from the requirements of Section VIII A, Curb and Gutter, of the Subdivision Regulations of the City in accordance with Section XVI B, Changes and Variations, of the Subdivision Regulations of the City, on Lots 1-4, Block A, Beezley Estates, being located i n the 2200 Block of 36th Street N. E. City Attorney Schenk advised that there is not an ordinance in the council's packet because preparation of the ordinance was depending on the action taken by the Planning and Zoning Commission. City Attorney Schenk said what he had done is given the City Council an opinion that relates to that issue. Betty Beezley, 3640 Brownwood, was present stating that the City Council was familiar with her lots on 36th N.E. as she had given them pictures of the road last week and asked for a wavier of curb and gutter because it could not be Regular City Council Meeting June 5, 2003 Page 15 installed and probably would not be in her lifetime. She said that she went through all the channels and asked for a waiver for the curb and gutter. She was told by the Planning and Zoning Commission to take it up with the City Council, who could help her. When she went back to the City Council, they told her to go back to the Planning and Zoning Commission with a recommendation of the City Engineer for a variance on curb and gutter and it could be granted. She stated that Mr. Hayter took over the meeting, he did not let anyone else have a chance to speak, and she believed that he had made his mind up. Ms. Beezley said that the City Council voted and turned down her variance on the curb and gutter and now she is being told that the City Council can not vote on this because the Planning and Zoning turned it down. She said there has been a lot of mistakes made on her request and she did not know why she has to put up money for curb and gutter which will never be done in her lifetime. A. W. Clem came forward stating that he did not know Ms. Beezley, but she had called him this morning and asked him if he had ever requested a variance from the City Council or the Planning and Zoning and he told her that he had. Ms. Beezley asked if he would look it up in his record and see and he agreed. He also stated that he read about this in the newspaper and some of these things do not make any sense. Mr. Clem said he knew where this property is and the city is never going to, in his lifetime, develop that road with curb and gutter on it; and yet, the city is asking this lady to do that. Mr. Clem said on May 7, 1998, he came before the City Council on behalf of the Joplin Estate on some property on 36th Street which runs all the way through where Rachel Braswell lives and that whole area has never had curb and gutter. He stated that he was asking for a variance for some lots that they were developing. He wrote a letter to the City Council asking for this to be a variance because it would be ridiculous to have a particular short area there with curb and gutter and the expense that would be involved compared with the nature of the road, which he said was not kept up very well out there. Mr. Clem said a variance Regular City Council Meeting June 5, 2003 Page 16 was granted by the City CounciL Mr. Clem said the reason you are seeing so much building out in the county isbecause sometimes the city makes it so very difficult to do something within the city. He said if there is a subdivision that you are developing, an entire complex, and you want this to meet the standards of all of the major subdivisions in this town, you have to curb and gutter, but when you have a small tract like this out there, he did not know why the city would not grant a variance. He did want the City Council to know back in 1998 there was a variance granted. City Attorney Schenk advised that the variance was approved following approval by the Planning and Zoning Commission. He said the problem here is that the Planning and Zoning Commission has voted to deny the variance and a three-quarter vote does not apply for a variance. Mr. Clem said he thought something should be done because this practice takes the right to make a decision away from the City Council. He found it very difficult to see why this commission, which is appointed by the City Council, should have the final say. If that is the case, he thought that some kind of action should be taken to make that commission responsible to the City Council. He said that you can have one person on the Planning & Zoning Commission who can manipulate all of the variance matters. If that is the case the city has a serious problem. Councilman Guest questioned why the size of the lot would make any difference with respect to the drainage and the flow of water. He said that you can get an automatic variance or exception if you have an acre and one-half, but a person has to go through this convoluted process to get a variance on a three-quarter acre lot. Councilman Guest questioned as to what is done with money paid in when no variance is given and the curb and gutter is not built at that time. He said that he understood that the money went to the General Fund. If no improvements were ever built, what would happen to the funds paid in? Regular City Council Meeting June 5, 2003 Page 17 Mayor Fendley stated that we need to look at the ordinances because there does need to be consistency. He noted that the City Council can override Planning and Zoning on a variance on a zoning issue, which is very important, while the City Council cannot override Planning and Zoning on something like this, which is not nearly as important. Mayor Fendley said that Council needs to look at the ordinance and see that they all have the same consistency. City Attorney Schenk advised that the difference is under the state zoning law which provides for a three-quarters rule in two instances. One is when a protest is filed and the second instance is when the Planning and Zoning Commission makes a recommendation to deny a requested change in zoning. In both instances, City Council can grant the requested zoning change with a three-quarter vote in favor of the change. This ordinance is a city subdivision ordinance; it is a separate instrument. City Attorney Schenk said if the City Council wants to change the ordinance, City Council may do so, as it is not based on State law. Councilman Bell said he would like to know, if money is paid into the city for curb and gutter, what happens to that money if the curb and gutter is not built. City Manager Malone said he believed that the City would hold it for seven years. Councilman Bell asked, then, after seven years, what happens to that money. City Manager Malone advised that he thought it would go back to the person that put up the money if it was not used. Councilman Bell said it would be important that this City Council knows exactly what the city has been doing with that money; if it is being held, what fund it is being held in and what the balances are. If it is being returned to the developers, who has had money returned to them, and if it is being put in the General Fund and spent, when d o e s that take place. If it is going back into the General Fund, the city is not spending it to put gutter at that location, the city needs to be spending it to put Regular City Council Meeting June 5, 2003 Page 18 in gutters in other locations that the city desperately needs. We have unsightly streets throughout the city, but he did not think the money should go to the General Fund to pay for whatever else, or what the City Council would want for it to do. He said that money needs to be used for the purpose for which it was collected. If the city is going to collect that money from any developers, he indicated we need to be collecting it from all of the developers and be spending it putting in curb and gutters in Paris somewhere after a period of time. He wanted this ordinance re-written by Monday night to state that the City Council has the right to override the Planning and Zoning Commission with three-quarters of the City Council voting for the variance, and he made a motion to table this request for variance until Monday night and he would like to have the ordinance come up variance second. The motion was seconded by Councilman Guest. After discussion, Councilman Bell amended his motion to bring this back on June 16, 2003, with the variance and with the change in the ordinance. The motion carried 7 ayes, 0 nays. Mayor Fendley announced that the next item on the agenda was consideration of and action on the Preliminary Plat of Lots 1-4, Block A, Beezley Estates, being located in the 2200 Block of 36th Street N.E. A motion was made by Councilman Bell, seconded by Councilwoman Neeley, to table action on the Preliminary Plat until the 16th of June, 2003. The m o t i o n carried 7 ayes, 0 nays. A motion was made by Councilman Bell, seconded by Mayor Pro Tem McCarthy, for approval of the Preliminary Plat of Lots 13, 14, 14A, and 15, C i t y Block 102, located in the 1500 Block of Lamar Avenue, subject to the Regular City Council Meeting June 5, 2003 Page 19 requirements of the City Engineer. The motion carried 7 ayes, 0 nays. Mayor Fendley advised that the next item was consideration of and action on the Final Plat of the River Oaks Subdivision, being located in the 3000 B 1 o c k of Aikin Drive. He further advised that the Planning and Zoning Commission had denied the Final Plat of the River Oaks Subdivision. Shawn Napier, City Engineer, came forward telling the City Council that when the Preliminary Plat for this subdivision came up, they requested the off-site easements to be in place prior to any construction whatsoever. He said that Mack Ross had been trying to get those easements. He said he thought that Mr. Ross has four of the five easements at this time and he is having a problem getting the last one; but his requirements have not been satisfied to date. Councilman Plata wanted to know what happens if that one person will not sell the property. Mr. Napier said in that case you would have to look at alternatives. Councilman Plata asked if he really knew for sure. Mr. Napier said without looking at it further and going into more detail, he would want to try harder to get the easements. On a question from Councilman Bell regarding condemning the property, City Attorney Schenk stated that, in his view, condemning the property would be furthering a private venture. He said the city's obligation and limits on our police power side is to exercise that power of condemnation to serve the general purpose and this would be furthering a private developer. Mack Ross came forward and explained that he has been trying to meet with the owner of the property for several months. The owner finally agreed to meet with him but she wanted to wait until she could see the actual easement that the Regular City Council Meeting June 5, 2003 Page 20 attorney prepared and the engineer approved and which they had gotten a couple of weeks ago. He and the owner had met for two hours this morning and made progress and she finally put a price on the easement. Mr. Ross said that she had been told that the City of Paris cannot condemn the property. Councilman Plata stated that he disagreed with that and discussed a similar situation in Ft. Worth that he found on the internet. City Attorney Schenk then referred to a recent case regarding condemnation, which stated, "Taking property for private use rather than public use violates due process and constitutes an illegal fraud on property owners, even if there is not fraudulent intent." City Attorney Schenk said the point being, in his view, Mr. Ross has approached this woman and it is not a proj ect that the city has been involved in. The right-of-way on either side of this lady would be obtained or go across the developers property. It would be very difficult to prove this is truly a public consideration rather than furthering a private subdivision. Councilman Bell said that if Mr. Ross is unable to obtain the easement, you did mention the alternate was a lift station. The City Engineer said that was true. Councilman Bell wanted to know where on this plat a lift station would go and what would it cost the city to maintain this lift station. Mr Napier said that Mr. Ross would maintain it for one year until the city accepts the lift station. Councilman Bell said it then becomes a public situation and at that point in time, the city could say they did not want a lift station because is will cost the taxpayers. The City then goes back in and condemns the property and puts in a gravity flow line. Councilman Bell asked where would it go and what would it cost to put it in and which way would they go with a lift station. Mr. Napier said basically you put the lift station in the low point and that is where he shows a manhole before it goes south. Councilwoman Neeley wanted to know if all avenues with the lady been exhausted. Mr. Ross said she had been trying to meet with him for several Regular City Council Meeting June 5, 2003 Page 21 months and she finally agreed after they got the actual easement that the attorney prepared and the engineer approved, which they received about a couple of weeks ago. He said they met two hours this morning and they made a lot of progress and she has place a price on the property. Mr. Ross said that she has been told that the city cannot condemn the property. Mr. Ross said he disagreed and some other legal minds disagree, and the same law that Mr. Schenk read below is an option for a city to condemn. City Attorney Schenk advised that is a general statement of the city's power to condemn. City Attorney Schenk said if this City Council instructs him to condemn this property, he will do his dead level best to do so. After further discussion, a motion was made by Councilwoman Neeley to table action on this item until the June 26, 2003, meeting• After further discussion, Councilwoman Neeley withdrew her motion. A motion was made by Councilman Plata to follow the Planning and Zoning Commission's recommendation to deny the Final Plat of the River Oaks Subdivision. The motion was seconded by Mayor Pro Tem McCarthy. The motion carried 7 ayes, nays. Mayor Fendley advised that regarding appointments to committees and boards, they were unable to make contact with some of the people but they would address Agenda Items 20-A, 20-C and 20-F, but Agenda Items 20-13, 20-E, and 20-G will be placed back on the agenda for Monday night. Resolution No. 2003-097, a resolution of the City Council of the City of Paris, Paris, Texas, appointing members to the Band Commission ofthe City ofParis; making other findings and provisions related to the subject; and providing for an effective date, was presented. A motion was made by Mayor Pro Tem McCarthy, seconded by Councilman Weekly, for approval of the resolution. Regular City Council Meeting June 5, 2003 Page 22 The motion carried 7 ayes, 0 nays. A motion was made by Councilman Bell, seconded by Councilwoman Neeley, to table action on appointing members to the Board ofAdjustment. The motion carried 7 ayes, 0 nays. Resolution No. 2003-098, a resolution of the City Council of the City of Paris Paris, Texas, reappointing Brad Archer, Chad Brown, and Mary Crumpler as members of the Building and Standards Commission for terms of two years, beginning July 1, 2003, and ending June 30, 2005, was presented. A motion was made by Councilwoman Neeley, seconded by Councilman Bell, for approval of the resolution. The motion carried 7 ayes, 0 nays. Resolution No. 2003-100, reappointing Joyce Kennemer and Sarah Gambill and appointing Jackie Alsobrook to serve as members of the Library Advisory Board of the City of Paris for terms of three years, was presented. A motion was made by Councilman Bell, seconded by Councilwoman Neeley, for approval of the resolution. The motion carried 7 ayes, 0 nays. A motion was made by Councilwoman Neeley, seconded by Mayor Pro Tem McCarthy, to table action on appointing members to the Paris-Lamar County Board of Health. The motion carried 7 ayes, 0 nays. Resolution No. 2003-100, reappointing Barbara Forrest, Cleveland L. Thomas, and Russell McCain to serve as members of the Planning and Zoning Commission of the City of Paris for terms of three years beginning July l, 2003, was presented. A motion was made by Councilwoman Neeley, seconded by Councilman McCarthy, for approval of the resolution. The motion carried 7 Regular City Council Meeting June 5, 2003 Page 23 ayes, 0 nays. A motion was made by Councilman Bell, seconded by Councilwoman Neeley, to table action on appointing a member to the Traffic Commission. The motion carried 7 ayes, 0 nays. City Attorney Schenk presented the following petition for rezoning: Ronald Kyle, Lot 26, City Block 296, from Commercial District to Commercial District with Specific Use Permit (52) signs and Billboards. Mayor Fendley referred the petition to the Planning and Zoning Commission for their study and recommendation at their meeting scheduled for July 7, 2003, and before the City Council July 10, 2003. There being no further business, the meeting was adjourned. CURTIS FENDLEY, MAYOR ATTEST: Regular City Council Meeting June 5, 2003 Page 24 MATTIE CUNNINGHAM, CITY CLERK