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08.28.2003 CC Minutes - Special2944 MINUTES KENNEDALE CITY COUNCIL SPECIAL MEETING -AUGUST 28, 2003 405 MUNICIPAL DR. - KENNEDALE MUNICIPAL BLDG. COUNCIL CHAMBERS Mayor Wright called the meeting to order at 4:15 p.m. Members present: Mayor Wright, Council Members Clark, Mitchell, Vaughn, and Kovach. Council Member Barrett arrived at 4:58 p.m. Council Member Kovach departed at 5:50 p.m. Members absent: None Staff present: David Miller, City Manager; Margaret Eichelberger, Assistant to City Manager; Kathy Turner, City Secretary; LiJen Lee, Director of Finance; Jim Rutledge, Police Chief; Dan Dittfurth, Fire Chief; Don Burns, Director of Public Works, and legal counsel Wayne K. Olson. A. PUBLIC HEARINGS 1. To receive citizens input on the proposed budget for fiscal year 2003-2004. The following person registered against the proposed budget for fiscal year 2003-2004 Robyn Clark, 1214 Dan Gould, Arlington, Tx. 76001. With no other persons registering to speak for or against the proposed budget, Mayor Wright closed the public hearing. 2. To receive citizen input regarding a 2003 proposed tax rate of $0.777446 per $100 of taxable value. Persons in attendance who addressed Council in opposition to the proposed tax rate of $0.777446 per $100 of taxable value were: Sondi Albro, 708 Indian Springs, Kennedale, TX. 76060; Dorothy Everett, 6575 Hudson Village Creek, Kennedale, TX 76060; Johann VanBeest, 6500 Virginia Square, Arlington, TX 76017; Frank Fernandez, 911 Shady Vale Dr., Kennedale, TX 76060. Concerns expressed included economic hardships, and recruitment of commercial businesses to offset the tax base. With no other comments, Mayor Wright closed the public hearing. Next, Mayor Wright entered into Item C, Executive Session at 4:26 p.m., pursuant to Section 551.071 of the Texas Government Code. Mayor Wright reconvened into open session at 5:20 p.m. and continued with Item B, Regular Items. 2945 B. REGULAR ITEMS 1. Consider appointment to the Library Advisory Board. Council Member Vaughn moved to appoint Shirley Jackson to the Library Advisory Board, Place 3 with a term to expire June 2005, second by Council Member Barrett. Motion carried unanimously. 2. Consider action on Mayor's veto on Ordinance No. 254. Council Member Kovach thanked City Manager, David Miller and Mayor Wright for meeting with Mr. Moore. He said at this time, Mr. Moore stated that he is not going to build in the Oak Crest Addition; however, this still requires the City to look for alternative locations. The City is still not in a good position, and that is why the Council voted like they did. He also thanked Council Member Barrett who personally protested the Sexually Oriented Businesses, but Council Member Barrett also understood his fiduciary responsibility to the City, and that is why he voted the way he did. Mayor Wright asked for a motion on the veto. No motion was received, therefore the veto stands and Lot 33, Block 1, Oak Crest Addition will not be designated as a Sexually Oriented Business Site. 3. Consider approval of Resolution No. 165, forming a regional law enforcement mutual aid task force agreement with other area law enforcement agencies. Council Member Barrett moved to approve Resolution No. 165, second by Council Member Clark. Motion carried unanimously. 4. Discussion on proposed budget for fiscal year 2003-2004. Council was presented a final summary sheet for the proposed 2003-2004 budget, which included all ESL's approved, as well as approximately $3,400 to go to a five year vesting plan with TMRS. Additional handouts were presented with various tax rates and reserve availability. It was noted that the proposed budget reflected a one percent increase over the previous budget, and Council Member Kovach thanked David Miller for cutting cost. The water/sewer fund presented reflected the proposed water/sewer rate increase as presented during the budget workshop, which will raise the fund balance to approximately 31.13%. No other discussion, Mayor Wright recessed the meeting at 5:30 p.m. Mayor Wright reconvened into open session at 6:03 p.m. to enter into Item E, Work Session. C. EXECUTIVE SESSION Mayor Wright recessed the meeting at 4:26 p.m. to enter into executive session. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion of any item 2946 posted on the agenda and legal issues regarding amortization of nonconforming uses; reconstruction of Dick Price Road; and litigation, settlement offers, and/or claims regarding the following matters: a. H&A Land Corporation, d/b/a Showtime Cabaret v. City of Kennedale; Cause No. 402-CV-0458-Y b. Jerry Coyel v. City of Kennedale, Cause No. 236-193444-02 c. Police Department issues. d. County of Tarrant, Texas v. Jerry Coyel; Cause No. 348-185513-00 e. Wheeler Amortization Hearing D. RECONVENE INTO REGULAR SESSION AND CONSIDER ACTION, IF ANY, ON ITEMS DISCUSSED IN EXECUTIVE SESSION. Mayor Wright reconvened into open session at 5:20 p.m., and continued with Item B, Regular Items. E. WORK SESSION - 6:00 P.M. 1. Joint workshop with Board of Adjustment Members. Mayor Wright announced that all Council Members were present with the exception of Council Member Kovach. Roll Call was provided with the following Board of Adjustment Members present: Chairman Berry, Vice Chairman Hayes, Gray, Harrleson, Cassady and Alternate Robeson. Alternate Mundy was absent. Also present was Don Burns, Director of Public Works, and Debbie Beane, Secretary to the Board of Adjustment. Mayor Wright then turned the workshop over to Chairman Berry. Chairman Berry stated that a workshop was held several months ago, with the Board asking Council to support them in their endeavors. With this support verbally given, he said several situations have appeared over the last few months, which he would like to address with Council. Chairman Berry then explained the role of the Board of Adjustment in relationship to other City functions. He said that the Board is a quasi judicial board operating as a Court. It is a totally independent board that makes decisions based on facts presented by staff, applicants, and witnesses at each hearing. It should be noted that most of the applicants are in violation of an ordinance or seeking a variance to an ordinance. The BOA must be able to operate without interference by City Council, Planning and Zoning, and or the Staff. Once a decision has been made and if it is not appealed, enforcement of the decision should be required. It is totally inappropriate and equally unethical for a Board member to be questioned after a meeting by a Council Member with an applicant present, and furthermore, telling the applicant that they will help them in way that they can. The Board would prefer if a Council Member feels obligated to attend a meeting, and if they are questioned about a particular case, we ask that the Council Member refer the applicant to Mr. Burns or another staff person familiar with the appeals process. It should be noted that all our decisions are made in accordance with State law and City ordinances, and that they are very consistent in nature. It appears that some enforcement 2947 of a recent decision has been ignored; or we are requested to rehear a case. I have to assume that the request to rehear a case has to do with the hope that the Boards decision will change. Over the past six months, we have been repeatedly requested to review our training materials regarding our positions as BOA. My Board is very knowledgeable, very experienced with 40 percent of the board being on the initial board established since incorporation. Frankly, it is time for City Council and City Staff to understand the Boards position and some of the difficult decisions we make on usual meetings. Each of the decisions that are made is based on factual information presented by City Staff, applicants, and any witness that wishes to address the BOA. During open session, decisions are rendered based on a super majority vote to approve a variance, which is based on our guideline set forth in City ordinances. In motions to approve or deny an applicant, we are encouraged by legal counsel to either approve or deny with or without conditions giving no reasoning as to how the Board came about the decision. The Board is also requested by legal counsel to be consistent in the decisions, and to minimize irrelevant discussions. A flow chart developed by legal counsel is used to assist in the decision making process. A scenario common to the BOA includes an applicant for a variance for a porch or carport that has been constructed, which impedes several feet into a side yard, rear yard, or front yard setback established in City ordinances. The facts indicate that the residential lot is normal in size, and the elevation is flat with no trees. Facts also indicate that a building permit was not obtained or that the building permit did not include the porch or carport in its original design, and the violation was found during the final inspection of the property; therefore the case comes to BOA. The flow chart is then put in use with the facts just presented. The first question is then presented: Is the request for the variance owing to a special condition inherited to the property itself? Remember there are no trees, and the property is relatively flat. It is an oversized lot, and rectangular in size, so the answer would be no. If the answer is no, then the BOA must stop. Stop means the Board is not to grant the variance or should not grant a variance. Berry said, "Lets assume something happened that required the Board to continue on." Next question is, is the condition self imposed or self created? Facts of the case, carport was not on the building plan, put on after the building completed, encroached into a setback -that is self-imposed. Ask the question -was it self-imposed? Yes or No. If answer is yes, then the BOA must stop and not grant the variance. Berry said that this is typical of the cases they hear and are tough decisions. Every case factual information is used to make the decision. We do not look at the individual; we do not look at their standing in the community, as it means nothing to the Board. The BOA is a court and the decisions are based on factual information, and the flow chart presented. The reason to address this issue is due to a recent meeting, the Board was requested to be involved in a closed session dealing with training issues. The Board is very familiar with their responsibilities and the Board is asking Council to do one of two things: either remove the setback requirements in the ordinance or allow the Board to continue using the criteria that has been established. With the above said, an in depth discussion took place on issues relating to BOA decisions. Options available include adhering to BOA decisions, amend current city ordinances, or appoint new board members. It was noted that the Board has had extensive training and all members are well aware of their roles and consistently abide by State law. Decisions handed down by the Board are consistent and final; they are not reviewable by the City Council; can only be appealed in District Court. With cases pending from the Board, the following recommendations were brought about: 2948 I I ` Ii LJ 1. City staff is to obtain more direct information from applicants relating to cases, and verify if case is a variance or special exception prior to scheduling before BOA. 2. Planning and Zoning Commission is to review setback requirements in "OT" Old Town District. After review, forward recommendation to City Council. Timing is essence on this issue as BOA has tabled a case for six months to allow for review. 3. Planning and Zoning Commission is to review fencing requirements. After review, forward recommendation to City Council. 4. Direct all calls relating to BOA decisions to Mr. Burns. 5. Provide monthly updates regarding cases to BOA members. With no further discussion, Mayor Wright thanked the Board for their comments. 1 F. ADJOURNMENT Mayor Wri~ht adjourned the meeting at 7:24 p.m. ~`~ KEN~y , , ,. F •~: ~ ®r., ,` . -~~ Gam;' . ~ ~- =* ~ ir= :a; ;y • ,~ .. '~ .~`: 99 •, ,. ., ., APPROVED: ~-~~~ 203 Mayor, Mark S. Wri t C~~~ Kathy Turner, City Secretary