HomeMy WebLinkAbout2009-05-26 MINUTES OF A REGULAR MEETING
OF THE
EULESS CITY COUNCIL
TUESDAY, MAY 26, 2009
CALL TO ORDER
A regular meeting of the Euless City Council was called to order by Mayor Mary Lib
Saleh at 4:08 p.m. on Tuesday, May 26, 2009, in the Precouncil Conference Room of
City Hall, 201 North Ector Drive. Those present included: Mayor Mary Lib Saleh, Mayor
Pro Tern Tim Stinneford, Council Members Leon Hogg, Linda Martin, Donna Mickan,
Glenn Porterfield and Perry Bynum.
During the precouncil meeting:
• Mayor Saleh reported that the North Texas Commission Executive
Committee voted to provide the municipal members a 12 percent one-year
decrease in dues because of the economy. She stated that at their last
Board meeting they discussed the North Texas Literacy Coalition program,
the need for a Tier 1 University in North Texas, and the transportation issues
being considered by the Legislature.
✓ Mayor Saleh also stated that Council Member Hogg, Council Member Martin,
Fleet and Facility Administrator Kyle McAdams and she went to Austin
recently to look at the art project being designed for Texas Star. She noted
that artist Cindy Burleson did a tremendous amount of research and is
putting a lot of detail and texture into the sculpture.
y Council Member Martin stated the HEB Chamber Leadership Class was
recognized at the monthly luncheon and Fire Chief Robert Isbell and
Assistant Library Administrator Tammi Truill were graduates of this year's
class. The class work project was the Euless Revitalization (ER) program.
r City Secretary Susan Crim reviewed the calendar of future city activities and
events.
• Director of Planning and Development Mike Collins discussed proposed
changes to the sign ordinance, specifically related to primary and secondary
wall signs, vehicle bay signs and canopy signs.
y City Manager Gary McKamie and Director of Planning and Development
Mike Collins discussed the apartment inspection program and the proposed
fee structure for apartment inspections. He stated an ordinance establishing
the amended fee schedule would be placed on a future council agenda for
consideration.
City Council Minutes Page 2 of 11 May 26, 2009
r Director of Planning and Development Mike Collins gave an update on the
`r- residential and commercial development activity.
r Director of Finance Vicki Rodriquez gave a financial report for the month of
April.
The City Council convened into closed session at 6:10 p.m. for deliberation regarding
contemplated litigation concerning Primary Purpose Homes, as authorized by Section
551.071 of the Texas Government Code and deliberation regarding economic
development incentives related to the Dallas/Fort Worth International Airport, as
authorized by Section 551.087 of the Texas Government Code. They reconvened into
open session at 6:52 p.m.
COUNCIL CONSIDERATION OF SCHEDULED ITEMS - COUNCIL CHAMBERS
The Euless City Council continued their meeting in the Council Chambers at 7:00 p.m.
for the consideration of scheduled items.
STAFF MEMBERS PRESENT
City Manager Gary McKamie, Deputy City Manager Loretta Getchell, City Attorney Bob
McFarland, City Secretary Susan Crim, Deputy City Secretary Becky Null, Associate
City Attorney Bradford Bullock, Director of Economic Development Bill Ridgway,
o., Director of Public Works Ron Young, Director of Planning and Development Mike
Collins, Fire Chief Robert Isbell, Police Chief Mike Brown, Director of Finance Vicki
Rodriquez, Director of Parks and Community Services Ray McDonald, Assistant Police
Chief Harland Westmoreland, City Engineer Robert Barker, Fire Marshal Paul Smith,
Texas Star General Manager Glenda Hartsell-Shelton, Communications and Marketing
Manager Betsy Deck, City Planner Stephen Cook, Library Administrator Kate Lyon,
Police Lt. Steve Kockos, Police Lt. Danny Neill, Police Sgt. Joe Foran, Police Sgt. Gary
Landers, Records Office Supervisor Michele Hastings, Assistant Director of Finance
Jackie Theriot, Accountant II Alice Norwood, Accountant I Patti Law, Payroll Clerk
Mallory Waits, Human Resources/Benefit Technician Zella Stierwalt, Records Clerk
Jolie McManus, Information Services Administrator Dan McLain, Computer Services
Specialist Jake Dilliplane, and Web Designer Adam Eakins.
VISITORS
Reverend Gary Scarlet, Gina Foran, Trevor Waits, Cesar Rivera, Faye Stinneford,
Dylan Ratliff, Don Martin, Eddie Price, Barney Snitz, Jerrie Keller, Billy Owens, Esther
Johnson, Jake Thomasson, John Schleeter, Wendy Wilson and others as noted in the
visitor register.
INVOCATION
r.. Gary Scarlett, Pastor, First Church of the Nazarene, gave the invocation.
City Council Minutes Page 3 of 11 May 26, 2009
PLEDGE OF ALLEGIANCE
Council Member Porterfield led the Pledge of Allegiance.
ITEM NO. 1 PRESENTATION OF EMPLOYEE OF THE MONTH FOR JUNE
Director of Finance Vicki Rodriquez introduced Accountant Patti Law. Mayor Saleh
presented Patti with a plaque for being selected employee of the month for June.
ITEM NO. 2 PRESENTATION OF PROCLAMATION
Police Chief Mike Brown introduced Police Sgt. Joe Foran, who introduced his wife,
Gina. Mayor Saleh presented Sgt. Foran with a proclamation congratulating him on his
retirement with over twenty-seven years of service to the City of Euless.
ITEM NO. 3 PRESENTATION OF DISTINGUISHED BUDGET PRESENTATION
AWARD
Mayor Saleh presented the Distinguished Budget Presentation Award to Director of
Finance Vicki Rodriquez, which was awarded by the Government Finance Officers
Association.
Vicki Rodriquez thanked her staff for their work and support which made receipt of the
award possible.
CONSENT AGENDA
Mayor Pro Tern Stinneford motioned to approve Consent Agenda Items numbered 4
through 7.
Council Member Martin seconded the motion
Ayes: Mayor Saleh, Mayor Pro Tem Stinneford, Council Members Hogg, Martin,
Mickan, Porterfield and Bynum
Nays: None
Mayor Saleh declared the motion carried.
ITEM NO. 4 AUTHORIZED THE MAYOR TO EXECUTE AN AMENDMENT TO THE
INTERLOCAL AGREEMENT BETWEEN THE CITY OF EULESS AND
THE CITY OF COLLEYVILLE
Authorized the mayor to execute an amendment to the interlocal agreement between
the City of Euless and the City of Colleyville for roadway improvements along Heritage
Avenue, establishing a new anticipated construction completion date of August 31,
2010.
City Council Minutes Page 4 of 11 May 26, 2009
ITEM NO. 5 AUTHORIZED THE CITY MANAGER TO EXECUTE AN INTERLOCAL
AGREEMENT BETWEEN THE CITY OF EULESS AND THE CITY OF
KELLER
Authorized the city manager to execute an interlocal agreement between the City of
Euless and the City of Keller for the purchase of various goods and services.
ITEM NO. 6 RENEWED BID NO. 024-07
Renewed Bid No. 024-07 with Atlas Utility Supply Company. 2301 Carson Street, Fort
Worth, Texas, 76117, for the final one-year renewal for utility repair materials required
to construct and maintain water and sanitary sewer systems, in an amount not to
exceed $410,000.
ITEM NO. 7 APPROVED CITY COUNCIL MINUTES
Approved the minutes of the Regular City Council Meeting of May 12, 2009.
REGULAR AGENDA
ITEM NO. 8 AUTHORIZED THE CITY MANAGER TO NEGOTIATE AND EXECUTE
AN AGREEMENT WITH THE CITY OF FORT WORTH
.,,,. Council Member Martin motioned to authorize the city manager to negotiate and
execute an agreement with the City of Fort Worth for the purchase of reclaimed water,
including the related Memorandum of Understanding, for a term of twenty years from
the effective date.
Council Member Porterfield seconded the motion
Ayes: Mayor Saleh, Mayor Pro Tem Stinneford, Council Members Hogg, Martin,
Mickan, Porterfield and Bynum
Nays: None
Mayor Saleh declared the motion carried.
ITEM NO. 9 AUTHORIZED THE CITY MANAGER TO EXECUTE AN
ENGINEERING DESIGN CONTRACT
Council Member Mickan motioned to authorize the city manager to execute an
engineering design contract with Jerry Parche' Consulting Engineers for the design of
bank stabilization for portions of Little Bear Creek.
Council Member Bynum seconded the motion
Ayes: Mayor Saleh, Mayor Pro Tern Stinneford, Council Members Hogg, Martin,
Mickan, Porterfield and Bynum
City Council Minutes Page 5 of 11 May 26, 2009
Nays: None
Mayor Saleh declared the motion carried.
ITEM NO. 10 AUTHORIZED THE CITY MANAGER TO NEGOTIATE AND EXECUTE
ARCHITECTURAL CONTRACT FOR DESIGN OF EXPANSION OF
MIDWAY RECREATION CENTER
Mayor Pro Tem Stinneford motioned to authorize the city manager to negotiate and
execute a contract with Byron Folse and Associates, Euless, Texas, for architectural
services for the design of the expansion of the Midway Recreation Center, which will
serve as the connector between the existing Recreation Center and the proposed
Senior Center.
Council Member Mickan seconded the motion
Ayes: Mayor Saleh, Mayor Pro Tern Stinneford, Council Members Hogg, Martin,
Mickan, Porterfield and Bynum
Nays: None
Mayor Saleh declared the motion carried.
ITEM NO. 11 HELD PUBLIC HEARING FOR AN APPEAL BY SAM
KROLL/PRIMARY PURPOSE HOMES
City Attorney Bob McFarland laid out the procedure for the hearing stating the
opponent's attorney will lead the presentation with 15 minutes. The city council's
attorney will have 10 minutes to respond, and the opponent's attorney will have 5
minutes for a rebuttal. The city council will then hear from the citizens who have
registered to speak. He noted that one citizen had registered to speak, and several
citizens indicated their opposition but did not wish to speak, and their names will be
read into the minutes. He noted that the hearing will be recorded by transcript
performed by a court reporter.
Mayor Saleh opened the public hearing at 7:27 p.m. to hear the appeal by Sam
Kroll/Primary Purpose Homes of the city manager's April 17, 2009, decision to grant
conditional approval of a reasonable accommodation for the use of a single family home
located at 1311 Oak Timber Drive pursuant to Ordinance No. 1833.
Steven Polin, 3034 Tennyson St. N.W., Washington, D.C., 20015, stated he is
representing Primary Purpose Homes who has made an application for reasonable
accommodation pursuant to Ordinance No. 1833. He stated they requested the city
waive certain requirements of the definitions of single family housing, which would
require a single written lease with joint use responsibility of the premises and allowing
five or more unrelated disabled residents to reside at 1311 Oak Timber Drive as a single
housekeeping unit. He stated they also requested that the city waive the application of
the classification of transient dwelling, if it deems that the residents of the Primary
Purpose Homes fall within that definition in Section 84-85(aj) of the Code of Ordinances.
City Council Minutes Page 6 of 11 May 26, 2009
�•- Mr. Polin stated that in a letter dated April 17, 2009, written by the city manager, he was
pleased to note that the accommodation request to treat it as a single family unit was
granted. However, he was disappointed to note that there were several conditions
imposed upon that grant of reasonable accommodation. Six of the nine conditions they
object to include:
1. Providing the city with a certification that the residents are disabled, which
they have already done.
2. The maximum turnover in occupancy to not exceed 9 individuals in a 12
month period.
3. Notifying the city that a resident has been expelled for relapsing within 14
days of the date of expulsion.
4. Providing the city with specific documentation as to whether someone has
been in a rehab.
5. Providing driver's licenses for the purpose of checking to see if they are
registered sex offenders, parolees, or probationers.
6. Requiring a minimum of 1,000 foot separation between sober living type
facilities and having to reapply every 12 months.
City Attorney Bob McFarland asked if the objection to the documentation of rehab and
certification of disability was based on a HIPPA objection.
Mr. Polin stated, yes, there is a HIPPA issue involved, as well as other federal
confidentiality and privacy laws. He stated that if this information is turned over to the
city, he did not know how the city could keep it confidential under the Open Records
Act. It creates a whole new set of issues that he didn't think the city would want to get
into in terms of protecting the confidentiality and privacy of treatment records of these
individuals. He also did not think it was necessary for the city to have it as a matter of
granting approval under the Fair Housing Act.
Regarding the requirement for driver's licenses, he stated that Primary Purpose Homes
does not accept registered sex offenders. The Texas Department of Public Safety has
a website showing where sex offenders live. He didn't know why this is a necessary
condition of granting the reasonable accommodation. He stated it violates the Fair
Housing Act because there is no evidence that the residents pose a direct threat to the
safety and welfare of the neighborhood. The Fair Housing Act requires this type of
specificity before these types of conditions can be imposed.
Mr. Polin stated they believe case law prohibits denial of treatment of a disabled group
based on transiency. He stated there is more of a chance that someone in the
neighborhood could be driving home drunk than something happening at Primary
Purpose. He stated they have a zero tolerance policy for residents' use of drugs or
alcohol; however, people do relapse. They do not have control over that, so there will
City Council Minutes Page 7 of 11 May 26, 2009
be turnover. He agreed that the city is on the right track to set up a reasonable
accommodation process, but cannot set it up to monitor daily activity. The city does not
require the driver's licenses of other related or non-related groups.
City Attorney Bob McFarland stated the applicant's driver's license number is a routine
request on all zoning applicants.
Mr. Polin stated the letter refers to the residents and not the applicant, Primary Purpose.
He stated it is the first time he has ever heard of the residents being required to provide
driver's licenses, and the purpose of it troubles him. He stated that if all the people in
the neighborhood want to give their driver's license numbers, then they would be willing
also. He further stated that if the residents in the neighborhood want to get to know the
residents of Primary Purpose, they are welcome to come over.
City Attorney Bob McFarland stated Primary Purpose is allowed in multi-family zoning,
just not in single family.
Mr. Polin noted that this type of issue is where the Fair Housing Act comes into play—to
enjoy a residence of their choice.
Associate City Attorney Bradford Bullock, attorney on the city's behalf, stated in his
reading of the application, the applicant asserts they are disabled, but has not provided
the requested information. In order to qualify for reasonable accommodation, all
residents must be disabled. Mr. Polin asserted that there was a certification provided
that all residents are disabled, but the certification is by the applicant. No one knows
what Mr. Kroll's background is to be able to make such certification. He noted that if the
residents did not claim to be disabled, the home would violate the zoning ordinance and
would be considered a boarding house.
Because they have claimed disabled status, a protective status under the Fair Housing
Act, they are entitled to reasonable accommodations. Reasonable accommodation
does not mean granting everything that is requested. In order for a request to be
considered "reasonable", it must not cause an undue financial or administrative burden
on the city. It also must not alter the characteristics of the regulation at issue. The way
the home is set up, with the residents paying rent and the transient nature, it is turned
into a boarding house. He stated the Fair Housing Act does not preempt the local
government's zoning authority. Single family districts have been recognized by the
United States Supreme Court as a legitimate governmental goal. The transience
provisions of this ordinance place limits on the occupancy turnover in all single family
districts, whether they are disabled or not. The ordinance does not single out the
disabled, but treats them as they would anyone with high turnover. One of the
characteristics of a single family neighborhood is a level of permanence. That has been
recognized by federal courts, a number of state supreme courts, and he thinks it would
be recognized in the Fifth Circuit, as well.
The question is essentially, in terms of transients and turnover in a single family district,
whether or not waiving a limit on transiency or turnover would fundamentally alter the
characteristics of the neighborhood. It is the city's position that it would. One does not
expect a high turnover in a single family district. That type of turnover is more
City Council Minutes Page 8 of 11 May 26, 2009
associated with multi-family districts. The Fair Housing Act does not do away with the
�•• regulations for a single family district.
One of the cases the city will rely on is the federal appellate case of Schwartz vs. City of
Treasure Island in Florida. The Eleventh Circuit Court found that enforcing a transience
provision in a single family district was found to be a permissible form of regulation and
not a violation of the Fair Housing Act. He stated that he disagrees with the premise of
the 2003 case that Mr. Polin cited in his letter.
Mr. Bullock stated that he had an application from the state to apply for a handicap
placard. In order to do so, the applicant must provide certification of a handicap by a
licensed physician as to whether the disability is permanent or temporary and what type
of disability. The city is just requesting similar certification in order to determine that the
residents are entitled to a reasonable accommodation. He contends that if certification
can be required for a parking place, it can be required for this, because they are
requesting accommodation that others are not, by asking to use a single family
residence as a business.
City Attorney Bob McFarland questioned if the privacy statutes prohibit the city from
requesting medical status, then how can the city know if they are disabled, if it can't be
verified.
Associate Attorney Bradford Bullock stated they are entitled to a reasonable
accommodation if certain conditions are met. However, the application provided a
simple statement by Mr. Kroll that all the residents are disabled. Not being able to verify
whether the residents are disabled essentially removes the city's regulatory authority.
It's not reasonable to grant accommodation if it turns a neighborhood into an
institutional setting. He believes the city has the authority to prevent parolee and
probationer housing in a residential area.
In rebuttal, Mr. Steven Polin stated they are willing to work with the city, but he contends
that the conditions listed in the letter are not proper or legal. He believes the ordinance
is facially discriminatory and created to deal with the disabled. He noted that this is the
only sober house in Euless, and they are not talking about taking over the
neighborhood. He stated that most of the people live there by choice, because they
have heard of Primary Purpose Homes and are trying to put their lives back together.
He stated he is not saying the city does not have authority, but they do not have
authority to do it discriminatorily.
Mayor Saleh asked for any proponents. There were none.
Mayor Saleh asked for any opponents. She noted that Dan and Sharon Dunn, 800
Boxwood Court, and Cheryl Brewster, 902 Glenn Drive, registered as being opposed,
but not wanting to speak.
Bobby Lindamood, 807 Boxwood Court, thanked the city for working with the residents
in the neighborhood. He stated they have strived to reach out to Primary Purpose. He
stated the problem is not with the residents, but with the owner, because this is a
business. He stated the ordinance is not just for this home, but for all sober homes that
City Council Minutes Page 9 of 11 May 26, 2009
could locate in Euless. He believes the law is the law, and should be enforced. He also
r•- has a concern for the children and elderly in the neighborhood.
Thomas Delaney, 806 Boxwood Court, stated he was single for a while after buying his
house and did have roommates. He noted that after 30 days, residents in Texas must
register with the state for their driver's license. He stated they are asking for the same
thing for the residents of the home; otherwise, it really is transient living. He stated he
did not want transients in the neighborhood. He thanked the city council for all they've
done so far and thanked the neighbors for coming to the meeting.
John Schleeter, 2121 Bear Creek Parkway, stated he has a friend that is a group home
caretaker in Arlington. While he applauds the efforts that the residents are making to
put their lives back together, he does not believe a business should go in a residential
area.
There being no additional opponents, Mayor Saleh closed the public hearing at 8:23
p.m.
Council Member Martin asked Mr. Polin what he meant by saying the residents live
there by choice "for the most part". She also asked him what he considers reasonable.
Mr. Polin stated that as far as he knows all the residents live there because they want
to; however, some could be there because it was suggested. He stated they did not
r., have a problem in working with the city to come up with something equitable. He did
not know if there is a middle ground on the issue of confidentiality, which centers around
the required certification and driver's licenses.
Council Member Stinneford asked Mr. Polin why he objected to the 1,000 ft.
requirement.
Mr. Polin stated he objected to the condition on general principal.
Council Member Stinneford questioned why the city should accept the applicant's word
that the residents are disabled. He stated he is not objecting to a group of disabled
people living in a single family home, but objecting to the turnover of residents, which is
at odds with the term "family." His additional questions included: since there is no
therapy program how they would know if someone relapses; is there someone in
charge; and is this an equal protection issue?
Mr. Polin stated that the Housing and Urban Development (HUD) regulations find that if
you treat someone as disabled, they are considered disabled. The city has created an
ordinance to deal with this group of disabled people. He stated the home is the
functional equivalency of a family. A senior resident is designated as an overseer and
given added responsibilities. Someone comes around and does drug testing, but, other
residents can also recognize the signs of drug or alcohol use. He stated that the issue
is not an equal protection argument.
Council Member Bynum asked if Primary Purpose Homes is a business. If so, why
didn't the applicant come to the city before opening?
City Council Minutes Page 10 of 11 May 26, 2009
Mr. Polin stated that even though it is a business, it still helps people. He stated that the
outcome tends to be the same, whether they come to the city first or not.
Council Member Bynum asked Mr. Polin if he would purchase a home in a
neighborhood knowing Primary Purpose was located there.
Mr. Polin stated he could not answer that question, because it is illegal for a realtor to
disclose such issues.
Council Member Mickan stated that it is Mr. Polin's client that has come forth asking for
a variance for their non-compliance to the numbers and the turnover rate. She noted
that the city manager has granted that request, but the city is being considered biased,
unfair, discriminatory, and unyielding. She pointed out that it is the applicant that is non-
compliant. The city manager is the one that granted the reasonable accommodation,
and the applicant is appealing what he has been asked to do. She suggested that he
may have come in expecting trouble where no trouble exists.
Mr. Polin stated he did not intend to indicate that the city is biased or unyielding, and he
understands politics in these types of situations. He stated he is an advocate for his
client and the assertion of his client's rights. He agreed that everyone has a right to
express their opinions.
�., Council Member Mickan asked Mr. Polin if there was anything about the city's ordinance
that he thought was fair.
Mr. Polin stated he thought it was a step in the right direction that the city realized it did
not have a process for reasonable accommodation and created one. He noted that he
knows where the Euless ordinance came from because he's involved with another case.
He noted, however, that Euless took it a step further to include a definition of transiency
dwelling.
Council Member Porterfield stated that although the applicant may find the conditions
the city manager imposed in this reasonable accommodation to be onerous, he asked if
there is any reason why his abiding by those conditions would preclude the operation of
this house in the way he intended it, or if there was anything that he could not do under
these conditions that he could do if he did not have these conditions.
Mr. Polin stated he thought it would have a chilling effect.
Council Member Martin stated that Mr. Polin had commented earlier that none of the
residents were there by anything other than their choice. She asked him if he had
talked to and visited with the residents at the home.
Mr. Polin stated, yes, he had.
NIEW
Mayor Saleh asked Mr. Polin if he had tried to talk to the city staff.
Mr. Polin stated he had not.
City Council Minutes Page 11 of 11 May 26, 2009
Mayor Saleh asked if all the residents are Texas residents.
Mr. Polin stated that as far as he knew, they were.
Council Member Hogg motioned to sustain the city manager's April 17, 2009, decision
to grant conditional approval of a reasonable accommodation for the use of a single
family home located at 1311 Oak Timber Drive pursuant to Ordinance No. 1833, and
adopt the city manager's findings of fact contained therein.
Council Member Martin seconded the motion
Ayes: Mayor Saleh, Mayor Pro Tern Stinneford, Council Members Hogg, Martin,
Mickan, Porterfield and Bynum
Nays: None
Mayor Saleh declared the motion carried.
ITEM NO. 12 PUBLIC COMMENTS .
Torn Cotton, 904 Woodhaven Court, stated he lived outside of the 300 foot notification,
but had he known of the Primary Purpose home when he purchased his home, he
would not have done so. He did not believe this type of use should be in a residential
community.
Ed Pope, 900 Woodhaven Court, stated he understood the need for rehabilitation;
however, he did not believe alcoholics and drug users ever get totally away from the
desire, and he did not believe the facility should be in a residential area.
ITEM NO. 13 REPORTS
There were no reports.
ITEM NO. 14 ADJOURNMENT
Mayor Saleh adjourned the meeting at 8:55 p.m.
APPROVED: ATTEST:
Mary Lib -.aleh 'sari Crim R C
Mayor City Secretary