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Minutes TC 10/03/2000MINUTES OF TOWN COUNCIL WORKSHOP/PUBLIC HEARING/ REGULAR TOWN COUNCIL MEETING FOR THE TOWN OF TROPHY CLUB OCTOBER 3, 2000 STATE OF TEXAS COUNTY OF DENTON The Town Council of the Town of Trophy Club, Texas met in a Workshop/Public Hearing/Regular Session on Tuesday, October 3, 2000. The meeting was held within the boundaries of the Town and was open to the public. TOWN COUNCIL MEMBERS PRESENT: Marshall Engelbeck Susan Edstrom Barry Huizenga Bill Matthai Scott Smith TOWN COUNCIL MEMBERS ABSENT: Barb Tweedie STAFF AND GUEST(S) PRESENT: Donna Welsh Diane Cockrell Jim Buxton David Miller Bill Chavez Paul Rosenberger Kerin Fleck Beth Ann Gregory Shannon DePrater COMMITTEE MEMBERS PRESENT: Jodi Ashby Adam Gerety Richard Hobday Billy Hughes Nestor Karl is WORKSHOP SESSION Mayor Mayor Pro Tem Council Member Council Member (arrived at 6:14 p.m.) Council Member Council Member Town Manager Town Secretary Finance Director Director of DPS Director of Public Works (arrived at 6:41 p.m Assistant to Town Manager/MUD Manager P & Z Coordinator Information Systems Administrator Administrative Assistant Public Relations Committee Information Technology Committee Utility Franchise Committee (arrived at 6:09 p.m.) Parks and Recreation Committee Public Works Committee & Utility Franchise Committee CALL TO ORDER AND ANNOUNCE A QUORUM: Mayor Engelbeck called the Workshop session to order at 6:06 p.m. noting a quorum was present. TOWN COUNCIL AND COMMITTEE CHAIRS TO DISCUSS AND TAKE APPROPRIATE ACTION REGARDING STRATEGIC PLAN UPDATE (VISION 2008): Page 1 Additions: Comments: • Review re-establishing a Garden Club • Review ordinances and code enforcement relating to edging and grass in the street • Are there areas of opportunity for fund raising Page 2 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 Page 2 Additions: Comments: • Given the long-term nature of this initiative, address with key milestones (dates, events that dictate a change or move, etc.) Page 3 Additions: Resources: • Code Enforcement Officer Page 4 Additions: Comments: • Address the Town's role in "integrating the churches into the community" and utilizing facilities and people to attain common goals Page 6 Deletions: Comments: Removed—Address the question of the responsibility for the Pool, CIA vs. Town (CIA currently has responsibility) Page 7 Additions: Resources: • US Forestry Service Comments: • Address preservation in future ordinance • Address tree removal, mitigation process, right-of-way issues, etc. Page S Deletions: Comments: Removed — CIA should be encouraged to proactively assist in this pool relocation Changed - Town legal council to provide opinion on development of a strategy for the Town to absorb the CIA to address both the short term issues and longer term issues of duplicate activities Page 9 Additions: Resources: • Public Works Committee • MUD Page 15 Additions: Resources: • NISD Comments: • Review possibility of a private school • Roll into education initiative? Page 16 Additions: Resources: • NE Education Foundation • TEA Comments: • Review legality of EDC funding school projects (i.e., keep in Trophy Club schools or can it be broader?) • How to help facilitate and grow a mentoring program in Trophy Club. Page 3 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 Page 17 Deletions: Results to Date: • Second grant submitted and denied • Staff and Parks and Rec Committee attempting to identify next options • Attending Public Hearing in Austin regarding grants • Decision to be made shortly on submitting for third time Page 17 Additions: Results to Date: • Attended Public Hearing in Austin regarding grants • EDC A created (monies to be used for parks) • Third grant submission to Austin (9/30/00); decision expected 2/1/01 Resources: • Planning & Zoning • Texas Parks and Wildlife • Hoover & Klein • DPS Page 18 Deletions: Comments: • Address boat access Page 18 Additions: Resources: • Army Core of Engineers • Staff (Paul Rosenberger) • Texas Parks and Wildlife • Hoover & Klein Page 19 Additions: Resources: • Texas Parks and Wildlife • Army Core of Engineers • Hoover & Klein • Department of Transportation Comments: • Incorporate added pathways into Lakes area • Review viability of 20/80 grant from Department of Transportation Page 21 Changes Resources: • Change from Sports Associations to EDC A Page 21 Additions: Comments: • Review Budget Page 22 Additions: Results to Date: 0 Bond proposition failed Page 4 WORKSHOP/PUBLIC HEARING/REGULAR SESSION Resources: • Planning and Zoning • DPS • Commissioner's Court Comments: • Review funding from County Page 23 Additions: Results to Date; • Town became a member of NEFTA Page 24 Additions: Results to Date: • Traffic survey was completed Resources: • Teague Nall & Perkins Comments: • Review alternate funding DISCUSSION OF REGULAR AGENDA ITEMS: No additional agenda items were discussed. ADJOURN WORKSHOP SESSION: Mayor Engelbeck adjourned the Workshop at 7:22 p.m REGULAR SESSION — 7:30 P.M. TOWN COUNCIL MEMBERS PRESENT Marshall Engelbeck Mayor Susan Edstrom Mayor Pro Tem Barry Huizenga Council Member Bill Matthai Council Member (arrived at 6:14 p.m.) Scott Smith Council Member TOWN COUNCIL MEMBERS ABSENT: Barb Tweedie STAFF AND GUEST(S) PRESENT: Donna Welsh Diane Cockrell Jim Buxton David Miller Bill Chavez Paul Rosenberger Kerin Fleck Council Member October 3, 2000 Town Manager Town Secretary Finance Director Director of DPS Director of Public Works (arrived at 6:41 p.m.) Assistant to Town Manager/MUD Manager P & Z Coordinator CALL TO ORDER AND ANNOUNCE A QUORUM: Mayor Engelbeck called the regular meeting to order at 7:33 p.m. INVOCATION: Chief David Miller gave the invocation. Page 5 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 PLEDGE OF ALLEGIANCE TO THE AMERICAN AND TEXAS FLAG: Commissioner Gene Hill led the pledges. PUBLIC HEARING TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION ON A REQUEST FOR THE CONSIDERATION OF AN APPLICATION FOR A CONDITIONAL USE PERMIT FOR A NON- GOVERNMENTAL INDEPENDENTLY SUPPORTED COMMERCIAL ANTENNA FACILITY, LOCATED TO THE WEST OF THE TROPHY CLUB/ WESTLAKE DEPARTMENT OF PUBLIC SAFETY BUILDING, 100 MUNICIPAL DRIVE, (APPLICANT: BILL O'LOUGHLIN, SPRINT PCS): Council Member Huizenga stated that Sprint has a right to apply for the special use permit. The process we are going through is unwieldy and cumbersome but on the other hand very necessary. The due process may not be liked but it is necessary to preserve the citizens rights. Allowing Sprint to apply for a special use permit is a legal requirement, if we did not allow Sprint to apply then we have no leg to stand on. The Council is not doing anything to the citizens of Trophy Club but rather preserving the integrity of the process so that if there was legal action we have a leg to stand on and that the process we are going through is for the benefit of the citizens of Trophy Club and not because we are trying to do something to the citizens. Marie Aguirre of 6 Michelle Court, Carol Peterson of 5 Michelle Court, Jerry Peterson of 5 Michelle Court, Trinidad Aguirre of 6 Michelle Court, Heidi Reed of 10 Jennifer Court, Nick Sanders of I Michelle Court, Mike Foster of 9 Jennifer Court, Rexanne Foster of 9 Jennifer Court, Pearl O. Ford of 2 Spring Creek Court, Bill Lewis of 6 Timberline Court, Roy Acosta of 4 Michelle Court, Bonita Turner of 120 Summit Cove, Lynda Sanders of I Michelle Court, Laurie Acosta of 4 Michelle Court, Robert L. Jennings of 112 Carnoustie Drive, Bettye Dayton of 103 Fairway Village, Jim Carter of 204 Fresh Meadow Drive, Bill Walker of 205 Lakeshore Drive, Richard Hobday of 21 Troon Drive, Lynn Hale of 18 Sonora Drive, Gary Tomlin of 366 Indian Creek, and Walter Fitzpatrick of 7 Creekside Drive addressed the Council. Tiffany Haertling reviewed the information submitted by Marie Aguirre for the Record to be included in the minutes. Public Hearing is to be postponed until November 7, 2000. Sprint to give information on other sites and meet with Planning and Zoning. Sprint has looked at 5 options and gave definition. Dave Petrakovitz of Sprint gave information on selection of site. Clyde Chappel explained radio waves and predictions. TOWN COUNCIL TO CLOSE PUBLIC HEARING: Council Member Matthai made a motion to continue the Public Hearing on November 7, 2000. Mayor Pro Tem Edstrom seconded, motion carried unanimously. TOWN COUNCIL TO CONVENE INTO EXECUTIVE SESSION: At 9:50 p.m. Council Member Smith made a motion to convene into Executive Session. Mayor Pro Tem Edstrom seconded, motion carried unanimously. EXECUTIVE SESSION EXECUTIVE SESSION: PURSUANT TO THE TEXAS GOVERNMENT CODE, ANNOTATED, SUBCHAPTER 551, SECTIONS 551.071 TO 551.075 A. SECTION 551.071: DISCUSSION WITH ATTORNEY RELATIVE TO PENDING OR CONTEMPLATED LITIGATION. 1. DISCUSSION WITH ATTORNEY REGARDING LEGAL ADVICE ON AN APPLICATION FOR A CONDITIONAL USE PERMIT FOR A NON-GOVERNMENTAL INDEPENDENTLY SUPPORTED COMMERCIAL ANTENNA FACILITY. TOWN COUNCIL TO CONVENE INTO REGULAR SESSION: Town Council reconvened into Regular Session at 10:30 p.m. TOWN COUNCIL - OCTOBER 3. 2000 PRIMARY POINTS TO ADDRESS: SUPPORTING DOCUMENTS: 1. Trophy Club's authority to deny current site proposal FCC Fact Sheet 1; FCC Local and State Government Advisory Committee Recommendation #23; US District Court Sprint PCS vs. Town of Ontario Planning Board; Law.com New York. 2. Cooperative planning between Wireless Providers FCC Fact Sheet 2; FCC Agreement; and Municipalities law.com New York. 3. Property Value Issues FCC Local and State Government Advisory Committee Rec. #23; US District Court Sprint PCS vs. Town of Ontario Planning Board; AT&T Wireless PCS vs. City Council of Virginia Beach; AT&T Wireless vs. Winston-Salem Zoning Board; PrimeCo Personal Commun- ication vs. the Village of Fog Lake; Planning & Zoning Commission Meeting Minutes 13Sep00. 4. Proactive vs. Reactive (Moratoria) FCC Fact Sheet 2; FCC Agreement; law.com New York. 5. Alternate Sites FCC Fact Sheet 2; US District Court Sprint PCS vs. Town of Ontario Planning Board; Planning & Zoning Commission Meeting Minutes 13Sep00; City Commission of Bozeman, Montana minutes 50ct98. 6. Concerned citizens of Trophy Club US District Court Sprint PCS vs. Town of Ontario Planning Board; AT&T Wireless PCS vs. City Council of Virginia Beach. 'n�ow�Ut oufifc� - �c� oaf (s.dod The cellular and SMR databases are available for on-line viewing in the Public Reference Room of the Wireless Telecommunications Bureau's Commercial Wireless Division, located on the fifth floor of 2025 M Street, N.W., Washington, DC 20554. For more information, you may contact the Reference Room at (202) 418-1350. You may also obtain on-line access from a remote location, by contacting Interactive Systems, Inc., 1601 North Kent Street, Suite 1103, Arlington, VA 22209, at (703) 812-8270. However, because PCS licensees are issued a blanket license for their entire geographic area, the Commission does not maintain any information in its databases on the specific locations of any PCS base stations, unless they fall into the categories listed above. 7. Some people consider personal wireless service facilities to be unsightly. Is there some way to make these structures blend in with their surroundings? Answer: Antennas for personal wireless services can sometimes be mounted on existing structures such as building roof tops, church steeples, street lights, traffic lights, or electric utility substations, where they are relatively unobtrusive. Painting antenna structures to blend in with the existing structure is also an effective camouflage. Camouflaging of antennas is also used to accommodate highly specialized land use concerns. For example, a personal wireless service provider seeking to locate a transmitter site in a historic district may consider camouflaging the antenna in such structures as clock towers or artificial trees. Such camouflaging is, however, expensive and time consuming and most service providers are reluctant to routinely use the camouflage option. ZONING ISSUES 8. What types of information exchanges should occur at the beginning of the local zoning process that would be helpful both to local and state governments and to personal wireless service providers? Answer: From the perspective of the local and state governments, it is helpful for the wireless service provider to supply as much advance information as possible about the nature of its service offerings and the "big picture" plan for service deployment. Local zoning authorities have a strong interest in becoming fully informed about exactly what they are authorizing, and what will be the long-term effects of facilities siting on land use in their communities. Many personal wireless service providers have found it helpful to organize seminars aimed at acquainting local zoning authorities with their services. Community outreach is also a productive way for new wireless service providers to pave the way for introduction of their offerings. Personal wireless service providers may be able to expedite the zoning authorization process if they target, where possible, site locations that are compatible with the proposed use, such as industrial zones, utility rights of way and pre-existing structures. From the perspective of the personal wireless service provider, knowing what to expect in the zoning process is the primary concern. Therefore, state and local authorities should endeavor to provide wireless service providers with a clear picture of the zoning authorization process in 7 8 TOWN COUNCIL OCTOBER 3, 2000 Page / or I mobile radio unit either provided by the end user or obtained from the SMR operator. The base station receives either telephone transmissions from end users or low power signals from end user mobile radios. SMR systems operate in two distinct frequency ranges: 806-821/851-866 MHz (800 MHz) and 896- 901/935-940 MHz (900 MHz). 800 MHz SMR services have been licensed by the FCC on a site -by - site basis, so that the SMR provider must approach the FCC and receive a license for each and every tower/base site. In the future the FCC will license this band on a wide -area market approach. 900 MHz SMR was originally licensed in 46 Designated Filing Areas (DFAs) comprised of only the top 50 markets in the country. The Commission is in the process of auctioning the remainder of the United States and its Possessions and Territories in the Rand McNally defined 51 Major Trading Areas. PCS Information Broadband PCS systems are very similar to the cellular systems but operate in a higher frequency band, in the 1850-1990 MHz range. One other difference is that the FCC used different market areas for licensing purposes. The FCC used the Rand McNally definitions for 51 Major Trading Areas (MTAs) and 493 Basic Trading Areas (BTAs). PCS was allocated spectrum for six Broadband PCS systems and 26 Narrowband systems. The six Broadband PCS systems will be licensed as follows: two Broadband PCS licenses will be issued for each of the 51 MTAs and four for each of the 493 BTAs. The 26 Narrowband systems will be licensed as follows: eleven Narrowband PCS licenses will be issued for nationwide systems, six for each of five regional areas, seven for each of the 51 MTAs and two for each of the 493 BTAs. PCS licensees are issued a blanket license for their entire market area and are not required to submit applications to license individual cell sites unless construction of the facility would be a major environmental action or would require FAA notification. Major environmental actions are defined by the National Environmental Policy Act of 1969 that is discussed in question 2, below. Therefore, the FCC has no technical information on file concerning PCS base stations. Frequently asked questions concerning tower siting for personal wireless services. 1. Do local zoning authorities have any authority to deny a request for tower siting? Answer: Yes. The Telecommunications Act of 1996 specifically leaves in place the authority that local zoning authorities have over the placement of personal wireless facilities. It does prohibit the denial of facilities siting based on RF emissions if the licensee has complied with the FCC's regulations concerning RF emissions. It also requires that denials be based on a reasoned approach, and prohibits discrimination and outright bans on construction, placement and modification of personal wireless facilities. 2. What requirements do personal wireless communications licensees have to determine whether a site is in a flood plain? A historical sites must also comply with the National Environmental Policy Act of 1969 (NEPA). as well as other mandatory federal environmental statutes. The FCC's rules that implement the federal environmental statutory provisions are contained in sections 1.1301-1.1319. The FCC's environmental rules place the responsibility on each applicant to investigate all the potential environmental effects, and disclose any significant effects on the environment in an Environmental Assessment (EA), as outlined in section 1.1311, prior to constructing a tower. The applicant is required to consult section 1.1307 to determine if htip://www.fcc.gov/wtb/siting/factl.htm] 9/21/00 TOWN{C& C I L7T UCES4E1-i `:i,' 12000 THE FOLLOWING GUIDELINES FOR FACILITIES SITING IMPLEMENTATION AND INFORMAL DISPUTE RESOLUTION PROCESS ARE AGREED TO BY THE FEDERAL COMMUNICATIONS COMMISSION'S LOCAL AND STATE GOVERNMENT ADVISORY COMMITTEE (LSGAC), THE CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION (CTIA), THE PERSONAL COMMUNICATIONS INDUSTRY ASSOCIATION (PCIA) AND THE AMERICAN MOBILE TELECOMMUNICATIONS ASSOCIATION (AMTA). THE LSGAC IS A BODY OF ELECTED AND APPOINTED LOCAL AND STATE OFFICIALS, APPOINTED BY THE CHAIRMAN OF THE COMMISSION IN MARCH, 1997. A ROSTER OF LSGAC MEMBERS IS ATTACHED. CTIA, PCIA AND AMTA ARE TRADE ASSOCIATIONS REPRESENTING THE WIRELESS INDUSTRY. I. GUIDELINES FOR FACILITY SITING IMPLEMENTATION A- Local governments and the wireless industry should work cooperatively to facilitate the siting of wireless telecommunication facilities. Moratoria, where necessary, may be utilized when a local government needs time to review and possibly amend its land use regulations to adequately address issues relating to the siting of wireless telecommunications facilities in a manner that addresses local concerns, provides the public with access to wireless services for its safety, convenience and productivity, and complies with the Telecommunications Act of 1996. B. If a moratorium is adopted, local governments and affected wireless service providers shall work together to expeditiously and effectively address issues leading to the lifting of the moratorium. Moratoria should be for a fixed (as opposed to open ended) period of time, with a specified termination date. The length of the moratorium should be that which is reasonably necessary for the local government to adequately address the issues described in Guideline A. In many cases, the issues that need to be addressed during a moratorium can be resolved within 180 days. All parties understand that cases may arise where the length of a moratorium may need to be longer than 180 days. Moratoria should not be used to stall or discourage the placement of wireless telecommunications facilities within a community, but should be used in a judicious and constructive manner. C. During the time that a moratorium is in effect, the local government should, within the frame work of the organization's many other responsibilities, continue to accept and process applications (e.g., assigning docket numbers and other administrative aspects associated with the filing of applications), subject to ordinance provisions as may be revised during the moratorium. The Iocal government should continue to work on the review and possible revisions to its land use regulations in order that the moratorium can terminate within its defined period of time, and that both local planning goals and the goals of the Telecommunications Act of 1996 with respect to wireless telecommunications services be met. Wireless service providers should assist by providing appropriate, relevant and non- proprietary information requested by the local government for the purposes of siting wireless telecommunications facilities. D. Local governments are encouraged to include both the community and the industry in the development of local plans concerning tower and antenna siting. Public notice and participation in http://www.fcc.gov/statelocaUagreement.html 9/21/00 10 Jr TOWN COUNCIL - OCTOBER 3, 2000 V FCC Local and State Government Advisory Committee Advisory Recommendation Number 23: Notice of Proposed Rulemaking, Notice of Inquiry, and Third Further Notice of Proposed Rulemaking, WT Docket No. 99-217, CC Docket No. 96-98 1. The Local and State Government Advisory Committee ("LSGAC") submits this Recommendation in regard to the Federal Communication Commission's ("Commission") Notice of Proposed Rulemaking ("NPRM"), Notice of Inquiry ("NOI"), and Third Further Notice of Proposed Rulemaking ("Third Notice") in WT Docket No. 99-217 and CC Docket No. 96-98. The LSGAC addresses only the issues raised in the NOI in this Recommendation. 2. State and Local governments have three vital interests in the matters addressed by the NOI. a. addition, any authorized use must not unnecessarily inconvenience, threaten the safety of, or impose uncompensated costs on citizens. Any Commission action that intrudes on right-of-way management authority will significantly harm state and local government efforts to fulfill these obligations. b. Second, state and local governments have an obligation to protect the public investment in public rights-of-way and accompanying infrastructure, to balance competing demands on this public resource, and to charge fair and reasonable compensation for rights conveyed to privileged users of these public resources. Any Commission action that intrudes on right-of-way compensation authority will significantly harm state and local government efforts to fulfill these obligations. c. Third, as the Commission stated in its NOI, "the assessment and collection of taxes and other fees is a vital function of State and local governments, indeed a necessary one to support all of those governments' other functions." NOI 81. Therefore, state and local governments have a significant interest in any Commission action that intrudes on traditional state and local taxing authority. The LSGAC believes that there are multiple and appropriate legal restraints on the Commission's authority to intrude into the property relationships between State and local governments and telecommunications companies, or into state or local tax policy. These restraints include: a. The Commission's authority under 47 U.S.C. § 253 is limited. That section does not preempt State and local government right-of-way regulations and compensation requirements as long as those regulations and requirements do not prohibit or have the effect of prohibiting the provision of a telecommunications service. Moreover, even right- of-way regulations and compensation arrangements that might prohibit or have the effect of prohibiting entry may not be preempted if they are competitively neutral and nondiscriminatory. And any decisions as to the latter conditions must be made by the courts, rather than by the Commission. b. State and local governments enjoy significant constitutional protections from Federal intrusion. http://www.fee.gov/statelocal/recommendation23.htm1 9/21/00 M TOWN COUNCIL - OCTOBER 3. 2000 i. Federal appropriation of publicly owned property, whether the physical or regulatory, whether for the federal government's own benefit or for the benefit of favored private enterprises, raises significant and difficult 5th Amendment issues. n. The 10th Amendment requires careful balancing of powers between national and state sovereigns. c. The Commission has no discernible authority to preempt State or local tax provisions, or to otherwise interfere with the development and application of State and local fiscal policies. Nor is there any substantial support in the record in this proceeding for the claim that State and local tax policies are likely to have a significant adverse affect on the development of competitive markets for telecommunications service. d. There is no evidence of record in this proceeding to suggest that any State or local government requirements identified by industry commentators are impeding competitive entry. 4. The LSGAC believes that there are also sound practical reasons for the Commission to leave public right-of-way issues to be addressed by State and local governments. These reasons include: a. Lives are at stake and the Commission is without expertise. Improperly managed rights- of-way threaten real economic and personal injury -- even loss of life. Natural gas explosions and subterranean floods of retail space, disruption of water supplies, sewage systems and electrical service are significant safety and economic risks that attend the installation and maintenance of telecommunication and other utility facilities in public rights-of-way. State and local governments and their constituents bear these risks. Unless the federal government is inclined to underwrite those risks, local governments must have full authority to contain them. b. Telecommunications providers are entering markets without regard to local right-of-way policies and practices, but rather based on market assessments that are not dependent on right-of-way management policies_ Formerly passive management policies appropriate in the era of the historical monopoly environment are no longer adequate to protect other users of the rights-of-way or the facilities of the multiple telecommunications providers, or to protect the public safety and welfare. c. Public right-of-way management is historically and properly a core function of local government. Each community has distinct and unique physical characteristics, local infrastructures, environmental concerns, and health and safety issues. A single nationwide right-of-way regulatory regime won't work and will cause great harm to the local right- of-way user. Only local regulations can address each necessary facet of right-of-way regulation, from construction and excavation to space allocation and facility relocation, restoration and fee requirements in a fashion that will meet local community needs. d. The comments submitted in this proceeding reveal the breadth and variety of issues confronting right-of-way management authorities. These issues are unique and local in nature. They cannot be addressed by a single national resolution and the Commission http://www.fcc.gov/statelocal/reconimendation23.htn l 9/21/00 12 TOWN COUNCIL - OCTOBER 3, 2000 K r .-`:1. L UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK SPRINT SPECTRUM L.P. d/b/a SPRINT PCS, Plaintiff, V. CRAIG WILLOTH, Chairman, THOMAS MCCUNE, CRAIG LITT, WILLIAM QUINN AND EDUARD KERKHOVEN, Members, constituting the Town of Ontario Planning Board, and EDWARD COLLINS, Code Enforcement Officer for the Town of Ontario, Defendants. INTRODUCTION 97 -CV DECISION and ORDER Plaintiff, Sprint Spectrum, L.P. d/b/a Sprint PCS ("Sprint"), brings this action under the Federal Telecommunications Act of 1996 ("the Act") and Article 78 of the N York Civil Practice Laws and Rules, seeking to annul a decision of the Town of Ontari ("the Town") Planning Board which denied Sprint's applications for site plan approval three cellular towers in the Town Sprint asks this Court to grant its applications and dir the Token's Code Enforcement Officer to issue a permit for each site. Currently pendir are the parties' motions for summary judgment. For the reasons discussed below, plaintiff's motion is denied and defendants' cross-motion for summary judgment is granted. http://www.seer ieflorida.org/celsprintvsontario.html 9/21/00 13 r TOWN COUNCIL - OCTOBER 3, 2000 Sprint has obtained an exclusive license from the Federal Communications Commission ("FCC") to provide digital personal communications services ("PCS") for Buffalo Major Trading Area ("MTA"), which encompasses most of Western New Yorl including the Town of Ontario. Sprint paid $19,000,000 for this ten-year FCC license, which requires it to provide PCS service to at least one-third of the population in the Buffalo MTA within five years of the issuance of its license. Sprint maintains that, in order to provide continuous uninterrupted service, it must develop an interconnected network of "cell sites" (i.e. antennae mounted on a pole or other structure) to provide overlapping coverage in a grid pattern. The coverage area provided by each antenna depends on the height of the antenna, density of population, and local topography. On May 21, 1996, Sprint filed with the Town of Ontario Planning Board three separate applications for site plan approval to construct cell sites at 426 Ridge Road, 6! Slocum Road, and 193 County Line Road. Although Sprint's applications sought individual permits to erect a 150 -foot tall steel -gray "monopole" cell tower on each site Sprint's counsel conceded at oral argument that it was submitted on an all or nothing b. The Town Planning Board discussed the applications at meeting and/or public hearings on June 11, 1996; July 9, 1996; August 13, 1996; September 4, 1996; September 17, 1996; May 20, 1997; July 8, 1997; August 26, 1997; and September 25, 1997. After each meeting, Sprint submitted additional information or responses to pi comments as requested by the Town. Sprint provided, among other things, simulated photos showing the proposed towers both with foliage on the surrounding trees and without foliage, as requested by the Town. Sprint also completed detailed Draft and Fi Environmental Impact Statements which included computer-generated maps showing t proposed service areas at the Town's request, as provided by the New York State Environmental Quality Review Act (`SEQRA'), Article 8, New York Environmental Conservation Law. On September 25, 1997, the Town made its final findings which were transcril and filed with the Ontario Country Clerk on October 1, 1997. The Town Planning Boa denied all three of Sprint's applications for site plan approvals based on its findings tho (1) the Sprint project would have "a measurable and significant impact on property values"; (2) the "cumulative impact of multiple towers would have a significant environmental impact on the Town of Ontario"; (3) there would be "visual impact frorr any tower that is visible over a wide area." The Board's main concern was apparently Sprint's unwillingness to consider alternatives (or, indeed, to even provide the Town with information about alternatives) with respect to the number, height, and placement of cell towers. Sprint made a busine� decision that the Town of Ontario should be classified as "suburban" and, thus, that a signal strong enough for "in -building" coverage (-99dBm) was required. Accordingly, Sprint insisted upon the approval of all three towers as being necessary to provide adequate (i.e. "in -building") coverage to the area it sought to service. http://www.seenieflorida.org/celsprintvsontario.htnA 9/21/00 -3prmt vs. vniano - Lecisiun anu uruer rage or y 14 TOWN COUNCIL - OCTOBER 3. 2000 Sprint had classified the neighboring towns of Walworth and Macedon as "rur and, thus, erected only one tower in each of those towns, which was sufficient to provi( "in -vehicle" coverage (-103 dBm). The Town of Ontario Planning Board found that th population, topography, and other characteristics of Ontario were sufficiently similar tc Walworth and Macedon that it should have also been classified as "rural" by Sprint, an that one tower would be sufficient. Sprint disputes the Token's authority to challenge i business decision regard the level of coverage it decided to provide. Sprint insists that Court's inquiry is limited to whether the Town's action in denying all three site plans v "supported by substantial evidence contained in a written record" 47 U.S.C. 332 (c)(7)(B)(iii). DISCUSSION The central issue is whether the Town of Ontario exceeded its authority in der. Sprint's application for three cell towers on the basis that Sprint's evidence demonstrat that a single tower could adequately perform the function necessary to provide the desi level of service to its cellular customers. Sprint insists that the question of adequacy of service in determining the number of towers necessary is not a permissible area of inqu by the Town. The issue exemplifies the tension between the competing interest of loca home rule and the implementation of the Federal Telecommunications Act of 1996. "' power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both t and rural communities." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 191 S.Ct. 2176, 2182 (1981). However, a local government's power to regulate land use is not unlimited, especially with respect to "personal wireless services facilities" (i.e. cell tower). Cellul service facilities are entitled to special zoning consideration both under the Federal Telecommunications Act of 1996, 47 U.S.C. 332, and New York law, which has classil cellular providers as "public utilities." Cellular Telephone Co. v. Rosenberg, 82 N.Y. 2 364 (1993). The Telecommunications Act of 1996, 47 U.S.C. 332 On February 8, 1996 President Clinton signed into law the Federal Telecommunications Act of 1996 ("the Act"), which has been characterized as "an unusually important legislative enactment" establishing national public policy in favor, reducing regulation and encouraging "the rapid deployment of new telecommunication: technologies." See Reno v. American Civil Liberties Union, _U.S. _, 117 S.Ct. 2325 2337-38, 138 L.Ed 2d 874 (1997). The Act was not intended to preempt the authority of state and local governmc to make decisions regarding the placement of wireless communications facilities within http://www.scenieflorida.org/celsprintvsontario.html 9/21/00 r- �5 TOWN COUNCIL - OCTOBER 3, 2000 their border. BellSouth Mobility, Inc. v. Gwinnett County, Georgia, 944 F. Supp. 923, 927 (N.D.Ga. 1996); Sprint Spectrum, L.P. v. Town of Farmington, 1997 WL 631104 (D.Conn. 1997). Rather, the Act reserves zoning authority to local governments while placing certain limitations on the exercise of that authority with respect to the regulatio of the personal wireless services. The Act provides, inter alia. (c)(7) Preservation of Local Zoning Authority. General Authority. Except as provided in this paragraph, nothing in this chaps shall limit or affect the authority of a State or local government ? over decisiol regarding the placement, construction, and modification of personal wireless service facilities. Limitations. The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof - shall not unreasonably discriminate among providers of functionally equivalent services; and shall not prohibit of have the effect of prohibiting the provision of personal wireless service Any decision by a State or local government or instrumentality thereof to den; request to place, construct, or modify personal wireless service facilities shall in writing and supported by substantial evidence in a written record ? 47 U.S.C. 332 (c)(7). Sprint argues that the Town has violated the Act by (1) failing to support its decision by substantial evidence in a written record; (2) unreasonably discriminating among providers of wireless services; and (3) effectively prohibiting the provision of personal wireless services. Decision supported by Substantial Evidence in a Written Record: 47 U.S.C. 332 (c)(7)(B)(iii). The Town's decision denying Sprint's applications for three site plan approval supported by "substantial evidence in a written record," as required by 47 U.S.C. 332(c)(7)(B)(iii). http://www.scer icflorida.org/celsprintvsontario.html 9/21/00 16 TOWN COUNCIL - OCTOBER 3. 2000 Sprint contends that the Town Planning Board acted beyond its authority beca it based its decision on considerations not permitted by N.Y. Town Law 274-a and the Town of Ontario Zoning Ordinance. Sprint insists that the Token's decision was based on the impermissible considerations of network design issues (i.e. Sprint's decision to provide "in -building" coverage) which were beyond the scope of the Town's statutory authority for consideration. Sprint notes that it is a public "utility" and the applications at issue were "pen land uses" for the parcels selected. Thus, Sprint argues that the Town abused its limite site plan approval power when it denied its application to erect three cell tower. The Town claims that it complied with the Telecommunications Act, the New York Town Law, the Town of Ontario Zoning Ordinance, and SEQRA in making its detailed findings regarding the economic, environmental and aesthetic impact of Sprint proposed tower locations. Furthermore, the Town makes a compelling argument that Sprint has overplayed its rights as a "public utility" by insisting that the Town was not allowed to even consider whether one tower could provide the level of service necessar as opposed to three towers. I find that the Town acted within its authority in considering alternatives to Sr proposed placement of three towers. Under New York law, cellular providers are considered "public utilities," and are entitled to wider zoning latitude in order to provic the service for which they are mandated. Cellular Telephone Co. v. Rosenberg, 82 NA 2d 364 (1993). But Sprint's status as a utility does not grant it carte blanche authority dictate the number and location of cell towers in any locality. While "it has long been 7 that a zoning board may not exclude a utility from a community where the utility may place a facility wherever it chooses with the community." Matter of Consolidated Edis v. Hoffman, 43 N.Y. 2d 598, 610 (1978). (Emphasis added.) After considering Sprint's application, the Town concluded that one cell towe strategically located, would effectively eliminate service gaps in that area and improve transmission and reception of existing service. Sprint's contention is that as a utility, it has the exclusive authority to determv number of cell towers necessary to provide the desired level of service to the Town of Ontario and the surrounding communities. An important distinction between cellular providers and other "public utilities" is that the level of service provided by the more traditional public utilities, such as electric, gas and telephone, are heavily regulated by Public Service Commission or the Federal Communications Commission. Generally t1 utilities are regarded as monopolies subject to intensive administrative regulation. However the Federal Communications Commission does not regulate cellular provider: to the same extent. See 47 C.F.R. 24.103 (e) [Requiring only that PCS licensees provic "reliable service."] No administrative agency acts as a buffer between cellular compal competitive need to provide the highest level of service possible and the communities' http://www.scenicflorida.org/celsprintvsontario.html 9/21/00 i 7 TOWN COUNCIL - OCTOBER 3, 2000 _. need to secure the comprehensive balanced use of property in their community. Thus, Sprint, like any cellular provider, is required under New York Law to provide "compel) reason, economic or otherwise," justifying its request for three towers as more feasible than the alternative options offered by the Town of Ontario. Localities are still left to determine the location and number of towers needed to provide adequate service to the residents. Consolidated Edison of New York v. Hoffinan, 43 N.Y.2d 598 (1978). $,y - enacting the Telecommunications Act, Congress did not intend to pre-empt the authoril state and local governments to regulate the location of cell towers within The Town Planning Board did not exceed its authority in considering whether adequate service could be provided with fewer than three towers. Although considerat: for the "level of service" as such is not a specific factor listed in N.Y. Town Law 274-a or in the Ontario Zoning Ordinance, the Town was nonetheless authorized to consider whether alternative sites are available for a public utility's facility which could provide and adequate service. Niagara Mohawk Power Corp. v. Fulton, 8 A.D.2d 523 (4th Dept 1959) [In determining the reasonable necessity of a particular site, consideration must 1 given to the availability of other sites and to the degree of detriment that might be caus by the various sites ?]; Bell Atlantic NYNEX Mobile, Inc. v. Lonergan, 172 Misc. 2d 317 (Sup. Ct. Westchester Cry. 1997) ["Public necessity is shown when `the proposed; is necessary to enable the company to render safe and adequate service and that no alternative sites are available which could be used with less disruption to the communit zoning plan,"' citing 1 Anderson, New York Zoning Law and Practice @11.24.]; Gene; Telephone Co. v. Szmigel, Slip Op. Index No. 6707/96, Sup. Ct., Monroe County, Feb. 6, 1997. (Calvaruso, J. [Holding that "it is incumbent on Cellular One to show compell reasons why the proposed [cell tower site] request is more feasible than other option."] Sprint achieved "in -vehicle" coverage (-103 dBm) with one tower in the simil: constituted neighboring towns of Walworth and Macedon. However, throughout this litigation, Sprint has consistently referred to the "in -building" level of coverage (-99 dF as Sprint's goal or "objective," for the Town of Ontario without providing any authorit. (FCC regulation, License condition, etc.) as to why that higher level of coverage is the minimal level which would be "adequate" for the Town of Ontario. Even so, the Town still had the authority to determine whether Sprint could provide that level of service w fewer than three towers. Finally, the Town has shown by substantial evidence that Spri can provide the "in -building" level of service to Ontario with sufficient overlap of cove to neighboring towns by erecting only one centrally located tower. Evidence in the record which supported the Town's decision includes computer-generated diagrams prepared and submitted by Sprint (Figures F-2 and F-5, attached as Exhibit L to the Hornick Affidavit), which show the comparative areas of "in -building" coverage achieved with Sprint's proposed three towers (Fig. F-2) as oppo to the Town's proposed single, centrally -located 250 -foot tower in an industrial zone (I F-5). A comparison of each alternative shows that the area of in -building coverage is http://www.seenieflorida.ora./celsprintvsontario.html 9/21/00 1B TOWN COUNCIL - OCTOBER 3, 2000 substantially similar under both options. Particularly noteworthy is the fact that both options clearly provide the "in -building" level of service to the most heavily -populated (western) portion of the Town, which according to Sprint's own testimony before the Board, was its primary objective. [See Minutes of May 20, 1997 Board Meeting, attached at Exhibit I to Ilornick Affidavit, in which Sprint's attorney told the Board tha "the PCS license requires Sprint to cover people rather than a requirement to cover an area. The goal is to be where the people are."] I find that the Town Planning Board's denial of site plan approval for Sprint's proposed three towers was supported by substantial evidence in a written record as required by 332 (c)(7)(B)(iii) of the Act. The Town made specific written findings afte conducting no less than nine lengthy meetings or hearings on Sprint's applications. Th fundings were based on the evidence submitted to the Planninv Rnard by cr,r;nt- 9,,,t I= mteresrea parues waren supported the conclusion that the proposed towers a cumulative economic, environmental and visual impact on the Fown. Guided by the traditional zoning factors set forth for site plan approval in N.Y Town Law 274-a and the 1996 Ontario Zoning Ordinance, the Town considered the cumulative impact of three towers and determined that the project as a whole was not entitled to site plan approval. The Town found that Sprint could provide the same or similar "adequate" service with substantially less economic, environmental, and aesthe impact by erecting one 250 -foot tall tower in the Token's industrially zoned district. Th Town was left with no option but to deny Sprint's applications because Sprint insisted an "all -or -nothing" approval of all three sites. Discrimination Among Providers, 47 U.S.C. 332 (c ) (7) (B) (I) (i) Sprint maintains that the Town's denial of its applications "unreasonably discriminate[s] among providers of functionally equivalent services" in violation of 47 U.S.C. 332 (c)(7)(B)(I)(i). Sprint argues that Frontier Cellular was granted a permit by Town in 1993 to erect a 250 -foot cellular tower without having to provide much of the information (including the detailed environmental data) which was required of Sprint. complains that the Town's actions have the effect of denying Sprint the opportunity to compete for cellular customers in Ontario. The record shows that Frontier erected a single tower within the Town's publi. Utility corridor in an industrially zoned area - the exact proposal which Sprint has rejec in the case. In support of its actions, the Town cites the Congressional Conference Rel explaining that it was Congress' intent that the phrase "unreasonably" discriminate bet, providers would provide localities with the flexibility to treat facilities that create diffe, visual, aesthetic or safety concerns differently to the extent permitted under the genera applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's �9 TOWN COUNCIL - OCTOBER 3, 2000 0 50 -foot tower in a residential district. H.R. Rept. No. 458, 104th Cong., 2nd Sess. 208 (1996). I find that the Town has not "unreasonably discriminated" among providers of personal communications services. Although the Town did not require Frontier to subr the lengthy Draft and Final Environmental Impact Statements and other supporting documentation which Sprint was required to provide, the Circumstances of the Frontie, application were significantly different than those of the Sprint applications. The Tows Planning Board's status as the SEQRA "Lead Agency" required it to mitigate adverse environmental impacts to the maximum extent possible. The Board's determination the the Sprint applications for construction of three towers in residential zones required submission of the detailed Environmental Impact Statements did not constitute an "unreasonable discrimination" among providers. Likewise, the Town's approval of a singular tower in the public utility corridor of an industrial zone for Frontier and denial Sprint's applications for three towers in residential zones is not an "unreasonable discrimination," even if it places Sprint at a competitive disadvantage. There is no question of Sprint's need to erect a cell site in the Town of Ontaric eliminate gaps and to integrate its service with the neighboring townships. But the Tov was left with no choice but to reject Sprint's "all or nothing" applications for three tow The record is clear that the Town would grant Sprint's application for one 250 -foot tom in the Town's industrial zone but Sprint has refused to modify its request for anything 1 than three towers. I fmd that the Town has not violated the Act by "prohibiting the provision of personal wireless services." CONCLUSION The Town has not violated any provision of the Federal Telecommunications Act, New York state law, nor the Town of Ontario Zoning Ordinance. The Town's denial of Sprint's applications was based on substantial evidence in the written record, did not unreasonably discriminate among cellular providers, and did not have the effect of prohibiting the provision of personal wireless communication services. Although Sprin entitled to deference, as a public utility, to locate a cellular facility in the Town of Onta it is not entitled to dictate the number and placement of those facilities. Sprint consistel rejected the Town's proposed alternative of one facility, insisting on its right to singula determine the level of service and the number of towers necessary to achieve that level service. Accordingly, it is hereby ORDERED that plaintiff's motion for summary judgment is granted and the complaint is dismissed. ALL OF THE ABOVE IS SO ORDERED. MICHAEL A. TELESC, http://www.seenicflorida.org/ceisprintvsontario.html 9/21/00 Nprmt vs_ Untano - Decision and Order 20 TOWN COUNCIL — OCTOBER 3, 2000 Page 9 of 9 United States District Ju Dated: Rochester, NY February 19, 1998 0 ) 998-1000 by Scenic America - Florida Chapter. Inc. Scenic America - Florida Chapter, hu. (Citizens for a Scenic Florida) is a 501(cx3) nonprofit corporation which allows your contribution to be tax deductible. Membership in Citizens for a Scenic Florida automatically conveys membership in Scenic America, Inc. and you will receive their quarterly publications. Last Updated: 04/072000 14:01:24 http://www.seenicflorida-org/celsprintvsontario.htmi 9/21/00 21 TOWN COUNCIL - OCTOBER 3, 2000 COURT CASES 1. AT&T Wireless PCS vs. City Council of Virginia Beach: City Council of Virginia Beach denied a special use permit based largely upon the outcry of the citizenry which contended that the wireless facility was aesthetically harmful to the neighborhood. 2. AT&T Wireless vs. Winston-Salem Zoning Board: The Fourth Circuit favored the municipality on the grounds that the use was not in harmony with the comprehensive plan. 3. PrimeCo Personal Communications vs. the Village of Fox Lake: The Federal District Court in Illinois found that the municipality had presented "substantial evidence" that supported denial of a special use permit The wireless provider had proposed to place a tower at a location that was identified as a gateway to the community. The court accepted testimony of professionals, consisting of a planner and an architect who stated that the economic and aesthetic value of the resort community would he adversely impacted by the siting of the facility. The professionals further testified that the gateway was essential to the community for attracting commerce and industry and the location of the wireless facility would be harmful to the general welfare of the community. 22 1VCw I U1K law JvwlL l TOWN COUNCIL - OCTOBER 3, 2000 SOFTWARE TECHNOLOGY n e W 5 North Suburban Cell Phone Towers - Front Page Edition • Bach Page - Today-* Nev,,!; Spark Litigation update '- .r - Lon- Isla -.d �.. Editicn neighborhoods. 9 • Ncrh -uburban Edition By Mami Halasa • On Your The expansion of the wireless communications industry, especially in - +verdict: & =et:leme ::: Monday, June 26, 2000 • Tech Trend:; carriers and zoning boards, which has resulted in the creation of a new • Prev ous 5-tories WHITE PLAINS — It's been a constant dilemma: everyone wants cell - Enrrection:; phone service, but no one wants those unsightly towers in their backyards. courts - Decisions .n' From Spring Valley to Mount Vernon to the Town of Clarkstown, ince*est municipalities in the north suburbs have been duking it out with companies - Preu ou.; Cec ;icns that provide cellular telephone service, pushing providers to either relocate of interest their cell towers to more remote areas or to ban them altogether from their • Court,. on 'JYJ neighborhoods. 9 • Judc_ew' P^otilc: - Cnurt & Judozs' P- =^ The expansion of the wireless communications industry, especially in - court notes suburban and rural areas, has led to an increase in litigation between ensu er La.: �.: de carriers and zoning boards, which has resulted in the creation of a new area of law for attorneys specializing in these disputes. Lawyers claim that resources these controversies have plagued the suburbs much more than urban • �.nLart 133 areas, which have tall enough structures for cellular antennae to disappear • A:-nLa•n L.ssodate into the skyline. • o.: ate Pay 'r:atch "In the last year, I've seen an increase in litigation," said Christopher - ear E*an Fisher, a partner at Cudder & Feder & Worby in White Plains, who has - aas:;ivied +•.ds represented carriers in their applications. "That's happening because more • ELE --ale-dar carriers are now pushing into communities that haven't been served, into - Legal E:e_ee:; r er;ices areas where there is residential zoning or some kind of historical - ttvLar:';re.. significance." • To_ _ c Lar; F 17. Lawyers assert the rise in litigation began with the Telecommunications • E_ -n Act of 1996, passed by Congress to prevent towns from using their zoning regulations to thwart carriers from building a national communications s ervi cess network of wireless coverage. The act was also passed to promote contact us competition among carriers. _ -e Guice �a i e csicn "Normally with any development, towns are allowed to take into - Prcles=io al consideration the health, safety and welfare of (their) residents," explained A-cunceme^t:, James W. Borkowski, an attorney with Bleakley Platt & Schmidt in White http://www.nylj.corWnortIVOO/06/nsO62600al.htrfl i ur,- i v - 9/21/00 1VGW 1 Vll� LGt vY JVLLLLL�I 23 TOWN COUNCIL - OCTOBER 3, 2000 YY,., ,,,..,,,..,�.,,.,.,� u,..._ N,...,.,,. • d;errs r c towers from being erected based on that argument. So they really have had a license to build." Fighting Back But municipalities now are fighting back. Case law shows carriers nearly always sue in federal court to avail themselves of the Act's protection. Recently, courts have been willing to give towns some leeway to object as long as carriers are able to cover gaps in service. The Second Circuit's decision last year in Spring Spectrum, LP v. I/Villoth, 176 F.3d 630 (2d Cir. 1999), held that towns may reject an application to construct a wireless facility in an underserved area if the service gap can be filled by "less intrusive means." In that case, adequate coverage was found to have been obtainable by erecting fewer than three towers. And in this year's recent Southern District of New York decision, New York SMSA Ltd. P'ship v. Town of Clarkstown, the court relied on a theory of "prudent avoidance:" if all the applicants met the radio frequency requirements, the planning board could select the one carrier it felt best minimized the effects of radio frequency emission on the "health, safety and welfare" of the community. "I think what we're seeing is that courts now are finding that towns have a meaningful role to play," said John M. Wilson II, a partner in Rochester's Boylan, Brown, Code, Fowler, Vigdor & Wilson. Mr. Wilson has represented a number of municipal counties in cell tower disputes and was litigation counsel to the Town of Ontario in Spring Spectrum v. IMllothll'own of Ontario, 996 F.Supp. 253 (WDNY 1998). Generally, courts have held that although municipalities cannot ban cell towers, carriers also cannot place them wherever they want. Courts are demanding municipalities be specific and provide substantial evidence when arguing the towers' negative impact on towns' aesthetic and property values. Lawyers have noticed that towns such as Eastchester, Greenburgh and Lewisboro are gearing up for potential cell tower disputes. Not only are they becoming more sophisticated and detailed in their arguments in denying providers' applications, they have also expanded their local laws to include regulations dealing exclusively with cell towers. "We enacted our own cell tower law in the beginning of 1999 to give us some control over the proliferation of cell towers in the area," said Gerald Jacobs, the town attorney for the Town of Eastchester. According to Mr. Jacobs, carriers must get a special permit from the town and meet specific criteria before they can get approval from the town's zoning board. Criteria include the town's need for service, whether the carrier can co -locate on an existing site, the carrier's engineering report on the emissions and a site plan that must be approved by the town's planning board. But lawyers representing municipalities predict a difficult road. The Act is really skewed against the towns, claimed Daniel N. Kraushaar, an attorney in Nanuet who has represented the Town of Clarkstown, Ailmont and North Hempstead against wireless carriers. "I don't think the Act sufficiently protects municipalities from future technological advances. In the not too distant future, we may see carriers do away with towers, and want to put up smaller antennas on existing poles. Because there is no provision in the Act to get rid of them, there is no built-in protection for the municipalities," he said. Working Together http://www.nylj.com/north/00/06/nsO62600al.htrnl 9/21/00 New z orx Law journar rage J 014 ''24 TOWN COUNCIL - OCTOBER 3, 2000 A recent trend, however, has been for municipalities and carriers to work together to find a reasonable solution. In the north suburbs, towns like White Plains, Harrison and Mamaroneck have worked closely with carriers to find the best possible site for cell towers, said Leslie Snyder of Snyder & Snyder in Tarrytown. Ms. Snyder has represented a number of carriers. "Carriers want to work with municipalities for the best solution," she asserted. "I think both parties have realized that it's in their best interest to work together." Mr. Wilson has seen the same trend. Specifically, he has noticed towns inviting communication companies to help them find suitable locations for the towers. "Sometimes they will negotiate a shorter tower, or a tower in a more remote area. It's definitely done on a case-by-case basis," he explained. Mr. Fisher said carriers have implemented creative solutions, such as placing towers on top of flagpoles, trees and silos, and will even paint the antenna the same color as the existing structure. In Nextel of New York v. Village of Spring Valley, 00 Civ. 0529, the court allowed the carrier to place its antenna atop a water tank. Because the tank was not enlarged and the antenna was painted the same color, the court held Nextel's placement of its antenna was not burdensome or inappropriate. Attempting to compromise, said David Snyder of Snyder & Snyder, is the best strategy. He maintaains that municipalities pushing the envelope to create more litigation is not going to make the carriers go away. Current statistics show the industry growing by leaps and bounds. According to the Cellular Telecommunications Industry Association, as of Dec. 31, 1999, more than 31 percent of the U.S. population were using wireless phones. And the number is growing: the Association estimates that there are 45,924 new wireless subscribers every day, one every two seconds. "Even if the towns are successful in muddying the waters, it just creates more fodder for Congress to go back to the Act to create new remedies for carriers. In that sense, the towns will sow the seeds of their own destruction," he said. Next Phase of Litigation The next phase of litigation, lawyers predicted, may be when newer technologies emerge demanding even greater coverage from wireless facilities. In the next few years, Mr. Fisher predicts hand-held computers and cell phones will become one unit operating on a wireless network. "Because the public is going to need even more towers to provide this capacity, communities are going to be inundated with applications and feel like carriers are closing in on them. So we may see more suits," he said. On the other hand, Charles McGroddy, town attorney for the Town of Lewisboro, believes there will be fewer suits in the future. Once the public realizes better service requires a greater number of towers, there will be more pressure on the towns to allow carrier applications, he said. http://www.nylj.com/north/00/06/nsO62600a l .html 9/21/00 2S TOWN COUNCIL - OCTOBER 3, 2000 MINUTES OF A PUBLIC HEARING / REGULAR SESSION FOR THE PLANNING AND ZONING COMMISSION TOWN OF TROPHY CLUB 13 September 2000 The Planning and Zoning Commission of the Town of Trophy Club, Texas met in a Public Hearing/Regular Session on 13 September 2000, at 6:30 P.M. in the Boardroom of the Trophy Club Administration Building, 100 Municipal Drive, Trophy Club, Texas 76262. COMMISSIONERS ATTENDANCE: Gene Hill present Rick Gilliland present Clayton Reed present Bob Ashby present Mark Shegon present STAFF AND GUESTS PRESENT: Kenn C. Fleck Planning& Zoning Coordinator Stan Hamrick Planning Consultant David Miller Police Chief Bill O'Loughlin Sprint PCS, Site Development Dave Petrakovitz Fossil Creek Land Co. Jim James Representative for Fellowship United Methodist Church Bonita Turner Resident 1. CALL TO ORDER AND ANNOUNCE A QUORUM. Chairman Hill called the meeting to order at 7:08 p.m., and announced a quorum was present. PUBLIC HEARING 2. PLANNING & ZONING COMMISSION TO OPEN PUBLIC HEARING. Chairman Hill briefed the Commission and the audience on the format of the -fearing. Mr. Hamrick addressed the Commission. The 1996 Telecommunications Act that the Federal Government put forth, set the basic rules for how we will permit towers at the local government level. The rules are fairly simple and straight forward, however they are different from what we are used to deal with from a standard zoning case. Basically the Town is not permitted 3. PLANNING & ZONING COMMISSION TO CONDUCT A PUBLIC HEARING RELATIVE TO THE FOLLOWING: A. REQUEST FOR THE CONSIDERATION OF AN APPLICATION FOR A CONDITIONAL USE PERMIT FOR A NON-GOVERNMENTAL INDEPENDENTLY SUPPORTED COMMERCIAL ANTENNA FACILITY, LOCATED TO THE WEST OF THE TROPHY CLUB/ WESTLAKE DEPARTMENT OF PUBLIC SAFETY BUILDING, 102 MUNICIPAL DRl,/E, (APPLICAINIT: BELL O' LOU- ILIN, SPMiNT PCS}. it TOWN COUNCIL - OCTOBER 3, 2000 4. PLANNING & ZONING COMMISSION TO CLOSE PUBLIC HEARfiNG AND/ OR CONTINUE TO A DATE CERTAIN. 5. PLANNING & ZONING COMMISSION TO CONVENE INTO A REGULAR SESSION. REGULAR SESSION 6. PLANNING & ZONING COMMISSION TO OPEN REGULAR SESSION. 7. PLANNING & ZONING COMMISSION TO TAKE APPROPRIATE ACTION AND MAKE A RECOMMENDATION TO THE TOWN COUNCIL REGARDING: A. REQUEST FOR THE CONSIDERATION OF AN APPLICATION FOR A CONDITIONAL USE PERMIT FOR A NON-GOVERNMENTAL INDEPENDENTLY SUPPORTED COMMERCIAL ANTENNA FACILITY, LOCATED TO THE WEST OF THE TROPHY CLUB/ WESTLAKE DEPARTMENT OF PUBLIC SAFETY BUILDING, 102 MUNICIPAL DRIVE, (APPLICANT: BILL O'LOUGHLIN, SPRINT PCS). Vice Chairman Gilliland made a motion to recommend approval of the conditional. use permit on the property as stated, with the following conditions: The monopole will be a galvanized pole and that all equipment mounted in view on the pole would be either galvanized or painted light gray to match the color of the pole. Also, in the future, if the tower ever needed to be painted, the same guidelines would be adhered to concerning the light gray paint to match the tower. 2. The area surrounding the MCBTS for both Sprint PCS and future carriers, would be concreted and that it would be directed to drain, taking all drainage from the site to the north, and away from adjacent properties. 3. The fence surrounding the site be at least, as tall or taller than any equipment on the site and that the equipment would be completely screened from view. If there is an area immediately around the site that is higher allowing a site line down: into the area, then the fence would be constructed taller, to screen the View from surrounding properties. 4. And finally, all drainage would be into the dive, away from the adjacent property owners, to the property the site is being located on. Motion: Gilliland Second: Reed Chairman Hill offered the item for discussion. Commissioner Shegon stated he feels the tower will dominate the skyline of the Town at 120 feet on the top of a hill It will be a beacon and it will overshadow what has been 27 TOWN COUNCIL -.00TOBER 3, 2000 done with the addition of the clock tower. He went on to say that it runs counter to the upscale feel of the Town, and he is not convinced that all the site options were exhausted during the site selection process. Vice Chairman Gilliland stated that given that we do not have a lot of choice as for as whether or not we take it, there is little or no commercially zoned property in Trophy Club that would provide a better alternative site. Locating the tower in the north section of the Town is not a viable alternative because in the future, of some point, that land will have houses built on it. The conditions he previously stated are minimums. Commissioner Ashby suggested there be assurances by Sprint PCS )-hat additional items are addressed such as adequate erosion control to ensure that there are no erosion problems during construction that would put any silt or heavy soil down into the drainage areas behind the site as well as if any of the construction causes any drainage problem in the reverse to the south, southeast, those problems would be addressed and resolved to eliminate the problem. Also Commissioner Ashby would like assurances from Sprint PCS that any utilities that may be moved accordingly will be relocated and made accessible at Sprint's expense. Commissioner Reed stated that he would prefer not to see a tower in Trophy Club, and with FCC regulations, there is not much leeway provided for the Town. However, from a DPS standpoint, a tower would most likely end up on the site anyway. Vice Chairman Hill said that if Trophy Club has to have a tower, it is much better to have a monopole, than a latticework tower. The Town is limited according to FCC regulations, and the Town must allow the use as long as it meets all of our criteria, which it does. Therefore, the idea is to go for the best we can get. Vice Chairman Gilliland made a motion to amended his previous motion to add the provision that there be no on-site fuel storage facilities. Amended Motion: Gilliland Second: Reed Ayes: Hill, Ashby Nays: Gilliland, Shegon Action: 3-2 Motion carried. A recommendation will be made to the Town Council to approve the request for a conditional use permit with the previously mentioned stipulations. 3 28 TOWN COUNCIL - OCTOBER 3. 2000 8, REPORTS FROM COMMISSIONERS, OTHER MATTERS. 9. REPORTS FROM STAFF. Ms. Fleck had no comments. 10. ADJOURNMENT: Chairman Hill adjourned the meeting at approximately 7:35 p.m. Gene Hill, Chairman (SEAL) Kevin C. Fleck, Planning & Zoning Coordinator KCF/PLANNING&ZONING/MINUTES/JUL,AUG,SEP/07202000 REG SESS [7/21/00 9:55:45 AM]] 11 29 TOWN COUNCIL - OCTOBER 3. 2000 .. MINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA October 5, 1998 The Commission of the City of Bozeman met in regular session in the Commission Room, Municipal Building, October 5, 1998, at 3:00 p.m Present were Mayor Stiff, Commissioner Smiley, Commissioner Rudberg, Commissioner Frost, Commissioner Youngman, City Manager Johnson, Assistant City Manager Brey, City Attorney Luwe and Clerk of the Commission Sullivan. Commissioner Frost was absent. The meeting was opened with the Pledge of Allegiance and a moment of silence. None of the Commissioners requested that any of the Consent Items be removed for discussion. Authorize absence of Commissioner Frost from this meeting, in compliance with Section 7-3- 4322(2), M.C.A. It was moved by Commissioner Smiley, seconded by Commissioner Rudberg, that the Commission authorize the absence of Commissioner Frost from this meeting, in compliance with Section 7-3-4322 (2), M.C.A. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Smiley, Commissioner Rudberg, Commissioner Youngman and Mayor Stiff, those voting No, none. http://www.bozeman.net/conirnission/I 00598.htm 9/21/00 rage J 30 TOWN COUNCIL - OCTOBER 3, 2000 Wireless, under Application No. Z-98136, to allow the mounting of antennae and associated support equipment on the existing City of Bozeman water tank on an easement site within Josephine Park, LeClairs Rearrangement of Grafs First Subdivision, Second Filing. The subject site is more commonly located at the end of Kenyon Drive. City Manager Johnson noted that, distributed to the Commission, was a memo from Staff Attorney Cooper, dated September 30, suggesting that this item and the next item be tabled until after Ordinance No. 1479 is in effect. He then recommended that the Commission table consideration this item and the following item to December 7, which is the first Commission meeting after the effective date of the ordinance. It was moved by Commissioner Smiley, seconded by Comnilssioner Rudberg, that the Commission table consideration of this application to December 7, 1998. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Smiley, Commissioner Rudberg, Commissioner Youngman and Mayor Stiff, those voting No, none. Conditional Use Permit - 3 Rivers Wireless - allow the mounting of antennae and associated support equipment on the existing Riverside Water District water tower located in the SWI/4, SE'/4 Section 23, TIS, R5E, MPM (west side of Springhill Road north of Gallatin Drive (2 98135 This was the time and place set for review of the Conditional Use Permit requested by 3 Rivers Wireless, under Application No. Z-98135, to allow the mounting of antennae and associated support equipment on the existing Riverside Water District water tower located in the Southwest one-quarter of the Southeast one-quarter of Section 23, Township 1 South, Range 5 East, Montana Principal Meridian. The subject site is more commonly located along the west side of Springhill Drove, north of Gallatin Drive. It was moved by Commissioner Rudberg, seconded by Commissioner Youngman, that the Commission table consideration of this application to December 7, 1998. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Rudberg, Commissioner Youngman, Commissioner Smiley and Mayor Stiff; those voting No, none. Preliminary plat review for Sundance Springs PUD, Phases IIA and IIB - Sundance Springs Development L.L.C. - subdivide 67.82 acres located in the NE'/4, Section 30, T2S R6E MPM into 75 lots for sinele-family residential development (northeast corner of intersection of South Third Avenue and Goldenstein Lane) (P-9841) This was the time and place set for review of the preliminary plat for Sundance Springs Planned Unit Development, Phases IIA and IIB, as requested by Sundance Springs Development, L.L.C., under Application No. P-9841, to subdivide 67.82 acres located in the Northeast one-quarter of Section 30, http://www.bozeman.net/commission/I 00598.htm 9/21/00 31 TOWN COUNCIL — OCTOBER 3, 2000 EXHIBIT E Site Name Trophy Club PCS Site Agreement Site I. D. DA23XC703C Relocation Right A. Owner will have the one-time right to relocate the communications facility of SSLP, or any part thereof, to an alternate g location on Owner's property and/or to space within and/or on top of a building situated on Owners property (the "Building"); prof however, that such relocation will (1) be at Owner's sale cost and expense, (2) be performed exclusively by SSLP or its agents, (; result in any unreasonable interruption of the communications service provided by SSLP on Owner's property, (4) not unreasoi impair, or in any manner alter, the quality of communications service provided by SSLP on and from Owners property, and (5) be in accordance with the terms and conditions contained in paragraphs B. and C. below. Upon relocation of the communications fa of SSLP, the access and utility easement(s) of SSLP will be relocated as required, in the sole discretion of SSLP, to operate maintain the communication facility of SSLP. S. Owner will exercise its relocation right under Paragraph A., above, by (and only by) delivering written notice (the "notice") to Sf In the notice, Owner will propose an alternate site on Owner's property to which SSLP may relocate its communications facility. St will have sixty (60) days from the date it receives the notice to evaluate Owners proposed relocation site, during which period S, will have the right to conduct tests to determine the technological feasibility of the proposed relocation site. If SSLP fails to approvr such proposed relocation site in writing within said sixty-day period, then SSLP will be deemed to have disapproved such propos relocation site. If SSLP disapproves such relocation site, then Owner may thereafter propose another relocation site by notice to SS in the manner set forth above. Any relocation site which Owner and SSLP agree upon in writing is referred to hereinafter as "Relocation Site". SSLP will have a period of ninety (90) days after execution of a written agreement between the partis concern the location and dimensions of the Relocation Site to relocate (at Owner's expense) its communications facility to the Relocation Site e C. Upon relocation of the communications facility of SSLP, or any part thereof, to the Relocation Site, all references to the Site in tl Agreement will be deemed to be references to the Relocation Site. Owner and SSLP hereby agree that the Relocation Site (includir the access and utility rightofway) may be surveyed by a licensed surveyor at the sole cost of SSLP, and such survey will then replac Exhibit A and become a part hereof and will control or describe the Site. Except as expressly provided in this Exhibit, Owner ar SSLP hereby agree that in no event will the relocation of the communications facility of SSLP, or any part thereof, u above, affect, alter, modify or otherwise change any of the terms and conditions of the foregoing Agreement. nder Paragraph A Owner Initials SSLP In 32 TOWN COUNCIL - OCTOBER 3, 2000 EXHIBIT F Site Name Trophy Club PCS Site Agreement Site i. D. DA23XC1o3C Easement Relocation Right 1. Owner will have the right to relocate the access/utility easement of SSLP, or any part thereof, to an alternate ground locatio Owner's property; provided, however, that such relocation will (1) be at Owner's sole cost and expense; (2) be performed excius by Owner, to a condition equal or better (in the sole discretion of SSLP) than the existing SSLP access/utility easement; (3) not rE in any unreasonable interruption of the existing access by SSLP or existing utility service to SSLP on owners property as SSLP has approved, in writing, the completion of construction of any proposed easement relocation; Owner's not unreasonably imp interrupt, or in any unreasonable manner alter, the quality of communications service provided by SSLP on and from un Owners prop= and (5) be done in accordance with the terms and conditions contained in paragraphs 1 and 2 below. 2. Owner will exercise its relocation right under Paragraph 1, above, by (and only by) delivering written notice (the "notice") to SSL In the notice, Owner will propose an alternate easement on Owner's property to which SSLP may relocate its access/utility easemel SSLP will have thirty (30) days from the date it receives the notice to evaluate Owners proposed relocated easement, duea period SSLP and servicing utilities will have the right to inspect proposed easement to determine the feasibility of thering relocated easement. if SSLP or servicing utilities fail to approve of such proposed relocated easement h writing within said pro whr period, then SSLP will be deemed to have disapproved propose se relocated easement, then Owner may thereafter propose sanotherprelo relocated easement byosed relocated enotice nt. If SoL SLrPain the manner set above. Any relocated easement which Owner and SSLP agree upon in writing is referred to hereinafter as the PRelocated Easement' Owner affirms that Owner will continue to cooperate with SSLP's efforts to obtain utilities from the appropriate, in the discretion o SSLP, source of electric and telephone facilities. 3. Upon relocation of the access/utility easement of SSLP, or an y part , to the Relocatedereof access/utility easement in the Agreement will be deemed to be references tohthe Relocated Easement asemnt, all references to the Ow erand SSLP hereby agree that the Relocated Easement will be surveyed by a licensed surveyor at the sole cost of Owner, and such survey will then supersede that portion of Exhibit A relative to the access/utility easement, and become a part hereof and will control or describe the access/utility easement. An accurate copy of all documents describing the Relocated Easement shall, at Owner's expense, be duly recorded by SSLP in the official records of County, and SSLP hereby agree that in no event will the reloca----__tion __. of the access/unlit Except as expressly provided in this Exhibit, Owner Paragraph 1 above, affect, alter, modify or otherwise change any of the terms and condi ons oftthe fo egoingOf SSLP,rAgreement. Site A Y part thereof, under 9 ment. Owner Initials SSLP Initials Page 33 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 Mayor Pro Tem Edstrom made a motion to move agenda item number 12, Application for a conditional use permit for a non-governmental independently supported commercial antenna facility, before agenda item number 9, Citizen Presentations. Council Member Matthai seconded, motion carried unanimously. REGULAR SESSION TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION ON A REQUEST FOR THE CONSIDERATION OF AN APPLICATION FOR A CONDITIONAL USE PERMIT FOR A NON- GOVERNMENTAL INDEPENDENTLY SUPPORTED COMMERCIAL ANTENNA FACILITY, LOCATED TO THE WEST OF THE TROPHY CLUB/ WESTLAKE DEPARTMENT OF PUBLIC SAFETY BUILDING, 100 MUNICIPAL DRIVE, (APPLICANT: BILL O'LOUGHLIN, SPRINT PCS): Mayor Pro Tem Edstrom made a motion to continue this agenda item to November 7, 2000. Council Member Matthai seconded, motion carried unanimously. CITIZEN PRESENTATIONS: THIS IS AN OPPORTUNITY FOR CITIZENS TO ADDRESS THE COUNCIL ON ANY MATTER WHETHER OR NOT IT IS POSTED ON THE AGENDA. THE COUNCIL IS NOT PERMITTED TO TAKE ACTION ON ANY PRESENTATION MADE TO THE COUNCIL AT THIS TIME CONCERNING ANITEM NOT LISTED ON THE AGENDA. THE COUNCIL WILL HEAR PRESENTATIONS ON SPECIFIC AGENDA ITEMS PRIOR TO THE COUNCIL ADDRESSING THOSE ITEMS: Jim Carter of 204 Fresh Meadow addressed the Council. Mr. Carter announced that Denton County will dispatch for Trophy Club if he has a say in it. He is fighting the idea of charging for dispatch services. Mr. Carter also stated that the money is there whenever Trophy Club starts the project on Marshall Creek Boulevard. TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION ON THE PROPOSED EDC BUDGET FOR 2000/2001: Mayor Pro Tem Edstrom made a motion to approve the proposed EDC Budget for 2000/2001. Council Member Huizenga seconded, motion carried unanimously. REPORTS FROM COMMITTEES (FIVE-MINUTE TIME LIMIT): A. ECONOMIC DEVELOPMENT CORPORATION—DAVID GARLITZ, PRESIDENT B. PUBLIC RELATIONS COMMITTEE — JODI ASHBY, CHAIRMAN C. PUBLIC WORKS COMMITTEE —NESTOR KARLIS, CHAIRMAN D. PARKS&RECREATION—BILLYHUGHES, CHAIRMAN E. UTILITY FRANCHISE COMMITTEE —RICHARD HOBDAY, CHAIRMAN ECONOMIC DEVELOPMENT CORPORATION—DAVID GARLITZ David Garlitz reported that the committee should be receiving applications. PUBLIC RELATIONS COMMITTEE — JODI ASHBY Mayor Pro Tem Edstrom reported that Saturday October 21, 2000, from 9 AM to 2 PM, is Team Trophy Club Day. Some of the events include: basketball sign-ups, Women's Club will be selling the new directories, a raffle for a quilt, Indian Princesses will be selling popcorn, Sutton's Nursery will be selling trees and conducting a seminar on native Texas trees. Mayor Pro Tem Edstrom also reported that the Public Relations Committee is working with the Women's Club to coordinate Christmas events and the Director of the Chamber of Commerce will be attending the next Public Relations Committee Meeting. The PR Committee is also obtaining personal contacts for brochures and video distribution. PUBLIC WORKS COMMITTEE — NESTOR KARLIS Nestor Karlis reported that the street survey is complete. The committee has asked Teague, Nall and Perkins for preliminary costs. The committee is faced with repair, reconstruction, sealing and examining panels. Some of the panels have lost integrity. The committee is also looking at severe problems at some intersections and at the back of Tom Thumb for delivery dock to change swing -in for large trucks. Page 34 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 PARKS AND RECREATION COMMITTEE — BILLY HUGHES Paul Rosenberger reported that the committee has repackaged the resubmission of the grant. Paul met with George Logan on Friday, September 29 when he delivered the grant. UTILITY FRANCHISE COMMITTEE—RICHARD HOBDAY—No report. TOWN COUNCIL TO CONSIDER AND ADOPT AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS, AUTHORIZING THE PARTICIPATION OF THE TOWN OF TROPHY CLUB, TEXAS IN THE CAUSE OF ACTION STYLED THE CITY OF DENTON, TEXAS VS. TEXAS UTILITIES COMPANY AND LONE STAR GAS COMPANY OR SUCH OTHER CAUSES OF ACTION AS THE "STEERING COMMITTEE OF CITIES PARTICIPATING IN THE TXU FRANCHISE LITIGATION" MAY DETERMINE SEEKING DELINOUENT FRANCHISE FEES FROM TXU, LONE STAR GAS AND OTHER ENTITIES ASSOCIATED WITH TXU; AUTHORIZING THE EXPENDITURE OF FUNDS FOR ATTORNEY AND EXPERT WITNESS FEES; PROVIDING FOR THE DESIGNATION AND AUTHORIZATION OF A PRIMARY CONTACT OR LIAISON FOR THE STEERING COMMITTEE; PROVIDING SEVERABILITY; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE: At 11:00 p.m. Mayor Pro Tem Edstrom made a motion to continue the meeting past 11:00. Council Member Matthai seconded, motion carried unanimously. Mike Bucek of Bucek & Frank L.L.P. explained that figures should include sales tax. Questions regarding the franchise fee being paid for on disconnect and reconnect issues in the funding were also asked. Ratepayer should show what they collected. TXU shows no records for Lone Star Gas (prior to TXU taking over Lone Star Gas). Dallas' franchise contract is the only contract that excludes sales tax. Every contract in his past experience with other cities sales tax has excluded if they were not used to figure franchise fees. The charge to Trophy Club to enter this agreement would be 25¢ per resident from the 1990 Census, a $2,000 fee. Harriet Gibbon of TXU reported that TXU has not changed the way they figure the franchise fee on the service (commodity). Miscellaneous charges for Trophy Club (after hours reconnect) for: Gas Revenues (mist.) 4,300 4% is $172 Electric Revenue (mist.) 29,000 4% is $1,100 For a total of $1,272 Tiffany Haertling stated City of Denton is not seeking a class action suit. Mayor Pro Tem Edstrom made a motion to continue this discussion on October 17, 2000. Council Member Matthai seconded, motion carried unanimously. TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION REGARDING AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS PROHIBITING PARKING ON THE SOUTHSIDE OF VILLAGE TRAIL DRIVE; PROVIDING A SAVINGS CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY CLAUSE; PROVIDING A PUBLICATION CLAUSE; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE: Council Member Smith introduced this agenda item and explained the dangers for school children. Chief David Miller added to the dangers by explaining the dangers witnessed when the area was observed; children darted out from between parked cars and there was not adequate space for fire apparatus to get down the street. If passed, adequate notification to sports associations would need to be addressed. Council Member Smith made a motion to approve the Ordinance as read. Mayor Pro Tem Edstrom seconded, motion carried unanimously. Page 35 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION REGARDING A REQUEST FOR A WAIVER TO FENCE ORDINANCE NO. 2000-17, AT 2 CAMBRIA COURT, LOT 27, BLOCK 12 @ THE LAKES, (APPLICANT: JOSEPH W. KURTZWEIL, HOMEOWNER): Council Member Matthai made a motion to grant the waiver as read. Council Member Huizenga seconded. Brad Glasco of 15 Creekside Drive and Joseph Kurtzweil of 2 Cambria Court addressed the Council. Mr. Hill explained there was no action taken and that is a denial from the Planning and Zoning Commission. Council Member Smith stated that he would like to have a recommendation from Planning and Zoning for approval or denial. Mayor Pro Tem Edstrom stated that it was unfair to the resident to send back to Planning and Zoning and to expect, in the future, a motion for or against. Council Member Huizenga concerned with the masonry — wants uniformity. Council Member Matthai stated that uniformity is far more suitable. Mr. Hill stated that it goes back to a house that was built on a property line. Council Member Matthai made an amendment to the motion to require the retaining wall to be of rock to match the house. Council Member Huizenga seconded, motion carried unanimously. TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION REGARDING A REQUEST FOR A TEMPORARY USE PERMIT FOR "TEAM TROPHY CLUB DAY" OCTOBER 21 2000, (APPLICANT: JODI ASHBY, CAROL BROWN, PUBLIC RELATIONS COMMITTEE): Mayor Pro Tem Edstrom made a motion to approve the request for a temporary use permit. Council Member Huizenga seconded, motion carried unanimously. TOWN COUNCIL TO CONSIDER AND TAKE APPROPRIATE ACTION AUTHORIZING THE DIRECTOR OF PUBLIC SAFETY TO EXECUTE INTERLOCAL COOPERATION AGREEMENTS ON BEHALF OF THE TOWN OF TROPHY CLUB RELATIVE TO FIRE PROTECTION AND EMERGENCY MEDICAL SERVICES, CONTINGENT UPON TOWN ATTORNEY REVIEW AND APPROVAL OF THE PROPOSED AGREEMENTS: Council Member Huizenga made a motion to authorize the Director of Public Safety in execute Interlocal cooperation agreements on behalf of the Town of Trophy Club relative to fire protection and emergency medical services. Mayor Pro Tem Edstrom seconded. Tiffany Haertling stated that the Council is giving Chief David Miller authorization for binding contractual agreements. Tiffany Haertling will consult with Attorney Matt Boyle (DPS Board Attorney). Mayor Pro Tem Edstrom made an amendment to the motion to continue this discussion on October 17, 2000. Council Member Matthai seconded, motion carried unanimously. CONSENT AGENDA: ALL MATTERS LISTED UNDER CONSENT AGENDA ITEM ARE CONSIDERED TO BE ROUTINE BY THE TOWN COUNCIL AND WILL BE ENACTED BY ONE MOTION. THERE WILL NOT BE A SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. A. MINUTES DATED SEPTEMBER 19, 2000 B. MINUTES DATED SEPTEMBER 21, 2000 C. MINUTES DATED SEPTEMBER 22, 2000 D. TOWN COUNCIL TO ADOPT A RESOLUTION APPROVING THE TAX ROLL OF THE DENTON CENTRAL APPRAISAL DISTRICT. Council Member Matthai made a motion to approve the Consent Agenda items. Mayor Pro Tem Edstrom seconded, motion carried unanimously. Page 36 WORKSHOP/PUBLIC HEARING/REGULAR SESSION October 3, 2000 REPORTS AND COMMENTS: A. STAFF Chief Miller reported that the Emergency Access Road will be moved to the October 18, 2000 DPS Agenda. Bill Chavez reported that he reviewed Public Works and has contacted the project manager of the TxDot State Highway 114 project regarding dust and will have water on-site in a couple of days. November 24 is the date to prohibit East Bound traffic from Trophy Club Drive: U-turns will be installed before closing. Mr. Chavez also reported that Toni Thumb lights are down and shields are up and advised of traffic control at Beck Intermediate Gene Hill discussed information from Cody Pletz of Regency Reality and gave information for final problems at Tom Thumb. B. COUNCIL MEMBERS Mayor Engelbeck recognized Planning and Zoning for all their work on the Tom Thumb Center. Council Member Huizenga reported that the TxDot State Highway 114 Contractor is not doing due diligence with the 3000 gallon water trucks. Call Buzz Elson or McBride. Council Member Smith requested that financials to be in the next packet. ADJOURN: Mayor Pro Tem made a motion to adjourn at 12:02 a.m. Council Member Huizenga seconded, motion carried unanimously. Mayor, Town of Trophy Club, Texas ATTEST: L Town Secretary own of Trophy Club, Texas