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).
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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'
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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
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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,
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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
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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
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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
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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.
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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