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1981-03-03 CC PacketFEBRUARY 24,1981 MEMO.... TO: MAYOR PAT HAWK FROM: COUNCILMAN LLOYD LATTA SUBJECT: EXPECTED ABSENCE FROM CITY COUNCIL MEETING. Company business will require me to outside the Continental United States of Amercia for approximately three 3) weeks, therefore I will miss the City Council meetings on March 3 and March 17. I r ctfully ask Council to excuse my absence during this time. att r. o cilp rson February 25,1981 MEMO..... TO: MAYOR PAT HAWK AND MAYOR PRO TEM SAM SPARGER FROM: COUNCILPERSON LLOYD LATTA SUBJECT: PROPOSED ZONING ORDINANCE NO. 261 Since I will be absent at the City Council meeting when Ordinance No. 261 is considered, I would like to take this opportunity to express my opinion of the proposed Zoning Ordinance No. 261. My two years experience on the Planning and Zoning Commission and my last two years experience as eiansunusualcviewnpo~nttfromlwhenngoalookmeaftZoningCommission, provides upon the proposed Ordinance 261. Thee OrdimodinancefiascatproonpoassedhienPdranning form is not perfect and will require and Zoning Commission works with I believe that it is an its approval as presently drafted. I have attended the workshopstit Planning and Zoning Commission and I believe it bridges the gaps at currently exist inOrdinance co. 161 and will be beneficial to citizens of Southlake as we I would lead the discussion recommending approval If I were present, and would cast a favorable vote for adoption of the proposed ordinance at the earliest possible date. Respectfully, X&4 Lloyd 0. Latta Councilperson C.C.City Council Members Planning and Zoning Commission Members Roy Lee, chairman Citizens Advisory Committee LAW OFFICES OF SMITH, SMITH AND RAKE 729 BEDFORD EULESS ROAD WEST - SUITE 107 HURST, TEXAS 76053 TELEPHONE WILLIAM H. SMITH 817) 282-9393 LEE M. SMITH MICHAEL R. RAKE March 2, 1981 Council Members City of Southlake Re: Alcoholic Beverage - Private Club Permits QUESTION: Under the Texas Statues governing private club permits, is there a requirement that a private club provide food service as a condition to the obtaining of a private club permit for the sale of alcoholic beverages? ANSWER:Section 32.03 of the Texas Alcoholic Beverage Code which sets forth the qualifications for the issuance: of a permit for a private club for the sale of alcoholic beverages requires under Section G thereof that, The club must provide regular food service adequate for its members and their guests." Under the annotations of decisions set forth after the particular section there is an annotation citing a Texas Supreme Court case which was appealed to the U. S. Supreme Court although the appeal was later dismissed) which annotation provides that a regula- tion of the Liquor Control Board which required private clubs licensed under the Liquor Control Act to provide regular food service and which regulation stated that complete meals must be available on club premises was not unconstitutional for vagueness. I have not read the particular case, but will do so prior to the council meeting on March 3rd and will answer any questions regarding that case at such meeting. It would appear from both the law and the decision of the Texas Supreme Court set forth in the annotation that the food service provision has been tested and has been upheld, although the question of what constitutes food service, including complete meals, could most likely only be answered on a case by case basis by the Courts upon challenge by either the Texas Liquor Board or a city challenging the particular club based upon violation of zoning ordinances or special use permits in the area where the club is located. It would be my further opinion as City Attorney for the City of Southlake that the actual use, and in particular the sale of food or lack of such sale, and any challenge to such might better be handled by the Liquor Control Board challenging the permit for the private club than by the City challenging such private club or its existence as a violation of a zoning ordinance. WILLIAM H. SMITH City Attorney LAW OFFICES OF SMITH, SMITH AND RAKE 729 BEDFORD EULESS ROAD WEST - SUITE 107 HURST, TEXAS 76053 TELEPHONE WILLIAM H. SMITH 817) 282-9393 LEE M. SMITH MICHAEL R. RAKE March 2, 1981 Council Members City of Southlake Re: Briarwood Estates - Lake Question QUESTION: What liability, if any, would the City of Southlake be subject to if the City Council approved a subdivision plat upon which is reflected a lake which will be the property solely of the owners of the said subdivision either by the particular lot owners owning the lake or by the entire subdivision owners having an interest in said lake and a Home- owners Association established? ANSWER:After a thorough research of the existing laws and case law related to governmental liability, it is my conclusion that the City of Southlake would experience no liability if a subdivision plat is approved upon which there is reflected a lake which will not be owned by the City and which will not be part of any park or of any proprietary operation of the City of Southlake. There appears to be no specific Statue related to zoning which would answer this question and there has been no case heard by any appellate Court which specifically controls the present situation. There have been several cases however, in which the question of liability of a city has arisen and all of such cases have been answered upon the distinction of proprietary versus governmental action by the City. In the case which is closest in point, the City of Houston was sued by the parents of an eleven 11) year old who drowned in water located in a garbage disposal area owned by the City of Houston. The basic facts were that the deceased and several other boys were playing in a city park adjacent to the garbage disposal area. The Court found that when the boys left the city park area to begin play in the garbage disposal area there was no question but that they would have been aware that the dump ground was not a part of the park as the boundary between the dump and the park was an embankment which although not steep at the top was apparently fairly steep at the bottom and produced a clear line of demarcation between the two areas. The holes located in the dump were for the purpose of burying garbage and were approximately 25 to 30 feet in diameter and 12 to 15 feet deep. The Supreme Court of Texas concluded that the operation of the dump was a governmental function of the city and since there is no liability for governmental functions, the City of Houston had no liability for the boy's death. The Court also found that the City incurred no liability under the Texas Tort Claims Act for any type of nuisance and that the City had no liability for any failure to have a fence or warning signs in the park to prevent children from going onto the garbage dump. This case seems to provide some answer to the current question in that if the City of Houston was not liable for the death of the eleven 11) year old boy under the facts set forth in that case, I can find no basis for any liability on the part of the city where it is performing a purely governmental function of approving subdivision plats and where it certainly has no ownership interest of any nature in the lake contained in such subdivision. In providing this opinion, I am expressing no opinion as to whether it is advis- able or not to have a lake located within a subdi- vision but only answering the question of whether the City of Southlake incurs any liability in connection with such lake either for personal injuries to any children or other persons incurred as a result of the lake being located in the subdivision or any liability as a result of any sewage or septic problems with the lake or any drainage into the lake. It would be my opinion as to the sewage or septic problems that the particular property owners located adjacent to the lake would have a duty to insure that the septic system which they provide does not result in any health hazzard for the lake. It would also be my opinion that in the event that any septic system did prove to be a drainage or seepage problem for the lake that the other land owners or property owners in the area and/or the City of Southlake could enjoin further use of such septic system if it could be proved which septic system was causing the particular health hazzard. There are many practical problems with a lake being located within a subdivision but as to the particular legal liability of either the City of the City Council members for the approval of a subdivision plat with a lake located in said subdivision, it is my opinion th t no liability exists because of the long estab ished d trine of governmental immunity.l/ WILLIAM H. SMITH City Attorney CITY OF SOUTHLAKE BILLS FOR APPROVAL CITY COUNCIL MEETING MARCH 3,1981 TO WHOM FOR AMOUNT Tri County Electric 144.75 General Telephone Company 583.85 Lone Star Gas Company 235.58 Christine Salinas deed transfers 25.00 Pitney Bowes Copier 129.95 Colleyville Florist flowers for Shomaker family 32.50 Jim Parker Exxon repairs to city adm. car 171.06 The Banner Quick Print printing of newsletter 46.83 Dennis Electric repairs to park lights 478.03 General Office Supply 171.32 Pitney Bowes print powder for machine 112.15 Bell Communications 496.50 Smith, Smith, and Rake extra legal 129.00 Blue Cross/Blue Shield 1,216.44 Grapevine Sports 12 ga. riot gun 165.00 Crabtree and Powers 405.87 Village Grocery Store 65.44 Jim Parker police dept. car/repairs 628.31 Jameson Pharmacy film 57.42 Ladd Uniform Co. 5.75 4-OK Locksmith 140.00 City of Grapevine, Ambulance 180.00 Jim Parker,Exxon repairs Unit 3001 58.00 North Tx. Firemens/FireMarshal Assoc.dues 10.00 Tarrant County Firefighters banquet 147.00 Watco repairs to Station 2 89.72 Stewart Oxygen Service 37.00 Foy Keys 1 six inch tap 85.00 Burroughs Copy.paper for machine 109.60 Aqua Utility 151.42 The Rohan Company 377.76 TOTAL 6,686.25