2003-02-04 City of Southlake
CITY COUNCIL MEETING
February 4, 2003
MINUTES
CITY COUNCIL PRESENT: Mayor Rick Stacy, Mayor Pro Tem W. Ralph Evans, Deputy
Mayor Pro Tem Greg Standerfer; Councilmembers: Carolyn Morris, Rex Potter, Tom Stephen,
and Keith Shankland.
CITY COUNCIL ABSENT: None
STAFF PRESENT: City Manager Billy Campbell, Assistant City Manager Shana Yelverton,
Assistant to the City Manager John Eaglen, Planning Director Bruce Payne, Senior Planner
Dennis Killough, Senior Planner Ken Baker, Public Works Director Pedram Farahnak, Deputy
Director of Public Works Charlie Thomas, Assistant to the Public Works Director Valerie
Bradley, Finance Director Sharen Elam, Economic Development Director Greg Last, Economic
Development Specialist Betsy Boyett, Director of Public Safety Rick Black, Human Resources
Director Kevin Hugman, Acting Director of Community Services Malcolm Jackson, Chief of
Police Marlin Price, Professional Standards Coordinator Robert Finn, Secretary to the City
Manager Kim Bush, Deputy City Secretary Tara Brooks, City Attorney E. Allen Taylor, and City
Secretary Lori Farwell.
WORK SESSION: The work session was called to order by Mayor Stacy at 5:32 p.m.
City Council reviewed the agenda items with city staff and applicants.
Brian Stebbins of Cooper and Stebbins submitted a letter to table Items 7C, 7D, and 7E, and read
the letter into the record (the letter will be attached to the minutes as part of the permanent
record). Council agreed to table Items 7C, 7D, 7E, 7F, 7G, 7H, and 7I to the March 4, 2003, City
Council meeting.
The Council decided to hold a work session on February 20, 2003, at 6:30 p.m., in the Training
Rooms on the third floor to further discuss the Town Square items.
The Mayor said he would like to see the Council members take a neutral position on this issue
and let Mr. Stebbins sell this idea to the public. He said a referendum could be placed on the
May ballot so that the public could decide if they want Brownstones in Town Square or not.
REGULAR SESSION:
Agenda Item No. 1, Call to order. The regular session was called to order by Mayor Stacy at
6:05 p.m.
Agenda Item No. 2A, Executive Session: Mayor Stacy announced that the City Council would be
going into Executive Session pursuant to the Texas Government Code, Section 551.071,
consultation with city attorney; Section 551.072, deliberation regarding real property; Section
551.073, deliberation regarding prospective gift; Section 551.074, deliberation regarding
personnel matters; Section 551.076, deliberation regarding security devices; and Section
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 1 OF 12
551.087, deliberation regarding economic development negotiations. City Council adjourned for
Executive Session at 6:05 p.m. Executive Session began at 6:05 p.m. and ended at 7:06 p.m.
Agenda Item No. 2B, Reconvene: The Mayor reconvened the regular meeting at 7:09 p.m.
Agenda Item No. 3A. The invocation was presented by Coy Quesenbury, Lonesome Dove
Baptist Church.
The Mayor led the Pledge of Allegiance.
A 30- second message to parents from the Drug and Alcohol Awareness Committee was
presented.
Agenda Item No. 4, Reports:
A. Mayor's Report: The Mayor announced upcoming meetings and events.
B. City Manager's Report: None.
C. Parks and Recreation Report: Bobby Rawls updated the Council on the construction of Bob
Jones Park.
D. SPIN Report: Jeff Wang discussed the Dallas Burn's contract to use Dragon Stadium and
the development of an office complex in SPIN #7.
E. Local Business Report: Economic Development Director Greg Last introduced Shelly
Claffey - Broder of Claffey Pools who introduced her local business to the Council.
Consent Agenda:
5A. Approval of the minutes of the City Council regular meeting held on January 21, 2003.
Approved as presented.
5B. Resolution No. 03 -016, Authorizing the Mayor to execute a quitclaim deed for a water line
easement in Tract 3 of the W.E. Mayfield Addition now located in Gateway Plaza, Phase
II. In January, 1966, the owner of Tract 3 of the W.E. Mayfield Addition dedicated a 10-
foot wide easement for the installation and maintenance of a water line with the centerline
of the easement being the pipe line as installed. That water line is no longer in existence
since the re- development of this property as Gateway Plaza II, and there is no need for this
easement since the developer has installed new water lines in other easements to serve the
property. The owner and developer of the Big Bowl Restaurant located the northeast corner
of FM 1709 and North Nolen Drive in Gateway Plaza II has made a written request to the
City to abandon this old easement so that the title will be clear, and they can proceed with
the development of the property.
5C. Resolution No. 03 -017, Authorizing the Mayor to execute a quitclaim deed for a water line
easement in Lot 1, Block 1, Sabre Group Campus. On January 18, 1999, the final plat was
approved for Sabre Group Campus. At that time, a 12 -inch public water line crossed the
property. The construction plans included the relocation of a portion of that 12 -inch water
line to accommodate the construction of buildings. The construction of the new 12 -inch
water line is complete and has been accepted by the City. Sabre is now requesting that the
City abandon that portion of the water line easement that is no longer needed by the City.
The City Engineer has reviewed this request and has determined that this section of water
line easement is no longer needed.
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 2 OF 12
5D. Authorize the Mayor to execute an amendment to the April 30, 1996, lease agreement with
Verizon Wireless for the placement of an antenna system on the Bicentennial Water Tower.
Verizon has agreed to amend the April 30, 1996, lease for antennas on the Bicentennial
water tower. Three major changes are proposed: the lease rate would change from $12,696
to $22,000 per year; the City would agree to extend the contract term for 25 years; and a
5% annual increase in rent would be added to the agreement. To ensure Southlake is
collecting competitive lease payments, staff conducted a rate study and found the average
annual rate for wireless communication antenna leases to be $19,302. If the annual rate is
raised from $12,696 to $22,000 and the rent is increased 5% annually, the additional
revenue over the next five years will be $54,275.89.
5E. Authorize the Mayor to execute an amendment to the July 18, 1996, lease agreement with
Verizon Wireless for the placement of a wireless communication antenna system on the
Florence Water Tower. Verizon has agreed to amend the July 18, 1996, lease for antennas
on the Florence water tower. Three major changes are proposed: the lease rate would
change from $12,696 to $22,000 per year; the City would agree to extend the contract term
for 25 years; and a 5% annual increase in rent would be added to the agreement. To ensure
Southlake is collecting competitive lease payments, staff conducted a rate study and found
the average annual rate for wireless communication antenna leases to be $19,302. If the
annual rate is raised from $12,696 to $22,000 and the rent is increased 5% annually, the
additional revenue over the next five years will be $54,275.89.
5F. Authorize the Mayor to execute a developer's agreement for Lot 1, Block 1, Pecan Creek.
The final plat for Pecan Creek, Lot 1, Block 1, was approved on January 9, 2003. This
agreement covers the construction of 598 feet of water line and 792 feet of sanitary sewer
lines. There are no requests for credits, waivers, or variances to the standard developer's
agreement. The developer will pay a park fee in the amount of $1,395.
5G. ZA02 -108, Plat Revision For Lots 3R & 4R, Block 1, Southview Phase I. The property is
located at 505 and 1000 Southbend Trail, being approximately 1.21 acres. The purpose of
this plat is to relocate the common property line between the lots to address a driveway
pavement encroachment and to abandon a utility easement located along the existing lot
line. There are no utilities within the easement and no unresolved issues with this request.
The Planning and Zoning Commission recommended approval subject to review on
January 23, 2003.
5H. Authorize the Mayor to execute an addendum to the developer's agreement for Town
Square, Phase I and Phase II. The auditor's report of the developer's agreement is
complete, and the developer has offered to accept $3,925,000 as full reimbursement for
Phase 1 and Phase 2. This agenda item was included on the agenda to finalize the
developer's agreement reimbursement terms. The reimbursement to Cooper & Stebbins
will be included with the bond sale scheduled for early spring. The city attorney has
drafted an addendum to the Developer's Agreement detailing the terms of payment.
5I, 5J, 5K. Resolution No. 03 -013, (ZA02 -119) Specific Use Permit for Special Events to allow
a concert associated with Art in the Square; Resolution No. 03 -014, (ZA02 -120) Specific
Use Permit for the sale of alcoholic beverages during the special events concert associated
with the events of Art in the Square; and Resolution No. 03 -015, (ZA02 -121) Specific Use
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 3 OF 12
Permit for the sale of a of alcoholic beverages associated with the events of Art in the
Square. The applicant has requested to table these items until the next Council meeting to
be held February 18, 2003, to allow time for processing of a mass gathering permit.
5L. Ordinance No. 839, 2nd Reading, Changing street names of Oaklane North and Oaklane
South to Pin Oak Circle. Tabled to the February 18, 2003, City Council Meeting.
7C. Ordinance No. 480 -224a, 1 Reading (ZA02 -042) Zoning Change and Concept Plan for
Southlake Town Square, located on the south side of State Highway 114, north side of East
Southlake Boulevard (F.M. 1709) and east side of North Carroll Avenue. Current Zoning:
NR -PUD Non - Residential Planned Unit Development District. Requested Zoning: NR-
PUD Non - Residential Planned Unit Development District. SPIN Neighborhood #8. Tabled
to the March 4, 2003, City Council meeting.
7D. ZA02 -043, Development Plan for Southlake Town Square, Phase IV, located on the east
side of Central Avenue, north side of East Southlake Boulevard and the south side of State
Highway 114. Current Zoning: NR -PUD - Non - Residential Planned Unit Development
District. SPIN Neighborhood #8. Tabled to the March 4, 2003, City Council meeting.
7E. ZA02 -044, Preliminary Plat for Southlake Town Square, Phase IV, located on the east side
of Central Avenue, north side of East Southlake Boulevard and the south side of State
Highway 114. Current Zoning_ NR -PUD Non - Residential Planned Unit Development
District. SPIN Neighborhood #8. Tabled to the March 4, 2003, City Council meeting.
7F. Resolution No. 03 -008, Amendment to the currently adopted Land Use Plan creating a new
land use category to be known as "Town Center" to be generally located in an area bounded
by State Highway 114, North Kimball Avenue, East Southlake Boulevard (FM 1709) and
North Carroll Avenue. Tabled to the March 4, 2003, City Council meeting.
7G. Ordinance No. 480 -SS, 2 Reading, An amendment to the Comprehensive Zoning
Ordinance No. 480, as amended, as it pertains to the creation of a `Downtown' Zoning
District. Tabled to the March 4, 2003, City Council meeting.
7H. Resolution No. 03 -011, Approving Downtown District Design Guidelines as it pertains to
development in the Downtown Zoning District. Tabled to the March 4, 2003, City Council
meeting.
7I. Ordinance No. 480 -410, 2 Reading (ZA02 -104) Zoning and Concept Plan for Southlake
Town Square. Tabled to the March 4, 2003, City Council meeting.
8A. Ordinance No. 843, 1 Reading, consider declaring a one hundred twenty (120) day
moratorium on solicitation or selling of merchandise by any individual, institution, or
group organized for political, religious, charitable or profitable purposes on the streets,
street right -of -ways, or medians within the City of Southlake. Recently, people have been
standing at roadway intersections seeking donations for charities. Although current
ordinance does not comprehensively address this activity, the Director of Public Safety has
received reports from the public and from police officers that give concern towards safety
issues. People seeking the donations have been viewed walking in public roadways where
traffic is moving and, in some cases, obstructing the flow of traffic. The Director of Public
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 4 OF 12
Safety and the Director of Planning have developed an ordinance which implements a one -
hundred and twenty day (120) moratorium on all solicitation activities on public streets,
street right -of -ways, medians or other areas of vehicular passage to: 1) ensure the physical
safety of those who solicit; 2) ensure unimpeded traffic flow on public streets, and 3)
provide the Departments of Public Safety and Planning the opportunity to determine
appropriate and safe locations in the city in which solicitation activities may take place and
revise the city's solicitation ordinance.
Motion was made to approve consent agenda items 5A; 5B; 5C; 5D; 5E; 5F; 5G; 5H; 5I (to
table); 5J (to table); 5K (to table); 5L (to table); 7C (to table); 7D (to table); 7E (to table); 7F (to
table); 7G (to table); 7H (to table); 7I (to table); and 8A:
Motion: Stephen
Second: Shankland
Items 5A; 5B; 5C; 5D; 5E; 5F; 5G; 51 (to table); 5J (to table); 5K (to table); 5L (to table); 7C (to
table); 7D (to table); 7E (to table); 7F (to table); 7G (to table); 7H (to table); 71 (to table); and
8A:
Ayes: Stephen, Evans, Shankland, Morris, Standerfer, Potter, Stacy
Nays: None
Approved: 7 -0
Item 5H:
Ayes: Stephen, Evans, Shankland, Morris, Potter, Stacy
Nays: None
Abstain: Standerfer
Approved: 6 -0 -1
REGULAR AGENDA
Agenda Item 6. Public Forum.
William Stonaker, 1760 Sleepy Hollow Trail, Southlake, Texas. Said Southlake Town Square is
one of the finest examples of New Urbanism in the country. Brian Stebbins and Peter Cooper
have been described as visionary by publications all over the country. Without the Brownstones,
though, Southlake Town Square will be just another great big commercial development in the
middle of the city. He urged the Council to get on with the process and approve the
Brownstones. He does not want the City of Southlake to get the reputation of driving
development out of the city.
Deputy Mayor Pro Tem Standerfer left the room during Item 7A.
Agenda Item 7A. Discuss and consider action regarding ethics complaint against Councilmember
Standerfer. Councilmember Morris said she had a formal complaint against Councilmember
Standerfer delivered to her from a resident which she gave to the City Secretary in accordance
with the Code of Ethics and Conduct, Ordinance No. 635. Mayor Stacy said Councilmember
Standerfer requested a legal opinion from the City Attorney and asked that it not be disclosed
during the Executive Session and instead be disclosed during the Regular Meeting. Regardless of
what the opinion is, the Mayor has asked for the Ethics Ordinance to be placed on the Council's
next agenda for review.
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 5 OF 12
City Attorney Taylor stated that Councilmember Standerfer formally asked for an ethics opinion
pursuant to the provisions of Article 6, Section 2 -267 of the Code of Ordinances. City Attorney
Taylor presented information regarding the background information and his factual basis of
opinion. (the opinion will be attached to the minutes as part of the permanent record)
In May 2002, Brian Stebbins requested that Councilmember Standerfer perform certain legal
services for Southlake Venture West, specifically services dealing with the eviction of two
tenants. In addition, Councilmember Standerfer offices in Town Square and has entered into a
lease agreement with Southlake Venture West. Councilmember Standerfer requested an opinion
as to: (1) whether or not, pursuant to Article VI of the Southlake Code of Ordinances and/or
under Tex. Loc. Gov't Code Ann. Sec. 171.002, et Seq., he has a substantial interest in Cooper &
Stebbins or any of its related entities; and/or, (2) whether or not, pursuant to Article VI of the
Southlake Code of Ordinances and/or Tex. Loc. Gov't Code Ann Section 171.992, et seq, he
must either submit the disclosure affidavit or abstain from voting on any matter relating to
Cooper & Stebbins or any of its related entities, or Town Square, generally.
The amount of legal services provided by Councilmember Standerfer for Southlake Venture
West totaled $13,844.97 during 2002. A basic review of Councilmember Standerfer's 2001
income tax return reflects that this amount was significantly less than ten percent of his annual
income calculated either as gross income or net personal income. His 2002 income tax return has
not yet been filed, but information available from his law firm's records indicate $13,884.97
would constitute less than ten percent of his gross or net personal income.
Regarding Councilmember Standerfer's lease of office space, City Attorney Taylor determined
that the rate he pays is the highest office rate charged for lease space in the Town Square project.
He has received no discounts or reductions in rent and was not afforded any extraordinary finish
out that would confer special value on the space he occupies.
City Attorney Taylor stated that he has concluded that Councilmember Standerfer does not and
has not owned any interest in the Southlake Venture entities — East, West, or Central — and has
no ownership in Town Square.
City Attorney Taylor stated he has found no violation of the terms of Ordinance No. 635,
Conduct of Ethics and Conduct, by Councilmember Standerfer based upon his representation of
legal services with Southlake Venture West.
City Attorney Taylor stated that because the allegations made by an individual at the last Council
meeting involved a statement that they believed the state statute had been violated and the state
statute has criminal provisions, he has contacted the Office of the District Attorney and has
advised them of the statement and forwarded them a copy of the ethics opinion. His office will
work with the District Attorney's Office in their review of the opinion and the related
documents.
Mayor Stacy commented that City Council has voted on 12 items related to Town Square since
last summer and at no time was the approval of those items determined by a single vote. He
stated that the City Attorney's investigation has already cost the City between $14,000 - $15,000.
He stated that Council has the ability to request a third - party's opinion if Council feels it is
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 6 OF 12
' necessary. He feels the Ethics Ordinance needs to be reviewed and has asked for it to be placed
on the next Council agenda.
Councilmember Morris agreed that the ordinance needs to be reviewed. She said that her reason
for thinking a third -party opinion might be called for is that she wants to be sure the residents of
Southlake do not believe that there is any hint of impropriety; it is very important that people
trust their Council. She stated that Council should have some indication when they hear from the
District Attorney's Office.
Councilmember Potter stated that the mere appearance of impropriety by a Councilmember is
not good. He is comfortable that no violation of the Code of Ethics has occurred, but Council
needs to be above question. He said issues like this cause doubt in the public.
Councilmember Shankland said Councilmembers did not go out looking for this; it was thrust
upon them. The amount of money spent investigating this issue is unfortunate, but Council had
to take care of it and respond to the complaint.
Councilmember Stephen said he agrees there needs to be full and fair disclosure, but it must be
balanced with the right to privacy. Whether or not the current Ethics Ordinance needs to be
amended, everyone needs to keep in mind it is the current ordinance. He said the rules cannot be
changed on Councilmember Standerfer in the middle of the game. He said Council will look at
the Ethics Ordinance and tighten up the rules, but he asked everyone to keep one thing in mind --
- argue the issues and not the personalities.
Sue Johnson, 308 Lakeside Court, Southlake, Texas. She asked everyone to keep in mind that
what is legal is not necessarily ethical. She clarified that the issue is not the fact he got caught, it
is his decision to do the work to begin with.
Councilmember Morris asked the City Attorney to make it a standard procedure to review the
Ethics Ordinance when new Councilmembers take office.
Kevin Clift, 1804 Redwing Court, Southlake, Texas. He said it is an outrage to him that
Councilmembers Morris and Potter question whether more money needs to be spent to
investigate this issue further. He said Councilmember Standerfer has been exonerated, and this
issue needs to die here tonight. He does not feel Brian Stebbins should be admonished either and
said that all Mr. Stebbins was doing was shopping Southlake.
Scott Dyche, 1110 Fontaine, Southlake, Texas. He filed the complaint against Councilmember
Standerfer for two reasons: in an attempt to make him accountable for his actions and to make
the City Council live up to their fiduciary responsibilities to the citizens. He said the City
Attorney serves at the pleasure of the Council. The most important thing to come out of this is
for Council to take another look at the Ethics Ordinance.
Kenneth Horne, 1215 Ashmoore Court, Southlake, Texas. Said for two years he did not take one
dime from CISD during his tenure on the Planning and Zoning Commission because he knew it
was wrong. His company did work for CISD, but he was never paid for it. He said
Councilmember Standerfer is an attorney and should have referred Brian Stebbins to another
attorney to complete the work.
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 7 OF 12
' Don Coonan said the law is the floor, and ethics is quite a ways above that. If Councilmember
Standerfer would have disclosed this up front, then all of this would not have happened and the
City would not have spent $14,000. Councilmember Standerfer should have told his colleagues.
Brian Stebbins said that anytime he can use a Town Square tenant, he will. In regard to what
occurred, he believes it was an honest oversight. He agreed that the rules probably need to be
changed but stated it is unfair to punish someone for following the current rules.
Terry Walter, 907 Westminster Way, Southlake, Texas. He asked that Councilmember
Standerfer to step down on future Town Square issues. He said egos are getting in the way of
city business.
Cindy Douglas, 1369 Holland Hill, Southlake, Texas. She works for Councilmember Standerfer
and said he is a very ethical man. There is not enough money to influence him. She said what
certain Councilmembers are doing is tainting the reputation he spent his life building. She does
not agree there needs to be a third -party review of this issue; the District Attorney's opinion is
enough for her.
Mayor Stacy asked Council if there is any action they wish to take at this time and if
Councilmembers are willing to accept the District Attorney's opinion.
Motion was made to take no action until such time as the District Attorney's findings so warrant
further action:
Motion: Stephen
Second: Potter
Councilmember Shankland asked City Attorney Taylor if Council is required to make a motion
at this time.
City Attorney Taylor stated that this motion is not required.
Ayes: Evans, Shankland, Morris, Potter, Stephen, Stacy
Nays: None
Approved: 6 -0
Deputy Mayor Pro Tem Standerfer returned to the meeting.
Agenda Item No. 7B. Ordinance No. 842, 2 Reading, finding, after reasonable notice and
hearing, that TXU Gas distribution's rates and charges within the city should be changed;
determining just and reasonable rates; adopting general service rates including rate adjustment
provisions and miscellaneous service charges to be charged for sales and transportation of
natural gas to residential, commercial and industrial customers; providing for recovery of rate
case expenses; preserving regulatory rights of the city; providing for repeal of conflicting
ordinance' providing for an effective date. On March 1, 2002, TXU Gas Distribution Company
filed a Statement of Intent with 111 cities to increase the rates charged for natural gas service
with an effective date of April 5, 2002. On April 1, 2002, City Council approved Resolution No.
02 -023 to suspend the effective date of the proposed new rates for 90 days to evaluate the
reasonableness of existing rates and the merits of TXU'S proposed changes. Southlake
participated with other municipalities (51 cities) in a comprehensive review of TXU Gas
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 8 OF 12
' Distribution's application. The consultants and counsel retained by the coalition of cities
recommended denial of the Company's application based upon a report from consultants
demonstrating that the revenue requirement of the North Texas Metroplex Distribution System is
being met under current rates. Also, the Gas Utilities Regulatory Act provides that costs incurred
by Cities in ratemaking activities are to be reimbursed by the regulated utility. On June 18, 2002,
Council approved Resolution 02 -042 to formally deny TXU's application for a rate increase and
requested prompt reimbursement of all rate case expenses. Ordinance No. 842 represents the
settlement terms and conditions for resolution of TXU Distribution Gas Rate Case (GUD No.
9313). The consultants and counsel retained by the coalition of cities recommended for all cities
to approve the Agreement in Principle (Ordinance No. 842). The understanding with TXU is that
it is "all or nothing," and thus, there is no risk that a city can potentially hold out for a better deal.
The new rates are effective on bills rendered after February 1, 2003.
No one spoke during the public hearing.
In accordance with Section 4.21 of the City Charter, the caption for this item is listed as follows:
AN ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS FINDING,
AFTER REASONABLE NOTICE AND HEARING, THAT TXU GAS
DISTRIBUTION'S RATES AND CHARGES WITHIN THE CITY SHOULD
BE CHANGED; DETERMINING JUST AND REASONABLE RATES;
ADOPTING GENERAL SERVICE RATES INCLUDING RATE
ADJUSTMENT PROVISIONS AND MISCELLANEOUS SERVICE
CHARGES TO BE CHARGED FOR SALES AND TRANSPORTATION OF
NATURAL GAS TO RESIDENTIAL, COMMERCIAL AND INDUSTRIAL
CUSTOMERS; PROVIDING FOR RECOVERY OF RATE CASE EXPENSES;
PRESERVING REGULATORY RIGHTS OF THE CITY; PROVIDING FOR
REPEAL OF CONFLICTING ORDINANCES; PROVIDING FOR AN
EFFECTIVE DATE.
Motion was made to approved Ordinance No. 842, 2 Reading.
Motion: Potter
Second: Stephen
Ayes: Shankland, Morris, Standerfer, Potter, Stephen, Evans, Stacy
Nays: None
Approved: 7 -0
Agenda Item No. 7J. Ordinance No. 480 -231 a, 2 Reading (ZA02 -094) Zoning Change and
Revised Site Plan for Meadow Brook Medical Air Services. Senior Planner Dennis Killough
presented this item to the Council. The property is located at 1250 West Southlake Boulevard
directly east of the Southridge Lakes Amenity Center. The purpose of this request is to receive
approval of a revised zoning and site plan to allow for construction of a 1,800 - sq.ft. records
storage building to be located in the far rear portion of the property. The change of zoning and
plan retains all uses, regulations and conditions of the original S -P -1 zoning with the exception
of allowing the records storage building and a 25' building setback from the north property line.
The residential adjacency regulations require a minimum 40' setback for the proposed building.
The Planning and Zoning Commission recommended approval subject to review, specifically
granting variance requests for 74% impervious coverage and 25' rear setback; limiting storage
material to paper records; and requiring additional landscape screening on the north side of the
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 9 OF 12
' building. The applicant had initially requested a maximum impervious coverage of 74 %, where
the Zoning Ordinance allows a maximum of 65 %. Following the P & Z's action on this item, it
was discovered that the applicant's calculations on impervious coverage were incorrect. The site
is in compliance with the maximum 65% permitted. The impervious coverage as proposed is
approximately 61%. The request to allow a maximum of 74% has been withdrawn. The City
Council approved the first reading on consent on January 21, 2003.
No one spoke during the public hearing.
In accordance with Section 4.21 of the City Charter, the caption for this item is listed as follows:
AN ORDINANCE AMENDING ORDINANCE NO. 480, AS AMENDED, THE
COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF SOUTHLAKE,
TEXAS; GRANTING A ZONING CHANGE ON A CERTAIN TRACT OR
TRACTS OF LAND WITHIN THE CITY OF SOUTHLAKE, TEXAS BEING
LEGALLY DESCRIBED AS LOT 4, A.A. FREEMAN NO. 522 ADDITION,
BEING 1.344 ACRES, AND MORE FULLY AND COMPLETELY
DESCRIBED IN EXHIBIT "A" FROM "S -P -1" DETAILED SITE PLAN
DISTRICTWITH LIMITED "0-1" OFFICE DISTRICT USES TO "S -P -1"
DETAILED SITE PLAN DISTRICT WITH LIMITED "0-1" OFFICE
DISTRICT USES TO INCLUDE AN ACCESSORY BUILDING FOR
DOCUMENT STORAGE, AS DEPICTED ON THE APPROVED SITE PLAN
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "B ",
SUBJECT TO THE SPECIFIC REQUIREMENTS CONTAINED IN THIS
ORDINANCE; CORRECTING THE OFFICIAL ZONING MAP; PRESERVING
ALL OTHER PORTIONS OF THE ZONING ORDINANCE; DETERMINING
THAT THE PUBLIC INTEREST, MORALS AND GENERAL WELFARE
DEMAND THE ZONING CHANGES AND AMENDMENTS HEREIN MADE;
PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL
ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING
FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS
CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL
NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE.
Motion was made to approve Ordinance No. 480 -231a, 2 Reading, subject to Revised
Site Plan Review Summary No. 3, dated January 17, 2003.
Motion: Potter
Second: Shankland
Ayes: Morris, Standerfer, Potter, Stephen, Evans, Shankland, Stacy
Nays: None
Approved: 7 -0
Agenda Item No. 7K. Ordinance No. 480 -416, 2 Reading (ZA02 -115) Zoning Change for
property located at 811 South White Chapel Boulevard. Senior Planner Dennis Killough
presented this item to the Council. The purpose of this request is to change the zoning from RE
Residential Estate District to SF -1A Single Family Residential District. The lot currently does
not comply with the lot size and lot width requirements of the RE zoning district. The applicant
would also like the benefit of the 20' Side Yard/Building Setback of the SF -1A district to allow
placement of a garage rather than the 25' Side Yard/Building Setback of the RE district. The
residential construction can proceed with the current RE zoning in place as permitted under the
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 10 OF 12
"Size Nonconformity of Lots of Record" provisions of the Zoning Ordinance. The Planning and
Zoning Commission recommended approval on January 9, 2003. The City Council approved the
first reading on consent on January 21, 2003
No one spoke during the public hearing.
In accordance with Section 4.21 of the City Charter, the caption for this item is listed as follows:
AN ORDINANCE AMENDING ORDINANCE NO. 480, AS AMENDED, THE
COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF SOUTHLAKE,
TEXAS; GRANTING A ZONING CHANGE ON A CERTAIN TRACT OR
TRACTS OF LAND WITHIN THE CITY OF SOUTHLAKE, TEXAS BEING
LEGALLY DESCRIBED AS LOT 4A, BLOCK A, WHITE CHAPEL PLACE,
BEING APPROXIMATELY 2.42 ACRES, AND MORE FULLY AND
COMPLETELY DESCRIBED IN EXHIBIT "A" FROM "RE" SINGLE
FAMILY RESIDENTIAL ESTATE DISTRICT TO "SF -1A" SINGLE FAMILY
RESIDENTIAL DISTRICT, SUBJECT TO THE SPECIFIC REQUIREMENTS
CONTAINED IN THIS ORDINANCE; CORRECTING THE OFFICIAL
ZONING MAP; PRESERVING ALL OTHER PORTIONS OF THE ZONING
ORDINANCE; DETERMINING THAT THE PUBLIC INTEREST, MORALS
AND GENERAL WELFARE DEMAND THE ZONING CHANGES AND
AMENDMENTS HEREIN MADE; PROVIDING THAT THIS ORDINANCE
SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR
VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING
FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING
AN EFFECTIVE DATE.
Motion was made to approve Ordinance No. 480 -416, 2 Reading.
Motion: Potter
Second: Stephen
Ayes: Standerfer, Potter, Stephen, Evans, Shankland, Morris
Nays: None
Approved: 7 -0
Agenda Item No. 7L. Resolution No. 03 -012, (ZA02 -117) Specific Use Permit for Churches,
Synagogues, and other similar facilities for worship, fellowship, and education on property
located at 525 Nolen Drive, Suite 300 for Southlake Harbor Church. Senior Planner Dennis
Killough presented this item to the Council. The property is located at 525 Nolen Drive, Suite
300. The purpose of this request is to receive approval of a Specific Use Permit to allow
Southlake Harbor Church to occupy a portion of a building located in Cornerstone Business
Park. The maximum seating in the main sanctuary will be for 203 persons. The site will meet
the off - street parking (69 spaces) by using 100% of the parking allocated by the adjoining
tenants on the site. The facility will be used for Sunday morning and evening services. All
activities will be performed during off -hours of the adjacent tenants and will not conflict with the
parking requirements for the adjacent users. A reciprocal parking agreement must be executed
and filed in the County by the property owner allocating the use of all the parking spaces on the
site for the church during their services. The Planning and Zoning Commission recommended
approval, permit not to exceed five years. Applicant Gary Fickes, 421 Hilltop, Southlake, Texas,
CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 11 OF 12
presented this item to Council. He said he would prefer no time limit as imposed by P &Z but
stated that the lease is for five years; he does not feel this church will be with them for five years
because they are currently looking for property.
Deputy Mayor Pro Tem Standerfer recommended limiting the SUP for 10 years.
Matt Turner is the Pastor of Southlake Harbor Church and answered Council's questions.
No one spoke during the public hearing.
In accordance with Section 4.21 of the Charter, the caption for this item is listed as follows:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SOUTHLAKE,
TEXAS, GRANTING A SPECIFIC USE PERMIT FOR CHURCHES,
SYNAGOGUES, AND OTHER SIMILAR FACILITIES FOR WORSHIP,
FELLOWSHIP AND EDUCATION ON PROPERTY WITHIN THE CITY OF
SOUTHLAKE, TEXAS, BEING LEGALLY DESCRIBED AS A PORTION OF
LOT 6, BLOCK 5, CORNERSTONE BUSINESS PARK, MORE FULLY AND
COMPLETELY DESCRIBED IN EXHIBIT "A ", AND AS DEPICTED ON THE
APPROVED CONCEPT PLAN ATTACHED HERETO AND
INCORPORATED HEREIN AS EXHIBIT `B" AND PROVIDING AN
EFFECTIVE DATE.
Motion was made to approve Resolution No. 03 -012 limiting the approval to 10 years.
Motion: Standerfer
Second: Shankland
Ayes: Potter, Stephen, Evans, Shankland, Morris, Standerfer, Stacy
Nays: None
Approved: 7 -0
Deputy Mayor Pro Tem Standerfer stated that he appreciates the time everyone spent on the
ethics issue and hopes that Council can put this issue behind them and will work together.
Agenda Item 12. Meeting Adjourned. There being no further business to discuss, the meeting
was adjourned at 9:24 p.m.
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Mayor
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CITY COUNCIL MEETING MINUTES, FEBRUARY 4, 2003, PAGE 12 OF 12
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6000 WESTERN PLACE , TELEPHONE.: (8) Q
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1 -30 AT BRYANT -IRVIN ROAD Ta lor s la' IIi TOLL FREE: (800) 318 -3400
FORT WORTH, TEXAS 76107 -4654 •L• FACSIMILE: (817) 332 -4740
EMeIL: TOASE@TOASE.COM DENTON: (940) 383 -2674
Attorneys * Counselors DENTON METRO: (972) 434 -3834
'E: WWW.TOASE.COM
E. ALLEN TAYLOR, JR.
EXT. 212
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February 4, 2003
Gregory P. Standerfer, Councilmember
City of Southake
1400 Main Street
Southlake, Texas 76092
Re: Your Request of January 27, 2002 for Ethics Opinion
Dear Greg:
I am writing in response to your request of January 27, 2002, in which you
request an opinion as to:
(1) whether or not, pursuant to Article VI of the Southlake Code of Ordinances and /or
under Tex. Loc. Gov't. Code Ann. Sec 171.002, et Seq., I have a substantial interest in
Cooper & Stebbins or any of its related entitles: and /or
(2) whether or not, pursuant to Article VI of the Southlake Code of Ordinances and /or
Tex. Loc. Gov' t Code Ann Section 171.992, et seq, I must either submit the disclosure
affidavit or abstain from voting on any matter relating to Cooper & Stebbins or any of its
related entities, or Town Square, generally.
BACKGROUND INVESTIGATION AND FACTUAL BASIS OF OPINION.
In order to respond to the questions that you have presented, I have requested
that you provide me with certain written information for use in my analysis. I have
contacted Cooper & Stebbins and requested they provide me with certain information
relating to your business activities with them, including both legal work performed and
your lease agreement for the occupancy of space in Town Square. I have had
conversations with yourself, Brian Stebbins, financial officers and staff with Southlake
Venture, and a number of professionals who will be subsequently identified within this
report to secure information and /or opinions on the character of various relationships
and transactions. The specific documents reviewed are as follows:
W: \Southlake\ Ethics- Standerfer \Letters \Standerfer.EAT 171 A
Gregory P. Standerfer, Councilmember
February 4, 2003
Page 2
Tax return and schedules for the year 2001;
The Ethics Ordinance - Ordinance No. 236;
Various Newspapers Articles and Letters to the Editor Authored by Greg
Standerfer;
Request for Advisory Opinion dated January 27, 2003 from Greg Standerfer;
Multiple E -Mails from Councilmember Keith Shankland;
Citizen Complaint by Scott Dyche;
February 3, 2003 Work Summary from Greg Standerfer;
Various Minutes of City Council Meetings where Town Square was discussed;
Lease and Payment Records on Office Space; and
Section 171 of the Local Government Code
The conversations and documentary reviews I have conducted present the
factual elements of the issues presented for consideration in the following context:
A. You have, for some time, operated your law firm in office space located at
1400 Civic Place, Suite 221, in Town Square. The space is owned by
Southlake Venture West which is a business entity that is a portion of the
Cooper & Stebbins development of Town Square. You have entered a
lease agreement to utilize 791 square feet of space and leased that space
on a month -to -month basis. You are presently paying $18.66 per square
foot, plus triple net. Your effective gross rate is $27.16 per square foot.
B. The rate you are paying is the highest office rate charged for lease space
in the Town Square project. You have received no discounts or
reductions in rent and you were not afforded any extraordinary finish out
that would confer special value on the space that you occupy.
C. Business records of the Cooper & Stebbins entities (to include the
Southlake Ventures East, West and Central) reflect that you are not and
have never been an employee of those entities and that you do not own
any interest in these business entities or ventures, either directly or
indirectly. You have personally confirmed to me the accuracy of what the
business records reflect in this regard.
D. Brian Stebbins advised me that in late May, 2002, he approached you and
requested that you perform certain legal services for Southlake Venture
W: \Southlake\ Ethics - Standerfer \Letters \Standerfer. EAT 171 A
Gregory P. Standerfer, Councilmember
February 4, 2003
Page 3
West, specifically services dealing with the eviction of two tenants (Cactus
Flower Restaurant and Renditions).
E. Information provided from your law firm reflects that you first performed
work on these matters on May 31, 2002, and that the work continued
through the lock out of the Cactus Flower Restaurant on June 18, 2002,
and the lock out of the Renditions business on July 2, 2002. You have
subsequently assisted Town Square with a lien foreclosure upon certain
goods and equipment located within the Cactus Flower Restaurant
premises on or about October 9, 2002. Southlake Venture West has
been sued by an original contractor and subcontractor claiming that they
were not paid by the Cactus Flower Restaurant for tenant finish expenses
and it is my understanding that you have filed an Answer on behalf of
Southlake Venture West in late October, 2002. I have further learned that
you filed discovery in this dispute on or about November 18, 2002. A
review of your work papers and material reflect that you attended a
Section 341 bankruptcy meeting relating to the Cactus Flower Restaurant
Southlake, Inc. bankruptcy and that you provided legal advice to
Southlake Venture West concerning alternatives for collection action
against two other tenants who abandoned their lease premises.
F. A review of the billing and payment records reflects that your firm billed
Southlake Venture West $13,844.97 during 2002. Records reflect that
payment was made within 30 days of each invoice submittal. No fee
agreement exists that provides for extended payment terms. Professional
services were to be compensated monthly on a standard professional
service invoice basis.
G. A basic review of your 2001 income tax return reflects that the $13,844.97
paid to your firm by Southlake Venture West was significantly Tess than
ten percent of your annual income calculated either as gross income or
net personal income.
H. Your 2002 income tax return has not yet been filed but information
available from your firm records reflects that during the year 2002 the
$13,844.97 invoice to Southlake Venture West would constitute less than
ten percent of your gross or net personal income.
W: \Southlake\ Ethics- Standerfer \Letters \Standerfer.EAT 171 A
Gregory P. Standerfer, Councilmember
February 4, 2003
Page 4
You have provided no legal services to any Southlake Venture entity
related to a matter involving the City of Southlake.
J. You have performed approximately 2.5 hours worth of legal work for the
Cooper & Stebbins entities during 2003.
K. Since your firm commenced to provide legal services to Southlake
Venture West in May, 2002, you have participated in the consideration of
the following matters on the agendas of various meetings of the city
council as follows:
1. June 4, 2002 - Sign Variance
2. July 16, 2002 - SUP Farmer's Market
3. August 6, 2002 - Executive Session
4. August 20, 2002 - SUP Oktoberfest; SUP Octoberfest
5. September 17, 2002 - Executive Session
6. October 1, 2002 - SUP Off the Vine; SUP Off the Vine and Into the
Glass
7. November 5, 2002 - Executive Session
8. November 19, 2002 - Zoning and Concept Plan
9. December 3, 2002 - Landscaping Contractor Approval
10. December 17, 2002 - Zoning and Concept Plan; and 480 -SS, DT
District
11. January 7, 2003 - Developer's Agreement, SUP - Fo Melvins
12. January 21, 2003 - Executive Session
CHAPTER 171, TEX. LOCAL GOV'T CODE:
Chapter 171 of the Texas Local Gov't Code provides the statutory regulation of
conflicts of interest of officers of municipalities. Its provisions are also included in the City's
Ethics Ordinance. Section 171.004(a) of the Local Gov't Code requires a public official
who has a substantial interest in a business entity or in real property to file, before a vote
or decision on any matter involving the business entity or the real property, an affidavit
stating the nature and extent of the interest and to abstain from further participation in the
matter if:
(1) in the case of a substantial interest in a business entity the action on the
matter will have a special economic effect on the business entity that is
distinguishable from the effect on the public; or
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(2) in the case of a substantial interest in real property, it is reasonably
foreseeable that an action on the matter will have a special economic effect
on the value of the property, distinguishable from its effect on the public.
A public official who knowingly violates Section 171.004 commits an Class A
misdemeanor.
For purposes of Chapter 171, a person has a substantial interest in a business entity
if:
(1) the person owns 10 percent or more of the voting stock or shares of the
business entity or owns either 10 percent or more or $15,000 or more of the
fair market value of the business entity; or
(2) funds received by the person from the business entity exceed 10 percent of
the person's gross income for the previous year.
A person has a substantial interest in real property if the interest is an equitable or
legal ownership with a fair market value of $2,500 or more.
Discussion: The evidence presented shows that you do not have a substantial
interest in a business entity as you do not:
a. own any portion of the Town Square business entity; and
b. the $13,844.97 you received in 2002 from providing professional services to
Town Square did not exceed 10 percent of your income for 2001.
The lease agreement executed between your law firm and Southlake Venture West
does not create an interest in real estate that would bring it within the coverage of the
statute. You presently pay $1,790.00 per month for month -to -month occupancy. The
lease rate that you pay ($18.66 plus triple net) is at the very top of the market amount
charged to office tenants in the Town Square project. A month -to -month lease for tenancy
has no real estate value either legal or equitable. It is an interest that cannot be readily
marketed. To confirm my understanding of this rule, I have discussed it with Donnie
Sherwood and Ben Loughry of Integra Realty Resources both of whom are MAI appraisers
with extensive experience in valuing real estate interest for governmental entities. To the
best of my knowledge, neither gentleman has done work for Town Square but both are
frequently used as expert witnesses by governmental entities in establishing values for
property in eminent domain taking cases. I visited with each individual independently and
W: \Southlake \Ethics- Standerfer \Letters \Standerfer. EAT 171 A
they confirmed for me that a month -to -month tenancy has no marketable value in the real
estate community. Each individual further noted that even a long -term lease had limited
market value unless it was at a rate well below current market rates and, therefore, could
be subleased to business advantage. The facts in this case reflect that you are paying the
highest market rate charged and have only a month -to -month tenancy therefore you have
no real estate interest that would bring Chapter 171 into play in these circumstances.
Conclusions: Under Chapter 171, of the Texas Local Government Code, you do
not have a substantial interest either directly or indirectly in any of the identified Cooper &
Stebbins interests (Southlake Venture East, West or Central), the business entity nor do
you have a substantial interest in the real property under the terms and conditions of your
lease. The limitations and restrictions of Chapter 171 are therefore not applicable to your
conduct and you are not required to submit a disclosure affidavit or to abstain from
participation in matters relating to Cooper & Stebbins or any of their related entities, or the
Town Square project generally because of any provision contained in Chapter 171 of the
Texas Local Government Code.
SOUTHLAKE ETHICS ORDINANCE - ORDINANCE NO. 635:
The City of Southlake has adopted an ordinance regulating the standards of conduct
expected of public officials in the performance of their duties as municipal officers, agents
or employees. Ordinance No. 635 has been codified as Article 6 of the Southlake Code
of Ordinances. It covers Section 2 -261 through, and inclusive of, Section 2 -268. The
Article is structured as follows:
Section 2 -261 provides definitions applicable to its interpretation and
enforcement. Section 2 -262 is a declaration of the Articles policy. Section
2 -263 provides penalties for violations of the Article; forfeited positions;
exemptions; and injunctions. Section 2 -264 outlines standards of conduct
for public officers, employees and board members. Section 2 -265
establishes requirements for disclosures of interest. Section 2 -266
establishes the procedure for enforcement of the article. Section 2 -267
provides for advisory opinions from the City Attorney's office. Section 2 -268
requires distribution of copies of the Article. The operative provisions of the
Ordinance governing conduct of public officials is contained in Section 2 -264
(Standards of Conduct) and Section 2 -265 (Disclosure of Interest). All other
sections are supportive in nature providing definitions and procedural
requisites for the implementation and management of the Article. I have
attached copies of Section 2 -264 and Section 2 -265 as Exhibits to this
opinion letter to avoid the need to reproduce them within the text of the
W: \Southlake \Ethics- Standerfer \Letters \S tanderfer. EAT 171 A
opinion. You should presume that they are incorporated for all purposes in
the presentation of this opinion. Section 2 -264 is divided into Subsections
(a) through (e). Subsection (a) is further subdivided into fourteen expressly
prohibited activities or forms of conduct. Pursuant to your request, my office
has reviewed all fourteen elements and has found, for discussion purposes,
that only five could have any theoretical applicability under any of the facts
presented in the investigation. Specifically they are as follows:
Section 2 -264: Standards of Conduct.
(1) Accept or solicit any gift, favor, service or thing of value from any
person, group or business entity that might reasonably tend to
influence him in the discharge of his official duties.
(2) Grant in the discharge of his official duties any improper favor, service
or thing of value to any person, group or business entity;
(3) Accept or solicit any gift, favor, service or thing of value, including a
promise of future employment, of sufficient economic value that it
might reasonably tend to influence him in the discharge of his official
duties, from any person, group, or business entity:
(b) who has a financial interest in any proposed ordinance or
decision upon which the city officer, employee or advisory
board member may or must act or make a recommendation;
(5) Use one's position or office of employment or city facilities, personnel,
equipment or supplies to secure special privileges or exemptions for
himself or others or for the private gain of the officer, employees,
advisory board member of his spouse.
(8) Engage in or accept private employment or render a service when
such employment or service is incompatible with the proper discharge
of his official duties or would intend to impair his independent
judgment in the performance of his official duties.
The other nine subheadings under Category a of Section 2 -264 address
W: \Southlake\ Ethics- Standerfer \Letters\Standerfer.EAT 171 A
circumstances that are not present or applicable under the information identified in the
factual investigation. The review of the five sections questioned suggest the following
conclusions based on analysis and review.
(1) Accept or solicit any gift, favor, service or thing of value from any person,
group, or business entity that might reasonably tend to influence him in the
discharge of his official duties (Section 2- 264(a)(1)
The background review of information giving rise to this ethics opinion reflects that
you agreed to perform certain professional services for Southlake Venture West. The
available information indicates that you were contacted by the Venture to secure your
professional services based upon a general recognition of your reputation as an attorney
providing legal services in this particular field of law. Billing records indicate that you
provided normal and traditional legal services at standard hourly rates which were
reasonable within Tarrant County, Texas during the time period in which these services
were provided. You billed the business entity routinely and they paid the invoices as
presented routinely. The legal services did not require the disclosure of any proprietary or
confidential information that would work to the detriment of the city and no evidence exists
that you received any benefit other than the hourly compensation provided for direct legal
services. The amount of work done, the character of work, the evidence of its probable
end scope does not give any indication that it would create a sufficiently large stream of
income to exceed the ten percent of annual income cap established under the provisions
of Section 2 -261 which defines substantial interest. No information or evidence in the
record reflects any information that might demonstrate that this legal representation would
"reasonably tend to influence" you in the discharge of your official duties. The work
performed did not involve the city or its identified interest in any manner.
(2) Grant in the discharge of his official duties any improper favor, service, or
thing of value to any person, group, or business entity; (Section 2- 264(a)(2)
The investigation revealed no indication that you had granted any improper
favor, provided any improper service or offered anything of value to any business entity by
way of the discharge of your official duties. The only apparent matter that could arise
under this section is whether or not your votes in support of various Town Square projects
of proposals could have been influenced by your business relationship with Southlake
Venture West. The available record of city council minutes, deliberations, public
statements and news articles reflects that you had consistently expressed a position in
support of those projects prior to the commencement of this representation. The law
provides that there is a presumption of validity to the acts of legislative bodies and
legislative officials. To raise an issue on the improper grant of a favor, service or thing of
W: \South lake \E thics -S tanderfer \Letters \Standerfer. EAT 171 A
value a showing must be made that evidence exists to support the idea that the grant was
improper in some manner. No such evidence has been located.
(3) Accept any gift, favor, service or thing of value, including a promise of future
employment, of sufficient economic value that it might reasonably tend to
influence him, in the discharge of his official duties, from any person, group
or business entity:
(b) Who has a financial interest in any proposed ordinance or decision
upon which the city officer, employee or advisory board member may
or must act or make a recommendation; .... (Section 2- 264(a)(3)
The issues raised on this subheading are comparable to the ones raised by (Section
2- 264(a)(2) above. The only show of business contact is the performance by your law firm
of legal services for Southlake Venture West. The services in question do not rise to the
level of a substantial interest as identified in Section 2 -261 of this Ordinance or Section 171
et seq of the Texas Local Government Code. No showing exists that the provision of those
services were of sufficient economic value that it might reasonably tend to influence you
in the discharge of your official duties. Inquiry made to Brian Stebbins and to yourself has
identified no offer or acceptance of continued future business relationships of any type.
You have focused much of your legal practice in providing legal representation relating to
construction law, leases, contracts and lien related matters. Mr. Stebbins indicated that
you were selected for the legal work for Southlake Venture West solely because of your
expertise in this area and your accessibility since you were located close to his office in the
Town Square area.
(5) Use one's position or office of employment or city facilities, personnel,
equipment or supplies to secure special privileges or exemptions for himself
or others or for the private gain of the city office, employee, advisory board
member or his spouse. (Section 2- 264(a)(5).
The information identified in the background investigation reflects that this section
could only be applicable if there was a showing that you or a family member
received private gain because of the use of your office or position. The available
evidence indicates that your firm was selected to perform legal work for Southlake
Venture West because of its acknowledged expertise in the area of legal work being
undertaken and the geographic location of your office in the Town Square area.
The work performed was traditional for the type of project undertaken and the fees
charged and paid were reasonable in the Tarrant County legal market on the date
that they were charged and paid. No information or evidence can be found
W: \Southlake\ Ethics- Standerfer \Letters \Standerfer. EAT 171 A
indicating that there was any reason for your selection otherthan the reasons stated
above.
(8) Engaged in or accept private employment or render a service when such
employment or service is incompatible with the proper discharge of his
official duties or would intend to impair his independent judgment in the
performance of his official duties. (Section 2- 264(a)(8).
Initially, it should be noted that there is no evidence that you have accepted private
employment as that term is conventionally used in this type analysis. Employment is
defined as performing services for another where the employer has the ability to prescribe
the manner in which the services will be performed. Traditionally it involves scenarios in
which the employer directs the individual work tasks and controls the time and schedule
of the work environment. It should be noted that Section 2 -261 defines the word
"employee" as being an employee of the City and it further expressly provides that
definition of that term shall not be extended to apply to an independent contractor. An
independent contractor is an individual who is employed to provide services but the
employer does not control the manner in which those services shall be performed. It is
clear that even under this section your conduct would be analyzed only in determining
whether you had rendered a service where such employment or service is incompatible
with the proper discharge of your official duties or would tend to impair your independent
judgment in the performance of those duties. The facts identified in the investigation reflect
that you were not retained to perform any services relating to activities involving the City
of Southlake. You were performing traditional legal services for a landlord in dealing with
tenant issues. The work you performed was done on an hourly rate basis for a fee that
was commercially reasonable in Tarrant County at the time that you performed the
services. The type and character of services performed have no relationship to the matters
that the landlord might subsequently bring before any city board, commission, or council
for resolution. No information or evidence exists that you rendered a service in a manner
incompatible with the property discharge of your duties or in a manner that would impair
your independent judgment.
Section 2 -264 also contains subsections (b), (c), (d), (e). All of these sections deal
with direct or indirect representation of individuals or business entities before the city or
define limited circumstances in which an officer, agent, or employee may make
appearances before city boards and commissions. None of the provisions of subsections
(b) through (e) are applicable to the matters presented for this opinion and, therefore, are
not addressed.
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Section 2 -265 (Disclosure of Interest) is the operative section that would constrain
a municipal officer, agent or employee from undertaking certain acts without disclosure.
This particular section of the Code of Ethics requires that an officer, employee or advisory
board member give a public disclosure of interest in a matter if the officer has a substantial
interest in the business entity or real property involved in the upcoming decision. The text
of Section 2 -265 requires the public official to comply with the affidavit requirement set forth
in Section 171.004 of the Texas Local Government Code. A "substantial" interest is
defined for ordinance purposes in Section 2 -261 (a copy of which is attached to this
opinion) and will be used in evaluating the applicability of this section. A majority of this
definition conforms to the requirement set forth in Section 171.002 of the Texas Local
Government Code which was previously addressed in the portion of this opinion dealing
with that act. Two additional elements are raised that may be considered under the terms
of Ordinance 635. A substantial interest exists if the person is an employee of the
business entity and /or a substantial interest may exist if the person is a creditor, debtor or
guarantor of the business entity in the amount of $5,000.00 or more.
We have previously addressed the issue of the "employee" versus "independent
contractor" definition in a prior section of this opinion. The factual investigation of this
matter reflects that you provided professional legal services as an independent contractor
to Southlake Venture West and, therefore, did not serve as an employee of that business
entity.
The question then becomes could you have been a creditor, debtor or guarantor of
the business entity in the amount of $5,000.00 or more? The investigation of the
underlying facts does not reflect that you were, at any time, a debtor or a guarantor of the
business entity in any amount. Your rental payments were made on the first of each month
to cover the ensuing thirty days. You executed no notes or guarantees to answer for any
obligation of Southlake Venture entities. The only question remaining is whether you
became a creditor of Southlake Venture West by performing legal services and billing them
for those services. I have searched the available case reporters for analogous situations
involving local government officials performing independent contractor services and have
been unable to locate any case authority addressing this issue either way. The plain
meaning rule would have us look for the normal commercial usage in which that
relationship is established. A creditor /debtor relationship traditionally is presumed to
involve an agreement for the pavement over time of an obligation or in the alternative if a
debtor has defaulted on an obligation and the lender assumes a special relationship
recognized at law in the attempt to collect the debt. An argument can be made that at any
point that you perform a service for someone and bill them there is a limited creditor
arrangement while you await payment. Traditionally, this is not accepted as a classic
debtor /creditor relationship as it is presumed to be an arms - length transaction where the
W: \Southlake\ Ethics- Standerfer \Letters \Standerfer.EAT 171 A
individual performing services will submit an invoice and the person benefitting from those
services will pay the invoice within the time stated for payment. The information available
in this case reflects that you routinely bill Southlake Venture West for services performed
and they promptly paid upon receipt of the statements. At no time did you make demand
for payment due to breach of the professional services agreement on their part and no
agreement existed for them to be accorded the opportunity to pay the cost of legal services
over an extended time period. It does not appear that you fall within the traditional
definition of "creditor" which would be applicable in this case. We have conducted a fairly
extensive review of the Digests, UCC Reporters and other traditional sources of
information on defining the relationship but are not coming up with a definition that is
precise. The debtor /creditor relationship appears to be situational based upon the
individual facts of each case. The facts identified in our review do not give rise to a
situation in which we believe you can be called a creditor of Cooper & Stebbins or
Southlake Venture West in the traditional context of how that term is used.
Failing to find that you have any substantial interest in the business entity or real
property of Southlake Venture West or other Cooper & Stebbins entity, we find that you
had no duty of disclosure pursuant to the provisions of Section 2 -265.
Conclusion:
Pursuant to your request of January 27, 2003, my office has made a diligent effort
to review not only the provisions of the Local Government Code but the provisions of
Ordinance No. 635 as codified in Sections 2 -261 through 268 of the Southlake Code of
Ordinances and as such does not find that you have engaged in a violation of either
regulation by your representation of Southlake Venture West or your service and actions
on the City Council subsequent to that date. I trust you recognize that our opinion is
premised upon the facts and information now available to us and, of course, could change
if circumstances change. Specifically, I would note that if you undertook a significant
amount of legal representation for Southlake Venture West or other Cooper & Stebbins
entities and began to do legal work where your billings and receipts constituted more than
ten percent of your gross personal income a substantial interest would likely exist and we
would be facing an entirely different set of circumstances.
W: \Southlake \Ethics - Standerfer \Letters \Standerfer. EAT 17I A
I hope I have answered the questions that you raised in your request and if I can
provide you with any additional information or assistance, please feel free to contact me.
Sincerely,
j
E. Allen Taylor, Jr'
EAT /ds
W:\Southlake\Letters\EAT171A.wpd
cc: Mayor
All City Council Members
City Manager
Assistant City Manager
W:\SouthlakeEthics-Standerfer\Letters\Standerfer.EAT171A
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COOPER & STEBBINS VI e e41,
Cooper pe & Stebbins, LP., 1256 Main Street, Suite 240
Southlake, Texas 76092
Telephone (817) 329 -8400
Facsimile (817) 251 -8717
February 4, 2003
Mr. Dennis Killough
Senior Planner
Planning Department, City of Southlake
1400 Main Street, Suite 310
Southlake, Texas 76092
Re: Request to Table Revised Concept Plan and Amended Zoning Application
Southlake Town Square — Case No. ZA02 -042
Request to Table Revised Preliminary Plat and Development Plan
Southlake Town Square — Case Nos. ZA02 -043 and ZA02 -044
Dear Dennis:
Due to the issues currently facing the City Council, we believe it to be in the best interests of the
community that we table the above referenced Applications until such matters can be resolved to
the satisfaction of the Council. Due to the interactive relationship that exists between the
Applications and the proposed Downtown District Zoning, we would further respectfully request
that this matter also be tabled until such time as a comprehensive and thoughtful action can be
contemplated.
As you are aware, Cooper & Stebbins is the developer and long -term owner of Southlake Town
Square and has a very vested interest in the environment's current, and future, viability. As such,
we feel obligated to set the record straight on certain matters.
• The Brownstones being proposed are single- farnily homes, which currently range in size from
2,800 sq. ft. to 3,600 sq. ft. Pricing is expected to range from $350,000 to over $500,000.
Each home will occupy its own lot. For the record, the Brownstones are not multifamily
housing and they are not apartments.
• As has been stated from the very beginning, residential and the proposed hotel (amongst other
uses as well) are extremely important factors affecting the ultimate outcome of a viable
downtown. Cooper & Stebbins is not unlike any other business in that it is heavily impacted
by the factors influencing the overall economy within which it works.
- For your information, the residential and hotel uses have been actively worked on for
over 2 years and represent a thoughtful evolution of the Downtown already in place
through the expansion of complimentary and market -driven uses. Take it from any
accredited source and you find that hotel and residential uses are two of the most
important additions necessary to fulfill the Town Square vision.
- The retail, restaurant and office market, as well as the addition of the Town Hall and Post
Office, has, over the last seven years, allowed us to progressively evolve the environment
to that which is currently around us today. It is absolutely essential to the viability of the
environment that it be able to maintain its momentum. The uses being proposed have
Dennis Killough
been carefully nurtured over time and represent a quantifiable opportunity to responsibly
add to the environment within the immediate term. Once momentum is lost, especially
in today's economy, it takes a long time to recover.
- Tax revenues from the Brownstone development are projected to be equivalent to, or
greater than, alternative commercial development options, and are realizable now, versus
at some time in the distant future. No viable office market of any size currently exists.
As well, extremely challenging topography limits retail development of the Brownstone
site.
• The Brownstones and Hotel represent a significant source of tax revenues for the City and
School District, and would be in addition to the approximately $3.6 million of revenues
already in place and being paid on an annual basis. Revenue impact(s) are summarized as
follows:
- Rollback taxes of over $300,000 will be paid on commencement of development.
- The combined real property tax values of the proposed uses are estimated at $78,000,000
on completion, more than double the existing tax value already in place.
- Annual revenues to the City and County taxing authorities are estimated at an additional
over $1.3 million per annum, which will eliminate the current TIF deficit and generate
surplus revenues to the City and County.
- Annual revenues to the Carroll Independent School District are estimated at adding an
additional over $1.5 million per annum, every penny of which is exempt from Robin
Hood.
• The Brownstones fulfill a strong market demand from Southlake couples whose children
have grown but who wish to remain in their community and have no alternative available to
them except to leave the City they've grown to love.
• Brownstone residents will support Town Square retailers, restaurants and service providers.
The City and School District, due to budgetary concerns that have been well documented and
publicized, need the revenues that these projects will bring. The City knows only too well from
the lack of applications before them that no development of any significance is in the pipeline.
We urge the City to address and resolve the issues before it in a timely manner, and look forward
to the opportunity to be heard on our pending applications for the Brownstones and Hotel.
Please feel free to call Frank Bliss or myself should you have any questions or comments
regarding the above.
Sincerely, ;rte
Brian R. Stebbins
CEO
cc: Frank Bliss
Patty Pickard
Ron Cibulka
Scott Rodgers