HomeMy WebLinkAboutORD 2005-079 ORDINANCE NO. 2005-79
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AN ORDINANCE AMENDING CHAPTER 25 OF THE CITY OF
GRAPEVINE CODE OF ORDINANCES, AS AMENDED, BY THE
ADDITION OF ARTICLE VII, "MUNICIPAL SETTING
DESIGNATION," PROVIDING FINDINGS AND DEFINITIONS,
PROVIDING FOR THE PROHIBITION OF THE USE OF
GROUNDWATER FOR POTABLE PURPOSES IN A MUNICIPAL
SETTING DESIGNATION, PROVIDING FOR AN APPLICATION
PROCESS FOR A MUNICIPAL SETTING DESIGNATION,
PROVIDING FOR PUBLIC MEETINGS AND HEARINGS,
PROVIDING FOR NOTICE TO PERSONS WITHIN THE
AFFECTED COMMUNITY, PROVIDING FOR LIMITATIONS ON
REAPPLICATION, PROVIDING FOR PROOF THAT RESPONSE
ACTIONS HAVE BEEN COMPLETED ON A SITE, PROVIDING
THAT THIS ORDINANCE IS CUMULATIVE; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING A FINE OF UP TO
$2,000.00 FOR EACH OFFENSE IN VIOLATION OF THE
ORDINANCE; PROVIDING A SAVINGS CLAUSE; AND
PROVIDING AN EFFECTIVE DATE
WHEREAS, due to limited quantity and low quality, there are areas of
shallow groundwater within the city and its extraterritorial jurisdiction that are not
�� �� valuable as potable water sources, and therefore are not utilized for potable
water; and
WHEREAS, many commercial and industrial properties in Grapevine and
its extraterritorial jurisdiction are underlain with unusable groundwater that has
become contaminated by historical on-site or off-site sources; and
WHEREAS, the City of Grapevine does not utilize groundwater as a
source for public drinking water, and less than six percent of all municipal water
supplies in Tarrant County come from groundwater sources; and
WHEREAS, the use of Municipal Setting Designations within Grapevine
and its extraterritorial jurisdiction allows for a state-evaluated corrective action
process for groundwater that is directed toward protection of human health and
the environment balanced with the economic welfare of the citizens of the city;
and
WHEREAS, where public drinking water is available, the potable use of
groundwater in designated areas should be prohibited to protect public health
, � and welfare when the quality of the groundwater presents an actual or potential
threat to human health; and
_ WHEREAS, people should have a say in decisions which affect their lives
and property, and public input should influence governmental decisions; and
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WHEREAS, all statutory and constitutional requirements for the passage
of this Ordinance have been adhered to, including but not limited to the Open
Meeting Act; and
WHEREAS, the City Council determines that the passage of this
Ordinance is in the best interests of the health, safety, and welfare of the public.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF GRAPEVINE, TEXAS:
Section 1. That all matters stated hereinabove are found to be true and
correct and are incorporated herein by reference.
Section 2. That Chapter 25, Utilities and Services, is hereby amended
by the addition of the following Article VII, "Municipal Setting Designation":
"Section 25-200. Definitions.
Unless a provision explicitly states otherwise, the following terms and phrases,
as used in this Article, shall have the meanings hereinafter designated. Act
means the Texas Water Quality Control Act, as amended, codified as Chapter
26, Texas Water Code.
Affected community means those persons entitled to notice in Section 25-203
�b)�7)
below.
Authorized representative means for purposes of signing an application, if the
applicant is a corporation, the president, secretary, treasurer, or a vice-president
of the corporation in charge of a principal business function, or any other person
who performs similar policy or decision-making functions for the corporation; if
the applicant is a partnership or sole proprietorship, a general partner or
proprietor, respectively; and if the applicant is a local government, the chief
executive officer or his authorized designee.
Chemical of concern means any chemical that has the potential to adversely
affect ecological or human receptors due to its concentration, distribution, and
mode of toxicity.
Director means the Director of Public Works or the Director's authorized
t representative.
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ORD. NO. 2005-79 2
Environme�ltal risk assessment means the qualitative and quantitative evaluation
performed in an effort to define the risk posed to human health and/or the
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environment by the presence or potential presence and/or use of pollutants.
Groundwater means water below the surface of the earth.
Municipal Setting Designation (MSD) means a designation as provided by
Chapter 361, Subchapter W, of the Texas Health and Safety Code, which
authorizes the executive director of the Commission to certify municipal setting
designations in order to limit the scope of or eliminate the need for investigation
of or response actions addressing contaminant impacts to groundwater that has
been restricted from use as potable water by ordinance or restrictive covenant.
Permit (n.) means an order issued by the Texas Commission on Environmental
Quality in accordance with the procedures prescribed in the Act establishing the
treatment which shall be given to wastes being discharged into or adjacent to any
water in the state to preserve and enhance the quality of the water and specifying
the conditions under which the discharge may be made.
Potab/e water means water that is used for irrigating crops intended for human
consumption, drinking, showering, bathing, or cooking purposes.
Section 25-201. Declaration of Policy and Purpose.
�� e It is the policy of the City and the purpose of this Article to maintain the quality of
water in the City consistent with the public health and enjoyment, the propagation
and protection of terrestrial and aquatic life, the operation of existing industries,
and the economic development of the City; and to require the use of all
reasonable methods to implement this policy.
Section 25-202. Use of groundwater in Municipal Setting Designation as a
potable water source prohibited.
(a) A person commits an offense if the person intentionally, knowingly,
or with criminal negligence uses groundwater in a Municipal Setting
Designation as a potable water source.
(b) A person commits an offense if the person intentionally, knowingly,
or with criminal negligence uses groundwater in a Municipal Setting
Designation for a purpose prohibited in the ordinance creating that
Municipal Setting Designation.
Section 25-203. Application for City Council Approval of Municipal Setting
, Designation.
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,.._ . (a) A person, including the City of Grapevine, seeking City Council
approval of a Municipal Setting Designation (MSD) for property
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within the corporate limits of the City of Grapevine, or within its
extraterritorial jurisdiction, shall file six copies of an application with
the Director. An application may be filed in person, by United States
mail, or by a document delivery service.
(b) An application shall be on a form provided by the Director, and shall
contain:
(1) Applicant's name and address, and the name, address,
daytime telephone number, and email address of a contact
person;
(2) The location and legal description of the proposed outer
boundaries of the MSD;
(3) A statement as to whether applicant has filed an application
with the executive director of the Commission for an MSD for
the property;
(4) A statement as to whether a public drinking water supply
system exists that satisfies the requirements of Texas Health
and Safety Code Chapter 341 and that supplies or is
� •°� capable of supplying drinking water to the property for which
the MSD is sought, and property within one-half mile of the
property for which the MSD is sought;
(5) A description of the groundwater sought to be restricted,
including the identified chemicals of concern therein and the
levels of contamination known to applicant, and the identified
vertical and horizontal area of the contamination. If applicant
has not documented groundwater contamination offsite that
originates from the property for which an MSD is sought, the
application shall include a statement as to whether
contamination more likely than not exceeds a residential
assessment level offsite and the basis for that statement;
(6) Identification of the person(s) responsible for the
contamination of the groundwater, if known;
(7) A listing of:
(A) all owners of real property lying within one-half mile of
the subject property, as the ownership appears on the
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last approved city tax roll;
ORD. NO. 2005-79 4
(B) all state-registered private water wells within five
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miles from the boundary of the property for which the
designation is sought, including a notation of those
wells that are used for potable water purposes (if
known), and a statement as to whether applicant has
provided the owners with notice as provided in Texas
Health and Safety Code Section 361.805;
(C) of each retail public utility that owns or operates a
groundwater supply well located not more than five
miles from the property for which the MSD is sought,
and a statement as to whether applicant has provided
the utilities with notice as provided in Texas Health
and Safety Code Section 361.805; and
(D) each municipality, other than the City of Grapevine,
with a boundary located not more than one-half mile
from the property for which the MSD is sought; or that
owns or operates a groundwater supply well located
not more than five miles from the property for which
the MSD is sought; and a statement as to whether
applicant has provided the municipalities with notice
as provided in Texas Health and Safety Code Section
-�T °� 361.805;
(8) A copy of the application to the executive director of the
Commission, if filed;
(9) A site map, drawn to scale, including a metes and bounds
description of the property, the boundary of the proposed
MSD, the location of groundwater on the property, and the
extent of groundwater contamination to the limits that it has
been defined. The map shall include a statement by a
professional land surveyor registered by the Texas Board of
Professional Surveying attesting to the accuracy of the
metes and bounds property description; and
(10) Any other information that the Director deems pertinent.
(c) The application shall be signed by an authorized representative of
the applicant and shall contain the following certification statement:
� "I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in a
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manner designed to assure that qualified personnel properly gather
ORD. NO. 2005-79 5
and evaluate the information submitted. Based on my inquiry of the
person or persons directly responsible for gathering the information,
the information submitted is, to the best of my knowledge and
`�� ;� belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
(d) An application shall be accompanied by:
(1) A set of printed mailing labels with the names and addresses
of persons listed in subsection (b)(7) above;
(2) An electronic file of the names and addresses of persons
listed in subsection (b)(7) above, in a format acceptable to
the Director and compatible with City information systems;
and
(3) An application fee in an amount of$2,500.00.
(e) An applicant may withdraw its application in writing by letter sent
certified mail, return receipt requested, to the Director, and shall
forfeit the application fee. If the Director has not issued public
` ° notice prior to the receipt of the withdrawal letter, the applicant may
reapply at any time. If public notice has issued, a new application is
� -� subject to the limitations of Section 25-209 below.
Section 25-204. Staff Review.
(a) Upon receiving an application for an MSD approval, the Director will
distribute a copy to his designee within the Public Works
Department and Development Services Department for staff
review. The purpose of the review is to determine whether the
application is complete, and whether any current or future City
property or other interests have the potential to be impacted by the
proposed MSD. City staff shall not be tasked with conducting an
environmental risk assessment of the application.
(b) City staff must send a written report to the Director within thirty
calendar days of receiving the application, noting any discrepancies
in the application, and advising of any City interests that may
potentially be impacted by the proposed MSD.
Section 25-205. Director Action Following Application Review.
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ORD. NO. 2005-79 6
(a) Following staff review, if the Director determines that the application
is complete, he will schedule a public meeting and a public hearing.
The public meeting must be held prior to the public hearing.
(1) A public meeting will be scheduled at a time no later than 60
days following the day the application was received by the
City; and
(2) A public hearing will be scheduled at a time no later than 90
days following the day the application was received by the
City.
(b) The date that an application is deemed to have been received by
the City is the date that the application was received by the
Director, as indicated by the file date stamped on the application
package by the Department of Public Works.
(c) If the Director determines that the application is incomplete, he will
return the application to applicant, noting the deficiencies in writing.
The applicant shall have 30 days from the date of the deficiency
letter to correct the deficiencies and resubmit the application. If the
applicant fails to submit a corrected application within the allotted
time, the application shall be deemed to be withdrawn and the
application fee forfeited.
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Section 25-206. Notice of Public Meeting and Public Hearing.
(a) Notice of the public meeting and the public hearing on an MSD
application may be combined and must include the date, time and
location of the finro events, the identity of the applicant, the location
and legal description of the property for which the MSD is sought,
the purpose of the MSD, the type of contamination identified in the
groundwater of the property for which the MSD is sought, and a
statement that a copy of the application is available for public
viewing at a specified Grapevine Public Library facility. Notice will
be made as follows:
(1) The Director will provide published notice of a public meeting
and a public hearing for a proposed MSD by means of a
legal advertisement appearing in the official newspaper of
the City, or a paper of general circulation, not less than 15
days before the public meeting;
. , (2) The Director will provide posted notice of a public meeting
and a public hearing by requesting that the City Secretary
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post the notice at City Hall, in a place readily accessible to
ORD. NO. 2005-79 7
the general public at all times, not less than 15 days before
the public meeting; and
rt � (3) The Director will serve written notice of a public meeting and
a public hearing for a proposed MSD not less than 15 days
before the date set for the public meeting. Such notice shall
be deemed served when it is deposited, properly addressed
and regular postage paid, in the United States mail. Notice
will be served to:
(A) the applicant;
(B) the list provided by applicant of owners of real
property lying within one-half mile of the subject
property, as the ownership appears on the last
approved city tax roll;
(C) the list provided by applicant of persons who own
private registered water wells within five miles of the
subject property;
(D) the list provided by applicant of each retail public
utility that owns or operates a groundwater supply
well located not more than five miles from the
T y property for which the MSD is sought; and
(E) the list provided by applicant of each municipality with
a boundary located not more than one-half mile from
the property for which the MSD is sought or that owns
or operates a groundwater supply well located not
more than five miles from the property for which the
MSD is sought.
(b) The Director will direct the erection of at least one sign upon the
property for which an MSD has been requested. Where possible
such sign or signs must be located in a conspicuous place or
places upon such property at a point or points nearest any right-of-
way, street, roadway or public thoroughfare adjacent to such
property. Such sign(s) must be so erected not less than 15 days
before the date set for the public meeting. Any such sign(s) will be
removed subsequent to final action by the City Council on the MSD
application. The sign(s) must state that an MSD has been
requested for the site and that additional information can be
, acquired by telephoning the number listed thereon or visiting the
web site address listed thereon. The erection and/or the continued
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maintenance of any such sign shall not be deemed a condition
ORD. NO. 2005-79 8
precedent to the holding of any public meeting or public hearing or
to any official action concerning the MSD application.
(c) The Director will send a copy of the application to the Grapevine
Public Library #acility located nearest to the property that is the
subject of the application, and request that it be displayed for public
review. The librarian for the facility will display the application in a
publicly accessible area of the library until at least the completion of
City Council action on the application, or the withdrawal of the
application by applicant.
Section 25-207. Conduct of Public Meeting.
(a) The purpose of a public meeting is for the applicant to provide
information to the affected community about MSD's and the
application and to obtain input on the application prior to a formal
hearing before the City Council.
(b) The public meeting will be held in the evening at a location
convenient to the affected community.
(c) The applicant or applicant's representative must appear at the
� public meeting. If the applicant fails to appear at the public meeting
either in person or by representative, the application shall be
�� ° deemed withdrawn and the application fee forfeited.
(d) The Director will be responsible for the conduct of the meeting. He
will give the applicant or the applicant's representative the
opportunity to present its reasons for requesting an MSD, and will
give members of the affected community the opportunity to ask the
applicant questions or make oral comments on the application.
(e) The Director will make a tape recording of the public meeting
available for the public.
Section 25-208. Conduct of Public Hearing.
(a) Prior to the hearing, the Director will provide the City Council with a
written report summarizing the request for the MSD approval,
including any concerns raised by the reviewing departments, and
will attach a copy of the application to the report.
(b) The applicant or applicant's representative must appear at the
_ � hearing and present the request for an MSD approval. If the
applicant fails to appear at the hearing either in person or by
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ORD. NO. 2005-79 9
representative, the application shall be deemed withdrawn and the
application fee forfeited.
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(c) Persons wishing to speak either in favor of or against the
application will be provided the opportunity in accordance with City
Council rules or guidelines for public hearings.
(d) Following the conclusion of the public hearing, the City Council may
deliberate the matter of the application, and then may either:
(1) vote to approve or disapprove the application; or
(2) postpone action on the application to a future date.
(e) In order to approve an application, the City Council must:
(1) adopt a resolution supporting the application to the Texas
Commission on Environmental Quality; and
(2) enact an ordinance prohibiting the potable use of designated
groundwater from beneath the property. The ordinance must
include a metes and bounds description of the property to
which the ordinance applies; a listing of the contaminants;
and a statement that the ordinance is necessary because
•� - the contaminant concentrations exceed potable water
standards.
(f) In the ordinance enacted pursuant to subsection (e)(2) above, City
Council may place other reasonable restrictions on the use of
designated groundwater from beneath the property.
(g) City Council approval of an application shall not be deemed to
waive the City's right to comment on an MSD application that has
been filed with the Executive Director of the Texas Commission on
Environmental Quality as provided by Texas Health and Safety
Code Section 361.805.
Section 25-209. Limitation on Reapplication.
If after public hearing the City Council disapproves an application, or if the
applicant has withdrawn its application after public notice has been issued, no
new MSD applications for the property shall be accepted by the city or scheduled
for a hearing by the City Council within a period of 12 months of the date of
y disapproval or withdrawal.
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Section 25-210. Additional Requirements.
ORD. NO. 2005-79 10
(a) A person who has received approval of an MSD from the City,
shall, upon issuance from the Commission, provide the Director
with a copy of the Certificate of Completion or other documentation
issued for the property, showing that response actions have been
completed.
(b) A person commits an offense if they fail to provide the Director with
the documentation required in subsection (a) above, within 30 days
of its issuance by the Commission."
Section 3. That all ordinances or any parts thereof in conflict with the
terms of this ordinance shall be and hereby are deemed repealed and of no force
or effect; provided, however, that the ordinance or ordinances under which the
cases currently filed and pending in the Municipal Court of the City of Grapevine,
Texas, shall be deemed repealed only when all such cases filed and pending
under such ordinance or ordinances have been disposed of by a final conviction
or a finding not guilty or nolo contendere, or dismissal.
Section 4. Any person violating any of the provisions of this ordinance
shall be deemed guilty of a misdemeanor and upon conviction thereof shall be
fined in a sum not to exceed Two Thousand Dollars ($2,000.00) and a separate
offense shall be deemed committed upon each day during or on which a violation
. occurs or continues.
Section 5. If any section, article, paragraph, sentence, clause, phrase
or word in this ordinance, or application thereto any person or circumstance is
held invalid or unconstitutional by a Court of competent jurisdiction, such holding
shall not affect the validity of the remaining portions of this ordinance; and the
City Council hereby declares it would have passed such remaining portions of
the ordinance despite such invalidity, which remaining portions shall remain in full
force and effect.
Section 6. The fact that the present ordinances and regulations of the
City of Grapevine, Texas are inadequate to properly safeguard the health, safety,
morals, peace and general welfare of the public creates an emergency which
requires that this ordinance become effective from and after the date of its
passage, and it is accordingly so ordained.
Section 7. This ordinance shall be in full force and effect after its
passage and publication as required by law, and it is so ordained.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
° $ GRAPEVINE, TEXAS on this the 11th day of October, 2005.
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ORD. NO. 2005-79 11
APPROVED:
4'dilliam D. Tate
iv�a�or
ATTEST:
Linda Huff
City Secretary
APPROVED AS TO FORM:
°4;� `� ��,�a�� <�
.
Matthew Boyle
t� � City Attorney
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ORD. NO. 2005—�� �2