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HomeMy WebLinkAbout1985-05-02AGENDA CITY OF GRAPEVINE, TEXAS REGULAR BOARD OF ZONING ADJUSTMENTS MEETING THURSDAY, MAY 2, 1985 AT 6 :00 P.M. COUNCIL CHAMBERS - 413 MAIN STREET II. OATH OF TRUTH III. NEW BUSINESS A. Board of Zoning Adjustments to conduct a public hearing relative to BZA 85 -11 submitted by Drees Homes and consideration of same. B. Board of Zoning Adjustments to conduct a public hearing relative to BZA 85 -18 submitted by Moffat Construction Company and consider- ation of same. C. Board of Zoning Adjustments to conduct a public hearing relative to BZA 85 -19 submitted by Roger Vinson and consideration of same. IV. OLD BUSINESS A. Board of Zoning Adjustments to consider Appli- cation BZA 85 -09 submitted Mr. Fred Brodsky relative to waiving Section 69.L., Vested Rights, which reads as follows: "Any person, firm or corporation claiming a vested right to commence and complete a specific proposed development who does not file an application for a determination under this Section 69, within six (6) months of the effective date of an amendatory ordinance rezoning his property so as to prohibit his proposed development shall be deemed to have waived his right to seek such a determination." V. MISCELLANEOUS REPORTS AND /OR DISCUSSION VI. CONSIDERATION OF THE MINUTES Board of Zoning Adjustments to consider the minutes of the meetings of March 7, 3985. VII. ADJOURNMENT IN ACCORDANCE WITH ARTICLE 6252 -17, V.A.T.C.S., AS AMENDED BY CHAPTER 227, ACTS OF THE 61ST LEGISLATURE, REGULAR SESSION, THE REGULAR BOARD OF ZONING ADJUSTMENTS MEETING AGENDA WAS PREPARED AND POSTED ON THIS THE 24TH DAY OF APRIL, 1985 AT 5 :00 P.M. 4�a RL,.,j N60 &V Cit Secretary 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TRANSCRIPT OF PROCEEDINGS of the BOARD OF ZONING ADJUSTMENT of the CITY OF GRAPEVINE, TEXAS at the COUNCIL CHAMBERS - 413 MAIN STREET GRAPEVINE, TEXAS MAY 2, 1985 - 6:00 p.m. In re : CLAIM OF VESTED RIGHTS by MR. FREDERICK BRODSKY DAVID C:HANUE - (:ER'1iYiEL) SHURTHAND REPORTER 618 COPPER RIDGE - RICHARDSON, TEXAS 75080 214-234-0110 or 231-9723 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R E S E N T Board of Zoning Adjustment: Mr.. Doug Lamb, Chairman Mr. Gary Tischler Mr. Ron Troy Mr. Bill Waldrip City Staff: Ms. Joy Carroll, Planning and Zoning Administrator Mr. Tommy Hardy, Director of Community Development Ms. Adrienne Leonard, Assistant City Attorney Air. John Boyle, City Attorney Also Present: Mr. Arthur Anderson Geary, Stahl & Spencer Counsel to the Applicant. Mr. Fred Brodsky, Applicant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 is 20 21 22 23 24 25 .3 MR. LAMB: Under old business, Board of Zoning Adjustments to consider application BZA 85-09 submitted by Mr. Fred Brodsky relative to waiving Section 69-L, vested rights, which reads as follows, any person, firm or corporation claiming a vested right to commence and complete a specific proposed development who does not file an application for a determination under this Section 69 within six months of the effective date of an amendatory ordinance rezoning his property so as to prohibit his proposed development shall be deemed to have waived his right to seek such a determination. Mr. Brodsky, you are here. Would you, or your attorney, like to start off? MR. BRODSKY: Basically we have been -- MR. LAMB: Excuse me, would you step around here? We have a Court Reporter here and it would make it a little easier if you would come over here to this podium so it would make it easier for him to hear you and to make notes. MR. BRODSKY: Sure. The request was made, primarily, because we were not aware of the six month limitation, but, too, and I think more importantly, we have been in constant negotiations and discussions with the city at all levels to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 attempt to work out resolutions to a. variety of situations affecting the 131 acres that I own. At the time we were going through these negotiations it was our hope that we could have these finalized. These were going on throughout the six month period. As we got further into it it became more complicated because of the utilities situations and because of the 2499 proposed right-of-way, it was actually at the suggestion of the City of Grapevine that we made application under vested rights, and at the time we took that out we were not aware of the vested rights provisions and made our application and only found out subsequently that we had exceeded the time limit. So, I am. respectfully requesting that this be waived so that we can then be enabled to go ahead and proceed with the vested rights procedure. MR. LAMB: When exactly did the city suggest to you that you file under your vested rights? MR. BRODSKY: I would say that it was about three weeks prior to the actual application. As a. matter of fact, I waited for that meeting in which the Mayor would be involved and the City Manager was involved and the Director of Public Works and Dr. Wilkerson who is also in attendance who was at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 that meeting, I waited and picked up the application that afternoon and submitted it promptly, as far as the procedure was concerned. MR. LAMB: Tommy, do you have a date on that meeting? MR. HARDY: No, sir, but I can recall the meetin I was in attendance at that meeting. I'm sure that those there didn't realize the deadline clause in the ordinance. It never came up for discussion in the body of the ordinance. The case was filed soon after that. MR. TROY: Prior to that meeting was there discussion concerning the vested rights issue or the ordinance? MR. BRODSKY: No, sir, not as far as vested rights were concerned. Again, we were proceeding under the ordinance and, as a matter of fact, at the request, again of the city, I was asked to draft a different zoning ordinance for my property and the Rosewood property because we were jointly trying to resolve differences because of the new zoning laws and we did that and submitted it to the city and that was then under review. If I remember correctly, and Tommy if you remember the dates you can correct me, we submitted 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C that around August of last. year. MR. HARDY: Uh-huh. MR. BRODSKY: It took somewhere until the latter part of the year, about two or three months until, we received comments back from the reviewing parties, Tony Wiles and the city staff, and that was the bulk of the delay during the period of time. We prepared the ordinance after discussions with different elements of the city staff and in accordance with what we thought at the time was the intent of the city staff as far as that property was concerned. This was done, again, very timely. The delay really occurred because the review process of the ordinance that was prepared, and. I don't remember the exact date that we got the comments back but it was somewhere in the area of two or three months after we submitted the zoning ordinance. MR. LAMB: Tommy, I ask again, is that delay of two or three months, we're trying to determine actual factual. issues here, the delay of two or three months, did it in fact occur after the ordinance was submitted for review, as far as you can tell? I'm asking you as a representative of the city staff, do you have a recollection in that area? MR. HARDY: John, were you at that meeting? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 is 20 21 22 23 24 25 7 MR. BOYLE: No. MR. HARDY: First of all, let me kind of give you the status of all that has occurred with Mr. Brodsky's case, all that I can recall. During the rezoning process his tract was reheard again, as were some thirty -odd tracts were at the request of property owners, and I think even the city readvertised some because of problems encountered in the public hearings. The best that I can recall, the comments to Mr. Brodsky on redrafting another ordinance, and I believe that Tony Wiles was the one that made the suggestion that the tract was big enough that possibly it needed an ordinance of its own, and that's where the ordinance that you submitted, not the ordinance, but the requirements, that you submitted evolved from, and Mr. Wiles reviewed those things and he wasn't in favor of what was written at all and neither was Planning & Zoning, to the best of my recollection. After we met with Mr. Brodsky some months ago it was very soon after that he came and filed his case. As a matter of fact, if I remember correctly, within a week or two weeks. MR. BRODSKY: That's right. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s MR. HARDY: He took an application with him and was back very quickly after the last meeting we had with him, Mr. Hancock, and I think the Mayor sat in on part of it. MR. BRODSKY: Yes, sir. MR. LAMB: Do you have something? MR. ANDERSON: Yes, we have the date that it was returned from Tony Wiles as November 6th and the date of submission being July 2nd. MR, TISCHLER: The date of submission of the ordinance? MR. ANDERSON: Yes, to Tony Wiles, MR. BRODSKY: It. was four months, three -and -a - half months, even longer than I thought. MR. TISCHLER: Would you repeat the dates? MR. HARDY: The date of the memo, the memo is date stamped November 6th, 1984, but there is not a date on the memo from Mr. Wiles. MS. CARROLL: That date is the date it was received in our office. MR. TROY: November 6th? MS. CARROLL: Correct. MR. HARDY: So I really don't know what the date of the memo was. What was the date that I sent it, Tommy? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e MR. HARDY: July 2nd. MR. TROY: Who is Tony Wiles? MR. HARDY: He is the professional planner that the city hired from Rustin, Virginia. He is the one that helped us all through the rezoning process and is still a consultant to us. MR. BOYLE: Mr. Chairman, I would like to suggest to Mr. Hardy that the record clearly reflects the date that the ordinance was passed zoning the subject property and the ordinance number and a certified copy of the ordinance. Then, the record reflects the date the application was filed under Section 69 relative to vested rights in the zoning ordinance. Then, I was just a little confused about the amendatory ordinance. I think it. just needs to be clear as to what that was in relation to, was that in relation to some -discussions where there were some discussions with the city about the possibility of amendment to the existing ordinance that actually zoned their property, just so the record clearly reflects actually what each of these are. MR. LAMB: Okay, we can do that. Do you have a copy of the ordinance? MS. CARROLL: Yes, a certified copy of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is is 17 18 19 20 21 22 23 24 25 10 ordinance will be entered into the record, and the date of that ordinance zoning this property was June 7, 1984, and I have the application. MR. BOYLE: The number? MS. CARROLL: The number of the ordinance is 84-31, and the date that he submitted the applica- tion for vested rights, the vested rights case, is February 6th, 1985. 1 mean -- yes, sir, February 6th. MR,, LAMB: Now, the two pieces of paper that you have in front of you are? MR. HARDY: I guess that. basically what Mr. Boyle wants into the record is that before the zoning the property is Il, light. industrial? MS. CARROLL: Correct. MR. HARDY: And the city rezoned the tract to HCO, Hotel Corporate Office, and the submission by Mr. Brodsky, there was never a classification put on that. It was just -- to the best. of my recollec- tion, and correct me, Mr. Brodsky, if I am wrong, it was a new ordinance that was drafted up with various requirements that differed tremendously from the HCO ordinance adopted. MR. BOYLE: This is a matter of discussion, a proposal by Mr. Brodsky in information that was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submitted under date of November of 1984, is that correct, a proposed, either amendments to the HCO, or -- MR. HARDY: No, sir. MR. BOYLE: -- a new category? MR. HARDY: A new category. MR. BOYLE: And then a possibility of their property being zoned under the new category, is that just about -- MR. BRODSKY: Yes, sir. It was suggested to us that it would be more appropriate because of the location of the property and the combination of both Rosewoods property and mine being a. critical mass of about 262 or 263 acres, that it would be appropriate that consideration of a different classification be given to that location because it. was proximate to the airport. As a matter of fact, the ordinance that we proposed was entitled AMU, which was Airport Mixed Use, to reflect a different character from a downtown character of the city itself. So, I might point out that we were rezoned in June, June 7th, and I submitted my modification, proposed modificatio less than thirty days after we were rezoned. Then, it took four months for Tony Wiles to come back with 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 12 his comments. So, during the time frame that we would have ordinarily come back with another alterna- tive, we were in discussions with the city to try to work out the differences, the bulk of that time being taken up by a review process of what we had in fact submitted, again, at the suggestion of the city. I might also ad,d, if I may, just for some background, that we have been working with the City of Grapevine for in excess of three years in order to accomplish something that is mutually beneficial and satisfactory, as far as my property is concerned. I have owned the property for one month less than five years. So, this is not something that is very new or that I am trying to accomplish in a very short period of time. We have been working with the city and have had meetings at all levels with the city for over a three Year period of time in order to get something that you are comfortable with and that we are too, and that. was just a continuation of this entire process. MR. HARDY: One point I want to bring out. To my knowledge, there was no city input, no city staff input, into your proposed zoning district, that I can recall. It was drafted by your staff. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 MR. BRODSKY: Not directly, that's right. The people who drafted that however, Tommy, were the HOK planning group, which in fact had done a sixteen month feasibility study for us on the property and during that study had certainly discussed at length with city staff a variety of alternatives as far as planning the property was concerned. You are right, there was no direct input into that, that was done, really, by my own people, but those people had been part of the planning process over a fifteen or sixteen month period of time, during which they had received the input of the city staff. But there was no direct input into the creation of that, other than the meeting where we had certain general guidelines laid out, that's right. MR.. WALDRIP: Mr. Brodsky, I think that you stated that in this meeting that you had with the city that the city was the one that suggested to you that you file for vested rights. I'm interested in knowing some background about why it was suggested and, you know, where did that basis come from? MR. BRODSKY: Perhaps Dr. Wilkerson might be able to answer that a little bit better than. I can, but I will do the best that I can. There is, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 certainly in the process that the City of Grapevine has gone through rezoning your entire community, a lot of different opinions, I would say, on the best way to proceed in different areas. We were having some very philosophical discus- sions in terms of the fact that there is no residential property around this property at all, the fact that the transportaion infrastructure is highly developed with the extension of 635 and of 114 and with the development of 121 and with some long range plans for Anderson -Gibson Road, or Thweatt Road, in addition. The idea was to create a viable commercial area which would be of benefit to the City of Grapevine from a tax base point of view which wouldn't interfere with the interests of the home owners associations and home owners groups. That triggered, to my understanding and background, a lot of the rezoning that actually took place, but these properties are located out near the airport. and away from any residential areas, totally. There are none within, I don't know what the distance would be, but certainly a good ways, and it is buffered by the flood plain, the country club and by 121 on the eastern boundary. So, we found our s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 is 17 18 19 20 21 22 23 24 25 15 in these discussions dealing with a variety of alternatives because the zoning ordinance is more specific now than it was under the old zoning ordinance where light industrial Il was really a broad based category that would enable me to do almost anything with very few restrictions on the property. We were having difficulty sorting through all of the varieties and all of the alternatives and possibilities. So, in order to solve two problems which are very much linked together, perhaps, but in my mind they very much were at the time, how do we help 2499 proceed, which I felt was in everybody's interest and in the area's interest also, and not have the details of a particular zoning request which had tremendous possibilities in terms of variety associated with it as a stumbling block. If memory serves me right, after going through a lot of these discussions with Tony Wiles, Jim Hancock, Maytor Tate, it was Mayor Tate at that time who suggested that a way around this, in order to consider it at a different level., would be through the vested rights process. I felt that that was a very positive move to get us off of talking about all of the many possibilities that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 16 existed with two different philosophical interpre- tations and get on with us going ahead and then presenting to the city aplan, which we would have to come in for in any case at the time that we actually wanted to go ahead and develop the property, get off the detail, if you will, of AMU versus HCO, and then allow the studies to proceed as far. as 2499. That's my recollection of how this all evolved during the course of this one particular meeting. Tommy, is that -- MR. HARDY: That is exactly how I remember it, but there is only one point. I don't recall a plan being required tinder Il Light Industrial requirement. MR. BRODSKY: Well, my recollection of part of our discussion was that we would in fact, you know, submit a master plan for the site because we were willing to put on certain restrictions as to the development of the site, again, that the city would be comfortable with. Again, my recollection is that we talked about a one-to-one coverage ratio in terms of the buildings themselves as being part and parcel of that. In other words, that 131 acres consists of about 5.1 million square feet and we wanted the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 right to build buildings, exclusive of parking, of just a one-to-one ratio and we would go ahead and present. that to the city for their approval. Anyway, that is my recollection of how the whole thing came about. MR. TROY: What was the date of this, approximate date of this, meeting? MR. BRODSKY: It would have probably been three weeks prior to the submission of that, because it took us about three weeks to develop the ordinance itself. So, I would assume the latter part of June, right after the actual zoning ordinance was passed. MR. TROY: No. Referring to the meeting where Mayor Tate suggested that you filed under the vested rights. MR. BRODSKY: Yes, sir., I think it would have been, again, the latter part of June. MR, HARDY: It would have been, I know, no more than three weeks prior, closer than. one or two weeks. He was back very quickly with the zoning case. MR. TISCHLER: They are talking about., probably' January. This is from the November meeting. MR. BRODSKY: Unless I`m getting confused, we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 submitted the AMU, or our proposed zoning ordinance, if I remember the date right, in July. So, it would have been about three weeks prior to that that this meeting took place at which time we talked about -- you're right., I am confused. It would have been about -- MR. HARDY: I can explain why such a long period of time elapsed from the time that he submitted his proposed zoning district until the time that Mr. Wiles came up with a recommendation. During that time we were going through a lot of massive changes, a lot of work as far as tying up loose ends on zoning cases and what have you, amend- ments to districts that we had. P&Z said at that time that it would be interested in looking at what Mr. Brodsky submitted but that they had other work that was going to take priority but it had to be done before they could get to that. They were satisfied with the HCO district but if he wanted to submit that they would look at it after they got through with everything else. It wasn't that it sat on a desk, they just had a lot to do at that time. MR. TROY: But shortly after someone suggested to you that you file under vested rights, you filed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 under vested rights? MR. BRODSKY: Yes, sir. It was rather prompt. MR. TROY: It was sometime in June? MR. BRODSKY: Yes. MR. TISCHLER: Prior to that time you were not aware of the six month requirement? MR. BRODSKY: No, sir, we were not. MR. TISCHLER: If I remember correctly, you stated that at the time that the ordinance was originally passed, which was July -- June 7th, you received a certified letter or were given a, copy of the new ordinance at that. time? MR. BRODSKY: I don't remember to be honest with you. I'm sure we did. MR. HARDY: I would be surprised if you did. MR. WALDRIP: But it was available for public review? MR. HARDY: Yes. We don't send out copies. MR. TISCHLER: I have the impression that it was sent out by a certified copy, or was sent. out to the people. So, at that time you would have not known. about vested rights, unless somebody notified you about that? MR. BRODSKY: That's right, and the first time that. I became aware of it was when it was suggested 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to me at the meeting, because I had no prior knowledge of it. So, I plead ignorance, actually. MR. WALDRIP: I would like to hear Mr.Boyle's comments, counsel comments, about what type of precedent could be set by amending this six month requirement. MR. LAMB: Or, are we waiving it in this case? MR. BOYLE: Yes. I will address that and respond to it. I would like to point out that the basic ordinance that you are dealing with was amended I believe, in April of '84, wasn't it, Tommy? MR. HARDY: Yes, sir, I believe it was. MR. BOYLE: Keep in mind that when that was amended that was when the HCO category was cretaed, April of '84, and Section 69 relative to the determination of vested rights was created within. the same ordinance. So, when the city went to rezone the properties including Mr. Brodsky's under the amended ordinance, when the notices went out., they went out to Mr. Brodsky and every other owner in the city, it stated what the category was, and in order to apprise yourself of what that contained within the category i was necessary for you to review the basic ordinance as amended that contained the HCO. That same 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 21 ordinance contained the requirements relative to vested rights. So, from the standpoint of not only just public, general public awareness, or being knowledge- able of something just as a matter of law because it was passed, when your property is zoned for a substantial period of time and is being rezoned to a particularized category, such as HCO, I would suggest that any previuos owner would review the ordinance for the opportunity to make any testimony or make any comments. Now, the ordinance itself, Section 69, one other point, it was mentioned concerning the specified plan, and Mr. Hardy is correct that the Ordinance Il does not require that. However, under Section 69 and the question on the substance of this matter that you will be required to address, reques- ted to address, is whether or not, one, is there a vestad right, and if you find a vested right you have the ability to authorize by an action of this Board the issuance of a building permit for a specific proposed development. That is out of Section 69. So, in order for you all to act under this, if you are going to grant posit,-;-ve relief, if you are going to so find, then it would be necessary 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 for you to make a motion for the issuance of a building permit for a specified and specific proposed development so that you would have that in front. of you. That is the essence of it. Now, if i� MR. WALDRIP: One other thing before you get. past that. Isn't there a specified time period that we can grant that, that building permit? MR. BOYLE: You would have the ability to place that into -- MR. WALDRIP: I was thinking that there was a time limit restriction under which that building per- mit would only be good for, a limited amount of time. MR. TISCHLER: That is not the problem tonight, though. MR. WALDRIP: I understand that. MR. BOYLE: I don't see that, I don't recall that in Section 69. Tommy, do you recall if there is any such provision? MR. HARDY: I think that there is in the Zoning Board of Adjustments if you look back into the jurisdiction. MR. BOYLE: That it would have to be exercised within? MR. HARDY: Yes, sir, yes, sir. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 MR. WALDRIP: Yes, sir. MR. TROY: Under Section K? MR. WALDRIP: That. was what I was referring to. MR. BOYLE: Thank you. That's right, it would be necessary to commence within the one year period. MR. TROY: But that's it. MR. BOYLE: What? MR. TROY: That's it, it's open-ended. All you have to do is start, just start. MR. BOYLE: According to this. I believe that within your authority in making a derision on this you would have the ability, when it talks about specific proposed development, to put reasonable parameters in there, in addition to that. Concerning the question before you, it is my judgment that L, and I have reviewed this with Marlon Smith, special zoning counsel, and Mr. Niles who has worked with the city on the whole rezoning process, that L essentially calls for you to make a decision based on the facts presented. If you make a decision that the applicant waived then this provision L would be applicable. Now, it is my judgment, and I would at least suggest that you have the ability to hear this, to hear all of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 24 evidence presented by the applicant and by the city staff and by any other interested party, and then withhold a final judgment. on that decision until you have heard the whole case. At such time as you have heard the whole case then you can make a final decision on L, that portion of it, was there a waiver. The question here is not ca.n you waive. I see nothing here, and I'm not prepared tonight to give you a legal opinion, but I cannot find anything in the ordinance that gives you any authority to waive, you the authority to waive the process, but you are sitting in a quasi judicial. position or capacity and you have the ability to make a decision on this just as you do on all of the balance of this information and all of the balance of these ,questions that are posed to you. It would be my suggestion and recommendation for you to consider, you wouldn't have to do it this way, but one way you could do it is and the way that I would recommend, and Mr. Smith agrees, that you do hear this out and you hear it in its entirety and then you reserve any findings or any final decision or opinion on this until you have heard the -- MR. LAMB: The facts of the case? MR. BOYLE: -- the facts of the case, and then 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 you essentially make one, as in a court of law, one judgment. In the one paragraph you address this question and in the other paragraph you find that there is or is not in your findings a vested right. Through this method, and assuming that for the sake of discussion, nothing more, not of a threaten- ing nature, assume that the party, the applicant, is dissatisfied with your decision, that goes directly into District Court and appeals all your decisions, which you all are aware of, goes directly into District Court. If it goes into District Court with a full development of all the facts you don't get it over there and then have them saying well, fine, but we disagree with your findings on L, or we find it invalid or unconstitutional and we remand it back to you to have a full hearinq. All you have done there, in my opinion, is incorporate a potential lengthy delay. If you heard both aspects of it and then that is appealed in court then the Court can look at it and agree with you on L, assumina for a moment that you concluded that the applicant waived. If they didn't or they found it illegal and you went on to say, you wouldn't be in court if the city found a vested right., but assuming that they found no vested rights, you could go through and say that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 we have heard the case on the merits and we have concluded that there are no vested rights. Then you have the whole case there and it can be heard at the same time. So, that would be my recommendation. That is not the only way you can do it, you. could do it the other way, just go forward and make a decision on this. I think that from a precedent standpoint, in response to your question, the Zoning Board of Adjustment case stands totally and completely on its own merits. Keep in mind that this is a method authorized under the law where a non elected, non legislative body makes decisions of essentially a nonlegislative character and this is why the authority is significant. The courts will look only and precisely at the facts before them. Whether you have made the right decision or the wrong decision on the last eight cases -- In other words, if you allowed him to go forward on this it is possible that if you allowed it to be heard and found no waiver this indicates that you waive but you found, for whatever reason, that. you exercised equitable powers like a court of law, but you found no waiver and even if the Court disagreed with you, for the next eight cases this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 27 would cause you no legal problems. You will get it heard, it will be reargued to you, I can assure you that, but it doesn't constitute any legal precedent that you would be bound on. MR. WALDRIP: That was my question. MR. LAMB: Marlon had talked to us about carrying this along with the case, and if I under- stand that is the same thing, in fact on Sections L and K and J of the ordinance, as we go through the case, not to make a determination tonight and leave out the rest of the fact circumstances. MR. BOYLE: That would be our recommendation, yes, sir. MR. ANDERSON: Chairman Lamb, could I follow up on what Mr. Boyle said? MR. LAMB: Surely. MR. ANDERSON: I agree with part of what he said and disagree with part of what he said, and I agree with John on the precedential value. I would also like to point out that that from my understanding the entire city was rezoned in June and there haven't been any rezonings by the city on property since that time. There is one tract, Tommy, correct me if I am wrong, but there is still one tract to be rezoned by the city, and this is the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 only vested rights application submitted to date. So, if any in the future come in I think it is going to be that much more difficult under the equity theory that many more months after the deadline to go ahead and refile. I disagree, we went through an extensive discussion at the public hearing in April regarding the putting of the horse before the cart. In other words, it seems kind of, not ludicrous, but it seems that a lot of legal fees and. time have been spent by my clients, if you all agree with me, you know, a good faith investment backed expectation that you would be able to develop under your zoning, but. however, irregardl.ess of that, no matter how good your facts are if it is decided at this point, even though we have already had two public hearings, that the six month time period should not be waived therefore we are not going to allow you to have the type of projects that you are anticipating. I think that in terms of what has gone on beforehand, and we did address this before, Mr. Boyle has not contacted us about this particular line of reasoning at this point, but. we would really respectfully request that, you all make a decision today, just for our own peace of mind, so we don't 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 have to keep worrying for another month. MR. LAMB: Mr. Boyle, any comment? MR. BOYLE: Well, in the capacity of City Attorney, that is our advice to you, that in your quasi judicial capacity that this is your proper procedure. He is not saying that it is not a proper legal procedure. He is just saying that they had their druthers they would druther it be the other way. This was our recommendation to you and you do have those other alternatives. MR. WALDRTP: I think that another fact that needs to be brought out along those lines is that in our last public hearing, you were here, Mr. Anderson, and I believe we asked a lot of questions about the background of this that you were not familiar with. MR. ANDERSON: Yes, sir, that's correct. MR. WALDRIP: And, that was one of the reasons that we put it off until tonight so Mr. Brodsky could be here to provide us with that information. MR. ANDERSON: That's correct. MR. LAMB: Any further questions or discussion? MR. TISCHLER: Am I correct in saying that you are asking right now not. for a determination on the six month filing period but a decision on the entire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 case? MR. ANDERSON: No, sir, we haven't even started into that question yet. I didn't want to give that impression. No, sir, we would just like a decision on the six month period so we can know whether to proceed with our regular case according to the guidelines set forth in the ordinance. MR. BRODSKY: We are certainly willing and really looking forward to appearing on the 28th to make our case as to why we think we are vested because of everything that has gone on over a period of time. Obviously, because of the judicial nature of that hearing, it's a new process for everyone that is going to be an expensive presentation. I'm not sure that fairness enters into this because it is judicial in nature, but to get to the end of that and then have the Board to say, well, we agree that you have done sufficient work, Mr. Brodsky, and you have worked in good faith to develop this project and you have spent a considerable amount of money to date, but we find, you know, you waived your six months. It was my understanding the last time that we agreed that we would address this point first, and then you would judge us on our merits, which I am more than happy to proceed with 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 because I think we have proceeded over a substan- tial period of time with the same project and invested a lot of money and time to get something that is very substantial to this point. MR. LAMB: I will entertain a motion at this time . MR. TISCHLER: I make the motion that we do grant the waiver of the time for filing of this vested rights case. MR. LAMB: I have a motion. Do I have a second? If I can get a second we will have further discussion before the motion is voted on. MR. WALDRIP: I`ll second. MR. LAMB: Apparently you have some reservations-, MR. TROY: This will enable us to hear the entire case for information and more insight into the situation as follows the city's suggestion. After we hear the entire case we can decide on the whole thing based on the facts. MR. LAMB: Do you not feel that there was enough information presented tonight to make a decision as to whether or not. within a. reasonable period of time Mr. Brodsky submitted his application or that he was basically not aware of the ordinance? MR. TROY: I think there was information 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 submitted and we know a lot more now than we did four weeks ago, but. I still see merit in waiting to hear the entire case. MR. LAMB: Did you feel that there was sufficient evidence, or information, in this -- MR. WALDRIP: I think there was sufficient information, but I still think there is a major problem in going back to the intent of what the vested rights ordinance was. The six month period was put in there for a very specific reason, and that was that if someone was involved in a specific planned development that the six months would be an abundant amount of time for them to file an application stating that they had vested rights. I think it was limited to six months intentionally. The fact that it was, you know, that it was even after the six month period, apparently very close to the end of it, when it was even suggested that this ordinance may apply and they -- I can't see that the intent was there that they had the vested rights all along. MR. TROY: Sorry, I couldn't hear you. MR. WALDRIP: I can'tsee that the intent that they felt like that the vested rights situation was applicable. I think the situation was that. if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 33 it was applicable it would have been caught early in the rezoning process and I don't think that the six months process would have expired. MR. BRODSKY: Mr. Chairman, if I may? MR. LAMB: Sure. MR. BRODSKY: When we asked for copies of the zoning ordinance, Tommy, that ordinance was not all bound in a nice neat folder. It was still in. the process of being put together at that time. When we asked for the ordinance as it applied to us we only got a copy, and that's my mistake, and that is why I am here asking for an exception. We only got a copy of the actual HCO ordinance itself and not a total ordinance of everything that went along with it. Had I received that it would have been a different story, but I just didn't.. We got a copy only of the pages that applied particularly to the BCO ordinance. Had we known about it, and being a prudent businessman, and Mr. Boyle is absolutely correct., I would have taken as a precaution protective measures during these discussions to protect my vested. rights interest from a timing point of view. You know, we're talking about a project. that has been going on a long period of time. Obviously 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 if I had been aware of it, that's what I would have done, as a prudent businessman. In that sense, I agree with Mr. Boyle, but the copies that were given to us of the ordinance as it applied to my particular piece of property, we only received the HCO section itself. The timing was such that, I understand the requirement for the six months itself, but again I would just like to highlight that. most of the bulk of that. six month period of time while this was going on, we were sort of in limbo, but on a continuing dialogue basis with the city in an attempt to resolve our situation. If I may ask Dr. Wilkerson who was a party to a lot of the discussions to comment, he may be able to provide you with some additional information that could help in your deliberations. MR. TISCHLER: I have felt since we have started this thing, I don't think there has been enough communication between the city staff and Mr. Brodsky, because there is some stuff that I didn't get until the last meeting, especially the one item which was the date that he purchased the property. That should have been submitted with the application originally. When I asked Tommy about it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 I received it. So, it appears to me that there is a. communication problem between the city and Mr. Brod- sky, and to me it is a very important case. I do not want this thing to die right here. I would like to see the whole thing. MR. LAMB: I would like to make a comment since I haven't really and I intended to. In a sense of fairness, something you may not be aware of, Mr. Brodsky, but I will explain it to you. There are only four of us here this evening and. that constitutes a quorum. All four of us either have to vote for something or it doesn't fly. Three to one will not make it. I believe that is one of our circumstances. MR. HARDY: I think that is only on variances, is it not? MR. BOYLE: No, on anything. MR. LAMB: Anything before this Board, okay, it takes all four of us. There are two members that are absent. In a sense of fairness we would have a real problem in making a decision that is adverse to the property owner when we don't have what. I feel constitutes a full membership circumstance. Point two, if I were standing in your shoes, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 and that is where I am trying to put myself at this point, approaching these circumstances as a reason- able and prudent businessman I would have done something like filing the vested rights first and then proceeded to amend the ordinance and the like. That is, as a businessman with an interest in doing whatever I have to do to make my business work. In that regard I understand that with a lack of communications it would be very easy, with all the things that are going on involved with a zoning circumstance to have this circumstance overlooked. I was most interested in the fact that you just mentioned that you only received the HCO versus a copy of the entire ordinance. Now, that doesn't remove the circumstance from when the fact that the ordinance was passed and made a part of public record. MR. BRODSKY: Accept that, yes, I accept that.. MR. LAMB: You know, it's there and ignorance is no defense in this circumstance. MR. BRODSKY: Sure. MR. LAMB: My own feeling is and I share the feelings here that I would like to see us proceed with the case. I would like to see us be able to set this aside at this point and say, let's get 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 on with it, and let's make a determination on the basis of fact on the situation involving the property itself. Now we are dealing with a piece of paper that was or was not filed within that time limit. I would like to get into the case. We have heard little bits and pieces of how we might adjudicate that circumstance from Mr. Boyle who has given us some rather valuable insight, and we have had that insight over the past two or three months. My personal feeling is that I would like to see this thing given a chance to be heard. I recognize that it is going to take time and cost. money, but I think it will be in most instances time and money well spent from both sides of the fence, both from the city's standpoint, as well as from the developer's, and my recommendation is at this point, for you guys information, is to allow to waive the situation to allow them to proceed with the case. MR. ANDERSON: Mr. Chairman, if I may add just one quick point? MR. LAMB: Yes. MR. ANDERSON: One thing that is really important, I think, is that this ordinance is new. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 I mean, our firm does a lot of zoning all over the state, and I have never seen this type of ordinance. Mr. Brodsky does development around the metroplex in different areas and in terms of something to be kind of looking out for in something that should, you know, catch your eye, it's the first time I've ever seen this sort of thing done. Marlon Smith has even made representations that he has never seen it done in Texas, that it is an Illinois concept. So, in terms of, you know, unless you have heard through the grapevine or it was pointed out in a hearing or something like that, in that sense, it. is something that is new and very unique. I can understand, putting myself in Mr. Brodsky's shoes until he had actually heard of it from a city official that the ordinance existed or even that there was a six month time period. MR. TROY: Mr. Brodsky, I believe that your attorney mentioned last time that you had changed attorneys. MR. ANDERSON: We were just not involved. We have only been retained relatively recently. MR. BRODSKY: Until this became a judicial. process -- I don't usually use attorneys for zoning. I appear myself, and as a matter of fact, I did that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 39 through this whole process with the City of Grape- vine in this particular case. When the vested rights thing became a very formal judicial process was the time that I retained the law firm to help me with it because I'm not an attorney, but normally I don't use attorneys for zoning cases, because I feel like I can make my case myself as I am the guy really doing the use of the property for a particular purpose. Mr. Chairman, would you be kind enough to let Dr. Wilkerson come forward? He had expressed an interest in doing that, and it may help with your understanding. MR. LAMB: One moment. Would you like to hear the testimony? MR. WALDRIP: Yes, I think that would be fine. MR. LAMB: Dr. Wilkerson, if you would stand I will swear you in. (Witness sworn.) DR. WILKERSON: If I may, let. me give a little background on myself. I don't know many of you fellows, although I have lived here forty years. I came here in the latter part of 1946 and practiced here until 1971. This is not a recorder. This is a cardiac monitor. When I was your age, I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 didn't think I had a heart. The information I'm going to give you is a little different.. I'm not going to be dealing in dates and so forth. I'm just going to give you some background. I have attended most of the meet- ings Mr. Brodsky has had with the city, not in his interest, but in the interest of the same people you represent, the citizens here in town. In 1952, or shortly before then, the Corps of Engineers destroyed all of our roads north and south and replaced it with one over the dam which they would capriciously close to find out how mean we were, whether we were going to make them open it again. The city saw fit to repeatedly make them open it back up. The merchants over here would suffer as a result of it, a great many other things would suffer, the kids going to school in North Texas, so forth and so on. So, my connection with the case started in about 1950 trying to see to it that other govern- mental agencies didn't destroy our rights here as Grapevine citizens. Then, the connection with Mr. Brodsky and the reason that he was advised to file the vested rights request was because we were at an impasse with him. We started out., the City of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is is 17 18 19 20 21 22 23 24 25 41 Grapevine applied for the road below Grapevine dam in November, probably of '82, and we were granted a five lane facility north and south. But, there was a catch to it, we had to provide the right-of-way Well, we had provided it over in Denton County and we had provided it over in Tarrant County and Tarrant County was to come up with the funds in case we got on high center and we discovered, the new commissioner discovered, that they had emptied the right-of-way fund and put it in the general fund and spent. it. Although we have letters saying that they would take care of it, there is not any money. So, we had then to turn to the property owner and say, your agreement to furnish the two hundred feet. across your property and the connection to the highway, we're going to have to ask you to give it all., and so, he said, fine. Then, we proceeded along for months and months planning, and I might add, I can bring you a stack of engineering drawings and so forth about. three foot thick that the city did not pay for. I did. You may wonder what I'm doing. Well, it's been a hobby of mine. I was permitted to survive this long and I can't take it with me. I'm going to try. I'm doing some of these things for my own benefit, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 but also for my friends and thousands of ex -patients and so forth. Okay, we then got a tremendous kick in the head when the highway department decided that the interchange, they were going to pay for three sides of it, but the side that Grapevine was involved in in taking a north -south road off of there was not going to be funded through the normal highway fund. I don't know if you all are familiar, but Farm to Market Roads, you have to supply all of the right-of- way to the highway department.. You are not permitted to get any federal matching funds and you are not permitted to have any state matching funds, they will only pour the concrete. So, we said, okay, fine, and we went to Mr. Brodsky again and said, Fred, we need sixteen or seventeen more acres, I have forgotten the exact number, and he jumped up and down and did fourteen handsprings and finally said, all right, all right, let's get on with it. Then, we had the hearing out here. Some of you ma.y have attended, the highway department at the concourse and several of us again did, or paid, for the engineering to have that done and they, as a matter of fact, used our maps, the highway department did. This facilitates and speeds it up. If you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 don't it goes on endlessly. Okay, the next thing that occurred, the highway department figured out. that they really hadn't gotten enough land. Now, Fred was being asked to give out of a total of -- MR. BRODSKY: One hundred thirty acres. DR. WILKERSON: Out of one hundred thirty acres he was being asked to give about thirty-six of it.. He has got frontage out there on 121 and he doesn't really, I keep telling him that he needs it and it should be done, but engineering -wise he has a state highway so he really doesn't abso- lutely need this road. Now, Grapevine and the two adjacent counties here need that road. We need it. far more than he does. He has been very cooperative, and when they came back for that last bite, I would say January or February, three or four months ago, then we were making a proposition to a man for some more, we needed more, and yet we had taken or changed, not taken, we had changed his zoning up so that his original engineering designs and everything were no longer valid and his entire project was going to have to be shuffled. and shifted to fit on the land. The citizens of Grapevine here need a road that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 cannot be produced unless we can persuade Fred to walk a few extra miles that he normally had not. walked. He met, you know there is another room at the end of that door there, and I don't know how many times we were in there trying to work out and try to get some additional land from him, not only him but from various others that owned property down there. They would not accept any alignment except. through Fred's property. I tried to shuffle it. We stood on our hands and jumped up and down and so forth trying to work out some other way to position that road to go across the thing north. Now, I don't want to keep you all here all night, but starting in the morning and until when- ever I will start bringing you stacks of maps and drawings and aerial photos showing that indeed we tried to put it some other place besides across him. It wasn't possible unless we wanted to dig up millions of dollars to compensate the people on beyond Fred who had agreed to this alignment. So, I .realize that this is a tangent from your discussion here, but a lot of times I have served on the other side of the bench and a lot of times we hear a bunch of cold facts and numbers and we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4.5 forget that what we are really sitting up there for is to try, as best we can, to serve the interests of the residents of the town in which we live. If you will give me a sufficient amount of time I don't think there is any question that I can convince you that we are fortunate to have somebody that would keep yielding, because I have worked on roads out of Grapevine all my life and it is sometimes an extremely difficult position because some people won't give you the time to die, and they won't give you land at all. And he has, you know, given and given. I think that he has demonstrated that he has the best interest of this community in mind. You go down to Safeway after we are through and get ahold of the manager and ask him what it cost him this last time that the dam was closed, and in turn it costs the community in sales taxes and so forth. We simply cannot. -- the traffic is getting greater and greater and greater around here on every opportunity we have to deal with the highway depart- ment. The city gave the highway department their guarantee that they were going to do this. We based that guarantee on the county's guarantee that. they were going to pay for it, and we have the letter in the file, but, you know, we are now at a deadend. If 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 46 anybody can show me how to solve the road problem I'll shake hands with Mr. Brodsky. I don't need him any more. But, we have diligently, night after night and spending hundreds of our own dollars, our own money, people that you never see up here, we get together and back some of these things. None of us have any property along the route, but we earnestly hope that you can figure out a way to satisfy Brodsky so that he will then satisfy the requirements of the town. Thank you, sir. MR. LAMB: Thank you, Doctor. MR. BRODSKY: Mr. Chairman, in summary, from my point of view, if I might, had I filed my vested rights application on a timely basis during the six month period then we would be where I am suggesting that we really should be and that is to hear the case on the merits. All I'm asking for, respectfully, this evening is the right to go into that hearing which is being done under the auspices of the rules and regulations prepared by the Council for the City of Grapevine without an additional point hanging over our heads as to whether in fact I have or have not waived my rights under the six months or not. I think that I have shown by the testimony and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 by the facts that during that six month period of time that there were other things going on and we were trying to accomplish somewhat the same thing. I didn't follow the rules and I didn't follow the procedure, I didn't file within the six months, I didn't know about it. I don't have an excuse, but I wasn't aware of it and otherwise I would have done it. I'm asking for your approval to have me go into that hearing on the 28th with a non -waiver of my six months liability so that we can go ahead and hear the merits of the case as to whether I am vested or not in my project. MR. LAMB: We have a motion on the floor to allow the case to proceed. Is there any .further discussion? To make sure we understand what we are doing, Mr. Brodsky is asking under Section L, where it is determined because of a late filing that he is deemed to have waived his rights to seek a determination, that we waive that section in this case and in this case only. MR. TROY: Can we make that decision? MR. LAMB: That is correct. I will call for a vote at this time in that there appears there is no further discussion. All in favor of this motion raise your right hand. Opposed. The motion carries. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 48 We'll see you on the 28th. MR. BRODSKY: Thank you, very much, gentlemen. MR. HARDY: I want a clarification of the motion. The motion is to waive that section? MR. LAMB: In this case to allow him to make a presentation. Is there a problem? MR. HARDY: I just want to make it clear that you have not done as recommended by the attorney. MR. LAMB: That is correct. MR. HARDY: You have waived the section entirely, was that your motion? MR. TISCHLER: That's right. What the attorney mentioned to us at the last meeting was that we have to waive the six months filing requirement and then we could hear the case. We could not hear the case unless we waived the six month requirement. period. MR. HARDY: No, that's not what -- MR. LAMB: Then, tonight John said we could carry it with the case. MS. LEONARD: That's what Marlon Smith said last time also, that you could carry it with the case. MR. LAMB: It was my understanding that we could carry it with it., if we so desired. MS. LEONARD: Right. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is is 17 18 19 20 21 22 23 24 25 49 MR. HARDY: Is that the way the motion was? MR. TISCHLER: That's what I meant to say. MR. LAMB: Whoa. MR. TISCHLER: My understanding of what Marlon Smith said was that we couldn't do anything unless we waived the six month requirement, and then he said, if I remember correctly, that once we waived the six month filing requirement, then we could hear the case in its entirety and make the determination as to whether or not he had. the vested rights. Am I correct in this? MS. LEONARD: We would have to go back and look and see what he said, but my recollection is that he said we could carry this decision on the waiver with the case, meaning that you could carry the waiver issue and not make a decision on it, but go forward and hear the case, the merits of the case, and then make a decision on the entire matter. If you decide that they had waived then you would not need to go forward and make a decision on the vested rights because they wouldn't have a right to have that determination made. MR. TISCHLER: Boy, am I confused now. MR. HARDY: That is exactly as I recall what Mr. Boyle was recommending. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TROY: He was recommending tabling -- MR. LAMB: He recommended carrying it with the case. MR. HARDY: Right, and that is not what I was hearing with the motion. MR. TISCHLER: I am really confused. As I understood, we couldn't even hear the case unless the six month filing requirement was waived. MR. HARDY: No, I don't recall that. Mr. Smith, as Adrienne said, he said it was to the advantage of the city to carry that section and make the final. determination after you had heard all the testimony as far as the facts. MS. LEONARD: I think that what he said was that you couldn't make a decision on the vested rights unless you made the determination he had not waived his rights. MR. LAMB: What we were doing tonight was making a determination that. he had not waived his rights. That was the whole purpose to this situation tonight. MR. TISCHLER: If he has not waived his rights then -- MR. LAMB: We go ahead. MR. TISCHLER: Then we go ahead. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 Sl MR. LAMB: Fie has not waived his rights, that's what we just decided. We now ao ahead with the case. MR. TROY: Is that clear? MR. HARDY: Then -- MR. LAMB: Then we proceed with the case. MR. HARDY: What you're doing is you are setting it aside. MR. LAMB: For this case. That's why Bill asked for the precedent side of this case, is there a precedent being set if we do this now, if we have other cases and everybody says, well, wait a minute now, you did this for them. That's why he asked that question.. MR. HARDY: Okay, I think that. Adrienne needs to clarify this, I want you to be aware that you are going against the recommendation of the City Attorney. MR. LAMB: We understand that. I don't think there's any question. We discussed it. In that. case, I believe we are finished with that particular business. We can have discussion after the meeting if there is anything else. MS. LEONARD: I will clarify that our recommen-- ation is that you just carry this decision forward. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 We were not making a recommendation as to how you should decide. MR. LAMB: I think that we all understand that. On the 28th here, the hearing is set here for the 28th of this month at 7:00 o'clock. MS. CARROLL: 7:30, I believe. MR. LAMB: 7:30? Let's make sure we have the right time. MR. TISCHLER: 7:30. MS. CARROLL::30. MR. LAMB: 7:30. Thank you, Mr. Brodsky. MR. BRODSKY: Thank you. (Proceedings ended.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 STATE OF TEXAS X X COUNTY OF TARRANT X This is to certify that I, David Chance, reported in shorthand the proceedings had at the time and place set forth in the caption hereof, and that the above and foregoing 52 pages contain a full, true and correct transcript of said proceedings. Given under my hand and seal of office on this the day of A.D., 1985. -r David Chance, Certified Shorthand Reporter in and for the State of Texas, #1006.