HomeMy WebLinkAboutCC 1981-11-09 Agendas
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NOVEMBER 9, 1981
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DATE: Novemb'er 19~ 1981
SUBJECT:
.City JudQe
DEPARTMENT: Administration
BACKGROUND: Mr~ CaseY'?--ª.QDointlJ1ent as City ~udge ry.eeds to be ratified
bvthe Council.
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CITY COUNCIL ~CTION lŒQUIRED:
Apprnv~/ni~apprnvp
BUDGETED ITEM:
ACCOUNT-NUMBER:
NO
YES
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DATE:
November 19~ 1981
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SUBJECT:
Appointment to Civil Service
DEPARTMENT:
Administration
BACKGROUND: Mr. Peterson will replace Mr. David Case~ who resiqned to
become City Judge. Mr. Peterson's name was submitted by Councilman Freeman.
Councilwom~n Groves and Councilman Freeman _~ill~cuss this item in Pre Council.
CITY COUNCIL A.CTION IŒQITlRED:
Apprrive/Disapprove
BUDGETED ITEM:
ACCOUNT NUMBER:
YES
NO
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City of J(ðrth Richland Hills, Texas
TO:
FROM:
SUBJECT:
DATE:'· Nov. 18, 1981
Chuck ~li 11 iams
Ci ty ~1anager
Wanda Calvert
Planning & Zoning Coordinator
P & Z Cases to be heard by City Council November 23, 1981
PZ 81-33
APPROVED
(19 were·contacted)
PZ 81-35
APPROV ED
(22 were 'contacte
PZ 81-36
APPROVED
(0 were contacted-
same person owns all
.property within 200 ft.)
Request of John Barfield to rezone a portion
of Tract 2, Abstract 1150, David Moses
Survey, from its present classification of
Agriculture to a proposed classification of
1F-8-1400.
This property is located south of the St.
Louis & Southwestern Railroad, bounded on
the east by Precinct Line Road and on the
south by Amundson Drive.
Request of Aubrey Brothers to rezone Tract 3A,
Abstract 1150, David Mo~es Survey, from its
present classi'fication of Agriculture to
proposed classific~tions of 1F-12-1800, IF-9-
1700, and 1F-9-1500.
This property is located east of Eden Road,
approximately 1900 feet north of Amundson Road
with portions fronting on Eden Road.
Request of National Advertising Company to
rezone a portion of Block 3, Snow Heights
North Addition, from its present classification
of Local Retail to a proposed classification of
Local Retail-Specific Use-Billboard.
This property is located on the north sid~ of
N. E. Loop 820 and approximately 650 feet east
of Rufe Snow Drive.
(817) 281-0041 / 7301 N.E. LOOP 820 / P. O. BOX 13305 / NORTH RICHLAND HILLS, TEXAS 76118
DATE: Nav. 18, 1871,
SUBJECT: PZ 81-33' Zoning Request for a portion of Tract 2, Abstract 1150,
4IÞ from Agriculture to IF-B.
DEPARTMENT: Planning and Zoning
BACKGROUND: This property is locat~~þ-soúth of the St. Louis & Southwestern Railroad~
bounde,d on the east by preGinct Line Road ånd on the south by Amundson Drive.
Mr. Barfield requested this same zoning about a year ago" which was denied by the P & Z
'and postponed by the Council. The reason the p.& Z"denied it was they felt the Council
wanted all land next to the railroad to be Industrial ~.,
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The Planning and Zoning Commission recommended approval of this zoning request.
CITY COUNCIL ~CTION ItEQUlRED:
Approval or denial of zoninq reQuest.
BUDGETED ITEM:
YES
NO X
ACCOUNT NUMBER:
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N/,A
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Page 8
p & Z Minutes
October 22, 1981
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PZ 81-32
DENIED
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. PZ 81-33
11.
PZ 81-34
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There being no one, the Chairman closed
Public Hearing.
PZ 81-32.
This motion was seconded by Mr. Tucker and
the)motion to deny carried 4-1 with Mr.
Greenfield voting~against denial. .
Request of John. Barfield to rezone a portion
of Tract 2, Abstract 1150, David Moses
Survey, from its present classification of
Agriculture to 'a proposed ,classification of
IF-B-1400. .
This property is located south of the St.
Lou; s & Southweste.rn Rai 1 road, bounded on
the east by Precinct Line Road arid" on the
south by Amundson Drive. .
Request of John' Barfield to rezone'a portion
of Tract 2, Abstract 1150, David Moses
Survey, from its present classification of
Agriculture to a proposed classification of
Local Retai'l.
This is three (3)' small tracts located:
I-at the southwest corner of the St. Louis &
Sþuthwestern ,RR & Precinct Line, ROàd; 2-at the
intersection 'of Amundson Dr;'ve and the railroad;
and 3-at the northwest corner of Amundson Drive
and Prectnct Line Road.
Mr. Barfield came forward to represent the
owners of thts property. He s-ai"d they were
here about a year ago with this same request.
He. sai,d si'nce then' they had worked out several
problems. Mr.. Barfield said t~at previously
they had asked for IF-8-1400, but the ,Commission
felt all property next to the railroad should
be industrial. He said there was no opposition
from the citizens at that ti"me. He said they
would rather have homes as' 'to have warehouses, .
etc.
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Mr. Barfield said he has 20 acres which lie~
north of the railroad tract, but he is not
comi.ng in for it 'at th;-s time. He said he is
req~esting Local Retai'l for three, small tracts.
Mr. Barfield s'ai"d the lots have a minimum of
9,000 sq. feet with a'·range of 1400 to 1500
sq. ft hom·es that would range in price from
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Page 9
p & Z Mlnutes.
October 22, 1981
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$75,000 and up. He said it would take 3
to 4 years to develop and by then they
would probably range from $85,000 to $90,000. ...
Mr. Barfield said he felt those who can ~
afford this price rang would be good home-
owners because they would have to make $50,000
a y~ar to qualify. He said if the interest
would come down tø 13% he could sell lots of
houses.
Mr. Bowen asked what the mixture of houses
would be.
Mr. Barfield said 1400 to 1600.'
The Chairman opened the Public Hearing and
called for those ~ishing to speak in favor
of these requests to please come forward. .
w. N. Ratcliff, 9224 Amundson Drive', said
100% of the property owners are in favor of
this request. He said that in the early 70's
. they drUled a well to be able to obtain water
and fire'service. Mr. Ratcliff said he felt
this would improve their property and request
the Commission approve these requests.
l;he Chairman called for those wishing to speala.
in opposi'tion to please come forwareJ. ..
Glenn Eckerman, 7005 Eden Road, said he was
located at the wes·t end of the property. He
sàid he bought out there to get away from town.
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Mr. Eckerman said the intersection is bad with
the railroad and two small streets that are not
cared for. He said the houses· around -here run
from 1700 sq. ft. to 4000 sq. ft. He said his
was 3400 sq. ft. .
. Mr. Eckerman said he would like for the
Commi"ssi'on to deny these reques·ts, especi ally
the Local Retatl .
Mr. ,M. H. Roberson, 7008 Eden Road, came
forward. He sai.d he ., ives directly across
from thi.s property. Hesai.d the houses
around ,are ,larger. Mr. Roberson said Mr.
Barfield should make the mini'mum 1700 sq. ft.
and go from there. .
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Page 10
P & Z Minutes
October 22, 1981
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Mr. Roberson said he moved out there for
the country atmosphere.
The Chairman called for anyone else who
wished to speak to please come forward.
Thete being no one, the Chairm'an closed
the Public He~ring.
Mr. Tucker said in regard to ·PZ 81-33, they
should take into consideration the economy,
and he didn't have any problems with the
size· of the houses.
Mr. Hannon said the day of the large house
and large lot are over and you must also
, consider they might have problems selling
homes next to a railroad. '
PZ 81-33
APPROVED
Mrs. Nash' said she agree,d wi'th Mr. 'Tucker.
Mr. Bowen said he had no, probleQ1 ,..Ii·th it.
Mr. Tucker moved, seconded by Mrs. Nash, to
approve PZ 81-33 as requested.
The motion carried 5-0.
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Mr. Tucker said in regard to PZ 81-34, he
has problems with this. He said you e
3 corners whtch would cause co 10n.
e tract at the south-
ea~t corner, t auld be a sharp curve and
if you ha urb cut there, it would be
haza . Mr. Hannon said the other two
er~ are ,not suitable for anything 'more.
Mrs. Nash sai'd she agreed about the blind,
corner.
Mr. Tuck,er moveÞd" seconded by Mr. Hannon, to
denyPZ 81-34.
12.
PS 81-55
The motion to deny carried 5-0.
Request of John Barfield for r
of Oak Hills Addit·
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. D. Long came forward to represent Mr.
Barfi'eld. He said he had set back for future
widening of Precinct Line and Amundson Drive.
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KNOWL TON-ENGLISH-FLOWERS, INC.
CONSULTING ENGINEERS / Fort Worth-DaUas
ír
October 9, 1981
Planning & Zoning Commission
City of North Richland Hills
7301 N.E. Loop 820
North Richland Hills, Texas 76118
Subject: 3-002, CITY OF , NORTH RICHLAND HILLS,
ZONING PLAT REVIEW, PZ 81-33,
AG TO IF-a, (GRID) 62, 63, 71, 72)
We have received the subject zoning case for our review and find that
we could adequately locate this property on the zoning map should it
be passed by both the Planning & ?oning Commission and the City Council.
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RICHARD W. ALBIN, ,P.E.
RWA/ljc
cc: t4r. Cecil Forester, Director of Public Works
550 FIRST STATE BANK BLDG.· BEDFORD, TEXAS 76021. 817/283-6211. METRO/267-3367
·
ORDINANCE NO.
AN ORDINANCE REZONING PROPERTY IN.ACCORDANCE
WITH ARTICLE XXIX CHANGES AND AMENDMENTS~.
SECTION 1 OF ORDINANCE #179, ZONING ORDINANCE
OF THE CITY OF NORTH RICHLAND HIllS, TEXAS,
PASSED, APPROVEDt AND ADOPTED BY THE PLANNING
AND ZONING COMMISSION· AND THE CITY COUNCIL OF
THE CITY OF NORTH RICHLAND HILLS, NOVEMBER 13.
1967, AS· AMENDED JANUARY 274 1975
AFTER APPROPRIATE ~NOTICE AND PUBLIC HEARING THE FOllOWING RECOMMENDATION IS
SUBMITTED TO THE CITY COUNCIL OF THE CITY· OF NORTH RICHLAND HILLS BY THE
PLANNING AND ZONING COMMISSION: .
RESOLVED that On Case No. PZ 81-33 the followi~n9 descrtbed property shall
be rezoned from Agriculture" '. ..........~.... ......... ·to
IF-8-1400~OneFamily Dwellin~s. ..."...".
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ALL that ce~tain tract or parcel 'of land lying and being situated in the
David Moses Survey, Abstract 1150, Tarrant County, Texas, and being f~rther
described as follows:
BEGINNING 547.04 feet North 0 degrees 14 minu~es 19 seconds East and 25~O ..
feet West of the Southeast corner of satd Moses Survey; said Southeast corner
also being the Southeas·t corner of 1t2nd Tract" conveyed to Archie N. Gee et ux,
Minnie Lee Gee, as recorded tn Volume 1120, Page 273, Deed Records, Tarrant
County, Texas; said point also being in' the West R.O.\~. line of .Precinct Line
Road;
THENCE South 89 ~egrees 59 mi'nutes 45 seconds West~ 455.00 feet to a point;
THENCE South 0 degrees 14 minutes 19 seconds West, 522.00 feet to a point in
the North R.O.W'."·l toe of Amundson Drive;
THENCE South 89 degrees 59 minutes 45 seconds West, 1744.53 feet along said
North-·R.O.W. li'ne to a point; .
THENCE North 0 degrees 14 mtnutes 19 seconds East, 187.56' feet to a point in
the South.ea·sterly R.O.W·. 1 ine of the St'. Louts and Southwestern Railroad;
THENCE North 55 degrees 28 minutes 00 seconds East, 2491.78 feet along said
Southeas'terly' R.O.W.· line to a potnt in the Northeasterly line of a 100 foot
wi"de easement to··.Texas Power and Light Company, recorded in Volume 2871, Page'
15~ Deed Records', Tarrant County, Texas;
THENtE South 30 degree~ 42 minutes 03 seconds East, 296.99 feet along said
Northeasterly easement line· to a point in the West R.O.W. line of Precinct
Line Road;
THENCE South 0 degrees 14 minutes 19 seconds West, 822~59. feet along said
West R.O.W. line to the place of beginning and containing 41.705 acres of land.
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This prÓperty is located .south of the St. Louis and Southwestern RailroadL
bounded on the East b Precinct Line Road, and on the South b Amundson Drive.
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'Af>PROVED ByrnE PLANNING AND ZONING COMMISSION THIS 22nd.
OctOBER, 1981 .
DAY OF
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~~~~ Gf! L;?¡~:
SECRETARY· .. NtUNG AND ZONING COMMISSION
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. BE ITORDAINEO'BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAHD HILLS ACTING
IN REGULAR SESSION THAT THE ABOVE DESCRIBED PROPERTY IN CASE NO. PZ . IS
HEREBY· REZONED· ~ . .'
THlS . . DAy ,OF
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MAYOR DICK FARAM '
CITY OF NORTH RICHlANO'HIl~'
ATTEST:
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CITY SECRETARY JEANETTE MOORE
. . . CITY OF NORTH RICHLAND HILLS .
. APPROVED AS TO FORM AND LEGAlITY
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CITY ATTORNEY .
CITY OF NORTH RICHLAND HILLS
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DATB: Nov. 18~ 1981
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SUBJECT:
PI 81~35 ,Zoning request fo.r Tract 3A~ Abstrav,t 1150 ~ fr~m ,A.gricul ture
to the following: IF-12-1800, IF-9-1700·, and IF-9-1500.
DEPARTMENT: t.- Planninq and Zoning
BACKGROUND: Aubrey Brothers came in previous' y for IF.-9-1500 zon; nq on th; s
proDertv. He now feels -this IF-12-1800~ IF-9-1700. & IF~9~1500 zoninQ is a qood
compromise. Attached is a letter reqardinq an al~ernative for the street.
This property is located east of 'Eden Roadt 'approximately 1900 feet north of Amundson
Drive with portions fronting on Eden Road.
'The Planning and Zoning Commission recommended approval of this zoning request with
a 3-2 vote with Mr~. Nash and Mr. Bower voting against.
. CITY COUNCIL ACTION I~EQUlRED: Approval or denial of zoning reque,st.
BUDGETED ITEM:
YES
NO X
ACCOUNT NUMBER: N/A
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Page 11
P & Z Minutes
October 22, 1981
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Mr. Long said they had received the Engi eer's
comments and have no problem with i·te 1
thru 5, but on #6-the City Engineer as made
a mistake.·
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Mr. Long said the large lot was a life
estate.
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There was a .discussion regard- 9 this. Mr.
Long said in regard to su · ting the
construction plans to th ail road, they
feel they need to wait ntil the ·final plat
approval because the would have trouble
gett; ng an approva from the rail road un 1 eS$
the plat has alr dy been approved by the city.
. Mr. Long sa; they' would take exception to
66 till t final plat approval; #7 is okay
. and on ~ he said he had discussed with Mr.
Brons a and this is in accordance with the
cit s master plan.
PS 81-55
APPROVED
r. Long said they agree to pay the pro rata;
II 10 & 11, we wi 11' do; n12-we wi 11 come back '.....
and ask for city participation in this; #13-they
they feel ~ should be handled after the final
plat. and #14-the city al~eady has this.
"Mr. Hannon moved to approve PS 81-55 'subject
to the Engineerts comments, #6-we agree this
is in error, provide a 4 X 5 ft. box culvert
and a 60 " pipe with ·further drainage probably
to be worked out, and the ci ty agree to .
oversize.
The motion was seconded by Mr.. Tucker .and the
moti"on carri'ed 5-0. .
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The Chairman called a recess at 9:00 P. M.
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PZ 81-35 ..
The Chai,nnan called the meeti·ng back to order
at 9:10 P. M. with the same members present.
Request of Aubrey' Brothers to rezone Tract 3A,
Abstract 1150, David Moses Survey, from its
present classi·fication of Agriculture to
proposed classifications of IF-12-1800~
IF-9-1700, and IF-9-1500~
This property is located east of Eden Road,
approximately 1900 feet north of Amundson
Drive with portions fronting on Eden Road.
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Page 13
P & Z Minutes
October 22, 1981
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Bill Wall aces 7401 Eden Road~ came forward.
He said this request has been voted down
two ti"mes in one year. Mr. Wallace said the
surrounding homeowners are against it
because of the schools and streets. He
showed pictures of how the street stays 90%
of the time. . Mr. Wallace said these pictures
were taken before ~e last rain. He said
the road needs a major overhall. He said
when it rains~ the water runs from bar-ditch
to bar-ditch~ .
Mr. Wallace said in regar~s to the ~ewer
being within 500 feet of them s the homeowners
would have to bear the expense~ the. developer
wouldn't.
Mr. Wallace said he feels they should have
larger lots and larger houses.
. Perry Weises 7404 Eden Road~ came forward.
He said there was already a bottleneck of
traffic onto Davi's and Precinct Line, on
Bedford Euless Road at the Northeast Mall to
Davís and Grapevine Highway.
Jean ,Wollenschlager, 7308 Eden Road, came
forward. She said thi's reque~t really
affects hers 6 of the homes~ 4 on one side.
Mrs. Wollenschlager said they bought out
there a year ago because they wanted the .
country living. She said if this is approved
she would look out at her back yard and see
4 houses. Mrs. Wollenschlager saN it would
caus.e a traffk problem arid she wants to keep
the country 1 ;-vi".ng. .
M. H. Roberson~ 7008 Eden Road~ came forward.
He sai"d he'has 330 ft. frontage on Eden Road.
He satd he enjoys" the country li'ving. Mr.
Roberson said he knew that progress has to be~ .
but there should be some place where there
could be country livtng.
The Chai.rman called for tbose wishi,ng to speak
tn favor of this request to please,come forward.
Elmer All i.son, owner of the property ~ came
forward. He sai"d they had tried 3 times to
zone tlì;'-s property. . He sa i'd the uti 1 i ty ~-~-
department put i'n an 8 inch water line and
pays $2 ~600 a year to TRA whi:ch i's spent for
the taxpayers~.
Honorable Mayor and City Council
Ci ty of North Rich·land Hills
7301 Northeast Loop 820
Nor~h Richland Hills, Texas 76118
Re: Proposed Improv. of Eden Road
(Amundson Rd. to Rumfield Rd.)
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Draft Letter
Dear Mayor and City Council:
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We recently represented our client, Aubrey Brothers, for a
proposed rezoning of an 18-acre tract of land on the east
side of Eden Röad. After reviewing the comments of the
citizens in the area and the City Council upon the denial of
the zoning, we have made a further investigation of the
i terns of concern and have two i terns to offer- for your
consideration of the pending rezoning request.
1. There was concern on the part of the homeowners
in the, area as to the size of homes and lots to
be included in this development. Our current
request, which has been approved by the Planning
and Zoning Commission, offers two zones of
buffer between the existing homes and the lower
zoning classification originally requested. As
the intent of this letter is to speak more
specifically to the second item, we would prefer
to delay further comment on this compromise
until the Council Meeting itself.
2. The Council and the citizens were concerned
about the amount of traffic on and the condition
of Eden Road. As a result, we would propose the
following three-party cooperative effort to
alleviate that concern. It was, stated in the
previous Council Meeting that construction .of
,Eden to City specifications would most likely be
sometime in the future primarily because of the
l~ck of potential developers along this street
to escrow enough funds to accomplish this type
of construction. Since the citizens and the
Council are concerned about the existing
condition and width of the street,'we wou~d
propose that the City, County, and Developer
enter into an agreement by which an interim type
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Mayor and City Council
Proposed Improvements of Eden Road
Page 2
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of improvement could be constructed. In this arrangement,
the City would provide the necessary labor to install
culvert pipes under each of the driveways exiting onto Eden
Road. The County would p~ovide the labor necessary to
regrade, widen, and reshape the subgrad~ of Eden, add needed
base materal as required, and then shoot-the entire street
with a penetration asphalt surface. The Developer then
would be responsible for lengthening the culvert at his
property to accommodat~ th~ extra width of Eden Road.
Further, we would propose that the Developer's escrow money
for future improvements of Eden Road be expended for the
materîals required to accomplish the above improvements. We
met with Cecil Forrester and Bob Holder of the City and
County, respectively, on October' 29, 1981, to discuss this
~roposal. Mr. Holder indicated that materials for such type
lmprovements currently cost approximately $10,000 per mile.
There is .approximately O.6,miles of Eden Road in question,
therefore, we feel that the escrow money for Mr. Brothers'
portion of his frontage on Eden Road would more than pay for
the proposed material for this improvement work. The
remainder of the money then could be utilized to extend both
ends of the other culvert on Eden Road to accommodate the
new width of the street.
4IÞ We understand that this p~oposal must be approved by the
County Commissioner, and by copy of this letter, we are
transmitting same to him for his approval. We trust that
this proposal will meet with the approval of both the City
Council and the citizens along Eden Road, and we look
forward to your approval of this proposal and the concurrent
zoning request at your meeting of November 23, 1981.
Should there be any questions concerning this matter in the
meantime, please do not hesitate to call. It is also our
plan to present this same letter to residents along Eden
Road so that they, too, may review ,this proposal prior to
the November meeting.
Very truly yours,
TEAGUE NALL AND PERKINS, INC.
J. Richard Perkins, P.E.
4IÞ
JRP/cn
cc: Mr. Lyn Gregory
Mr. Bob Holder
Mr. Cecil Forrester
Mr. Aubrey Brothers
Mr. Elmer Allison
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KNOWL TON-ENGLlSH-FLOWERS, INC.
. CONSULTING ENGINEERS / Fort Worth-Dallas
October 9, 1981
Planning & Zoning Commission
City of North Richland Hills
7301 N.E. Loop 820
North Richland Hills, Texas 76118
Subject: 3-002, CITY OF NORTH RICHLAND HILLS,
ZONING PLAT REVIEW, PZ·81-35,
AG TO IF-12 & IF-9, (GRID 53, 62)
We have received the subject zoning case for our review and find that
we could adequately locate this property on the zoning map should it
be passed by both the Planning &'Zoning Commission and the City Council.
RWA/l jc
cc: Mr. Cecil Forester, Director of Public Works
550 FIRST STATE' BANK BLDG.· ,BEDFORD, TEXAS 76021· 817/283-6211· METRO/267-3367
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November 18, 1981
Honorable Mayor & City Council
City of North Richland Hills
7301 Northeast Loop 820
North Richland Hills, TX 76118
Dear Mayor & City Council:
In regards to a letter address to you, dated Nov. 10,
1981 from Teague, NaIl and Perkins Inc., concerning pro-
posed rezoning of a 18 acre tract of land located on Eden
Road, Aubrey Broth~rs, Developer.
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Commissioner Lyn Gregory has agreed to the Contents
of this letter to me, with the intent to write you a letter
stating the 'same, but was called out of town and was unable
to get the letter out before he left town. He will not be
back until Monday Nov. 23, 1981.
Hope you will except this letter from me as his approval.
Sincerely,
Bob Holder
Supervisor
RH:ed
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TO; PLANNING &" ZONING COMMISSION
City of North Richland Hills
Date: : 1/-1 ~<./!1
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Case No: . Pz- ¡ /-.36'
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\-le:. the undersi.gned property O\'lners \'1ithin t'lJO hundred. (200) feet of the tract
sought to b~ rezoned~ hereby object to the rezoning of. the sôìd property described
in the appl ication ~or the follm'iing'reason (5): thjc; rp7oD;ng l11PlIld not be çortduçtive
. to the public safety~ health, convenience, comfort,pros'perity, :or "geri"eral ~/elfare
. of the .present neighborhood.,
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TO,: Ci ty Counci 1
City of North Richland Hills
Date:
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Case No:
We, the undersigned residents and/or property' owners of North Richland Hills
(not within 200 feet of subject property), hereby object to the rezoing öf .
said tract for thefollowingreason(s): this rezoning· would not be conductive
to the public safety, health, convenience, comfort, orosperity or qeneral welfare
of the present, neighborhood.
Signature: Date:
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ORDINANCE NO.
AN ORDINANCE REZONING PROPERTY IN ,ACCORDANCE
WITH ARTICLE XXIX CHANGES AND AMENDMENTS,.
SECTION 1 OF ORDINANCE 1179, ZONING ORDINANCE'
, OF THE CITY OF NORTH RICHlAND HILLS) TEXAS,
PASSED, -APPROVED. AND ADOPTED BY THE PLANNING
AND ZONING COMMISSION'AND THE CITY COUNCIL OF
THE CITY OF NORTH RICHLAND HIlLS~ NOVEMBER 13.
1967, AS· AMENDED JANUARY 274 1975
AFTER APPROPRIATE NOTICE AND PUBLIC HEARING THE FOllOWING RECOMMENDATION IS
'SUBMITTED TO 'THE CITY COUNClL OF THE CITY OF· NORTH RICHLAND HILLS BY THE
PLANNING AND ZONING COMMISSION:
RESOLVED that On Case No. PI 81-35 the followl.ng described property shall
be rezoned from Agriculture to the fol~ow~n~~:.~?~$.~~,~~.B~~~k-1,
1F-12-1800~Lots 6-10. Block'l_ Lot~ 1-3~'a16ck 2~ & lot~17 ~ lR, Rlnck 3)
IF-9-1700, and the remainder of-the addition'1F-9-1500.
BEING parcels of land in that certain 18.243 acre tract or parcel of land
situated in the David Moses Survey, Abstract 1150~ Tarrant County~ Texas;
said 18..243 acre tra~t being part of the 24.7 acre ,tract conveyed to C. L.
Miller, et ux~ as shown by deed recorded in Volume 1901, Page 359 of the
Deed Records of Tarrant County, Texas; said portions of that 18.243 acre
t.ract being further described herein by metes and bounds as ·follows:
e
PARCEL NO~ 1 - IF-12-180Q·ZONING .
COMMENCING at the northwest corner of the David Moses Survey, Abstract
1150" Tarra'nt County~ Texas;
THENCE South 88 degrees 13 minutes 11 seconds East 23.62 feet wi'th the North
lin,e of said Moses Survey;
THENCE South along the East right-of-way of Eden Road 568.,39 feet to an axle
found and being the PLACE OF BEGINNING;
THENCE North 88 degrees 57 minutes 34 seconds East~ 377.01 feet. to ~niron.
pin found;
THENCE South 00 d~grees 02 minutes 17 seconds East, 172.49 fèet to a point;
THENCE South 01 degrees 08 minutes 00 seconds West, 50.33 feet to an iron
pin found;'
, "
THENCE South 84 degrees 33 minutes 26 seconds West~ 377.77 feet to an iron
pin ·fo~nd in the East ri ght-of-way of ~den Road;
THENCE North 251.8 feet with East right-of-way of said Eden Road to the
PLACE OF BEGINNING and containing 2.053 acres of land more o~ less.
It
Page 2
PARCEL NO. 2 - IF-9-1700 ZONING
BEGINNING at an iron pin, found in the North line of the David Moses
Survey and fence line, said iron pin being South 88 degrees 13 minutes
11 seconds East, 402.34 feet from the northwest corner of the said
Moses Survey;
\ ,
THENCE South 88 degrees 13 minutes 11 seconds East with said survey
line and fence line, 133.00 feet to a poi.nt;
THENCE South 13 degrees 22 minutes 22 seconds East, 116.3 feet to a point;
THENCE South 01 degrees 52 minutes 41 seconds West, 662.19 feet to a point;
THENCE South 05 degrees 51 minutes 40 seconds East, 140.0 feet to a point;
THENCE South 84 degrees 08 minutes 20 seconds West with the South line of
said 24.7 acre tract and fence line 156.0 feet to an iron pin found at a
fence corner;
THENCE North 00 degrees 06 minutes 09 seconds East with fence line 161.72
feet to an iron pin found;
THENCE North 01 degrees 08 minutes 00 seconds East, 50.33 feet to a point;
THENCE North 00 degrees 02 minutes 17 seconds West, 377.58 feet to an iron
pipe;
THENCE North 89 degrees 30 minutes 43 seconds West, 376.82 feet to an axle
found in th~.east right-of-way of Eden Road;
THENCE North with the east right-of-way of Eden Road 49.7 feet too an iron
pin found;
THENCE South 89 degrees 32 minutes 47 seconds East with a fence line 377.73
feet to an iron pin found;
THENCE North 00 degrees 09 minutes 27 seconds East with fence line 294.77
feet to the PLACE OF BEGINNING and containing 3.603 acres of land more or less.
PARCEL NO~ 3 - IF-9-1500 ZONI~G
BEGINNING at a point in the North line of the David Moses Survey and fence
line, said point being South 88 degrees 13 minutes 11 seconds East 535.34
feet from the northwest corner 'of the sai'd Moses· ·Survey;
THENCE South 8S'degrees 13 minutes 11 seconds East with said survey line and
fence line 453.55 feet to an iron pin found at a fence corner of said 24.7
acre 'tract;
THENCE South 24 degrees 36 minutes 38 seconds East with the East line of said
24.7 acre tract and fence line 898.85 feet to an iron pjn found at the south-
east corner of said 24.7 acre tract;
THENCE South 84 degrees 08 minutes 20 seconds West with the South line of said
24.7 acre tract and fence line 812.41 feet to a point;
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· p'ag~ 3
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THENCE North 05 degrees 5~ minutes 4~~econds West, 140.0 ~et to a point;
\ .
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THENCE N?rth 01 degrees 52 minut~s 41 seconds East, 6~2,.19 feet to a\point;
THENCE, North "13 degrees' 22 minutes 22 seconds West, '116.3 feet to th:.e PLACE.
'OF BEGINNING and ~ont~ining 12,..578 acres of land more. or less. .;;
This Próperty is located . ·east of Eden Road. aooroximatelv 190Ö feet North .
of Amundson Drive w;·th portions fronti,n~ on E~en' Road.
. .
APPROVED BY THE PLANNING AND, ZONING COMMISSION THIS'
OCTOBER, 1981.
, .
22nd
'DAY OF·
ISSION
, .
717 ~~~. (if? L;;; ~
SECRETÄRY pLANNÍNG AND ZONING COMMISSION
. ...
. , '
. BE ·IT ORDAINED I~y. THE CITY COUNCIL OF THE CIT'Y OF NORTH' RICH'LAND HILLS ACTING
IN REGULAR SESSION THAT THE ABOVE DESCRIBED PROPERTY IN CASE NO. PZ . IS
HEREBY' REZONED. I . .
THIS . " 'DAY OF
MAYOR DICK FARAH, .
'CITY OF NORTH RICHLAND 'HIL~' , '
ATTEST: ·
w .
èITY SECREtARY JEANETTE MOORE
'. . CITY OF NORTH RICHLAND HILLS .
APPROVED AS TO FORM·AND lEGAlITY·
\ '
CITY ATTORNEY
CITY OF NORTH RICHLAND HILLS
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DATE: Nov. 18 ~ 1981 / )-
SUBJECT: PZ 81-36 Zoni ng reques't for a porti'on of 810ck 2!t Snow' Hei"qhts North
e Addition, from Local Retail to Local Retail-:-Billboard.
DEPARTMENT: ,Planning and Zoning
BACKGROUND: This property~ located on the north side of N. E. Loop 820 and
approximately 650 feet east of Rufe Snow Drive.
This billboard was built about 5 years aQo. The ~ui1d;-ng,pen11it for,it wa~ it} error
so the siQn could not be used. National Advertising and the 3M Company are wanting
to advertise North ,Loop Dodge on ·the back'side of the one advertising MeqQow lake~
. '
Addi~tion~ The\{ were oranted a Speci fi c Use fo'r one for North Hi 11 s ' Ma 11 a yerlr ñfJt1'
a half ago. .
The Planning and, ,Zåning reconmended approval with the sti~ulation that a copy of the
advertisement would be submïtted to the city staff for approval.
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CITY COUNCIL ACTION lŒQUlRED: 'Appro~al or denial of zoninQ r~auest.
BUDGETED ITEM:
YES
NO X
ACCOUNT NUMBER: N/A
~~@~
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Page 15
P & Z Minutes
October 22, 1981
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14.
PZ 81-36
Request of National Advertising Company
to rezone a portion of Block 2~ Snow Heights
North' Addition, from its present classifi-
cation of Local Retail to a p~op9sed classi-
fication of local Retail-Specific Use-
Bill board. .
This· property is' located on the' north side 'of
N. E. loop 820 and approximately 650 feet
e~st of Rufe Snow Drive.
Mark Johnson came forward t9 represent
National Advertising in their request,. He.,
said this billboard was b~ilt about.5years
ago and ,the permit was in error and, they
were not allowed to use it. Mr. Johnson said
about 1~ years ago,', they came tn and received
a Speciftc Use for North Hills Mall and now
they want one for North Loop Dodge.. He said
they have a si"gned contract for 1.2 months.
Mr. Johnson showed what the sign would lciok
.ltke. . He said it looks better with something
on tt i.ns·tead of a blank s·ign. Mr., Johnson
sai"d he would reques't the 'Commission approve
thts reques·t.
Mr. Tucker asked if Mr. Johnson 'was requesting
the Speciftc Use for just one side.
Mr. Johnson satd it was for the back side.of
the on~ adverttstng Meadow Lakes Addition. He
satd tt was· butlt for a 2-faced sign.
The Chatrman opened the Public Hearing and
called for those wishing to speak in favor of
thï:s' request to please come. forward. .
THere being n6 one wishing t6 speak, the
Chatnnan ·called for thos:e wi.s·hi,ng to speak in
oppos·i."ti'on to please come forwa-rd. "
THere'betng no one wishing to speak, the
Chaï:r1nan ·closed th.e publi.c heari.ng.
Mrs'. Nash satd she had mtxed emotions about
us'ing both, si.des. She asked when the 12
mQnth contract would start.
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Page 16
p & Z Minutes
October 22, 1981
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Mr. Johnson said it would start when the
sign is complete. He said they would like
for the Specific Use to be for North Richland-
/~ Hills businesses and that wa¥ they would not
have to come back every year. .
Mr. Greenfi~ld said he was ~oncernedabout
what would bé put. on the sign.
David Haroldson came forward~. He said they
have never put up any distasteful ~igns; no
X-rated movies, etc. He said they don't
advertise liquor. Mr. Haroldson said they·
would be happy to submit to the city staff
before putting the sign up each time~
Mr. Greenfield asked if they were willing for
the Commissi:on to tie it down to advertise
only Nor~ Richland Hills business a~ for
staff approval.
Mr. Haroldson-said that would be fine.
, .
Mrs. Nash asked what would be the volume for
the·ctty staff.
(
Mr. Johnson satd no more than two _ per year.
'PI 81-3'6
APPROVED
Mr. Tucker moved to approve PZ81-36 and that
a copy would be submitted to the ci:ty staff
for approval..
Thts moti.on was· seconded by Mr. Bowen and the
motton carri~ed 5-0.
ADJOURNMENT
The meet\ng adjourned at 10:05 P. M.
. . . . . . . . . . , . . . . . ., ......... ,.' '.
CHAIRMAN PLANNING AND ZONING COMMISSION· .
.' .,...........,...,....,.......,....,
4 . .. . . .
- SECRETARY PLANNING AND ZONING COMMISSION
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October: 9, ,1981
City ó£North Richland' Hills
P. o. Box 18609
North Richland Hills, Texas 76118
RE: Block 3, Snow Heights North Addition
North Richland Hills
. '
ATTN: Ms. Wanda Calvert
TO WHOM IT MAY CONCERN:
e
This is too verify that Crossroads Development Company ~ as
owner of the aforementioned property~ is aware of and has
given permission to 3M National Advertis ing to apply for
a Special Use Permit for the purpose of advertising North
Loop Dodge on the west face of the existing structure.
Sincerely,
%LL~
John C. Cook
Owner, Crossroads Development Company
JCC/ts
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KNOWL TON-ENGLISH-FLOWERS, INC.
CONSULTING ENGINEERS / Fort Worth-Dallas
October 9, 1981
Planning, '& Zoning Commission
City of North Richland Hills
7301 N.E. Loop 820
North Richland Hills; Texas 76118
Subject: 3-002, CITY OF NORTH RICHLAND HILLS,
ZONING PLAT REVIEW, PZ 81-36,
LR TO LR SU BILLBOARD, (GRID 121)
We have received the subject zoning case for our review and find that
we could adequately locate this property on the zoning map should it
be passed by both the Planning & Zoning COITJ.'11ission and the City Council.
RICHARD W. ALBIN, P~E.
RWA/ljc .
cc: Mr. Cecil Forester, Director of Public Works
550 FIRST STATE BANK BLDG. · BEDFORD, TEXAS 76021 · 817/283-6211· METRO/267-3367
/3
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ORDINANCE NO.
AN ORDINANCE REZONING PROPERTY IN.ACCORDANCE
WITH ARTICLE XXIX CHANGES AND AMENOMENTS~
SECTION 1 OF ORDINANCE #179, ZONING ORDINANCE
OF THE CITY OF NORTH RICHlAND HILLS, TEXAS,
. PASSED. APPROVED, AND ADOPTED BY THE PLANNING
AND ZONING COMMISSION' AND THE CITY COUNCIL OF
THE CITY OF NORTH RICHLAND HIllS, NOVEMBER 13.
1967, AS· AMENDED JANUARY 271j 1975
AFTER APPROPRIATE"NOTICE AND PUBLIC H-EARING THE FOLLOWING RECOMMENDATION IS
SUBMITTED TO THE CITY COUNCIL OF THE CITY OF NORTH RrC~LAND HILLS BY THE
PLANNING AND ZONING COMMISSION:
RESOLVED that On Case No. PZ 81-36
be' rezoned from Local Rëtaii
Local Retail-Specific Use~Billboard~
the followtng descr;'bed property shall.
. . " .".. ' .' ".. ~ ~ l: .... . to
TO WIT:
BEING a por~ion of Block 3, Snow Heights North Addition to the City of North
Richland Hills, Tarrant Coünty, Texas, as reco'rded in Volume 388-44, Page" 99,
Plat Recor.ds, Tarrant Co.unty, Texas. .
This property is located on the North side of Northeast Loop 820 and
. 'a~proxfmately 650 feet East of Rufe Snow Drive.
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APPROVEO
OCToBER
DAY OF
. ~ . CHAIRMAN PLANNING AND
7J7'r1~~ éÝÍ: ~ ~
SECRETARY PLANNING AND ZONING COMMISSION
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS ACTING
IN REGULAR SESSION THAT THE ·ABOVE ·DESCRIBED PROPERTY IN PZ 81-36 IS HEREBY
REZONED' . . .. ..................
THIS' ......... DAY OF""'·""""" ,1981.
MAYOR - DICK FARAM
ATTEST:
CITY SECRETARY - JEANETTE MOORE
. e APPROVED AS TO FORM AND LEGALITY
CITY ATTORNEY -REX MCENTIRE
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DATE: November 18, 1981
SUBJECT:
Ratify.'ResQlution - Community Development Block Gra~t
DEPARTMENT:
Administration
BACKGROUND: This resoluti9n should have been ~assed before
November 13th. for the city to participate in Tarrant County's Community
DevelopmenF Block Grant Program. . The Còúnc;', was made';aware of the
need for the resolution and the City Attorney,'~vised the, staff to
have the Mayor siQn ,the resölution a~d ratify it at thiS Council meetinQ.
CITY COUNCIL ACTION REQUIRED:
Approve Resolution
BUDGETED ITEM:
ACCOUNT NUMBER:
YES
NO
---~~~---~---~~~-~~~--~~~~~~~~~-~--~-~~--~--~-~-~---~~--~---~~-~~--~~-~-~~~-~~~~
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KNOWL TON-ENGLISH-FLOWERS, INC
CONSULTING ENGINEERS / Fort Worth-Dallas
November 11, 1981
Honorable Mayor & City Council
City of North Richland Hills
7301 N.E. Loop 820
North Richland Hills, Texas 76118
Re: 30-307, TARRANT COUNTY/CITY OF NORTH'RICHLAND HILLS,
COMMUNITY DEVELOPMENT BLOCK GRANT PARTICIPATIQN .
RESOLUTION
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We are enclosing a copy of the resolution stating North Richland Hills'
desire to participate in Tarrant County's Community Development Block
Grant Program for the Three Year Program Period, July 17, 1982, through
July 16, 1985. Basically, this resolution gives Tarrant County penmission
to include North Richland Hills' population in their application for
County-wide assistance funding from H.U.D., part of which is to be
used in financing the Mackey Creek Channel Ilnprovements project which
you endorsed on October 12, 1981, by Resolution No. 81-19.
Upon'your consideration and approval, please have the City Secretary,
send an executed copy of this resolution to Donna Evans, Tarrant County
Planning Department, 100 W. Weatherford, Fort Worth, Texas 76102, and
send a copy to us for our files.
,
RWA/ljc
Enclosures
cc: Mr. Charles W. Williams, City Manager
Mr. Cecil Forester, Director of Public Works
Mr. Delton Thrasher, Program Coordinator
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267-3367
. ..
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RESOLUTION NO. 81-21
RESOLUTION REGARDING CITY OF NORTH RICHLAND HILLS' PARTICIPATION IN
TARRANT COUNTY'S COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FOR THE
THREE PROGRAM YEAR PERIOD, JULY 17, 1982 THROUGH JULY 16, 1985
WHEREAS, 'the 93rd Session of the Congress passed and the President
of the U.S. signed into law, the Housing and Community Development Act
..
of 1974 for the specific purpose of developing viable communities, and
WHEREAS, Tarrant ,County has been designated as an "Urban County" by
the Department of Housing and Urban Development entitled to a fonnula
share .of program funds provided said County has a combined population of
200,000 persons in its unincorporated area and its included units of
general local governments wi th which ;Ot has entered into cooperative
agreements, and further
THAT, Article III, Section 64 of the Texas Constitution authorizes
Texas ~ou~ties to enter into cooperative agreements with local govern-
ments for essential Community Development and Housing Assistance activi-
ties,
NOW, THEREFORE, BE IT RESOLVED, by the City of North Richland Hills,
that the City Council of North Richland Hills, Texas supports the
application of Tarrant County for funding of the Housing and Community
.
Development Act of 1974. To this end: (I) the City of North Richland Hills,
Texas asks that its population be included for three successive years with .
that of Tarrant County, Texas; (2) authorizes Tarrant County and the
City of North Richland Hills, Texas to cooperate to undertake, or
assist in undertaking, community renewal and lower income housing
assistance activities, spe~ifically urban renewal and publicly assisted
housing, and all other activities listed as "Community D~.velopment
Program Activities Eligible for Assistance" under Public Law 93-:-383,
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The Housing and Community Development Act of 1974, Title I, Section 105,
and listed as UEligible Activities" under the Code of Federal Regulations,
Title 24, Chapter V, Part 570 as amended, "Community Development Block
GrantsU, (3) authorizes Tarrant County and the City of North RichlandHil1s,
to take all required actions to comply with the provisiohS of the National
Environmental Policy Act of 1969, Title VI of the Civil Rights·Act of
1969, Title VIII of the Civil Rights Act of 1968, Executive Order 11988,
Section 109 of the Housing and Community Development Act of 1974, and
other applicable laws, (4) authorizes the ~1ayor of North Richland Hills,
Texas to sign such additional forms as requested by the Department of
Housing and Urban Development pursuant to the purposes of this Resolution,
and further the City of North Richland Hills, Texas understands that
Tarrant County will have final responsibility for selecting projects
and filing annual grant requests.
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PASSED AND APPROVED THIS 9th day of November
t 1981.
ATTEST:
APPROVED:
City Secretary
Commissioners' Court Clerk
County Judge
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~
DATE:
November 16, 1981
/ s/~
.,
SUBJECT:
Employees Group Life and Health Insurance
-
DEPARTMENT:
BACKGROUND:
Civil Service
As time passes, our curre~t Group Insurance Carrier--Blue Crass/Blue
Shield--becomes less reliable and completely passive regarding our employees'
claims for re-imbursement of covered .eligible expenses. It is w'ell documented that
Blue Cross has taken as long as one (1) year to re-imburse employe~s, and then
only after numerous inquiries were made. In thè meantime, the employee 'suffers a
hardship.
I have recently been advised that Blue Cross/Blue Shield is in a very difficult
financial condition and is considering filing bankruptcy.
e
It is the employees' consensus that we change insurance carriers.
A. cOIT~it~ee of six (6) employees, chaired by Bobbie McCorkle, was appointed to
develQP and submit specifications to qualified insurance companies. The committee
CITY COUNCIL ACTION ItEQIJIRED:
Consideration and Approval
BUDGETED ITEM:
ACCOUNT NUMBER:
YES
NO
~---~---~~~~~~-~-~-~---~~-~-------~~~-~~--~-~~-~~~~~~~~-~~~~---~~--------~-~-~--~~-~
e
Page 2
e
mailed specifications to eighteen (18) companies inviting them to submit
bids. Eight bids were received. Three of the bids did not meet
specifications and were disquali_~J.-ed.,____Q,f,_ t_be",.~ive remaining bids, the
employees' committee and the ivil Service
commends TML
~
--------------------
The attached summary,shows the cost/coverage comparisons for the five
companies under consideration. A more detailed explanation of each company's
---
coverage was submitted with their bids.
---
~
The complete coverage plans were reviewed by persons in the insurance, field
as well as two large company administrators within the area-. They highly
e
recommended the TML Plan.
With the Councils' approval" the City will have the TML (Prudential) Plan
in effect by January 1, 1982. Our contract with Blue Cross/Blue Shield
expired October 1, 1981. Since then, the City has been operating on a
month-to-month basis with Blue Cross. Blue Cross/Blue Shield advises it
is possible another price increase will occur January 1.
Personnel
e
7:
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..
,BROOKHAVEN CABLE TV, INC. v. KELLEY
BROOKHAVE·N CABLE .TV, INC. et al. v. .KELLEY et ale
U. S. Court of Appeal~ t Second Circuit, March 29, ,1978
No.s. 77-6156. 77-6157
['10:1. '10:Z. '10:303. '85:31] Pay cable -
¡)ree~ption of state re~ulatio~.
The FCC's preemption, of the regulation of special
.pay cable programming rendered invalid New
YO'rk's attempt to impose price regulation on such
. programming. Brookhaven Cable TV , Inc. v.
Kelley, 42 RR 2d 1185 [CA 2d, 1978].
[f10:1, '10:2, '10:303, '85:31] Pay cable
authority of FCC.
The FCC 'has authority to preempt state and loc~l
regulation of special pay cable programming.
T~e decision of the agency to delay all price
. regulation meets the Supreme Court test of the
r.ules as "reasonably a'ncillary" to the objectiv'e
of increasing program diversity. The agency's
choice to proceed by means of policy statements
and interpretations rather than formal regulations
does not' vitiate its attempt to preempt..
Brookhaven Cable TV, Inc. v. Kelley, 42 RR 2d
1185 [CA 2d, 1978].
Before: Lumbard and Oakes, Circuit Judges, and Wyzanski, District
Judge. .: I
Stuart Robino~itz, New York, N. Y. (Paul, Weiss~ Rifkind, \V'harton &
Garrison, Robert S. Smith" Susan P. Carr, and Jack A. Horn, New York,
N. Y. I on the brief), for Plaintiffs-Appellees.
Eloise E. Davies, Attorney, Appellate Section, Civil Division, Department
of Justice Washington, D. C. (Barbara Allen Babcock, As sistant Attorney
General, Paul V. French, United States Attorney, and Leo.nard Schaitman,
Attorney, Department of Justice, Washington, D. C.; Daniel M. Armstrong,
Associate General.Counsel, Gregory Christopher and Lauren Belvin,
. Counsels, Federal Communications Commi ssion, Washington, D. C. , on the
brief), for Intervenors-Plaintiffs-Appellees.
Charles A. Bradley, New York, N. Y. (Louis J. Lefkowitz, Attorney General
of the State of New York, Ruth Kessler Toch, Solicitor General and Kenneth
J . Connolly, Principal Attorney, on the brief), for Defendants -Appe llants.
. !.I Sitting by desi gnation.
42 RR 2d
Page 11 8 5
. .
The provisions in dispute here concern the setting of rates by the state
and local franchising authorities.
B OOKHA VEN CABLE TV INC v KELL Y
.
The sections concerning rates generated considerable confusion when pro-
mulga,ted in 1972, particularly with regard to special programming on cable
systems. Accordingly, on March 1. 1976. the Commission issued a "Clarifi-
cation of Commission Polic.y, tt '1:../ which indicated (1) that no exemption or
exclusion from franchising and rate approval requirements was intended for
"pay." "auxiliary" or "subscription" cable services - the specialized
programming at issue here; (2) that companies already providing pay cable
services would not be required to amend their franchises immediately, but
would have to give notice within two months to the appropriate authorities of
their current ratès, o'r .face "appropriate sanctions"; and (3) that "active
enforcement" .of these policies would be llndertaken.
........ ..
Plaintiffs sought å declaration that the policies expres sed. in the Clarification
violated the supremacy clause of the United States Constitution - because of
alleged FCC preemption - as well as the First. Fifth and Fourteenth amend-'
ments. The district court granted summary judgment on the supremacy clause
claim, and this appeal followed.
!/
(Footnote continued from preceding pagel
...........
2. A municipality shall have the power to require a franchise of any
cable television system providing service within the municipalityt not-
withstanding that said cable television system does not occupy, use or
in any way traverse a public' street. The provision of any municipal
charter or other law authorizing a municipality to require and grant
franchises is hereby enlarged and expanded, to the extent necessa~Yt to
authorize such franchises.
;.;.;-;:
3. Nothíng in this article shall be construed to prevent franchise require-
ments in excess of those prescribed by the Commission, unless such
requirement is inconsistent with this article or any regulation, policy or
procedure of the Commission. ,t
"§825. Rates
1. Except as otherwise provided in this section, the rates charged by a··
cable television company shall be those specified in the franchise which
may establish, or provide for the establishment of reasonable classifica-
tions of service and cate gories of subscribers, or charge different rates
for differing services or for subscribers in different categories.
2. Such rates may not be changed except by amendment of the franchise.
. . . . . .
. . ~ . .
5. In addition to other powers, the Commission may, after public notice
and opportunity for .hearing, pre scribe rate s for cåble te levis ion service.
It
,. . .
.
,Z/ In re Rates Charged by Cable Television Companies for "Auxiliary"
Programming. Docket No. 90010 (Commission on Cable television 1976).
42 RR 2d
Page 11 87
/:
~
..\:~.
........
..............
.. . ... " . .... .... ..
.. .... ...... -...
. .. .....
... .....
. .. .. .. .. .... .. .. ..
. .. . .. .. ........
... .....' .... ...
.'......:::.
. .
. .
,:ðROOKHA VEN CABLE TV, INC. v. KELLEY
BROOKHAVE'N CABLE .TV, INC. et ale v. .KELLEY et ale
u ~ S. Court of Appeal~ t Second Circuit, March Z9, .1978
No.s. 77-6156, 77-6157
['10:1. flO:Z, '10:303, '85:31] Pay cable -
preer:nption of state re~ulatio~.
The FCC's preemption. of the regulation of special
pay cable programming rendered invalid New
York's attempt to impose price regulation on such
. programming. Brookhaven Cable TV, Inc. v.
Kelley, 42 RR 2d 1185 [CA 2d, 1978].
[f10:1, '10:2, '10:303, 585:31] Pay cable
au.thority of FCC.
The FCC 'has authority to preempt state and locø.l
regulation of special pay cable programming.
T~e decision of the agency to delay all price
. regulation meets the Supreme Court test of the
r.ules as ureasonably a·ncillary" to the objective
of increasing program diversity. The agency's
choice to proceed by means of policy statements
and interpretations rather than formal regulations
does not· vitiate its attempt to preempt..
Brookhaven Cable TV, Inc. v. Kelley, 42 RR 2d
1185[CA2d, 1978].
Before: Lumbard and Oakes, Circuit Judges, and Vlyzanski, District
Judge. ..: I
Stuart Robino~itz, New York, N. Y. (Paul, Weiss; Rifkind, \V'harton &
Garrison, Robert S. Smith, Susan P. Carr, and Jack A. Horn, New York,
N. Y., on the brief), for Plaintiffs-Appellees.
Eloise E. Davies, Attorney, Appellate Section, Civil Division, Department
of Justice Washington, D. C. (Barbara Allen Babcock, As sistant Attorney
General, Paul V. French, United States Attorney, and Leo.nard Schaitman,
Attorney, Department of Justice, Washington, D. C.; Daniel M. Armstrong,
Associate General.Counsel, Gregory Christopher and Lauren Belvin,
. Counsels, Federal. Communications Comrrrission, Washington, D. C. , on the
brief), for Intervenors -Plaintiffs -Appellees.
Charles A. Bradley, New York, N. Y. (Louis J. Lefkowitz, Attorney General
of the State of New York, Ruth Kessler Toch, Solicitor General and Kenneth
J. Connolly J Principal Attorney J on the brief), for Defendants -Appe llants.
.!/ Sitting by designation.
42 RR 2d
Page 11 8 5
~.
42 RR 2d· CASES
¿ø¡r
William R. Nu.sbaum~ Deputy Assistant General Counsel, Washington, D. C.
(Paul Rodgers, General Counsel, and Charles A. Schneider, Assistant
General Counsel, on the brief), for Intervenor-Defendant-Appellant.
r··':
, ,.
Lumbard, Circuit Judge:
This appeal raises two questions: whether the Federal Communications
Commission has the authority to preempt state and local price regulation of
one aspect of cable television ,- specialized programming for which a per-
program or per-channel charge is made - and if so, whether the FCC has
adequately and effectively exercised that authority. The Northern District
of New York, Port, J. , finding that the FCC both possessed and had asserted
the requisite authority, granted summary judgment to the, plaintiffs herein,
declaring that the action of the New York State Commission on Cable Televi-
sion [" Commis sion tt] seeking to impose price regulation on specialized pay
cable was invalid. and enjÇ>ining deíe'ndants from attempting such re.gulation
in the future. We affirm.
... ..
I
. Plaintiffs are five cable television operators. two trade associations and
Home Box Office, a supplier of special pay ca.ble programming. In addition,
Judge Port permitted the FCC and the United States to intervene as parties.
The Commission and its members were joined as defendants by intervenor
National Association of Regulatory Utility Commissioners (UNARUCtt).
This action was commenced in response to New York' 5 scheme for re gulating
cable TV, N. Y. Exec. Law §§811-831 (McKinney's 1972-1977 Supp.) (article
28). The re levant portions of article 28 are set forth in the mar gin. 1..1
1../ u§SlS.·, Duties of the Commission
The Commission shall:
(1) Develop and maintain a statevlide plan for development of cable te le-
vision service 5, 5 etting forth the objective s which the Commis sian dee ms
to be of regional and state concern;
(2) to the extent permitted by, and not contrary to applicable federal law,
rules and regulations:
'(a) prescribe standards for procedures and practices which municipali-
ties shall follow in granting franchises. · · ·
(b) prescribe minimum standards for inclusion in franchises. . . . tt
"§819. Franchise requirement
.1. Notwithstanding any other law, no cable television system, whether
or not it is deemed to occupy or use a public thoroughfare, may com-
mence operations or expand the area it serves after April first. nineteen
hundr~d seventy-three unless it has been franchised by each municipality
in which it proposes to provide or extend service.
[Footn·ote continued on following page]
.. ..
. .... .
Pàge
1186
Report No. 31-17 (4/26/78)
B OOKHA VEN CABLE TV me v KELL Y
. .
The provisions in dispute here concern the setting of rates by the state
and local franchising authorities.
.
The sections concerning rates generated considerable confusion when pro-
mulga,ted in 1972, particularly with regard to special programming on cable
systems. Accordingly, on March 1. 1976. the Commission issued a "Clarifi-
cation of Commis sion Polic.y, " !:./ which indicated (1) that no exemption or
exclusion from franchising and rate approval requirements was intended for
"pay, .. "auxiliary" or "subscription" cable services - the specialized
programming at issue here; (2) that companies already providing pay cable
services would not be required to amend their franchises immediately, but
would have to give notice within two months to the appropriate authorities of
their current ratès, o'r.face "appropriate sanctions"; and (3) that "active
enforcement" .of these policies would be u.ndertaken.
. ........
Plaintiffs sought å declaration that the policies expressed. in the Clarification
violated the supremacy clause of the United States Constitution - because of
alleged FCC preemption - as well as the First, Fifth and Fourteenth amend-'
ments. The district court granted summary judgment on the supremacy clause
claim, and this appeal followed.
1/
[Footnote continued from preceding pagel
,. .
z. A municipality shall have the power to require a franchise of any
cable television system providing service within the municipality t not-
withstanding that said cable television system does not occupy, use or
in any way traverse a public' street. The provision of any municipal
charter or other law authorizing a municipality to require and grant
franchises is hereby enlarged and expanded, to the extent necessa~y, to
authorize such franchises.
;.:;.;-;:
3. Noth.íng in this article shall be construed to prevent franchise require-
ments in excess of those prescribed by the Commission, unless such
requirement is inconsistent with this article or any regulation, policy or
procedure of the Commis s ion. "
U§825. Rates
1. Except as otherwise provided in this section, the rates charged by a~·
cable television company shall be those specified in the franchise which
may establish, or provide for the establishment of reasonable classifica-
tions of service and categories of subscribers, or charge different rates
for differing services or for subscribers in different categories.
2. Such rates may not be changed except by amendment of the franchise.
. . . . . .
......
5. In addition to other powers, the Commission may, after public notice
and opportunity for .hearing, prescribe rates for cåble television service.
..
.. . .
.
l:./ In re Rates Charged by Cable Television Companies Cor .. Auxiliary"
Programming, Docket No. 90010 (Commission on Cable television 1976).
42 RR 2d
Page 1187
~
42 RR 2d CASES
II
We -hold that the FCC has the authority to preempt state and local price
re gulation of special pay cable programming; that it has. exercised this
authority; and that the means it has chosen to preempt state regulation are
adequate and effective.
t. ..' . .
In United States v. Southwestern Cable C,o.. 392 US 157, 178 [13 RR 2d 2045]
(1968), the Supreme Court upheld the FCC's jurisdiction to regulate cable TV
to the extent that such regulation is "reasonably ancillary to the effective
performance of the Commission's various responsibilities for the regulation
of television broadcasting. "
The Court elaborated 'on and expanded this standard in United States v. -
Midwest Video Corp., 406 US 649, 667-69 [24 RR 2d 2072] (1972), in which
it approved the FCC's mandatory cable origination rules as "reasonably
ancillary" to '~the achievement of long-establishe'd regulatory goals in the
field of television broadcasting by increasîng the number of outlets for com-
munity self-expression and augmenting the public's choice of programs and,
.type of service. ,. It follows that the FCC may regulate cable TV if its regula-
tion will further a goal which it is entitled to pursue in the broadcast area.
.. .
'.'
A decision to delay all price regulation of special pay cable meets that test;
a policy öf permitting development free of price restraints at every level is
reasonably ancillary to the objective of increasing program diversity, and
far less intrusive than the mandatory origination rules appro\Ted in Mid\vest
Video, supra. Cf. National Associatiori of Theater O\vners v. FCC I 420 F2d
194, 203 [17 RR 2d 2010] (DC Cir. 1969), cert. denied, 397 US 922 (1970)
(upholding FCC's non - regulation policy in subscri ption television fie ld. pending
é:ìccumulation of expertise. )
Cases relied on b~{ NARUC and the Commission are readily distinguished. In
NA~UC v. FCC, 533F2d 601 (36 RR 2d 393] (PC Cir. 1976), the court ruled
that there was no nexus shown between FCC preemption of regulation of t~/o-
vlay non-video leased access cable channels (used for such purposes as burglar
alar ms) and the goal of increasing program diver sity. Here a connection has
be en shown.
Home Box Office, Inc. v. FCC, No. 76 -1280 [40 RR 2d 283] (DC Cir. March
25, 1977), cert. denied, 46 USLW 3216 (U.S. Oct. 3, 1977) (Dkt. Nos. 76-
1841 and -1842), overturned FCC anti-siphoning rules because of failure to
demonstrate a genuine problem of siphoning broadcast programming. The
FCC~s regulatory g.oal in HBO was not program diversity, as here, but
decreased competition. .
Finally, Midwest Video Corp. v. FCC, No. 76-1496 (42 RR 2d 659] (8th Cir.
Feb. 27, 1978)·, held that the FCC's imposition of minimum public access
and channel capacity standards on cable systems was improper. The .court
ruled that this ~las an attempt to do in the cable field something the FCC was
specifically prohibited from doing in the broadcast area - imposing the
burdens of common carrier s. The far les s intrusive' re gulation' proposed
in the instant case is one which plainly eludes any attempt to analogize the
regulation itself - rather than the underlying policy - to the broadcast area.
... .. ..
f· '
L
Page 1188
Report No. 31-17 (4/26/78)
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.
i ·
BROOKHAVEN CABLE TV INC. v. KELLEY
. That the' FCC hås, in fact, sought to preempt state and :,\~al price reg~la
tion of special pay cable programming is evident [rom ~ ~\1'rvey of FCC
pronouncements in the area since 1974:
"In §76. 31(a)(4) [of 47 CFR] we require that cabl() ~\·~tems, in
order to receive a certificate of compliance, ml1~t ~~.;\\·e a franchise
providing for franchisor approval of initial charge~ ~\'r installation
and regular subscriber service. We have intenti('\:\~"\::)~ and speci-
fically limited rate regulation responsibilities to t!~(' ;\ rea of
regular subscribèr service, and we will continue t" ,~\.) so. We
have defined "regular subscriber service" as that ~~':·\·ice regu-
là.rly provided to all subscribers. This would in~ L~,~c' all broad-
cast signal carriage and all our required access (,..~~;\~~nels includ-
ing origination programming. It does not include ~:'(4~ialized
programming for which a per-program or per-cl1rt;~~~~t charge is
made. The purp.ose of this rule was to clearly f,-~,,',~~ \sic) the
.regulatory responsibility for regular subscriber t~~;,,~. It was not
meant to promote rate regulation of any kind.
n After considerable study of the emerging cable In.~,~~try and its
prospects for introducing new and innovati\~e con1n~,-~~~ications
services, we have concluded that, ëit this time~ tl\~~'~ should be
no regulation of rates for such services at all bv· ~:~\. ~overn-
mental level. Attempting to impose rate regulai1"~~ ,':~ specialized
services that have not yet developed would not on1\' :',"' premature
but would in all likelihood have a chilling effect (\n : :~i' anticipated
.development. n
Clarification of the Cable Televisfon Rules and Notice .'~ -;:'roposed Rule
Making and Inquiry in Docket Nos. 20018 et al.: 46 F(~·'·· ~~J 175, 199-200
[29 RR 2d 1621] (1974). See First Report and Order in :'.,~ket No. 19554,
52 FCC 2d 1,68 [33 RR 2d 367] (1975) ("Although we h~,,' ~'ot ourselve~
undertaken th.e regulation of rates for the sale of subs, I ~'~':ion programming,
we regard our- prior statements concerning the regulaf i";~ ,'f subscription
operations as preempting local regulation of rates as \\ {'.: :\5 program
content. tt) Notice of Inquiry in Docket No. 20767 ~ 58 ¡.','~" 2d 915 (1976).
Finally, we do not believe that the FCC's choice to pr'~. ,"~',1 by means of
policy statements and interpretations rather than forn~;~ ¡ r ~ gulations vitiates
its attempt to preempt. The policy to preerr.Lpt ha~ ber;~ ~houted from the
rooftops, see Schwartz v. Texas, 344 US 199, 2.02-03 (¡-~~2), and the FCC
has explicitly indicated its intent that there be no pricr' \ ,'" ~u lation \vhatever
of the relevant area, see Bethlehem Steel CJ. ~,r. Ne\v \' ,'rk State Labor
Relations Board, 330 U 5767, 773 - 74 (1947). The Con''''~ s sion and NARUC
both participated in the 1974 proceedings cited above t ~ .\.~ ~ad ample oppor-
tunities to attempt to persuade the FCC to their point of ,~e\V - which they did
- and to take an appeal when. they failed - which they' di.} nvt.
" Accordingly, ~'e are satisfied that FCC pree mption ha ~ : ~~~dered invalid New
York's attempt to impose price regulation on special P~\ .'.ible programming,
and that the injunction was properly is sued.
Affirmed.
42 r~t~ :d
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1189