THE FLOWER MOUND ZONING BOARD OF ADJUSTMENT MEETING HELD ON THE 27TH DAY OF OCT 2004 IN THE FLOWER MOUND TOWN HALL, LOCATED AT 2121 CROSS TIMBERS ROAD IN THE TOWN OF FLOWER MOUND, COUNTY OF DENTON, TEXAS AT 6:30 P.M.

The Zoning Board of Adjustment met in a work session with the following members present:

Tina Murphy Chair

Alisa Rich Vice Chair

Michael Doherty Board Member

Scott Brady Board Member

Tim O'Neill Alternate Member

with the following members of the Town Staff participating:

Alan Lathrom Town Attorney

Terry Welch Town Attorney

Danny Hartz Chief Building Official

Dustan Compton Environmental Resources Specialist

Jody Smith Mayor

Laurie Long Council Member

A. CALL WORK SESSION TO ORDER - 6:00 P.M.

MR. HARTZ called this portion of the meeting to order at 6:14p.m.

B. OIL & GAS ORDINANCE PRESENTATION

C. WORK SESSION FOR LEGAL TRAINING

MR. WELCH stated that he would like to talk about some of the legal issues associated with the Zoning Board of Adjustment (ZBA) and as Board members some issues that they would confront both in their official positions dealing with variances which was about ninety-nine percent of what they would do, the other one percent oil and gas and then a third component on some of the ethical issues that they might face. He stated that he wanted it to be very informal and he wanted them to stop him at any time if they had any questions. He stated that they had two handouts, one was a PowerPoint presentation and one was a book on the basics of Planning and Zoning in Texas. He stated that Robert Brown and he did teaching at the Council of Governments a two day training seminar for Council Members and Planning and Zoning Commission Members around the metroplex. He stated that was the book that they used, that they put together over the years. He stated that there were a lot of things in there that did not relate to what they did, but about three or four chapters into it there was a chapter on the ZBA. He stated that rather than doing a cut and paste he thought he would just give them the entire book. He stated that late at night if they could not get to sleep, that might do the trick. He stated that their roles as members of the ZBA were guided by state law. He stated that they had Town ordinances that addressed what they did, but it was taken directly from Chapter 211 of the local government code, which was their authority to act as members of the ZBA. He stated that there were four basic topics that the ZBA would consider. He stated that the first was to hear and decide appeals when there was an error made by an administrative official, for example if Danny as a Building Official refused to issue a building permit to someone. He stated that they had many hats that they wore on the ZBA. He stated that not only did they hear zoning issues, usually when a variance was requested, but they were the appeal Board for about four or five different areas, building permits, building code, electrical code, plumbing code, energy code and the residential code. He stated that there were different things they would hear if someone alleged that there was some sort of problem. He stated that he would be the first to admit that if someone came to him with an electric code appeal he would rely very heavily on Danny's expertise in responding to that. He stated that in fifteen years at the Town he was happy to say they had never had an appeal based on one of the specialized codes or uniform codes that the Town had adopted. He stated that on an appeal of an administrative order, he could probably think of two occasions in ten or twelve years, where someone had filled an appeal. He stated that one of those was in regards to the Town's tree ordinance, a developer had cut down a bunch of trees over a weekend and then a fine was assessed, those were administrative fines, then the person who received the fines appealed them. He stated that it was eventually resolved without the Board hearing it. He stated that there was another case involving part of the subdivision ordinance in a playground and a decision was made by an administrative official about what was required under zoning code in the park area in a subdivision, they went to the ZBA and appealed that decision. He stated that at the meeting the Board heard the appeal and made a determination and through some negotiation with the person that filed the appeal, it was resolved. He stated that those were the only two issues. He stated that the one involving the park in a subdivision was ten to twelve years ago, so he did not remember all of the specific details of that. He stated that they did not get many appeals, however the ZBA did hear appeals when there is an alleged allegation that an administrative official made some sort of error in interpreting one of the codes. He stated that the second one was hear and decide special exceptions to the zoning ordinance. He stated that it was one that they would probably never encounter on the ZBA. He stated that special exception tended to be, if they looked in their zoning ordinance there in Flower Mound, if they looked at Specific Use Permits (SUP) were special exceptions, so they really did not handle special exceptions through the ZBA, they handled them through the zoning process. He stated that they had never had an issue in fifteen years come up dealing with special exceptions. He stated that in a sense that was covered in the zoning process itself. He stated that about ninety-nine point nine percent of what they would hear would be variances from the terms of the zoning ordinance. He stated that it came straight from state law, it was also in the code of ordinances and it said if the variance was not contrary to the public interest due to special conditions a literal enforcement of the ordinance would result in an unnecessary hardship. He stated that they made variances so that the spirit of the ordinance was observed and a substantial justice was done. He stated that he would talk a little bit more later about variances, that was really kind of key of what they did. He stated that he had some observations from doing it for many years, if they looked at variances very strictly, if they looked at the ordinances and state law very strictly, they would never grant a variance, because if they took a very harsh or very strict approach, whenever someone wanted to vary the zoning ordinance, he could think of a lot of reasons why they would not want to vary a zoning ordinance. He stated that they looked at special circumstances and unnecessary hardships and made those decisions. He stated that they would talk a little bit about that in a minute. He stated that was certainly the bulk of what the ZBA did. He stated that there was a catch-all under state law that said they could hear and decide any other matters authorized by an ordinance adopted in that subchapter. He stated that they had done things where they allowed them to hear certain things that were not variances and were not zoning related. He stated that they had given them the authority and they had the authority as a home rule city to let them hear other things, the plumbing code appeals, a plumbing code issue for example would not be a zoning matter under state law, but they had the authority to let them hear other things. He stated that oil and gas was going to be a perfect example, oil and gas appeals, if someone wanted a variance from a setback requirement. He stated that they had the authority to hear that. He stated that in the ordinances they declared the ZBA to be the Oil and Gas Board of Appeals. He stated that it was interesting that they looked at state law and if all they had to do when they came in there was say here is what state law says and hear is what you can and cannot due, they would be pretty much up against the wall. He stated that the term variance was never defined anywhere in the state law. He stated that the local government code never defined what a variance was. He stated that the law just said a variance from a zoning ordinance and that was all it said that they had the authority to handle. He stated that case law actually was not very good in Texas either. He stated that there were not a lot of cases about ZBA. He stated that one of the things during the presentations that they did for the Council of Governments, it was always interesting when they talked to people who had been on Planning and Zoning Commission (P&Z) and people who had been on ZBA. He stated that there tended to be a real strong desire to be on P&Z in lots of cities and he had seen people actually say, they wanted to be on P&Z, but they got ZBA instead. He stated that what was interesting about that was P&Z only had the authority that Council gave it, in some cities it had no authority whatsoever, it was purely recommending. He stated that in Flower Mound the P&Z had a little more authority than that and they could approve plats and all that at certain stages in the process. He stated that what was interesting was that ZBA had far more authority than P&Z and quite frankly they had the authority to trump the Town Council and they had the authority legally to trump the zoning ordinance. He stated that if someone did not like what they did they would have to take them to court to overturn it. He stated that some of the case law that was out there with ZBA's actually came from the City of Dallas, where the City of Dallas had sued its own ZBA, because they did not like what the ZBA had done and they were in the same boat as a neighbor who did not like what the ZBA had done, they had to go to court and there was a special procedure they went through in court to address something that someone did not like about ZBA.

Muffled sound

MR. WELCH stated that he did not think so.

MR. HARTZ stated that if they could, they should try to turn their microphones on.

CHAIR MURPHY asked if that was something that they needed to concern themselves about as far as a Board was concerned. She stated that she realized that they were not held individually responsible.

MR. WELCH stated no, as a practical matter it was not something that they had to be terribly concerned about. He stated that having done that for twelve to fourteen years there in Flower Mound, he could not think of any time when the ZBA had done something that had caused the Council to recoil in horror of what they had done. He stated that in Dallas there had been some issues, for example there were a lot of issues on lower Greenville Avenue about parking and the ZBA was going to start doing some things that would limit parking on lower Greenville Avenue and the Council Member from that part of town and several other Council Members were extremely upset with what the ZBA was considering, and they came out publicly and said that if they were to do that they would take them to court. He stated that they worked out some sort of compromise so that never happened, but Dallas had actually sued its own ZBA over the years. He stated the reality was that when that occurred he could not represent anyone in that situation, because he represented the Council and the ZBA, so he could not represent anyone. He stated that the Town would have to hire Council and the ZBA would have to have the Town hire council for it. He stated that needless to say it could be an ugly political situation, in Dallas that was exactly what it had been when it occurred. He stated that sometimes after those situations they would find, a least in Dallas, that there were new members on the ZBA shortly there after. He stated that it did happen. He stated that going back to variances; the law dictionary describes it as permission to depart from the literal requirements of the zoning ordinance by virtue of unique hardship due to special circumstances regarding a person's property. He stated that was pretty much what it was, it was permission to vary from a cities zoning ordinance. He stated that one of the key issues was unnecessary or undue hardship, in essence they were telling someone they could violate the zoning ordinance because there were such unique circumstances on their property or in their situation that required it. He stated that a gentlemen that used to be the City Attorney in El Paso over the years did a study of ZBA's around the state and it was amazing because most ZBA's acted in virtual anonymity, if they went to a ZBA meeting they would see four or five people in the audience because they had something on the agenda, they did not get large public turn outs for the most part. He stated that was true everywhere in the state. He stated that one nameless city that they represented, they found out and again they did not represent them at the time, but over about a twenty year period they had granted variance on a majority vote, three out of five. He stated that was a clear violation of state law. He stated that it was kind of hard to go back and undo something that was done in 1967 or 1974, but no one ever challenged them on it, because most of the people that went to ZBA for variances got it and they were not going to challenge it because they got what they wanted, so they did not find much coming from it in terms of law suits. He stated that one reason Alan would be there for them was to address that very issue, to make sure that they followed all the procedures and they did the right thing. He stated that in essence they were going to be sanctioning violations of the zoning ordinance that otherwise would result in someone being fined. He stated that again special exceptions was a use that the zoning ordinance permitted, but because of situational suitability, they looked at that, and again they handled that by SUP process, if someone had an industrial zone and they wanted to have a helicopter landing pad, they would normally have something like that as an SUP through their zoning ordinance because if they had high tension wires going through an industrial zone, they did not want to say they could have a helicopter landing pad as a matter of right, they wanted to look and see if it would fit there and if it would fit then they would consider it. He stated it that they did that by SUP and they could do that by special exception to the zoning ordinance as well. He stated that again it was kind of based on situational suitability. He stated that use variances, even though there was an old Texas case out there from probably about seventy years ago that talked about use variances being okay. He stated that the ZBA could not legally grant a use variance, again variances were generally things, probably the biggest reason they would have a variance would be some sort of setback issue, setback from a property line or a front/rear setback or side yard setback that was the typical thing they would see with that type of variance. He stated that if someone came in and they had residential property and they said they wanted a variance so they could open a business on that property, even though there was one old Texas case out there that said that, because that was changing the zoning on the property, that was not a variance. He stated that in one sense they would be varying use of the property accept the ZBA was not allowed to do that in Texas. He stated that for a change in zoning they would have to go through the process where it went to P&Z and then to Council after that. He stated that unnecessary or undue hardship was the reason for granting a variance. He stated that state law never defined what an unnecessary or undue hardship was, it just said if there was some unnecessary or undue hardship they could grant a variance. He stated that even thought the case law out there did not define it, case law did define what it did not include, so it was kind of an odd thing to deal with and it got into some issues that they would possibly have to deal with. He stated a property that could not be used for its highest and best use was really more of a concern in terms of looking at the value of property, if they condemned property what would be the highest and best use for that property that was not really something they were concerned about. He stated that if property had residential zoning on it, say single family zoning, a landowner would make more money selling the property for a multi family use, than they would for single family use, again that was not their decision, they did not deal with that. He stated that it would possibly be an appraisal type of issue when they appraised property, but they did not care about that when granting variances. He stated financial and economic hardships was one of the considerations that was pretty dicey out there when they considered things. He stated that the traditional or standard example of a variance was someone built a house and the builder made a mistake on the fireplace and the fireplace went over the side yard setback line, so they had a foot and a half of the fireplace over the line. He stated that they had two options there; option number one was the city would go out and say the setback line had been violated; tear down the fireplace and option number two was they would go to the ZBA and get a variance because of the error. He stated that had a financial implication, if they told someone to ripe down their fireplace and build a new one; there was obviously a financial impact there. He stated that they did not look at something that was purely a financial impact, it could be a component that was fair game, but when it was pure and simple a financial thing it would cost them more to comply with the ordinance than they wanted to spend, that would not be a valid reason, the fact that there may me some attendant financial impact would be okay. He stated a self created hardship, they had one of those come up probably eight or ten years ago and he used that example when he taught the class. He stated that a guy came into the ZBA in Flower Mound and he wanted a variance because they had built a pool in his backyard and the concrete around the pool crossed the property line into a Town park and he wanted them to grant him a variance to that and the ZBA not only said no, but they said more than that. He said that number one he wanted them to sell him the park and the only way they could do that under state law was if they had an election selling the park land, but number two he created the hardship, he built the pool and the deck around the pool knowing full well that it crossed over his property line and into the park and then to come in and say he did it knowingly and now he wanted them to bless it, kind of that better to receive forgiveness than permission and the ZBA said no. He stated that the ZBA said that was a situation that he created and again it was not a setback issue, it was on their property. He stated that eventually he did remove it, because he had no other option but to remove it. He stated that was a self created hardship and it was not a reason for granting a variance. He stated that the development objectives of the property owner would be frustrated. He stated that they could have a nicer pool if they crossed over their property line or a bigger pool area if they crossed over all of the setback lines, and that would possibly make the house more valuable to have a bigger or nicer pool in the backyard, but they would not really look at that when making that determination about whether it was an undue hardship or unnecessary hardship in that situation. He stated that in the book there was findings for variances, if they met them they could go on, if they did not they would get kicked out etc. He stated that one of the things the ZBA had done over the years that he wanted to compliment them on was that they had a lot of discussion of issues and when they would deal with variances particularly with variances since they could go into court over those. He stated that when they went into court on that type of lawsuit, say a neighbor wanted to file a lawsuit, they did not go into court like they normally went into court, there was a special procedure called the writ of certiorari and it was kind of an anomaly of Texas law and what it was, they did not go in and start doing discovery and taking deposition, they looked at what the city did and they looked at the record and the record would be the agenda packet and the minutes of the meeting and any decision that they made. He stated that the court looked at that and they could allow some further testimony, but the court did not consider if they would have granted the variance or not, and they did not get a jury in that situation, so they did not look at it and say what they would have done if they were sitting in the Board's position, they looked to see if there was any basis justifying the Board's decision. He stated that was why one of the things that the ZBA had done very well over the years was have discussion on the record, they had tape recordings of the meetings and minutes of the meetings. He stated that when they had their discussion back and forth with each other on the Board or with the applicant or with members of the public who wanted to speak in favor or against the matter, all of that was put in there and when they made a decision it would be far easier for them to defend the Board should someone challenge the decision, when they had that record. He stated that they could show the court that someone came in and requested a variance two people spoke for it, one person spoke against it, obviously the applicant spoke for it, the ZBA addressed questions to the people, they asked question, they flushed out the details and then they made a decision. He stated that was a good thing, it said there was a basis for the decision. He stated that the cases out there that shut down the ZBA where when there was no record at all. He stated that if the applicant had a request for a variance and they open the public hearing and the applicant said that they requested and variance and they would like them to grant it, thank you, then they sat down and the ZBA said okay lets take a vote, there would be no evidence in the record for a court to rely on, so that would become very problematic. He stated that the other situation they would find was if someone used an impermissible reason, an example would be; they would not permit the variance because they were African-American. He stated that there were some cases out there years ago where that actually was the case; fortunately they were long past those days. He stated that when they had their discussions on the record it was a good thing, because it would build the record for someone who would challenge. He stated that they had not been challenged in Flower Mound on one of the ZBA cases; he stated that they had a few threats over the years, but no one had actually gone forward with it. He stated that he thought it was because they had a very well developed record to go in there and defend a decision that the Board made. He stated that special ZBA considerations in Flower Mound were things that they could do that were not just variance related, but they could hear appeals. He stated that they could hear appeals when an administrative official made a decision, but they also could make decisions when they heard appeals related to the uniform plumbing code, mechanical code, electrical code, swimming pool code, and tree code violations. He stated that it came straight out of the ordinance what they could do about variances and modifications to height, yard, area, it covered parking regulations and to hear and decide special exceptions reconstruction of non-conforming buildings, expansion of non-conforming buildings, discontinuance of non-conforming uses and although it is not a special exception, they could acquire to the existence or maintenance of any non-conforming use. He stated that one of the issues that they got into and most ZBA's around the state did not do that and Dallas had done it and all the case law out there came from the late 1980's, Dallas had a lead smelter in Oak Cliff for years and years and what they did was it was a non-conforming use, it was in the middle of a neighborhood it had been there for years and what it was, was a non-conforming use and a non-conforming structure it had EPA type emissions issues etc. He stated that when someone had a non-conforming use of property they wanted to get rid it. He stated that there where two ways to get rid of it number one would be to wait them out, until they went out of business, that could take years or there was a special process called amortization and amortization was they could either buy them out or they could say the youthful life of their building was x number of years and they would have to hire accountants and some people with specialized knowledge to address that issue. He stated that what they did in Dallas was they hired the people and they said you have x number of years that they could operate the business and when that time came for them to close the business they went into court. He stated that they could use that process as well. He stated that for the most part they were a relatively new community and they did not have all the non-conforming use issues. He stated that for example if the Council decided to rezone the Kroger area into Single Family Residential, all of the sudden Kroger and all those businesses would be non-conforming at that point, non-conforming uses, non-conforming buildings etc. He stated that they would have two options, wait them out until they went out of business and then when they all went out of business they would be gone and they could build single family residences or they could amortize them and give them x number of years or buy them out and make it single family, needless to say cities do not buy out businesses so the amortization process is used sometimes by cities. He stated that they also had the authority to permit variances and modifications to the sign regulations. He stated that he did not think he had ever seen one.

CHAIR MURPHY stated that they had heard a few.

MR. WELCH stated that again building code, fire code etc., they had that authority too. He stated that he could not think of any fire code appeals they had ever had.

VICE CHAIR RICH stated that they actually had one, someone had built a patio that extended over a walkway and someone from the fire profession came out and they had to remove their posts.

MR. WELCH stated that was probably related to the zoning ordinance.

CHAIR MURPHY stated yes.

VICE CHAIR RICH stated that it was a fire violation.

CHAIR MURPHY stated that there was also one with a storage building to close to a house, but the fire factor came into it.

MR. WELCH stated that the oil and natural gas ordinance was passed about a year and a half earlier. He stated that in that they acted as the Oil and Gas Board of Appeals. He stated that they would hear cases alleging error or abuse of discretion regarding the issuance, revocation, or suspension of a permit that was granted by the Oil and Gas Inspector. He stated that the one that they would hear the most of would be the setback variances that would be allowed under the oil and gas ordinance. He stated that they would talk more about that in just a second, which was right then. He stated that it was passed after a lot of study. He stated that the ordinance on the internet website for the Town was about sixty-nine pages long and there were a lot of issues that were very technical that the oil and gas inspector would deal with. He stated that some of the questions he was going to try to answer briefly were, why did they regulate oil and gas operations, what oil and gas activities did the ordinance regulate, how did the ordinance work, where did they anticipate oil and gas operations and what was Council and ZBA's role. He stated that when they started looking at the ordinance two and a half years ago oil and gas drilling ordinances in Texas where all over the place. He stated that for example Corinth said no oil and gas activities anywhere in the city period. He stated that he understood that they were reconsidering it and that they were now changing it. He stated that other cities had very detailed ordinances and some did not have detailed ordinances. He stated that for a state that had such a long history of oil and gas operations they would anticipate that they would have a big body of case law out there, but there really was not and it was somewhat surprising. He stated that there where obviously unique environmental and public safety concerns with those types of operations and they did not have any specific rules and regulations covering that type of land use. He stated that oil and gas production had come to Flower Mound, particularly natural gas. He stated that they already had wells that had been permitted. He stated that in the area around Lake Grapevine there were over sixteen hundred oil and gas wells and actually there could possibly be more than that. He stated that several Flower Mound land owners had already acquired or where in the process of acquiring state drilling permits and Town permits. He stated that under the ordinance they regulated oil and gas well exploration, development, production and the abandonment of the well after production. He stated that well location setback requirements, a lot of technical requirements, insurance and bonding requirements were all contained in the ordinance. He stated that one of the concerns they had was a lot of the trucks that used roadways could really rip up a roadway, on a state highway it might not be a big deal, but they get on residential streets and they could really tear up a street. He stated that site clean-up, making sure the sites did not get dirty and the nuisance issues that might be associated with it noise, odors, whatever. He stated that one of the key concerns was fire and emergency response safety requirements. He stated that what a lot of cities did was use zoning as a basis for granting oil and well permits and if they were in that type of zoning classification or zoning district, they would or would not get a permit. He stated that they had looked at that issue, no case law in Texas on point. He stated that they had very serious concerns about using zoning districts as a basis for who did and did not get a permit. He stated that there were a couple of reasons; one was the whole idea of takings. He stated it was unconstitutional to take property without compensation. He stated that there were two estates on estates on any piece of property, there was the mineral estate, the subsurface estate and there was a surface estate. He stated that the takings issue was for example if the Town came to them and said they had zoned the property for a park and they would never be able to use their single family lot for a single family residence; that would be a taking of property. He stated that if they were going to take their property and use it for a public purpose they had to pay them for it. He stated that when they looked at the subsurface and surface estate issues, the normal case in Texas, like with his house and their houses, was that they owned the surface estate, but he would guarantee them they did not own the subsurface estate of their property, someone else owned that. He stated that they could not have an oil well in everyone's backyard, if they looked at the pictures of spindle top back in the 1900's, they had oil wells everywhere. He stated that the state had regulated all of that. He stated that the question that they got into was, if on the surface, no matter how large it was they did not let them mine the subsurface estate, was that a taking of property. He stated that because they owned property the subsurface estate had value, but if they could never access it, then there could be a legal issue associated with it. He stated that they could have limitations on that. He stated that they did not allow everyone in there backyard to have an oil well or natural gas well, but one of the concerns was, when they looked at the estate as a surface and mineral estate issue and look at the takings issue, they were not really based a lot on the zoning concerns. He stated that the fact that it was a single family, multi family or industrial zone really was not a key issue in that analysis.

BOARD MEMBER DOHERTY asked if in regards to the taking and that could be the appropriate place to ask the question or not, because it kind of fell into later on when they got into alternate well sites. He asked if he said it was against state constitution to prevent someone from being able to drill or mine the mineral resource that was underneath their property.

MR. WELCH stated that it was subject to the police power, to have reasonable regulations.

BOARD MEMBER DOHERTY stated that he was not sure if he understood that. He stated that he wanted to ask his question. He asked if the primary proposed location to mine the minerals underneath a piece of property was in conflict with the ordinances, but there was an alternate location on the same surface piece of property that the subsurface mineral could be acquired, which would cause a greater increase in cost to the applicant to have to mine it, because they would have to mine farther or go more lateral or what not, was that a consideration to them in terms of undue financial hardship.

MR. WELCH stated that he thought it was a consideration, for example if they had situation where he wanted to drill a well in location A, and location A was cheaper than location B, they were all on his property, but location A was within three-hundred and fifty feet of a residence. He stated that the thought they could say he needed to go to location B, they would not grant the variance for location A. He stated that if it was within three-hundred and fifty feet of a residence they could not grant the variance, because there was a five-hundred foot minimum. He stated that in that situation the thought that they were okay. He stated that they had to articulate a reason for why they would tell someone to go to B and not A. He stated that he did not think they could be arbitrary, they could not say they liked B better than A. He stated that they had to tie to specific issues, number one are they in a floodplain, was there some issue there, was there some ecological issue why B was better than A or A was better than B. He stated that was where they needed to develop the record, if they had to go into court someday and it, why did they choose A over B or B over A for the site of the well. He stated that they had to have some basis for that other than, they just liked it better. He stated that their role on ZBA as the Oil and Gas Board of Appeals was to flush it out and come up with a reason why one was better than the other, if they did not have variance issues out there. He stated that if it was just flat land and there was nothing else out there, they would have to articulate a good reason why one was preferable in to the other, to defend that decision.

Muffled sound.

MR. WELCH stated yes.

VICE CHAIR RICH stated that she was sorry.

MR. HARTZ stated that they just wanted to get it on tape so they could do the minutes.

VICE CHAIR RICH stated that obviously they had come to them with a variance because of special conditions on the land that required a variance, so the issue was more that there had to be a reason and they needed to clearly state their concern as a Board to why they were requesting or denying the variance.

MR. WELCH stated that technically they come, if the Oil and Gas inspector said they would not give them a permit, they did not violate any of the regulations, but they just would not give them a permit. He stated that they would not technically be seeking a variance, but they could still come to the Board as an appeal to that decision, if they needed to. He stated that most of the time they were going to see it in the variance context.

VICE CHAIR RICH asked if there was size of land in which the Town allows gas and oil drilling and was there a land size in which they did not. She asked if she had two acres and she was out west, would she have the rights to sell the mineral rights there.

MR. WELCH stated that they looked at the specifics of the oil and gas ordinance and they did not tie that to the land size, whether it was two acre of six acre. He stated that they looked at the physical characteristics of the land, if there was a residence on those two acres, there could be a problem with the siting of a well on that lot or tract of land. He stated that if there was an ecological feature out there, there could be a problem with that, if they were in the floodplain there could be a problem with it. He stated that they should forget the zoning map when they looked at it and look at all the other features and see. He stated that was what the Oil and Gas Inspector did. He stated that they looked at all the other features and then they would come back and say, it could not be within one thousand feet of a residence and all that and they were okay. He stated that if that was the case then they would grant them the permit administratively and if they got into the problem where the Oil and Gas Inspector just said no, he was not going to do it or there was a variance issue that was when they would get involved in it.

VICE CHAIR RICH stated that when the Master Plan said, that area was going to be residential, that was not their concern.

MR. WELCH stated that was right.

VICE CHAIR RICH stated it was more the concern of the topography and other issues related to it.

MR. WELCH stated that was exactly right. He stated that technically all of the area in the Conservation Development a large portion of it was agricultural and that had a residential component. He stated that they could put houses on two acre lots out there, so that would not be much different than putting it, he stated that putting it on the east side of Town would be very difficult because of the number of house and the proximity, but they did not look at that, they just looked at the situational issues with the well at that location.

CHAIR MURPHY stated that the drilling that was going on off of 1171 did not have any issues that needed to come before a variance.

MR. WELCH stated that as he remembered, it could be approved administratively, because there were no variances requested and they met all of the requirements.

CHAIR MUPRHY stated that she thought it was the one they had talked about at 377 and she left and went holy moly, it is right there.

MR. WELCH stated that the one that they discussed last year was the first time that they had any variance requests before ZBA.

BOARD MEMBER DOHERTY stated that in regards to the one that Tina was referring to, at the last ZBA meeting three or four members of P&Z came and spoke and were expressing the opinion that perhaps the ordinance needed to be revisited. He stated that the question was could the currant ordinances be changing in the near or distant future from what they were.

MR. WELCH stated that at the staff level they had talked about, every time they would deal with the ordinance and they had applicants come in, they could see things that they wanted to tweak. He stated that he had come across some language that they probably needed to clean up a little bit, just because going through, it was like a zoning code, no matter how good they thought it was after they went through a year of it, they would kind of go, maybe we need to change that a little bit, because when they came in with the special circumstance they did not have the language in there that they needed. He stated that he thought they had a fantastic oil and gas ordinance. He stated that there were some things that he thought they might tweak. He stated that he did not think they were going to tie it to zoning classifications. He stated that it would not be his recommendation for all of the reason he had just stated. He stated that he would have some serious concerns about that particularly with the takings issue. He stated that some cities did.

CHAIR MURPHY asked if they had the ordinances in their book.

MR. WELCH stated that the oil and gas ordinance was not in it, it was about sixty-nine pages.

CHAIR MURPHY asked if it was on the website.

MR. WELCH stated that it was on the website.

BOARD MEMBER BRADY stated that his concern about the ordinance and he had a question that hopefully he could answer. He stated that they had all of that property that they would hope from the cities prospective that ultimately would become residential as an example, and that was what all the economic models were based on for tax base and all those kinds of things, if they allowed the wells to go in and because the well was there the setback requirement for residential was a reverse, it was not the well going in after the residential was in place, it was the well was in place and now they had a setback for residential which wiped out huge areas of land that were in the financial economic model as being taxed based residential or taxed residential housing. He asked if that was an issue that they as a city could be concerned about.

MR. WELCH stated that there were a couple issues related to setbacks in residential that he thought having talked to Julie Smith that they were going to look at to maybe add to the ordinance. He stated that one of the issues that they would get into was, as a practical matter what they were seeing with oil and gas was those going in on tracts of land that were relatively large and tended to be under common ownerships and with that if someone came in and wanted to put in well that could very well have implications on the ability of that land to develop single family residential or anything else. He stated that he was not sure if they had the ability to say, they could not put the well there, because they had it the Master Plan for residential, because they simply did not know where someone was going to put a well and it was their property and he thought that they had a right to use their property according the regulations. He stated that when they looked at areas in the western part of Town that were single family residential on the Master Plan, if they came in and a well went in there, then that could box out houses going within a certain proximity of the well. He stated that he thought that it was the landowners land and that was a certain choice or decision that they had to make.

BOARD MEMBER BRADY stated that he did not disagree, but it was just a shame that there was some very beautiful property that was going to be ruined, in his opinion and maybe there was nothing they could do about it, but for future tax base and development he would like to see if someone came in and they had a large tract of land that they wanted to put wells on, he would like to see the impact or what the future development could look like per the present zoning that they had at the city for that zone in the Master Plan. He stated that basically they would say that land was zoned residential in the future if they were going to put a well on it, that would impact the ultimate development per the Master Plan, so if they were going to do that they would have to show them how it could be developed in accordance with the Master Plan and the impact the wells would have on that development. He stated that he was questioning if they had the right to do that.

MR. WELCH stated that he thought that one of the problems they were going to have was, take a make believe tract in the western part of Town with one hundred acres and someone wanted to plop down a well in the middle of it. He stated that right then if they came in and met the criteria, they would get their permit for their well. He stated that to say how would that impact the development of that property, it would be difficult to get them to give them that information, because the Master Plan talked about certain sizes of lots and they used verger terms in the Master Plan than they used in the actual zoning ordinance. He stated that for example, the area was all agricultural, that was a minimum two acre lot, however if they did that with the Conservation Development, there could be smaller lots or if they decided to do something like Tour 18 they would have five acre lots. He stated that it was kind of a guessing game about how that may eventually develop. He stated that there could be market factures that would be years down the line. He stated that he understood the concern, but to try and say, tell us how that will impact development, he thought the response would be, they had no idea how that would affect development, the Master Plan said that was the minimum that they could put in there, but they may put something bigger, but there was no market for it right then. He stated that it was a lot of guessing at that point in time.

BOARD MEMBER BRADY stated that maybe it would just be a plan that would say, those wells would prevent any kind of development for that radius around the well. He stated that they would just superimpose radiuses on the property for the wells, so the Board would understand that property would never be developed, as long as the wells were there, they were going to lose any hope for tax base on that piece of land.

MR. WELCH stated that to some extend that was what they did. He stated that when Dustan and Bill looked at a permit coming in, they kind of did that.

CHAIR MURPHY stated that Mr. Welch mentioned someone that they had not met.

MR. COMPTON stated his name was Dustan Compton and he had just started with the Town about three months ago and he was sitting in for Bill Forbes, the Oil and Gas Inspector.

CHAIR MURPHY stated that with new corridor it was not incorporated in the Master Plan as far as the residential part and that was why they were meeting where they were meeting. She stated that she agreed with him, that it was a shame, but she thought it was there and they had to make the decision based on the information that they had that day. She stated that so far the ones that they had looked at had been the individual homeowner or the property owner that did not have the problems with it. She stated that she thought they needed to be conservative and ask a lot of the right questions, but she did not think they could even consider future development, that they did not even know what it was yet.

BOARD MEMBER BRADY stated that he thought it was important for them to understand the rules and once they understood the rules then they would apply the rules. He stated that he thought the city ought to do something about panelizing the tax base, because he thought that it was a problem and it would be problem to the future development of the city that had been overlooked or not considered in the ordinance. He stated that was his personal opinion. He stated that now that he understood the rules he could certainly apply them as a ZBA Board member. He stated that he thought it was a problem.

MS. LONG stated that she thought the Board had done an excellent job of addressing some key concerns at the last meeting. She stated that a lot of the questions that she had a council person and a member of the community was that she felt like they needed to be proactive and consider the future development and how the oil and gas wells would really negatively impact the overall tax base. She stated that if they could not do it with the ordinances as they were currently written. She asked what they could do to be more proactive and to be more conservative. She stated that she thought that was part of what some of the other P&Z members were also saying, that they really needed to look at it, because if they could go in with the current regulation and current ordinances, the whole west end potential was shot, was totally shot. She stated that nothing would develop, no commercial or no residential because it had the potential to have so many oil and gas wells there. She stated that even thought the revenue that they were going to get on the short end sounded good, it was a limited resource and Flower Mound was going to be there forever and they needed to consider the long term effect. She asked what they could do as a council or as a Board.

MR. WELCH stated that one of the things that they looked at close to two years ago was they actually went out to the west end, he was not sure if it was Bill who did it or Timothy Riley, but they basically did a map of where people could drill. He stated that there really were not many places in the west end where they could drill, due to a lot of the ecological features out there. He stated that it was a concern, were they opening up the west end of Town of be nothing but gas wells or was it going to be limited. He stated that they had the maps that showed what area that they could actually drill in with those limitations. He stated that when they threw in the setbacks for floodplain, they got a good chunk of the area off the map and residences got a good area off the map. He stated that they also looked at the property tax implications one of the concerns they had heard about why it was such a wonderful thing for the Town, was that they would get a big wind fall of property taxes. He stated that Harlan did some analysis on that issue and they would get some property tax off of it, but like anything as the production decreased, so did the property tax amount. He stated that sometimes he thought that people had the idea that if they had natural gas wells they would just be getting checks all of the time and it really was not a cash cow like everyone thought it would be. He stated that everyone was thinking of Alaska and the oil and everyone in the state getting checks from the stated government and it was nothing that good.

BOARD MEMBER BRADY stated that what was happening and what they were beginning to see on the Board based on the last meeting, was that the study may have assumed that people would not go for variances, because now they were going for variances and the study was based on the ordinance. He stated that was why they were having those things come in every meeting because they wanted to reduce down to the five hundred foot minimum, which completely changed the matrix of the study. He stated that he did not know if they realized the degree that those people would go to, to try and improve their position like doing hydrology studies on the floodplain and having people come in and say that the hundred year floodplain was wrong, that there were new lines that needed to be drawn for the floodplain. He stated that he could see how on a surface study, not considering those things could potential yield the conclusion that they came to, but that was not what they were seeing on the Board.

MR. WELCH stated that they did take a lot of that in consideration when they considered the adoption of the ordinance, for example on the issue of the floodplain, when someone came in and said the floodplain maps were wrong, their response was that may be the case, however there was a process that they had to go through to have that changed and that would mean going to the Corp of Engineers or FEMA and there would be a lot of issues associated with that. He stated that the floodplain lines could be changed, but it was a detailed process and if the federal government decided to change it, that would be out of their control, but when someone came up to him and said the floodplain map was wrong, he felt very comfortable telling them that they got the floodplain map from the U.S. government and until that is changed that would be their floodplain map. He stated that he did not have any hesitation saying they denied the variance because of violation of the floodplain setback. He stated that issued had come up and yes there would always be variances, but so far they had only had one round of variance, in the one or two gas wells the last year. He stated that he knew they were considering other then. He stated that they went through lots of study trying to address those very issues. He stated that it was not the Town's position, but his position would have been if they could just deny them all outright that would be fine with him. He stated that legally they would be at risk doing that and that was why they went a route that was defensible that allowed a reasonable amount exploration, but would not have natural gas wells every one-hundred and fifty feet out in the west end. He stated that one thing he had heard and he was not sure of it was true, was that some of the wells in that area had not done very well. He stated that he had heard about one or two specifically. He stated that it was purely anecdotal, he had no idea if that was correct or not. He stated that might be a bigger determinate than anything else about how many natural gas wells they would get.

VICE CHAIR RICH stated that one of the issue that they needed to be aware of was they had an three Engineers on the Board and many of them dealt with clean-up, that was specifically what her business was to clean-up a lot of oil wells, land fills, messes. She stated that he had mentioned the point on footprints, if the oil well had an available footprint what she saw an issue was that they needed to look at, was the reason why he had said that it had a footprint was because it was not in a floodplain area, it was not in a ecologically sensitive area. She stated that the property could only sustain so many foot prints. She stated that she looked at the fact that they had not developed schools out there. She stated that if they put an oil well in one of the limited footprints of a hundred acre property, they had now removed the option for a school; they had now removed the option for something else to develop there, because there was an impact of the development of that property. She stated that was a concern of hers. She stated that in the geological removal of oil, what they would wind up doing was drilling their optimum well first, they would stick the well in the ground in the best place they could stick it in the ground, at times it would not produce or at times it produces for only a period of time and then they would need to re-drill, like they would stick a straw in their slurpee over at seven eleven, when it went dry they would need to re-drill and that was an option that the driller or the property owner had, to say they wanted to drill another well. She stated that would then impact another footprint, so they would have a footprint that she would say was removed from use from the first well and they would have an option when that went dry to come in and redo another well, which would take up another footprint of something that could be an issue down the road, which would directly impacted the development and the ability to benefit economically from a developed area was schools, something as simplistic as schools. She stated that she was not an advocate of placing schools near oil rigs, absolutely not. She stated that she was a capital environmentalist, she stated that she looked at, this benefits the Town and benefits a lot of other ways, but the quality of life was very important. She stated that the Town of Flower Mound had done a very good job protecting the quality of life. She stated that quality of life also benefited them by the economic dollar, as anyone in planning or urban development would know, if they had a lower quality of life for the residents, they would have a low economic standard that was brought in. She stated that a higher economic life lead directly to a better economic standard for the Town in itself. She stated that her concern was kind of a double whammy of just what was address earlier, she wanted to optimize everything they could for the financial basis, but she did not want to sell today at the expense of tomorrow. She stated that was a major concern of hers. She stated that many of the oil rights had no end period and that was also a concern of hers. She stated that she thought that was pretty much state-wide and if it was not she would love to entertain the fact. She stated that a lot of quarries were given a twenty year period, they could quarry for twenty year in that area and then they would have to shut the quarry down. She stated she did not know if that was legal, if they had addressed it, or if it could be addressed, but that was the type of thing she would like to see addressed more, could they address it.

MR. WELCH stated that they could only do so much under state law. He stated that the ordinance took close to a year to develop and they looked at a lot of those issues. He stated that there was a balancing, on one hand there was total prohibition that said they could not drill in Flower Mound period, and tiff luck and the other extreme was they would open up and say come on down and they could develop wherever they wanted to and they really did not care much. He stated that they tried to strike a balance between those two, being cognizant of fact that they could have a takings claim if they just went the really stringent route, but try to have a legitimate basis for saying they could not within certain area based on certain features. He stated that the reality was that the drilling was going to be in the western part of Town and it was going to stay that way. He stated that they felt like, yes there would be variance that would be granted, but even taking the worst case scenario it was still a fairly limited amount of area. He stated that when they had certain parts of Town where there was nothing out there on the far west side, it would be hard to go into court and say right now it was empty land, there was nothing around it for several thousand feet and they would not let them drill there, because they wanted it to be something else somewhere down the line. He stated that the courts were not going to be sympathetic to that and so they tried to strike a reasonable balance and he was not saying that they could not tweak the ordinance, he was always happy to do that and what they could do to make it as defensible yet as understanding of the vision they had for the Town.

VICE CHAIR RICH stated that they came up to the issue of fences, when they granted a variance for a fence, it was not a limited time, as long as they owned the land, they could have that variance, so logic would prevail, they would not plant pansies where cattle roam, that was logical, because they had a variance that brought in vegetation to plant around a solid object like a fence, they realized that if they granted a wooden fence or some kind of fence with no vegetation and ten years for now they would have a great development which someone was looking directly into a fence and there was no obligation on anyone's part to put a plant on it or some kind of vegetation shield. She stated that got them all thinking, yes it was a simplistic matter, she realized that vegetation was individual taste, but an eight foot fence was not necessarily pleasing and going back to the quality of life. She stated that they got talking at the meeting, that if they granted the variance, then they had a variance.

MS. LONG stated that one resolve of that was putting the vegetation aspect of that on escrow, so say they would not have to plant that now, but they would have to put the money away, so that ten years down the road they had that to. She stated that they could do that as an option to the variance and she would personally recommend that as an option.

CHAIR MURPHY stated that she truly was supportive of what was in the future, but they only had what was available to them today and that was why it was very important that they learn what they could do. She stated that she had not heard about putting it in escrow and that was why they were asking him and Alan to let them know what they could do to preserve it as best they could, but not deny that person the right as long as they had done everything that was required. She stated that she agreed they could not go in and say they did not want to grant the variance, because they wanted to have something else there, and when they asked what it was they said they did not know yet. She stated that she did not think that would absolutely fly at all, but until the Town developed something more specific they could only do what they had before them. She stated that she applauded her fellow members that they were very diligent in asking the right questions, but sticking to what was in front of them.

MR. WELCH stated that he was impressed that they had three engineers on the ZBA. He stated that they were going to get a good record.

BOARD MEMBER DOHERTY stated that he did not know if technically geology was an engineer.

MR. WELCH stated that considering he was in liberal arts he had a lot of respect for that.

CHAIR MURPHY stated that what they were asking was to make sure the Town did their part in giving them the information. She stated that she was totally supportive that even if the floodplain maps were totally different, they still had to base upon what the Town had given them. She stated that she wanted to make sure that the Town was giving them the correct information to make those decisions and until that has changed regardless of what anyone else said, they could only rule on that.

MR. WELCH stated that he felt pretty good about the legal aspect, but when they started getting into where the floodplain line was, that was not his area of expertise, but they had folks on staff that could address those issue and talk about ecological peculiarities of an area. He stated that he thought their goal was to give them the best legal and technical information they could have, to the extent that they know the answers to those questions and they give that to them in making that decision. He stated that would go into their consideration and into the record about why they did something the way they did and that made it the most defensible situation they could have. He stated that they were in area, with the whole oil and gas, as surprising as it was in Texas with all the history of oil production there were a lot of unanswered questions out there. He stated that he hoped that they were not the first test case on it. He stated that he did not think they would be. He stated that Corinth changed things because they were being challenged from what he understood from one of their attorneys. He stated that when they did smart growth years ago that was something new in Texas and they survived the challenges on that legally. He stated that he hoped that was not where they were on oil and gas, but he felt pretty good, because their ordinance had been used as a model by other cities in the area. He stated that he felt pretty good that other people had at least looked at it and felt comfortable taking the approach that they had taken.

CHAIR MURPHY asked if their ordinance superseded stated law.

MR. WELCH stated no. He stated that the state had spacing requirements for oil wells and that was the general concept, but as a general rule they could not trump state law on anything.

BOARD MEMBER BRADY stated that he did think that there was a lot of discussion on P&Z and Council relative to concern about the ordinance and he did not know if he had heard anything about that. He stated that he thought he ought to be prepared to answer the question, how much more stringent could the ordinance be made without creating legal problems.

MR. WELCH stated that he thought it was a fair question to ask and what they would probably do as a practical matter was talk to P&Z and Council in executive session to give them legal advice on those issues, rather than do that out in the open and then talk about the legal options. He stated that they were all subject to the open meetings act, when Alan or him was there, as the Board if they needed legal advice on something at any point in time, they could ask for an executive session to receive legal advice. He stated that they could only talk about legal issues back there, they could not talk about what they thought that, did they think they should grant it or not grant it, but they had that right under the open meetings act. He stated that if an issue does arise and they just do not know what to do and wonder if they are legally in trouble, they could ask Tina to meet with the Attorney in executive session.

CHAIR MURPHY asked if they that written up. She stated that was what they did in the last session. She stated that they were going to get the words so they would have it at each session. She stated that was not only for oil and gas but for any of the cases that they had.

MS. LONG asked what would be preferred from a legal standpoint with regards to the variance that they had spoken about before, an impact fee or an escrow on a variance for landscaping issues.

MR. WELCH stated that an escrow would be the preferred way to go. He stated that it could not be an impact fee legally. He stated that one of the reason they did not use zoning districts was because zoning districts changed and sometimes in a growing city they could change pretty rapidly. He stated that the sit approach that they use, the site of the well verses other features around it; they believed that was more defensible in court since the Town looked at adjacent existing uses and land features. He stated that one last thing was a lot of cities when they looked at sexually oriented businesses (SOB), SOB ordinances cities had adopted those in the last fifteen years ever since the U.S. Supreme Court case and what cities had done and the most defensible approach was when someone came in and had an adult theatre, rather than say, they just could not go in that part of Town period, what cities had done and what the courts had generally upheld was saying they could go anywhere in the city, but they could not be within one-thousand feet or fifteen hundred feet of that and that and that and that. He stated that the courts had upheld that, so rather than just tying it to a zoning or land use, they winded up with a more defensible by using the siting approach verses the whole area they could not go into. He stated that there were a lot of other areas where obviously where sexually oriented businesses are not, they had war zones and all of that, and they would not have to worry about that with natural gas wells, but in Detroit they had to worry about war zones. He stated that the ordinance established an application procedure and the filing fee was two thousand dollars, the application was review by Town staff. He stated that if it was complete and met all the requirements to the ordinance, the Town staff would issue the permit. He stated that permits could be issued Town wide. He stated that any denial of an application or suspension of an application could be appealed through the ZBA as the Oil and Gas Board of Appeals. He showed a picture of the distances that were required. He stated that if that was the well, they had a one hundred foot setback for accessory buildings, they had five hundred foot setback for the outer boundary line or property line, human occupancy building and existing storage tank or any other source of ignition, they had a seven hundred and fifty foot setback for any area within seven hundred and fifty feet of a floodplain or ESA that was defined in the smart growth ordinance, Environmentally Sensitive Area, and they had one thousand feet from a public park, a residence, a public building or a fresh water well. He stated that there could be variances of no less than five hundred feet for a residence. He stated that they expected it in the western portions of Town. He stated that he thought they would normally see it in agricultural or large lot tracts out there. He stated that the intersection of 377 and 1171 clearly was the concern they had, there was not going to be a well right on Morris of example. He stated that under the ordinance their role was to hear and decide appeals of orders, decisions, or determinations made by the Oil and Gas Inspector relative to the application interpretation of that article, which was the oil and gas ordinance and it said that there should be created the Oil and Gas Board of Appeals, they passed on those matters pertaining to all oil and gas well applications and permits. He stated that it was a broad grant of authority under the ordinance. He stated that it went on and he would not repeat all of that, but if there was an issue about whether a permit should or should not have been issued, they would heard that or if one had been suspended or revoked. He stated that he thought the key was the issue of variances that was where he thought they were going to see the majority of appeals coming to them. He stated that one of the concerns they had was that whenever they had the ability to grant a variance, one of the concerns they had in general, for example a subdivision ordinance, they would see a lot of cities that would get out of the zoning model and go to subdivision ordinances, a lot of subdivision ordinance would have procedures so they could vary something, for example if they needed a thirty-seven foot wide street, they could go to the city council and ask for a twenty-seven foot wide street. He stated that in some cities, everything that came before them was a variance in the subdivision regulations. He stated that the problem they got to legally when they had all of those variance procedures was even though it was nice to have everyone grant variance, those were variances in the subdivision aspect not a zoning aspect, what happened was there was no real criteria for determining when to grant the variance. He stated what they may have was applicant one wanted a twenty-seven foot wide street and the council said no, but applicant two would get it. He stated that they would wonder why applicant one not get it and applicant two did get. He stated that then they would go into court saying that they had no standards to guide their discretion, it was just unbridled discretion, if they liked it they gave it, if they did not like it, they did not give it, but there were no criteria. He stated that what they wanted to do in the oil and gas ordinance was give them specific criteria that they considered. He stated that the criteria were broad, but rather than just say hey did they like it or what did they think that day, they gave them those criteria and they thought those would be more defensible in court. He stated that several of them looked like they were straight out of the ZBA statue and the ZBA ordinance, are there special circumstances on the property and those were the circumstances like ZBA like variance related to size, shape, area, topography, surrounding conditions and location. He stated that again it was necessary to permit the applicant the same rights and use of his property that were presently enjoyed by other properties in the vicinity and zone, but which rights were denied to the property, that granting the variance would not adversely affect other features of the Comprehensive Master Plan, the variance would be of no material detriment to the public welfare or injury, operations proposed were reasonable under the circumstances and the conditions prevailing in the vicinity concerning the location and the character of the improvements located there, whether the drilling of such wells would conflict with the orderly growth and development of the Town, whether there were other alternative well site locations, whether the operations proposed were consistent with the health, safety and welfare of the public.

BOARD MEMBER DOHERTY stated that on whether there were other alternate well site locations, which he mentioned earlier and he did not mean to beat a dead decaying horse, but to him that was the most pivotal of them in the fact that if they moved the well their setback issues predominately seemed to be the majority of those in the oil and gas that had come before them, disappear and he would say that it was a black and white and a gray issue with an oil and gas well, but he would be a little more accurate and say it was varying shades of green. He stated that an oil well was not like a swimming pool, a patio cover, a garage, a flagpole or a fence, it was not a capital improvement, it was a capital investment for the sole purpose of getting monetary gain. He stated that the difficulty that he had was though he could probably understand 2D and 3D seismic data, he would not understand it enough to make a determination as to whether or not there was an alternate well site on a particular piece of property. He stated that when applicants had come to them and said that was where the well needed to be, they said okay and then they asked the Town if that was where the well needed to be and the Town staff kind of said well okay. He stated that he did not know if the Town needed to engage a consultant who was an exploration geophysicist who could work with the applicant's data management team or company, whoever it was. He stated that the oil and gas company's kept 2D and 3D seismic data on a particular parcel or lot very proprietary, they guarded it like they guarded their wives, because they did not want anyone to know what was there or not there based on when they were going to produce it or not produce it. He stated that in the varying shades of green, based on what current oil and gas prices where, was what made it most economical to put it there, if oil and gas went up ten dollars, then they could move it out a little bit farther away from the center of the bulls eye because the cost had gone up and they could still make as much money at they thought, if oil and gas did not get above a certain point based on the interpretation from the data that they had, it would not be profitable for them to drill that if there was even anything there until the price got way up there. He stated that if the Town had an individual that they could use as a resource, they could come forward and say, yes they looked at the data and in fact there was no other location or maybe there was a different location, but the potential for profit by the applicant could only be eighty percent of where the primary location was and that would move it from an A to a B, but if they moved it to the B and the applicant could still get their mineral rights and they could still mine their resource, but it was out of the floodplain or away from the building or setback from the road or away from the water well, the applicant would be able to gain their mineral rights and the ordinances would be maintained and a variance would not have to be granted and the pivotal sentence in there was they had to put a lot of faith in the applicant when they said that was the only place the well could go. He stated that they did not have an opposing point of view that could either verify or not, that statement.

CHAIR MURPHY stated that at that point in time they could make the decision to grant the variance or not based upon the information they knew. She stated that she did not want to get into the details because that was what they had the staff for. She stated that she did not have any background in it, but she was trying to uphold what the Town had.

MR. WELCH stated that he did not have any problem that if they had technical issues that they needed additional information he did not have a problem with that, it was obviously somewhat of a budgetary issue, but if they needed to go there he thought they probably could. He stated that one of the concerns going from the technical, since that was not his expertise, but on the legal and that was if they drilled a site A they could make a lot more money than if they drilled at site B, in a takings context their concern was not that they made more money at A than B, a taking occurred when they deprived them of all economic viable uses of the property. He stated that the fact that they could use it at one place and make a whole bunch more money than at the other does not constitute a taking. He stated that he understood why an applicant would want to go to A because they would make a lot more money, but if oil dropped below thirty-five dollars a barrel, then B does not really become a viable well site for them. He stated that was not really their concern. He stated that if they said they could not go anywhere and access their property, then they had deprived them of all economic and viable use of the property. He stated that there were cases out there, a least in the land use context with the Sunnyville case, years ago, they represented Sunnyville on that one. He stated that they had agricultural land and they wanted to put a planned development there, single family homes, apartments and a school, kind of a Las Colinas type of thing. He stated that they said they could make thousands of dollars an acre doing something like that and there was no argument that they could and the Town of Sunnyville turned them down and said they had agricultural use on it, they bought the property running cattle on it and they were not going to give them what they wanted, they would possible give them something less, but not what they wanted. He stated that they sued saying that they had taken their property and the court said no, they bought the property running cattle on it and they could still run cattle on it. He stated that clearly the property was not as valuable with cattle on it as it would have been with multi-family residences, but that was not a taking of property. He stated that was one of the issues that they address too, but they did not necessarily look at the highest and best use, where they could make the most money, that was not part of their analysis.

BOARD MEMBER DOHERTY stated that he appreciated that and that was part of it, but the other part was if that was the only location on that person's property that they could put a well.

MR. WELCH stated that could possibly change the analysis a little bit.

BOARD MEMBER DOHERTY stated that he needed to know as a Board member if in fact that was the only place or was it not the only place, other than just the applicant's word. He stated that he gave them the benefit of the doubt, but it would be nice to have, if that was the only place based on the geography and the shape of the property and the other considerations, than that was the only place, but if it was not the only place that would be helpful to know.

MS. SMITH stated that she and Mike were talking the last evening about the importance of education because she had some opportunity away from Town Hall to be able to discuss some issues when it came to the gas drilling. She asked if there were any other municipalities who used an exploration geophysicist, not so much to determine the variance, but to substantiate or give them background information.

MR. WELCH stated that he knew of other cities that used experts, what their titles were, he was not sure, but when some said they could only drill there and no other place and if they did not let them drill there they could not go anywhere else, they needed an expert. He stated that they would need someone with very, very specialized knowledge to assist in that answer.

CHAIR MURPHY stated that she was looking at the information that they had, if he went back on the PowerPoint to Hear and Determine Appeals, it said any person or entity who's application was denied by the Oil and Gas Inspector other than for distance requirements set out in that article. She asked him to clarify that. She asked if that was not the same as setbacks.

MR. WELCH stated that those were different.

CHAIR MURPHY stated that he said they had the exercise and the authority to hear and determine where it was alleged that there was error or abuse of discretion regarding the issuance of an oil and gas or combined well permit or the revocation or suspension of any permit used hear under and as provided by that article, any person or entity who's application was denied by the Oil and Gas Inspector other than for distance requirements set out in that article.

MR. WELCH stated that was the appeal process they had, the variance process was when they wanted to contest the setback.

CHAIR MURPHY asked if that was not the same. She stated that they were appealing for a variance.

MR. WELCH stated that they were close. He stated that if in that situation someone said there was error or abuse of discretion regarding issuance of the permit or it had been revoked of suspended, they could come in and say they wanted to appeal that decision, if they wanted to appeal a setback they had to go through the variance procedure. He stated that they had some different procedures and processes related to the variance verses the other, for example they had to on a variance for residential, they could not go less than five hundred feet under that ordinance, so they did not have the full right of appeal, they had kind of limited the appeal of the Board in that area. He stated that they tried to make a distinction between appeals of things that were not variance related and then variance related.

BOARD MEMBER BRADY stated that basically there was a zone from one thousand feet to five hundred feet that they could rule on and vary on, if it was closer than five hundred they could not.

MS. LONG stated that she would like to go back to Mike's comment from before about if there was only one site that was identified that they were saying was the only spot that they had located and if they did not do it they could not do, so please grant them the variance. She stated that even if they presented that and even if they did not go get an expert, they had the right to deny them that variance. She stated that they did not have to give them the variance because of that restriction. She stated that she wanted to make sure they understood that. She stated that they did not have to give them that right even if that was their only option.

CHAIR MURPHY stated that she understood that when someone was coming before the Board to request a variance, it was their responsibility to state their case and convince them that it was in everyone's best interest to grant the variance, so if there was any discrepancy on what the Board believed and what they believed it was their responsibility to convince them and if they were not convinced then it was not met.

MR. WELCH stated that their role was basically Quasi Judicial, there were the Judge and they were to hear the evidence and they were to make a determination and if they did not like the determination then they would have a process that they could follow down the line.

CHAIR MURPHY stated that she thought they were getting a little bit to overwhelmed when they just needed to keep the facts at hand and what they were advising them, that was why they had Alan and Terry to say that was not what they needed to consider.

MR. WELCH stated that was right. He stated that they were all there to back them up on that. He stated that some of the other criteria used where ecological integrity and environmental quality, surface and ground waters of the environmentally sensitive areas, whether there was reasonable access for the Town fire personal and firefighting equipment.

CHAIR MURPHY stated that in a regular ordinance variance they had to meet all four criteria in order to grant the variance. She stated that there was more than four there.

MR. WELCH stated that they did that specifically, they expanded it because there was some unique features, for example the ability of fire equipment to get there, that would not be one in a normal variance.

CHAIR MUPRHY asked if they had to meet all of the criteria.

MR. WELCH stated no, those were the criteria they evaluated.

CHAIR MURPHY asked if it was five out of ten.

MR. WELCH stated that was where they had discretion. He stated that they tried to give them factors to consider in making that decision and hopefully if court one day looked at their decision whatever it was, they had given them criteria to evaluate. He stated that they may say that eight out of twelve was enough; they may say six out of twelve. He stated that they looked at all the very specific instances, what was it like out there at that site and one of those might be a predominate factor, but it say they had to meet all twelve then it was almost a little to check list. He stated that when they heard a variance, there might not be topographic issues of great import, but it may be how other people in the area, they would just evaluate that. He stated that if they had a good record, the discussion with the applicant, their discussion among themselves, and with staff on technical points, he thought they would be okay. He stated that they would take those factures into consideration in making decisions, rather than saying here it is, or throwing it up against a wall to see if it would stick. He stated that they were trying to give them some criteria in making the determination.

CHAIR MURPHY stated that she thought that they had talked last year about whether it was a good idea for the Board members to visit the site, even in the ordinance variance or the oil and gas. She stated that she thought someone said they did not need to see it, because the applicant needed to prove it. She asked him to share with them his opinion of that.

MR. WELCH stated that one of the things that really was key, was that when Council made a decision they acted as a legislative body, so if people wanted to come and talk to Council members about a matter, those citizen had a right to go talk to a Council member and express there opinion. He stated that when the ZBA acted they were not a legislative body; they became a Quasi Judicial body, so they acted like a judge. He stated that in a judge mode they did not go out and talk to everybody and get that input, the input came to them during the process and they took all that in. He stated that the question they got into was when they were acting as the Oil and Gas Board of Appeals, were they legislative or judicial. He stated that he would argue that they were probably more of that judicial model. He stated that he thought as a ZBA if one of them wanted to go out and look at an area where there was a variance it was probably okay. He stated that juries went out on occasion and looked at sites. He stated that on the other hand if they started talking to people, gee Bob you filed an application here, why do you think we should grant it, they would be getting input outside the public process, he thought that then they would have some problems. He stated that he did not think looking at it was going to be all that big of a deal. He stated that some lawyers would say they could not get any information, they had knowledge of the Town, and so he did not get real hung up on that. He stated that if they started getting input from people outside that process, when they were acting like a judge, then they would have some legal issues, so he would be very careful about that.

MS. LONG stated that she had one more comment before they moved on. She stated that one of the criteria when hearing appeals, the first thing mentioned when they went back, it said that the granting of the variance would not adversely affect any other feature of the Comprehensive Master Plan of the Town. She stated that told her they could consider the Master Plan when making the determination.

MR. WELCH stated that was correct. He stated that they added it for that very reason.

MS. LONG stated that was what she thought they were discussing before and they were not really getting that.

CHAIR MURPHY asked if that particular corridor was part of the Master Plan.

MR. WELCH stated that he entire Town was Master Planned, so they could take into effect, whatever was Master Planned for that area.

CHAIR MURPHY asked if they had the criteria on what the Master Plan was on that area. She stated that it got back to them wanting to save it for something, but they were not sure yet.

MR. WELCH stated that the Master Plan 2001 the book had all the detail in it. He stated that he did not think they were saying that if that area was Master Planned residential, then nothing else could ever go in there under any circumstances, because in even under the Master Plan, zoning trumped the Master Plan and they knew that, so that was something they would take into account. He stated that he would be very hesitant to put an oil well at the intersection of 1171 and 377.

CHAIR MURPHY stated that then they would have to define exactly, what exactly meant.

BOARD MEMBER BRADY stated that the way he would look at it was since the ordinance allowed a well to be drilled, what that was saying was did that well impact the Master Plan differently than the well that they could drill by the ordinance, not just did it impact the Master Plan. He stated that he read it that they did not have the right to analyze that it was just, was the impact more severe to the Master Plan than the well that they could drill.

MR. WELCH stated that they would possibly take into consideration the major intersections around intersections, when they were looking at granting a variance for a well permit, the areas that they had designated as greater scrutiny under the Master Plan than other areas. He stated that he was not saying that because it was residential, that nothing else would ever go there, but they could consider the other features on the Master Plan when making those determinations.

BOARD MEMBER BRADY stated that if his math was right and without his calculator it probably was not. He stated that it looked to him like every well they drilled prevented twenty-five acres of development into perpetuity, because they were talking about a thousand foot diameter and it could be more than that, it could be fifty acres. He stated that brought up the second question, if he was sitting there on that Board fifteen years from now, he could see the day that a developer was going to come in and they would have safety records for the wells and they were going to be saying, one thousand feet from a well to residential was too much, it would be perfectly safe if it were five hundred feet or two hundred feet. He stated that they had an inverse condition that was going to be showing up in fifteen years, where people were going to be crowding in on the wells. He stated that he did not think any of that had been thought out properly. He stated he was very concerned about it.

VICE CHAIR RICH stated that what they were going to say was then and twenty five years from then whatever rule they had was to stringent on putting an oil well in especially if it was a good producing oil well, they might end up agreeing with them if the Town got as wealthy as it was. She stated that a lot of places were one hundred feet, two hundred feet, so they had a wide variance which she was pleased to see that they did. She stated that she thought it would benefit them in the long run; yes they were going to have to look at more variances because of the wide footprint that they were actually asking for the area of non-development around that. She stated that she wanted to make on thing pretty darn clear, if someone came in and said that there was only one place they could stick the well, chances were that was not a piece of property that they would entertain. She stated that they had to provide options; because there was not one place they could put a well. She stated that every piece of land had options to place a well, there was an ideal, an optimum and if that was all they were seeing than someone was going to get a whole lot of no's, because they were not going to sit there and have everyone come in and say you all are stupid, oh by the way there is only one place to put a well. She stated that they were not looking at a stupid Board, they were looking at a Board that had geological experience and had oil well experience and had the experience that had to go clean it up, so they knew what they were looking at and they wanted to see options or there was going to be a lot of no's.

CHAIR MURPHY stated that the biggest thing was not that they had the talent, but that was one of there benefits, that was their plus, that they had people that were familiar with it. She stated that it still went back to, that if there was not another option, they as a Board could still deny a variance and she thought that was what they needed to keep in mind.

VICE CHAIR RICH stated that it would be the same on a fence, bring them an option of a fence, and do not just say that was the only thing they had. She stated that they were risking an all or none situation. She stated that they were not picking on oil wells anymore than they were picking on fences or properties that extend over the property line, knowing that they built the thing over the property line. She stated that she wanted to make sure that was clear.

MR. WELCH stated that with the Major's experience on P&Z back in the early 90's, she could probably remember that sometimes the developers would come to them and say if they did not get that zoning they would go bankrupt, or they could not use it for anything but that one type of use and they said they really did not buy that.

MS. SMITH stated that she did not recall any of them going bankrupt, but she did recall the developments going in as planned.

MR. WELCH thanked the Board. He stated that they really made him feel a lot better when those things came forward, with that level of expertise. He stated that some of the other issues they looked at were a reasonable use of the mineral estate by the mineral estate owners to explore, develop, and produce the minerals and the availability of alternative drill sites and a key, the recommendation of the oil and gas Inspector. He stated that was going to be a key issue as well, there were going to look at someone who had the expertise. He stated that after consideration they broad discretion, they could reverse or affirm in whole or in part, modify the order, the requirement, the decision and make the correct order, requirement, decision or determination. He stated that as the Oil and Gas Board of Appeals, like ZBA it took a three quarters vote, so there were five of them there four of them had to approve whatever it was, so they had the same supermajority requirement in state law. He stated that he was going to move on quickly to ethical issues, kind of getting off of oil and gas, he knew that oil and gas was obviously the hot issue. He stated that one of the issues that could come up was conflicts of interest and he wanted to just raise a few questions. He stated that it was more to just let them know what the issues were and if they had a concern about something, they should let him know. He stated that if someone ever wanted to take them to court or file criminal charges against them as a violation of their code of ethics, their defense would be that they got an opinion from their attorney saying that it was not a conflict of interest, they could use that a defense in court. He stated that if there ever arose an issue, they should let them know, so they knew in advance what to do and they could give them an opinion. He stated that it used to be pretty unclear and their code of ethics ordinance was adopted probably ten years ago. He stated that they probably had one of the more stringent codes of ethics in the area, but stated law did not give them a lot of guidance sometimes. He stated that the stated law was pretty broad on what was a conflict and so they had narrowed it down over the years. He stated that they could still run into situations where it was unclear and if any of them grew up as a Baptist, the old thing about when in doubt toss it out, when they talked about sin. He stated that if there was a question about it, they should not participate, they should take the safe course and they should not let it be a problem. He stated that he had situations in other cities where he had council members come up to him after the fact and say they thought they had a conflict of interest, well, it was a little too late. He stated that one of the Attorney Generals back about ten years ago talked about council members, but it really applied to P&Z Members, ZBA Members and any Board Member, from participating in zoning decisions if the zoning matter affected the Council Members residence. He stated that was not really much guidance. He stated that they had a requirement that in their code of ethics that said if they lived within two hundred feet of an area that was going to be rezoned, then they had a conflict of interest. He stated that if they lived within two hundred feet of an area that was coming in for a ZBA matter, then they had a conflict of interest and they were legally disqualified by the ordinance from participating in that matter. He stated that when that got that legal disqualification, what that meant was if they had five members who were present that night and one of them was disqualified, they had to pass it with four votes, even though it required a three quarters vote. He stated that it was a little different analogy with the Council; they did not have that requirement. He stated that they had some supermajority requirements, but when someone was disqualified, it would be three out of four for them, but it would be four out of four for the ZBA. He stated that they needed to be careful about that. He stated that if they ever got to the point where two of them had a conflict, then they would have the alternates come and sit in or whatever, they would address it that way. He stated that when they were in doubt, they should let them know and they would address that issue for them to give them the protection they needed. He asked whose interest they were talking about. He stated that state law in the local government code it applies to all of the Boards and Commissions really. He stated that they made it very expansive in Flower Mound. He stated that how they would determine if someone had a substantial interest in a business entity or real property. He stated that stated law said that if they had a substantial interest they could not participate and they were conflicted out, but what did that mean. He stated that there was a little chart that the state attorney generals office gave them and they looked at the chart to determine whether someone had a conflict of interest, for example if the Mayor's father-in-law owned a company that was coming before the Town Council, she would be conflicted out, because her father-in-law fell in the first ring around the officer, so she would be conflicted out. He stated that even if she did not get along with her father-in-law, they had not talked to each other in years. He stated that made no difference, because of the family relationship the conflict exist. He stated that there were other provisions that when people had been divorced, if there was a child born of that marriage whether dead or alive, they still had a conflict. He stated that if they were married, got divorced and did not have any children, the conflict went away, but under Texas state law if they were married and had a child, they were going to have that conflict even if the child was no longer alive. He stated that they should not ask him why that was the law, but that was indeed the law.

MS. SMITH stated that Mike was having difficulty with that one.

MS. LONG asked if they needed to excuse themselves from just the deliberation aspect or just the vote.

MR. WELCH stated the whole thing. He stated that their requirement was that they would actually leave the chamber and that meant that they could not talk to people on the outside about it, it was pretty much a complete divorce.

VICE CHAIR RICH stated that they had been very specific in previous years about not only leaving that area, but leaving the outer chamber as well, because if someone was standing there shaking their head, that was not fair and it put all of them at a risk, so the previous Chair prior to her for five years was very specific about not even being in the building, just so that there was no question.

CHAIR MURPHY stated that she went and watched TV the last time she was recused.

MR. WELCH stated that there was one situation where a Council Member had a conflict of interest and in that city they did not have a separate code of ethics and the Council Member went to the back of the chamber and when they were discussing something he was back there shaking his head no. He stated that did not give him a high degree of confidence and they would never do that there. He stated that they were pretty good about that. He stated that if they looked at state law they had some previsions and one of the reasons why they were more stringent in Flower Mound than the stated law, was that, well, what was a substantial interest, for example if the Mayor's husband Steve worked for someone and he made x thousand dollars a year from them, but it was only five percent of his gross income, under state law the Mayor could vote, that would not be conflict of interest under state law. He stated that under their ordinance it would be and so they were more stringent. He stated that was one area that they could trump state law, because state law said that they could have a more stringent code of ethics then what state law required. He stated that the reason that stuff came up with ten percent and twenty five hundred dollars was for years the law in Texas, back in the old days, was that they could not have any interest direct or indirect in a contract or a real estate ownership. He stated that they got into thing like what was an indirect interest. He stated that he did not know what an indirect interest was and the courts did not know what an indirect interest was, so a goofy example was one day the Town was considering a Cingular telephone franchise, they did not do franchises with telephone companies anymore, but say they were, he was sitting there considering it and giving the Council legal opinions and someone found out that he had one thousand dollars in a mutual fund that one tenth of one percent of there investment was in Cingular, did he have an indirect interest. He stated that he would probably never know that and they would probably never know that, but with things like mutual funds, they would find out that people had some interest in some corporation and in the old days that was a criminal violation. He stated that in 1877 not a lot of people had mutual funds, not a lot of people had 401k. He asked if anyone who had a 401k could tell him where their 401k funds where invested, no one knew. He stated that in the old days what they could do was if someone knew the Mayor had one thousand shares of Fidelity Magellan and they went and looked at the website and found out that one percent of Fidelity Magellan was in TXU and they were creating a franchise with TXU, they could file criminal charges against her for a violation of the law. He stated that was kind of a ludicrous example. He stated that the state law changed to say there was going to be some floors on that, they were not going to make it any interest; they were going to make it certain dollar amounts and certain percentages. He stated that they had taken a little more strict approach there than state law did. He stated that as for a matter before the body involving the business entity or real property, the Attorney General who was now in prison said that any matter that affected territory in which their residences where located was a matter that involved real property. He stated that did not mean a lot to them, for example in the early 90's they were bring in a Thom Thumb over on 1171 and the Mayor at the time, Larry Lipscomb lived near there, but he was not within two hundred feet, did that affect his property. He stated that it would be pretty rank speculation, would his property value go up, would it decrease, would it stay the same, the answer was he did not know, did he have to recuse himself or not. He stated that if they got into something that required a supermajority vote and they had a Council Member that said it was gray, so they were going to back off and say there was a conflict, they could wind up in court because he did not really have a conflict he could have voted on that. He stated that as the Mayor he could not vote, but other Council Members could. He stated that they got into a bunch of gray areas. He stated that they tried the best they could to eliminate that, they could not eliminate the gray, but they tried to make it pretty clear in that situation. He stated that if it was reasonably foreseeable that an action on a matter would have a special economic affect on the value of the Member's business entity or real property, that was distinguishable from it's affect on the public, so living three hundred feet from the site of the Thom Thumb, was that the same affect it would have on the rest of the public. He stated that it was like asking how many angels could dance on the head of a pin. He stated that he did not know the answer to that question, so they tried to clear that up. He stated that if they did have a conflict they had to file an affidavit, the Town Secretary had a form and they would just check in and it would go to the files and that was to protect them down the line when someone said one of the Council Members or one of the Board Members voted on something, they had a form that said they did not and that was filed and kept in the records. He stated that it was best to do it before the vote. He stated that if they were not sure, back to the Attorney General who was in prison because he did not follow his own advice, if there was any question about it, they should go ahead and abstain, because there was no criminal violation for not participating. He stated there was a criminal violation for participating in something when they did have a conflict of interest. He stated that their code of ethics was very clear on that and he thought they had done a pretty good job on trying to address those issues. He stated that it not only related to the zoning issues, but also the Master Plan issues as well. He stated that he thought that would do it.

MS. SMITH stated that she had a conflict of interest right then, because she had a previous commitment and what she would like to do because there had been some good points, and Joelle had taken meeting minutes, she thought that Laurie and her would sit down and rehash what they had heard and she was going to ask Ms. Lawrence if she could include in their next packet the meeting minutes from that evenings minutes and they could even address it, if it was appropriate, in an Executive Session along with Terry himself or Terry and Alan. She stated that she thought some valuable points had been made and as she had driven there she drove past one of the existing gas wells and she understood that it was nine thousand feet and they had finally found something substantial, she did not know if that was a good rumor or a bad rumor, but it was awesome. She stated that as Mayor she was expecting a little more feedback on the gas well that was there on the Bun property, which was 1171 near Flower Mound Road and she thought the total emails were three. She stated that it was very, very surprising to her, but she thought that might change as there were more. She stated that she wanted to ask permission if she could to request the minutes be put into their packets.

CHAIR MURPHY said absolutely.

MS. SMITH stated that she did take back the comment about shortness. She apologized.

CHAIR MURPHY stated that was okay, she loved it. She stated that she wanted it to go on record that at the last meeting they were very surprised at the audience that came and when they asked for citizen participation it was like wow, no one ever came to those meetings. She stated that she began to understand that the Council had talked about making sure they knew what was going on and she wanted to compliment the Board Members, they knew what they were supposed to do, they just needed direction, because she felt like they were blind sided at the last minute, but the Board and the Attorney handled it very well, as far as going to Executive Session. She stated that they knew enough to keep their mouths shut until they got the facts.

MS. SMITH stated that she could possibly request the meeting minutes from that request for variance.

CHAIR MURPHY stated that they continued it because they needed more information. She stated compliments to the Board, they performed and did the best they could and that was why she was requesting from the staff and the attorney's that they make sure they got what they needed before they got up there, so they did not waste anyone's time. She stated that she would compliment Alan, because one of the things he said was they were there to talk, so let them talk. She stated that she really thought that was one of the best things they could have done. She stated that everyone had the opportunity to say what they wanted to say.

VICE CHAIR RICH stated that she wanted to go on record saying that it was a good opportunity for the Town. She stated that they were at the skirts of a birth of an industry in the Town that they had not seen before and even thought there were negatives there were also positives to every industry and she hoped that the Board would take it into consideration the profitability of the oil wells, natural gas in that case, the ability of them to contain an industry to benefit their Town as well as benefit the people who owned the land. She stated that being fifth generation Arizonan she was probably as strong willed as any Texas around there and when they owned land, they owned the rights to the land and the Town should allow them to exercise those rights and part of the rights were mineral rights, so even thought she was an environmentalist, she joked that she was also a capitalist. She stated that it was not just that, she believed that people had the right to do certain things, not to the detriment of others, but there was a big benefit in that business and hopefully they could maximize the benefit but at the same time minimize the negative impact of it. She stated that she was optimistic, in the future they would probably tread very carefully and lightly progressing, because they did not want to set a standard going that they regretted later, but they hoped that they could, with their help, guide the process along to a mutually beneficial conclusion.

MS. LONG stated that she was not sure what the standard protocol was, but if at any point in time the Council did consider looking at the ordinances, she would love to have the members of the ZBA on board with a workshop because their expertise along with the Council's would only benefit in possibly punching up some the ordinances to better the community and the property owners as well.

VICE CHAIR RICH asked if they were going to do any changes, would they reconsider the size of barns, because they had a ton of barn requests.

MS. SMITH asked if they were building the barns or drilling with them.

VICE CHAIR RICH stated that they were building barns with bigger people and horses.

MS. SMITH stated that she looked at that one several times a day.

BOARD MEMBER DOHERTY stated that apparently through Darwin, horses over time were getting taller and taller, similar to humans and the beams were staying the same height and he guessed people were hitting their foreheads.

VICE CHAIR RICH stated that being an ex-jumper, they could trust her that a tall jumper was not a good thing on certain horses. She stated that they wanted to have a good barn.

BOARD MEMBER DOHERTY stated he heard Shetland's were making a comeback.

CHAIR MURPHY thanked Terry, Alan and Town staff. She stated that they did not mean to take them out another evening. She asked if there was anything else they needed to discuss. She stated that they had a November meeting on the tenth; they did have the case that they were continuing and also another one.

MR. HARTZ stated that was correct, there were two.

CHAIR MURPHY asked if since they would be acting as the Oil and Gas Appeals Board and as the regular ZBA, could they continue each case along or did they have to make a differentiation between the two Boards, or just take the cases in order.

MR. WELCH stated that they could just take the cases in order, they would be acting as the Oil and Gas Board of Appeals, for example on item three whatever that might be. He stated that they would just be acting as the Oil and Gas Board of Appeals on item three.

CHAIR MURPHY clarified that they would just introduce it to make sure.

MS. SMITH stated that what they could do was get them baseball hats and when they went from one to the other.

CHAIR MURPHY stated that she thought about that, red and purple sounded good to her.

MS. SMITH thanked them for their diligent work and for those who were able to attend the banquet, she thanked them, they were very well appreciated.

CHAIR MURPHY stated that it was great, the Town and everyone did great. She thanked them again for that.

MS. SMITH stated that she did want to brag on Mr. Hartz. She stated that she had some questions and Danny was the one who informed her that she needed to be at that meeting and she appreciated that.

CHAIR MURPHY thanked Danny.

D. ADJOURNMENT

There being no further business, the meeting was adjourned at 8:12p.m.

Respectfully Submitted,

Danny Hartz

Chief Building Official

Date Approved: November 10, 2004

Recorder/Secretary - Joelle Hainley