HomeMy WebLinkAbout03/11/2010 - Workshop Agenda Packet - City CouncilTable of Contents
Agenda 2
No. 2 - Wellborn Request for Consent to Incorporate
Coversheet 6
Map 7
Citizens for Wellborn Coversheet 8
Citizen's For Wellborn Filer's Certification 9
Citizens for Wellborn Document 10
Local Government Code 42.041 16
Supreme Court Case 17
Resolution Gratning Consent to Incorporate 24
Resolution Denying Consent to Incorporate 25
Resolution Denying Consent to Incorporate p 2 26
No. 3 - Noise Ordinance
Coversheet 27
Memorandum 28
Old ordinance with noted modifications 30
Draft ordinance 37
No. 4 - Wolf Pen Creek Water Feature and Festival Area Master
Plan Adoption
Coversheet 43
Location Map 44
No. 5 - Google Fiber RFI
Coversheet Revised 45
Google RFI 46
1
Mayor Councilmembers
Ben White John Crompton
Mayor Pro Tem James Massey
Dave Ruesink Dennis Maloney
City Manager Katy-Marie Lyles
Glenn Brown Lawrence Stewart
Agenda
College Station City Council
Workshop Meeting
Thursday, March 11, 2010 3:00 p.m.
City Hall Council Chambers, 1101 Texas Avenue
College Station, Texas
1. Presentation, possible action, and discussion on items listed on the consent agenda.
2. Presentation, possible action, and discussion regarding a request for consent to incorporate submitted to
the Council by “Citizens for Wellborn”, including consideration of pros and cons for the City should
consent be granted and a discussion of alternative (to incorporation) means of addressing objectives stated
by “Citizens for Wellborn” and consideration of Resolutions for and against the granting of consent for
incorporation.
3. Presentation, possible action, and discussion regarding modifications to Chapter 7 Health & Sanitation,
Section 1 through 3 of the City of College Station Code of Ordinances as it relates to noise and nuisance.
4. Presentation, possible action, and discussion regarding the adoption of the Wolf Pen Creek Water Feature
and Festival Area Master Plan as an element of the Wolf Pen Creek Master Plan.
5. Presentation, possible action, and discussion regarding a possible City response to the Google Fiber
Request for Information (RFI).
6. Council Calendar
March 12 "Green" Mini Seminar at Public Works Office - 2nd Floor of CS Municipal Court
(300 Krenek Tap) at 6:00 p.m.
March 16 Transportation Committee Meeting in Council Chambers, 4:30 p.m.
March 18 Planning & Zoning Workshop/Regular Meeting in Council Chambers at 6:00 p.m.
March 22 2010 Citizens University at Public Works, 5:30 p.m.
March 22 2010 Spring Girls Opening Ceremonies at Stephen C. Beachy Central Park - Softball
Fields, 6:00 p.m.
March 25 Council Workshop/Regular Meeting in Council Chamber at 3:00 p.m. and 7:00 p.m.
March 26 Grand Opening - TTI State Headquarters & Research Building at 2935 Research Parkway,
2:00 p.m.
7. Presentation, possible action, and discussion on future agenda items: A Council Member may inquire
about a subject for which notice has not been given. A statement of specific factual information or the
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City Council Workshop Meeting
Thursday, March 11, 2010
recitation of existing policy may be given. Any deliberation shall be limited to a proposal to place the
subject on an agenda for a subsequent meeting.
8. Discussion, review and possible action regarding the following meetings: Arts Council of the Brazos
Valley, Audit Committee, Brazos County Health Dept., Brazos Valley Council of Governments, Brazos
Valley Wide Area Communications Task Force, Cemetery Committee, Code Review Committee, Design
Review Board, Historic Preservation Committee, Interfaith Dialogue Association, Intergovernmental
Committee, Joint Relief Funding Review Committee, Landmark Commission, Library Committee,
Metropolitan Planning Organization, National League of Cities, Outside Agency Funding Review, Parks
and Recreation Board, Planning and Zoning Commission, Sister City Association, TAMU Student Senate,
Research Valley Partnership, Regional Transportation Committee for Council of Governments, Texas
Municipal League, Transportation Committee, Wolf Pen Creek Oversight Committee, Wolf Pen Creek
TIF Board, Zoning Board of Adjustments, BVSWMA, Signature Event Task Force, (Notice of Agendas
posted on City Hall bulletin board).
9. Executive Session will immediately follow the workshop meeting in the Administrative Conference
Room.
Consultation with Attorney {Gov’t Code Section 551.071}; possible action. The City Council may seek
advice from its attorney regarding a pending or contemplated litigation subject or settlement offer or
attorney-client privileged information. Litigation is an ongoing process and questions may arise as to a
litigation tactic or settlement offer, which needs to be discussed with the City Council. Upon occasion the
City Council may need information from its attorney as to the status of a pending or contemplated
litigation subject or settlement offer or attorney-client privileged information. After executive session
discussion, any final action or vote taken will be in public. The following subject(s) may be discussed:
a. City of Bryan’s application with TCEQ for water & sewer permits in Westside/Highway 60 area, near
Brushy Water Supply Corporation to decertify City of College and certify City of Bryan
b. Discussion of Legal Issues Regarding: Wellborn Incorporation Request
c. Water CCN / 2002 Annexation / Wellborn Water Supply Corporation
d. Sewer CCN permit requests for Brushy & Wellborn Services Areas
e. Water CCN permit requests for Brushy & Wellborn Services Areas
f. Legal aspects of Water Well, permits and possible purchase of or lease of water well sites
g. TMPA v. PUC (College Station filed Intervention)
h. City of Bryan suit filed against College Station, Legal issues and advise on Brazos Valley Solid Waste
Management Agency contract, on proposed methane gas contract
i. Update on legal proceedings for Grimes County Landfill site and contracts for development of Grimes
County site
j. Weingarten Realty Investors v. College Station, Ron Silvia, David Ruesink, Lynn McIlhaney, and
Ben White
k. Chavers et al v. Tyrone Morrows, Michael Ikner, City of Bryan, City of College Station, et al
l. Rogers Sheridan v. Barbara Schob & Greg Abbott
m. Clancey v. College Station, Glenn Brown, and Kathy Merrill
n. Verizon v. City of College Station
o. Legal Aspects of Brazos Valley Convention & Visitors Bureau Articles of Incorporation and Bylaws
p. Contemplate Litigation, Legal remedies available to abate weeds, rubbish, brush and other unsanitary
matter from a lot in the College Hills residential area.
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City Council Workshop Meeting
Thursday, March 11, 2010
Personnel {Gov’t Code Section 551.074}; possible action
The City Council may deliberate the appointment, employment, evaluation, reassignment, duties, discipline,
or dismissal of a public officer. After executive session discussion, any final action or vote taken will be in public.
The following public officer(s) may be discussed:
a. City Secretary
Economic Incentive Negotiations {Gov’t Code Section 551.087}; possible action The City Council may
deliberate on commercial or financial information that the City Council has received from a business
prospect that the City Council seeks to have locate, stay or expand in or near the city with which the City
Council in conducting economic development negotiations may deliberate on an offer of financial or other
incentives for a business prospect. After executive session discussion, any final action or vote taken will
be in public. The following subject(s) may be discussed:
a. Proposed Area Bio-Technology Corridor
b. Spring Creek Business Park, location of Education Prospect
10. Action on executive session, or any workshop agenda item not completed or discussed in today’s
workshop meeting may be discussed in tonight’s Regular Meeting if necessary.
11. Adjourn.
APPROVED:
___________________________________________
City Manager
Notice is hereby given that a Workshop Meeting of the City Council of the City of College Station, Texas
will be held on the 11th day of March, 2010 at 3:00 pm in the City Hall Council Chambers, 1101 Texas
Avenue, College Station, Texas. The following subjects will be discussed, to wit: See Agenda
Posted this 8th day of March, 2010 at 2:00 pm
__
E-Signed by Connie Hooks
VERIFY authenticity with ApproveIt
_________________
City Secretary
I, the undersigned, do hereby certify that the above Notice of Meeting of the Governing Body of the City of
College Station, Texas, is a true and correct copy of said Notice and that I posted a true and correct copy of
said notice on the bulletin board at City Hall, 1101 Texas Avenue, in College Station, Texas, and the City’s
website, www.cstx.gov . The Agenda and Notice are readily accessible to the general public at all times.
Said Notice and Agenda were posted on March 8, 2010 at 2:00 pm and remained so posted continuously for
at least 72 hours proceeding the scheduled time of said meeting.
This public notice was removed from the official board at the College Station City Hall on the following date
and time: _______________________ by ___________________________.
Dated this _____day of _______________, 2010.
CITY OF COLLEGE STATION, TEXAS By____________________________________
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City Council Workshop Meeting
Thursday, March 11, 2010
Subscribed and sworn to before me on this the ______day of _________________,
___________________Notary Public – Brazos County, Texas My commission expires:________
This building is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive service must be
made 48 hours before the meeting. To make arrangements call (979) 764-3517 or (TDD) 1-800-735-2989. Agendas may be
viewed on www.cstx.gov. Council meetings are broadcast live on Cable Access Channel 19.
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March 11, 2010
Workshop Agenda Item No. 2
Wellborn Request for Consent to Incorporate
To: City Council
From: Glenn Brown, City Manager
Agenda Caption: Presentation, possible action, and discussion regarding a request
for consent to incorporate submitted to the Council by “Citizens for Wellborn”,
including consideration of pros and cons for the City should consent be granted and a
discussion of alternative (to incorporation) means of addressing objectives stated by
“Citizens for Wellborn” and consideration of Resolutions for and against the granting
of consent for incorporation.
Recommendation: Staff recommends against the granting of Consent to
Incorporate and that Council provides further direction relative to the application and
pursuit of alternatives to incorporation.
Summary: On February 2, 2010 residents of the Wellborn area presented a request
to the City Council for Consent to Incorporate an area adjacent to College Station.
At their February 11th meeting the Council directed staff to prepare a workshop item
for March 11th detailing the pros and cons to the City of incorporation of the area
identified in the request and further to provide information regarding alternative
means (alternative to incorporation) to address the objectives for incorporation as
stated by the Wellborn area residents. Council has further indicated that they may
consider conducting a public hearing on the request at a later Council meeting.
Staff has met with representatives of the Citizens for Wellborn Executive Committee.
On February 19th staff requested further information from the Executive Committee
relative to the pros and cons of incorporation and the Committee’s stated objectives.
Staff has met with developers/builders working near the area identified in the
request for consent. Staff has discussed the request for Consent to Incorporate with
a number of property owners in the ETJ (both within the proposed incorporated area
and outside of the area). Further, the various City departments responsible for
delivery of public services have met and discussed the requested action. The
information contained within the presentation is the combination of the results of
these discussions and other analyses performed by staff.
Budget & Financial Summary: Varies – Detailed information will be provided at
the Council workshop
Attachments:
1. Citizens for Wellborn Coversheet accompanying the Application Seeking
Consent for Incorporation of Wellborn
2. Citizens for Wellborn “Filer’s Certification” of the Application Seeking Consent
for Incorporation of Wellborn
3. Citizens for Wellborn informational document “Exploring the Incorporation of
Wellborn, Texas”
4. Map representing the area proposed for incorporation
5. Copy of LCG 42.041
6. Copy of State of Texas ex rel. WD Needham et al v. Jess Wilbanks et al –
Supreme Court of Texas (1980)
7. Resolution granting consent to incorporate
8. Resolution denying consent to incorporate
6
7
8
9
Exploring the Incorporation of
Wellborn, Texas
Submitted to the College Station City Council
2/2/2010
Citizens for Wellborn
A non-profit organization
10
Exploring the Incorporation of Wellborn, Texas
Prepared by Karen W. Severn, Secretary, Citizens for Wellborn
Submitted to
The City of College Station City Mayor and Council Members
Background.
The town of Wellborn began as a construction camp for the Houston and Texas Central Railroad. On the
1867 Brazos County map drawn by C.C. Stremme, the town of „Wellburn‟ is shown as one of four
towns in Brazos County.i During its early existence, Wellborn was a railroad town and a cattle shipping
point. In the past, Wellborn maintained its own schools and served as the last stop before the “College.”
In the mid 20th century, Wellborn dwindled to a small population. Today, the town boasts several small
businesses (including a woman-owned historically underserved business), the Precinct 1 Fire Station,
churches, cemeteries, dining establishments, and the Wellborn Community Center. The estimated
population included in the proposed city limits of Wellborn exceeds 2170.ii
Wellborn provides rural living for residents of the county that is conveniently located near medical,
educational, and retail opportunities, but allows for agricultural pursuits and a slower pace than the
larger cities of College Station and Bryan. Many families have lived in Wellborn for decades, passing
down traditions and land. Beginning in the 1970s, several rural subdivisions were developed, including
Woodlake (formerly Woodlake and Equestrian Estates), Quarter Horse Ranch, and Saddle Creek. These
new neighborhoods complemented the lifestyle of many Wellborn residents because of the acceptability
of keeping horses and other livestock „at home.‟
Wellborn exists in a mutually beneficial relationship with College Station, Bryan, and Texas A&M
University. The availability of rural living is attractive to many businesses and possible employees.
Additionally, Wellborn is already a destination. The Wellborn Community Center is a sought-after site
for office gatherings and retreats, wedding receptions, social events, and university-related activities.
Visitors also enjoy great food and BBQ, live music, and the friendliest small US Post Office in the
country.
Beginning in the 21st Century, residents of Wellborn became increasingly concerned that their rural
lifestyle was in jeopardy. Encroaching developments of tract housing caused residents to become more
proactive in staying informed of College Station development plans. The City of College Station is
conscientious in staying ahead of development and ensuring that their annexation plan remains current.
In 2008, community meetings were held and speakers have included Charlie Stone from the Office of
Rural Community Affairs, our State Representative Fred Brown, and County Commissioner Lloyd
Wasserman, among others. The idea of incorporating as a small rural town began to take root. Interested
residents began exploring laws and regulations and shared their findings with the community. Because
Wellborn exists in the ETJ of College Station, we will need to have permission from the City of College
Station before we can vote on the issue of incorporation. We are now asking that residents of Wellborn
be allowed to vote.
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Assessment.
In 2009, Citizens for Wellborn was officially created to serve as an interest group for the residents of
Wellborn. The CS Comprehensive Plan of 2009 showed that annexation was proposed in 0-3 years for
some parts of the area, and 3-10 years in other parts. While residents of Wellborn recognize that change
and growth are inevitable, we want the privilege and the responsibility to govern our development. Like
College Station residents, we also enjoy a quiet orderly life, but we want to pursue the lifestyle we have
chosen.
Pursuing incorporation has not been entered into lightly or on a whim. Citizens for Wellborn has held
several fundraisers to obtain the moneys necessary to explore the possibility. To that end, we have
engaged the legal services of Alan Bojorquez in Austin, Texas, to guide us through the procedure. We
have also used the manual created by Charlie of ORCA to answer the vital questions on whether
incorporation is our best path.iii
To gauge resident interest in various projects, during the January 23, 2010, Chili Supper at the Wellborn
Community Center, an informal brainstorming session was held. Questions such as “What does
Wellborn Like to Do?” and “What does Wellborn do Well?” were written on posterboard sized paper
around the room. The results are compiled in Appendix A and illustrate the unique character of our
community. Thus, Wellborn is beginning purposefully, not blindly.
During our research, we also found the City of Austin Policy for Extraterritorial Jurisdiction (ETJ)
Adjustmentsiv. On reading their policy, we found that the Guiding Principles they espouse have some
applicability in the case. In particular, principles one and two speak to our request:
1. The City of Austin should have not long-term annexation potential. The requesting jurisdiction
should be in a better position than the City of Austin to annex and serve the property in the short
term.
2. The release should serve the general public interest and convey benefits to all parties, either
through the extension of services, enhanced environmental protection, or through mutual
exchange of ETJ.
4. The release should not create a competitive disadvantage for similar development
situated nearby within Austin‟s jurisdiction.v
We believe that Wellborn is better positioned to provide services desired by the community, such as a
senior center and outdoor related projects, in the short-term than would the City of College Station. We
have a track record of doing projects as a community, from building and maintaining the Wellborn
Community Center and the Wellborn Cemetery, to raising thousands of dollars for Citizens for
Wellborn. Developing Wellborn as a rural town will serve the general public interest of citizens
throughout Brazos County. Wellborn will provide venues not currently available in College Station,
such as rural settings for events, a senior center to which all seniors will be welcomed, and a short-term
destination for visitors to College Station, in much the same way as the Bush Libr ary and Messina Hof
Winery currently function.
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Current and Future Services for Wellborn Residents
Service Current Provider Impact of Incorporation
Electricity BTU None
Water Wellborn SUD None
Solid Waste BAGS or drop off in Millican or
BVSWMA landfill None
Public Schools CSISD None
Fire Services Pct 1 South Brazos VFD None
Cable Service Satellite or over the air None
Telephone Verizon None
Law Enforcement Brazos County Sheriff None
Road Maintenance Brazos Co. Road & Bridge Additional costs
Should Wellborn incorporate, future services for Wellborn residents will be determined by the citizens
of Wellborn. These may include a senior center, parks, trails, horse-related activities and events, arts &
crafts venues and more.
We have examined several small cities, including Onalaska, Wixon Valley, Kurten, Union Valley and
others, to see the type of services provided by a small town and the associated expenses.
13
Benefits of Incorporation:
We will set our own rules and regulations. Residents have strongly voiced that they are interested
in determining their own future and in having a government that is closer to them by virtue of
being a smaller unit
We control the use of land. Wellborn will be able to control the planning & zoning of our area
for purposes which the citizens desire.
Availability of grants for small and/or rural communities. A distinct advantage of incorporation
is the possibility of obtaining various grants from the state and federal governments. These are
not available to larger cities.
Establish our own tax program. Residents will be able to determine the level of taxation that is
appropriate for our goals.
Control Building Construction. Currently, residents of Wellborn have no input on the style or
type of buildings in our area. We want to control our growth for reasons similar to those of
College Station.
Disadvantages of Incorporation:
We will need to find sources of revenue. Taxes will have to be levied, grants sought and
implemented, and other sources of income will have to be pursued. If incorporation is approved
by the voters, the soonest that property taxes can be received from the County Tax
Assessors/Collector will be January 2012. Sales tax could be collected as currently only state and
county sales taxes are collected.
We will need to provide road and bridge maintenance. As noted, after incorporation, roads which
are within the city limits of Wellborn will be maintained by Wellborn. In consultation with
Brazos Road and Bridge Department, we learned that we can contract with the county to
continue the services they are currently providing. Wixon Valley has a similar arrangement and
notes that the costs are not excessive.
Wellborn may be liable for damages. The board of directors of Citizens for Wellborn voted to
purchase coverage for its officers, realizing that holding public events and representing others
creates a potential liability area. Onalaska, Texas, located east of Huntsville in Polk County, is a
similar size town. An examination of their 2009-10 budgetvi indicated that they spent a total of
$5192 for general liability, errors & omissions, building insurance, and a blanket policy. NOTE:
Onalaska is located on Lake Livingston and operates a senior center, city hall, library, full-time
police force, and a volunteer fire department. Thus our initial insurance needs should not exceed
theirs as we do not yet have all of these assets.
Wellborn will be the Point of Responsibility. When people live in a municipality, they may feel
that City Hall can and will solve their problems Citizens for Wellborn feel that residents of
Wellborn are currently living without a municipal government and that they will not immediately
lose their independence and self-determination. As Wellborn matures, Citizens for Wellborn
recognize that this may change and that the expectation of residents will increase.
Funds may come with strings attached. Most grants include various requirements and are not
usually outright gifts. Citizens for Wellborn recognizes the knowledge and expertise of its
residents, many of whom are professors and extension agents. These professionals are
accustomed to applying for and administering all types of grants. The City of Wellborn may
choose to create a citizen input board comprised of various experts who can assist the city
14
council in selecting and applying for grants. Please see Appendix B for grants uncovered during
our research.
Conclusion.
Overall, we believe that the residents of Wellborn, if given the right to vote by the City of College
Station, will be able to determine what is best for their community. We have spoken with many of the
members of the City Council and appreciate your willingness to listen to our concerns and our plans for
the future.
The Members of the College Station City Council are the only persons who will decide whether
residents of Wellborn are allowed to vote in the upcoming election. We are happy to speak with
members of the Council to provide additional information.
Karen W. Severn, MPA
Secretary, 229-2136, ksevern@gmail.com
i Frantz, J., and M. Cox. 1988. The Lure of the Land. Texas A&M University Press: College Station, Texas.
ii Through tax appraisal records and by driving through the proposed incorporation area, Citizens for Wellborn counted at
least 775 homes and residences. Using a home size of 2.8 persons per residence, the estimated population is at least 2170.
iii http://www.tdra.state.tx.us/pdfs/Incorp_Manual.pdf
iv http//www.cityofaustin.org
v http://www.ci.austin.tx.us/annexation/extraterritorial.htm
vi 2009-10 Onalaska Approved Budget, „http://cityofonalaska.us. Included in Appendix C
15
.ens. was driving
'Mrs. Bobo and.
; the trial court's '
riew of the. jury
dee does not. use
le consent of the
.as an. additional
clause .of a liabil-
2 after an .agree-
ery is made, the
has control over
v. Aetna Ins; 'co.,
964). .The seller
a security inter-
r and seller, the
!ss or control the
man, 294 S.W.2d
m Antonio 1956,
the terms of the
1 proof of insur-
n of the pickup,
to .possession and
se of the vehicle.
i completed con-
formed by deliv-
:e for the consid-
e to pay Avett's
procurement of
'his contract was
Havens fdled to
refinancing the
3refore, when the
.was not driving
:ause he did not
to driJe his own
ct to buy, he had
the use of the
him, and no one
.mission to drive.
a; at 877.
tt had no authori-
vendee, Havens,
suck. The condi-
ve under the au-
vendor because:
ger owned by the
2 as will, legally
sured to give or
STATE EX REL. NEEDHAM V. WILELINKS . Tex. &49
Cite as, Tex, 695 S.W.2d 849
withhold his permission, or consent to the -..Under the stipulations in the record, how-
use of the automobile by the conditional ever, Mrs. Bobo and Mrs.'Lambert are enti-
vendee, since the vendor, though re'tain- tled to judgment under Mrs. Lambert's un-
ing title to the. car until fully. paid for, insured motorist policy with commercial
does's0 for security reasons only and has Standard. . Therefore, the judgment' of the
no control over the car and no right to its court of civil appeals is reversed, and judg-
use. ment is rendered that Mrs. Bobo and Mrs.
weathLrfbrd v. Aetna fns.., Co.; supra, at Lambert are entitled. to recover damages
382. . . according to the policy terms of the Com-
snyder. v.. ~ll~ht~ insurance co., 485 mercial Standard policy and the stipulations
S.W.2d 769 (Tex.1972), relied on by Mrs. of
Bobo . and. Mrs. Lambert,' is inapplicable
here. In Snyder the court recognized that
under a change in the prescribed policy o 5 KEYNUMBERSYSTEM
provisions, actual owne'rship was immaterial
to the question,whether the named insured
.-
had an.insurable interest in a vehicle. Al-
though an insurable interest is not depend-
ent on ownership, it does not follow that
the named insured no longer needs to have The STATE of Texas ex re]. W. D. .
control over the use of the vehicle before he NEEDHqM et al,
can grant permission to drive it. In Snyder v. the named insured parent retained control
I over his minor daughter's use of the car. Mrs. Je~s WILBANKS et al.
His power to control the use of the vehicle No. B-8723.
was created by the parent-child relationship
and was recognized by his daughter. Supreme Court of Texas.
Gulf Ins. Co. v, Winn, 545 S.W.2d 526 Feb. .20, 1980. ' .
(Tex.Civ.App.--San .Antonio 1976, writ Rehearing Denied April 16, 1980.
ref'd n. r. e.), is .also distinguishable. The
issue in Winn was whether -the named in-
1 s~ired had to actually own the insured vehi- State petitioned for re$iew of a deci-
cle. 'The court held that as long as the ,ion of the Waco Court of 'civil Appeals,
named insured might iricur liability because Tenth suprem& judicial ~i~t~i~t, '583
of the use of the.vehicle he had an insurable s.w.2d 914, 'M~D~~~]~, J., affirming juag-
interest and did not have to own the vehi- merit of the District Court N~. 19, McLen-
'In' Winn the driver was operating the ,an County, Logue, J., upholding validity of
vehicle under the named insured's authority incorporation, ~h~ supreme court,
and ,was 'driving with his permission. Spears, J., held that: (1) community, khich '
Therefore, the driver was covered by the had no compact center or nucleus of popula-
policy's omnibus clause. tion around which town had developed, the
In this case Avett had neither the right area of ivhich was rural in character and
nor the power to' control Havlens' use of the appearance, and was not capable of receiv-
pickup truck. A buyer of a vehicle does not ing municipal services on any reasonable
beconie an additional insured under the sell- basis, was a "rural community" immediate-
er's policy merely because of the conditional ly prior to incorporation and did not consti:
nature of the sales transaction. Thus, Mrs. tute a "city," or "town" so as to be authoriz-
and Mrs. Lambert are not entitled to ed to be incorporated, and (2) legislatioli
recover under Avett's policy with Gulf be- which validated incorporation proceedings
Havens was not an additional insured of all. cities and ,towns incorporated or at-
under the policy. tempted to be incorporated before such
1
! 595 SOUTH WESTERN REPORTER, 2d SERIES
statute's effective date did not validate in- SPEARS, Justice.
Petitioner, the . State of Texas, ' acting
through the district attorney of McLennan
County on relation of W: D. Needham and
, others, seeking to declare the incorporation
of the City of Hallsburg invalid. After a
jury trial; the trial'court rendered judgment
Purpose of incorporation statutes is not for defendants upholding the validity of the
to create towns and villages, but to allow incorporation, and the court of' civil appeals
those already in existence to incorporate. has affirmed.. 583 S.W.2d 914. We reverse
Vernon's Ann.Civ.St. art. 966; Vernon's the judgment of the court of 'ciqil appeals
Ann.St.Const. art. 11, $ 4. and render judgment for the State.
The community of Hallsburg has existed
2. Municipal Corporations ,-5 since 1901, and is situated east of the City .
community which had no compact ken- of .Wac0 and west of the City of Mart in
ter or nucleus of population around which what witnesses characterized as a basically
town had developed, the area of which was rural area of McLennan County. Although
rural in character and appearance, and was in years past, Hallsburg included a railroad
not:ipable of receiving municipal services station, a cotton gin, and two stores, all of
on any reasonable basis,.'was a "rural ,corn- these had been abandoned by the mid-
rnunityM immediately prior to incorporation 1960's. At the time of incorporation in
and did not constitu,te a flcityu or yownu so December of 1973, the community cluster
as to be authorized to be 'incorporated. included five residences, a church, and a
two. of the residences were not included in
the incorporated city limits. .
for other judicial constructions and The configuration of the. incorporated
area is rather unusual, consisting of strips
200 to 500,feet in width running along 3. Municipal Corporations -15 county and state roads for a distance of
Only a city or town in existence may be over 31 miles? The western edge of the
incorporated, ,and legislation which validat- area consists of a thirty foot strip of land
ed iniorporation .proceedings of all cities contiguous to the five mile extrate~ritorial .
and tow~s incorporated or attempted to be jurisdi'ction boundary .of .the City of Waco.
incorporated before such statute's effective This strip has rio road or.physica1 character- ,
date did.not validate incorporation of com- istics that would enable it to be found on
munity'which was n6t ot city or town. Ver- the ground. ' The proponents of incorpora-
non's Ann.Civ.St. arts. 966, 974d-21, § 4; tion testified that the Hallsburg community
Vernon's Ann.St.Const. art. 11, § 4. includes the entire area covered by the in-
corporated limits of the City of Hallsburg,
but admitted that, as incorporated, it was
Within the corporate,:limits there are a
Shee,hy, Lovelace & .Mayfield, J. Robert total of seventy-eight residences, one school,
Sheehy, Waco, for. respondents. three businesses, and two churches. There
that shows the incorporated area.
action brought by
f Texas, ' acting
ney 6f McLennan
D. Needham and
the incorporation
invalid. 'After a
mdered judgment
the validity of the
rt of'civil appeals
914. We reverse
*t of citil 'appeals
the State.
sburg has existed
1 east of the City
: City of Mart in
zed as a basically
ounty. Although
~cluded a railroad
two stores, all of
led by the mid-
incorporation in
>mmunity cluster
a church, and a
:h, the school, and
*e not included in
S. ,
the incorporated
bnsisting of strips,
h running along
'or a distance of ,
tern edge- of the
Foot strip of land
le extraterritorial
he City'of Waco.
hysical character-
t to be found on
:nts of incorpora-
sburg community
wered by the in-
5t.y of Hallsburg,
orporated, it was
the northern part
the city without
mits there are a
lences, one school,
churches. There
: in the trial court
STATE. EX REL. NEEDHAM V. WILBANKS
Cite as, ~ex.,'595 S.W.2d 849
Tex. 851
are forty-three residences immediately out- town, and (2) whether the incorporation of
side ; the corporate lineg. None of the busi- Hallsburg was validated by ~ex.~e'v.~iv.
nesses and neither of thb churches is located Stat.,Ann. art. 974d-21m2 The jury found
in the cluster of buildings known as Halls- that Hallsburg was an existing town prior
burg. One store is located in the communi- to its incorporation, and the court of civil
ty. of Elk; one is oq the western 'end of appeals held that there was sufficient evi-
Trading House Creek Lake; and one is near dence to support the jury's finding. We
the intersection of Stak Highways 164 and . cannot agree and hold that as a matter of
, ,6. .There are 'no public buildings in the law .Hallsburg did not constituk a city or
incorporated area. A Texas Power and town and lacked the status required to uti-
Light Generating Station on Trading House lize the incorporation statutes.
Creek ~$ke is included in,the incorporatiqn,
but there are no residences on that proper- 111 Article XI, § 4 of the Texas Consti-
ty.' ~xcebt for the small clus$rs at Halls- tution provides that "~iti&,and towns hav-
burg.and at Elk, over 6% miles away, there ing a population of five thousand or less
is' no udtjr of pioximity between residences, may be chartered alone by general law."
with a distance between residences of as (emphasis added). The Constitution 'does .
; much. as 3% miles in two instances and not define a city or town. The enabling
more than a mile in several others. Only legislation., article 966, provides:
two-thirds of the Elk community was in- Any qity or town contain,icg six hun-
eluded in the in'corporated area. dred inhabitants or over may be incorpo-
The incorporatibn in hispute was ordered rated as such, with ali the powers, rights,
od. Deceinber 6,' 1973, by the cdunty judge immunities and privileges mentioned and
of McLenian County pursuant to a petition described in the, provisions of this title
. filed by residents of the Hallsburg area and relating to cities and towns, in the man-
an'affirmative vote of seve'nti-foiri to e\ghl ner described in Chapter 11 bf this title
' teen in in election called by. him. for incorporating towns and villages
action to set aside the inibrporation . . was '. . . . added).
filed on December 28, 1973. . The purpose of the incor6oration statutes 'is
petition&s codtend &at the area .iught not to create towns and villages~ .. . but to
to be incorporated as city of ~~ll~b~~~ Allow those already in existence%$ incorpo-
did not, and still does not, the char- rate- Incor~oration con@m~lates the exist-
acteristics of a city or town at the time of ence of an actua "illage, town1 or' city.
the incorporation.and therefore could not as Ewjng v* State ex re]. Pollard, 81'Tex. 1721
a .matter of law be incorporated und& the 16 S.W. .8721 878-74 (1891); Rogers v-
provisions of the Texas Constitutibn ,and Raines1 512 S.w-2d 7251 728 (T~~.C~~*APP.-
the statdtes. Respondelits argue that the Tyler 19741 writ ref'd n, r. e.); Harang v.
: . communit~ of HallsbuSg has existed since State ex re]. City of West Columbia, 466
1901 and th'Zit the required minimum of 600 S.W.2d 8, 11 (Tex.Civ.~p~.- ousto on [14th
people lived within ti two squark bile area. Dist.1 1971, no writ).
They justify the unique configuration of ' [21 In State ex re]. Taylor ;/. JJ&~~,'~~
the incorporated city limits as an attempt to Tex. 302, 15 S.W. 263,264 (1890)~ this court
exclude agricultural lands as required I?Y set out certain criteria that would establish
the statute. ' the existence, or nonexistence, of a town:
The issues presented are: (1) whether the No definition of the word 'town' .is given,
State established, as a matter of law, that and it follows that we must take the
the area incorporated as the 'City of Halls- word on its ordinary signification-a col-
burg did n~t'~reviously constitute a city or lection of inhabited houses. The. term . .
2. A11 statutory references are to Vernon's Texas Civil Statutes Annotated.
595 SOUTH WESTERN REPORTER, 2d SERIES
. carries with it the idea of a considerable covered by the incorporation receives elec-
, aggregation of people living in ' close tricity. from rural electric' cooperatibes,
proximity. A town population is distin- wateii from four 'water supply corporations
guished from a rural population, which is fina&ed under the Farmer's Home Admin-
understood to signify a people !scattered istration program for rural areas, and tele-
over the country, and engaged in agricul- phone seriiice 'from the telephone company
tural pursuits, or some similar avocations, in Warn. Gas and garbage pick-up are
1 requiring a considerable area of territory furnished directly to individual residents bj;
I .,for its support. A section pf country'so private contractors. Fire protection is fur- .
inhabited cannot be called a town, nor nikhed 'by a volunteer fire department
I
treated as part of a town, without-doing which covers an area much larger than'the
I violence to the meaning ordinarily at- incorporated limits, and polibe.protection i$
l~ched tdfthat word- (emphasis' added). provided by the regular employees of the
proximity betwe&, the habitations so as- different, school districts* .,,
. .' sembled. to constitute a town or village. W, F. Soules, an engineer who specializes
To be entitled to in~rporate, the area of in municipal development, testified without
the town Or village should be susceptible contradiction that because .of the terrain
. of Hallsburg is nqt capable of furnishi.ng
pick-up, street maintenance, sewer, yater, to the other.
eiectricit~, or natural gas-. ~t had no ~aa In Harang v. State ex re]. city of West
employees, no city stre-, no city hall, and Columbia, :supral 466 S.W.2d 8, the court
no ad valorem taxes, and provided no held that the Wild Peach community ,did
municipal services- The only. municipally not, as a matter of law, eonstitu& a .yil1agel
related acts performed by the City of Halls- an4 thus, the attempted incorporation of .
burg have been assisting the volunteer fire the community .was invalid. H&.~~~, the
purchase a truck incorporated village had an unusual config-
the United States Forest SerGce, 1evy;ng a uration in that the ,area incorporated lay , one percent sales taxi enlisting private adjacent to about fifteen miles of ~9unty
concern; the mayor's' son, to pick UP gar- roads. dlong these roads, there were som?
n reeives elec-
C' cooperatives,
?ly corporations
3 Home Admin-
areas, and tele-
phone companf;
Ee pick-up are
ual residents bjr
:otection is fur- .
re dep&tr?ent
larger than 'the . .
ce. protection is.
~ployees of the
s office! The
schools in three . .
who specializes
:stified without
of the terrain
e city, the City
? of furnishing
?asonable basis..
ity is located in
a ciij;' sewage
*e four separate
testified that
a city plan, a
plan' for police;
ctrical se'rvices
K strips in the
y oi leaving tlie
le part of town
1. City of West
:d 8, the court
community did
titute 9 ,village,
~cor~o;ation of .
In ~?ian~, the
unusual config-
~corporated lay .
liles of cpunty
lere were some
rnes that were 1 by as much as
' lusters. There
e .incorporated
u~inesi. h he
f law .that the
t STATE EX REL. NEEDHAM v. WILBANKS Tex. 853 .
Clte as; Tex., 595 S.W.Zd 849
area sought to be incorporated did .not con- tutional provision authorizing incorporation. '
stitute a town or village within the mean- Therefore, Hallsburg was not validly incor-
ings of those words as defined in State ex porated.
re]. Taylor v. Eidson . - ;" Id- at 12- Respondents contend that despite any
In another case that was factually similar flaws existing in the incorporation of the
to the present one, Rogers v. Raines, supra, City of Hallsburg, the legislature has vali-
512 S.W.2d 725, the court invalidated the dated the proceedings with. the passage of
incorporation. of the town of Tucker. The article 974d-21, effective ' September 1,
incorporation covered a~i area of unusual 1975. This validating statute reads in part:
configuration in a basically rural area. The Section 1. The incorporation proceed-
corporate limits in that case were drawn ings of all cities and towns incorporated
adjacent to the public highways in the im- or attempted to be incprporated under
mediate vicinity. The distance covered by the general laws before the effective date
the boundaries exceeded twenty miles in of this Act, which have functioned or
length. There were 105 residences and ten attempted to function as incdrporated
businesses in the incorporated area. The cities or towns since their incorporation
"town" did not operate the water system in or attempted incorporation, are validated
the area. There was no garbage service, no in all respects as of the date of the incor-
sewer system, no taxes collected, no city poration or attempted incorboration.
employees, no fire department (volunteer The incorporation proceedings may not be
fire department), no-police department, and held .invalid because they were not per-
no established rriunicipal streek, within the formed in accordance with law.
corporate limits. The court found that
there was no unity of proximity between .
. residences, with a distance of two miles' Sec. 4. The provisions of this Act
separating neighboring homes in one in- shall not apply to any city or town now
stance. The court could not find a compact involved in litigation questioning any of
nucleus of population around'which a town the acts or proceedings, bthbr than incor-
developed. Based upon those facts, the poration proceedings or boundary exten-
court held that, as a matter of law, "the sions, hereby validated if such litigation is
area sought to be incorporated does not . ultimately determined against the legali-
constitute a town or village.". Id. at 730. ty thereof; nor shall this Act be con-
. ~al]&~~~ is not a collection of inhabited strued as validating any proceeding
houses in close proximity, and there is no which may have been nullified by a fi.nal
compact center or nucleus of population judgment of a court of competent juris-
around which a town has developed. Resi- diction-
dences are widely scattered, with only occa- Respondents point to the language of set-
sional clusters. The area is rural'in charac- tion 4 which provides that matters then
ter and appearance, and it is not capable of involved in litigation are exempted from
receiving municipal services On any reason-. validation by the statut& except for ''incoy-
able basis. The mayor and each of the poration proceedings." Since this suit was
original city council members who testified filed in December of 1973, they contend
acknowledged that the property on which that the "incorporation proceedings" in-
their homes were located was used for volved here have been validated by section
cultural purposes. The evidence establishes 1 of the act, citing Perkins v. stab, 367
as a matter of law that Hallsburg was a S,W,2d 140 (Tex.1963).
rural colilmunity immediately prior to in-
corporation and did not constitute a city or [3] Under Article XI, Q 4 of the Texas
town as those terms are used in the consti- constitution and the enabling legislation,
.e -
I
I
595 SOUTH WESTERN REPORTER, 2d SERIES
refers to and affects. the status of towns The judgment of the court of ciGil ap-
Appendix to follow. .
-
xi' reliance on
1. There. the
tated; I met the
or town;and
:able.
rt of civil ap-
:nt is rendered
City of Halls-
OW.
STATE EX REL. NEEDHAM V. WILBANMS . Tex. 855
Cite as, Tex., 595 S.W.2d 849
March 11, 2010
Workshop Agenda Item No. 3
Noise Ordinance
To: Glenn Brown, City Manager
From: Jeff Capps, Chief of Police
Agenda Caption: Presentation, possible action, and discussion regarding modifications
to Chapter 7 Health & Sanitation, Sections 1 through 3 of the City of College Station Code of
Ordinances as it relates to noise and nuisance.
Recommendation(s): None
Summary: This item is a follow up to Council initiated discussion and a previous workshop
item on nuisance noise presented in February 2009.
Noise is a reoccurring issue in College Station. While great strides have been made to
address loud party scenarios in a timely manner, there are other nuisance noise concerns
that arise from time to time. During our review of the City’s ordinance as it pertains to
noise, it was determined that the ordinance was dated, conflicting and created prosecutorial
difficulties. As such, the legal department has created a draft of the ordinance to address
these issues.
Staff seeks Council direction on the draft ordinance.
Budget & Financial Summary: N/A
Attachments:
1. Memorandum from Senior Assistant City Attorney, Adam Falco
2. Old ordinance with noted modifications
3. Draft ordinance
27
LEGAL DEPARTMENT
P.O. BOX 9960 • 1101 TEXAS AVE S
COLLEGE STATION • TEXAS • 77842
OFFICE 979.764.3507• FAX 979.764.3481
LEGAL DEPARTMENT
MEMORANDUM
TO: Chief Capps and Assistant Chief McCollum
FROM: Adam C. Falco, Senior Assistant City Attorney
DATE: March 4, 2010
RE: New City Ordinance on Noise and Nuisances – Chapter 7 §§1-3
The Legal Department has reviewed Chapter 7 Health and Sanitation §§ 1-3 and has made
changes to it for a more efficient prosecution of noise and nuisance violations in the City. The main
change is to the noise section of the ordinance. The City’s noise ordinance was drafted over 15 years
ago and there are several problems with the old ordinance. The following reasons are why the
ordinance will not make an effective prosecution of a noise violation and why a new ordinance was
drafted.
The main problem with the old ordinance is it uses a great deal of language to express a
simple offense. In §2 (B) “Prohibited Generally”, the ordinance describes “loud noise” with too
many unnecessary descriptors. These descriptors for loud noise include: volume, level, duration and
character. Evidence must be presented to prove each one of those descriptors for an offense. The
new ordinance requires only proof of “unreasonable noise” and the plain meaning of the words are
used for prosecution. A prosecution under the new ordinance will be more efficient because the use
of “unreasonable noise” takes into consideration if the noise was at night or during the day or the
time, place, and manner the noise is created by the use of unreasonable along with the decibel
readings for noise.
The City’s old ordinance also limits the places that the loud noise can be heard. These limits
include: driveways, occupied residential units, and schools and public buildings in use. These
limitations would be another element of the offense to prove. The only limitations in the new
ordinance are for construction and property maintenance between 7 A.M. and 10 P.M. and use of
properly maintained air conditioners. Also, another issue with the old ordinance is in §2 (B) (2) and
(3), the mental state “willfully” is omitted, showing inconsistencies, and in (B) (3) “clearly audible”
is an added term to describe noise and this would be another element to prove.
28
Noise and Nuisance Ordinance Memo
Page 2
The old ordinance also contained two separate and different definitions of public nuisance –
noise. In Chapter 7 §2 “Noise” (C) “Nuisances” is different from Chapter 7 §3 “Public Nuisance” (B)
(2) “Nuisance Specifically Defined”. There should not be different language for the same offense.
This creates notice problems and enforcement problems. In § 2(C) “Nuisances” there is language
regarding motor vehicles that is also covered by the Penal Code §42.01 and by the Transportation
Code §547.604 for motor vehicle muffler noise. This was corrected by eliminating the
inconsistencies and just having one meaning of unreasonable noise.
The noise and nuisance sections of the old ordinance were combined in the new ordinance in
§2, so in Chapter 7 there will not be a §3 of the new ordinance. Some other changes in the new
ordinance were made to reflect state law and other minor changes to style and form. In §1(C) of
Chapter 7 the notice requirements were modified to conform to Texas Health and Safety Code
§342.006. The State law provides for a one year limit on notice and the old ordinance provided just a
six month limit on notice for nuisance violations. The notice time pertains to the time, when after
proper notice has been given, the City can abate a nuisance without giving a new notice. All the
changes to Chapter 7 will make for a more efficient application and enforcement of the health and
safety ordinances.
29
CHAPTER 7
HEALTH & SANITATION
SECTION 1: STAGNANT WATER, TRASH, GRASS, ETC.
A. PROHIBITED CONDITIONS DESIGNATED - STAGNANT WATER
It shall be unlawful for any person who owns or occupies any lot in the City to permit or allow holes or places where water may accumulate and become stagnant to be or to remain on such lot or to permit or allow the accumulation of stagnant water thereon or to permit the same to remain thereon.
B. PROHIBITED CONDITIONS DESIGNATED - ACCUMULATION OF TRASH,
CARRION, FILTH, ETC.
It shall be unlawful for any person who owns or occupies any house, building, establishment, lot, or yard in the City to permit or allow any trash, rubbish, carrion, filth, or other impure or unwholesome matter to accumulate or remain thereon or therein.
C. PROHIBITED CONDITIONS DESIGNATED - WEEDS AND OTHER UNSIGHTLY
VEGETATION
It shall be unlawful for any person owning, claiming, occupying, or having supervision or control of any real property within the City to permit weeds, brush, or any objectionable or unsightly vegetation to grow due to lack of vegetation management upon any such real property. It shall be the duty of such person to keep the area from the line of his property to the curb line adjacent to it free and clear of matter referred to above. Objectionable or unsightly vegetation includes all weeds and grasses that exceed twelve inches (12") in height.
Exempted from the provisions of this subsection are the following:
(1) State highway rights-of-way.
(2) Agricultural areas, agricultural meaning crop production and/or grazing.
(3) Heavily wooded areas filled with uncultivated underbrush.
(4) The cultivation of concentrated wildflowers from March 1 until June 15 of each year in areas where grasses and weeds do not exceed eighteen inches (18") in height.
(5) Areas that are zoned A-0 or A-OR.
Notice.
In the event that any person owning, claiming, occupying, or having supervision or control of any real property permits any condition to exist thereon in violation of this section, the City may notify the owner and occupant of such property of the failure to comply with this section and direct the owner and occupant to correct, remedy, or remove such condition within seven (7) days after such notice is received. Such notice shall be sent to the occupant at the post office address of the property and to the owner at the post office address as recorded with the Brazos County Appraisal District by United States Mail. If personal service cannot be obtained notice may be given by: publication at least once; by posting the notice on or near the front door of each building on the property to which the violation relates; or by posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates.
If the City mails a notice to the owner or occupant in accordance with this section and the
Comment [ACF1]: These sections were
modified, but the substance did not change.
30
United States Postal Service returns the notice as "refused" or "unclaimed", the validity of the notice is not affected and the notice is considered delivered.
The City in said notice of a violation may inform the owner and occupant by regular mail and posting notice on the property, or by personally delivering the notice, that if another violation of the same kind or nature that poses a danger to the public health and safety occurs within six (6) calendar months of the date of the notice, the City without further notice may correct the violation at the owner's expense and assess the expenses against the property.
If a violation covered by a notice under this subsection occurs within the six (6) month period, and the City has not been informed in writing of an ownership change, then the City may take any action permitted under this section and assess its expenses as provided herein. If, however, the City is informed in writing of a change of ownership within the six (6) month period and a violation of this section occurs, the City shall notify the new property owner of the violation and take such other steps as are provided in this section.
D. OBSTRUCTION OF VIEW OF TRAFFIC BY TREES, SHRUBS, ETC.
Trees, shrubs, bushes, plants, grass, or weeds growing at or near intersections in such manner as to obstruct the view of approaching traffic from the right or left are hereby declared to be a nuisance, and the City Manager is hereby authorized to remove the same.
E. CORRECTION OR REMOVAL OF CONDITION BY CITY
If any person notified as provided in subsection C fails or refuses to correct, remedy, or remove the condition specified in such notice within seven (7) days after the date of notice by letter or within seven (7) days after the date of publication of notice in the newspaper, the posting of the notice on or near the front door of each building on the property to which the violation relates, or the posting of the notice on a placard attached to a stake driven into the ground on the property to which the violation relates, the City may go upon the property and do such work or make such improvements as are necessary to correct, remedy, or remove such condition. The expense incurred pursuant to this subsection in correcting the condition of such property, and the cost of notification shall be paid by the City and charged to the owner of such property. In the event that the owner fails or refuses to pay such expense within thirty (30) days after the first (1st) day of the month following the one in which the work was done, the City shall file with the Brazos County Clerk a statement of the expenses incurred. Such statement shall state the name of the owner, if known, and a legal description of the property. From the date the statement is filed, the City shall have a privileged lien on such property, second only to tax liens and liens for street improvements, to secure the payment of the amount so expended. Such amount shall bear interest at the rate of ten percent (10%) from the date the City incurs the expense. For any such expense and interest, suit may be instituted and recovery and foreclosure had by the City. The statement of expense filed with the County Clerk or a certified copy thereof shall be prima facie proof of the amount expended in such work, all as more particularly specified in Chapter 342, Vernon's Annotated Texas Civil Statutes, which is hereby adopted.
(Ordinance No. 2592 of November 21, 2002) SECTION 2: NOISE
A. DEFINITIONS
(1) dBA - means the abbreviation of the sound level in decibels determined by the A- weighting network of a sound-level meter or by calculation from octave band or one- third (1/3) octave band.
(2) Decibel (dB) - means a unit of measure on a logarithmic scale, or the ratio of a
Comment [ACF2]: This section was modified to
conform to TX Health and Safety Code 342.006
because it deals with notice requirements.
Comment [ACF3]: This section was modified,
but the substance did not change
Comment [ACF4]: This section is removed in its
entirety because it is governed by state law in TX
Health and Safety Code 342.006
Comment [ACF5]: The contents of Section 2
Noise should be deleted in its entirety and be
renamed Section 2 “Unlawful Conduct Related to
Health and Safety. See attached memo with
explanation.
31
particular sound pressure squared to a standard reference pressure squared. For the purpose of this ordinance, twenty (20) micropascals shall be the standard reference pressure.
(3) Motor vehicle - means any and all self-propelled vehicles as defined by the Texas Traffic Code, including all motor vehicles subject to identification under such code and all motor vehicles exempted under such code.
(4) Noise - means the intensity, frequency, duration and character of sound, including sound and vibration of subaudible frequencies.
(5) Noise level - means the maximum continuous sound level or repetitive peak level produced by a source or group of sources.
(6) Sound amplifier - means any radio receiving set, microphone, musical instrument, phonograph, speaker(s) or other machine or device for the producing or reproducing of sound.
(7) Sound level - means in decibels the weighted sound- pressure level measured by the use of a sound-level meter satisfying the requirements of ANSI Sl.4, 1971, Specifications for Sound-Level Meters.
(8) Sound-Pressure level - means in decibels twenty (20) times the logarithm to the base of ten (10) of the ratio of a sound pressure to the reference sound pressure of twenty (20) micropascals.
B. PROHIBITED GENERALLY
(1) It shall be unlawful for any person to willfully make or cause or allow to be made or allow to be continued any "loud noise" which term shall mean any sound that because of its volume level, duration or character annoys, disturbs, injures or endangers the comfort, health, peace or safety of reasonable persons of ordinary sensibilities within the limits of the City. Quieter standards shall prevail during the night-time hours of 10:00 p.m. to 7:00 a.m.
The term shall be limited to loud noise heard:
(a) in any occupied residential unit which is not the source of the noise or upon the yard, or;
(b) in the driveway of such residential unit;
(c) in a school or public building or upon the ground thereof while in use, upon any parking lot open to members of the public as invitees or licensees, and in any event from a location not less than less than fifty feet (50) from the source of the noise measured in a straight line from the source.
(2) No person in possession and present in any premises shall make or cause or allow to
be made or allow to be continued any loud noise, including the loud noise that
results from a gathering of people, which term shall mean any sound that because of its
volume level, character or duration, annoys, disturbs, injures or endangers the
comfort, health, peace or safety of reasonable persons of ordinary sensibilities within the
limits of the City. Quieter standards shall prevail during the night-time hours of 10:00
p.m. to 7:00 a.m.
32
The term shall be limited to loud noise heard:
(a) in any occupied residential unit which is not the source of the noise or upon the yard, or;
(b) in the driveway of such residential unit;
(c) in a school or public building or upon the ground thereof while in use, upon any parking lot open to members of the public as invitees or licensees, and in any event from a location not less than less than fifty feet (50) from the source of the noise measured in a straight line from the source.
(3) No person shall make any loud noise or operate a sound amplifier so as to be clearly audible to any occupant of a neighboring property at any point on the boundary line separating the two (2) properties at a level higher than sixty-five (65) dBA during the day (from 7:00 a.m. to 10:00 p.m.) or fifty-five (55) dBA during the night (from 10:00 p.m. to 7:00 a.m.). If the properties are not contiguous, then the sound shall be measured from the source in a straight line.
C. NUISANCES
The following acts are declared to be public nuisances:
(1) The using, operating or permitting to be played, used, or operated by any radio, amplifier, musical instrument, tape player, compact disc, compact tape or phono-graph or other device for the producing or reproducing of sound in such manner as to cause loud noise. This definition of nuisance shall also include noise generated from a motor vehicle which is either standing or moving.
(2) Yelling, shouting, whistling or singing or any prolonged sounds made by people at any time or place so as to create a loud noise between the hours of 10 p.m. and 7:00 a.m. of any day.
D. EXEMPTIONS
The term loud noise does not include noise or sound generated by the following:
(1) Cries for emergency assistance and warning calls.
(2) Radios, sirens, horns and bells on police, fire and other emergency response vehicles.
(3) School athletic events in school facilities, provided that such activities have been authorized by the owner or agent of such facilities.
(4) Fire alarms and burglar alarms prior to the giving of notice and a reasonable opportunity for the owner or tenant in possession of the premises served by any such alarm to turn off the alarm.
(5) Necessary construction or property maintenance, including the use of lawnmowers, during the hours of 7:00 a.m. to 10:00 p.m.
(6) A permit is sought and obtained from the building Official, and the Building Official concludes that because of the construction operations involved, such as the placement of concrete or other construction work, requires work to begin before
Comment [ACF6]: This section is in the new
ordinance because we do not want the use of lawn
equipment to be illegal.
33
7:00 a.m. or end later than 10:00 p.m.
(7) Construction work in public rights-of-way and/or easements by the City or the Texas Department of Transportation.
(Ordinance No. 2780 of January 27, 2005)
E.PARKS BOARD TO SET AMPHITHEATER NOISE LEVEL STANDARDS
(1) The College Station Parks and Recreation Board after a public hearing may, from time to time, set the level of noise that may be generated or produced at the College Station Amphitheater. Such standards shall be provided to users of the amphitheater and shall be strictly adhered to by said users. Failure to adhere to the standards shall be a criminal offense under this chapter.
(2) The College Station Parks and Recreation Board may after a public hearing at which the alleged violating user may present evidence ban said user who has violated the standards from future use of the amphitheater. The standard of review of the decision of the College Station Parks and Recreation Board shall be the substantial evidence rule.
F. ENFORCEMENT
Any person aggrieved by loud noise or the operation of amplification device or similar equip-ment that produces loud noise in violation of this ordinance may complain to the College Station Police Department who shall enforce this ordinance. The police are also hereby authorized to enforce said sections without any such complaint. Nor shall the police be required to verify the decibel level by use of a sound level meter.
G. SEVERABILITY
It is the intent of the City Council that this Ordinance be construed to secure for the people freedom from unwanted loud noise as described herein without violating any of the rights secured by the Constitution to the people. In the event that any provision contained herein should ever be determined to be invalid for any reason, it is the intent of the City Council that the remaining provisions continue in effect to the extent that they can be enforced notwith-standing such determination and therefore the provisions of this ordinance are declared sever able.
H. PENALTY PROVISION
(1) The City is hereby authorized to seek court action to abate any noise nuisance in lieu of or in addition to any other enforcement remedies that may be available.
(2) The general penalty provision of Chapter 1 of the College Station Code of Ordi-nances shall apply to violations of this ordinance.
(Ordinance No. 1996 of February 11, 1993) SECTION 3: PUBLIC NUISANCES
A. DEFINITIONS
(1) A public nuisance is a thing, act, occupation, or use of the property which shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons; shall offend the public decency; or shall in any way render any
Comment [ACF7]: This section will be in the
new ordinance to help with construction noise.
Comment [ACF8]: This section will be in the
new ordinance because of Wolf Pen Creek
Amphitheater.
Comment [ACF9]: Section 3 will be deleted in
its entirety and be renumbered as Section
2”Unlawful Conduct Related to Health and Safety.
34
considerable number of persons insecure in life or in use of property.
(2) The term person shall mean and include any natural person, association of persons, partnership, corporation, agent or officer, and shall also include all warehousemen, common and private carriers, bailees, trustees, receivers, executors, administrators.
B. NUISANCE SPECIFICALLY DEFINED
The following specific acts, places, conditions, and things are hereby declared to be nuisances within the corporate limits of the City or outside the limits of the City for a distance of five thousand feet (5,000):
(1) Accumulations of manure or rubbish which are breeding places for flies, mosquitoes, or vermin.
(2) All loud or unusual noises and annoying vibrations which offend the peace and quiet of persons of ordinary sensibilities.
(3) All hanging signs, awnings, and other similar structures over the streets or sidewalks so situated or constructed as to endanger public safety.
(4) Filthy, littered, or trash-covered cellars, house yards, factory yards, vacant areas in rear of stores, vacant lots, houses, buildings, or premises containing trash, litter, rags, accumulation of empty barrels, boxes, crates, packing cases, lumber or fire-wood not neatly piled, scrap iron, tin, and other metal not neatly piled, or anything whatsoever in which flies or rats may breed or multiply or which may be a fire danger.
(5) Any unsightly building, pre-empted, or other structure, or any old, abandoned, or par-tially destroyed building or structure, or any building or structure commenced and left unfinished, or any abandoned well or excavation not properly protected and which may attract children and endanger them in the course of play.
(6) All places used or maintained as junk yards, or dumping grounds, or for the wrecking or disassembling of automobiles, trucks, or machinery of any kind, or for the storing or leaving of any machinery or equipment used by contractors or builders or by other persons, which said places are kept or maintained so as to essentially interfere with the comfortable enjoyment of life or property by others.
(7) The keeping of any lot or piece of ground on which there is located a pool or pond of unwholesome, impure, stagnated or offensive water.
(8) Fireworks
(a) The possession, storage, use, manufacture, assembling, selling, handling, transporting, receiving, offering for sale, or having in one's possession with the intent to offer for sale, use, discharge, ignite, detonate, fire or otherwise set into action, any fireworks as that term is defined by Section 202 of the Fire Prevention Code.
(b) Exemptions. This section shall not apply to: (i) the possession or use of signaling devices used by railroads, or others requiring the same, nor to signal flares or rockets for military or police use;
Comment [ACF10]: See attached memo for
explanation.
Comment [ACF11]: The code of ordinances
adopted the International Fire Code (2006 edition) in
Chapter 6 of the code of ordinances. Fireworks are
covered in Chapter 33 of the IFC in §3301.13.
It needs to be here to cover nuisances 5000 feet
outside the city limits.
35
(ii) the supervised public displays of fireworks provided that a permit for such fireworks display has been obtained from the State Fire Marshall or his designated representative; and
(iii) the transportation of Class C Common Fireworks, as defined in Article 5.43, Vernon's Annotated Texas Insurance Code, by motor vehicles which meet the Department of Transportation requirements for transporting Class C Common Fireworks. It shall further be lawful for bona fide fireworks dealers to transport Class C Common Fireworks.
(Ordinance No. 1988 of November 12, 1992)
(9) Open storage of commodities and materials for sale, lease, inventory or private use shall not be permitted in residential areas. Such materials shall not be located between the front of the structure and the street. Such materials shall be screened by a solid fence and shall not be visible from a public right-of-way. Commodities are defined as, but not limited to: appliances, automotive parts, building materials, firewood, furniture (excluding patio and lawn furniture), and landscape materials. Firewood stored in rear or side yards, and A-0, A-OR, and A-OX zoning districts are exempt from the screening requirements
(Ordinance No. 2302 of February 12, 1998)
C. PENALTY
Any person who shall knowingly cause or create any public nuisance, or permit any public nuisance to be created or to be placed upon or to remain upon any premises occupied by him or them shall, upon conviction thereof, be punished by being subject to a fine as provided in Chapter 1, Section 5 of this Code of Ordinances, as amended from time to time.
D. ABATEMENT OF NUISANCES
Notwithstanding any penal provision herein, the City Attorney is authorized to file suit on behalf of the city for such injunctive relief as may be necessary to abate such nuisance whenever any nuisance as herein defined is found in any place within the City or in any area outside the city limits for a distance of five thousand feet (5,000). Comment [ACF12]: Authority comes from LGC
217.042 and AG Opinion JC 0025.
36
ORDINANCE NO. ______
AN ORDINANCE AMENDING CHAPTER 7, “HEALTH AND SANITATION”, OF THE
CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY
AMENDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A
SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS:
PART 1: That Chapter 7, “Health and Sanitation”, of the Code of Ordinances of the City of
College Station, Texas, be amended as set out in Exhibit “A”, attached hereto
and made a part of this ordinance for all purposes.
PART 2: That if any provisions of any section of this ordinance shall be held to be void or
unconstitutional, such holding shall in no way effect the validity of the remaining
provisions or sections of this ordinance, which shall remain in full force and
effect.
PART 3: That any person, firm, or corporation violating any of the provisions of this
chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof
shall be punishable by a fine of not less than Twenty-Five Dollars ($25.00) nor
more than Five Hundred Dollars ($500.00) or more than Two Thousand Dollars
($2000.00) if the ordinance governs fire safety, sanitation, (not including
vegetation and litter violations), public health, rezoning, or as the Legislature may
amend from time to time. Each day any such violation shall continue or be
permitted to continue, shall be deemed a separate offense. Said Ordinances, being
a penal ordinance, becomes effective ten (10) days after its date of passage by the
City Council, as provided by Section 35 of the Charter of the City of College
Station.
PASSED, ADOPTED and APPROVED this ___ day of _________, 2010.
APPROVED: ATTEST:
____________________________________ _____________________________
MAYOR CITY SECRETARY
APPROVED:
_____________________________
CITY ATTORNEY
37
Ordinance No.________ 2
Exhibit A
That Chapter 7 “Health and Sanitation” is hereby amended by amending Sections 1 and 2
of the Code of Ordinances of the City of College, Station Texas and to delete Section 3 in its
entirety and is to read as follows:
CHAPTER 7 HEALTH & SANITATION
SECTION 1: STAGNANT WATER, TRASH, WEEDS, & OTHER VEGETATION
PROHIBITED
(A) Stagnant Water Prohibited: It shall be unlawful for any person who owns or occupies any
house, building, establishment, lot, or yard in the City to permit or allow holes, places, or
containers where water may accumulate and become stagnant.
(B) Accumulation of Trash, Carrion, & Filth Prohibited: It shall be unlawful for any
person who owns or occupies any house, building, establishment, lot, or yard in the City to permit
or allow any trash, rubbish, carrion, filth, or other impure or unwholesome matter to accumulate
or remain thereon or therein.
(C) Weeds and Other Unsightly Vegetation Prohibited: It shall be unlawful for any
person owning, claiming, occupying, or having supervision or control of any real property
within the City to permit weeds, brush, or any objectionable or unsightly vegetation to grow due
to lack of vegetation management upon any such real property. It shall be the duty of such
person to keep the area from the line of his property to the curb line adjacent to it free and clear
of matter referred to above. Objectionable or unsightly vegetation includes all weeds and
grasses that exceed twelve inches (12") in height.
(1) Exemptions:
(a) State highway rights-of-way.
(b) Agricultural areas, agricultural meaning crop production and/or
grazing.
(c) Heavily wooded areas filled with uncultivated underbrush.
(d) The cultivation of concentrated wildflowers from March 1 until June
15 of each year in areas where grasses and weeds do not exceed
eighteen inches (18") in height.
(e) Areas that are zoned A -O or A-OR.
(D) View of Traffic Obstructed by Trees, Shrubs, & Vegetation: Trees, shrubs, bushes,
plants, grass, weeds, or any other vegetation growing at or near intersections in such manner
as to obstruct the view of approaching traffic from the right or left are hereby declared to be a
38
Ordinance No.________ 3
nuisance, and the City Manager is hereby authorized to remove the vegetation.
(E) Work or Improvements Done by the City and Notice Requirements:
(1) If the owner of property in the City does not comply with an ordinance under this
chapter within seven days of notice of a violation, the City may:
(a) do the work or make the improvements required; and
(b) pay for the work done or improvements made and charge the expenses to
the owner of the property.
(2) The notice must be given:
(a) personally to the owner in writing;
(b) by letter addressed to the owner at the owner's address as recorded in the
appraisal district records of the appraisal district in which the property is
located; or
(c) if personal service cannot be obtained:
(1) by publication at least once;
(2) by posting the notice on or near the front door of each building on
the property to which the violation relates; or
(3) by posting the notice on a placard attached to a stake driven into
the ground on the property to which the violation relates.
(3) If the City mails a notice to a property owner in accordance with Subsection (2),
and the United States Postal Service returns the notice as “refused” or
“unclaimed,” the validity of the notice is not affected, and the notice is considered
as delivered.
(4) In a notice provided under this section, the City may inform the owner by regular
mail and a posting on the property, or by personally delivering the notice, that if
the owner commits another violation of the same kind or nature that poses a
danger to the public health and safety on or before the first anniversary of the date
of the notice, the City without further notice may correct the violation at the
owner's expense and assess the expense against the property. If a violation
covered by a notice under this subsection occurs within the one-year period, and
the City has not been informed in writing by the owner of an ownership change,
then the City without notice may take any action permitted by Subsections (1)(a)
and (b) and assess its expenses as provided by Texas Health and Safety Code
§342.007 as it may be amended from time to time.
39
Ordinance No.________ 4
(F) The term “person” shall mean and include any natural person, business entity, or association of
people in this Chapter.
SECTION 2: UNLAWFUL CONDUCT RELATED TO HEALTH AND SAFETY
(A) A person commits an offense if he:
(1) uses property in a way that annoys, injures, or endangers the health, safety,
comfort, or repose of any person,
(2) uses property in a way that accumulates manure or rubbish or debris,
(3) creates or allows any sign, awning, and other similar structure over the streets or
sidewalks so situated or constructed as to endanger health, safety, comfort, or
repose of any person,
(4) makes filthy, littered, or trash-covered cellars, house yards, factory yards,
vacant areas in rear of stores, vacant lots, houses, buildings, or premises
containing trash, litter, rags, accumulation of empty barrels, boxes, crates,
packing cases, lumber or firewood not neatly piled, scrap iron, tin, and other
metal not neatly piled, or anything whatsoever in which flies or rats may breed
or multiply or which may be a fire danger,
(5) makes any unsightly building, pre-empted, or other structure, or any old,
abandoned, or partially destroyed building or structure, or any building or structure
commenced and left unfinished, or any abandoned well or excavation not
properly protected and which may attract children and endanger them in the
course of play,
(6) creates places used or maintained as junk yards, or dumping grounds, or for the
wrecking or disassembling of automobiles, trucks, or machinery of any kind, or
for the storing or leaving of any machinery or equipment used by contractors or
builders or by other persons, which said places are kept or maintained so as to
essentially interfere with the comfortable enjoyment of life or property by
others,
(7) allows the keeping of any lot or piece of ground where a pool or pond is located
that holds unwholesome, impure, stagnated, or offensive water,
(8) allows the open storage of commodities and materials for sale, lease, inventory
or private use in areas zoned as residential. Such materials shall be screened
by a solid fence and shall not be visible from a public right-of-way. Commodities
are defined as, but not limited to: appliances, automotive parts, building
materials, firewood, furniture (excluding patio and lawn furniture), and
landscape materials. Firewood stored in rear or side yards, and A – O and A –
40
Ordinance No.________ 5
OR zoning districts are exempt from the screening requirements,
(9) possesses, manufactures, stores, sells, handles, or uses fireworks,
(a) Exemption: a supervised public display of fireworks provided that a
permit for such fireworks display has been obtained from the State Fire
Marshall or his designated representative.
(10) allows or maintains an unreasonable noise:
(a) Day Time Noise
(1) during the hours of 7:00 A. M. to 10:00 P.M. that when
measured from the property line of a residence located in
residential zoned property exceeds 63 decibels and would disturb
or annoy a person of ordinary sensibilities, or
(2) during the hours of 7:00 A. M. to 10:00 P.M. that when
measured from a contiguous interior wall of a residence that is a
multiunit residence located in residential zoned property exceeds
55 decibels and would disturb or annoy a person of ordinary
sensibilities.
(b) Night Time Noise
(1) during the hours of 10:01 P.M to. 6:59 A. M. that when
measured from the property line of a residence located in
residential zoned property exceeds 56 decibels and would disturb
or annoy a person of ordinary sensibilities, or
(2) during the hours of 10:01 P.M to. 6:59 A. M. that when
measured from a contiguous interior wall of a residence that is a
multiunit residence located in residential zoned property exceeds
50 decibels and would disturb or annoy a person of ordinary
sensibilities.
(c) Exemptions
(1) Necessary construction or property maintenance, including the
use of lawnmowers, during the hours of 7:00 A.M. to 10:00
P.M.,
(a) For a person to perform construction work before 7:00
A.M. or end later than 10:00 P.M. a permit must be
sought and obtained from the building City Building
Official, and if the Building Official concludes that
41
Ordinance No.________ 6
because of the construction operations involved
construction at that time is permissible and necessary.
(b) Construction work in public rights-of-way or easements
by the City or the Texas Department of Transportation.
(2) Use of properly maintained air conditioning units.
(3) The College Station Parks and Recreation Board after a public
hearing may, from time to time, set the level of noise that may be
generated or produced at the Wolf Pen Creek Amphitheater.
Such standards shall be provided to users of the amphitheater
and shall be strictly adhered to by said users. Failure to adhere to
the standards shall be a criminal offense under this chapter.
(a) The College Station Parks and Recreation Board may
after a public hearing at which the alleged violating user
may present evidence and ban said user who has
violated the standards from future use of the
amphitheater. The standard of review of the decision of
the College Station Parks and Recreation Board shall be
the substantial evidence rule.
(B) The term “person” shall mean and include any natural person, business entity, or
association of people.
(C) A violation of this section is declared a nuisance and may be enforced 5000 feet outside the
city limits.
42
March 11, 2010
Workshop Agenda Item No. 4
Wolf Pen Creek Water Feature and Festival Area
Master Plan Adoption
To: Glenn Brown, City Manager
From: Chuck Gilman, Director of Capital Projects
Agenda Caption: Presentation, possible action, and discussion regarding the adoption of
the Wolf Pen Creek Water Feature and Festival Area Master Plan as an element of the Wolf
Pen Creek Master Plan.
Recommendation(s): Staff recommends Council approval of the adoption of the Wolf
Pen Creek Water Feature and Festival Area Master Plan as an element of the Wolf Pen Creek
Master Plan.
Summary: On October 8, 2009 City Council approved a contract with Clark Condon
Associates for the Wolf Pen Creek Water Feature and Festival Area Master Plan. The master
plan has identified the key elements of the project and narrowed and defined the scope of
work for the project in order to proceed with a design contract. The master plan was
developed with input from the Wolf Pen Creek Oversight Committee and the Wolf Pen Creek
TIF Board.
On October 29, 2009 a joint meeting of the Wolf Pen Creek Oversight Committee and the
Wolf Pen Creek TIF Board was held at the Conference Center. A brief presentation was given
by the Capital Projects Department outlining the project approach, then an introduction of
Clark Condon Associates, followed by general discussion of the group regarding the master
plan.
On December 14, 2009 a joint meeting of the Wolf Pen Creek Oversight Committee and the
Wolf Pen Creek TIF Board was held at the Carter Creek WWTP. The Committee and Board
reviewed and discussed six different site plans and layouts for the festival area and water
feature. The six concepts presented were narrowed from six to three. Direction was
received to proceed with an interactive water feature design.
On January 26, 2010 a meeting of the Wolf Pen Creek Oversight Committee was held at the
Carter Creek WWTP. This meeting resulted in further refinement of the site plan and layout
for the festival area and water feature design, and included general review and discussion of
the cost estimate. The Committee narrowed the options from three to one, by taking
elements, features, and ideas from all three to create a preferred site layout.
On March 9, 2010 the Wolf Pen Creek Oversight Committee met to review and recommend
adoption of the Wolf Pen Creek Water Feature and Festival Area Master Plan as an element
of the Wolf Pen Creek Master Plan. The design consultant will address all of the comments
received during this meeting and finalize Wolf Pen Creek Water Feature and Festival Area
Master Plan.
The next phase of this project will be the detailed design of the improvements identified
master plan, and to proceed with construction.
Budget & Financial Summary: This project is funded from the Wolf Pen Creek TIF Fund
in the amount of $3,500,000.00. As part of a development agreement, $1,200,000.00 is
obligated for the design and construction of a water feature.
Attachments:
1. Wolf Pen Creek Water Feature and Festival Area Master Plan
2. Project Location Map
43
Project Site
H A R V E Y R D
TEXAS AVE S
H O L L E M A N D R EDARTMOUTH ST
M A N U E L D R
S O U T H W E S T P K W Y E
D O M I N I K D R
ANDERSON ST
K R E N E K T A P R D
R I C H A R D S S T
S T E R L I N G S T
MUNSON AVE
U N I V E R S I T Y O A K S B L V D
C O L G A T E D R
F
R
O
N
T
A
G
E 6
R
D
W
CORNELL DR
B R E N T W O O D D R E
E
A
R
L
R
U
D
D
E
R
F
W
Y
S
CYPRESS DR
S
T
A
L
LIN
G
S D
R
F
R
O
N
T
A
G
E
6
R
D
E
GEORGE BUSH DR E
CENTRAL PARK LN
ALLEY
H A R D W O O D L N
G I L C H R I S T A V E
S O U T H W E S T P K W Y
A Z A L E A C T
EASTMARK DR
B R E N T W O O D D R
P I N E R I D G E D R
C A M E L L I A C T
LEMON TREE LN
ATHENS DR
C O L G A T E C I R
W I L L I A M K I N G C O L E D R
BARTHELOW DR
TEAL DR
ASHFORD DR
OLYMPIA WAY
ARCTIC O A K F O R E S T M H P
N E L S O N L N
T H O R N T O N C THARVARD C T
DARTMOUTH ST
ALLEYALLEY
ALLEY
WOLF PEN CREEK PARK
OAKS PARK
LEMONTREE PARK
PARKWAY PARK
CY MILLER PARKBEE CREEK PARK & ARBORETUM
CENTRAL PARK
Wolf Pen Creek Water FeatureandFestival Area
Ü1,000 0 1,000500 Feet
44
March 11, 2010
Workshop Agenda Item No. 5
Google Fiber RFI
To: Glenn Brown, City Manager
From: Ben Roper, IT Director
Agenda Caption: Presentation, possible action, and discussion regarding a possible City
response to the Google Fiber Request for Information (RFI).
Recommendation(s): Staff recommends the City submit a response to the Google Fiber RFI.
Summary: On February 10, 2010, Google released a RFI and announced plans to launch an
experimental trial to bring high speed Internet to the home in a select
community/communities. The stated goal is to provide fiber to the home connections that
would provide at least a Gigabit per second of throughput, compared to traditional high
bandwidth connections that deliver from approximately 1 – 3 Megabits per second throughput.
(Note: Data throughput or transfer rate is generally measured as the number of bits,
characters, or blocks transferred per unit of time. This is typically measured as the number of
bits per second. One megabit per second equates to 1,000,000 bits per second. One gigabit
per second equates to 1,000,000,000 bits per second)
Responses to the RFI must be submitted online and are due to Google by March 26, 2010.
Some Pros and Cons of replying to the RFI are listed below:
Pros:
- Google is viewed as a very progressive and cutting edge company. They are generally
admired by the public for their stand on various issues and are often seen as fighting
the status quo. They are perhaps most admired for taking on Microsoft in a number of
areas.
- Replying to the RFI as an interested community would most likely resonate with most
citizens.
- High-speed broadband would undoubtedly spur some development and serve as a
catalyst for innovative use.
Cons:
- There is very little detailed information from Google. They clearly state that this is an
experiment/trial. What happens when the trial is over?
- There is no mention of providing this connectivity to business or commercial users.
- Section 5 of the RFI asks for input about community and resources including
willingness to enter into a master pole attachment agreement with Google and a master
right of way agreement, etc.
- High likelihood of alienating local providers such as Verizon and Suddenlink
- If selected by Google, negotiation of blanket agreements for pole attachment and
right of way will most likely be a lengthy process
Budget & Financial Summary: There are no known direct costs to the city, other than staff
time to respond to the RFI, and negotiate with Google if selected. Indirect costs such as
providing pole attachment and right-of-way agreements are implied by the RFI for the selected
communities.
Attachments:
Google RFI
45
1600 Amphitheatre Parkway
Mountain View, CA 94043
Google Inc.
Request for Information
Google Fiber for Communities
February 10th 2010
46
2
Google Fiber for Communities
Google is planning to launch an experiment that we hope will make Internet access better and faster for
everyone. We plan to test ultra-high speed broadband networks in one or more trial locations across the
country. Our networks will deliver Internet speeds more than 100 times faster than what most Americans
have access to today over 1 gigabit per second, fiber-to-the-home connections. We'll offer service at a
competitive price to at least 50,000 and potentially up to 500,000 people.
From now until March 26th, we're asking interested municipalities to provide us with information about
their communities through a Request for Information (RFI), which we'll use to determine where to build
our network.
Request for information
Google is asking local governments and residents to express their interest in our fiber optic trial and to provide
information about their respective communities by completing our request for information.
For local government (Exhibit A)
Tell us how much your community would like to join the trial and about existing facilities and resources
in the community.
For residents and community groups (Exhibit B)
If you'd like a Google fiber optic trial in your community, complete this section of the request for
information.
47
3
Contents
Google Fiber for Communities ......................................................................................................................2
1. Introduction ..............................................................................................................................................4
2. Legal Statements ......................................................................................................................................5
3. Instructions to Respondents .....................................................................................................................6
4. FAQ .........................................................................................................................................................7
For local government (Exhibit A)..................................................................................................................9
1. General information ...................................................................................................................................9
2. Background information about your community .....................................................................................10
3. Collaborating on a Google fiber trial .......................................................................................................13
4. Your community's support .......................................................................................................................14
5. Facilities and resources ............................................................................................................................15
6. Construction methods ..............................................................................................................................20
7. Regulatory issues .....................................................................................................................................21
For residents and community groups (Exhibit B)........................................................................................22
Additional Information ................................................................................................................................22
48
4
1. Introduction
What is Google doing, and what does it seek to achieve?
Imagine sitting in a rural health clinic, streaming three-dimensional medical imaging over the web and
discussing a unique condition with a specialist in New York. Or downloading a high-definition, full-
length feature film in less than five minutes. Or collaborating with classmates around the world while
watching live 3-D video of a university lecture. Universal, ultra high-speed Internet access will make all
this and more possible. We've urged the FCC to look at new and creative ways to get there in its National
Broadband Plan – and now we're announcing an experiment of our own.
Google is planning to build and test ultra-high speed broadband networks in a small number of trial
locations across the country. We'll deliver Internet speeds more than 100 times faster than what most
Americans have access to today with 1 gigabit per second, fiber-to-the-home connections. We'll offer
service at a competitive price to at least 50,000 and potentially up to 500,000 people.
As a first step, we're putting out a request for information (RFI) to help identify interested communities.
We welcome responses from local government, as well as members of the public.
Our goal is to experiment with new ways to help make Internet access better and faster for everyone. Here
are some specific things that we have in mind:
Next generation apps: We want to see what developers and users can do with ultra high-speeds,
whether it's creating new bandwidth-intensive "killer apps" and services, or other uses we can't
yet imagine.
New deployment techniques: We'll test new ways to build fiber networks, and to help inform
and support deployments elsewhere, we'll share key lessons learned with the world.
Openness and choice: We'll operate an "open access" network, giving users the choice of
multiple service providers. And consistent with our past advocacy, we'll manage our network in
an open, non-discriminatory, and transparent way.
Like our WiFi network in Mountain View, the purpose of this project is to experiment and learn. Network
providers are making real progress to expand and improve high-speed Internet access, but there's still
more to be done. We don't think we have all the answers – but through our trial, we hope to make a
meaningful contribution to the shared goal of delivering faster and better Internet for everyone.
Key Events & Projected Dates:
• Issuance of request for information: February 10, 2010
• Response Deadline: March 26, 2010
Google reserves the right to modify any of these dates. Any changes will be published on this website.
49
5
2. Legal Statements
Confidential Information Notice
Google does not seek any proprietary or confidential information as part of your response. Accordingly,
please do not submit any information that you do not want to become publicly available. Google will not
be under any obligation to treat submissions as confidential and Google may disclose submissions to third
parties as part of the evaluation process. All information and data contained in your response should be
submitted on an unrestricted basis.
Disclaimers
Legal Status
This RFI does not constitute, and should not be interpreted as, a contract between Google and any entity
or person for the performance of any obligation. Instead, the RFI seeks to identify required information
from communities and to establish a common framework within which an agreement for a fiber trial may
be reached.
The submission of a response to the RFI, and subsequent evaluation of that response by Google, also does
not constitute a contract or any type of agreement between Google and any respondent for the
performance of any obligation. Only the execution by Google of a written contract will obligate Google in
accordance with the terms and conditions contained in any such contract. All responses to this RFI
become the property of Google.
Responses to this RFI may not be made by employees of, consultants to or other persons connected with
Google. By submitting a response to either portion of this RFI, each respondent certifies that no
employee of, consultant to, or other person connected to Google who has been or is associated with the
respondent has participated in preparation of the response.
Any personal information Google receives as part of the RFI will be used by Google only for purposes of
planning and running the services. Google will only share this information with third parties where
necessary for planning and running the services.
Cost of RFI
This RFI does not commit Google to pay any expense incurred by you in the preparation of your
response.
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3. Instructions to Respondents
All responses to this RFI should be submitted through the interactive response forms found on the
website: http://www.google.com/appserve/fiberrfi. In order to respond to this RFI, you will have one of
two options:
• Full community response by a local government interested in having its community serve as a
trial location
• Other interested parties and non-governmental respondents, explaining why the trial should be
held in the respondent's community.
If any item in the Local Government RFI is unclear, a written request for clarification may be sent to
Google. Such requests must be sent only through the website by selecting the contact link in your
response.
An FAQ can be found here: http://www.google.com/appserve/fiberrfi/public/faq
The completed response to the RFI (local government or by other interested parties) must be submitted
through the website. The interactive response forms are designed to allow you to begin your response, and
then save it and come back to it for further work. The response will only be finally complete when you
have clicked the "Save and continue" button for the response. Once you have submitted your response, it
can no longer be edited.
All responses must be submitted no later than 5:00 pm (PT) on the Response Deadline date. Any
submission submitted after the deadline will not be accepted; however, Google may make exceptions at
its sole discretion.
Responses will be evaluated and ranked by a selection team designated by Google for that purpose.
Google may make a decision on how to proceed with respect to responses at any time without further
notice. Upon completion of Google's evaluation, Google will provide information about the responses and
next steps. As one possible outcome of the RFI, a short list of responding communities may be asked to
provide further information, though this will only occur at Google's discretion.
All communications to Google regarding the Local Government RFI must be made solely through the
website, please use the contact link in your response.
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4. FAQ
What is Google planning to build?
Google is planning to build and test ultra-high speed broadband networks in one or more trial locations
across the country. We'll deliver Internet speeds more than 100 times faster than what most Americans
have access to today over 1 gigabit per second, fiber-to-the-home connections. We'll offer service at a
competitive price to at least 50,000 and potentially up to 500,000 people.
Why is Google doing this?
Our goal is to experiment with new ways to help make Internet access better and faster for everyone.
What criteria will Google use to select the communities for this project?
Above all, we're interested in deploying our network efficiently and quickly, and are hoping to identify
interested communities that will work with us to achieve this goal. We also want to want to work with a
community where we can bring significant benefits to residents and develop useful proofs-of-concept that
can have a broader impact. For example, we're looking for opportunities to experiment with deployment
techniques that can inform and accelerate broadband deployment elsewhere as well.
To that end, we'll use our RFI to identify interested communities and to assess local factors that will
impact the efficiency and speed of our deployment, such as the level of community support, local
resources, weather conditions, approved construction methods and local regulatory issues. We will also
take into account broadband availability and speeds that are already offered to users within a community.
The RFI is a first step – we plan to consult with local government organizations, as well as conduct site
visits and meet with local officials, before announcing our final decisions.
When does Google expect to announce a target community?
We plan to announce a target community or target communities this year.
How much will the services cost?
The final price has not yet been determined, but we intend to offer service at a competitive price.
Why would consumers need 1 Gbps connections?
In the same way that the transition from dial-up to broadband made possible the emergence of online
video and countless other applications, ultra high-speed bandwidth will drive more innovation – in high-
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For local government (Exhibit A)
1. General information
* Required fields
Name of governing body: * ____________________________________________________
You can create a name for each response. Name of this response:
____________________________________________________
List communities included in your response:
____________________________________________________
____________________________________________________
____________________________________________________
These may be autonomous units of government contained within the boundaries of the responding entity (such as
towns within a county), districts or neighborhoods within a town, or adjacent units of government responding
together (such as a joint response of multiple counties or towns).
Contact person:
Name: * ____________________________________________________
Title: ____________________________________________________
Address: * ____________________________________________________
State: * ____________________________________________________
ZIP (5 Digit): * ____________________________________________________
Phone number: ____________________________________________________
Email: * ____________________________________________________
Contact person has authority to provide these answers as the official position of the responding local government?
____________________________________________________
If not, please provide contact information for the local government official who does have such authority:
____________________________________________________
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2. Background information about your community
Population (2008): * ____________________________________________________
Populated area in square miles: * ____________________________________________________
Please describe how the population is distributed
____________________________________________________
____________________________________________________
Median household income ($ per annum)" * ____________________________________________________
Number of housing units: * ____________________________________________________
Number of single family homes: ____________________________________________________
Number of multi-family homes: ____________________________________________________
Number of apartment complexes: ____________________________________________________
Average number of units per apartment complex: ____________________________________________________
Number of gated communities: ____________________________________________________
Average number of housing units per gated community:
____________________________________________________
Approximate percentage of households in entire community with access to broadband Internet service (%):
____________________________________________________
Approximate percentage of the households in entire community that are currently subscribing to broadband Internet
service (%):
____________________________________________________
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Terrain:
Overall description of terrain:
____________________________________________________
____________________________________________________
Percentage of plains (%):_____________
Percentage of rolling hills (%):_____________
Percentage of mountains (%):_____________
Percentage other terrain (%):_____________
Climate:
Average annual highest temperature (°F): _____________
Average annual temperature (°F): _____________
Average annual lowest temperature (°F): _____________
Average amount of snowfall per year (inches): _____________
Average amount of rainfall per year (inches): _____________
Average amount of hurricane or tornado activity in a year (days):
____________________________________________________
Local government:
Form of local government (city, town, county, etc.): *
____________________________________________________
Local government rule: Home Rule - Limited Rule - Other
____________________________________________________
Source of government decision making (city manager, city council, mayor, etc.):
____________________________________________________
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Utilities:
Please list largest utilities and the approximate percentage of the community covered by each provider:
Provider Name Coverage (%)
Electric _____________ _____________
Gas _____________ _____________
Water _____________ _____________
Sewer _____________ _____________
Cable _____________ _____________
Phone _____________ _____________
Local economy mix (if available):
Number of high tech jobs: _____________
Number of manufacturing jobs: _____________
Number of education services jobs: _____________
Number of other service sector jobs: _____________
Colleges and universities (List names and average number of students enrolled at each, if available):
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
Major hospitals/health care facilities (List names):
____________________________________________________
____________________________________________________
____________________________________________________
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Current providers of high speed Internet service (Company; DSL, Cable modem, wireless, fiber, etc.):
____________________________________________________
____________________________________________________
Other significant features of your community that could be relevant for this project:
____________________________________________________
____________________________________________________
____________________________________________________
3. Collaborating on a Google fiber trial
In this section, we ask you to share how your community would work with Google to enable us to
proceed quickly and effectively.
Are you, the local government, willing to appoint an individual to serve as a single point of contact (1)? *
Yes/No _____________
(1) A single point of contact to coordinate the local government and community's interactions with Google, to obtain
as promptly as possible whatever information Google may require, and to resolve any problems that may arise as
quickly and effectively as possible.
If so, please describe the responsibilities and authority that this individual will have:
____________________________________________________
____________________________________________________
____________________________________________________
Describe any current or planned programs in your community to accelerate and expand adoption and use of
broadband Internet access:
____________________________________________________
____________________________________________________
____________________________________________________
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Additional reasons you believe that Google should select your community for this project:
____________________________________________________
____________________________________________________
____________________________________________________
Please provide a web link to any additional information you wish us to consider. Submissions using Google Maps or
YouTube are encouraged:
____________________________________________________
____________________________________________________
____________________________________________________
Google is interested in working with communities in which it can rapidly install fiber-optic facilities and offer ultra-
high speed Internet access services. Google respects the legitimate responsibility of local governments to preserve
and protect community assets, minimize disruption, ensure the safety of the public, address aesthetic concerns and
property values, and obtain reasonable compensation for the use of public assets.
4. Your community's support
Have you performed any outreach, study or analysis regarding support in your community for this type of trial? *
Yes/No _____________
Describe how you ascertained or plan to ascertain the level of community support for this project (e.g., surveys,
public hearings, meetings with community groups, etc.):
____________________________________________________
____________________________________________________
____________________________________________________
If possible, describe your community's level of support for this project:
____________________________________________________
____________________________________________________
____________________________________________________
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Please briefly summarize any additional comments or suggestions you would like to make to Google on behalf of
your community:
____________________________________________________
____________________________________________________
____________________________________________________
5. Facilities and resources
Deployment of a community-wide fiber network will require Google to work closely with local
government entities and other organizations. Google seeks to identify resources owned by the community
that may assist in the rapid, smooth deployment of a residential fiber optic network. In this section, we
ask you to share information about particular facilities and assets within the community that may be used
or affected as part of such a facilities deployment, particularly those owned by the local government.
Please respond as completely and accurately as possible.
Pole Attachments:
Please identify the entities, including units of the local government, that own or control utility poles in
your community:
Entity Name: ____________________________________________________
Number of poles owned or controlled: _____________
Annual rate per pole for pole attachment:
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
Entity Name: ____________________________________________________
Number of poles owned or controlled: _____________
Annual rate per pole for pole attachment:
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
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Entity Name: ____________________________________________________
Number of poles owned or controlled: _____________
Annual rate per pole for pole attachment:
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
If the local government will make its own poles available for attachments by Google, please estimate
the number of days to complete the following steps, assuming full cooperation from Google:
Negotiation of a master pole attachment agreement: _____________
Issuance of permits for individual attachments: _____________
Developing specifications for make-ready work: _____________
Completing make ready work: _____________
If a unit of your local government has access to poles owned or controlled by third parties that it could
make available to Google, please provide the following information:
Number of poles: _____________
Entity or entities that own or control the poles: ____________________________________________________
Rate that you would charge Google ($) per pole per year: _____________
Describe any restrictions on your right to make such poles available to Google:
____________________________________________________
____________________________________________________
Please identify any state or local laws, ordinances, rules or other legal measures that govern access and rates for
attachment:
____________________________________________________
____________________________________________________
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Please provide contact information for any entities named above:
____________________________________________________
____________________________________________________
Conduits:
Please identify the entities, including units of local government, that own or control utility conduits in
your community:
Entity Name: ____________________________________________________
Linear feet of conduit owned or controlled: _____________
Annual rate per foot for conduit use ($):
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
Entity Name: ____________________________________________________
Linear feet of conduit owned or controlled: _____________
Annual rate per foot for conduit use ($):
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
Entity Name: ____________________________________________________
Linear feet of conduit owned or controlled: _____________
Annual rate per foot for conduit use ($):
- by telecommunications carriers ($):_____________
- by cable system operators ($)_____________
- Internet access providers ($):_____________
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If the local government will make its own conduits available for use by Google, please estimate the
number of days to complete the following steps, assuming full cooperation from Google:
Negotiation of a master conduit agreement: _____________
Issuance of permits: _____________
If a unit of your local government has access to conduit owned or controlled by third parties that it
could make available to Google, please provide the following information:
Linear feet: _____________
Entity or entities that own or control the conduit:
____________________________________________________
____________________________________________________
Rate that you would charge Google ($) per linear foot per year: _____________
Describe any restrictions on your right to make such conduit available to Google:
____________________________________________________
____________________________________________________
Please identify local laws, ordinances, rules or other legal measures that govern access rights and rates for conduit
use:
____________________________________________________
____________________________________________________
Please provide contact information for any entity named above:
____________________________________________________
____________________________________________________
Public Rights of Way:
Does your local government directly control and administer the use of all public rights of way within its
jurisdiction? ____________________________________________________
Describe any other entities that control and administer the use of the public rights of way in your community:
____________________________________________________
____________________________________________________
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With respect to your process for managing access to public rights-of-way, please estimate the number
of days to complete the following steps, assuming full cooperation from Google:
Negotiation, approval, and issuance of a master right-of-way agreement: _____________
Issuance of construction permits: _____________
Post-construction inspections and approvals: _____________
Please indicate the amount or method of calculating all fees and charges for use of the public rights-
of-way, including the following (if applicable):
Application fees: _____________
Linear foot (or other) usage fees: _____________
Inspection fees: _____________
Other fees or charges: _____________
Community sensitivities and policies:
Please describe any historical districts or other culturally or environmentally sensitive areas: *
____________________________________________________
____________________________________________________
Please describe your under-grounding plans and policies, if any: *
____________________________________________________
____________________________________________________
Please identify unique ordinances, rules, policy statements, and other legal measures specific to your community
that Google would have to comply in developing a fiber project:
____________________________________________________
____________________________________________________
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6. Construction methods
Has your community worked with, studied or evaluated the following types of construction methods for
fiber to the home networks:
Aerial _____________
Trenching _____________
Boring _____________
Micro-trenching _____________
Plow _____________
Rock Saw _____________
Check approved methods of construction for your community: *
Aerial _____________
Trenching _____________
Boring _____________
Micro-trenching _____________
Plow _____________
Rock Saw _____________
None/Other _____________
Are there other construction methods that are approved for use in construction of fiber to the home or other
telecommunications networks in your community? If so, please list them below:
____________________________________________________
____________________________________________________
____________________________________________________
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7. Regulatory issues
Please describe the local regulatory obligations, if any, that would apply to Google if this project went forward in
your community:*
____________________________________________________
____________________________________________________
____________________________________________________
Please describe local business obligations and taxes/fees, if any, that would apply to Google if this project went
forward in your community:
____________________________________________________
____________________________________________________
____________________________________________________
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For residents and community groups (Exhibit B)
* Required fields
Your name: * ____________________________________________________
Your organization or community group: ___________________________________________________
If you are responding on behalf of an organization or community group, please describe it:
____________________________________________________
____________________________________________________
____________________________________________________
City: * ____________________________________________________
State: * ___________________________________________________
Why should Google build a fiber to the home network where you live? *
____________________________________________________
____________________________________________________
____________________________________________________
Web link to supporting material (YouTube videos and other creative submissions are encouraged!):
____________________________________________________
Additional Information
Check any/all that apply.
What kind of Internet services are available where you live?
Dial-up _____________
DSL _____________
Cable modem _____________
Fiber to the home _____________
Wireless _____________
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Other _____________
None _____________
Don't know _____________
What kind of Internet service do you primarily use at home?
None _____________
Dial-up _____________
DSL _____________
Cable modem _____________
Fiber to the home _____________
Wireless _____________
Other_____________
Don't know_____________
What company provides your home Internet service?
- AT&T, SBC _____________
- Verizon _____________
- Qwest _____________
- Comcast _____________
- Road Runner, Time Warner _____________
- Charter _____________
- Cox _____________
- Cablevision _____________
- AOL _____________
- EarthLink _____________
- NetZero, Juno, BlueLight _____________
- CenturyLink, CenturyTel, Embarq _____________
- Other ____________________________________________________
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What is the advertised speed of your home Internet service? Please round to the nearest megabit per
second (Mbps).
" Less then 1 Mbps" _____________
"1-5 Mbps" _____________
"5-10 Mbps" _____________
"10 Mbps or faster" _____________
"Don't know" _____________
What is your actual download speed during the evening?
You can use a third-party website like Speedtest.net or Bandwidthplace.com, or other tools at
Measurement Lab, to measure your actual download and upload speeds.
"Less then 1 Mbps" _____________
"1-5 Mbps" _____________
"5-10 Mbps" _____________
"10 Mbps or faster" _____________
"Don't know" _____________
What is your actual upload speed during the evening?
You can use a third-party website like Speedtest.net or Bandwidthplace.com, or other tools at
Measurement Lab, to measure your actual download and upload speeds."
"Less then 1 Mbps" _____________
"1-5 Mbps" _____________
"5-10 Mbps" _____________
"10 Mbps or faster" _____________
"Don't know" _____________
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How much does your Internet service cost per month?
"Free" _____________
" Less then $10" _____________
"$10-20" _____________
"$20-40" _____________
"$40-60" _____________
"$60-$80" _____________
"$80-$100" _____________
"$100 or more" _____________
Is your Internet service "bundled" with other services like TV and phone?
- Yes _____________
- No _____________
How many times in the last month did your high-speed Internet service not work correctly, slow down or
frustrate you?
"Never it’s great!" _____________
"1 to 5 times" _____________
"6 to 10 times" _____________
"More than 10. Boo!" _____________
Describe the quality of your home Internet service customer support:
____________________________________________________
____________________________________________________
____________________________________________________
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What would you like to see improved about your current service? Check all that apply.
Lower price _____________
Faster speed _____________
Higher reliability _____________
Better customer support _____________
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