HomeMy WebLinkAboutOrdinance 2732 `@/
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ORDINANCE NO .
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AN ORDINANCE AMENDING ARTICLE IV , SECTION I OF 4rPyF%9�yr
APPENDIX C TO THE FAYETTEVILLE CODE OF ORDINANCES
TO CLARIFY THE PROCEDURE FOR OBTAINING APPROVAL OF
A LARGE SCALE DEVELOPMENT .
BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE , ARKANSAS :
Section 1 . That Article IV , Sec . I (4 ) of the Fayetteville
Code o £ Ordinances is hereby amended by adding paragraph ( f)
to read as follows :
(f ) The developer refuses to comply with
paragraph ( 2 ) (b ) of this section pertaining to
Jrequired on - site and off - site improvements .
Section 2 . That Article IV , Sec . I (6 ) of Appendix C to
the Fayet�le Code of Ordinances is hereby amended by adding
the following :
The Board of Directors shall hear all persons
desiring to be heard on the question of whether the
findings and decision of the Planning Commission were
in error . Following such hearing , the Board of Directors
may affirm , modify , or reverse any finding and decision of
the Planning Commission or may refer the proposed large -
scale development back to the Planning Commission for
additional findings . The Board of Directors may refuse
to approve a large - scale development for any of the
reasons specified in paragraph (4 ) of this section .
Section 3 . The Board of Directors hereby determines that
effective�nistration of the City ' s large - scale development
regulation requires that the procedure prescribed thereby
for obtaining approval of a large - scale development be clarified ;
that effective administration of the City ' s large - scale development
regulations is essential to orderly land development and thus
to the public welfare ; and that the passage of this ordinance is
necessary for efficient administration of the City ' s large - scale
development regulations . Therefore , an emergency is hereby
declared to exist and this ordinance being necessary for the
public health , safety and welfare shall be in full force and
effect from and after its passage and approval .
PASSED AND APPROVED this /& ttk day of L4, .` 1981 .
APPROVED :
r'-
f F FAYE TT'• .y
O By :
ASSISTANT MAYOR '
`ATTEST:
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CERTIFICATE OF RECORD
STATE OF ARKANSAS I
Washington County I SS.
1, Alma L. Kollmeyer, Circuit Clerk and Ex-Officio Recorder fat t, ,
Washington County, do hereby certify that the annexed or } re
going i st ument was filed for re- ,,fp ,
�° . in my office on thad� Z
l a 0 clo;:p4 and he same is 44 6
duly recorded in R' 1► t
record W aTpage—y6 VV v
Witness my hand and seal thisZ� +
tlay of 9"
Circuit clerk and "`QOFdL,MED
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xOfficio R orded
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Deputy Clerk
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yiga OFFICE OF CITY ATTORNEY
' Tanto POSTAL DRAWER F 72701 (501) 521-7700
June 9 , 1981
Mr . Don Grimes
City Manager
City Administration Bldg .
Fayetteville , AR 72701
RE : Large Scale Development Ordinance
Dear Mr . Grimes :
Enclosed is an ordinance recommended by this office
for adoption by the Board of Directors to clarify the approval
procedure prescribed by the City ' s Large Scale Development
Ordinance . Section 1 of the enclosed ordinance adds as a
reason for which approval of a large scale development may
be denied the refusal of a developer to comply with required
on- site or off- site improvements . Section 2 clarifies the
action which may be taken by the Board of Directors on an
appeal from a decision of the Planning Commission .
At its regular meeting , June 2 , 1981 , the Board of
Directors referred back to the Planning Commission a
proposed large scale development for multifamily housing
on Delaware Avenue . This action was taken in part so that
the Planning Commission could determine what effect , if any ,
the proposed development would have on storm water drainage
in the area . In this regard , it should be noted that4( 2 ) ( d )
of the Large Scale Development Ordinance provides that the
developer may be required to install off- site improvements ,
where the need for such improvements is created in whole
or in part by the proposed large scale development , and
provides that the developer shall be required to bear that
portion of the cost of off - site improvements which bears
a rational nexus to the needs created by the large scale
development . The term " rational nexus " has been defined
to mean " an innerconnection between two events , direct and
substantial in nature , and clearly and logically linked
together . " It signifies a connection more definitely and
clearly established than a reasonable connection . 181 Inc .
v . The Salem County Planning Board , 336 2d 501 (N . J . 975
Enclosed is an opinion dated August 16 , 1976 , prepared by
this office on the validity of a municipal ordinance requiring
a developer to install off- site improvements .
Page 2
Mr . Don Grimes
June 9 , 1981
On the question of municipal liability for damage to
private property caused by surface water , the general rule
is that , where there is no constitutional or statutory
provision involved , and there is no negligence , and the
water is not cast in a body on lands of another , municipalities
are not liable for consequential injuries from public
improvements causing surface water to flow upon adjacent
private property or preventing it from flowing off such
property . This is especially true , according to the general
rule , where the grading of a street causes the abutting lands
to be below the level of the street . A fortiori , a municipality
is not liable to a property owner for the increase flow of
surface water over or onto his property , arising wholly from
changes in the character of the surface produced by the
opening of streets , building of houses , and the like , in
the ordinary and regular course of the expansion of the
municipality . McQuillin , Municipal Corporations Sec . . 53 . 141
( 3d Ed . 1977 Rev . Vol ) .
In Cit of Little Rock v . Willis , 27 Ark . 572 ( 1872 ) ,
the court rule t at a city was not liable for surface water
damage which occurred after the grade of a street was raised .
In its opinion , the court stated :
" . . for the construction of a sewer which has not
the capacity to carry off the ordinary or extra-
ordinary rainfalls , the city .cannot be made responsi -
ble , and the reason for this is , that a city cannot
be held to answer for an error of judgement , commit -
ted by a body , created by law , and clothed with
descretion to determine the width and depth of drains
and sewers ; to hold a city responsible , under such
circumstances , would be to vest the power of judging
of the proper grade of streets ; and the width and depth
of sewers in the judiciary , instead of the City Council ,
where the Legislature placed it . Where a city prescribes
the grade of a street , or the capacity of a drain , and
it is not constructed as directed , or in such an
unskillful manner as to damage persons adjacent
thereto , in that event , the city is liable . The law
is , that for the exercise of a lawful power , which by
law is vested in the judgement and descretion of a
public body for the good of , the whole , that no injury
for which an action will lie , . but that for an
imperfect , negligent , unskillful execution of the thing
ordained to be done , an action will lie in the absence
of an express statute . . 1
Page 3
Mr . Don Grimes
June 9 , 1981
the City Council and the corporation which they
represent , were only bound to keep the sewer in repair ;
nor is it true that the city was , or is , bound to build
sewers to carry off the surface water , which , by reason
of the grading of streets , at one time flowed by another
and different route . This very point was presented
in the case of Carr v . The Northern Liberties 35 Pa . St . ,
324 ; and it was there held that if a drain ceased to
be of sufficient capacity , which it at one time possessed ,
in consequence of the increase of population and the
greater extent of territory graded and built upon , a
corporation having municipal powers was not responsible
or liable for damage arising from an overflow . "
Although Cit of Little v . Willis , supra , is a very
old case , my researc revea s no Arkansas Appellate Court
decision overruling the principles of law stated therein .
Sincerely ,
CITY ATTORNEY ��
�/ // /e y"
):4es N . McCord
JNM/ j lm
Enclosure
CC : Mary - Stuart Townes
William & Giles Attorneys
112 SE Avenue
Fayetteville , AR 72701
1Sec . 1 of Act 165 of 1969 (Ark . Stat . § 12 - 2901 ) provides
that municipal corporations shall be immune from liability
for damages , a no tort action shall lie against any
such political subdivision on account of the acts of
their agents and employee . Negligence is a tort .
_ ;Eareir � ,,
s
ka
OFFICE OF CITY ATTORNEY
'�• VjOy CtiV`, POSTAL DRAWER F 72701 (50:) 521-7700
August 16 , 1976
Mr , Don Grimes
City Manager
City Administration Building
Fayetteville , Arkansas
Re : Proposed Amendment of Subdivision Ordinance to
Require Subdivider to Install Off -Site Improvements
Dear Mr , Grimes :
Pursuant to your request , I have drafted the enclosed ordinance
which would amend the city ' s subdivision regulations to require
the subdivider to install certain off - site improvements . As I
pointed out in a memorandum to you dated December 1 , 1975 , I
find no Arkansas Supreme Court cases on the issue of whether
a subdivider may he required to construct off - site improvements
as a condition of subdivision plat approval . Decisions from
other jurisdictions are conflicting on the validity of such a
requirement . Courts in Maryland , California , and New York have
struck down off - site improvement requirements . Baltimore County
v . Security Mortgage Company , 175 A . 2d 755 ( Md . 1961 ) ; Swire v .
Council of City of Los Angeles , 2 Cal , Rptr . 94 ( Cal . App . 1960 ) ;
Medine v . Burns , 208 N . Y . S . 2d 112 ( 1960 ) . On the other hand ,
the New Jersey Supreme Court has ruled that. the New Jersey
Municipal Planning Act authorized a municipality to adopt an
ordinance requiring- installation of off - site improvements as
a condition of subdivision approval , provided the ordinance contains
suitable measures to govern cost allocation . Divan Builders ,
Inc . v . Planning Board of Township of wayne , 334 A . 2d 30 ( N , J .
1975 ) .
Despite the substantial interest `.which municipalities have in
insuring orderly community development , it is fundamental that
subdivision controls can only be exercised by virtue of appropriate
enabling legislation . Consequently , the question of whether a
municipality possesses particular powers in the subdivision
approval context must necessarily begin with a consideration of
the Municipal Planning Act , Ark , Stat . 19 - 2625 et sec .
Ark . St ` . 19 - 2829 ( c ) pTOV1deS in part that mLn1C1pa1 recu '_ ap _ O- S
controlling the development of land may establish or pro-:ice `- cr
the minimum requirements as to " standards for improve"._nts tO ^e
installed by the developer at his own expense , such as street
grading and paving , curbs , gutters , and sideo:al % s , ,tater , s- ---o =
and se�eer mains , street lights and other amenities . " Although this
statute does not purport to authorize municipal corporations
to require a developer to install. off - site improvements at his
own expense , Ark . Stat . 19 - 2831 provides that the , 'uniciDal
Planning Act shall be construed liberally and provides that the
enumeration of any object , purpose , power , manner , method , or
thing shall not be deemed to exclude like or similar objects ,
purposes , powers , manners , methods , or things . The Yecr Jersey
Supreme Court in Divan upheld an off- site improvement o. di - =ante
even though the New Jersey i _unicipal Planninc Act mace no specific
reference to off- site improvements . The Court rested its decision
in part on New Jersey constitutional and statut� ory provisic- s not
found in Arkansas , but then noted :
" There are , however , other considerations t7hich lead
us to this result . In commenting on N . J . S . F . = 0 : 55 - 1 . 211
Professor Cunningham has observed that :
' All the enumerated improvements seem to be
reasonably related to the public health , safety ,
and general welfare and thus within the state ' s
public power * * * * it seems clear that the cost
of such improvements is a legitimate expense of
subdividing which ought to be borne in the first
instance by the developer and uiti; ately , in
most cases , by the purchasers of lots in the s b-
divisions who benefit directly from the improve -
ments . ' Citation .
These observations have already been referred to wits
approval by this Court in the on- site is:provement
contest , case citation . we believe , hc•: :ever . . that these
'�u icip
consideratiops are ec �.
ualy relevant e;:_ es_ t ^e -• - - _
see'.cs to require off - site improvements prior to sub3 _ -
vision approval . The public interest is r_o less sub -
stantial in the latter contest since in either case t- _
alternative to developer installation of the rec'uirec
ii^.nTovements is municip =_ 1 construction at public
The proposed ordinance would require the suc _ viper to ` _ _ _ t`: at
nortl000% of the Cost of off - site improvem•^ants :`: ic: _ ea rse � -ooatiO :11
nex+: s to the needs created by the subdivisio': . 'iae " ratic- .: l eN ; `
Sta:I C B's:C. fOT appor tioninq the cost of an O _ S - Sl
the st21I': da Td approved by the l`iew Jersey Supre' n- Ccourt . . _a
Standard is applied In Nec•7 Jersey , the entire co St of an c = - -
site 11'7.nrove]i7ent may be imposed on the SLhJ - _ •J1O ^ r if the
benefits only the subdivider ' s tract ; ::hen 4- oe _^ e'_"_: uire ^. 1 ":
not o^ ly benefits -the subdivider ' s tract , but ot:hclr p = es
e' sfile subdivider ma'_ be compelled o^ }__ to _ er = ' o^
of t:: • 1 cost 1.7hic : bears a rational ne:<+= s to
by and benefits conferred 11pnon. the subdivis -ion , b =' . cO - S - -
may be given to the fact that the need for the off- site _nmoro:•e^ent
Was created by the proposed subdivision. .
In my opinion , the Arkansas Supreme Court would bm. more likely
to uphold an off- site improvement ordinance if the ordinance
contains suitable measures to govern cost allocations . If the
ordinance attempted to impose the entire cost of off- site improve-
".ents on the subdivider in those instances where the improve,:.ent
benefits other properties as well as the subdivider ' s tract , 4 '
is likely that the Supreme Court would rule the imposition to be
an impermissible exaction . The obvious practical problem v:hich
results when the subdivider is not required to bear the entire
cost of an off - site improvement is the financing of the remaining
costs . , The city could not summarily impose the remaining costs
on property outside the subdivision , because Article 19 , Section
27 of the Arkansas Constitution requires the consentof a majority
in value of property holders owning property adjoining the locality
to be affected , before assessments on real property for local
i-:provements may be made . The only theory upon which an assess e^t
=or local improvements :aay be made is that a special benefit ,
.Leaning an increase of value , will result to the particular
tract because of the improvement . Whittaker & Co . v . Se :•er
I ^provement District No . 1 of Dardanelle , 221 F . 2d 649 . In
ma ': ng general public improvemants affecting private individuals ,
the scope of the police poser in ordering the payment of their
costs by the o :niers of the property affected without reference
to benefits received is very limited . Sloan , Improvement Districts
in Arkansas , Sec . 6 ( 1923 ) ; James v . City of Pine Bluff , 4n _
Ark . 199 , 4 Sjl 769 ( 1887 ) ,
Sincerely ,
CITY ATTOPNEY
&James N . McCord
J?:i:/ter
�f
STATE of ARKANSAS
County of Washington
�. ORDINANCE NO 2-= l.r +`' M hereby certify that I
An n I Of Appendix
amending Are Fav V, am the Publisher of THE NORTHWEST ARKANSAS TIMES, a dally
Section 1 of ordinance
&MI i to the Fe IV
tevine Cnde of Ordinames to clartfv newspaper having a second class mailing privilege, and being not lees than
the rottdure for obtaining approval
a Targe scale development tour pages of five columns each, published at a fixed place of business and at
Be it ordained by the Board of Direr. a fixed (daily) Intervale continuously in the City of Fayetteville, County of
ora of the City of Fayetteville, Arkan-
sas: - Washington, Arkansas for more than a period of twelve months, circulated
Section 1. That Article IV, sec, It-41 and distributed from an established place of . business to subscribers and
d the Fayetteville Code of Ordinances
is hereby • amended by adding readers generally of all classes In the City & County for a definite price for
Paragraph it) to read as follows: ,�h copy, or a flied price per annum, which price was [lied at what H
(f)l The developer refuses to comply '
with paragraph 121rbt of this section considered the value of the publication, based upon the news 'value and
pertaining to required onsite and off-
site improvemen , service value it contains, that at least fifty percent of the subscribers
Section z That Article IV, see, Isl . thereto have paid cash for their subscriptions to tha newspaper or its agents
of Appendix C to the Fayetteville Code
of Ordinances is hereby amended by or through recognised news dealers over a period of at least six months;
easing the
Board
of
and that the said newspaper publishes an average of more than forty per
The Board of Directors shall herr all
=tindesiring to be heard on the news matter.
quesuan of whether the findings and
decision of the Planning Commission I farther certify that the legal notice "hereto attached In the matter of
were in error. Following such hearing,
the Board of Directors may affirm, '
modify, or reverse any finding and r ^ r•�
decision of the Planning Commission
or may refer the proposed large�scale I J 1 1 I\ (s� \, J -YL
development back to the Planning
Comimssion for additional fillings.
The Board of Directors may refuse to
approvepublished In the regular daily issue of said newspaper for
approve a large-scale development for
any of the reusous specified in consecutive Insertions as follows:
paragraph (1) of this section.
I Section s. The Board of Directors ' rT Jr, t Y� `A k,n
hereby determines that effective ad- The first Insertion on. the _ day of - 19 '
ministration of the City's
large-scaleG
development regulation requires Out
the Prucedure prescribed thereby for., the second Insertion on the day of 19
obtaining approval of a large-scale
development be clarified; that effrcc
tive administration of the Cit)'a large the third insertion on the . day of 19
1 scale development and thus to 11e
public welfare; and that the passageof
lois ordinance is necessary for efrr- and the fourth Insertion on the an v of 19
ci'" administration of the City's
largeaeale
development regulntious. ..
Therefore, an emergency is hereby
declared toesist andthis ordinancebe
ing meessary for the ppuublic health,
safely and welfare shall be in fug force
and effect from and after its passage
andapproval. sworn to and subscribed before me on this (�` �' day of
PASSED AND APPROVED thio l6N
day of Juni 1961. '
APPROVED: / /
r/
BY: Paul R. Noland / f / 1p i
' ' Assistant Mayor / i
Attest: a/
' Vivian Rustled
( City Clem
acus :E;.. _. .• ' Notary Public
My Commission Expires:
False for Printing .
Cost of Proof '
Total {