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HomeMy WebLinkAboutOrdinance 5305 i I IIIIIII IIIIII III VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII Doc ID : 013301040002 Type : REL ry Kind : ORDINANCE o Recorded : 02/11/2010 at 02 : 19 : 33 PM c Fee Amt : $20 . 00 Pace 1 of 2 �r,� T Washincton Countv . AR A% fn Bette Stamps Circuit Clerk =Q"C7 W File2010-00003822 o r=- os�q, Yt? L J N ORDINANCE NO. 5305 AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON MAY 18, 2010 WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and Restaurant tax nor have any effect other than to establish a special city fund in which Parks HMR revenue could be used for the development, construction and maintenance of city parks; and WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development of City parks; and WHEREAS, Arkansas statutes would also allow the use of revenues from this existing Park HMR for maintenance of city parks if approved by Fayetteville voters; and WHEREAS, the citizens of Fayetteville will be better served by allowing the use of revenues from the existing Parks HMR not only for development of our many parks, but also for their maintenance. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead: "(a) The revenues collected from the Parks Hotel, Motel and Restaurant Tax shall be used by the Fayetteville Parks and Recreation Department for development, construction and maintenance of City parks." I Page 2 Ordinance No. 5305 Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in its stead: "(c) The following question shall be placed upon the ballot for the special election to be held during the Preferential Primary and Nonpartisan General Election on May 18, 2010: "FOR proposed Ordinance No. 065 amending Ordinance No.3900 by authorizing and dedicating the revenue from the existing Parks Hotel, Motel and Restaurant tax to be used for the development, construction and maintenance of city parks. "AGAINST proposed Ordinance No. 5365 amending Ordinance No.3900 by authorizing and dedicating the revenue from the existing Parks Hotel, Motel and Restaurant tax to be used for the development,construction and maintenance of city parks." Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development, Construction and Maintenance of City Parks." Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a special election to be held on May 18, 2010. This ordinance shall only take effect if approved and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax. PASSED and APPROVED this 2"d day of February, 2010. APPROVED: ATTEST: c By: , ,� By: yt( J O ELD JO Mayor SONDRA E. SMITH, City lerk/Treas`u��,, ,, , . 0006 Qj E : FAYETTEVILLE : :�••.9�, A SgJ� : ��''n;;YGTON ����• lld / a � . �l�/oo� AGENDA REQUEST FOR: COUNCIL MEETING OF JANUARY 5, 2010 FROM: ALDERMAN BOBBY FERRELL, ALDERMAN SHIRLEY LUCAS, ALDERMAN ADELLA GRAY, ALDERMAN SARAH LEWIS, ALDERMAN BRENDA THIEL, ALDERMAN KYLE COOK, ALDERMAN ROBERT RHOADS and ALDERMAN MATTHEW PETTY ORDINANCE OR RESOLUTION TITLE AND SUBJECT: An Ordinance To Amend Ordinance No. 3900 To Dedicate And Authorize The Use Of The Parks HMR Tax Revenues For The Development, Construction And Maintenance Of City Parks, And To Refer Such Ordinance To The Electors Of Fayetteville At A Special Election To Be Held On March 9, 2010 APPROVED FOR AGENDA: /2 Zj d Alderman B b Ferrell Date Alderman Robert Rhoads Date / of Alderman Sarah Lew' Date Alderman Slurley Lucas Date /.t -j- , a Alderman Brenda Thiel Dae Alderman Adella Gra Date 4,/f wJ � lz'z9 7cj Alderman MatthewDate tty Alan Kyle Cook Date 12 . 17 - oq qKit it m, ity Attorney Date (approved as to form) Tal cd 'l� c o2/)-/10 CC . X61 11e Aq alAt iplio Ct4o FAYETTEVILLE THE CRY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Alderman Bobby Ferrell Alderman Shirley Lucas FROM : Kit Williams, City Attorney DATE : December 9, 2009 RE : Special Election for Ordinance to Amend Parks HMR Tax Uses to include maintenance Reviewing A.C.A. §7-5- 103 (b)(7), I find that if the special election is not during a month in this a primary or general election is held, "the special election shall be held not less than fifty (50) days following the date that the proclamation, ordinance, resolution or order is published ." Therefore, we do not legally have to conduct a special City Council meeting in December to meet the March 9th election date. I will leave it up to you to determine the best policy decision for the ordinance. The ordinance would have to be passed prior to your January 19, 2010 City Council meeting to meet the statutory requirement for a special election on March 9, 2010 . Attached is my proposed ordinance with a tentative date of January 5 , 2010. I believe this proposed ordinance (which amends the existing Ordinance No. 3900) would authorize use of the Parks 14MR tax revenues for maintenance (as well as development and construction) of city parks. If it is rejected by the voters, then Ordinance No. 3900 will not be amended and will continue to restrict use of the Parks 14MR revenues for promotion and development of city parks. FAYETTEVILLE THE CRY OF FAYE7TEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Lioneld Jordan, Mayor City Council CC : Don Marr, Chief of Staff Connie Edmonston, Parks and Recreation & Open Spaces Director FROM: Kit Williams, City Attorney Aeevx- -4e� DATE: January 13, 2010 RE: Original intent of Parks HMR taxes History Of Adoption Of Parks HMR Tax I have done some research into the official City Council minutes to ensure that my memory that the Parks HMR taxes were to be used for maintenance of city parks as well as their development was correct. I believe the proposed Parks HMR tax was also discussed during the City Council Agenda Session in June of 1995, but there are no minutes for those meetings. On June 20, 1995, the City Council first heard City Attorney Jerry Rose read the ordinance prior to discussion. The ordinance that eventually passed and was later ratified by the voters stated in § 2 (b): "(b) Proceeds of the additional I % tax shall be deposited into a special fund established by the City to be used for the development, construction, and maintenance of city parks. The funds shall be disbursed by the Mayor upon approval of the City Council ." (emphasis added) This proposal was championed by the Parks and Recreational Advisory Board, especially its chairman, Susan Driver. She initially told the City Council about the study to improve our city parks and stated that the "first priority of that study was to seek additional funding for maintenance and development of new and existing facilities." (page 203 of the City Council meeting minutes for June 20, 1995) (emphasis added) Bill Waite of the Parks and Recreation Advisory Board was also present and told the City Council that the Parks Department "had had no increase in administrative funding for the past ten years." Id. "Susan driver emphasized that the HMR tax would be a source of funding that could be used for acquisition, development and maintenance .. . ." Id. (emphasis added) I was then an Alderman and asked City Attorney Jerry Rose about the possible uses of the Parks HMR tax. "In response to a question from Alderman Williams, City Attorney Rose said that the ordinance calls for the development, construction and maintenance of city parks." (page 204 of the City Council Meeting Minutes, page 204) (emphasis added). Morty Newmark spoke as a citizen in favor of the Parks HMR tax as a way to "ensure maintenance and development of recreation areas." Id. The ordinance was left on the first reading. The ordinance was considered again during the July 5, 1995 City Council meeting. Issues about whether a temporary sales tax would be better than the permanent Parks HMR were discussed, but there was no further discussion about how the Parks HMR tax could be used. The City Council then passed the ordinance with a referral to the voters. I have attached the relevant minutes to this memo. Although the City Council minutes clearly reflect the intent that the Parks HMR tax would be able to be used for park maintenance, Section 2 (a) of . the ordinance specified a different purpose: "Section 2 . (a) The revenues collected from the additional tax of 1 % shall be used by the City Parks and recreation Department for the promotion and development of City parks and recreation areas." The title of the ordinance listed this same purpose. Most importantly the ballot submitted to the Fayetteville voters stated the tax was "to be used by the City Parks and Recreation Department for the promotion and development of City parks and recreation areas.,, - Constitutional Analysis The expressed "purpose" of the Parks HMR tax in the ballot ordinance and especially on the ballot is critical when determining what it can be used for. Taxes can only be used for the PURPOSE for which they were levied. 2 Article 16 § 11 of the Arkansas Constitution states: "No tax shall be levied except in pursuant of law, and every law imposing a tax shall state distinctly the object of the same; and no money arising form a tax levied for one purpose shall be used for any other purpose." (emphasis added) Even though the ordinance in Section 2 (b) speaks about a fund being established to be used for construction and maintenance of city parks, the earlier Section 2 (a) requires the use "for promotion and development of City parks . .. ." If there is any uncertainty the ballot controls. "Whether the government entity levying and collecting the tax intended to put the revenues to `good use' is of no consequence, so long as the funds are being spent on any purpose other than those specified on the ballot." Daniel v. Jones, 332 Ark. 489, 966 S.W. 2d 226, 231 ( 1998). (emphasis added) "The voters of White County were entitled to rely upon the information provided to them in the levying ordinance and the ballot when casting their votes; hence, any use of the revenues for purposes other than those provided constitutes an illegal exaction. The conclusion is consistent with this court' s long=held position that the ballot title is the final, definitive statement to the voters as to that which they are being asked to decide. Id. at 231 . (emphasis added) The Arkansas Supreme Court has held that a City Council' s use of tax revenue for purposes not found on the ballot to be an illegal exaction (with appropriate attorney fees and damages). Maas v. City of Mountain Home, 338 Ark. 202, 992 S .W. 2d 105 ( 1999). Conclusion Although the City Council meeting minutes of June 20, 1995 makes it clear that everyone intended that the Parks HMR tax if approved by the voters would be able to e used for "development, construction and maintenance of city parks", a drafting error in the ordinance and ballot has limited the uses to promotion and development of city parks. The proposed amended ordinance to be referred to the voters would correct that mistake and allow the over $2 million Parks HMR tax revenue to be used as originally intended in 1995 . 3 ORDINANCE NO. AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON MAY 189 2010 WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and Restaurant tax nor have any effect other than to establish a special city fund in which Parks HMR revenue could be used for the development, construction and maintenance of city parks; and WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development of City parks; and WHEREAS, Arkansas statutes would also allow the use of revenues from this existing Park HMR for maintenance of city parks if approved by Fayetteville voters; and WHEREAS, the citizens of Fayetteville will be better served by allowing the use of revenues from the existing Parks HMR not only for development of our many parks, but also for their maintenance. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead : "(a) The revenues collected from the Parks Hotel, Motel and Restaurant Tax shall be used by the Fayetteville Parks and Recreation Department for development, construction and maintenance of City parks." Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in its stead: "(c) The following question shall be placed upon the ballot for the special election to be held during the Preferential Primary and Nonpartisan General Election on May 18, 2010 : "FOR proposed Ordinance No. amending Ordinance No. 3900 by authorizing and dedicating the revenue from the existing Parks Hotel, Motel and Restaurant tax to be used for the development, construction and maintenance of city parks. "AGAINST proposed Ordinance No. amending Ordinance No. 3900 by authorizing and dedicating the revenue from the existing Parks Hotel, Motel and Restaurant tax to be used for the development, construction and maintenance of city parks." Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development, Construction and Maintenance of City Parks." Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a special election to be held on May 18, 2010. This ordinance shall only take effect if approved and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax. PASSED and APPROVED this 2"d day of January, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer Viral wo. - 74OA4dd ad- erd 09-tW14 -/a ORDINANCE NO. AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON MAY 18, 2010 WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and Restaurant tax nor have any effect other than to establish a special city fund in which Parks HMR revenue could be used for the development, construction and maintenance of city parks; and WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development of City parks; and WHEREAS, Arkansas statutes would also allow the use of revenues from this existing Park HMR for maintenance of city parks if approved by Fayetteville voters; and WHEREAS, the citizens of Fayetteville will be better served by allowing the use of revenues from the existing Parks HMR not only for development of our many parks, but also for their maintenance. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead: "(a) The revenues collected from the Parks Hotel, Motel and Restaurant Tax shall be used by the Fayetteville Parks and Recreation Department for development, construction and maintenance of City parks." Section 2 : That the City Council of the City of Fayetteville, Arkansas hereby amends Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in its stead: "(c) The following question shall be placed upon the ballot for the special election to be held on May 18, 2010: "FOR proposed Ordinance No. amending Ordinance No. 3900. "AGAINST proposed Ordinance No. amending Ordinance No. 3900." Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development, Construction and Maintenance of City Parks." Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a special election to be held on May 18, 2010. This ordinance shall only take effect if approved and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax. PASSED and APPROVED this 19`h day of January, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E, SMITH, City Clerk/Treasurer l�,ev�sed I - ofo -aolD ORDINANCE NO, AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD DURING THE PREFERENTIAL PRIMARY AND NONPARTISAN GENERAL ELECTION ON MAY 189 2010 WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and Restaurant tax nor have any effect other than to establish a special city fund in which Parks HMR revenue could be used for the development, construction and maintenance of city parks; and WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development of City parks; and WHEREAS, Arkansas statutes would also allow the use of revenues from this existing Park HMR for maintenance of city parks if approved by Fayetteville voters; and WHEREAS, the citizens of Fayetteville will be better served by allowing the use of revenues from the existing Parks HMR not only for development of our many parks, but also for their maintenance. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends Section 2 (a) of Ordinance No. 3900 by repealing §2(a) and enacting the following in its stead: "(a) The revenues collected from the Parks Hotel, Motel and Restaurant Tax shall be used by the Fayetteville Parks and Recreation Department for development, construction and maintenance of City parks." NORTHWEST ARKANSAS NE\'VSPAPERS- Northwest Arkansas Democrat Gazette The Morning News of Springdale The Morning News of Rogers Northwest Arkansas Times Benton County Daily Record 2 1 2 N o rth East Aven ue''*"'ïiläft'Ë ? "î\!r'::;', _83';i. 1 607' 7 27 0 2 AFFI DAVIT OF PUBLICATION l, Cathy wiles, do solemnly swear that I am Legal Clerk of the Northwest Arkonsos Newspapers LLC. Printed and published in Benton county Arkansas, (Lowell) and that from my own personal knowredge and reference to the files of said publication, the advertisement of: City of Fayetteville -Ordinance 5305 February 12,2010 Publication Charge : $ 212.41 sisned: þ,%frù-U Subscribed and sworn to before me This f ! day of rjL. , 2010. Notary Public My Commission Expires: Do not pay from Affidavit, an invoice will be sent , CERTIFICATE OF WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS ASCERTAINING AND DECLARING RESULTS OF SPECIAL ELECTION HELD IN THE CITY OF FAYETTEVILLE, ARKANSAS ON MAy r8,2o1o fi il r¡ I g:OS STATE OF ARKANSAS COUNTY OF V/ASHINGTON Washington County, Arkansas, do hereby certify that the following is a true and 6rect abstract of votes cast in the Special Election held in the City of FayettciyilË, Arlffisas (the "City"), on the 18th day of Muy, 2010. ' &#, E .jj The results of the vote upon the questions submitte o ^r" ^W, ? ffi We, the duly commissioned and acting Election Commissioners of An Ordinance to Amend Ordinance No. 3900 to authorize use of the réfdÉÊiÞfrom¡lhe existing Parks Hotel, Motel and Restaurant Tax for development, "ffiffiion åhd ) ) ) maintenance of city parks. For Proposed Ordinance No. 5305 7.539 Against Proposed Ordinance No. 5305 1.748 We further certify that the polls were open from 7:30 a.m. until 7:30 p.m.; that only qualified electors of the City were permitted to vote in said election; that the duly appointed judges and clerks made due returns of the votes cast; and that we canvassed the votes as required by law. IN TESTIMONY WHEREOF, we hereunto set our hands this 28tr'day of May,2010. COUNTY BOARD OF ELECTIONCOMMISSIONERS FOR N COLiNTY, ARKANSAS SU},IMARY REPORT Run Date:05/28/L0 12:06 Pl4 Fayetteviì'le Specìal Election Vote for 1 FOR proposed Ordinance No. AGAINST proposed Ordinance 2010 Preferentiai Primary Washington County, AR May 18, 20i0 VOTES PERCENT 5305 . No. 530 7.539 81.i8 t,748 18.82 OFFICIAL RTSULTS Report EL45 Page 001 RECEIVED JUN 2 5 2010 CITY OF FAYETTEVILLE CIW CLERKS OFFICE NET'I/SPAPERS* Northwest Arkansas Democrat Gazette The Morning News of Springdale The Morning News of Rogers Northwest Arkansas Times Benton County Daily Record 2 1 2 N o rt h East Ave n u e''"'"'iljläft '[ï " i\"'_::; i -E"r:î 1 6 07' 7 27 o 2 AFFIDAVIT OF PUBLICATION l, Cathy wiles, do solemnly swear that I am Legal Clerk of the NorThwest Arkonsos Newspapers LLC. Printed and published in Washington & Benton county, (Lowell), Arkansas and that from my own personar knowledge and reference to the files of said publication, the advertisement of: City of Fayetteville -Proclamation Iune 17,20IO Publication Charge : $ 58.37 NORTHWEST ARKANSAS to before me ,2010. Subscribed This?3 day Notary Public My Commission Expires: ¿ $*-t T-Lûr{ and sworn ot þt JOSHUA M TYNCH Notory Puþlic-Arkonsos WoshingTon County My Commisslon Exp¡rês I 0-28-20 i I I Commlsslon # 12ð68414 I Do not pay from Affidavit, an invoice will be sent