HomeMy WebLinkAbout1987-09-15 Minutes1
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MINUTES OF A MEETING OF THE CITY BOARD OF DIRECTORS
A meeting of the Fayetteville Board of Directors was held on
Tuesday, September 15, 1987 at 7:30 p.m. in the Directors' Room
of the City Administration building, 113 West Mountain Street,
Fayetteville, Arkansas.
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PRESENT: Mayor Johnson; Directors Marinoni, Hess, Bumpass,
Lancaster, Martin and Kelley; City Manager Pennington,
City Attorney McCord, City Clerk McWethy, Department
Directors Burch, Coates and Linebaugh; members of the
press and audience.
ROLL CALL
The meeting was called to
Directors present. There was
order by the Mayor, with seven
a pause for a moment'of silence.
CITY MANAGER'S REPORT
City Manager James Pennington presented the report to the public
and board for the month of August. [Clerk's Note: Because of
its length, the report is not included in these minutes, but is
on file in the City Clerk's Office.]
286
286.1
286.2
PICKETING
The Mayor introduced consideration of an ordinance amending the 286.3
City Code to provide that it shall be unlawful for any person to
picket before or about a residence located in a residential area
and used exclusively for residential purposes.
She explained a.three-judge panel of+the`United States Court of 286.4
Appeals had concluded that the Fayetteville residential picketing
ordinance was unconstitutionally overbroad because it did not
define 'a residential area". She asked that the Board decide
whether to amend the ordinance to conform to the court's
decision, or whether to appeal to the Supreme Court.
The City Attorney told the Board that factors to consider were:
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There is a reasonable likelihood the United States
Supreme Court would hear this case because there is a
division among the Circuit Courts of Appeals on the
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286.5
286.6
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September 15, 1987
287.1 constitutionality of an ordinance which completely bans
residential picketing;
287.2 (2) The United States Supreme Court has indicated in a
previous case that the Court would uphold the
constitutionality of an absolute ban on picketing at
residences used solely for residential purposes;
287":3
(3) The cost of the appeal;
287.4 (4) The Court of Appeals' decision does not clearly
indicate what "less restrictive alternative" the Court
would hold constitutional;
287.5' (5) A new ordinance would be subject to constitutional
challenge and enactment of a new ordinance would likely
result in litigation because the home which plaintiffs
desire to picket is located in an exclusively
residential area;
287.6
The City Attorney told the Board the City Prosecutor believes the
case should be appealed. McCord told the Board some additional
factors to consider are:
287.7 (1) The estimated time an appeal would take is 6-9 months.
During this period there would be no prohibition
against residential picketing in the City; and
287.8 (2) An ordinance could be drafted which he thinks would
conform to the Court of Appeals' "less restrictive
alternative" requirement and would withstand
constitutional challenge.
287.8 McCord said he personally believed the current ordinance would be
upheld by the United States Supreme Court. McCord proposed an
ordinance which would provide that "It shall be unlawful for any
person to picket before or about a residence located in a
residential area and used exclusively for residential purposes."
He said he thought that ordinance would withstand a challenge of
facial constitutionality.
287.9 McCord said, considering the City Prosecutor's opinion, he stills
recommends the amendatory ordinance be adopted.
287.10 Director Kelley proposed another alternative - to drop the whole
issue, so there would not be an ordinance which would prohibit
picketing in residential areas. Kelley said that, after reading
the First Amendment, he didn't see where the Board had the
authority to try to legislate and qualify the First Amendment.
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September 15, 1987
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He said he would vote against any ordinance that would try to 288.1
limit freedoms of citizens.
Director Martin asked Director Kelley if 50 people were picketing 288.2
in front of his (Kelley's) house, would he consider he and his
neighbors were entitled to the peaceful use of their property.
Kelley said he thought that was a right he had as a property
owner but, at the same time, the persons would have to assemble
peacefully and give access to the property owner. He said people
could picket his home based on political, moral or religious
issues. Kelley said the Constitution doesn't quantify or qualify
situations, it only says the people have a right to peaceable
assembly.
Director Martin said there were places where freedom of assembly 288.3
is permitted and there are other places where it violates other
peoples' rights. He said the City never has denied anyone the
right to express an opinion in the proper place, but a
residential neighborhood is not the place. Martin said he
thought the proposed amendment was exactly what the intent of the
Board initially was when it passed the current ordinance.
The City Attorney told the Board that, under the First Amendment, 288.4
the Court has not directly addressed an absolute ban on
residential picketing, but did consider in 1980 an ordinance
which prohibited residential picketing but contained an exclusion
or exemption for labor disputes. He said the court struck that
ordinance down as being violative of equal protection but said:
"We are not to be understood to imply however that residential
picketing is beyond the reach of uniform and nondiscriminatory
regulation. The State's interest in protecting the well being,
tranquility, and privacy of the home is certainly of the highest
order in a free and civilized society. Nor can it be said that
the State interest could be fully protected by a less restrictive
statute. An absolute ban on picketing at residences used solely
for residential purposes permissibly furthers the State interest
in protecting residential privacy. The State could certainly
conclude that the presence of even a solitary picket in front of
a residence is an intolerable intrusion on residential privacy."
McCord said the Court of Appeals' decision on the Fayetteville 288.5
ordinance, which was a narrow holding of overbreadth, reads: "Our
holding is not a blanket' prohibition of residential picketing
statutes. We hold rather that in this instance Fayetteville has
not carried out its laudable motives with the care and precision
required by the Constitution."
Director Hess said another ordinance,
than likely still be appealed. McCord
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in his opinion, would more 288.6
said that was the point of
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September 15, 1987
the City Prosecutor. Hess said he would prefer to appeal the
decision.
Director Bumpass said it was just as possible for the City to
appeal and the Eight Circuit to be upheld, and for the City to
then rewrite the ordinance. Bumpass recommended the ordinance be
amended.
Director Lancaster said, from a safety standpoint, he resented
the sidewalk being covered up with pickets, when people have to
thread their way through. Lancaster said he was ready to vote to
appeal it, and then write a new ordinance.
289.4 Director Kelley asked how the re -worded ordinance would be
enforced. McCord said if an individual was picketing before or
about a residence located in a residential area, the individual
would be cited for a violation of the ordinance. Kelley asked
how it would be determined what was a predominately residential
area. McCord said the factual circumstance which precipitated
the original ordinance occurred on Mt. Nord, and he said it would
be clear to anyone driving through Mt. Nord that it was a
residential area.
289.5 Director Marinoni said he felt anyone
business during business hours but
person home to his residence and picket
totally unacceptable to him. Marinoni
be amended.
had a right to picket a
to follow a professional
in front of his house was
said the ordinance should
289.6 Director Bumpass moved to amend the ordinance as recommended by
the City Attorney. The motion was seconded by Marinoni. Upon
roll call, the motion passed 6-1, Kelley voting in the minority.
289.7 The City Attorney read the ordinance for the first time. The
Mayor asked if anyone wished to speak in favor of or in
opposition to the ordinance.
289.8 Gary Carnahan, Fayetteville resident, asked the Board how many
complaints had been received in the last ten years from people
whose homes have been disturbed by picketing. He said picketing
had taken place on Maple Street as well as on Mt. Nord, and the
pickets had been few and have been peaceable. He said pickets
had followed the Bill of Rights very carefully, and had not
impeded the flow of other people on sidewalks. Carnahan asked
how much City money has been spent, and commented that he thought
City money was being spent to protect the interest of one
businessman in town, that no one else had complained to the City.
The City Attorney corrected Carnahan, stating the neighbors, not
the businessman, had complained to the City.
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September 15, 1987
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Carnahan said the original ordinance was passed without public 290.1
input and, when the public asked for a chance to appeal it, they
were turned down. He said he thought the appeal would be
"throwing good money after a bad idea". He asked that the City
drop this, and not spend any more City time and money "trying to
control' a few citizens who believe strongly in something they
would like to make a statement against."
McCord estimated the cost of appeal to be approximately $7500.
He said if the Board adopted an amendatory ordinance "it would
not cost the city a dime" unless the ordinance is challenged in
court. He said the last appeal cost from $5000-$6000.
Director Bumpass, seconded by Lancaster, made a motion to suspend
the rules and place the ordinance on its second reading.
A member of the audience, who told the Board he was one of the
plaintiffs in the suit against the City, said "none of the
picketers that really want to picket could be stopped dead cold
if the abortionist would stop doing abortions". The City
Attorney pointed out the ordinance was "content neutral" and
didn't address the subject matter of the picketing.
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Dr. Dow Pursley addressed the Board, suggesting it would cost the
City considerably more than $7500 to appeal. He said he resented
his tax money being used to support an abortionist. He told the
Directors to think about their vote and decide how they wanted to
be recorded in Fayetteville's history in this area.
Upon roll call, the motion passed, 6-1, Kelley in the minority. 290.6
McCord read the ordinance for the second time. Director Bumpass,
seconded by Lancaster, made a motion to further suspend the rules
and place the ordinance .on its third and final reading. Upon
roll call, the motion passed, 6-1', Kelley voting in the minority.
The ordinance was read for the third time.
Director Bumpass 'pointed out that the subject matter of the 290.7
public comments, which was strong opinions about abortion, is not
the subject matter of the ordinance. He said the ordinance is to
maintain the peaceful tranquility of the residential
neighborhoods in the', city. He noted there were all sorts of
commercial areas where picketing can take place and where persons
can exercise their right of free speech.
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Upon roll call; the ordinance passed, 6-1, Kelley in the 290.8
minority.
290.2
290.3
290.4
290.5
ORDINANCE NO. 3293 APPEARS ON PAGE
RESOLUTION BOOK /gX ✓
as
OF ORDINANCE AND
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September 15, 1987
BURGER PLUS PERMIT
291.1 The Mayor introduced consideration of whether to appeal a
decision by the Arkansas Alcoholic Beverage Control Board
approving an on -premise beer permit for "Burger Plus", located at
14 S. University. She explained earlier this year, because of
objections raised by the Acting City Manager, the Police
Department and residents in the area, the permit was denied. She
said later this was appealed to the full ABC Board and the permit
was approved.
291.2 A. O. White, apartment owner across the street from "Burger
Plus", told the Board he represented owners and managers of five
apartments across the street and within one block. He said they
oppose any alcoholic beverages being sold in that neighborhood.
He said a petition had been signed by Summit Terrace Apartments,
Beverly Manor, Glendale Apartments, Oakwood Place, Viking
Apartments, and others. He said it wasn't right that political
appointees (referring to the Alcoholic Beverage Control Board)
"run our town".
291.3 White said approximately a year ago a beer license was applied
for in the same area, and the City Manager, Police Department,
Sheriff's Department, and the apartment owners and managers
vigorously opposed it, and the license was denied. He said
approximately six months ago another person applied for a license
in the same area, and again the same persons opposed the license,
and it was denied by the ABC Director. He said it was appealed
to the entire Board which unanimously granted the license.
291.4 White said the City Board has opposed alcoholic beverage
applications for locations which are not zoned C-2 or C-3. He
said the "Burger Plus" property was zoned C-1 and is surrounded
by residents opposed to the application. White said there was no
one present at the hearing in Little Rock to represent those who
were in opposition to Whitmore's beer permit, because they were
under' the impression that the Sheriff's Department, Police
Department, City Manager and City Board's wishes would be
complied with. He said were it not for that impression, they
would have been present with an attorney.
291.5 The City Attorney told the Board the City has the right to appeal
the decision to Circuit Court. He said the question was whether
the record made before the ABC Board contains substantial
evidence to support the Board's decision. He said the property
owners also had the right to appeal, whether or not they had been
present at the session. A. O. White said the property owners had
not yet discussed whether to appeal but if an appeal is made they
would prefer it be a joint appeal with the City.
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September 15, 1987
The City Attorney explained any appeal must be made within thirty
days from final agency action, which was taken on August 20.
Hess said he thought if any appeal is made, the City's weight
should°be behind it. Director Lancaster asked, if an appeal is
filed, what would happen to the permit. The City Attorney said a
court order staying the permit could be requested.
Pat Tobin, owner of the "Burger Plus" property, said restaurant,
beer and wine licenses can be found in just about any zoning
class within the city with the -'exception of residential areas.
He noted his property was zoned C-1, said zoning should not be
used as a tool to discriminate or forbid somebody from doing
something they have a right to do within that zoning
classification. Tobin said to have to fight City Hall in order
to do business is totally unfair. He said his tenant had rights
to do business in the City of Fayetteville.
Director Bumpass said he really believed if the apartment owners
feel they've been aggrieved and their property values are at risk
it might make sense for them to bear the expense of filing the
appeal. He said he could see the City cooperating by providing
additional testimony.
Mayor Johnson asked when the Board can object to an on -premise
beer permit in a certain location. She said the Board had
routinely opposed those permits for locations close to
residential districts. She said the first time the permit was
requested, the ABC Director considered the opposition, but when
it was heard a second time by the full ABC Board, they gave no
consideration to the opposition. Johnson said she preferred
appealing the decision.
Director Johnson moved to.appeal.the permit to the Circuit Court,
with the .adjoining property owners, and that those expenses be
shared fifty/fifty. The motion was seconded by Marinoni. The
City Attorney said the motion created a problem, as far as he was
concerned, if the property owners don't come to him within the
proper time period with an agreement to share the costs. Johnson
said the City Attorney should file the appeal and the City work
out an arrangement with the property owners afterwards. The City
Attorney said he thought the City should make its own decision
and let the property owners do what they want to do.
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Johnson reworded her motion to appeal the decision of the
Arkansas Beverage Control Board to the Circuit Court. The motion
was seconded by Director Martin.
Director Bumpass asked for a staff recommendation.
Administrative Services Director Linebaugh said the staff had
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292.1
292.2
292.3
292.4
292.5
292.6
292.7
292.8
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September 15, 1987
293.1 done everything administrative -wise that could be done and to go
any further would involve a lawsuit. He said the staff concurs
with the Mayor.
293.2 Bumpass said the City routinely objects to certain permits in
different locations but he thought the precedent should be clear.
He said the City has allowed beer permits to be issued under
these same circumstances directly across the street from
apartments where students live. He said he thought the
applicants were legally entitled to have their permit in a
commercial zone. He said he thought the Board would be better
off rezoning the property.
293.3 The City Attorney said if the City opposes a particular permit he
should be instructed to participate in the administrative
hearings because any appellate review will be based on the record
made before the administrative board. He said in this case he
was not asked to participate and the record is not as good as
he'd like for it to be on an appeal. He said there was a
fifty/fifty chance of success. McCord estimated the appeal could
cost $2-3000.
293.4 Director Martin commented that the issue is proximity to
residential areas, not the question of the appropriateness of
beer or wine. He said he might feel differently if the neighbors
had not objected. He said he felt obliged to support the
neighbors, noting that the Board's policy has been to oppose
these permits in a C-1 zone.
293.5 Director Lancaster said the City Board should back up their
decision to oppose the permit.
293.6 Director Hess said procedurally speaking the Board should send
McCord to the administrative hearing when it chooses to oppose a
permit.
293.7 Upon roll call, the motion passed, 6-1, Bumpass voting in the
minority.
ANIMAL SHELTER OPERATION
293.8 The Mayor introduced a resolution authorizing the execution of an
agreement between the City of Fayetteville and the Fayetteville
Humane Society, for the operation of the Animal Shelter.
293.9 Director Hess, seconded by Martin, made a motion to approve the
resolution. Upon roll call, the motion passed, 7-0.
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September 15, 1987
RESOLUTION NO. 66-87 APPEARS ON PAGE 3 3 y OF ORDINANCE &
XXVII I
RESOLUTION BOOK
SIGN ORDINANCE CHANGES
The. Mayor introduced• an ordinance amending the City's Sign
Ordinance, left on second reading on September 1st.
The City Attorney requested the Board delete Section 2 of the
ordinance, so that he might research court decisions dealing with
prohibitions against pennants, balloons and windblown signs, with
his intent being to redraft Section 2.
Director Bumpass, seconded by Marinoni, made a motion to suspend
the rules and place the ordinance on its third and final reading.
Upon rdll call, the motion passed, 7-0. The City Attorney read
the ordinance for the third time.
Director Bumpass moved to amend the ordinance be deleting Section
2. The motion was seconded by Martin and, upon roll call, passed
by a vote of 7-0.
Director Johnson expressed concerns about allowing two signs on
commercially developed property used for residential purposes.
She said this would cause more visual blight in residential
housing areas, because the ordinance will allow "for rent" signs
as well as allowing another sign for advertising. Johnson moved
to delete Section 3 (b) from the ordinance. The motion was
seconded by Lancaster.. Johnson said removing this section from
the ordinance would allow the Board to vote on it separately.
Upon rollcall, the' motion failed, 2-5, Johnson and Lancaster
voting in favor, and the remainder of.the Board voting against
the motion.
Director Bumpass said the ordinance would now legitimize
apartment signs. He asked about size limitations for these
signs. , Inspection Superintendent Wood said the signs would be
limited to four square feet, must be set back 15 feet, and
limited to six feet in height.
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Director Hess said this would allow apartments to advertise their
business through a freestanding sign. Johnson pointed out
apartments are already being permitted "for rent" signs, and that
now they will be permitted to have a second freestanding sign,
and in addition may have a wall sign.
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294.1
294.2
294.3
294.4
294.5
294.6
294.7
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September 15, 1987
295.1 Director Bumpass asked if the "for rent" signs and the
freestanding signs should be allowed for awhile and, if there is
abuse, the signs would have to be standardized.
295.2 Upon roll call, the ordinance passed, 6-1, with Johnson voting in
the minority.
ORDINANCE NO. 3294 APPEARS ON PAGE 2,2/ OF ORDINANCE AND
RESOLUTION BOOK %K/ V
SANG SENIOR CENTER ADDITION
295.3 The Mayor introduced consideration of the award of bid for
construction of an addition to the Sang Senior Center, to be
funded under the Community Development Block Grant program. She
said the Public Works Director recommends the bid be awarded to
the lowest of three bidders, Turner General, bidding $19,477.
She said the estimate had been $20,575. She told the Board the
contractor expects to complete the work within sixty days after
issuing a Notice to Proceed.
295.4 Director Hess, seconded by Martin, moved the award of bid to the
low bidder. Upon roll call, the motion passed, 7-0.
WEDINGTON DRAINAGE
295.5 The Mayor introduced consideration of the
construction of Phase II of the Wedington area
development project. She told the Board
Director recommends the award to the lowest
Snyder Construction, bidding $251,316.32.
engineer's estimate was $298,214.
award of bid for
drainage community
the Public Works
of five bidders,
She reported the
295.6 Director Marinoni, seconded by .Johnson, made a motion to award
the bid to Snyder Construction Company. Upon roll call, the
motion passed, 7-0.
RUPLE ROAD DRAINAGE
295.7 The Mayor introduced a request from the Public Works Director for
the city to contribute one-half the cost of constructing drainage
improvements to Ruple Road and Highway 16 West. She said the
Public Works Director estimates the cost of the project to be
$55,000, and recommends the City contribute $27,500. She said
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September 15, 1987
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the budget contained $35,000, and that the City had already 296.1
contributed $5,850 towards engineering design work.
Johnson suggested that, since the City has already spent $5,850, 296.2
the City pay $25,000 rather than $27,500.
Director Marinoni said he had lived in that area all his life and 296.3
attested to the fact that the drainage work is highly needed. He
said the property owner contributing half is already a better
deal than the City is receiving on the Wedington drainage
project.
Marinoni moved to approve the City's contribution of $27,500, 296.4
seconded by Martin.
Public Works Director Burch explained the City's expenditure of 296.5
$5,850 took place in 1985. He recommended the City participate
up to $27,500 but that any additional engineering required to
complete the portion on the south side for which the property
owner will be responsible, would be entirely at the cost of the
property owner. Marinoni agreed this was the intent of his
motion..
Upon roll call, the motion passed, 7-0. 296.6
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RECESS
The meeting recessed at 9:25 p.m. and reconvened at 9:40 p.m.
UNSIGHTLY PROPERTY
The Mayor
unsightly
structure
on August
meetings.
introduced an ordinance ordering the abatement of
conditions and the razing and removal of an unsafe
located at 1717 Stirman Avenue; left on first reading
4th and tabled at the August 18th and September 1st
Public Safety Director Coates told the Board
the staff to allow them until September 4th
permit. He said this has not been done,
Board proceed to act on the ordinance.
the owners had asked
to obtain a building
and recommended the
Director Hess, seconded by Marinoni, made a motion to suspend the
rules and place the ordinance on its second reading. Upon roll
call, the motion passed, 7-0. The City Attorney read the
ordinance for the second time. Director Bumpass, seconded by
296.7
296.8
296.9
296.10
September 15, 1987
297.1 Marinoni, made a motion to further suspend the rules and place
the ordinance on its third and final reading. Upon roll call,
the motion passed, 7-0. The ordinance was read for the third
time.
297.2 Director Johnson, seconded by Martin, moved to delete the
emergency clause from the ordinance, so the property owners will
have an additional thirty days. Upon roll call, the motion
passed, 7-0.
297.3 Upon roll call, the ordinance passed, 7-0.
ORDINANCE NO. 3295 APPEARS ON PAGE �223
RESOLUTION BOOK )(XIV
OF ORDINANCE AND
YOUTH CENTER POOL
297.4 The Mayor introduced a request from the Public Works Director for
approval of a resolution authorizing the City to enter into a
contract for an engineering study on the Youth Center pool; and
approval of a budget adjustment to pay for the study. Johnson
said the staff recommended the contract with Northwest Engineers
and O. Michael Green Engineering, Inc., who will study the
structural and mechanical problems with the Youth Center pool and
make a recommendation and cost estimates for necessary repairs.
She said there would be a lump sum fee for the study of $1500, to
be taken from floating boat dock funds which were not used this
year.
297.5 Public Works Director Burch said the Parks and Recreation
Advisory Board had brought this request to the staff. He said it
was decided to find someone trained in air handling equipment and
structural design to do the study. He said the engineers
recommended had past experience in this area and in the pool
area. -
297.6 Director Martin asked about the requirement for obtaining
competitive bids. The City Attorney explained this would not be
required because of the amount to be spent.
297.7 Director Hess, seconded by Bumpass, moved approval of the
resolution. Upon roll call, the motion passed, 7-0.
RESOLUTION NO.72-87 APPEARS ON PAGE 34.5" OF ORDINANCE AND
RESOLUTION BOOK )(X V // / p ,
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September 15, 1987
BID AWARDS/SANITATION TRUCKS
BID NOS. 802 AND 802-1
The Mayor introduced consideration of the award of Bid No. 802. 298.1
She reported the Public"Works Director recommended the award, for
one 58,000 GVW truck chassis, to the only bidder, Crane Carrier
Corp., bidding $74,970..
She introduced the award of Bid No. 802-1, the Public Works 298.2
Director recommending the award,'for one 34 Cu. Yard Front Loader
unit, to the lowest bidder, Lodal, Inc., bidding $41,182.
Director Bumpass, seconded by Lancaster, moved the award of Bid 298.3
No. 802, for $74,970, to Crane Carrier Corp., the only bidder,
and the award of Bid No. 802-1, for $41,182, to Lodal, Inc, the
low bidder.
In answer to a question from Director Marinoni, Public Works 298.4
Director Burch said this was a replacement truck. He said old
chassis are sold at auction, and the pack body itself is also
sold but usually doesn't bring much on resale.
Upon roll call, the motion passed, 7-0. 298.5
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APPOINTMENTS
Director Kelley, Chairman of the Board Nominating Committee,
recommended the appointment of Stephen Brandeis and Barry Fink to
the Electrical Advisory Board, and the appointment of Bill Flynn
to the Historic District Commission. Kelley so moved, seconded
by Martin. Upon roll call, the motion passed, 7-0.
298.6
AIRPORT HANGAR LEASE
The Mayor introduced a resolution authorizing the Mayor and City 298.7
Clerk to execute a renewal of a lease with Aero Tech Services for
a maintenance hangar; tabled at the September 1st meeting.
Johnson said this lease contained the same provisions as last
year; at $1,674.17 per month, but will be for a term of one year.
Lancaster moved approval of the resolution, seconded by Bumpass. 298.8
Upon roll call, the motion passed, 7-0.
RESOLUTION NO. 67-87 APPEARS ON PAGE 357 OF ORDINANCE AND
RESOLUTION BOOK i(x vfn
91)9
September 15, 1987
HART LEASE MODIFICATION
299.1 The Mayor introduced a resolution authorizing the Mayor and City
Clerk to execute a modification to a lease with Hart Leasing (dba
Express Rent A Car) for a car rental booth in the Airport
Terminal Building; tabled at the September 1st meeting.
299.2 Johnson explained the modification would allow for the monthly
rental to be credited to the company until such time as the total
amount credited pays for the overflow parking spaces they
constructed at the Airport.
299.3 Director Hess, seconded by Lancaster, moved approval of the
resolution. Upon roll call, the motion passed, 7-0.
RESOLUTION NO. 68-87 APPEARS ON PAGE .39y OF ORDINANCE AND
RESOLUTION BOOK ,KX V ii /
ADVERTISING DISPLAY LEASE
299.4 The Mayor introduced consideration of a resolution authorizing
the Mayor and City Clerk to execute a one-year lease agreement
with Bentonville Inn for advertising display space at the
Fayetteville Airport Terminal Building, at a monthly rental cost
of $80 per month.
299.5 Director Bumpass asked if the Board could reconsider this
proposal in light of the airport survey just received. He
suggested the Advertising and Promotion Commission should be
contacted about the availability of display space for businesses
in the Fayetteville area. He said "we are not getting what I
think is an appropriate market share of the overnight visitors to
the area that come through the Fayetteville Airport" and at the
same time "we are getting comments from the passengers who come
through the Fayetteville Airport that they are dissatisfied with
some of the hotel and restaurant services available to them."
Bumpass said he believed the City may need to do a better
marketing job of things available in the area before allowing an
out-of-town business to advertise at the terminal.
299.6 Bumpass moved to table this and submit its consideration to the
Advertising and Promotion Commission. The motion was seconded by
Kelley and, upon.roll call, was passed, 7-0.
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September 15, 1987
FINANCIAL AUDIT
John Votter, speaking on behalf of, Arthur Young,
the financial audit for the year ending December
presentation to the Board -on the findings of the
which conducted
31, 1986, made a
audit.
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300.1
Votter said the audit consisted of eight reports, two of which 300.2
were financial, two concerned internal.control, three concerned
compliance, and one was the "management letter".
Votter 'said an
statements shows
examination of the general purpose financial 300.3
"everything is okay".
1
He said the report on the, schedule of federal financial 300.4
assistance shows the City to be in conformance with generally
accepted accounting principles.
•
He said, in their study of the internal control system, the 300.5
general purpose financial statements show no condition of
material weakness; and'a second study of internal control systems
used in administering federal financial assistance programs also
shows no condition believed to be a material weakness.
•
He said the compliance report on the general purpose financial 300.6
statements, and the report required to be issued by the Single
Audit act shows the City to be in compliance with the laws and
regulations.
He said in reference to the City's responsibility for complying- 300.7
with laws and regulations of the State of Arkansas, results
indicated the City to be in compliance, except for certain items
which were found to be in non-compliance:
The City Treasurer has not been submitting monthly copies of 300.8
bank reconciliations and signed statements to the Board of
Directors;
A list was not provided in a timely manner to the Board of 300.9
Directors, of all banks doing business in the State and
which are members of the FDIC;
The City does not use
professional services
maximum established by
competitive
contracts
the Board;
bidding procedures on all 300.10
which exceed the $2,500
The Arkansas Judicial Department is not being given a copy 300.11
of reports from the Municipal Court Clerk on monetary
settlements of certain court costs and fines collected.
The Municipal Court Clerk is not always making daily
deposits of cash receipts.
3U1.
September 15, 1987
301.1 No state statute or ordinance can be found authorizing a
$4.00 fee being collected by the Municipal Court.
301.2 Votter reported on the study of the City's compliance with the
terms and provisions of applicable federal awards, and he
summarized the schedule of findings and questioned costs:
301.3 Two instances were found where there was no Department of
Labor wage determination for the classification of certain
individuals employed by contractors or subcontractors,
causing a question in the amount paid to the individuals.
301.4 One instance was found in which the certified payroll did
not included classifications for the employee, causing a
question in the amount paid to the individual.
301.5 A review of salaries charged to the CDBG Program notes that
salaries were charged based on percentages instead of
detailed timesheets (a procedure approved by a regional
office but not by a district office)
301.6 Federal funds held in a CDBG escrow account were being
released before completion of housing rehabilitation
projects.
301.7 A grantee performance report, for the CDBG program, was
filed two months late.
301.8 Grant expenditures review shows retainages were being
requested as the expenditure occurred but before they were
due and payable.
301.9 On an Airport project, two expenditures were made prior to
the grant execution date and were later charged to the
program.
301.10 Construction projects were not completed in the designated
time frames, including extensions obtained.
301.11 Prior approval was not obtained for professional services on
a CDBG program.
301.12 Bonding was obtained in three situations from insuring
companies which did not hold certificates of authority as
acceptable sureties.
301.13 Reporting on the management
disclosed no evidence of a
further consideration be given
items:
letter, Votter noted the study
material weakness, but suggests
by the City to the following
1
1
The City
auditors
reviewed
September 15, 1987
incorrectly paid some parking lot revenues. The
recommend .schedule changes in the future be
by the,City Attorney.
Two instances of noncompliance were found with various debt
covenants. The auditors recommend monitoring procedures be
established. •
l
Several instances of ' noncompliance were found in Airport
grants, some because of split accounting functions between
Airport and the Finance Department. The auditors suggest
the Airport Accounting functions be brought back under the
Finance Department.
The auditors noted the Administrative Services Director and
the Accounting Supervisor were spending a great deal of time
on special projects, analyses and requests from Board
members which detracted from the day-to-day running of the
department. The auditors recommend the city add a position
of "city auditor" to do internal auditing and be responsible
for grants administration.
Extremely high turnover rate is seen in the Finance
Department. The auditors recommend an internal study be
done to determine the causes of the turnover.
Director. Martin asked if some of the situations were to continue
would they result in a finding of material weakness. Votter said
it was possible a few of them could, especially the high turnover
situation.
Director Hess asked if it was the auditors' procedure
cost -efficiency or time -management recommendations
management letter. Votter said they always furnish a
"one liners" to Linebaugh which are not included
management letter.
Hess said even though the situation at the airport is not
considered a "material weakness" he felt it ought to be
investigated.
to make
in the
list of
in the
Director Lancaster said
paperwork". He said
Finance` Department, the
the people in City Hall are "drowning in
instead of tending to business in the
employees are doing surveys and reports.
Director Bumpass said he didn't want a situation where everybody
is "pointing fingers" at everybody else, but he didn't want it to
be a problem again next year. He asked the City Manager how the
questions would be resolved. Pennington commented that the audit
report could not have come at a better time for him. He noted
302
302.1
302.2
302.3
302.4
302.5
302.6
302.7
302.8
302.9
302.10
September 15, 1987
303.1 that, although there are not any material weaknesses, there are a
lot of "red flags" that exist. He said it was his responsibility
to report back to the Board with organizational improvements that
can be made in a short period of time. He said internal
management will have to be looked at, particularly on the finance
side
303.2 Director Martin asked Pennington when he would give the Board a
response to the audit. Pennington said on about 3/4 of the items
he could provide a response in about two weeks, and on some items
he would respond within thirty days. Pennington said he had some
very firm opinions on what can and should be done.
ASBESTOS REMOVAL
303.3 The Mayor introduced consideration of the award of bid for
asbestos removal at the Fayetteville Public Library; and a
resolution authorizing the Mayor and City Clerk to execute a
contract with Environmental Protection Associates of
Russellville, Arkansas, the low bidder, bidding $123,843. The
Mayor told the Board the budget contained $300,000 for this work.
303.4 Director Hess, seconded by Marinoni, moved award to the low
bidder, Environmental Protection Associates. Upon roll call, the
motion passed, 7-0.
RESOLUTION NO. 69-87 APPEARS ON PAGE .3 Y L OF ORDINANCE AND
RESOLUTION BOOK XX01
BID WAIVER
303.5 The Mayor introduced a request from the Public Works Director for
an ordinance waiving the requirements of competitive bidding and
authorization to purchase two pumps for the Highway 112 Sewer
Lift Station.
303.6 The City Attorney read the ordinance for the first time.
Director Bumpass, seconded by Johnson, made a motion to suspend
the rules and place the ordinance on its second reading. Upon
roll call, the motion passed, 7-0. The ordinance was read for
the second time. Director Bumpass, seconded by Hess, made a
motion to further suspend the rules and place the ordinance on
its third and final reading. Upon roll call, the motion passed,
7-0. The ordinance was read for the third time.
1
1
September 15, 1987
•
In answer to a question from Director Martin, Public Works
Director Burch told the Board'the pumps would not be the same
type as those which have -been installed in the pump station•at
Highway 265 and Old Wire"Road. Martin said, "those pumps stink".
Martin objected, saying that people are now being offended with
odor from that project. He said' Burch has told him the
contractor is being pursued by the City. Burch explained that
hopefully the City can.get the situation taken care of as soon as
line bypass work is completed.
Upon roll call, the ordinance passed,"7-0.
ORDINANCE NO. 3296 APPEARS ON PAGE 2,23. --
OF ORDINANCE AND
RESOLUTION BOOK XX/ V
Bumpass said he thought the City should publicly announce that
people should expect the odor when there is going to be a line
bypass, and that it is a temporary inconvenience. Martin said
Burch told him oxygen can be injected into the stream which would
mitigate the odor. Martin suggested the contractor be asked to
do this, as the offensive odor at the intersection has existed'
for the last two or three months. Burch said all connections
should be completed by mid to late October. He said he would
talk to the contractor to see if arrangements can be made for the
oxygen.
BUDGET ADJUSTMENTS
The Mayor introduced requests for approval of budget adjustments
for (1) travel expenses for applicants for the position of City
Manager, •in the amount of $3,217, with funds for this to be
transferred from an excess in General Fund designated; but not
needed, for the Arts Center Fund, to the Travel and Training
account; (2) for the expense of animal disposal from August
through December (until the incinerator is operational), in the
amount of $1,875, with funds to be transferred from Building Cost
account to Contract Services account; and (3) for repair of a
water line break on Harvard Street, in the amount of $1,245, with
funds to be transferred from the Fire Division's travel and
training account to the Water Division's miscellaneous account.
Director Bumpass, seconded by
requests. Upon roll call, the
Hess, made a motion to approve the
motion passed, 7-0.
•
01
304.1
304.2
304.3
304.4
304.5
uuj
September 15, 1987
HOUSING & HISTORIC PRESERVATION
305.1 The Mayor introduced a resolution proposed by Director Bumpass,
urging Congress to amend the 1986 Tax Reform Act to ensure that
rehabilitation tax credits and low-income housing credits are an
effective method of achieving historic preservation and low-
income housing objectives. The Mayor commented that this issue
was discussed at the last Board agenda meeting.
305.2 Director Bumpass moved approval of the resolution, seconded by
Johnson. Upon roll call, the motion passed, 7-0.
RESOLUTION NO. 70-87 APPEARS ON PAGE 3y, OF ORDINANCE AND
RESOLUTION BOOK nxV1f1
PERFORMANCE AUDIT
305.3 The Mayor introduced a request from Arthur Young for payment for
services rendered in connection with the performance audit
conducted by them in 1985.
305.4 The Mayor reported the Administrative Services Director
recommends payment of the entire contract fee of $48,700, and an
additional amount of $19,463 for expanded services, including
reviewing the City's communication system and Central Dispatch.
305.5 Director Bumpass, seconded by Martin, moved approval of the
recommendation of the Administrative Services Director.
305.6 John Vines, speaking on behalf of Arthur Young, told the Board
the firm feels a fair fee for their work would be more on the
order of $90,000. He said after meeting with as many Directors
as he could, and receiving feedback, the firm is now willing to
settle for the recommended amount "in order to get this matter
behind us and to continue the good working relationship we have
had with the City of Fayetteville over the years."
305.7 Director Hess said, unfortunately at Arthur Young's expense, this
has pointed out a weakness in the City's contractual procedures,
which is that at some point the company felt they were going
beyond the scope of the contract and the staff felt they were
within the scope. Hess said if the company had informed the City
at the point when they felt they were going beyond the scope of
the contract, if there were discrepancies it could have been
discussed then.
305.8 In answer to a question from the Mayor, Vines said the audit work
papers were in Scott Linebaugh's office.
1
1
•
ii
• 306
September 15, 1987
Uponroll call, the motion passed, 6-1, Lancaster voting in the 306.1
minority.
OTHER BUSINESS
GENERAL PLAN
The Mayor introduced consideration of the award of contract for 306.2
update of the City's General Plan. She said the Selection
Committee, composed of Director Bill Martin, Don Bunn, Bob
Franzmeier, Ernest Jacks and -Sandra Carlisle, recommended the
contract be awarded to the low bidder, Hart -Freeland -Roberts, in
the amount of $60,000.
Director Martin, seconded by Kelley, made a motion
award of contract to the low bidder..
to approve the 306.3
Director Bumpass asked if the options offered by the •firm would 306.4
be in addition to the $60,000 bid. Carlisle said if the City
chose to pursue the options at a later date, the cost of those
could be budgeted in 1988. She said the options were over and
above what was specified in the Requests for Proposals.
Director Martin said the committee was impressed with the work of
the firm, and felt some of the options would be well recommended
for the future. Carlisle concurred.
306.5
Director Hess said the City had no planner on board who could 306.6
impart information to or from these people, and another
consultant is being hired to do a job he thought could be done
in-house. He said he could not vote in favor because he thought
it was premature.
Upon roll call, the motion passed, 6-1, Hess voting in the 306.7
minority.
RESOLUTION NO. 71-87 APPEARS ON PAGE .3S a OF ORDINANCE AND
RESOLUTION BOOK X XV/I
ARTS CENTER SURVEYOR
The City Attorney said the surveyor for the Arts Center project 306.8
has advised him that five of eight property owners have not
granted him permission to enter upon their property to begin the
surveying work. He asked if the Board wished to authorize his
office to file an action to obtain court orders of entry so the
work.can be done.
Director Johnson, seconded by Martin,
Attorney's office get a court order of
Upon roll call, the motion passed, 6-0-1,
moved that the City
entry for the survey.
Bumpass abstaining.
306.9
•
30'
POLARBEK DEVELOPMENT
September 15, 1987
307.1 Director Marinoni raised the issue of a 188 -apartment large scale
development to be built on James Street. He said he had received
a number of calls from irate constituents who are upset about the
process. Marinoni said he was "a little bit in the dark on the
facts" because the only material the Board received was Planning
Commission minutes and memos from the City Attorney. He said he
was told the development was heard by the Subdivision Committee
but the notice to adjoining property owners went out the day of
hearing, and these people contend they didn't have time to
prepare or to retain a lawyer. Marinoni said he was told the
development was then recommended on to the Planning Commission
which tried to table it but they were instructed by the City
Attorney that they could not table the issue. Marinoni said
Director Hess then appealed the decision. Marinoni said the
adjoining property owners feel the applicant has succeeded in
getting approval and "eluded the just process through our
Planning Commission." Marinoni asked for someone on the staff to
explain what actually happened.
307.2 Director Hess said the Subdivision Committee approved the
development without any further action by the Planning
Commission. The City Attorney explained the ordinance provides
that the Subdivision Committee shall approve, disapprove or refer
to the Planning Commission each large scale development and, in
this case, they approved it.
307.3 Hess said he appealed the decision on the basis of several
points: (1) the drainage (which he said may be adequately
addressed now); (2) parking (which he said another person has now
told him may exceed the requirements); (3) while the developer
might have followed the requirements in sending out notification,
he didn't feel the developer followed the spirit of the
requirement. Hess said notice was sent out Wednesday and
received at 5:30 p.m. on Thursday. Hess said the Planning
Commission refused to hear his appeal and a property owner's
appeal.
307.4 City Attorney McCord advised the Board that the developer's
attorney claims the appeal was filed too late, as required by
ordinance; that it should be filed by a Director and, instead,
was filed by the Acting City Manager; and that the appeal should
state the reasons the Subdivision Committee was in error, and it
did not do that. McCord said the property owners contend they
did not receive adequate notice. He said the ordinance requires
the notice either be sent by mail or published in the newspaper.
He said, since the notice was published the day before the
Subdivision Committee meeting, there was technical compliance.
1
1
i4.
September 15, 1987
3t)8
McCord;said he advised the Planning Commission that the appeal 308.1
was timely filed, even though it was on the llth day and not the
10th'day (as required by the ordinance) because the 10th day was
a Sunday. He said he advised them it was irrelevant that it was
actually submitted by the Acting City Manager, because it was
submitted on behalf of a Director.- He said he advised the
Commission the issue for them was to decide whether the appeal
stated the reasons the appellant contended the decision was in
error;tand they apparently decided all the issues addressed in
the appeal had been previously considered by the Commission and
did not state valid reasons for them to reconsider the issue. He
said they voted 5-4 not to hear the appeal.
Hess commented that this development was approved by two of the
three-member Subdivision Committee. Martin asked if the
committee was not charged with the task of ensuring that the plan
conformed to the City requirements. Hess said he was sure this
was done. Martin asked if due process had not been followed.
Hess said the Planning Commission as a whole voted to table the
issue but could not because the Subdivision Committee had already
approved it. Hess said he thought every large development should
be reviewed by the Planning Commission. McCord explained that
the original ordinance required that to be done, but the City
Board amended the ordinance to allow the Subdivision Committee to
approve them. Hess said he thought the ordinance should be
amended.
The City Attorney said. he thought this points out the need to
amend the notice requirement in the ordinance, that it must be
published seven days before the meeting.
Director Bumpass said he thought this was a tragedy. He said any
time a,Director wants to appeal a Planning Commission decision
"this is where the buck should stop." Martin disagreed,
commenting that otherwise there will be no planning process at
all. He said any one Director should not have a veto power over
a city; commission. Hess said Bumpass meant that any Director
should have the right to appeal a decision to the full Board,
which would vote.
Bumpass said the Board does not know whether the developer met
the requirements or not, since they will not have to present
their plan before the Board. Martin said he didn't want to
review every decision -of the Planning Commission, when any one
Director has an objection.
Bumpass expressed concerns over the. traffic considerations,
noting 'that the development could be responsible for the addition
of 300-400 additional cars on a dead-end street. Bumpass said he
thought the Board should appeal the decision to Circuit Court.
•
308.2
308.3
308.4
308.5
308.6
3 '.1.
September 15, 1987
309.1 McCord said the Court would have to decide the same issue which
was before the Planning Commission -- does the development
conform with City ordinances.
309.2 Martin commented that it was ludicrous for the Board to sue the
Planning Commission for "doing what this Board told it to do."
Martin pointed out that nobody's going to want to serve on the
Planning Commission "if this Board is going to act like one
planning commissioner every time a decision comes up that doesn't
conform to our personal interests."
309.3 McCord pointed out that any property owner also has the right to
appeal to the Circuit Court.
309.4 Director Lancaster asked if the Board could pass an ordinance
eliminating the three-member Subdivision Committee. McCord
pointed out the Board could establish any procedure it wishes to
establish.
309.5 The Mayor asked the City Attorney to prepare an ordinance
requiring (1) a seven-day notice time to be published in the
paper prior to a large scale development being heard by the
Planning Commission; (2) a letter which is to be mailed at least
seven days prior to that meeting; and (3) that all subdivisions
are referred to the Planning Commission for final approval, with
an appeal to the City Board.
309.6 The Mayor asked for a point -by -point statement of the facts in
this case, before making a decision on whether or not to file
suit.
309.7 Director Bumpass asked when a notice of appeal would be required
to be filed. McCord said, under the statute, it is thirty days
from the date of final administrative action (the day the
Planning Commission voted not to hear=the appeal). He said the
day of Subdivision Committee approval was August 20. McCord said
the Board could file a Complaint, attaching the minutes of the
meeting as the "transcript" of the proceeding.
309.8 Director Martin asked if the Chairman of the Planning Commission
could address the Board as to some of the facts. He said the
Board was making assumptions that the Planning Commission didn't
consider things which are routine for that body. Director Hess
said there wasn't time to do that. He reiterated that the
Planning Commission voted to table.
309.9 Director Hess said that having a City planner on board as a go-
between for the two bodies would be enormously advantageous at
this point.
1
1
•
1
"4
September 15, 1987
Rosemary Shaddox, resident of James Street, addressed the Board.
She said on September 1 she was told the next meeting of the
Planning Commission would be on September 14 at 5:00 p.m., and
was told the City Attorney overrode the decision of the Planning
Commission on August 24th, and was told that if she filed an
appeal k by Thursday, September 3, it would be within the
regulations. She said her attorney filed the appeal on September
2 and now she is told her appeal is not legal. She said she had
questions about that, and questions about the approval of the
development by two people "without any input whatsoever from the
people that live in that area." She remarked that the street in
question is 18 feet wide and has a water line running right
through the middle of the street. She said the development plan
includes an extension of the street to 31 feet after it passes
her home. She said traffic would be funneled off Garland down
Mt. Comfort. She said right now Mt. Comfort can't carry all the
traffic it carries. She said she had questions about being able
to turn off Mt. Comfort into James Street. She asked how a fire
truck would turn onto an 18 foot street. She said she was of the
opinion that "we don't need an apartment complex." She said she
just wanted the Board to be aware of what the situation will
entail with that large a complex. She said if there is a 1" rain
there is going to be a drainage problem that is overwhelming.
She said no one got to speak at the Planning Commission meeting
last night. She asked the Board to take her concerns into
consideration.
The City Attorney advised the Board they could request the
Subdivision Committee to reconsider its action, and refer the
development to the full Planning Commission for its
consideration. The Mayor said she thought the Board ought to do
that as a first step. •
Bumpass said he thought this had been improperly handled.
Bumpass, seconded by Hess, moved that the Board file a notice of
appeal tthrough -the City Attorney in the Circuit Court as
described earlier, with the minutes from the August 24 meeting,
and at the same time request the Subdivision Committee to refer
the development to the `full Planning Commission so that these
people can be heard who appeared and apparently could not speak.
4
Director Martin said he thought if the City Board got into the
processof suing its citizen committees .it is going to destroy
the integrity of that ,process. He commented that the committee
may have come up_with a decision that some Directors don't like
but they did exactly what.they were supposed to do.
Bumpass said he was asking to preserve an opportunity for people
to be heard. He said he was dumfounded that someone on the staff
hasn't said there will be a street bigger than 18 feet and we
•
•
310.1
310.2
310.3
310.4
310.5
311.1
U J.
will be
drainage
ought to
minutes,
September 15, 1987
able to get fire trucks into the development, and that
is not a problem. He said he thought staff assessments
be stated in an open meeting, and there needs to be
and people living out there need to speak.
311.2 The Mayor said she was disturbed that the City has a Planning
Commission which won't listen to another group of citizens with a
concern about an area in their neighborhood. Hess said he didn't
care how the Planning Commission voted but couldn't understand
why they wouldn't let people have the common courtesy of speaking
their minds. Director Martin pointed out the Board had not even
heard from the Planning Commission and didn't know that they
didn't allow anybody to speak. He urged that the Board allow the
Planning Commission to respond and hear both sides of the issue.
311.3 Marinoni said the Board has found a couple of loopholes in its
system - (1) that the only required notice is the same day as the
hearing; and (2) that the Subdivision Committee has the right to
approve a large scale development. Marinoni said the Board is
trying to back up and "catch the canary after he's already out of
the cage."
311.4
Bumpass
request,
Planning
said if the Subdivision Committee honors the Board's
the appeal can be easily dismissed and then the full
Commission can hear the issue in the appropriate forum.
311.5 The City Attorney pointed out, if an appeal is filed by a
property owner, the Planning Commission would be the defendant
and he would be defending them. He said if the Board files an
appeal, he would defend the Board and they would have to retain
private counsel to defend the Planning Commission.
311.6 Bumpass said if the street is not improved and traffic increases
the taxpayers will pay for the improvements, not the developers
who have caused the traffic problems. McCord said he was sure
all those concerns were addressed by the Subdivision Committee
because off-site improvements are a requirement of the ordinance.
311.7 The City Attorney stated he did not think it was a good precedent
for the City Board to sue its Planning Commission, because of
some practical considerations pointed out by Director Martin.
311.8 Upon roll call, the motion failed, 2-5, Directors Hess and
Bumpass voting in favor, and Directors Marinoni, Johnson,
Lancaster, Martin and Kelley voting against the motion.
1
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t
September 15, 1987
Director Lancaster moved to request the Subdivision Committee, on
their own initiative, ask for a rehearing to the Planning
Commission on this issue, and that the property owners be given
time to file their own suit. The motion was seconded by Marinoni
and, upon roll call, passed, 7-0.
MINUTES
The minutes of the September 1 meeting were approved as
distributed.
ADJOURNMENT
The meeting was adjourned at 12:00 midnight.
•
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V 1 ti
312.1
312.2
312.3