HomeMy WebLinkAbout1988-03-01 Minutes00
MINUTES OF A MEETING OF THE CITY BOARD OF DIRECTORS
A regular meeting of the Fayetteville City Board of Directors was held on
Tuesday, March 1, 1988 at 7:30 p.m. in the Directors' Room of City Hall, at
113 West Mountain Street, Fayetteville, Arkansas.
PRESENT: Mayor Johnson; Directors Kelley, Marinoni, Hess, Bumpass,
Johnson and Lancaster; City Manager Pennington, Assistant
City Manager Linebaugh, City Prosecutor Jones, City Clerk
Kennedy, members of the press and audience
ABSENT: Director Martin; City Attorney McCord
CALL TO ORDER
98.1 The meeting was called to order, with six Directors present. The Mayor
asked for a moment of respectful silence.
REZONING APPEAL/RUTLEDGE LANE
98.2 The Mayor introduced an appeal from a decision of the Planning Commission
regarding denial of Rezoning Petition R87-29; tabled on January 5, left on
first reading on January 19, read for the second and third time and tabled
on February 2, and tabled on February 16.
98.3 The Mayor explained the petitioner, Pat Pinnell, originally requested
rezoning of 0.18 acre south of the west end of Rutledge Lane, from R-1 "Low
Density Residential" to R-2 "Medium Density Residential", and was denied, 5-
3, by the Planning Commission. She noted the Petitioner had now amended his
request to rezone to R-1.5, "Moderate Density Residential".
98.4 Pinnell said he requested R-1.5 so that he could build a triplex and "stop
the conversation about 24 family units on the lot." He said in doing this
he would be very hard-pressed to extend the water service for fire
protection, and requested that offer be withdrawn.
98.5 Director Kelley asked Pinnell if he intended the lot to exit onto Velda
Court. Pinnell said that was his intention, and he had no plan to enter the
lot off Rutledge Lane.
98.6 Marinoni remarked that the Planning Commission denial was for the R-2 zoning
request. Director Bumpass asked what the last recommendation was from the
Planning Consultant. City Manager Pennington said he had tried, but had
been unable, to reach Larry Wood today. The Mayor referred the Directors to
Wood's latest recommendation on page 1.12 of the agenda.
March 1, 1988
In answer to questions from the Directors, Pinell said the back of the
triplex would face Highway 62, with the front door facing Rutledge Lane but,
in terms of elevation, would be 18-20 feet below Rutledge Lane.
Director Marinoni asked if a conditional use could be granted for a duplex
in R-1. City Engineer Don Bunn said one could be granted fora duplex but
not for a triplex. Pinnell said he didn't need to come before the Board to
build a duplex (conditional uses being granted by Planning Commission).
Director Hess said he believed people who purchased property in the area
were assured it would be a residential neighborhood. He said he thought it
would do them a disservice to disrupt that pattern. Pinnell said the
adjoining property to the west owned by Norman Gabbard is a single lot with
eight rent houses on it. .s He said his proposed triplex would not be
obtrusive to any of the existing housing. He.asked how all the apartments
were permitted to be built.in the Brophy Addition which was platted as
single-family. Director Hess said he thought part of the Brophy Addition
was zoned R-2. The Mayor said that property was a Planned Unit Development
(PUD). i
Director Bumpass said, since Pinell would use Velda .Court for access and
would not build a driveway.„on Rutledge (which has five owner -occupied
homes),:he had no problem..with,.that. Bumpass made a motion to bring the
ordinance off the table. Director Kelley seconded the motion. Upon roll
call„the motion passed, 6-0. .
Director Bumpass moved to amend the ordinance to reflect R-1.5 rezoning in
accordance with the desires oftthe petitioner, with the understanding that
the petitioner will furnish .a Bill of Assurance promising to enter the lot
only off Velda Court, and' promising not to have a driveway on Rutledge Lane.
The motion was seconded by_Director Kelleyi 1L
Bill Bracey, attorney for. Norman Gabbard, told the Board that people who
boughtproperty in the '`'area understood it ,would be a residential
neighborhood. He said the zoning law was forthe health, safety and welfare
of the people and that involves water, fire protection, avoiding traffic
congestion and protecting property values. - He said evidence shows the
rezoning would harm property values, will cause traffic congestion, and
there is a water and fire problem. He added: that Planning Consultant Wood
stated the only way he would, recommend R-1.5 is if the water and fire
protection were improved. He asked the Board to deny the appeal.
Ken Edwards, attorney for other property owners, said the zoning was in
effect at the time Pinnell bought the property. He said he didn't think the
Board should rule against the Planning Commission. He encouraged defeat of
the appeal.
There being no others to speak for or against the appeal, upon roll call,
the motion to amend the ordinance failed to pass, 3-3, Directors Kelley,
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March 1, 1988
Bumpass and Johnson voting in favor of the motion and Directors Narinoni,
Hess and Lancaster voting against the motion.
100.2 Upon roll call, the original ordinance failed to pass, 2-4, Directors Kelley
and Humpass voting in favor of the ordinance and Directors Narinoni, Hess,
Johnson and Lancaster voting against the ordinance.
REZONING APPEAL/HIGHWAY 45 EAST
100.3 The Mayor introduced an appeal from a
regarding denial of Rezoning Petition
request was to rezone 1.4 acres south
between Viewpoint and Greenview Drive
decision of the Planning Commission
R88-2. The Mayor explained the
of Highway 45 East, about half way
s. She reported the Planning
Commission voted, 5-2-1, to deny the request
100.4 Attorney Stephen Adams spoke on behalf of the petitioner, Hila Mae Walker.
He said the land was originally developed in the mid 1960's as a convenience
store and service station, before the zoning plan was imposed on the area.
He said when the property was zoned R-1, the use remained as a
"nonconforming use" until recently, when the owner was unable to find a
tenant, and the continuance of the use expired. He said the request was to
rezone to C-1 "Neighborhood Commercial". He said R-1 was unsuitable for the
land, that it was too large for a single family home and too small to
subdivide. He asked the Board to consider whether it was feasible to think
of developing a single family residential lot facing on Highway 45 in that
location. He said the other single family development along the highway is
"off the highway" and is screened in some fashion from the highway.
100.5 Director Bumpass said the Board looked at the property and it was suggested
the concrete pad and store building, bordered by the creek on the east,
could be zoned C-1, leaving the rest of the property R-1. Adams said he
thought that could be feasible but would have to check with the owner and
the potential buyer. He said he would need to find out about building
setback requirements for property next to an R-1 zone. He said perhaps a
Bill of Assurance could be offered to provide additional building setbacks,
but he wanted to look at a survey.
100.6 Claude Prewitt, speaking on behalf of Lindsey and Associates, said he was
representing the owner in the sale of the property. Prewitt said adequate
setback should be provided behind the building.
100.7 Adams suggested meeting with the staff regarding the questions under
discussion, and asked if the Board would table the appeal. City Manager
Pennington urged that the staff meet with the petitioners in order to iron
out the details before the next Board meeting.
100.8 Director Marinoni moved to table the appeal until the next meeting.
March 1, 1988
The Mayor said the Board would meet in regular session at 8:30 a.m. on March
9th at their agenda session in order to take care of other business. She
asked the petitioner to meet with the staff by Friday of this week.•
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101.1
Director Bumpass suggested the ordinance be read three times, in the event 101.2
there arenot enough Directors present at the agenda session.
Louise Kraemer, resident of -1898 Mission, said•she thought Adams spoke as if 101.3
his client "had squatters'>rights" and implied,that buildings on Highway 45
don't face the highway. She said a number of buildings do face the highway.
She said last fall Planning Consultant Larry Woodsaid there should be some
comprehensive oversight over these kinds of problems. She said she lived on
Highway 45 when the convenience store was first built, and commented that it
was an unsightly mess for „a number of years She said that corner is
dangerous entering onto Highway. 45 and visibility is poor. She said she
hoped there would be more careful thought. She said a lot of people lived
around that neighborhood. and .she thought a'lot of them didn't know this
appeal was being heard. She expressed a wish to participate in drawing up a
reasonable plan which would satisfy everyone and improve the neighborhood.
There was no second to Marinoni's motion. + 101.4
City Prosecutor Jones read the ordinance for the first time. Director
Bumpass, seconded by Marinoni, made a motion to suspend the rules and place
the ordinance on its second, reading: Upon roll call, the motion passed, 6-
0. The ordinance was read for the second time. -Director Bumpass, seconded
by Hess, made a motion to,further suspendthe,rules and place the ordinance
on its third and final reading. The motion 'passed, 6-0. The ordinance was
read for the third time.
101.5
Director Bumpass, seconded by Marinoni, moved to table the ordinance until 101.6
the March 9 meeting. Upon roll call, the motion -passed, 6-0.
SIGN APPEAL
The Mayor introduced a request for reconsideration of an appeal from the
literal provisions of the Sign Ordinance; denied at the February '16 Board
meeting. The Mayor asked for a motion from a Director voting in the
majority on this issue at the last meeting.
Director Bumpass noted that he had been absent at the last meeting. The
Clerk advised the Mayor that anyone but Director Kelley could make the
motion.
Director Lancaster, seconded by Hess, made a motion to reconsider on the
basis that the Board instructed the petitioner to meet with the staff to
work something out. Upon roll call, themotion passed, 6-0.
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March 1, 1988
102.1 The Mayor said the appeal was for a sign located at 1120 North Lindell, in a
C-2 district, filed by G. Hugh Smith for "Ms. Charlotte's Ice Cream." She
explained the original request was to install a 66 square foot sign at a
setback of 15 feet from North Street and 22 feet from Lindell. She
explained the petitioner had now changed his proposal.
102.2
Smith asked to place the sign 20-23 feet from North and from Lindell. He
said there was an existing trench on the property for wiring. He said he
did not think that placement would interfere with visibility.
102.3 Director Kelley asked where the sign would be in relationship to the stake
with green tape and the stake with yellow tape on the lot. Smith said the
sign would be located at the green stake. City Manager Pennington said the
City Inspector placed a yellow stake at the location where he felt the sign
should be located.
102.4 Director Hess asked for the staff recommendation. Pennington
between the green and yellow stakes is appropriate because
questions about whether the setback should be measured from
and whether the property goes all the way to the curb. He
would have no problem with a compromise location between the
roughly 21-22 feet from the curb.
said the area
there are some
the curb line
said the staff
two stakes, or
102.5 Smith said, although the original request was for a 66 square feet sign,
anything around 50 square feet would be fine. Pennington said the
Inspection Division recommended a 40 square foot sign.
102.6 The Mayor said the Inspection Office recommended a 19 foot setback from
North and 24 foot setback from Lindell.
102.7 Director Marinoni asked how this plan would affect parking and driveways.
Smith said if the sign can be close to 20' from the curb, the parking will
not be affected.
102.8 Pennington said he felt there was room for compromise, because the
Inspection Office's recommendation would put the sign in the parking lot
itself. He said the compromise location would place the sign in a green
area.
102.9 Property owner Vernon Wilson said the sign should be in the ditch which he
said measured 23' 7" from the curb of North Street and 21'6" from the curb
of Lindell.
102.10 Director Lancaster moved to bring it back under consideration on the basis
that the Board instructed Smith and Wilson to meet with the staff, and
instructed the staff to look over the site and make a recommendation, and
they recommended a 40 square foot sign, a maximum height of 20 feet, a
setback of 19 feet from North Street and 24 feet from Lindell, with there
being some disagreement over the property line.
Or -
March 1, 1988
Hess said he would have no objection to the sign being placed farther back
ifthat •is what the property owner wishes to do. Director Hess seconded the
motion. I
Director Lancaster moved to approve the appeal at a 23 foot 7" setback from
North Street, a 21 foot 6" -'setback from Lindell, at a maximum size of 40
square feet, and at a height of 20 feet. The motion was seconded by
Marinoni. Upon roll call, the'motion passed, 6-0.
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BOARD OF SIGN APPEALS
C•
The Mayor introduced an ordinance amending. the City Code to provide that the
Board of Adjustment constitute a Board of Sign Appeals.
Jones read the ordinance for the first time. -
Director Bumpass asked what would be the effect of a denial at the Board of
Adjustment level. Jones said the petitioner would have exhausted their City
remedies and would be forced to- appeal to the higher court. Director
Bumpass said he thought that„was bad.
Marinoni asked if the City Board could allow a petitioner the right to
appeal to the City Board. 'Kelley remarked if that was the case, there was
probably no reason to change'the ordinance. Hess said McCord had suggested
the proper recourse of a sign' -appeal was through the Board of Adjustment,
not through the City Board. ;Hess said lately;the Board had been inundated
with a rash of sign appeals that are difficult for the Board to deal with.
Pennington said the City •Attorney's argument+ was that this is an
administrative not a legislative procedure.
It was agreed to leave the ordinance on its first reading and think about it
for awhile.
CD CONTRACT AMENDMENT
The Mayor introduced approval of an amendment to a contract with Milholland
Company for Helen and Lee Street improvement and Duncan Street sidewalk _
projects. She reported the amendment would increase the contract amount by
$4,000, to a new total of $9,000. She said fundswere in the Community
Development budget to cover the expense.
Director Hess, seconded by Kelley, moved to approve the amendment to the
contract. Upon roll call, the motion passed, 6-0.
RESOLUTION NO. 1'6-88 APPEARS ON PAGE . OF ORDINANCE AND RESOLUTION
BOOK
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March 1, 1988
UNSIGHTLY PROPERTY
The Mayor introduced an ordinance ordering the abatement of unsightly
conditions and the razing and removal of an unsafe structure at 617 North
College Avenue; left on first reading on February 2 and tabled on February
16.
There was no one present to represent the property owner.
Property Inspector Wilson reported the owner was in California and his
secretary said he couldn't make it to the meeting, and thought his realtor
would be here, but the realtor was tied up with another meeting.
Bumpass asked what the problem was with the property. Property Inspector
Wilson listed the violations as contained in the agenda, and which included
unsafe stairs, exposed gas line, broken windows, trash and debris, broken
doors, ceilings falling down, broken porch, rotten landing, rails missing,
furnace flue pipe too short, and wood trim falling from roof. Wilson said
the house was repairable. He said the house was not boarded up and that
doors were wide open. He said Realty Concepts was handling the property.
Director Hess suggested the owner might show up if the Board passed the
ordinance and waived the emergency clause, giving him thirty days.
Director Bumpass, seconded by Hess, made a motion to suspend the rules and
place the ordinance on its second reading. Upon roll call, the motion
passed, 6-0. 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, 6-0. The ordinance was read for the third time. Upon roll call,
the ordinance passed, 6-0.
ORDINANCE NO. 3335 APPEARS ON PAGE 301 OF ORDINANCE AND RESOLUTION
BOOK XX/ V
Director Bumpass said he would like to know if the property has been secured
to keep people out and keep children safe.
REVISED HUMANE SOCIETY CONTRACT
104.8 The Mayor introduced a resolution authorizing approval of a revised contract
between the City and the Fayetteville Humane Society, for operation of the
Fayetteville Animal Shelter.
104.9 Director Lancaster, seconded by Hess, moved the passage of the resolution.
Upon roll call, the motion passed, 6-0.
RESOLUTION NO. 17-88 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION
BOOK
AD WORDING
March 1, 1988
ion
The Mayor introduced approval of the text of an advertisement to be 105.1
published in the local newspaper for ';the purpose of providing public
information prior to the special!election on the construction of the
incinerator. •
The Mayor said that the incinerator project director, Louis Watts, had
prepared a series of questions which were before the Board for approval.
Watts told the Directors that in addition to text, there would be a picture
of the proposed facility ' an'd a cutaway view showing how the facility would
operate. Scott Linebaugh said the ad was scheduled to be published twice in
the Springdale News and twice in the Northwest Arkansas Times.
f
Below is a summary of revisions which were suggested by Directors:
INTRODUCTORY PARAGRAPH
The Mayor suggested the deletion of "significantly." Hess suggested
changing "extensive" to "additional.
At a request from the audience, the Mayor read the introductory paragraph as
originally worded by Watts.
Bumpass.suggested "The current life of the landfills is unknown" be..used
rather than "a limited capacity."
Hess suggested replacing "limited capacity" with "an unknown lifetime."
Kelley disagreed with quantifying the life of the- landfills,and suggested
extracting "the landfills have a limited capacity."
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Bumpass suggested "the landfills are necessary and the existing landfills
have a limited capacity" be used. Hess disagreed with the use of the phrase
"landfills are necessary."
Marinoni said he liked the paragraph the way it was originally written.
Johnson pointed out that all landfills (existing or new) have a limited
capacity.
Watts asked the Board if it was their intent that two points be made in the
paragraph - that landfills are necessary and that the life of landfills is
unknown. No objections were expressed by the Directors.
QUESTION 1
Johnson. read Question 1. It was agreed that "electricity" should read
"electrical."
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March 1, 1988
106.1 Bumpass suggested the following alternative answer to the question: "The
resource recovery facility is a mass burn incinerator contained in a large
building ten stories tall with a 25 story stack (or use actual dimensions)
with the facility being nearly as large as a football field (or use
dimensions of length, width, and height)." He suggested adding that the
facility would produce electricity which would be used by the Wastewater
Treatment Plant and that excess electricity would be sold to the electrical
utility.
106.2 Hess suggested adding a statement that electricity produced would be used by
the facility itself.
106.3 Johnson said she thought "mass burn" should be defined.
106.4
106.5
106.6
Bumpass commented that the word "incinerator" wasn't even used in the
wording of the ad yet was on the ballot.
Johnson suggested the questioned be changed to "What is the proposed
Resource Recovery Facility?"
There were no objections expressed by Directors to the above suggestions.
106.7 Johnson asked the staff to photocopy proposed revisions prepared by Bumpass.
While this was being done, the Mayor asked the Board to continue on with the
remainder of the agenda.
106.8
106.9
106.10
MUNICIPAL JUDGE SALARY
The Mayor introduced a request from Municipal Judge Charles Williams for
reconsideration of his 1987 salary; tabled on February 16. City Manager
Pennington said his recommendation remained the same, that there be no
additional increase, with the salary to remain at $33,500.
Marinoni asked if it would be 1989 before the Board could consider the judge
as a full-time position. Johnson said a decision would have to be made
between now and September, so an ordinance could be passed before the
November election.
Director Kelley said he was convinced the judge was probably entitled to
some increase over the $33,500, and said he came up with $36,000, based on
some averages and other studies. Kelley, seconded by Bumpass, moved to
reconsider the request. Upon roll call, the motion passed, 3-2-1, Directors
Kelley, Marinoni and Bumpass voting for the motion, Directors Hess and
Johnson voting against the motion, and Director Lancaster abstaining.
106.11 Director Kelley, seconded by Bumpass, moved to submit a salary of $36,000
for 1987. Upon roll call, the motion failed, 2-3-1, Directors Kelley and
Bumpass voting in favor, Directors Marinoni, Hess and Johnson voting against
the motion, and Lancaster abstaining.
•
March 1, 1988
Director Marinoni, seconded by Bumpass, moved to grant a $1,000 increase
above the $33,500 salary, to raise the salary to $34,500. Upon roll call,
the motion 'passed, 3-2-1, Directors Kelley, Marinoni and Bumpass voting in
favor, Directors Hess and Johnson voting against the motion, and Lancaster
abstaining.
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BID AWARDS
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WATER LINE'OVERSIZING/VAN ASCHE DRIVE
The Mayor introduced
oversizing project on
award to the lowest
said the City's share
consideration of the award. of
Van.Asche.Drive. She said the
of five bidders, Sweetser, Inc.,
of the cost would be $7,770.
•
bid for a water line
staff recommended the
bidding $10,370. She
Bumpass, seconded by Marinoni, moved to award the bid to the low bidder,
Sweetser, Inc., bidding $10,370. Upon roll call, the motion passed, 6-0.
•
AERIAL PHOTOGRAPHY
The Mayor told the Board the staff had requested postponting the
bid for aerial photography to the next agenda meeting.
WATER SYSTEM STUDY
award of
The Mayor introduced consideration of the award of contract for a water
system study. The Mayor explained the evaluation of contracts was completed
on Friday, February 26. She asked for the staff recommendation.
City Engineer Don Bunn recommended the contract be awarded to McGoodwin,
Williams and Yates for $63,500 for a water system study.
Director Marinoni asked if there was any hurry in this case. Bunn said he
would like to have to study done so that the five-year capital improvements
plan can be completed, and so that information will be available for next
year's budget. He said the study would take about six months to complete.
Johnson told the Board a selection committee of six was formed to evaluate
the contracts, consisting of Director Martin, herself, Don Bunn, Al
Rukgaber, Bob Kelley and Kevin Crosson. She said eight firms submitted
proposals which were reviewed by the committee three weeks ago. She said
these were narrowed down to three who were interviewed. She said oral
presentations were made last Friday and the committee unanimously selected
McGoodwin, Williams and Yates. She said their proposal had been distributed
to the Board at this evening's meeting.
Johnson recommended.the contract be awarded as recommended.
Bunn said $60,000 is in the budget and $3,500 could be transferred from
another account to make up the balance:
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March 1, 1988
Bunn told the Board advertising and competitive bidding requirements had
been met. Hess commented that Bunn's memo described the process by using
the words "requests for proposals" instead of using the word "bids." Bunn
said he mentioned in his memo that advertising had been done as required.
The City Manager said the process had been carried out correctly and
commented that it was one of the best procedures he had seen. Hess said he
didn't know if a request for proposals would legally be construed as a bid.
Pennington assured Hess that this had a bid number assigned to it, and that
requests for proposals was a nationally accepted term.
Johnson moved to award the contract to McGoodwin, Williams and Yates and to
approve an offsetting budget adjustment. Hess seconded the motion.
08.3 Director Marinoni moved to table the request until the agenda meeting in
order to have a chance to study it. Hess seconded the motion.
08.4
08.5
08.6
Kelley asked if the committee had studied the proposal being recommended.
Johnson said the committee had met twice, interviewed the candidates, and
unanimously recommended the firm. Kelley said, in light of that fact, and
in light of the staff recommendation, he saw no reason to table.
Upon roll call, the motion to table passed, 4-2, Directors Marinoni, Hess,
Humpass and Johnson voting for the motion, and Directors Kelley and
Lancaster voting in the minority.
BID WAIVERS
LOGIN SUBSCRIPTION
The Mayor introduced a request for an ordinance waiving the requirements of
competitive bidding and authorization to purchase a subscription to the
LOGIN information service. She said the cost was $2,975, with a budget
adjustment of $175 being necessary.
08.7 The City Prosecutor read an ordinance for the first time. Director Bumpass,
seconded by Marinoni, made a motion to suspend the rules and place the
ordinance on its second reading. Upon roll call, the motion passed, 6-0.
The ordinance was read for the second time. Director Bumpass, seconded by
Marincni, made a motion to further suspend the rules and place the ordinance
on its third and final reading. Upon roll call, the motion passed, 6-0.
The ordinance was read for the third time. Upon roll call, the ordinance
passed, 6-0.
ORDINANCE NO. 3336 APPEARS ON PAGE 3/0 OF ORDINANCE AND RESOLUTION
BOOK )00V
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March 1, 1988
Director. Bumpass, seconded by .Kelley,# moved approval of the budget
adjustment. Upon roll call:,,the motion passed, 6-0.
(. f
• SOFTWARE_PACKAGES"
Si•
The Mayor introduced a request for an ordinance waiving the requirements of
competitive bidding and authorization to :purchase replacement software
packages; and a request fora budget adjustment.
ye. -
The City Prosecutor 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, 6-
0. The ordinance was read for the second time. Director Bumpass, seconded
by. Kelley, made a motion to further suspend the rules and place the
ordinance on its third and final reading. Upon roll call, the motion
passed, 6-0. The ordinance was read for the third time.
Director-Bumpass asked who pointed out this deficiency. City.Manager
Pennington said it had been brought to the City's attention by a local
newspaper',reporter.
Pennington asked that theordinance be passed conditionally, until it can be
ascertained whether or not the current copyright law is actually applicable
to municipal government. He said there are some constitutional questions in
an existing case in California. He said he would be comfortable in waiting
to see what happens with a pending decision, and would like more advice from
the City Attorney.
Bumpass said he objected, commenting that the provider of the original
software should have provided information to the City. Bumpass moved to
table until the Board gets a firm understanding of the situation. Bumpass'
commented that it was a lot of. money to throw out. Hess commented that
right now the City was not in compliance with existing law. Bumpass said
that was not necessarily true. Pennington said the City was not in
compliance with copyright law as it now stands, subject to the fact that no
copyright statement has been found anywhere on the WordPerfect package the
City purchased, although such a statement has been found on the Lotus
package.
Hess said he objected also, 'remarking that copying software packages is
common practice not only in the City of Fayetteville but in many
municipalities and businesses. He said the City was still not in legal
compliance. Pennington said that question is before the courts now. Hess
asked if the ordinance could be made contingent upon the outcome of the
pending litigation. Prosecutor Jones pointed out the litigation could take
years before it is resolved and, in the meantime, the City would be in
violation of federal copyright law and runs a considerable risk. Jones said
a decision probably needed to be made fairly soon from the City Attorney as
to what the City needs to do. Pennington said he was recommending the
ordinance be conditional until the City Attorney can give a strong
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March 1, 1988
recommendation. Hess said, until there is legal opinion to the contrary, he
thought the City should go ahead and spend the money. Bumpass suggested the
Board wait for the City Attorney. Pennington said McCord advised holding
this in abeyance until more information could be obtained. Hess asked
Pennington why the ordinance was before the Board without a legal opinion.
Pennington said new information just came to the attention of the staff and
has not yet been explored. Hess asked if a legal opinion could be obtained
for the next meeting. Pennington said he thought the item could be tabled
for two weeks. Hess said the City was in violation of the law right now.
Pennington said there was some question about that.
10.1 The motion was seconded by Marinoni and, upon roll call, passed, 6-0.
OTHER BUSINESS
RECESS AT 9:35 P.M./RECONVENE AT 9:50 P.M.
BID WAIVER/CABLE TV FRANCHISE
10.2 The City Manager reported the City's ad hoc cable television franchise
renewal committee has been meeting for some time now and has developed a
draft franchise renewal agreement with Warner Cable. He said, before it is
presented at a public hearing, he would like to have the technical
requirements reviewed by a legal firm specializing in tv cable
communications. He recommended the firm of Arnold and Porter in Washington,
D.C. be retained for this purpose. He introduced an ordinance waiving the
requirements of competitive bidding. He said the cost would be roughly
$2,500 to review the franchise.
10.3 Jones read the ordinance for the first time. Director Marinooi, seconded by
Bumpass, made a motion to suspend the rules and place the ordinance on its
second reading. Upon roll call, the motion passed, 6-0. The ordinance was
read for the second time. Director Marinoni, seconded by Bumpass, moved to
further suspend the rules and place the ordinance on its third and final
reading. Upon roll call, the motion passed, 6-0. The ordinance was read
for the third time. Upon roll call, the ordinance passed, 6-0.
ORDINANCE NO. 3337 APPEARS ON PAGE .3/1 OF ORDINANCE AND RESOLUTION
BOOK )(X/1/
MINUTES
10.4 The minutes of the February 16, 1988 meeting were approved with the
following correction:
93.1 Change "expense" to "expended"
AD WORDING
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March 1, 1988
a r
The Board returned to the consideration of the'wording of an ad to provide
public information on theincinerator..
e [
Director Bumpass said the City Attorney had made some recommendations 111.2
pertaining to the law on educational campaigns. City Prosecutor Terry Jones
said the requirements are broadly drawn in.=that the City may issue
information of an educational nature, but it may not advocate. He said
drawing the line between education and advocacy on an issue this divided may
be difficult: He said the down side is if a court later determines that the
ad was advocacy and not education, the Directors would be personally liable
for the amount of money that is expended on the ad.
Bumpass said some citizens were present who wished to give the Board
information to be included in the campaign. He asked that .the public
comment be received.
Director Lancaster asked if the City Attorney had looked at the questions
drafted. by Watts. Jones said he had not.
The Mayor set a time limit of seven minutes per speaker, one fromeach side
of the issue. A member of the audience complained that Louis Watts had
already been alloted a great deal of time to speak earlier in the meeting.
The Mayor said Watts was an employee and should not considered a proponent
of the incinerator. Director Bumpass asked that each side be given fifteen
minutes to speak. Johnson agreed.
COMMENTS FROM CITIZENS
David Dubbell addressed the Board. He said he thought the citizens deserved
the opportunity to receive both pro and con facts. Director Hess told
Dubbell that the City could not issue pro or con facts, but must issue
neutral -content facts. Dubbell said citizens had information which needed
to be shared. He said the fact that the Board and citizenry were divided on
the issue should be included in the ad. He said the ad contained no
information about dioxins. He said this was an omission because there is
factual information that Volund technology generates dioxin. He said the ad
contained no information about emissions; acid rain, or toxic ash. He
displayed some articles on these topics and read some excerpts aloud. He
quoted from an article which stated that scrubbers were crucial. Dubbell
said the plant is not designed to contain a scrubber. He said gases with
particulates would be emitted from the stack and, although the emissions
cannot be seen,' a. photograph can detect them. He displayed a photograph.
He said it was a fact that we will breathe the emissions into our lungs. He
handed out material which calculated the extension of landfill life when the
incinerator is built prepared by he and Mike Green., using Mike Witherspoon's
(Director of Solid Waste Division of DPC&E) data on solid waste coming from
Benton, Washington and Madison counties. He said if the incinerator is
built, there will be a savings,in 19% of the landfill space. He said
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1.11)
March
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March 1, 1988
information in that material shows the incinerator will not extend the life
of landfills very much because only a small fraction of the waste will be
burnt. He said Mark Witherspoon said 425 tons a day of waste is generated.
Dubbell said the plant was supposed to burn 120 tons a day. Dubbell said
these facts should be presented. He said the issue of how much ash will
result from the burning, and other issues, should be aired first before the
city spends proponent and opponent taxpayers' money. He said if agreement
cannot be reached on the facts the ad should make no statements about
landfills. He said the Mayor had said the incinerator will reduce weight by
90%. Johnson agreed she made that statement and said it was a fact
presented by Volund. Dubbell said his facts show weight reduction to be
60%. He said he called the technical director of the Coalition on Resource
Recovery and Environment (CORRE) who told him the volume reduction will
range from 75-90% and weight reduction will range from 60-75%. He said
CORRE was an arm of the U.S. Conference of Mayors and was set up to provide
technical, economic and management information to city governments in
analyzing solid waste information. He said he did not think it was a fact
that there will be a $12 million cost to the voters if the project is
abandoned. He said he thought no one knew what the costs will be. He said
that there were professional law firms which specialize in legal counsel for
project abandonment. He said it was very difficult to see how the City
could present anything when there is somuch diversity of viewpoint. He
urged the ad not be published in the newspaper.
12.1 Director Hess asked Dubbell if he was saying that in three years the City
will need new permitted landfill sites. Dubbell said assumptions could be
made about the life of landfills but he didn't believe them. He said nobody
knows so the voters should be shown the minimal impact the incinerator is
going to have on the extension of life of landfills.
12.2
12.3
Dan Coody passed out material to the Directors. He said it would be nice to
have additional facts that might contradict other facts, or to have an equal
amount of space to show the other side of the coin, or the rest of the
facts. He said he thought the ad looked biased.
Louis Watts said the 97% figure he used in the ad came from an air modeling
study performed on the facility. He said the maximum impact from the
facility is 2.6% of the national ambient air quality standards. He said the
point was to try and let people know it really is a clean facility. He said
it was easy to calculate the volume of ash which would be produced by the
facility and those calculations are based on years of research. He said EPA
will allow ash to be disposed of in landfills, combined ash will be allowed
in trenches at landfills which have clay liners and contain only ash. He
said regular municipal waste will have to put in landfills with clay liners.
He said the cost of disposing of ash will be about the same as disposing of
regular municipal waste, but both will be higher because of new regulations.
He said it was unfair to Mark Witherspoon to use his name so freely and not
give him an opportunity to see how he was being referenced. He said
Witherspoon did not have the data from Volund on the facility. He said
figures on waste reduction are not opinions but are data taken from
March 1, 1988
facilities in operation, such as one in Tampa, which he said had a 95%
reduction. Watts commented that BACT (best available controlled technology)
was not required for this facility but only applies to facilities under PSD
(prevention of specific deterioration). He said at the last public hearing
held by DPC&E on the last air permit the City had, all the questions were
taken back to Little Rock, answered and sent to everyone who appeared at the
public hearing. He said .there response was that "federal and state
regulations require the application of BACT when the source is subject to
PSD regulations. PSD is not applicable on this proposed facility." Watts
said BACT requires the addition of a scrubber. He said it was realized this
may be a requirement in the future and steps have been taken to allow room
for it .to be added if and when it is required. He said other pollution
control devices have been added which were not required but were added
because the public asked for them.
DISCUSSION FROM THE BOARD
Director Bumpass said he spent some time trying to figure out what he
thought were facts, and what should be deleted or added, and initially had
supported the education campaign. He said in light of the legal opinion and
some other things he really didn't want to participate in it now. Bumpass
asked why the Board should expose itself to personal liability for something
about which everybody in town has made up their mind already. He said he
didn't want to participate in something over which there could be a lot of
litigation.
Director Hess said the Directors had received two different
legal firms representing clients, stating they might take legal
pursue the public information campaign. He asked Bumpass if
back off on that basis. Bumpass said his concerns were based
opinion about Directors' personal liability.
letters from
action if we
he wanted to
on the legal
Kelley said it was obvious it would be very difficult for the Board to agree
on the wording. Kelley said enough questions had been raised at this
meeting that would cause him concern, and which he would want included in
the ad. He said he thought it would be best to just back out of this and
not spent the $2,000 of tax money to try to say something "we may or may not
know."
Director Marinoni said he was not intimidated every time someone shakes a
law book at him. He said he thought the project needed to be promoted, and
he thought there had been enough written in the paper representing the
"anti" side. He said the ad•was not "anti" or "pro" but was unbiased. He
said the wording was very factual and very' basic and he was in favor of
publishing it per se.
Director Lancaster said he wouldn't vote for anything unless it was a vote
for the ad exactly as worded by Watts.
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14.1
March 1, 1988
Director Bumpass said he voted for the public information campaign and
wanted to reconsider it and just drop it.
14.2 Mayor Johnson said she didn't think the Board had ever done an
of informing the community about what the Authority is doing.
had questions regarding the adjectives used in the material.
felt the public was owed some simple statement of fact.
intended on supporting the election no matter which way it goes. She said
if it fails she will take the best avenue she can to get the City out of
this as quickly and easily as possible.
14.3
now
adequate job
She said she
She said she
She said she
Director Bumpass, seconded by Kelley, made a motion to rescind the previous
action to spend money to put this ad in the newspaper. Upon roll call, the
motion failed, 2-4, Directors Kelley and Bumpass voting in favor and
Directors Marinoni, Hess, Johnson and Lancaster voting against the motion.
14.4 Director Marinoni moved to accept the ad as written by Louis Watts. There
was no second to that motion.
14.5 The following is a summary of revisions suggested by Directors to the ad as
originally worded:
14.6
14.7
14.8
QUESTION 3
Hess suggested deletion of the third and fourth sentences
percentages. He suggested deletion of "for years we have
replaced with "is being." He suggested deletion of
commodity." No objections were expressed by other Directors.
QUESTION 4
containing
been", to be
"an essential
Bumpass suggested inserting wording from the ballot. Hess agreed but
suggested combining paragraphs 4 and 10. Later in the meeting there was
objection expressed to the idea of combining the paragraphs.
QUESTION 9
Hess suggested the deletion of "No. The facility produces no odor
because...". No objections were expressed by other Directors.
QUESTION 12
.14.9 Hess suggested deletion this entirely. No objections were expressed.
INTRODUCTORY PARAGRAPH
14.10 Kelley suggested the deletion of reference to landfills since amount of
capacity has not yet been determined. Johnson objected and asked if the
Board should vote on this. Kelley suggested the deletion of the second and
third
There
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March 1, 1988
sentences in the paragraph. Johnson objected. Kelley so moved.
was no second to the motion.
ADDITIONS
Kelley suggested adding a statement that "The Volund technology incinerator
does create dioxins and does create a potential health hazard to the
citizens." Kelley so moved.
Watts pointed out that dioxins are created from any burning and that dioxins
are then destroyed from burning at high temperatures. He said the Volund
furnace burns at temperatures of 1800 to 2000 degrees. Watts said there was
no dispute, however, that combustion produces dioxins, but stated he thought
it was misleading to state that Volund technology creates dioxins. Kelley
said he wouldn't mind saying then that "all incineration creates dioxins.
Bumpass seconded Kelley's motion.
With Johnson raising the question of
literature indicated chance of;cancer
place for 70 years is 1.2 in a
decreased the risk by about 16 times
simply by living in the U.S.A. are
Bumpass said it can be said then that
or that health risks are as yet
submitted by a citizen indicated an
estimates between 3 and 38 cases
caused by inhalation of the chemicals
dioxins causing cancer, Watts said EPA
on one individual standing in one
million. He said since then EPA has
Johnson said statistical chances
something like 250,000 in 1 million.
dioxins may or may not cause cancer,
undetermined. Hess said an article
EPA report released in July of 1987
of cancer nationwide annually could be
over a period of 70 years.
Hess said he wouldn't object to adding a statement about dioxins if there
could be a statement about health risks. Johnson objected, stating that
health risk statement couldbemisleading.
City Prosecutor Terry Jones was asked for a legal opinion. He said if
everyone was agreeing it was a fact that dioxins will be emitted, he had no
problem with adding that statement.
' -QUESTIONS 4, 10 AND 11
Hess asked that questions 4, 10 and 11 be combined. Johnson objected. Hess
agreed that separate questions were fine but suggested they appear next to
each other in the ad. No objections were expressed.'
Hess asked that costs be'.Yadded to._question "11, parallelling costs in
question 10. No objections were expressed.
Johnson asked that rates on the ballot be included. It was agreed that this
was agreed upon earlier in the'meeting.;
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lib
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March 1, 1988
QUESTION 7
Kelley reworded his motion to state that the following statement be added to
the end. "Solid waste incineration has been proven to produce minimal
dioxin levels." Johnson suggested it be inserted after the first sentence.
No objections were expressed.
With Hess suggesting health hazards be added, Kelley said he didn't want
that as part of his motion. No objections were expressed to the motion as
stated by Kelley. The clerk was never asked to call the roll on the motion.
QUESTION 4
Kelley suggested adding "Additional facility enhancements may be necessary
in the future to meet EPA standards which will increase sanitation rates
and project costs." Hess objected. Hess suggested "EPA regulations are
subject to future changes." Kelley agreed and there were no objections.
Director Lancaster moved to approve the ad as amended.
FURTHER ADDITIONS
16.5 Johnson said there was no reference to the guarantees for the price, the
time and the energy recovery and performance. She suggested adding another
question to the ad to answer those issues, such as "What contractual
obligations have been entered into for the resource recovery facility?" She
suggested inserting that before the question on project costs. She
suggested a listing of items such as price, time, energy recovery,
performance, and electrical wheeling. No objections were expressed.
16.6
PUBLIC COMMENT
Larry Froelich addressed the Board, asking if it was their position that the
Director of the project, who authored the original ad, was a neutral party
and not a proponent of the project. He said it seemed to him the Board had
turned the wording of a neutral statement over to a person who was in fact
"the most dogged advocate for the project." Director Hess told Froelich the
Board had asked the staff to come up with the wording. Froelich asked if
Watts was City staff or Authority staff, and asked if there wasn't a neutral
person on City staff who could have been given the task. The Mayor said the
Board asked Watts to come up with a series of unbiased questions which could
be answered in a simple manner in order to provide subjective information to
the public. She said whether Watts was biased or not, she thought he should
be given credit for trying to be unbiased. Johnson added that the Board had
eliminated items they felt were biased. Froelich said he thought the job of
wording the statement should have been put in the hands of a neutral party.
16.7 Ruth Collier objected to question number five in the statement. Hess
suggested the word "No" be deleted and the sentence be started with the
phrase "Recycling programs can...".
March 1, 1988
Collier objected to some of the wording in question number six.
Marinoni seconded the motion. Upon roll call, the motion passed, 5-1,
Bumpass voting in the minority.
Catherine Adam addressed the Board, commenting that she was opposed to the
spending of $2,000 of taxpayers' money on "this hybridized statement that's
not going to inform anybody about anything".
Fran Alexander asked the Board what days the ad would be published in the
newspaper. Scott Linebaugh said the ad would be published as a 1/2 page and
would run on Sunday and Monday in the Northwest Arkansas Times and The
Springdale News. He said the total cost would be about $1,800.
•
A citizen in the audience' asked if a blueprint of the facility was
available. Louis Watts said these were available in his office. He was
asked if there was an operating procedure for the facility. Watts said a
contract for the operation of the facility was available in his office.
•
ADJOURNMENT
The meeting was adjourned at about 11:45 p..m.
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