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HomeMy WebLinkAbout1989-03-07 Minutes• • MINUTES OF A REGULAR MEETING. OF THE CITY BOARD OF DIRECTORS A regular meeting of the Fayetteville City Board of'`Directors was held on Tuesday, March 7, 1989 at 7:30 p.m. in.',the Directors' Room of the City Administration Building at 113. West Mountain Street, Fayetteville, Arkansas PRESENT: Mayor Martin; Directors Green, ° Lancaster, Kelley, Marinoni, Spivey and Vorsanger; City Manager Pennington, City Attorney McCord, City Clerk McWethy; members of the staff, press and audience. . .'v CALL TO ORDER4 With seven Directors present, the •meeting was called to order by Mayor 72.1 Martin, who led those present in reciting the Pledge of Allegiance, followed by a moment of silence which was observed. The Mayor welcomed the public, stating that all would be offered an 72.2 opportunity to speak on every matter and during'Other Business. He asked the public to be concise and non=repetitive in their comments, to address the entire Board when they speak, and to direct any questions through the Mayor. CONSENT AGENDA The Mayor introduced consideration of a Consent Agenda, consisting of those 72.3 items which may be approved by motion, or contracts and leases which can be approved by resolution, and are grouped together and approved simultaneously. The Mayor explained that any Director wishing to remove an item from the Consent Agenda may do so. There being no such requests, the Mayor read the items from the Consent Agenda, which appeared in the agenda as follows: - A. Minutes of the February 21, 1989 regular Board meeting; 72.4 B. Award of Bid #89-3, for the purchase of eight police 72.5 pursuit vehicles; RECOMMENDATION: Award to lowest of three bidders, George Nunnally Chevrolet of Bentonville. BID: $104,800 BUDGET: $111,112 March 7, 1989 73.1 C. A resolution authorizing approval of budget adjustments for 1988; The City Manager recommends the following adjustments: $13,765 is requested to be taken from Construction Materials Account to cover the cost of salaries in the Street Maintenance Program. $80,266 is requested to be taken from Water Sales Account to cover the purchase of water from Beaver Water District. $203,436 is requested to be taken from Loans Payable Account to cover completion of purchase of Fire Department Ladder Truck. RESOLUTION NO. 21-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK 73.2 D. A resolution authorizing award of contract, for engineering services for various water line replacements; Using the city's professional services policy, a staff selection committee recommended award to Milholland Company, proposing a fee of $20,825. $23,500 is budgeted for payment by the Water and Sewer Revenue Bond Fund. This expense will be temporarily covered by the Water and Sewer Operations and Maintenance Fund which will be reimbursed at the time of bond sale. RESOLUTION NO. 22-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK 73.3 It was moved by Kelley and seconded by Marinoni to approve the Consent Agenda. Upon roll call, the motion passed, 7-0. WARNER CABLE FRANCHISE 73.4 The Mayor introduced an ordinance approving a franchise agreement with Warner Cable Communications, to operate and maintain a broad band telecommunications network for the purpose of cable tv transmission; revised at the February 21st meeting and left on first reading. 73.5 The Mayor advised that the ordinance could be read again in its entirety or a Director could move to suspend the rules. It was moved by Marinoni and seconded by Kelley, to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 5-2, Directors Green and March 7, 1989 F - Spivey voting in the minority. The City Attorneytannounced that a letter 74.1-_.. was included in the agenda from Warner, in which Warner accepts the amendment to the franchise, whichramended the term from an initial term of five years, with a renewal (in the event of compliance with all the terms) for five years rather than ten years. The City Attorney read the ordinance for the second time. Director Marinoni, seconded by Martin, made a motion to place the ordinance on its third andfinal reading. Upon roll call, the motion passed, 5-2, Directors Green and Spivey voting in the minority. The City Attorney read the ordinance for the: third time. f Y Vorsanger pointed out some errors in the wording of the franchise, which the 74.2 City Attorney advised were typographical and would.be corrected. These were as follows: page 10: In the fourth 'line from the bottom, "ten (10)" should be "five (5)" t page 31: In the second paragraph, "fifteen (15)" should be "five (5)" Vorsanger asked for an explanation of the language on page 37,.which states "Procedure Prior to Termination - The City may not terminate the franchise grant unless reasonable written notice is given by the City to Grantee of Grantee's default; and Grantee shall be given ninety (90) days, or a longer period of time as may be required and reasonable, after receipt of said written notice to remedy and cure such default." The City Attorney said that was merely a due process requirement consistent with the Cable Communications Policy Act. He said it meant that, if the City contends that Warner is in violation of material terms of the franchise, the City cannot summarily terminate the franchise, but has to give notice to Warner and give them 90 days to correct the violations. Spivey commented that he thought the negotiating committee and the Board of Directors have tried to look after the best interests of the citizens. He said if negotiations continued we would run into "an absolute impasse." He said he was voting "no" based on general principle and his frustration that the cable industry in general can be placed in such an advantageous position over the general public, where they can almost dictate the terms. He said we had, for all practical purposes, a monopoly, and that Warner was almost a public utility. He urged the citizens to write their congressmen and Senator Howard Metzenbaum to let them know how you feel about it. He said we still had absolutely no control over the rates. He said, after the upgrade iscompleted, he hoped Warner would maintain reasonable rates, but realistically they could charge just about anything. He said he would have liked to have voted "yes" just in the spirit of solidarity. He added that he thought we probably made close to the best deal we could get without going into litigation. Kelley said he had disagreed in the past with comments he heard in reference to Warner Cable, he disagreed with service, poor reception, quality, and programming. He said, unfortunately, he felt we were handcuffed by the 74.3 74.4 74.5 75.1 March 7, 1989 Cable Act of 1984, and by the fact that we have poor documentation as to Warner's performance under their current contract. He said negativism towards Warner staff and management unfortunately has been expressed in a personal manner at times. Kelley said he didn't think there was significant information not to renew the contract, said he didn't think it impaired the possibility of competition at a later date. Kelley said he was in support of the staff establishing a cable office or a task force to document future failures of Warner to comply with the new contract. He said he thought signing the contract as proposed was the best possible solution to the situation, and will bring the best possible service at the quickest date. 75.2 Director Green said the main reason for leaving the ordinance on its second reading was to allow more public input. He said he had received a great deal of public input since the first reading of the ordinance and it has been an overwhelming "no confidence vote in Warner Cable." He said he didn't feel the City Directors should merely cave in to Warner because they are tired of negotiating or because they feel this is the best deal they can get right now. He said he didn't think it was the best deal, and a lot of citizens have indicated they would rather do without tv cable service than to have to be saddled with this new set of rules. Green said, due to the terrain of Fayetteville, cable tv is a necessary utility. He said he hated to see us encouraging a continued monopoly. He agreed we needed to contact legislators. He said he could not in conscience vote for an ordinance that will probably last longer than 12 years. 75.3 Lancaster said he had come to the conclusion the City has gotten the best deal they are going to get. He said Warner would be here as long as they want to stay regardless what the people decide, because they won't get any competition. He admitted he voted to move the ordinance along because he was getting tired of it. He said he couldn't in good conscience vote for the franchise, remarking that the term was too lengthy. He said there was no use in prolonging it any longer. 75.4 75.5 Vorsanger said he would be voting "yes", said the negotiating committee had worked for 18 months, and approximately 100 people attended a public hearing at which the biggest concern was the proposed 15 -year franchise. Vorsanger said Warner had 16,000 subscribers in Fayetteville, and said he felt we still hadn't heard from a great majority of the people. He said since the last meeting he had received about forty calls and some letters. He said the majority were negative to Warner but for a change he received almost ten positive responses from people who said they were satisfied and quite concerned that the Board might force the issue to the point where someday the citizens would be without television. Vorsanger pointed out that Warner had agreed to upgrade the system in a 20 -month period and has agreed to a five-year term with a five-year renewal, and has agreed that the franchise would not be effective until the system is in place and satisfactory. Vorsanger said he had talked with various legislators, one of whom is the Chairman of the House Committee which will study cable television legislation, but said he didn't know when that would happen. He said if the March 7, 1989 • law is changed the City can either renegotiate :its franchise or at least have bargaining power over rates. He said,,until that, time, Fayetteville's hands are tied. Vorsanger said he wouldn't object_to a city -owned system but didn't think the City could .run its own system. He said cable television is one of the hottest investments in America today, but said he read an article recently that indicated ,a, cable television franchise is worth $1,000-$2,500 per subscriber. • He said `at the low end, Warner's franchise is worth $16 million. He said he couldn't -see anyone coming along with that kind of an offer fora cable system: Vorsanger added that Warner was protected because we haven!t completely documented all of the problems. He said, after the system is in place, the city can provide a way for citizens to call the City and for the problems to tie documented. He said he was convinced this was the best possible solution for the citizens. Marinoni said he voted to move the ordinance on to its.third reading because 76.2 he thought it had been belabored enough. He. said he thought the Board should make a final decision. He said he thought this was the best possible solution, and commented that, if any other cable `company offered such a franchise, he thought we "would jump on it with both feet." Marinoni said there were hard feelings out there ,but he still thought this was the very best we could do and his intentions were to vote for the ordinance. 1 Green said, whether or not theordinance passes, he thought the City should 76.3 still remain active in its pursuit of investigating its own cable system. He said he strongly felt this was needed as a backup, to exercise in the near future. He said he thought we should start by looking into the feasibility of a municipally -owned system and not give up on that vigil. Woody Bell, Warner's General Manager in Fayetteville, said he thought, 76.4 beginning with the upgrade, that there was going to be a significant change within the next 18-20 months. He said, if citizens will be patient, Warner. intends to fully earn the respect of the customers and bring a new era in customer service. Jerry DeGrazia, speaking on behalf of Warner, referring to the merger 76.5 between Time, Inc. and Warner Cable, said the process would take awhile, but once it is final, there will be a stronger company which can provide stronger capital and programming resources, to ensure that Warner keeps upgrading its services. Randy Ingle, resident on North Street, said he had lived in Fayetteville for about 18 years. He said he had been extremely proud of the City Board, up until this evening, although he remained extremely proud of Michael Green. He said, in the course of his business, he has talked to about 500 people in the last four months, all of whom are anti -Warner. He said 62 of them wanted Warner out of the community. He said he didn't believe the Board had received enough input from the community, and said he thought it was the Board's responsibility as elected officials to solicit what the community wants them to do in the matter. He said he would like to see the Board discuss openly a referendum to seek public opinion. He said he had never 76.6 77.1 77.2 77.3 March 7, 1989 been happy with Warner, but said he could live with them if he thought certain things could be agreed upon. He asked the Board to delay action until the community is heard from. He said he thought people couldn't survive as knowledgeable human beings without cable television. He said he would like to see more channels as part of basic service, giving examples such as a weather channel, VH1 - a music channel, TLC - an educational channel, and BET - a Black American entertainment channel. He said he would particularly like to see the fourth major network - FOX - come to Fayetteville. He said he thought the community deserves more than what Warner is offering. He said he was offended tremendously when Warner asked the City to act in good faith, when he didn't believe Warner had ever acted in good faith. Scott Sinclair, resident of Fayetteville, said he was not a subscriber of Warner. He said he received pretty good reception on his television with "rabbit ears." He said the signals of the local stations, 13 and 29, were scrambled, or "a half cycle out of phase" because of "bleedover" from Warner lines. He said he didn't understand what business Warner had broadcasting anything on Channel 29's frequency range, and he asked what kind of safeguards in the new ordinance would protect people like him with no cable service. The Mayor asked the staff to consider what action should be taken in reporting this to the FCC. Dan Mouritsen, resident of Fayetteville, said he contacted Bob Bradley with the New Orleans FCC, and related to him the signal problems we have in Fayetteville. Mouritsen said Bradley told him if someone from the City Board or the citizens had contacted their Washington office, they would have shut Warner down, because they are in violation of FCC laws and they should not be allowed to operate. He said at the last meeting, he pointed out that, if the Board gave Warner its new franchise, Warner could get a waiver from the FCC of the Cumulative Leakage Index Act. He said Woody Bell told him the FCC does not grant such waivers. Mouritsen said he asked Bradley about this and was told Warner would be granted a waiver. Mouritsen said, after the upgraded system is completed, Warner would have to test it for 12 months before it could be put "on line." He said, if the City is going to give Warner 19 months to install the system, 12 months will have to be added to that time period for testing. He said this was part of the Cumulative Leakage Index Act. 77.4 Mouritsen said Channel 42 was a local station owned and operated by the Trinity Broadcasting Network in California. He said their local manager, Michael Garrison, told him that when they went on the air Warner would not put them on cable. He said this part of Arkansas was in the "bible belt" and there was a segment of the population which cannot be ignored, especially when the station is local. 77.5 Addressing rates, Mouritsen said the bill Warner sent out in February said that rates would go up on March 1 to $12.85 plus tax, $1.07 per channel. Mouritsen said this was almost twice what Springdale pays, with less than half the service. Mouritsen said in the new bill there is another notice 1 March 7, 1989 that rates are being raised again. + Mouritsen said Cable Plus service costs $6.95, $1.39 per channel. He said WGN is one of those channels and United Video, supplier of WGN, is charging Warner ten cents per month per subscriber. Mouritsen said the, markup was a 1,290% profit and was "criminal." 0 Mouritsen said the FCC will grant' a cable license'to anyone who wants to 78.2 operate a cable system, but "you have tb string your' wires and test them, then a public hearing is held, and then they .detdrmine whether or not your license shall go forth." He said the proposed franchise states "no person shall construct, install, maintain or operate on orrunder any street, any equipment or facility for the:distribution of television signals or radio signals or other intelligence, either analog' or digital, over a broadband telecommunications network, to any subscriber unless a franchise authorizing the use of the streets has first been obtained:!' Mouritsen said, to his knowledge, the City wouldn't give a franchise to a`cdmpany that doesn't have a license from the FCC. •Mouritsen said this gives Warner an exclusive franchise when the Board has stated they would not°do that. Albert Erbach, resident of Fayetteville, said he didn't know too many people 78.3 in this area who are really interested in Little Rock or Springfield, Missouri channels. He said he thought we should have' more national, news, religious and educational channels, instead. He.expressed concern over the rate schedule, stating he firmly believed that after the system is on line, there will be monthly bills higher than $20. Vickie Kelley, resident of Fayetteville, commented on the patience and long- 78.4 suffering endured by the Board during this type of discussion in the community. She said she wished there had been opportunity for the Board to say to the community that "we have a committee you need to speak to" or "we have a task force where you need to direct this concern." She said in Springdale they have a City Council member who visits once a month with his constituency at the public library. She said she wished the citizens had a more identifiable format to communicate their concerns in a way where they can feel like they are not rushed, not under pressure, and really getting listened to by the Board. Woody Bell, responding to Scott Sinclair's comments, said he would like 78.5 Sinclair's address so he can verify the problem. The Mayor suggested Bell check with Sinclair after the meeting. Bell said, because of their antenna placement on Robinson Mountain, Channels 13 and 29 are two of the strongest signals in town. He said he didn't understand why there was a problem, but said if someone has a problem they should contact him and he would be happy to look into it. Bell, responding to comments made by Mouritsen, said there has been no 78.6 additional rate increase beyond that which went into effect on March 1. He said a notice has been sent out to customers whodo not want to be billed bi-monthly. He said, as a service to them, Warner will bill them monthly at an additional charge. 79.1 March 7, 1989 Bell said he was notified that Mouritsen was calling around and representing himself as a representative of the City of Fayetteville. He said the rate Mouritsen mentioned having to do with United Video only deals with one aspect of the cost of bring WGN into the City, that is what Warner pays the common carrier, in relationship to the copyright Warner has to pay, because WGN is a broadcast facility. He said when you broadcast a distant signal into your market, you have to pay for the copyright, which he said is significantly more than the cost mentioned by Mouritsen. Bell said some things presented by Mouritsen at this meeting had been taken out of context. 79.2 DeGrazia explained that Warner's system is certified to operate by the FCC, and has to comply with the Cumulative Leakage Index law by the initial date as stated by the FCC. He said Warner is not automatically granted a waiver based upon any franchise. He said the new franchise gives the City additional "teeth" if Warner fails to comply with technical standards. He said Warner is in compliance with the leakage index now and will be in the future. 79.3 79.4 Kelley, referring to the allegation that Warner had violated FCC law, asked if Warner was aware of any such violation and asked if it would be public record. Bell said there was no violation, and that it would be a matter of public record. He added that, in terms of the CLI, his company began preparing for this about a year ago. He said he would be glad to share with any Directors the technical aspects of monitoring which Warner is doing. He said they had completed 50% of their system, and are at about the 65% level required for passage, given the current system. He said the upgraded cable system will be in compliance. Vorsanger said it seemed to him that, if there were any legal problems, the attorneys on the negotiating committee would have at least brought them to the Board's attention. 79.5 Upon roll call, the ordinance passed, minority. 79.6 79.7 ORDINANCE NO. 3413 BOOK XX V Green and Lancaster voting in the APPEARS ON PAGE / OF ORDINANCE AND RESOLUTION DICKSON STREET IMPROVEMENT DISTRICT The Mayor introduced a request from property owners within the Dickson Street Central Business Improvement District No. 1, for the City of Fayetteville to join in a petition requesting dissolution of the district. Larry Froelich, attorney, said he was present on behalf of 77 property owners who have signed a petition to dissolve the district. He said they were not against the arts center or improvements to the community. Froelich said Sharon Stiles would present evidence they believe shows that 81 parcels March 7, 1989 • • • were omitted from the list of,, property used in forming the district, and that the district promoters never had the requisite '67% of the assessed value of the district, as required.by statute, and that the promoters got a certification to that effect "from a. Fayetteville abstractor through misrepresentation of the facts to'that abstractor. • • Froelich said Cyrus Young would'outline-allegations of abuse of power in office by improvement district officersand officials and the elements of a pattern of confusion of private -and public interest by those officials. Froelich requested the Board (1) investigate the -allegations and determine what to do in response to them; and (2) join the *petition seeking the dissolution of the district. ,-e Sharon Stiles, displaying various maps to illustrate the information she was presenting, said she lived in the district. She said they received information from Greer Abstract,from which they determined that 57 parcels were omitted from the district, representing a =value of $2.2 million. Stiles said there was a State. statute that says every lot, block, parcel, railroad and right-of-way should be included in 'an improvement district. She said they interpret that to mean that the Arts Center site and proposed parking spaces should also have been included in, the total value of the improvement district. She said:those parcels represent another $1 million. She said approximately $3.2 million in assessed value was not included in the total value of the district. She said the Board received certification from Greer Abstract that the district was worth $23.5 million, and $15.9 million in signatures was represented. Stiles said the value of the district should have been $26.7 million. Stiles displayed a map showing properties of persons who have signed the petition to dissolve the district, which she noted represented a fairly well-rounded part of the community. Stiles said the ordinance the City passed was based on misrepresentations given to Greer abstract, and asked the Board to investigate the information presented and, hopefully join in signing the petition, or perhaps find some other way to resolve the situation. 80.1 80.2 80.3 80.4 80.5 80.6 Cyrus Young, resident of 210 N. Locust, said he was a homeowner in the 80.7 district. He said the Board had been lied to by someone. He said on February 21, 1989, facts were presented to the district commissioners who have not responded since. He said, after visiting the Courthouse, he was not able to determine the value of railroad property or some other properties, such as University property and Watson Street Apartments. He said, even without counting those properties, the district never had 67%. Young asked the Board to investigate the improvement district to determine 80.8 if (1) there was fraud in its formation due to knowingly misrepresenting the district to the City Board, (2) the property owned by commissioner Tom Pearson was knowingly left off the final benefit list in order for Pearson 31.1 March 7, 1989 to avoid taxation of the property; (3) the district knowingly and purposely failed to file financial reports to the city required by State law; (4) Ron Bumpass abused his office of City Board member by requesting that City employees prepare, at City expense, cost estimates for parking lots to be built by the improvement district; (5) Ron Bumpass abused his office by conducting business for the improvement district using City letterhead stationery and presenting himself as Vice -Mayor of Fayetteville, rather than as the attorney for the district, when he was soliciting signatures for the formation of the district; (6) Ron Bumpass abused his office and his position as officer of the court in an attempt to prevent Cyrus Young from investigating the improvement district by calling his employer, Ervan Wimberly, and discussing the opposition of the district with Mr. Wimberly; and (7) reprisals were initiated by the improvement district against people opposed to the district - one such reprisal being a letter written by Mary Smith, which had no phone number or return address provided, in which she alleged that Bill and Sharon Stiles were operating an antique shop in violation of the City zoning regulations, and that Mr. and Mrs. Stiles were dumping toxic chemicals into the city sewer system. Young said this Mary Smith demanded and did receive an investigation of her allegations. Young said they were asking to be afforded the same rights given Mary Smith. 81.2 Young said people were in the audience in support of their efforts to do something about the improvement district, but said there were people afraid to speak out against the district, and people who were afraid to attend the Board meeting. He said two weeks ago the commissioners were confronted with the facts concerning the lack of 67% and said no response had been received yet. He said documents were requested from Ron Bumpass and access to his files had been denied. He said Bumpass had been asked numerous times why he didn't open his files to the public if he had nothing to hide, and had never responded to that question. Young said intimidation of citizens and merchants of the community, to the extent that they do not stand up for their rights in the face of something that is fundamentally unfair, should not be allowed. 81.3 Young said they were not opposed to the arts center but looked forward to working with all parties in making the issue right and providing a strong foundation for an arts center we can all be proud of. 81.4 Young asked that the city investigate the allegations. He said if the City found them to be factual, they would suggest some possible remedies: 81.5 1) That the City, as owners of property in the district, sign the petition to dissolve the district and urge the commissioners to also sign the petition; 81.6 2) The City Board could instruct City Attorney McCord to join with their attorney in asking for a rehearing of their lawsuit due to new evidence in the case; March 7, 1989 The Board could ask the City staff to determine any other action 82.1 that could be used to resolve this issue.-- r Larry Froelich said that: 1) The basic allegation :is that there were, two lists: one was a 82.2 special reduced list presented to the"abstractor and used to get the 67% of the signatures which were obtained, but there was a second list the tax list; * £ 2) In the operation of the district, there have been two standards 82.3 used by the district: that it was a public project but, when there were things to be hidden, then ;it*was a private project, not subject to freedom of. information. 3) In regard to the:future of the district, Froelich said if the 82.4 district is dissolved, and if the support is there and the need for the district is'treal, then the district can be re-formed properly. f '- Mayor Martin said someone had. delivered a letter to him yesterday, 82.5 summarizing the points which had 'been .made. t He said he thought other directors received the same information. He_said, in his opinion, the improvement district was excellent in concept. He ,said districts had been widely used before where citizens in a particular area were going to benefit from a public facility in, their area. He said there appeared to be a strong possibility that, in the formation of this district, there was some miscommunication, a lack of 'communication, some.' misinformation and miscalculations. •He said it'concerned him that - the Board acted in good faith on information which was presented to them which may have been flawed. He said that created in him an obligation to help the people who feel they have been aggrieved by the process. He said, however, that he would like to see the district stay in place because he thought it was a good thing for the .area and an important adjunct to the arts center. He said he hated to see the City taking an immediate, active interest in dissolving the district, but said if there was not some justice meted out, he personally thought that was an action the Board may end up wanting to take in the interests of fairness. Martin said an arbitrary number of 500 parking places was raised at one 82.6 point but, in response to a request by Bill Stiles, we now have some definition of a precise number of spaces. He added that the Bank of Fayetteville has offered parking places across the street from the site, for use by arts center patrons in the evening. Martin suggested the Board instruct the City Manager to define precisely how 82.7 many parking places there are and enter negotiations with the improvement district commissioners for a cost-sharing arrangement between the City and the district on the remaining parking places, that there be a substantial contribution by the City in this regard, and that the contribution be made 83.1 83.2 March 7, 1989 by way of lower assessments to certain members of the district. Martin said he was particularly concerned about residential property owners, churches and small business owners in the district. Martin moved that the City Manager be so authorized. The motion was seconded by Marinoni. Lancaster spoke in support of the motion, adding that he would like to see the Board do something "to get our people back together." Lancaster said he believed that, when the election was held on the issue of whether to build an arts center, people voted thinking the district would provide 500 parking places. Lancaster said he did not think that was ever an arbitrary figure, but had been discussed throughout the planning of the project. 83.3 Kelley, referring to the motion, asked who would be responsible for communicating with the members of the district. The City Attorney said his understanding of the motion was that the City would make an annual contribution toward the cost of the proposed improvements, to be used as an offset toward the required collection of assessments. He said there was a statute that authorized commissioners of an improvement district to file a certificate with the tax collector, reducing the amount of the assessments on an annual basis. Kelley asked if this meant the City would negotiate with the improvement district. Martin said that was the concept he intended in his motion. Kelley asked if everyone assessed would be notified of exactly what the reductions would be, so there would not be any confusion again. The City Manager agreed that this would be the case. 83.4 Director Green said he thought comments he made at the last Board agenda session were misinterpreted by some people, who may have thought he really didn't want the people to speak. He said that was not his intention, that this was an open Board which tends to encourage people to speak on any issue. He added that this was part of the purpose of the Other Business portion of the agenda. Green said the way he interpreted the request when it was first made was for the City Board to take some action based on a determination as to whether there was any fraud, misrepresentation or any wilful deceit by any parties to the district. He said he still felt the Board's job was not to sit as a judicial body. He said he didn't think the Board should legally be able to do that. He said a more proper cause would probably be to let the courts determine if there was fraud and misrepresentation or not. He said if that was proven then the Board should try to take some corrective action and make sure it doesn't happen again. 83.5 Green said he felt this was a tremendous problem which needed to be resolved. He said when he was campaigning for City Director it was an issue and he then proposed that the number of parking spaces be reduced (to ease a potential drainage problem that 500 spaces may cause) and proposed the city loan the cost of assessments to any owner -occupied single-family residential property owner to defer their costs until the property changes hands or is probated. He said at that time, the loan could be paid back to the City from the net proceeds of the sale of the probate. He said part of the reason for that suggestion was to help some people on fixed incomes. He • March 7, 1989 v71 said obviously those people will not enjoy any increase in benefits from 84.1 their property as long as they remain living in the district. Vorsanger said he was in favor of the idea, but thought the number one priority was to get started on"the arts center. Vorsanger asked how much of an increase in taxes per year resulted from the assessments placed on the residential properties in the district. Larry Froelich said he did not know, but said that, although initially the opponentswere just residential property owners, the opposition -now includes business owners in the district and the issue now is far more than just.taxation ef residents, and the issue is more than money. Froelich said the issue is "the lawlessness". He said improvement districts have a tremendous amount of power and this district already has offered to issue another $5.million inibonds to finance the sale of the First South Building. . He% said they -4 have offered to use their connections with the City Board to.freeze the tax on First South. He said the matter of simply reducing tassessments to' homeowners probably is not going to resolve the situation. He daid;they-were asking the Board to investigate whether they have been misrepresented, and investigate what they can do about it. 4., A Vorsanger asked if the allegations presented' to the Board at this meeting 84.3 had ever been presented in court. Froelich said they were not because Ron Bumpass maintained that his records were notsubject to public inspection. He said the court held that the opponents -bad thirty days from the date of the creation of the district to`object.to..the district. He said the lawsuit was not filed within thirty days;'commenting that' property owners were not given notice of the Board's action during that time. He said the particular ,allegations didn't come to light• until about four weeks ago. 84.2 Vorsanger said he was really disturbed by the remark which was made by Cyrus 84.4 Young that .people feared city government. He asked Young to elaborate on those comments. Young said he'couldn't name names:because of their fears. He said it wasn't ah issue of not being able to say something, but was an issue of taxation. He said everyyyear they can re -assess and taxes can go up for some people. He said Ron Bumpass attended a meeting held by the opponents and during discussion about cleaning up Dickson Street, Bumpass said "there will be aggressive Code enforcement." Young said he was glad he was not a merchant on Dickson Street. He said an improvement district had powers which allow it to dictate to a property owner whether he can paint his house, or what color. Marinoni said he was in favor of the motion. He position should be one of being a peacemaker. that there are so many holes in this thing. The to look like a piece of Swiss cheese. . . I actions we ought to change this Swiss cheese to something that looks more like American cheese, with no holes in it, erase all doubts, have everything above board, have all questions answered." Marinoni asked if the University could also participate in the proposal. The City Attorney said, although he said he thought the City's 84.5 He said "it is .regrettable improvement district begins think in the process of our 35.1 March 7, 1989 knew the City could contribute to the district, he did not know whether the University can do so. 35.2 Spivey said he was basically in favor of the motion. He said a lot of business owners in the district had called him, and almost every one said their assessment is about triple the initial "ballpark" figure they were given. He said he thought it was more than just a residential problem. 35.3 The Mayor invited the public to comment. Wilbur Watson said he had been manager of the Farmers' Market an the Square for fifteen years. He said he served on a committee called "Pride in Dickson Street" (PIDS) because the Market operates a crafts fair during Spring Fest. He said Rick Mayes was the only representative of the district who has been willing to talk to him, commenting that other district representatives had more or less refused to talk to him or had lied to him. He said he has asked them to meet with him. Watson said the Dickson Street group had met with the Market Board immediately after it was decided the arts center would be located on Dickson Street, and said they wanted the Farmers' Market to operate on one of the parking lots. He said he hoped Dickson Street and the City of Fayetteville would help the Farmers' Market, commenting that they will need public restrooms, a storage place, and a concession stand. He said they propose to build a 50' x 250' market shed. He estimated restrooms would cost $25,000- $30,000, and estimated the remainder of their costs at $100-$115,000. He said the Market has $45,000, and said he didn't think there was any question about being able to raise the money they need. He said he hoped everyone could "get together and get this thing off center." 85.4 Scott Sinclair said he was a graphic artist and an editor for the Grapevine Newspaper. He said he had a chance to look through the minutes of the improvement district which he said didn't exist for many months, according to Ron Bumpass, but magically appeared. He said that, according to those minutes, the Bank of Fayetteville offered those parking spaces over a year ago. He said the bylaws for the district state there are two ways to dissolve the district, either by obtaining 2/3% of the assessed property owners in the district on a petition, or by a majority vote of the Board and by a majority of the property owners in the district. He said that meant to him that the City Board did have a responsibility to look into the matter. He said the courts may not be enough to help the residents because of the "dragging of feet" primarily by the attorney for the district. He said he thought the people wanted the arts center, and The Grapevine (in the district) wanted the arts center, but they don't believe it should be based on an illegally formed district. He said the compromise was a good idea but remarked that there may very well be fraud involved He said the City Board was "the hope of Fayetteville to find out what's happened here." Martin said he wondered if the provision for a "majority vote of the Board" actually pertained to the district board and not the City Board. Sinclair said he thought it pertained to the City Board. 85.5 Michael Thurmond, property owner in the district, asked why he should share the burden of an essentially commercial venture, commenting that businesses tst March 7, 1989 would have a means of gaining the money back while he would never gain any 86.1_ value unless he sells his property and moves out of the district. He said the commission had powers in perpetuity, and asked what could prevent them in the future from taking his property for a parking lot. Martin said he thought those fears were legitimate, commenting that the districts are governed by State law. He urged residents to explore the possibility of asking the district commissioners to adopt, as part of their bylaws, some safeguards which would prevent such things. Thurmond said no attempt was made to contact him as a property owner about including him in the district. In answer to a question from Director Kelley, there was no indication that 86.2 anyone was present to represent the district. Kelley asked if the district commissioners were looking into 'the allegations. Cyrus Young said he thought they had requested a written explanation from Ron Bumpass and Cary Schultz (member of Board of Assessors). Kelley said he agreed with the motion and said he believed the Board'should get a report from the City staff as to whether there had been any wrongdoing. He asked if this was part of the motion. Martin said that was not part of the motion, but it was his understanding the commissioners have asked for that information. Martin asked the Directors to vote on the motion that the City Manager be 86.3 authorized and instructed to negotiate a' cost-sharing arrangement with the Dickson Street improvement 'district commissioners, with a portion of a reduction in selected district participants. In answer to a question from Vorsanger, Martin said the City.'Manager would bring that information back before the Board. Upon roll call, the motion passed, 6-0-1,:Marinoni, abstaining because he 86.4 owns property in the district. THE MEETING RECESSED AT 9:40 P:M.AND RECONVENED AT 9:45 P.M. 86.5 REZONING/R89-7 The Mayor introduced an ordinance rezoning 17.16 acres located north of 86.6 Joyce Street, from the drainage channel west to the intersection with Stearns Street, from C-2 "Thoroughfare Commercial" and R-0 "Residential Office" to C-2 "Thoroughfare Commercial." The Mayor explained that this was one of four tracts of land to comprise a future development to be known as Vantage Square. He noted the petitioner was James Lindsey. He reported the Planning Commission had heard the petition on February 27 and voted, 7-1, to recommend approval. He said at that time the Planning Management Director recommended approval, reporting the following to the Commission: Tract 1 is the westernmost tract of the four properties. It stretches from the aforementioned drainage channel west to the corner of Joyce and Stearns. Most of this tract is currently zoned C-2. A triangular area at the eastern end of this tract is zoned R-0. The proposal is to 86.7 87.1 March 7, 1989 rezone the entire tract to C-2. The tract is cleared, relatively level and contains 17.16 acres. The land to the west and across Joyce Street is zoned C-2. Nearly all of the tract is designated as commercial (services) on the Plan. The land to the east of Tract 1 is zoned R-0 and is undeveloped. The land to the north is zoned C-2 and Z-1...We are in agreement that Tracts 1 and 4 are best suited for C-2 type development since they are closer to land already zoned C-2 and closer to North College... 87.2 Martin said Vantage Square is a joint venture, one partner being A. W. Realty Company, an affiliate of his employer, Arkansas Western Gas Company. He said each was a wholly owned subsidiary of Southwestern Energy Company. He said there were no activities between the two companies, and he had no involvement in or responsibility over A. W. Realty but, because of the corporate affiliation, he said he would be abstaining from all votes and discussion on this rezoning and the others involving Vantage Square. 87.3 The City Attorney read the ordinance for the first time. Director Marinoni, seconded by Vorsanger, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 6-0-1, Martin abstaining. The ordinance was read for the second time. Director Marinoni, 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, 6-0-1, Martin abstaining. The ordinance was read for the third time. 87.4 It was noted that Jim Lindsey and Tom Hopper, of Crafton, Tull & Associates, were present on behalf of the petitioner. Lindsey said the property had been split previously, and they were requesting the rezoning due to the drainage channel. He said it would be very difficult to develop part of the property in its current zoning, because it would be awkward to get access. 87.5 87.6 Director Lancaster said in the past the City Board saw what was happening to the area, after installing a new sewer line in the area. He said property was being developed all along Joyce Street. He said the Board at that time requested the Planning Commission to consider a future road be built by the developer whenever the land is developed, from Joyce Street to Zion Road, so there would be not be a landlocked area. He asked if any provisions had been made for such a road, or if Lindsey had had any discussions with the Planning Commission on this issue. Lindsey said last week when he saw Director Lancaster was the first time he ever knew anything about such a road. He said, although he had not discussed this with his partner, they would comply with what is required. He said, however, they would not like to participate in the building of a dead-end road, but would definitely be willing to grant right-of-way so that at some point in time such a road could be constructed. The Mayor asked if anyone present wished to speak in opposition to the ordinance. Harley Brigham, resident of 1801 Fox Hunter Road, expressed his opposition to the ordinance. He said, in a conversation with the City 1 1 1 ny March 7, 1989 Ot Manager, he asked if this item could be stricken from the agenda, since 88.1 -- because of the inclement weather it would be difficult for him or his attorney to attend this meeting. He said the City Manager agreed to relay this message to the Board. Brigham made reference to public notices which had been placed in the local 88.2 Northwest Arkansas Times to notify the public of Planning Commission and City Board meetings where this development and the rezoning petitions were considered. Brigham commented that nine days passed between the initiation of the rezoning request to the date of this Board `meeting. Brigham said on February 27 he submitted a list of questions to the City 88.3 Manager in reference to the rezoning and preliminary plat of the development. Brigham then read each of his questions and answers he received to them. Brigham, noting that Martini had already announced his intention to abstain, asked if any other Board members had a vested interest, directly or indirectly, in the development. All the Directors indicated to Mr. Brigham they did not have any such interest. Brigham also relayed to the Directors the content of telephone. conversations he had with Jim Lindsey and Charles Scharlau, Officer of A. Wi Realty Company. Brigham said he believed if anyone wishes to substantially alter the landscape of our City or to enter into an enterprise which has an effect on the City's economy or has an effect.on the quality of life in our City, they have a moral obligation to answer questions put forth to them by citizens of our community. He said he didn't believe that -nine days was adequate time for the public to come to a sound decision with a development adjacent to Joyce Street. He said he was opposed to approval 'of the rezoning request. Brigham said he would take no questions from the Board. 4 '- s Vorsanger expressed amazement that Brigham would take no questions from the Board but had posed questions of his own. Vorsanger asked Brigham if he lived in the City. Brigham.'said he did not live in the City. When Vorsanger asked Brigham if he owned property in the City, Brigham responded by saying he was not going to answer questions. 88.4 88.5 • Vorsanger said he attended the Planning Commission meeting at which 1 1/2 88.6 hours were devoted to discussing the issue, after 'which the Commission voted, 7-1, to recommend approval. He commented that, if we have any faith in our Planning Commission at all, he supported their action. Lancaster said he was not opposed to the rezoning but doubted if the 88.7 Planning Commission knew about action which had been taken about a street through the area. He said he wanted to know when the final plat comes out, commenting that Board members had a right to protest. March 7, 1989 39.1 Upon roll call, the ordinance passed, 6-0-1, Martin abstaining. ORDINANCE N0. 3414 APPEARS ON PAGE ys OF ORDINANCE AND RESOLUTION BOOK xp) REZONING/R89-8 89.2 The Mayor introduced an ordinance rezoning approximately 10.7 acres located north of Joyce Street and adjacent to the eastern edge of Butterfield Trail Medical Center, from R-2 "Medium Density Residential" to R-0 "Residential Office." The Mayor reported the petitioner, Jim Lindsey, was heard by the Planning Commission on February 27, and the Commission recommended approval, 6-2. Noting this was the second of four tracts to be known as Vantage Square, Martin said the Planning Management Director recommended approval with the following report: 89.3 Tract 2 is the easternmost tract of the four properties. It contains about 10.7 acres, is relatively level, and has been cleared of trees. This tract is currently zoned R-2. The request is to rezone the tract to R-0. 89.4 Tract 2 is adjacent to the eastern edge of the Butterfield Trail Medical Center which itself is mostly zoned R-0 with a portion of the development zoned C-1. The land to the north and east is the site of the proposed 360 -unit Lakeshore Apartments and is undeveloped and zoned R-2. The land across Joyce is zoned R-2 and is the site of a portion of the Butterfield Trail Village Apartments. The Land Use Plan designation is Medium Density Residential. 89.5 • 89.6 89.7 89.8 ...We do not object to an R-0 rezoning of Tracts 2 and 3 and we feel that future development under an R-0 zoning will not negatively affect adjacent properties... Martin noted he would be abstaining on this matter as well, for the reasons he gave in the preceding item. The City Attorney read the ordinance for the first time. Director Marinoni, seconded by Kelley, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 6-0-1, Martin abstaining. The ordinance was read for the second time. Director Marinoni, 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, 6-0-1, Martin abstaining. The ordinance was read for the third time. In answer to questions from Director Marinoni, Lindsey said he was constructing an apartment complex behind this property. He said he planned to build 204 units now, although 360 have been approved. He said A. W. 1 1 March 7, 1989 R Realty Company presented a plan showing Joyce Street going through the 90.1-- property and entered into an agreement with the City where A. W. Realty contributed over $400,000 towards the construction of Joyce Street through to Old Missouri Road. Lindsey said a city street would be built back to the apartments in the rear. He said, when that project is completed, there would be a second point of access. - The Mayor asked if anyone present wished to speak in opposition to the 90.2 ordinance. Harley Brigham asked Lindsey what he proposed to do with the hill east of the Gas Company which he said was in a state of erosion. Lindsey said he had an item in his budget this Spring to put mulch on that hillside. In answer to a question from Vorsanger, Brigham said that he did not own property in the City. A Upon roll call, the ordinance passed, 6-0-1, Martin abstaining. ORDINANCE NO. 3415 APPEARS ON PAGE «7 OF ORDINANCE AND RESOLUTION BOOK X X V REZONING/R89-9 90.3. The Mayor introduced consideration of an ordinance rezoning 7.94 acres south 90:4 of Joyce Street and east of Butterfield Trail Village; from R-0 "Residential Office" and R-2 "Medium Density Residential" to R-0 "Residential Office." • The Mayor explained that the petitioner, JimLindsey, was heard by the 90.5 Planning Commission on February ,27, at which time they voted, 6-2, to recommend approval of tract 3 of'four tracts to be known as Vantage Square. He reported that the Planning Management Director recommended approval, reporting the following: Tract 3 is the smallest of the four tracts and contains about 7.94 90.6 acres. This tract is also relatively level, cleared of trees, and undeveloped. The eastern boundary f this tract borders the Butterfield Trail Village. The northernhalf of this tract fronts on Joyce and is zoned R-0. The southern half is zoned R-2. The proposal is to rezone the entire tract to R-0. The Land Use Plan designation is Medium Density Residential. J ...We do not object to an R-0 rezoning of Tracts 2 and 3 and we feel 90.7 that future development under an R-0 zoning will not negatively affect adjacent properties... The City Attorney read the ordinance for the first time. Director Marinoni, 90.8 seconded by Lancaster, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 6-0-1, Martin abstaining. The ordinance was read for the second time. Director Marinoni, seconded by Lancaster, made a motion to further suspend the rules March 7, 1989 • 11.1 and place the ordinance on its third reading. Upon roll call, the motion passed, 6-0-1, Martin abstaining. The motion was read for the third time. 11.2 The Mayor asked if anyone present wished to speak in opposition. No public comments were made. Upon roll call, the ordinance passed, 6-0-1, Martin abstaining. ORDINANCE NO. 3416 APPEARS ON PAGE /if OF ORDINANCE AND RESOLUTION BOOK y ) REZONING/R89-10 )1.3 The Mayor introduced consideration of an ordinance rezoning 19.77 acres located south of Joyce Street, east of the drainage channel and north of Mud Creek, from C-2 "Thoroughfare Commercial" and R-2 "Medium Density Residential" to C-2. 31.4 The Mayor explained the petitioner, Jim Lindsey, was heard by the Planning Commission on February 27 at which time they voted, 6-2, to recommend approval. He reported the Planning Management Director recommended approval, making the following report: 91.5 Tract 4 is the largest of the four tracts and contains 19.77 acres. The western boundary of Tract 4 is the drainage channel and the land to the west is undeveloped and zoned C-2. The southern boundary is Mud Creek and a portion of the tract is within the designated flood plain and subject to the City's flood plain regulations. The land across Joyce to the north is zoned R-0. The Land Use Plan designation is commercial. The northern half of Tract 4 is zoned C-2 and the southern half is zoned R-2. The request is to rezone the whole tract to C-2. 91.6 ...We are in agreement that Tracts 1 and 4 are best suited for C-2 type development since they are closer to land already zoned C-2 and closer to North College... 91.7 The City Attorney read the ordinance for the first time. Director Marinoni, seconded by Kelley, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 6-0-1, Martin abstaining. The ordinance was read for the second time. Director Marinoni, 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, 6-0-1, Martin abstaining. The ordinance was read for the third time. 91.8 Jim Lindsey stated that he had an obligation to make the property "nicer than we found it." He said the joint venture intends to do something special for the City in that area over the next ten years. He said it was his obligation to transplant trees and make it a place "where we put back 1 March 7, 1989 more than we took" so that in the end everyone will feel really good about it. Harley Brigham said he was well aware that the Mall had become a for Fayetteville and that growth is going to be in that area. him, zoning was an important tool the City had to direct growth. hated to see the Mall become the center of Fayetteville, believed should be the center of the City is the Square. believed we should push for growth to the west, east and south. didn't think all the direction of the city should go in one way. may be a little bit of a zealot when it comes to the environment" but had done some contracting himself and made most of his living from real estate. He said he was "all for growth" and was not "anti -growth." 92.1 centerpiece 92.2 He said to Hesaidhe and -what he He said he He said he He said "I Upon roll call, the ordinance passed, 6-0-1. ORDINANCE NO. 3417 APPEARS ON PAGE -S/ OF ORDINANCE AND RESOLUTION • BOOK XX✓ OTHER BUSINESS S 1 • LOT SPLIT RECONSIDERATION Vorsanger noted that at the last Board agenda session the Board decided to ask the Planning Commission to reconsider a decision they made on a lot split in the Rockwood Drive area. He said he saw a legal notice in the local newspaper that this. would be reconsidered,by the Planning Commission at their next meeting. He said he appreciated that fact, because many people who wanted to hear that item had been unable to because the order of items had been changed around on the Planning Commission agenda. "PEOPLE FOR PETS" A TheMayor introduced Tone' Marconi, speaking on behalf of "People for Pets." Marconi said her group was affiliatedcwith the Humane Society of the Ozarks. She invited everyone to a membership appreciation party at the Elks Lodge, to be held from 7:30 -9:30 p.m. on March 31. 1 ANNUAL "GRIDIRON" Dan Mouritsen said he was a member of Sigma Delta Chi which will put on the annual "Gridiron" show this year at the Arts Center of the Ozarks in Springdale on March 31 and April 1. He invited everyone to attend. 92.3 92.4 92.5 92.6 93.1 March 7, 1989 WARNER CABLE/CITIZEN COMMENT Dan Mouritsen stated that at no time had he ever represented himself as a representative of the City of Fayetteville. He said, because of the Board's actions, there would be litigation concerning the new Warner franchise "in reviewing its legalities and violation of federal communication law." ANNUAL PARKS BOARD/CITY BOARD MEETING 93.2 The Mayor announced that the annual meeting scheduled between the Parks and Recreation Advisory Board and City Board for 5:30 this evening was postponed because of the weather. He asked the staff when that meeting would be re- scheduled. Public Works Director Mike Batie said it was tentatively set for four weeks from now. AIR MUSEUM ATTENDANCE 93.3 Director Kelley thanked the members of the Board who were able to attend the reception and tour held at the Air Museum. 93.4 ADJOURNMENT The meeting was adjourned at 10:50 p.m. 1