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HomeMy WebLinkAbout1992-01-21 MinutesMINUTES OF A MEETING OF THE CITY.IBOARD OF DIRECTORS A regular meeting of the Fayetteville -City Board of Directors was held on Tuesday, January 21, 1992 at 7:30 p.m. in the Directors' Room of the City Administration Building•at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor Fred Vorsanger; Assistant Mayor Mike Green; Directors Julie Nash, Dan Coody, Shell Spivey, Ann Henry, and Bob Blackstone; City Manager Scott Linebaugh; City Attorney Jerry Rose; City. Clerk Sherry Thomas; Director of Planning Alett Little; Director of Public Works Kevin Crosson; Director of Administrative Services Ben Mayes; members of Staff, press and audience. CALL TO ORDER The meeting was called to order by the Mayor, with seven Directors present. The Mayor asked those present to stand and recite the Pledge of Allegiance, and then asked that a brief moment of respectful silence be observed. The Mayor welcomed comments on any item on the Agenda. He explained that in order to allow equal attention to all items on the Agenda, the Board requests that comments be limited to 3 minutes per person per item, and a spokesperson be elected for comments made on the same issue. REPORT TO THE PUBLIC A report to the public and Board is presented by the City Manager at the second Board meeting of each month. This report, for the month of December, includes financial information, an update on staff activities, and items of general interest. In addition, there will be a special report on the 1991 Hay Harvesting Project. FINANCIAL INFORMATION City Manager Scott Linebaugh reported that at the end of December the balance sheet revealed assets of $182 million, liabilities of $34 million with a fund balance of $148 million. For the period ending December 31st, there were total operating/non-operating revenues of $50 million, and expenditures of $57 million,compared to 1990 expenditures of $61 million, a $4 million decrease. CRIME STATISTICS City Manager Linebaugh reported that for the year 1991, there were a total of 535 major offenses such as homicides, rapes, robberies, burglaries were decreased 5% from 1990 with 559. Robberies were down 21 from 1990, burglaries down from 510 in 1990 to 492 in 1991. Linebaugh stated that the Crime Prevention Unit played a major role in helping to reduce criminal offenses by educating the public. In 52 January 21, 1992 1991 alone there were 4,700 citizens reached by the Crime Prevention Unit. COMPLETED PROJECTS City Manager Linebaugh reported on three projects that have been completed: 1) In December 1991, 16 additional boat stalls were added at Lake Fayetteville at a total cost of $32,000. This will accommodate a portion of the waiting list of some 30-50 requests. 2) The Highway 156 construction project from Highway 71 North of Drake Field over to the South Industrial Park has been completed at a total cost of $973,000, of which the City's share was $153,000 with the remaining paid by the state. This will help in the east/west corridor providing a route from Highway 71 to 16, as well as providing a new entry point for the Fayetteville South Industrial Park. 3) The KHOG building, adjacent to City Hall, renovation project will provide entry from two floors of City Hall at a total cost of $123,000 which was $3,840 less than the contract price. This addition onto City Hall will provide an additional 2,900 square feet of office space and will be occupied primarily by Community Development, Planning, Engineering, and Microfiche/Microfilm operations. City Manager Linebaugh further reported that 1991 was another record-setting year with 1,775 building permits issued, and this completes a ten year trend of increased activity. The total for 1991 was $53,304,000 new investments made in Fayetteville, compared to $54 million with fewer permits issued in 1990. The increased construction activity is felt to be attributable to two major factors: the economic health of Northwest Arkansas and low interest rates. In addition, the building permit activity for residential property totaled 618 new housing units started, an increase from 1990 of 362 new units started. The residential investment amounts in 1991 totalled $10 million more than in 1990. In 1991, permits for commercial establishments totalled 34 for a total value of $7 million. A total of 9 industrial construction permits were issued in 1991, compared to zero permits issued in 1990. WASTE WATER TREATMENT PLANT Henry Huffman, Plant Manager at the Waste Water Treatment Plant, addressed the Board thanking them for the opportunity to make his 53 January 21, 1992 • presentation and for their approval ofthe equipment that made the fantastic hay harvest year possible. Huffman gave a video presentation on the 1991 Hay Harvesting Project which set out the ten-year life of the major equipment, and revenues of $847,000 after expenses and pay -back of capital equipment, $687,000 over possible harvests from previous methods. Huffman further explained that after the ten-year life, the equipment will have a significant trade-in value. Huffman stated that the actual value of this marketing program will near $1 million. The major benefit remains the time removal of the sludge medium and the continued life of the plant. Huffman commended Billy Ammons and Roy Reed for helping to make the successful operation possible. Director Coody stated that he was skeptical in the beginning with respect to this program, and he is pleased with the results. Director Spivey stated that they have proven that a good job can be done and hopefully this trend will continue. Director Green asked about the years when there were bumper hay crops and the hay market tended to be slow, what type of contingencies are planned for disposing of the hay crop. Huffman responded that the quality of the hay is between 16%-19% protein, and this quality of hay will always be in demand no matter what the market is. In addition, they have storage facilities in the event that they need it. .4 OLD BUSINESS Items. that have been brought before the Boardbut were tabled or no decision made to allow for further information to be presented. There was no old business to discuss. NEW BUSINESS f CONSENT AGENDA Mayor Vorsanger introduced'consideration of items which may be approved by motion, or contracts and leases which can be approved by resolution, and which may be grouped together and approved simultaneously under ak"Consent Agenda." A. Minutes of the January 7, 1992 regular Board meeting; B. A resolution awarding an engineering contract in the amount not to exceed $14,220.00 with an additional $1,422.00 for contingencies to Northwest Engineers, Inc., for sewer line replacements for Hall, South College, Olive, and Church Streets; • 54 January 21, 1992 Staff recommends approving the contract to replace the sewer lines which have been maintenance problems for quite some time. This is a budgeted item for 1992. RESOLUTION 10-92 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK C. A resolution awarding Bid 91-61 in the amount of $20,618.00 to Ron Blackwell Ford of Bentonville for a 1992 Ford 1-250 4 wheel drive pickup; Staff recommends approving the purchase of this budgeted truck which is a replacement vehicle for the Fire Department. This vehicle will be used as the "Air Service Unit" by the department and is a mobile breathing air supply vehicle carrying four large cylinders of high pressure air for use by the fire fighters when fighting fires. RESOLUTION 11-92 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOR D. A resolution awarding Bid 91-64 in the amount of $30,254 to Ron Blackwell Ford of Bentonville for a 1992 Ford F-350 1 ton with an Auto -Crane; Staff recommends approving the purchase of this budgeted vehicle. This is a replacement unit to be used as an off road type vehicle with the crane being used to lift wheel and tire combinations for backhoes, graders, etc. It will also be used at the landfill to service our equipment. RESOLUTION 12-92 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK E. A resolution approving a modification to the architectural contract with Newton Bailey i Associates changing the location of the work to be performed on the PEG Television facility from the Ozark Mountain Sports Building to the building at 101 W. Rock Street; Staff recommends approving the modification. The cost to renovate the Ozark Mountain Sports Building exceeds the $230,000 budgeted for this project. The Rock Street location renovation is projected to cost $128,997 leaving $100,000 for the purchase of video projection equipment and furniture. The amended cost of this architectural contract will be $11,047.25 which includes a 10% contingency, and it will save the City $2,011.75 from the original contract. Director Coody requested that Item "E" be removed from the Consent Agenda. January Henry, seconded by Coody, made Agenda, with Item "E" removed. passed by a vote of 7 to 0. ITEM "E" 21, 1992 55 a motion to approve the Consent Upon roll call, the motion was Mayor Vorsanger reintroduced the resolution approving a modification to the architectural contract with Newton Hailey & Associates changing the location of the work to be performed on the PEG Television facility from the Ozark Mountain Sports Building to the building at 101 W. Rock Street. Director Coody questioned whether this resolution only pertained to a modification of the architectural contract, and whether the $100,000 purchase of video equipment was included in this resolution. City Manager Linebaugh confirmed that the resolution only covered the architectural contract and the $100,000 purchase of video equipment would be discussed at a later date. Henry, seconded by Coody, made a motion to approve the resolution. Upon roll call, the resolution passed by a vote of 7 to 0. RESOLUTION 13-92 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK ANIMAL CONTROL ORDINANCE • . Mayor Vorsanger introduced considerationoof amendments to the Animal Control Ordinance. • The ordinance was read for the first time. 1 Coody, seconded by Vorsanger, made a motion to suspend.;the rules and place the ordinance on its second reading. 'Upon roll call, the motion passed by a vote of 7 to 0. The ordinance•wasread for the second time. Coody, seconded by Blackston, made a.motion to further suspend the rules and place the ordinance on its thiird and final reading. Upon roll call, the motion was passed-by.a vote of 7 to 0. The ordinance was read for the third and final time. Director Green stated that paragraph.92.20(a)(2) read, ". . . any animal under six months of age . . ." instead of six years of age ,as was read. • Clara Fowler, Board member of the Humane Society, addressed the Board stating that this ordinance results from a three year study of modern ordinances, resources and the experience of the Humane Society of the United States. It more closely fits the needs of Fayetteville than earlier ordinances. Fowler listed the following benefits of this new ordinance: fin 4 58 January 21, 1992 1) The ordinance is specific, spelling out and defining terms and behaviors; 2) It addresses the City's growth needs and associated pet problems; 3) It provides for easier return of pets by reducing impoundment fees, creates happier owners, and reduces the euthanasia rate; 4) It encourages animal population control by adjusting licensing fees; 5) It reduces health risks and promotes better sanitation by its restrictions regarding animal wastes; 6) It encourages better conditions for pets by spelling out what comprises "responsible pet ownership" to prevent abandonment, abuse, and neglect; 7) It empowers animal services officers to take specific actions to protect the safety and welfare of citizens and animals alike and determines penalties thereof. Best of all, Fowler continued, due to the study put into this ordinance, it addresses "causes" not "symptoms". In closing, Ms. Fowler encouraged the City Board to seriously consider supporting this ordinance as the Humane Society does. Director Blackston stated his support for the ordinance. Director Henry commented on the provision calling for a 30 -day jail sentence for violation of a police dog. Director Coody thanked the members of the Humane Society and others for their hard work putting this ordinance together. Director Spivey stated Fayetteville's pet licensing fee is extremely low. The Humane Society is in dire need of funding, and this ordinance will generate additional funds and reduce the need for euthanasia of animals. The ordinance will help the Humane Society perform their job and provide benefits for all citizens. Director Green stated that the ordinance does encourage citizens to license their pets. If licensed, animal control officers are able to return pets to their owners through identification from the licensing tags, in lieu of impoundment. Upon roll call, the ordinance passed by a vote of 7 to 0. ORDINANCE 3588 APPEARS ON PAGE 12 OF ORDINANCE AND RESOLUTION BOOK $X VI January 21, 1992 PUBLIC HEARING b Mayor Vorsanger introduced the next item on the Agenda as a Public Hearing explaining that the Mayor has the opportunity to issue a proclamation to set a date for the election on the question of changing the form of city government. Mayor Vorsanger further reported that a petition was submitted by Robert Reus calling for an election on the question of changing the form of city government to a Mayor -Council form was certified and declared to be sufficient by the City Clerk. The statutes call for the Mayor to set the time for an election. Mayor Vorsanger suggested that the election be held at the May 26, 1992 primary. However, before that date is set, Mayor Vorsanger asked for public response to the election time and welcomed all public comment. Mayor Vorsanger reported that he had done his own survey of people from all areas of Fayetteville prior to making his decision. Robert Reus addressed the Board initially requesting Mayor Vorsanger give his comments first and hear discussion prior to Reus' comments, to which Mayor Vorsanger suggested that Reus make his statements so that they could proceed with the meeting. Reus stated that 60 days from this date would be adequate for an election. The filing period for the positions will come up in August and September, and he doesn't believe that less than 90 days is sufficient time for citizens to run for the positions. Reus officially requested that a^ reasonable date be set in March, avoiding Spring Break, for the election. In addition, Reus requested that Mayor Vorsanger respondtohis.prior comments that an earlier election would' be more reasonable• than the May 26 primary date. In conclusion, Reus stated that the City of Fayetteville can not spend any money on this election as that would be illegal. In addition, the Chamber of Commerce as an employee of the City of Fayetteville should not be allowed, to spend any of the money budgeted to them by the City on this campaign, and he requested that he be provided with an accounting of all campaign funds as well as the money budgeted by the City. The citizens of Fayetteville should not be asked to pay to finance both sides of the issue. r , 1•! Mayor Vorsanger stated his reasons for setting the election on May 26th, the logical day for the election: 1). As indicated by. Reus, they don't want to spend the City's money. If held at the regular election time, no additional funds would need to be spent on a special election. 57 58 January 21, 1992 2) A large turn -out is expected. Fayetteville's record is not good for special elections. This question is so important all citizens that can possibly vote should have the opportunity to vote. 3) Four months would give everyone sufficient time and let all citizens know the pros and cons on the forms of government. 4) Four months would allow additional time to get more citizens to register, and regardless how you vote on this question - Vote! Mayor Vorsanger reminded the public that campaign contributions work both ways and requested that Reus keep an accounting of contributions to his lobbying organization. He told Reus that his lobbying organization should be registered and records made available as well. Director Henry stated that she would like to see a large turn -out for this election, and special elections are not known for big turn -outs. Director Coody stated his disappointment that only one person spoke of this issue. Mayor Vorsanger called the public hearing to a close encouraging everyone to please vote. OPTIONAL METHODS OF ELECTING BOARD OF DIRECTORS Mayor Vorsanger introduced an ordinance calling for an election on the question of amending the method of electing directors to the City Board and which Mould provide for the direst election of the Mayor from an at -large position. Mayor Vorsanger explained that the proposed ordinance would call for only those qualified voters residing in a ward to vote on candidates from that ward. Currently, candidates from individual wards are elected by all qualified voters. This ordinance would apply to the four city director positions which are currently designated as ward positions. In addition, the ordinance would provide for the direct election of the mayor and would designate one of the three current at -large city director positions as the Mayor position. The remaining two at -large positions would remain as at -large positions. Mayor Vorsanger reported receiving both pro and con comments. He suggested the ordinance be discussed or put on its first reading and discussed at that time, or perhaps leave it on its first reading for two weeks in order to receive additional public input. January 21, 1992 He stated that this issue will be voted on at the May 26 primary, and he refuted comments that having both issues on the ballot will be confusing to the citizens. The ordinance was read for the first time. Director Nash agreed with Mayor Vorsanger and suggested that the ordinance be left on its first reading. Nash reported receiving numerous calls from citizens stating that they have not had an opportunity to express their opinions adequately. Director Blackston stated that this was a debated item during the last election. His feeling was then, and still is, that being elected within your own ward makes the election process a lot less cumbersome and expensive. The cost of electing directors has gotten out of hand with large sums of money being spent on a position that pays nothing. The at -large positions would prevent combativeness or "you scratch my back - I'll scratch your back" out of the decision making. Blackston further stated that this method is a better alternative to the one that they are presently using and he supports it for the main reason that it is much less expensive, candidates will•. be, better known in their wards, and citizens will feel like they.,are electing "their director". Director Henry agreed with Director Blackston that the cost factor is the main reason to support this as wellies the fact that it is a better way to deal with the situation. Henry stated that she perceives herself as representing Ward 2. Director Coody asked City Attorney Rose whetherlit would be illegal for Board members to acceptfinvitations:from civic clubs to speak at luncheons to discuss the pros and -cons of a change in form of government or the present form of government and if that would be contrary to the rules of the Municipal League handbook. City Attorney Rose responded that he would have to look that up, but he couldn't perceive that it would be a problem. ..► Director Green asked if this ordinance was'left on its first reading, does it also take an ordinance to set the election on the question of changing the form of government. City Attorney Rose responded that the Mayor's proclamation sets, the date. Director Green further commented that they could swing. to the extreme by electing all directors at large or by individual wards, but as previously mentioned, .politics and trade-offs sometimes occur with individual neighborhood politics. The vast majority of the decisions that the Board makes affects all citizens of Fayetteville and few decisions are specific to,a particular ward; however, by having at least four or the majority of the directors elected by their specific residency ward, a compromise is possible 59 60 January 21, 1992 to represent the tota4ity of the citizenry. He stated that he does support the ordinance as presented. Director Spivey stated that he would like to proceed with this ordinance and not drag it out over two or three meetings. The public will have a chance to vote on this, and he likes the idea of having three at -large and four ward positions as it provides a better balance. Spivey, seconded by Green, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion failed by a vote of 4 to 3, 'with Directors Coody, Nash, and Vorsanger voting no. Director Nash clarified that when she was running for election, she used part of her platform as the 4-3 ward voting and believes that it is preferable to the method currently used. However, after receiving a year of input from citizens, Nash suggested that they have 6 wards with strict ward voting and an elected mayor. Mayor Vorsanger stated that the ordinance remained on its first reading and would be taken up at the next regular meeting. In the meantime, Vorsanger requested citizen input on this issue as they would like to present an ordinance that reflects majority opinion of the citizens of Fayetteville. WARNER CABLE FRANCHISE Mayor Vorsanger introduced an ordinance amending Ordinance 3413 (the Warner Cable Franchise) adopted Marsh 7, 1989, allo'wing the $230,000 grant received in November, 1990, to be spent on equipment for the FRG access facilities as well as for construction and renovation costs on the building. The amendment vill also move the two $38,000 payments to the City from the dates specified in Section XVII of the agreement, and approval of a budget adjustment. City Manager Linebaugh further explained that the wording of Ordinance 3413 is confusing, and this amendment is to clarify that the grant can be used for equipment as well as construction, purchase, and renovation. In addition, the franchise currently calls for two $35,000 payments, which have been clarified by the amendment to set -out what the franchise agreement states, with the first payment due immediately, and the second payment to be made ten days from January 1, 1996. Linebaugh stated that the Cable Board, Warner Cable, and their attorneys have recommended, reviewed, and approved the amendment to the franchise agreement. The ordinance will require a budget adjustment so the City can utilize the receipt of $35,000 for capital expenses associated with the PEG access facilities and equipment. The ordinance was read for the first time. Green, seconded by Blackstone made a motion to suspend the rules and place the January 21, 1992 ordinance on its second reading. Upon roll call, the motion passed by a•vote of 7 to 0. The ordinance was read for the second time. Green, seconded by Blackston, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll .call, the motion was passed by a vote of 7 to 0. The ordinance was read for the third and final time. Director Coody requested clarification on whether an amendment was necessary as Warner Cable suggests that this formal action was unnecessary so long as mutual understanding of the City's intent is documented. City Attorney Jerry Rose responded that he has the greatest respect for Woody Bell and his word, but a franchise agreement is a very formal document. It was approved by ordinance, and he would recommend that it be modified in the same way. Director Nash stated that when they approve the budget adjustment for $35,000, they aren't also approving an,equipment list. City Manager Linebaugh responded -=that the Board .is authorizing this amount to be spent on equipment, and any item costing greater than $10,000 would have to come"back to the Board.'. Director, Nash asked why they were asking for the two $35,000 payments earlier than originally intended. City Attorney Jerry Rose responded that they started out with a 15 year franchise with payments at $5,000 and $10,000; subsequently, this was renegotiated to a 5 year franchise with an automatic 57year extension. The payments were left at $5,000 and•$10,000; however, it was intended to be at 1/3 and 2/3 mark of the franchise. This is an effort to conform the original idea of the'1/3 and 2/3 into the franchise which turned out to be a-10 year franchise. Director Coody inquired -as to the reason for the emergency clause. Rose responded that the -money is.,there._and available to be utilized. • • Director Coody stated that he hates to use emergency clauses arbitrarily. Rose responded that.hedoesn't use them unless asked to, and he was asked to use the emergencylclause in this case. 41 Shea Crain, Cable Administrator, further responded that the Cable Board is interested in getting government access going and C -Span on line which will require the'purchase of'equipment. In addition, at the time the government access channel.. is started, they will need to purchase a character generator. Director Coody inquired whether this equipment comes out of a different fund than that which $100,000 was set aside to buy. City Manager Linebaugh responded that it is two different amounts and purposes, but basically goes into the same fund. 61 62 January 21, 1992 Director Coody asked City Attorney Rose to read that part of the ordinance which sets out the reason for the emergency clause. Woody Bell, General Manager of Warner Cable, addressed the Board complimenting City Attorney Rose for his work on amending the franchise agreement between the City and Warner Cable. Bell further explained that on page 35 of the agreement under Support for Public Access (Section 17(b), it clearly states that the grantee agrees to provide the City, within sixty days after the effective date of the franchise, a one time payment of $230,000. The effective date of the franchise was November 1, 1990 and the $230,000 grant was delivered to the City on November 20, 1990. Bell stated that since the payment was delivered six weeks in advance, it is hoped that the directors will recognize this as an extension on Warner Cable's part of a helping hand and an action of good faith and desire to work with the City in terms of cable matters and providing good cable service to the City. Woody Bell continued to explain that the franchise language does set out that the money is to be utilized for the construction, purchase, and/or renovation of the City owned building. Warner Cable's intent and desire is to simply fulfill their agreement with the City. They have no objection on how the City utilizes the money as long as it is used for public access. The agreement sets out that grantee agrees to provide to the City on the 5th and 10th anniversaries of the effective date of the franchise, $35,000 payments to be utilized for capital expense associated with access facilities. The franchise period is 5 years with an automatic renewal period. In the event that Warner Cable fails to meet any material term of the franchise agreement, the City can provide Warner Cable with a written complaint regarding the breach and Warner has 60 or 90 days to respond back in writing regarding correction of the breach. Therefore, Bell stated that this franchise is only as good as any franchise, for the length of time that material terms are met Warner Cable clearly sees this as a ten year franchise because the renewal period is specifically set out as automatic, with no formal action required. Bell further stated that Warner Cable is willing to expedite the two $35,000 grants, the first grant of $35,000 is prepared, and they are willing to deliver the same immediately which would be expedited from year five to 15 months. The second payment from year ten to 63 months. It is important for the citizens of Fayetteville to understand that Warner Cable does not have an adverse relationship with the City. Bell further stated that Warner Cable wants to work more closely with the City Board, more specifically with Ms. Crane, the Cable Administrator and the City's Cable Board to answer difficult questions facing the industry nationwide, that being how to best provide cable service that will satisfy the most people in Fayetteville for the next nine years. Bell requested that the City Board pass this ordinance as it gives the City more flexibility and provides for early payment. 63 January 21, 1992 Upon roll call, the ordinance passed by,a vote of 7 to 0. Vorsanger, seconded by Blackston, made a motion to approve the emergency clause on the preceding ordinance. Upon roll call, the motion passed by a vote of 6 to 1. ORDINANCE 3589 APPEARS ON PAGE 73 OF ORDINANCE AND RESOLUTION BOOM .XXVU, SIGN APPEAL Mayor Vorsanger introduced an appeal by Ray Jones for the McDonald's Restaurant to be permitted to locate an off-site directional sign adjacent to the Fulbright Expressway. Nash, seconded by Blackston, made a motion to hear the sign appeal. Upon roll call, the motion passed by a vote of 6 yeas to 1 nay. • Planning Management Director Alett Little explained that Ray Jones applied for a sign permit for an off-site sign, a directional sign directing business to the restaurant on 'West 6th Street, to be placed along Shiloh Drive in December 1991. The request was denied by the Planning Board under•Section 158.43 of the Sign Ordinance which states that "No off-site sign shall be permitted within 660 feet of the right-of-way of any controlled access highway." To make that determination, the Planning Department used Department of Highway criteria that the by-pass was a controlled access highway. However, Hardee's and Braum's'have both been permitted such off- site signs. Jones applied betweenthe times both of these signs were permitted, and he has been denied. Little continued explaining that .the definitions in the Sign Ordinance call for the Board of Directors to designate any state or federal numbered highway designated as a controlled access highways, the Planning Department has been unable to find a record that the Board of Directors.has designated the•Fulbright Expressway or Hwy. 71 by-pass as a controlled access highway. Therefore, the Planning Department is in need of the City Board's direction as to whether this is a controlled access highway and to this end, would make a difference in the McDonald's sign appeal. McDonald's has previously applied for a permit and been denied; however, they did not appeal to the Board of Sign Appeals at.that time. Mayor Vorsanger asked why McDonald's sign is different than Hardee's or Braum's, to which Little responded that she doesn't believe there is a lot of difference. The former Planning Management Director determined that Hwy. 71 by-pass was a controlled access highway and instructed Staff to administer it that way. Little further stated that the there was probably an error in permitting the Braum's sign under that interpretation. 64 January 21, 1992 Director Coody stated that this is a lot bigger issue than it seems, and requested further explanation on how the Braum's and Hardee's signs came to be. Alett Little explained that the Hardee's sign was permitted prior to John Merrell's position as Planning Management Director. Shortly thereafter, John Merrell became Planning Management Director and made the interpretation that the Hwy. 71 by-pass was a controlled access highway. At the time McDonald's applied for an off-site sign and was denied under that interpretation. Thereafter, Braum's applied for an off-site sign permit and on the particular day that Braum's applied, Staff member Freeman Wood, was absent and Braum's was permitted the off-site sign by Sign Inspector Richard Wilson. McDonald's thereafter applied in December 1991 and was denied under the current interpretation, action by the Board of Directors could change that interpretation. Director Coody stated that the two signs located on the Hwy. 71 by- pass are obviously mistakes, and three mistakes don't make a right. By permitting McDonald's this off-site sign, they would be setting a precedent that other signs could be placed along the by-pass. Coody further stated that they will have enough trouble as it is keeping Fulbright Highway an attractive road. In addition, Coody reported that the State has begun placing logo signs north of Fayetteville and by May 1992, the logo signs will be complete and McDonald's will have a logo sign in a few months. Coody suggested that they designate Fulbright Expressway as a controlled access highway and start amortizing to have the Hardee's and Braum's signs removed. Little stated this would set a precedent by granting McDonald's request, but the Sign Ordinance does control the size of signs (height of 30 feet and 75 square feet total area) that would be allowed. Director Coody inquired as to whether there was a limit on the number of signs placed. Little responded that the limit is for one sign per commercial lot adjacent to the roadway. Director Nash stated that once the project is complete, they will begin removing the signs. With that in mind, Nash questioned whether Jones still wants to go to the expense of erecting a sign that may have to come down in a few years. Mayor Vorsanger further added that in all fairness, Hardee's and Braum's should be asked to take down their signs; therefore, it makes no sense to permit McDonald's off-site sign. Alett Little responded that it is the responsibility of the commercial establishment to petition or otherwise contact the State Highway Department to have themselves listed on the highway logo signs. In addition, Little stated that Hardee's and Braum's signs January 21, 1992 were permitted and are not non -conforming and the Planning Department would not require them to remove their signs unless the by-pass. was designated as a controlled access highway. Director Henry asked if the Board did decide to designate the by- pass as a controlled access highway, what rules govern the time limit for removal of existing signs. City Attorney Rose stated that he can begin to examine ways in which the existing two signs could be removed. Director Henry stated that, based on past discussions, this area will be prohibited from having signs, and she asked how that would be accomplished. City 'Attorney Rose responded that this is accomplished by ordinance naming this area as a controlled access highway. Ray Jones, representing McDonald's, addressed the Board stating that it wasn't his intention that as a result of his request the two existing signs would be removed. Jones'further asked if it is that simple to designate a highway as controlled access? r City Attorney Rose read cthe definition of "controlled access highway" as "any state or federally numbered highway designated by ordinance as controlled access highway by Board of Directors of the City." a'..S Director Henry furtherstated that this'.highway meets the criteria of the State Highway Department as.a.controlled access highway. v• Director Nash suggested that City Attorney Rose prepare an ordinance for the Board to look at. Mayor Vorsanger addressed Ray Jones stating that if the•Highway Department will have their logo"signs installed by May 1992, and the others are asked to remove their .signs, to which Jones responded that if the City plans to required removal of existing signs, he doesn't want to spend $10,000 to erect a sign and continue a 20 -year contract for that piece of property. Ray Jones further stated -that his preference would be to allow McDonald's to erect their sign, since the two signs were issued and a precedent set and it appears that he should have been allowed to erect his sign 21 years ago. If there is a desire to preclude any further signs, there should be a grandfather clause enacted along with that control. Director Green asked if they have to remove the existing signs in order to comply with the designation of "controlled access" or can they leave the existing signs and prevent any further signage, to which City Attorney Rose responded they could leave them up. G! 66 January 21, 1992 Director Green stated that he would prefer that route at this time as they are either requiring Hardee's and Braum's to remove their signs at considerable expense or let McDonald's erect their signs, as it is unfair to not allow signs under the same criteria in which the other signs were permitted, especially in view of the fact that McDonald's initial request was sandwiched in between the other two that were granted. He further apologized to Jones for this obvious mistake that the City has allowed to happen. Director Green stated that the three signs should be allowed, and if an ordinance is enacted declaring this a public access highway, then at that point discontinue signage in the area. Director Coody added that McDonald's appeal was denied unanimously by the Board of Sign Appeals, and they must have had their reasons for doing the same. Ray Jones responded stating that the Board of Sign Appeals at the time they denied his request gave the reasons as: (1) the logo signs would soon be up and he felt that he didn't need two different signs and (2) Braum's and Hardee's both had applied for permits and were permitted without ever being turned down. Therefore, they never appeared before the Board of Sign Appeals. The Board of Sign Appeals stated that they were being consistent in turning McDonald's down as they had never before ruled on the sign issue. Marion Orton, member of the Board of Sign Appeals, addressed the Board, stating that off-site signs are only permitted on commercial property and on vacant commercial property. The property designated for the McDonald's sign is not vacant because there is an auto body shop located on the site. The Board of Sign Appeals operates under State law and even though it is obvious that this is a controlled access highway, Ms. Orton requested that the Board pass an ordinance designating the by-pass as such. In this particular case, Jones is asking for something that is against the sign ordinance. With respect to the Hardee's and Braum's signs, if they were allowed because the sign permit applications were not properly completed by the applicant, the permits can be revoked as set forth in the ordinance. In closing, Orton stated that whether the signs were permitted as a result of improper information provided by the applicant or a mistake by administration, two signs are enough and there is no reason to allow additional signs. The Sign Ordinance provides for a more attractive city and the Board of Sign Appeals attempts to be fair in granting permits. Additional clarification or amendments to the Sign Ordinance or application for permit may be necessary to avoid these problems in the future. Alett Little stated that both the Hardee's and Braum's signs are located on vacant pieces of property, the McDonald's sign request is for location on property occupied by Sine's Body Shop. Sine's Body Shop does not have an on-site free standing sign. Regarding vacant property the ordinance reads, ". . . only one off-site free f 67 January 21,1992 standing sign shall be permitted on any vacant propertyof one ownership." Little explained that the Planning. Department's interpretation of this provision is that if a person owns a vacant piece of property that someone wishes to put a sign on, they can lease the property for placement of a sign, but they could not lease the property to more than one person. In conclusion, Little explained that under the Planning Department's interpretation, the McDonald's sign could be permitted if it were not for the 660 feet from the right-of-way of the controlled access highway. Director Spivey asked whether..the Braum's and•Hardee's signs were lawfully permitted since they were placed'•on`vacant property and there was no controlled access highway at that time. Little responded that the signs are closer than 660;feet to the by-pass. Director Coody asked Ms. Orton, who was instrumental in drafting the Sign. Ordinance, if in spirit she agrees:with the interpretation of the Planning Staff. Orton responded that the intent was to allow off-site signs only on vacant commercial property and only one sign per piece of property. Director Green inquired aboutrthe term "vacant lot", stating that if the property is vacant whentthe;sign:is erected, then the owner of the property is prevented from building on the property since there is a sign located on;the property. Alett Little responded that is !not" the way that. the Planning Department interprets the provision regarding vacant lots. Orton stated' that the intentof the Board of Sign Appeals is that if. the owner of the property decides;to;build,on his property, he would not be able to get a"building permit as long as the sign .exists., Therefore, itwould.be up to the owner to decide whether he wanted to dedicate theproperty to the sign or a building. Ray Jones stated that although the Sign Ordinance appears to be a specific document, he questioned the existence of a provision excluding occupied property. In addition, 'Jones disagreed with Orton's statement that the two signs should`be°left and not permit additional signs. Jones stated that he isnot requesting the permit because there are two signs out there, but rather because he requested a sign at the same time that the other two signs were requested and for whatever reason, his request was denied. As explained to Jones when his request was denied, the permits granted were done so when Freeman Wood was on vacation. In addition, Jones stated that he did go before the Board of Sign Appeals to appeal the initial ruling two years ago; however, he approached it from a different perspective, that permitting his McDonald's sign would benefit the City through tax revenues, etc. At that time, he didnot mention the Braum's and"Hardee's signs. On his second appeal to the Board of Sign Appeals two weeks ago, 68 January 21, 1992 Jones stated that he did use the basis of the two existing signs since he had been denied exactly the same type of sign request as was granted to Braum's and Hardee's. Matthew Horan, attorney from Ft. Smith representing Braum's and Hardee's, addressed the Board stating that the option previously mentioned if amortizing the Braum's and Hardee's signs removal would require compensation. The 1981 amendments to state law allows for compensation. Horan continued that once the permit was issued to Braum's, a sign specific for Fayetteville was created, and if the sign is required to be removed, the entire sign would be lost at a cost of $7,000 to $10,000, plus a twenty year contract would be broken. In the case of Hardee's, these costs would be doubled; therefore, investments of over $100,000 were made in good faith on what the City permitted them to do. Horan stated that this would be a bad precedent for the City to make. It would be a taking of property, and his clients would not be willing to voluntarily remove their signs erected two years ago at great expense with the commitment of capital and resources that was involved in the project. Horan further stated that the land owner could also claim that his property rights have been taken, the property on which the Braum's sign is located is not suitable for anything else and due to Fayetteville's zoning and use regulations, would make it impossible for the land owner to develop or use his property for anything else. Therefore, Horan concluded that this would be a total taking of property from three people. Gerald Boyd, member of the Board of Sign Appeals, stated that at the time of the first hearing held on the McDonald's sign, the Board was aware of the other signs. The Board of Sign Appeals instigated the effort to get the logo signs from the Highway Department, said request originally denied due to the speed limit, but following meetings with the Highway Department, the signs were permitted. With regard to a definition of an "on-site" sign, the ordinance specifies, ". . one that is concerning a business activity on that site. . ." Provisions for a free standing sign set out, ". . . only one on-site free standing sign shall be permitted on a lot. " and there is no provision stating that only one off-site free standing sign shall be permitted on vacant property. Boyd further reported that the County Assessor's Office indicated that the triangular piece of property that holds the Braum's sign is vacant, and if not for the 660 feet provision, would be a legal one off-site sign on a vacant piece of property. The property on which McDonald's proposes placing their sign is not on a vacant piece of property, nor is the land vacant where Hardee's sign is located. Therefore, the Board of Sign Appeals made a mistake in permitting the Hardee's sign, the application, as Boyd recalls, stated that the property was owned by the applicant. According to +.i January 21, 1992 tax records, this is untrue as the property is owned by a company that operates out of Lebanon, Missouri. Under the Sign Ordinance, the Hardee's sign can be revoked at any time. Kerri Breslow, area supervisor for McDonald's, addressed the Board stating that McDonald's request came after Hardee's and prior to Braum's and they don't have a sign. It is her understanding that Highway 71 has not been approved as an actual controlled highway; therefore, McDonald's permit was probably .legal at the time they applied 21 years ago. She requested that the,Board correct a wrong and allow McDonald's the same that they have allowed Hardee's and Braum's to have. The Board can limit the number of signs by now passing an ordinance making Highway 71 a controlled highway. Director Coody asked Breslow if the sign thatfMcDonald's applied for 21 years ago was to be in the same location as the current sign request, to which she responded that it was on the same exact location. In addition,: she stated -that ..the property is a triangular piece of land that is not usable for anything but signs. Director Coody stated that they would be waiving their Sign Ordinance to allow McDonald's to erect a sign there regardless of whether it is usable or. not: ; ; 4 Breslow responded that her understanding of Little's interpretation of the Sign Ordinance is that there is one pole sign allowed per commercial property, and there is no•pole sign'on the Sine's piece of property. Therefore, it,•appears to be"either the interpretation of the City or the intent of the' Planning Department that is in question. • Director Coody stated that he has a problem with allowing a grandfather clause on a sign that has not yet been erected, the same would subvert the City's Sign Ordinance to achieve McDonald's goal. Although he understands McDonald's plight, Coody stated that the City needs to look out•for the overall City of Fayetteville, instead of for just one individual business. Coffee Miklos, citizen of Fayetteville, addressed the Board urging them to immediately designate the Fulbright Expressway as a controlled access highway and then act on the same. If the City doesn't do this, Miklos stated that he can see individuals who have nothing whatsoever to do with the community of Fayetteville, buying small slices of property for signage, and soon they will be covered with signs.. Highway 71 is littered with signs from Bentonville south until you reach Fayetteville, which is a "breath of fresh air." Miklos stated that he works for a business in Fayetteville that thrives on advertising, and he hates to see one advertiser get an advantage over another due to some loop hole in the law. Director Coody asked City Attorney Rose if the Board desired to proceed to designate Highway 71 as a controlled access highway, 69 70 January 21, 1992 could this ordinance be written after the Board made the decision or does the ordinance have to be in front of them first, to which City Attorney Rose responded that an ordinance is required to go through three readings, and there is no way to short form the procedure. Rick Slaber, Supervisor for Hardee's Food Systems in the State of Arkansas and Eastern Oklahoma, addressed the Board stating that Hardee's has done business in Fayetteville in excess of 25 years, and they feel that during that period of time, they have met codes and restrictions. This particular site of Hardee's in Fayetteville was the first restaurant in that area, a significant capital investment and their ability to obtain the sign in question was felt to be necessary for Hardee's success. Slaber stated that he has had close exposure to the logo signs referred to, and they are not without cost to businesses. He further stated that he can't speak to the legalese of Hardee's application, but it was submitted in good faith, and Hardee's shouldn't be penalized for their initial capital investment of $10,000 in addition to the lease on the property which is of no use to Hardee's without the sign. Slaber stated that he can understand the designation of Highway 71 as a controlled access highway and keep other signs from going up; however, a grandfather clause on existing signs would be the appropriate thing to do, and further Hardee's has no problem with McDonald's having a sign. Steve Ward, Fayetteville Chamber of Commerce, addressed the Board stating City government needs to work to resolve, in a positive manner, the business concern before them. Instead of addressing the issue of the McDonald's request, the Board is regressing to "taking down" and "taking away" from the business community which already exists. Director Green stated that it should be obvious to the Board how to proceed on this issue. If they act to clear out the existing signs, this matter will be before them again either as a settlement out of court or to approve payment for damages. Green further stated that he believes these businesses acted in good faith regarding their sign requests, and the City, for whatever reason, acted in good faith in allowing the permits. Therefore, the businesses should not be penalized for the existing signs. Green suggested that the Board needs to correct the misinterpretations in the language for the designated controlled access highway and immediately pursue an ordinance designating Highway 71 as a controlled access highway in order to prevent future signs. In addition, Green stated that since McDonald's applied for their permit in the same way and same time as Hardee's and Braum's, it would be unfair for the Board to deny them the same provision. Green, seconded by Blackston, made a motion to authorize McDonald's Restaurant to locate an off-site directional sign adjacent to the Fulbright Expressway, and further to pursue an ordinance January 21, 1992. designating Fulbright Expressway as a controlled access highway within the Fayetteville parameters. Director Coody stated that he would rather proceed with Marion Orton's interpretation of the Sign Ordinance as she has much more insight and experience with the ordinance than the resident City, Planning Staff. Coody questioned the fairness of waiving the Sign Ordinance for McDonald's, and• then not waive it every time they receive a similar request. -k However, to do so would be throwing the Sign Ordinance out the window. Director Spivey stated that•the.Board of Sign Appeals made the correct decision in this case; however, the problem lies with the inconsistency of granting the Braum's and Hardee's sign permits and not McDonald's. 'If they turn around immediately and designate Highway 71 a controlled access highway, the City wouldn't be throwing the Sign Ordinance out the window. However, Spivey suggested that they do need clarification as to what is vacant and what is not. Director Nash stated that the'Board of Sign Appeals is doing their job, based on the current, members' years in'service, they know the ordinance backward and forward and have interpreted it correctly. The Board of Director's duty is'to make a consistent decision; therefore, in this case, she would rather let McDonald's have their sign since it was the City's mistake and not McDonald's, even though she agrees with the ruling of the Board of Sign Appeals. Gerald Boyd addressed the Board with regard to the consistency factor stating that there are about five other food outlets in the same area, direct competitors of those businesses in question, who may very well have applied for a sign permit when Freeman was present, and were denied their requests. Ray Jones asked Boyd if any of those other businesses he is referring to apply to the Board of Sign Appeals, to which Boyd responded that McDonald's is the only one as the only people who apply to the Board of Sign Appeals are those denied. Jones further stated that this fact should settle the issue whether there is anyone else who may have a grievance. Director Coody stated his concern that once businesses see a new sign erected in this area, there will be a lot of other businesses applying for permits quicker than the City Board can get the controlled access highway designation underway. Coody stated that he is bothered by the way the City Board bases their judgments on interpretations, suggesting that the new Planning Director should call on the experienced Board members and base her interpretations on the groups' that have a long history. Alett Little responded stating that this is the same interpretation as the former Planning Administration. Little further stated that 71 72 January 21, 1992 the Planning Department denied McDonald's request because it was not within 660 feet of a controlled access highway. Director Blackston asked if Highway 71 is designated as controlled access then wouldn't all three signs be in violation. Little responded that is correct. Director Blackston stated there comes a time when you need to use common sense and be reasonable and this is one of those cases. He further stated that if these sign permit requests had happened in any other sequence, he would not be arguing to allow McDonald's sign, but rather would choose to have no signs along Highway 71. Whether right or wrong, in this particular case it would be unjust to deny Jones request, sandwiched in between the other two requests that were approved. Director Nash reported Staff recommendations to permit the off-site sign for McDonald's as requested and designate Fulbright Expressway as a controlled access highway. The Board has made clear and stated several times their desire to do the designations, and she can't imagine many sign requests coming in based on that theory. Mayor Vorsanger called for a vote on Director Green's motion. Upon roll call, the motion passed by a vote of 5 to 2, with Directors Coody and Henry voting in the minority. SEWER BACK-UP CLAIM SETTLEMENT Mayor Vorsanger introduced a resolution authorising the amount to reimburse Edward Knight of 734 E. Lakeside for damages to his home caused by a sewer back-up on December 9, 1991. City Manager Linebaugh explained that Knight has submitted total expenses of $2,934.25, the cleaning of flooring and furniture totalled $1,200 and Knight is claiming an additional $1,734 for replacement of carpet and personal items. The City's policy has been to pay a maximum of $2,500 per incident, per dwelling unit for the costs associated with the sewer claim, excluding labor. This is the second back-up that Knight has incurred at his residence, Staff believes the back-ups are a result of blockage due to grease at the intersection of East Lakeside and Mission Boulevard. The City Board has examined the property as well as the manholes where the problem occurred. Linebaugh reported that Staff is requesting Board direction in settling this claim. Edward Knight addressed the Board thanking them for inspecting his property damage. Knight stated that his case is different than any others that have come before the Board for the following reasons: 1) Don Cochran, Sewer Maintenance Supervisor, indicated that Knight's situation was the worst occurrence he had ever January 21, 1992 been witness to, with 3 to 4 inches of raw sewage in his house. 2) This was the second sewer backup that Knight incurred and there was quite a difference between the two. Following the second occurrence, Don Cochran followed up immediately, assessed damages, called cleanup crews, was empathetic, acted concerned, and put`Knight at ease with his handling of the situation. 'However, following the first backup, Knight received no information from the City as to procedure for cleanup, was not warned of any potential health hazards,.and in general, felt like he was left out in the cold.In the first incident, Knight handled the cleanup and probably saved the City $800 to $900. =.t! 3) The City crew working on,.the'6 inch grease blockage in the sewer line could,havetprevented or reduced the amount of sewage that escaped into Knights house and damages .incurred therefrom, due to.). this being the second occurrence at the•same location.. .� 3 4) There were a number of items damaged that didn't show up on the initial report, including 4-5 suitcases which were ruined. In once sense, Knight stated that he is asking the City Board to set a precedent in exceeding the maximum claim; however, this particular case has different circumstances than any before or maybe any yet to come. Even though the City has agreed to install a backflow preventer, which Knight is grateful for, this has not yet been accomplished. Since the cost for installing a back flow preventer is fairly minor compared to damages that might have to be paid to individual residents. Director Coody stated that he empathizes with Knight's situation; however, there has been a case recently where the $2,500 limit was exceeded by $1,000 to $1,200 and this claim was turned down. Coody stated that he doesn't believe they can refuse one claim exceeding $2,500 and then turn around to allow another. Kevin Crosson, Director of Public Works, explained that basically he sees no difference in terms of the backups, both were grease blockages due to residential usage of sewer systems for grease disposal. In addition, Crosson stated that he doesn't understand the significance or relevance of frequency in terms of how the Board should react to Knight's claim. The policy is to install the back flow preventers when a pattern of overflow is detected, which has been established in this case. Crosson further stated that he was involved in the settlement in both instances and to his knowledge, both cases were treated as equally and fairly as possible.' Knight's recollection of the first incident is possibly 7: 74 January 21, 1992 somewhat distorted due to his hostile attitude about it. Crosson stated that the City's position is that this claim is no different than the first claim. Edward Knight responded that in the first incident, nobody came to him and told him that he shouldn't involve himself in the cleanup due to health risks. Knight asked Kevin Crosson if anything could have been done to either prevent or reduce his damages in the second incident. Crosson responded that the City did everything they could to alleviate any situation in the future. The lines in this particular neighborhood were being flushed out on a monthly basis and they simply don't have a crystal ball telling them when somebody's house is going to overflow. Knight stated that the crew on the site advised him that they could have unleashed the clean-out in his back yard to reduce the backup. Director Spivey stated he believes the frequency of twice in nine months has a bearing because when an incident like this occurs the first time, the City should be installing the back flow preventers at that point. The City can not prevent neighbors from putting grease in the lines, but had they installed the back flow preventer after the first occurrence, there is a good possibility that this wouldn't have occurred the second time. In addition, Spivey pointed out that Fayetteville is the only City in Arkansas that pays any damages in such a case. Kevin Crosson stated that they have somewhere between 20 and 40 different overflows into homes per year, and they could install the back flow preventers on each occurrence. Records reflect that Knight's case is the only repeat occurrence, and normal procedure is to install the back flow preventers following the second occurrence. Director Green stated that he can understand how traumatic a residential sewer backup could be; however, there are several issues involved here that are broader than this one particular incident. Green explained that the back flow valve that Crosson has referred to is certainly not going to guarantee that the backup will not happen again, as this types of valve is notorious for not sealing reliably whenever a backup occurs. Director Green continued stating that the biggest issue is that citizens don't realize what is happening to the City sewer distribution system when they pour grease down their drains, and an educational program is needed to correct this problem in the long run. According to the plumbing codes, this type of action is illegal. The proper procedure is to collect grease in a separate can or container and properly dispose through their garbage or sanitary landfill. As far as the short range, the back flow valve January 21, 1992 is certainly no guarantee, but it issome assurance and should help the situation. Director Green'stated that hekrdoesn't believe they should exceed the $2,500 policy for cleanup due to the fact that it really isn't the City's;,fault, and they' can't assume all responsibility for these .typeof occurrences. r a. - Green, seconded by Henry made'a motion to grant Knight the $2,500 for cleanup, position the backflow preventerain Knight's line, and start an educational campaign forcitizens• explaining what is happening to the City sewer distribution. system when they pour grease down their drains. { ; crZ _ Crosson concurred with Director `Green regarding the need for an educational program, stating that the same will be implemented. Edward Knight stated that he wasn't`aware that the back flow valve would not necessarily prevent reoccurrence of sewer backup. Knight further stated that the only solution he sees•:is to move, since he has no protection to prevent'this from happening again. • ,a Director Green responded that-the•City simply cannot guarantee that a backup will not occur following•. installation of a back flow valve, but the probability is greatly improved that it won't occur with the valve. If debris'enters the valve, this will prevent it from sealing off completely.',, Edward Knight stated that both events occurred when City crew was removing grease blockages • on his street. Knight stated that he is simply questioning whetherthe City could have prevented the second backup and requesting that they do whatever it.takes to see that it doesn't -happen a third time. Knight further requested that he be notified when the City will be working on his neighborhood sewer lines because he can stop the back up from coming into his house by diverting backup into his back yard. City Manager Linebaugh reiterated the point that when the sewer line is blocked with grease, Knight'shouse is already being flooded,crews are simply releasing the blockage to move further down the main and at that point do not flow back into his lot. The problem exists as a .result of Knight's lines being lower than those of the City's. Linebaugh further reiterated Kevin Crosson's statement that most cities donotcompensate to the extent that Fayetteville does, due to the risks involved with entering private property and installing back flow valves in private sewer lines, therefore taking responsibility for future occurrences. Director Nash stated that the City does own the sewer and is partially responsible. Crosson responded that the City does not own service lines to the houses. ' • Director Nash stated her concern that she hears the City saying over and over that it's not their fault, she's not concerned about rt January 21, 1992 whose fault it is, only that the citizens be treated fairly. Nash continued suggesting that they stick with the $2,500 limit; however, she stated that if Knight has a third occurrence and appears before the Board again, he will get a lot more attention. Edward Knight stated that if the City is going to make the comparison that there are towns in Arkansas that do not allow any compensation for residential sewer backup; however, as long as this comparison is being made, why not make comparisons to those cities who perhaps have more generous policies. City Manager Linebaugh responded that, in their survey, there was not one City in the State of Arkansas that had a more generous policy. Mayor Vorsanger called for a vote on Director Green's motion. Upon roll call, the motion passed by a vote of 7 to 0. RESOLUTION 14-92 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOR OTHER BUSINESS NOMINATING COMMITTEE REPORT Director Shell Spivey stated that the Nominating Committee met on January 20 and reported the following nominations: 1) Clete Brewer and William Elder were nominated to fill two positions on the Northwest Arkansas Regional Planning Commission. 2) One position on the Parks and Recreation Advisory Board for which David McConnell was nominated. 3) The reappointment of Janet Richards to the Fayetteville Housing Authority Board of Commissioners was reaffirmed. Spivey, seconded by Green, made a motion to approve the nominations. Upon roll call, the nominations were approved by a vote of 7 to 0. BOARD MEETING City Manager Linebaugh reported that the next regular Board meeting would be held at Leverett School commencing at 7:00 with the half- hour public meeting prior to the regular Board meeting at 7:30. Director Nash stated that Scout Leader Jan Paul has requested that her Senior Brownie Troop 147 at Leverett School present the colors January 21, 1992 ceremony, lead the Board of Directors in the Pledge of Allegiance, and sing a song at the beginning of the meeting. SCHOOL TAX LAWSUIT' City Manager Linebaugh additionally, reported that the school tax lawsuit would be heard on January 23 and 24. a_ _ .. Mayor Vorsanger inquired as to the issuance of subpoenas and when individuals will know whether they have to appear, to which City Attorney Rose responded that they will:know when they receive the subpoena. Rose reported that:to his knowledge, Arvest's attorney has no intention of subpoenaing any ofthe'Board Directors. GARLAND STREET PROPERTY LAWSUIT Director Ann Henry stated that she is surethat a lawsuit has been or will be filed over the Garland Street property. It is her opinion that the City will pay damages in this lawsuit and not have the land. Therefore, Henry proposed that the Board of Directors rezone the two lots at the corner of North and Garland and let the commercial price be paid"by the owner and let that override the cost and make the cost of the other three lots affordable to the City. Thereafter, Henry suggested that the City make an offer for the remaining three lots to be used as green space. Henry stated that this is a political compromise that would make everyone happy. If you can't have the whole thing,then it's better to at least have the abutting property and end up having something to show for the litigation other than lawyers' fees. Henry further stated that there has been a lot of controversy for over two years about this, and there are considerable items in the record to make the opponents in a very good position to get a fair sum of damages. The original objection to buying all of this property for the park was affordability as opposed to not wanting the land. Director Henry requested that the other Directors consider her suggestion, which would have to be a reasonable price to the City and would mean that all directors would have to change their positions in some way. Director Coody commended Director Henry for her willingness to compromise, further asking if this would still allow for the restaurant and bar to be built on the corner of the property as is the intent. Director Henry responded that there would have to be a rezoning and letting the commercial underwrite the cost for the rest of it. When you look at how a lawsuit would proceed, they would be in a good position to defend the City if all of the lots were zoned residential. Director Coody asked City Attorney Rose if he knew whether a lawsuit had been filed. Rose responded that the last he heard was 78 January 21, 1992 that a lawsuit had not been filed; however Pete Estes, represents the Parsons or Fuzzy's Restaurant. Director Henry reported that Estes stated that he represented the Parsons. Director Henry stated that she had not spoken with Mrs. Parsons. She only presumes that when you have land for sale, you would accept an offer. Henry stated that she hopes the relations with the Mrs. Parsons and the City have not deteriorated to the point that she would not even entertain an offer. Mayor Vorsanger asked Director Henry to explore her proposal further for the Board, to which Henry stated that she does not wish to explore anything with anybody if she cannot commit the Board. A compromise is just that - everybody has to change their position somewhat, and they will take flack from everybody because it is not a perfect answer. Director Henry stated that she doesn't perceive herself to be in a position to negotiate, this would be left to City Attorney Rose. City Attorney Rose responded to a question by stating that Fuzzy's cannot sue for inverse condemnation on property he does not own. Director Nash asked if there was anyone on City Staff who can do appraisals since there was such a range on the appraisals presented, to which Director Henry stated that there were sufficient appraisals in the previous board informational packet. City Attorney Rose stated that he knows of no one on Staff who is accredited to do appraisals. - Mayor Vorsanger requested that City Attorney Rose check with each Director to see if they are willing to change direction, and thereafter further look into the compromise suggestion. Director Henry stated that she would rather hear discussion among the Directors at this meeting as to whether everyone is willing to accept the compromise. Director Coody suggested that they wait until the next meeting at Leverett School and inquire as to the school and neighborhood's feelings regarding the trade-off of some green space along with the bar at the end of the block. If the school and neighborhood are willing to make this compromise, then he would have no trouble changing his position on the issue. Director Nash reiterated that new appraisals may be warranted, if they end up buying the remainder of the land to use as green space, the cost would be a significant factor. January 21, 1992 City Attorney Rose confirmed that he.is to gather all appraisals that have been done and if there are anyothers that need to be done, to attempt to have those made. Director Coody suggested that. City 'Attorney Rose check with the real estate consultants. i Director Green stated hisconcern.' that' they are "beating a dead horse." There are a couple issues thatican be separated out: Nara 1) Is the 3/41_.majority .vote 'required to create this ordinance. If`a simple majority is required, then it has already been rezoned, if..a 3/4 majority vote is required, then and only then is there justification for a claim for inverse condemnation." 2) Damages or inverse condemnation claims can not happen until the Board either kills the'ordinance or the Board refuses to rezone the property to its best use. City Attorney Rose responded that he can not guarantee at this time that a cause of action could not be _stated for inverse condemnation. Even though it is conceivable, Rose stated that he would argue that an inversecondemnation claim could not be made. • ITEM "E" Marty Newmark addressed the Board with respect to Item "E" which was removed from the Consent Agenda, regarding a resolution approving a modification to the architectural contract with Newton Hailey & Associates changing the location of the work to be performed on the PEG Television facility from the Ozark Mountain Sports Building to the building at 101 W. Rock Street. Newmark further stated that this move is premature because it has not been determined who will be the cable access provider, even though there is money earmarked for construction and equipment purchases. However, in September or October 1991, the Production Manager of Fayetteville Open Channel David Lune was asked by then President of FOC Marion Orton, to be on the construction committee. Newmark reported that when David Lune consulted with an engineer at R&T Engineering in Springfield, Missouri and a couple other professionals regarding the plans, hewas advised that this was not a good floor plan. Lune has continuously been refused a meeting with the architect and presumably dropped from the committee without notice. Newmark continued that Fayetteville Open Channel has faithfully served the citizens of Fayetteville for twelve years and they have been cut out of the loop of any decision making process on the PEG Channel, proposed studio and facilities at Rock Street. The sum of $83,000(+) has already been spent on the former Ozark Mountain so January 21, 1992 Sports Building, the building is worthless in regards to a studio and the only way that money can be recouped is if it is turned into a parking lot with money recouped from the Walton Arts Center Project or if the property is sold. He stated his concern that by rushing into the contract without receiving input from Fayetteville Open Channel, another mistake will be made. Newmark suggested that the Board wait to see who will be the new access cable provider and hear the advice of people involved in the industry who are familiar with a good floor plan of a t.v. studio and facilities. Newmark reported that he has sent a letter to Shea Crain with a copy to the Director of the Cable Board, setting out the initial problems with the contract that was submitted with the intent that changes could be made to have a workable contract, to which a response has ever been received. They have no idea what part of their contract was objectionable and were mistakenly under the impression that they had until the end of March to change, modify or correct those objectionable items in the contract. In conclusion, Newmark stated that a valuable source of information is being excluded that could be used for making sound decisions; therefore, he suggested that Item "E" should be postponed. Mayor Vorsanger stated that he was under the impression that the City was merely changing the contract of the architect employed to remodel the Ozark Mountain Sports Building, who is now looking at the Rock Street location. As far as any plans for that building, Vorsanger stated that has not been decided. Newmark stated that he has a diagram submitted by the Cable Administrator, to which Mayor Vorsanger responded that he was under the impression that the diagram was simply a proposal. City Manager Linebaugh stated that the talented Committee that is looking at the building and has submitted plans was formed long ago consisting of Marion Orton, FOC President, Roger Haney, FOC Treasurer, Bob McKinney, FOC Board member, and Kathryn Shurlds, former General Manager of FOC. The Cable Board decided that they would follow the professional selection policy of the City, whereby the City requests proposals and presents information to all concerned parties. The reason for proceeding with the building is due to at least two other entities besides Public Access that will be using the building, the Governmental and Educational Access Channels which are also involved in the PEG process. Newmark stated that the Educational Access will not be participating in that building as far as the main part of their operation, but rather will be handled at Continuing Ed. In reviewing the floor plan, there is approximately 25% less space in the proposed floor plan to house not only the Access, but also the Government part of PEG. He suggested that they should take another look at this option before spending an additional $129,000. January 21, 1992 Mayor Vorsanger responded that the,project has not yet been bid, and he isn't sure they will.spend another $129,000. . S a S Director Green stated that the;first step is merely to approve the architectural contract, followed by4looking at programming and establishing the exact needs. The actual amount for this step will not exceed $11,000. If through the planning process, it is decided that the Ozark Sports Building will not.work, then the Board will seek another solution before proceeding to spend $130,000. The building currently being used was never'designed for a studio and there is currently a lot of wasted space in the existing building. Newmark responded that he understands Director Green's thinking; however, he questioned whether the architects who have no television studio experience will be able to determine if the building is going to work. He suggested that they have people, other than the architects, who know the business brought in to look at the plans before proceeding with the project. Director Spivey asked if the committee previously mentioned will be involved and have input with the architect, to which City Manager Linebaugh responded that they will be involved. Shea Crain stated that the members of the Cable Board are experts, have been working on thisfor six months, and should be allowed to handle this matter. The committee was formed at the time the Open Channel was being negotiated as the Public Access provider, which didn't work out; therefore, they are following the special selection policy. It is not appropriate to ask the FOC members to serve on this committee when they don't know who will be the public and government access provider for the City. Crain stated the • members of the Cable Board are Hoyt Purvis, initial President of the Cable Board in Austin, Texas formed in the early 1980's, Don DeWeese with the schools, Woody Charlton, engineer at the University, Butch eager, operator of a satellite installation service, and Buddy Chaddick, Fayetteville attorney. Newmark stated that the Board of Directors receive their information in some cases at the last minute and may not have the opportunity to thoroughly examine the ins and outs of something. He further stated that during two Cable Board meetings that he attended, the Cable Board is submitted a plan or proposal, they take 15-20 minutes to review the same, and then proceed to make a decision. The Cable Board is a volunteer organization and are not spending the time to look at aspects that need attention. Director Spivey responded that the Cable Board is in charge of this project, and he doesn't happen to agree with some of their decisions. The Cable Board must be allowed to do their job. Mayor Vorsanger apologized to Newmark that he didn't ask for public input when Item "E" was removed from the Agenda. 81 WIZ January 21, 1992 ADJOURNMENT The meeting adjourned at 11:13. 1