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HomeMy WebLinkAbout1994-05-03 Minutes103 MINUTES OP A MEETING OF THE CITY COUNCIL • A meeting of.the,Fayetteville City,:Council:was heldhon Tuesday, May: 3, 1994, at 6:30 p.m. in the Council Room of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Len Edens, Joe,Box,. Heather.. Daniel „Stephen Miller, ,Kit Williams,.Conrad.Odom;;Woody Bassett, and4Fred Vorsanger;.City Attorney:Jerry Rose;. City Clerk Sherry Thomas; City Treasurer Glyndon Bunton; Administrative Services Director Ben Mayes; Associate Planner.Tim Conklin; Public Works Director Kevin Crosson; members of staff, press, and audience. CALL TO ORDER Mayor Hanna called the ,meeting to order with eight aldermen present. TEACHERS APPRECIATION PROCLAMATION Mayor Hanna read a proclamation declaring May 3, 1994, as Teachers Appreciation Day in Fayetteville. He presented the proclamation to three teachers representing the elementary, junior high, and high schools in Fayetteville. COMMUNITY SERVICE AWARD PRESENTATION Mayor Hanna presented the Community Service Award for May to John. Colbert, the Jefferson Elementary School Principal. Mr. Colbert taught at Bates Elementary for 8 years, was the principle•at Howard Elementary in Fort Smith for 3 years, andthen moved back to Fayetteville in his -current position.. He has made Jefferson one of the best schools in the area, and he deserves..the respect., and. gratitude of the entire'City. , INCINERATOR LAWSUIT • Kitty Gay, Niblock Law Firm, addressed the Council, and stated the supreme court sent the case back to the lower court on procedural grounds, Rule 54B of the Arkansas Rules of Civil Procedure. The City now has to make a decision about what to do next. A petition for rehearing could be filed if done so within 17 days. However, she sees no reason to do this. Because of this 17 day rule, nothing can be done on the case until the time for appeal is over. Gay stated the City has several options. The City can go forward with the case and litigate the third party complaints. She does not feel this would be a. good option because it is hard to argue that these third parties gave bad advice when the lower court ruled in the City's favor, which meant their advice was valid. Next, the City could go back to court and take the non -suits or ask Judge Adams to revise his order and stated why the City cannot pursue the May 3, 1994 third party cases at this time. The last option Gay stated the City has is to transfer the cases to circuit court. Alderman Williams asked if these were transferred to circuit court, he asked if the City would have to go on and litigate the cases. Gay stated she feels the circuit court judge would see the reasons for not proceeding with the cases at this time. She stated if the City elects to non -suit and dismiss the cases without prejudice, the third party suits can be refiled if done so within 1 year. Alderman Bassett stated two weeks ago he wanted to take non -suits, and now, this is the option before the Council. He asked why Gay was recommending this now. Alderman Williams stated he feels there are two good options: to take the non -suits and to ask Judge Adams to revise his order. He prefers asking the judge to revise his order. Gay stated Judge Adams told her he would add the necessary language to his order because he intended for the case to be appealable. She stated this is her preference of the options the City has available. Alderman Bassett stated in order to ask the supreme court to fast track this case, a hardship and injustice has to be shown. He asked if this would be the $3,000 per day the citizens are having to pay. Gay stated that would not be the hardship in this case. The hardship would be that it is impossible to go to court and argue a malpractice case against an attorney when the lower court has rule in your favor. She stated the hardship would be this case is in an impossible posture. She stated she would file a motion to expedite the case because of the associated costs. Alderman Bassett asked what would happen if the supreme court does not want to decide this case. If the City decides on going with the revised order option, is there any assurance the supreme court will not kick the case back to the lower court again? Gay stated there were no assurances. Alderman Bassett asked if the City took the non -suits, could be case be kicked back. Gay stated she does not see how it could be. The non -suits would be the surest route to getting the appeal resolved. Alderman Odom asked why this should be circumvented. Gay stated the supreme court does not like to hear cases twice. t May 3, 1994 Alderman.Bassett stated he does not see the down side to taking the non -suits. If the City loses in the supreme court, the third party cases will be refiled. 1 Walter Niblock stated he feels the best legal option would be to get the judge to revise his order. But, he cannot give the City any guarantees the Supreme court would not send the case back again. Alderman Vorsanger stated he does not understand the whole thing. The City won; and the other side appealed. He feels they have more problems to overcome than the City. Niblock stated it is not costing them $3,000 per day. • Alderman Bassett stated the plaintiffs are not going to quit with this case. They have nothing to lose. In addition, their lawyers stand to make millions of dollars if they win. ' Alderman Vorsanger stated that has been the problem with this case, the lawyers are making money, and the citizens are losing money. Niblock stated this is the reason to get a solid appeal. He stated McDermott, Will & Emery were hired to win the case so the City could pay its bond obligations. Alderman Williams stated in earlier discussions, there was a federal court case that. might present some problems if the City, were to take nonsuits,on'the.third party cases. Is this still a problem? , Gay stated she has researched'thisicase.•,There was..a federal case and a state case that had overlapping issues.rThe federal case was dismissed for lack of jurisdiction. This is an exception in the procedural rules, ,so she does not feeithere„will be any problem with the federal caseandfiling the non -suits.• f' 4! i 4 Alderman Bassett asked if the City non -suits the third parties, will we still have to get a revised order from the lower court. Gay stated she feels it would be best to get a revised order as well. If the City and the Authority ask for non -suits, they should also ask the court to issue a revised order reiterating the old order but adding the third party complaints have been dismissed. Alderman Bassett asked about filing a motion to expedite, and he stated he saw no reason for the City to have to write another brief or argue the case orally before the supreme court. Gay stated she was in favor of filing the motion•to expedite; However, she would like to argue the case before the supreme court May 3, 1994 and have a chance to answer any quesitons the justices may have since this has never been done. Alderman Vorsanger asked what would happen if the City defaulted on the bonds, and the insurance company had to pay them off. He stated the City's credit rating would go down, but he felt it was already in jeopardy because of all of this legal action. Mayor Hanna asked if the City had the authority to do that since the money is in the hands of the trustee. Gay stated she does not feel the City could do this since the trustee holds the purse strings. Alderman Williams asked what Gay will say if the justices ask about re -filing the third party claims if the City loses the appeal. Gay stated she prefers to play it straight with the supreme court on these third party claims, and she would tell them she could not do anything until she had some direction from her clients. Alderman Miller stated he feels there was bad advice given to the City, and he does not want to lose the City's right to sue these people. Gay stated there cases have never There might be a They will refile with this issue. choice. are no guarantees in this business, but these been dismissed, so that would not be an issue. problem with the location of refiling the cases. the cases in Pulaski County and avoid any risk She stated there are risks associated with any Mayor Hanna asked for the City Attorney's recommendation. Rose stated it looks like the supreme court is begging the City to go back to Judge Adams and get a revised order. He stated this is a costly issue, but his best advice would be the voluntary non - suits because that elimiantes any possibility of delay. Bassett, seconded by Odom, made a motion to instruct the City's legal counsel to approach the lower court as soon as possible and get a revised order back to the Arkansas Supreme Court and take whatever action necessary to non -suit the third party cases, file a motion to expedite, to do anything possible to get this case back before the supreme court, to waive rebriefing and oral arguments unless they believe they need to do so. Upon roll call, the motion passed by a vote of 8 to 0. Joe Robson stated citizens input should have been asked for before this vote was taken. He feels the City should take the position of the rate payers which is the citizens are the only innocent parties May 3, 1994 in;.this-case. He stated there was over $7 million spent on the incinerator project without there being a location and without having obtained the necessary permits. He stated the trustees allowed this to happen, and they are .the ones at fault in this suit. He stated, in addition, A.G. Edwards had a duty not to market the bonds until the permits had been approved. They also had a duty to be sure the contracts were valid and enforceable. He stated the constitution of this state states cities shall not ever assume the debt obligations of any other person or corporation. He stated the City has done this by assuming the debt of the Northwest Arkansas Resource Recovery Authority. The NWARRA is the entity that issued the bonds, not the City. He stated there was a conflict of interest on the part of former City Attorney Jim McCord because he represented both the City and the Authority. He stated the City sued the Rose Law Firm because they should have known of the uncertainty about the site, permits, and the waste supply agreement being unforceable. Mayor Hanna stated when he and this Council took office,they were faced with the mounting debt of the incinerator disengagement case. The City's attorneys have advised them how best to proceed, and that is what they have done. He stated Robson has made some good points, but the Council is trying to get the case solved as quickly as possible and save the taxpayers the most amount of money.. OLD. BUSINESS Mayor. Hanna introduced consideration of items that have been brought before the Council but were tabled or no decision made to allow further information to be presented. A: CONDEMNATION: An ordinance .authorising condemnation proceedings to acquire permanent and temporary easements on Tract No. 8-119, the Guisinger/Sager Property, for the 36H Water Line project. The,City''s present offer is $9,300 for the easements. Mr. Sager's counter-offer is $50,000, or to restrict the easement to one water line only. This ordinance was left on its first reading at the April 19, 1994 Council meeting. City Attorney Rose stated he feels they have reached a settlement in this case, so he stated this item needs to be tabled. MILLAGE TAX ELECTION: An ordinance calling and setting a date for a Special Election on the question of levying a tax on real and personal property within the City of Fayetteville and fixing the rate thereof at 1.0 mills to bededicated100% for use in; the .Parks E ,Recreation System in the City of Fayetteville.' ;, i f INS May 3, 1994 Alderman Edens stated 1.0 mills would bring in about $285,000. He has received no calls either for or against this issue. This millage would go 100% to parks and recreation for the purchase of land, maintenance of parks, and the purchase of capital assets for the parks. Mayor Hanna stated he appreciates what Alderman Edens is trying to do, especially with the proposed sports complex. He stated he has had lots of comments from people wanting more parks and ballfields. He stated there are a couple of possibilities for funding without going the millage route since the City dropped its millage when the sales tax was revoted last year. One option would be to get Advertising & Promotion funds to help with the sports complex. The City has some other immediate needs such as street projects, acquiring right of way for the Highway 265 project, and the extension of Joyce Street to Johnson Road or to Gregg to relieve congestion around the mall. He stated citizens might prefer to have a temporary sales tax to fund the parks and these other projects. He asked citizens to contact their aldermen or himself and tell them their preferences. Alderman Edens stated the City owns land, but it needs money to pay for ballfields. The need for additional ballfields and youth activities was brought up again at the Juvenile Concerns Committee meeting. Alderman Miller stated at the Parks & Recreation Advisory Board meeting, people were concerned about how far beind the City is getting in meeting ballfield needs. He feels property taxes treat people more evenly than a sales tax. He would support a sales tax if food and drugs could be exempted. Alderman Williams stated he does not feel it would be a good time to ask for another sales tax. He also does not want to put back on another millage unless the voters want to do so. Alderman Bassett stated he too was reluctant to reinstate a millage tax. He believes the A&P should commit money to public recreational facilities. There is almost $1 million in reserves of A&P money. He plans to bring up this request at the A&P meeting next week. He feels people should know the A&P money comes from the HMR tax and is paid by people who live here as well as tourists. He stated his third preference would be to see the City discuss the option of another city sales tax, and the proceeds to be spent on capital improvements and special projects. The people could vote on this. He stated the tax could be limited to 2 years, and this might help the City avoid a water & sewer bond issue. The sales tax would raise about $13 to $14 million in two years. Alderman Daniel stated she understood some of the developers favor a millage tax if it would ease their greenspace fees. CONSENT AGENDA• Mayor Hanna 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 a "Consent Agenda": • A. Minutes of the April 19, 1994 regular and April 20, 1994 special City Council meetings. B. A resolution approving a budget adjustment in the amount of $50,000 to •recognize a $25,000 grant from the Arkansas Department of Parks & Tourism and for $25,000 matching funds from the City for the development of Lake Fayetteville South. These .funds will be used to build a large pavilion, a sand volleyball court, and picnic facilities. RESOLUTION 52-94 AS RECORDED IN THE CITY CLERK'S OFFICE C. A resolution accepting a $24,500 SBA Grant to plant or replace trees along North College, and a budget adjustment setting up the related revenue and expenditure accounts. RESOLUTION 53-94. AS RECORDED IN THE CITY CLERK'S OFFICE A resolution authorizing the execution of a General Utility Easement granting a 20 foot wide easement across the west portion of City owned Lot 18 of the Industrial Park South for the installation and maintenance of general utilities. RESOLUTION 54-94 AS RECORDED IN THE CITY CLERK'S OFFICE Miller, seconded by Odom, made a motion to approve the Consent Agenda. Upon roll call, the motion passed by a vote of 8 to 0. REZONE R93-35 Mayor Hanna introduced consideration of an ordinance rezoning 8.6 acres located north of Wedington and west of Shiloh from R-2, Medium Density Residential, to C-2, Thoroughfare Commercial, as requested by Rick Osborne on.behalf of Cheryl Miller and Geneva McFarland. The Planning Commission voted 7-1-1 to recommend the rezoning.; • City Attorney Rose read the ordinance for the first time. Williams, seconded by Miller, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed;byra Vote:of 8.to O and .the City Attorney read the ordinance .for -the second time.. ,Odom, seconded by Williams, made a motion to further suspend the rules and place the ordinance on its third and final reading.. , Upon roll call, the motion passed by a • • , May 3, 1994 vote of 8 to 0. The City Attorney read the ordinance for the third time. Alderman Miller asked if this was to be a commercial shopping center. Rick Osborne stated his client, Clary Development from Little Rock, will build a nice facility. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3782 APPEARS ON PAGE /73-07 ORDINANCE BOOK .k'.4' v /t REZONE R94-10 & R94-11 Mayor Hanna introduced consideration of ordinances rezoning 8.58 and 51.74 acres located south of Wedington and east of 46th Avenue as requested by Dave Jorgensen on behalf of Hayden Mcllroy. R94-10: Rezone 8.58 acres from A-1, Agricultural, to R-1.5, Moderate Density Residential. R94-11: Rezone 51.74 acres from A-1, Agricultural, to R-1, Low Density Residential. The Planning Commission voted 9-0-0 to recommend the rezonings subject to a Bill of Assurance limiting the R-1.5 tract to duplex use only. City Attorney Rose read the ordinance for R94-10 for the first time. Odom, seconded by Edens, 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 8 to 0, and the City Attorney read the ordinance for the second time. Miller, seconded by Odom, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Alderman Williams stated the Parks & Recreation Advisory Board has requested land be donated instead of taking money for greenspace. He would like to put the developer on notice, he will be asking for an emergency clause on the new development ordinance. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3783 APPEARS ON PAGE /7701P ORDINANCE BOOK XX //// City Attorney Rose read the ordinance for R94-11 for the first time. Odom, seconded by Williams, 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 8 to 0, and the City Attorney May 3, 1994 read the ordinance for the second time. Odom, seconded by Miller, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Upon roll call,.the ordinance passed by a vote of 8 to 0. ORDINANCE 3784 APPEARS ON PAGE/19 OF ORDINANCE BOOR 4'0i/b// REZONE R94-17 & R94-18 , Mayor Hanna introduced consideration of.ordinances rezoning 10.50 and 35.83 acres located on the north side of Highway 62 West and west of Dinsmore Trail as requested by Michelle Harrington on behalf of .Lula Mae Hurlburt and Mary Holland. R94-17: Rezone 10.50 acres from A-1, Agricultural, to C-1, Neighborhood Commercial. R94-18: Rezone 35.83 acres from A-1, Agricultural, to R-2, Medium Density Residential. The Planning Commission voted 8-1-0 to recommend R94-17, and 9-0-0 to recommend R94-18 subject to a Bill of Assurance limiting the density to 15 units per acre. City Attorney Rose read the ordinance for R94-17 for the first time. Miller, seconded by Box, 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 8 to 0, and the City Attorney read the ordinance for the second time. Vorsanger, seconded by Edens, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Alderman Miller commended the developer for zoning C-1 instead of C-2. upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3785 APPEARS ON PAGE /830F ORDINANCE BOOR A')(.1./// City Attorney Rose read the ordinance .for R94-18 for the •first time. Edens, seconded by Box, 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 8 to 0, and the City Attorney read the ordinance for the second time. .Daniel, seconded by Box, made.a motion,to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by.a May 3, 1994 vote of 8 to 0. The City Attorney read the ordinance for the third time. Mayor Hanna stated he is glad to see this rezoning and developemnt. He feels it is important to develop this part of Fayetteville. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3786 APPEARS ON PAGE /P.S-O! ORDINANCE BOOK XXt- '1 REZONE R94-19 Mayor Hanna introduced consideration of an ordinance rezoning .56 acre located on the west side of Gregg Avenue and south of Center Street from I-1, Light Industrial -Heavy Commercial, to R-2, Medium Density Residential, as requested by Town Creek Builders and K & J Realty on behalf of Ima Jean and Bobby Taylor. The Planning Commission voted 9-0-0 to recommend the rezoning. City Attorney Rose read the ordinance for the first time. Williams, seconded by Miller, 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 8 to 0, and the City Attorney read the ordinance for the second time. Miller, seconded by Odom, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3787 APPEARS ON PAGE /9/ OF ORDINANCE BOOK -r-" ANNEX & REZONE R94-20 Mayor Hanna introduced consideration of ordinances annexing and rezoning 85.12 acres located south of Mt. Comfort Road and west of Rupple Road from A-1, Agricultural, to R-1, Low Density Residential, as requested by Truman Yancey on behalf of Alan and Lawrence Clack. The Planning Commission voted 7-2-0 to recommend the annexation and 6-3-0 to recommend the rezoning. City Attorney Rose read the annexation ordinance for the first time. Edens, 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 8 to 0, and the City Attorney read the ordinance for the second time. Edens, seconded by Vorsanger, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. i1J May 3, 1994 Alderman Box stated he supports the annexation,. but he is concerned about rezoning such a large tract of land when the City is considering its rezoning options. Alderman Odom statedhe is concerned about piecemeal annexation. He will vote against this and any future'annexation that is not done in a large scale, organized way. r e A t Q Alderman Williams stated he agrees the City needs a substantial annexation. However,ehe.is reluctant not to vote for annexations because it is not the'fault ofothe petitioner that the City has not made a large scale annexation.` Alderman Edens stated if the Council denies the annexation, can the people still ask the City to be tied to the sewer lines. He asked if the City has to let them tie on.. Kevin Crosson stated it would be an administrative decision to allow or deny them to tie onto the sewer system. Mayor Hanna stated he does not see this as piecemeal annexation. He feels it important to consider each annexation individually, especially those that are contiguous to City property. A lot of these people are already in the growth areas and are getting city water and sewer and contract fire protection. However, he. is not opposed toa large. annexation. He stated any alderman can request the City Attorney draft such an ordinance and call for a special election. Alderman Odom stated the 2010 Plan calls for large annexations. He feels it would be better to address the infrastructure needs in this manner. Crosson stated the City is prepared to present options, but they have been trying to prepare information about costs and infrastructure needs of a large scale annexation. Alderman Williams stated he would like to see that as soon as possible. Alderman Edens stated the City needs to be cautious about this because there would be no revenue from this annexation, but there would be associated expenses for the City. Truman Yancey, representing the Clacks, .stated the residents of this area will be city dwellers and most of them .are employed:in Fayetteville. The City would be best served by the initial development being built. to City standards. So, he feels it is appropriate to bring them into the City at this time. May 3, 1994 Mayor Hanna stated the developer is going to build a bridge over Hamstring Creek which will make another road between Highway 16 and Mt. Comfort. Alderman Odom stated he feels the petition approach is okay, but the growth in Fayetteville is so frequent, the Council needs to consider annexing larger portions. Yancey suggested it would be useful to look at the contributions these areas are making to the City, and these people are ready to belong to the City's financial structure. Upon roll call, the ordinance passed by a vote of 6 to 2, with Miller and Odoa voting no. ORDINANCE 3788 APPEARS ON PAGE /9.3 OF ORDINANCE BOOK .r4r4-'// City Attorney Rose read the rezoning ordinance for the first time. Edens, seconded by Odom, 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 8 to 0, and the City Attorney read the ordinance for the second time. Edens, seconded by Vorsanger, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Upon roll call, the ordinance passed by a vote of 6 to 2, with Box and Miller voting no. ORDINANCE 3789 APPEARS ON PAGE /9s -OF ORDINANCE BOOK rX mo// UTILITY EASEMENT VACATION V94-5 Mayor Hanna introduced consideration of an ordinance vacating a 25 foot east -west utility easement on property located on the west side of Crossover and south Joyce as requested by Steve DeNoon on behalf of Sexton & Associates. The Planning Commission voted 9-0-0 to recommend the vacation. City Attorney Rose read the ordinance for the first time. Box, seconded by Miller, 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 8 to 0, and the City Attorney read the ordinance for the second time. Box, seconded by Miller, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE -3790 EMINENT DOMAIN May 3, 1994 APPEARS, ON PAGE /77OP ORDINANCE BOOK X X,(/ // ` Mayor Hanna introduced consideration. of an ordinance authorizing the City Attorney to initiate eminent domain proceedings to acquire property, owned by Mrs. Frances Sopko, for a principle arterial connecting Crossover Road and Happy Hollow Road, as set out in the City's master street plan. City Attorney Rose read the ordinance for the first time. Miller, seconded by Williams, 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 8 to 0, and the City Attorney read the ordinance for the second time. Williams, seconded by Edens, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City. Attorney read the ordinance for:the third time. Alderman'Edens asked if this land'would be acquired for the Highway 265 widening. Kevin Crosson stated that is correct, and that is why staff_is in favor of this eminent.domain proceeding. Alderman Miller asked if Mrs. Sopko.was notified: Bill Underwood stated he'had written and,told her this was a possibility. Mayor Hanna stated, it isgnot the City[s responsibility to notify Mrs. Sopko. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3791 APPEARS ON PAGE /9901? ORDINANCE BOOK X4 V i/ ZONING ORDINANCE AMENDMENT Mayor Hanna introduced consideration of an amendment to the Zoning, Ordinance increasing .the number of residential zoning, classifications. City Attorney Rose read the ordinance for the first time. Miller, seconded -by Daniel, 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 8 to 0, and the City Attorney read the ordinance for the second time. Miller, seconded by Bassett, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by May 3, 1994 a vote of 7 to 1, with Odom voting no. The City Attorney read the ordinance for the third time. Alderman Miller stated several of the Planning Commissioners, members of the Planning Department, and aldermen have worked on this. The City has asked for more flexibility in rezonings. Mayor Hanna stated property will still be annexed into the City as A-1, Agricultural, zoning. Thomas L. Brown, a Huntsville Road resident, stated he supports the ordinance and more flexible management of the growth in Fayetteville. But, flexibility will not address the issue of building up to the allowed density of a zoning area without taking into consideration the land characteristics. He presented the aldermen with copies of performance zoning information. He stated the physical characteristics of each parcel of land needs to be looked at, and the property should be rezoned according to its best use. Alderman Box asked what other cities are using performance zoning. Brown stated Lake County in the Chicago area uses this. In Pennsylvania, of the 51 townships and buroughs, 31 use performance zoning. He is just suggesting the Planning Commission review this. Alderman Daniel stated she feels this is excellent, and it would address a lot of the problems in Fayetteville. She would like the Planning Department to look at this. Alderman Williams stated he feels this is a good suggestion, and he hopes staff contacts Philadelphia regarding this. Brown stated they are sending him some information, and he will share that with the Planning Department. Tim Conklin stated Fort Collins uses this as well. He stated the Planning Department is trying to incorporate this type of system into the new ordinances. Alderman Odom asked if Conklin saw a conflict between this plan and the proposed ordinance they are considering at this time. Conklin stated he feels the new ordinance will be helping in preserving hillsides, floodplains, etc., and should work hand-in- hand with what we are trying to do. Alderman Daniel states she feels development has forced itself onthe land instead of leeting the land dictate what the development should be. May 3, 1994 Mark Marquess,. BMP Development., stated he understands the needs for reviewing the zonings in Fayetteville. But, he has a lot of questions about the four new zonings being presented this evening. He stated there has been concern about the need for affordable housing. These four new classifications will no be conducive to that type of development. Alderman Bassett stated if the •Council adopts this new ordinance, land will still be annexed into the City at A-1.. If the property owner wants to rezone to R-1, there may be people in the area ow town that think it needs to be one of the new RL or RE zones. Marquess asked what would stop these people from making their arguments. Alderman Bassett stated these people have the right to complain to the Planning Commission and the City Council. He stated the neighbors can make their pitch, and the developers can.make their pitches, and the City Council will have to make a decision. This new ordinance will give the Council more flexibility in making its decision. Marquess stated he would like the Council to not vote on this ordinance tonight and give him and others the opportunity to study the ordinance. •For instance,•how.will-this effect land he has options on at,this time for development in the future.• Will this be grandfathered in or will the ordinance -be applied? i . - ,• Alderman Bassett stated Marquess.is making..the assumption that the Council will do what'a large group of people want done. Marquess stated no, he just wanted to have.someftime to read this new ordinance. It'was just=drafted this. week, and he has not had the opportunity to review it. Alderman Odom stated he felt Marquess had a legitimate point. Dick Rogers, a developer and real estate. agent, stated the primary right of ownership and development of land rests with the individuai(s) who own the land. The lot sizes in this town have been primarily determined by the land owner.. He stated any changes in the ordinance should be well thought out. He feels the landowner should have the greatest consideration of the land and its zoning. Alderman Odom asked Rogers if he felt the adjacent landowners should have no voice. Rogers stated they should have some, but they have the right to buy• land and use it how they want if they are not happy with a proposed development. Adjacent landowners should not have more consideration than property owners. May 3, 1994 Alderman Miller stated they have been working on this new ordinance for aboutr 4 months. They are concerned that development does not tear up the land. Rogers asked who will make the decision about what zoning will be given to land. Alderman Williams stated the process will remain exactly like it is now. A property owner will go before the Planning Commission and request a particular zone. Steve Ward, Chamber of Commerce, stated he feels this concept may have merits, but he feels it has come about in a hasty manner. People have not had a chance to review the ordinance, and he hopes the City Council will delay action on this tonight. Alderman Miller stated he would have no trouble tabling, but he is ready to vote. Mayor Hanna stated he the City was looking important for people Alderman Odom stated that is why he voted people to review the does not think the public has been aware that at these additional zonings. He feels it is to have time to look at this. he feels this is a legitimate concern, and no on the second reading, to allow time for ordinance before it is voted on. Odom, seconded by Vorsanger, made a motion to table. Upon roll call, the motion passed by a vote of 8 to 0. OTHER BUSINESS RIGHT OF WAY GRANT TO OZARKS ELECTRIC Mayor Hanna introduced consideration of a resolution conveying a 15 foot right of way grant to Ozarks Electric Cooperative Corp. for an underground three phase power system across a portion of the City - owned Sweetbriar Park. Mayor Hanna stated the job will be done by Fayette Tree & Trench. Miller, seconded by Odom, made a motion to approve the resolution. Upon roll call, the motion was approved by a vote of 8 to 0. RESOLUTION 718 RECORDED IN THE CITY CLERK'S OFFICE JACKSON PLACE APPEAL Alderman Bassett stated Jackson Place was appealed to the City Council who remanded the subdivision back to the Planning Commission. William Graham was the consulting engineer the neighbors hired to perform a study on the drainage question. Mr. e May 3, 1994 Graham's fee Ws $2,160.48. Mr. Graham was hired to determine if the downstream culvert needed to be made bigger. Essentially, the City said Mr. Graham was right and agreed it should be -done as he had determined. He is making a motion the City pay the bill to Mr. Graham, and the reason why is that,he came up with the opinion that was adopted by the City. He feels it is unfair for the residents of the area to have to spend their own money to get protection from flooding the City should have found was needed. • • Alderman Edens askedif the Council would be setting a precedent that says if you can find the. City has done something wrong, the City will pay your bill. He stated City staff may not be as open minded about admitting a mistake in the future. Alderman Bassett stated this could save the City a lot of money later on down the road from flooding or from having to correct the flooding problems. Alderman Williams stated he does not feel this will set a precedent. Each case has to be looked at on its own merits. He feels it would:be the right thing to do in this case. Alderman Box asked if Alderman Bassett was correct in that the City made a mistake. f' 1 Y Kevin Crosson stated at the time the City made the determination an flooding, it was not during the "normal process of examining the flooding. If the normal scope off draining and gradingj,had been Submitted and:staff would have been allowed to follow their normal procedures after the preliminary subdivsiion plans had been made, he feels and hopes staff would have discovered their error.. Alderman Box stated, in other words, the City would have caught their own-.er-rer anyway. Crosson stated:that was correct. Bassett, seconded by Vorsanger, made motion to pay the consulting engineers• fee of $2,160.48. Upon roll call, the motion passed by a vote of 6 to 2, with Edens and Box voting no.. RESOLUTION 56-94 AS RECORDED IN THE CITY CLERK'S OFFICE PERFORMANCE ZONING Alderman Daniel stated she, would like to direct the Planning Department t� do an overlay for the areas that are environmentally sensitive and would like to see an ordinance' -moving in this direction. , Mayor Hanna stated he does not think will pass this along,to the Planning. it will be that and Engineering easy, but he Departments. May 3, 1994 ENVIRONMENTAL CONCERNS COMMITTEE Alderman Miller stated there will be an Environmental Concerns Committee meeting on May 16, 1994, at 5:30 p.m. in Room 326. WARD 4 MEETING Alderman Daniel stated Ward 4 will have a meeting at 6:00 p.m. on Monday, May 9, at the Woodland Junior High Library. ADJOURNMENT The meeting adjourned at 9:55 p.m.