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HomeMy WebLinkAbout1994-11-22 MinutesMINUTES OF A MEETING OF THE CITY COUNCIL A special meeting of the Fayetteville City Council was held on Tuesday, November 22, 1994, at 4:30 p.m. in the Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Len Edens, Joe Box (arrived late), Stephen Miller, Kit Williams, Conrad Odom (arrived late), Fred Vorsanger, Heather Daniel (arrived late), and Woody Bassett; Assistant to the Mayor Phyllis Rice; City Attorney Jerry Rose; City Clerk Traci Paul; City Treasurer Glyndon Bunton; Administrative Services Director Ben Mayes; Planning Director Alett Little; Public Works Director Kevin Crosson; members of staff, press, and audience. CALL TO ORDER Mayor Hanna called the meeting to order with five aldermen present. OVERLAY DISTRICT LAWSUIT DISCUSSION City Attorney Jerry Rose explained his role as an elected representative of the people of Fayetteville. He stated the City Council is his client. He described difficulties in taking on a lawsuit brought by citizens of Fayetteville. He stated there is an equal desire on the part of everyone to abide by the constitution of the State of Arkansas and that of the United States. There is a disagreement as to what the constitutions say on some issues. This can be a healthy experience for the City. This lawsuit may provide an opportunity to clarify the law in some areas. Alderman Daniel arrived. Rose stated the constitutional issues involved in the Overlay Ordinance were previously discussed in detail. Alderman Box arrived. Rose stated the complaint brings up three new procedural or statutory propositions that have not been discussed with you. The Council, as a client, must tell me if you agree with the defenses I have for you or if you agree with the petitioner. The first and most glaring procedural difficulty raised in the petition is claim,#6.. It states that the ordinance is defective because 15 days notice of apublic hearing was not given,prior to the Planning Commission's recommendation of the ordinance to the City Council. The petition alleges that 14 days was given rather than the required 15 days. Notice was given April 25 for the Planning Commission hearing helfron May 9. The ordinance was passed in a public meeting of the City Council on June 28, 1994. November 22, 1994 The enabling legislation which regulates all the zoning powers in Arkansas is Act 186 of 1957. That Act required a complete review by the Planning Commission before the City Council took action to alter any of the zoning boundaries. In 1959, legislation was enacted which amended that 1957 Act. The amendment authorized an alternative procedure to amend the zoning boundaries by a majority vote of the City Council. The City of Fayetteville adopted their comprehensive zoning ordinance after that 1959 Act. Section 160.157 of the Zoning Code supports the 1959 Act. Neither the Statute nor the ordinance requires 15 days notice for a public hearing before the Planning Commission or before the City Council adopts a zoning change. If you argue that the 15 days notice is mandatory, the 14 days given was substantial compliance with the statute and the ordinance. There is no factual allegation within the petition which shows any injury or any prejudice to anyone as a result of lack of notice. There is case law to substantiate the proposition that substantial compliance is the standard to be used in analyzing a City's compliance to their zoning ordinance. There is nothing within the petition which alleges that any individual or the petitioner corporation was prejudiced in any way by any lack of this alleged notice. The defenses given to you are worthy of being advocated. There are two choices. If you agree with the petitioners' argument that the statute says 15 days prior notice is required, the remedy is to start over again and give the proper 15 day notice. The other choice is to allow me to proceed with the defenses that I outlined to you. In answer to a question from Alderman Williams, Rose stated the ordinance does require a 15 day notice of a public hearing before the Planning Commission. The ordinance also gives an alternative method. According to Section 160.157 of the Fayetteville Code of Ordinances, the City Council may pass an ordinance without notice and without Planning Commission approval. The state law also allows the City Council to pass an ordinance. In answer to a question form Alderman Vorsanger, Rose stated the lack of 15 day notice is the most important procedural error. Len Schaper asked if the Planning Commission minutes listed any of the plaintiffs of this suit as speakers at the public hearing. Rose stated there is a record of the meeting, but the plaintiff in this lawsuit is a corporation. The members are not revealed in the petition. Rose stated the second new proposition is that no accurate map was made available of the Overlay District Boundaries prior to the passage by the Planning Commission or the City Council. Our ordinance states when an amendment is done, the changes are to be entered on the official zoning map. A map is not required. *14 ;November 22, 19947 arno Alderman Odom arrived. Rose stated the .third new proposition 'is in reference to an Arkansas statute that. says you cannot treat people differently within a zoning area. The petitioners feel that the creation of the Overlay Ordinance violates that code section which requires regulations imposed within each district to be uniform throughout the district. The Overlay Ordinance creates a separate district and does not violate that statute. •The regulations imposed within that district must be equal to everyone in that district. In answer to a question from Alderman Williams, Rose stated the exemptions made by the Council to certain properties is not included in the suit. Rose suggested a review of the other issues were discussed prior to passing the ordinance. Rose stated the first claim is that the ordinance is unconstitutionally arbitrary and capricious. There are also concerns that property has been taken without compensation and that the ordinance does not bear any relationship to a legitimate public purpose or concern. As supported by case law, the right and responsibility for classifying various areas in the City are with the City as a zoning authority. A zoning action which decreases the value of property does not violate any constitutional provision which forbids uncompensated taking or damage. There is a 660' boundary to which the district applies. The fact that the Overlay District applies to 660' does not make it unconstitutional. The public concerns are described in the Overlay District Ordinance in paragraph A. The second claim, Rose stated, regards seizure and confiscation. It is a rehash of everything we just discussed constitutionally. Last is a claim that we violated the Arkansas Civil Rights Act. It states that if you violate someone's civil rights as a municipality, they are responsible to you for damages. Under this civil rights act, attorney fees are included. In answer to a question from Alderman Bassett, Rose stated he could not find any other provisions other than in the civil rights claim that would require the City to pay the attorney fees. Rose stated this is not an unjust enrichment lawsuit. There is not a pool of money that an attorney would be entitled a percentage of. The petitioners have hired attorneys from Cincinnati, Dallas, and Fayetteville. In the Civil Rights Act an award of the attorney fees is discretionary by the judge. November 22, 1994 In answer to a question from Alderman Williams, Rose stated if the petitioners won the suit on one of the procedural grounds, it is his opinion that they would not be entitled to any attorney fees. Rose stated he would bring to the council all settlement offers that are made. The Council needs to decide as a matter of policy what you want to do with the offers. In answer to a question from Alderman Bassett, Rose stated there are some cases out of state having to do with Overlay Districts. In most cases Overlay Districts were successful. Rose stated he would proceed with the defenses outlined unless he is directed differently. Alderman Williams stated the Council was very careful when drafting the ordinance to stay within the constitutional boundaries. The notice that was given for the public hearing was ample to bring a large number of citizens to our meetings. He stated the City Attorney should go ahead with the outlined defenses so that this can be resolved as quickly as possible. Alderman Miller agreed. In answer to a question from Alderman Daniel, Rose stated if the Council agrees with the proposition that we should have given 15 days notice, the current ordinance would be repealed and the process to pass the ordinance would be repeated. Alderman Williams stated if the that same thing would happen. The defenses given are good. City lost on the procedural motion, There was substantial compliance. Mayor Hanna stated if there was a mistake made, we should correct it without having Fayetteville citizens spending money to force us to do it. If there is any doubt about whether we have done this right or not, we should do it over. Alderman Odom stated he agreed; however, the first time he was informed about the procedural error was when the lawsuit was filed. The petitioners did not contact the Council to try to resolve the problem before the suit was filed. Alderman Bassett stated he was in contact with many citizens who were aware of the proposed ordinance. The procedural error is not the essence of the lawsuit. The essence is to gut the ordinance. He expressed his approval to go ahead with the defenses. Alderman Williams stated the people who filed the suit would not be satisfied even if the City went back through the process with the ordinance. November 22, 1994 Council to make a decision based right. If the council does not the issue should not go to court Mayor Hanna stated he wanted the on the belief that it was done believe that it was done right, just to prove it. In answer to a question from Alderman Miller, Planning Director Alett Little stated the Planning Commission had two public hearings. Alderman Miller commented that there had been a total of four public hearings. Alderman Bassett stated in addition to the public hearings, council members talked to lots of people. There was plenty of opportunity for people to make their points. The lawsuit is really about trying to take out the guts of what the City did in this ordinance. The Council should fight for that. In answer to questions from Alderman Daniel, Little stated the public hearings were held at consecutive Planning Commission meetings. There are two ways to amend an ordinance. We attempted to use the ,method in which there is 15 days notice prior to a hearing by the Planning Commission.. We.ended up usingthe other Method, which allows.:the Council to amend the ordinance at the City Council meeting without •Planning Commission involvement. The document that the'Council passed was a different document than the one the Planning Commission passed. In answer to a question from Alderman Bassett, Rose stated he will file a motion to dismiss for -failure to'state a claim upon which relief can be granted on Monday, November 28, 1994. The petition does not state exactly what it is within our ordinance which is arbitrary, capricious or taking. Pleading requirements may require more than that. I need a better understanding of -what is defective. The corporation is not alleged to own any property. Its stockholders do, but that may not be sufficient to give them standing. ADJOURNMENT The meeting adjourned at 5:10 p.m.