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HomeMy WebLinkAbout1995-11-07 MinutesMINUTES OF A MEETING OF THE CITY COUNCIL 467 A meeting of the Fayetteville City Council was held on Tuesday, November 7, 1995, at 6:30 p.m. in the Council Room of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Kit Williams, Cyrus Young, Steve Parker, Woody Bassett, Jimmy Hill, Len Schaper, Heather Daniel, and Stephen Miller; City Clerk/Treasurer Traci Paul; City Attorney Jerry Rose; members of the staff, press and audience. CALL TO ORDER Mayor Fred Hanna called the meeting to order with eight aldermen present. Mayor Hanna asked everyone present to observe a moment of silence for the City and County police officers involved in an incident earlier in the afternoon. OLD BUSINESS A. REZONING R95-24, R95-25 & R95-25.1: Three ordinances rezoning property located east of Gregg Avenue, north of the 71 Bypass, and west of 71 Business as requested by Mel Milholland on behalf of NANCHAR, Inc. and Marjorie Brooks. R95-24 - Rezone 59.48 acres from A-1, Agricultural and R-1, Low Density Residential to R-0, Residential -Office. The Planning Commission voted 7-2-0 to recommend the rezoning. R95-25 - Rezone 10.61 acres from A-1, Agricultural to C-1, Neighborhood Commercial and 30.07 acres from A-1, agricultural and R-1, Low Density Residential to C-1, Neighborhood Commercial. The Planning Commission voted 7-2-0 to recommend the rezoning with restrictions. R95-25.1 - Rezone 200.62 acres Thoroughfare Commercial and 8.99 2, Thoroughfare Commercial. from A-1, Agricultural to C-2, acres from A-1, Agricultural to C - The Planning Commission voted 6-3-0 to recommend the restrictions. Mayor Hanna stated the ordinances were at the October 17 Council meeting. rezoning with left on the second reading 468 November 7, 1995 City Attorney Rose read each ordinance for the third and final time. Mayor Hanna explained that the ordinances together but would be voted on separately. Alderman Hill asked to have the map of the displayed. would be discussed proposed development Alderman Hill expressed several doubts concerning the rezoning request. He asked the Council to table the request for several ,reasons. Alderman Hill stated that the proposed street design undermines the Master Street Plan and cuts off the only east -west route from Crossover Road to the Fulbright Expressway. The proposal calls for 90 degree intersections, instead of curving roads to meet the standards of the 75 degree curves to allow the smooth flow of traffic from Hwy 71 to Gregg Street, and changes the Master Street Plan. Alderman Hill stated that the staff has not agreed to the proposed streets and they have said they do not want to make recommendations on the streets. Alderman Hill further stated the petitioners have refused to participate in a joint venture to improve the Joyce St./Hwy. 71 intersection, the extension of Joyce St. west. to Gregg and to replace the one -lane bridge on Gregg St. .They have stated they are not going to develop until 1999 and they have pulled out of the negotiations to go in with the City, Blair Development Corp. and the Northwest Arkansas Mall to make these improvements. Alderman Hill petitioners is the interest of of the cost of be limited to Assurance. • • stated the Bill of Assurance presented by the inadequate and full of loopholes which are against the City. The petitioners should pay a percentage construction of the.Joyce Street extension.and not a fixed dollar amount as stated in the Bill of Alderman Hill clarified that, at a prior Council meeting, the good development at North Hills Medical Park had been attributed to the petitioner, NANCHAR, Inc. -He stated neither NANCHAR nor any of_the petitioning development team had anything to do with the Medical Park's development. They have, however, participated in the CNM development from the Medical Park to Chili's. Citing the above reasons, Alderman Hill stated it would be wise and in the best interests of the citizens of Fayetteville to table this rezoning request until these and other questions are resolved. - Mayor Hanna pointed out that the request before the Council is • 469 November 7, 1995 simply a rezoning request. Other matters are more appropriately addressed at plat review, subdivision and Planning Commission meetings. Discussion of the road design is not appropriate when the issue before the Council is for rezoning. Alderman Hill agreed with Mayor Hanna. Hill stated the petitioners are presenting the Council with this particular design in the agreement, spelling out exactly what improvements are to be made. He reminded the Council that the chart/map being presented at this time had been brought to the Council before the matter ever went to the Planning Commission. Mayor Hanna commented on the process the petitioners had gone through to this point, covering several months. The Council then began discussing road design and what would go where, asking the petitioners for certain plans and assurances. Mayor Hanna stated the issue at hand is whether or not to approve the rezoning request. There was a discussion between Mayor Hanna and Alderman Hill regarding the agreement presented by the petitioners and what the agreement signifies. Mel Milholland responded to Alderman Hill's concerns regarding Joyce Street. He explained that his client had been asked by the staff to pay for certain items and has never refused to pay for those items. The proposed amount in the agreement is a projection of what those items will cost and his client is more than willing to pay for this work. Alderman Hill asked whether the petitioners were willing to pay for a percentage of the cost rather than a specific dollar amount. Mr. Milholland stated the plans for this extension are completed and the City is almost ready to place them up for bid. The items his clients have been asked to pay for add up to the $160,000 figure in the agreement. In response to a question from Alderman Hill regarding the one -lane bridge on Johnson Rd., Mr. Milholland stated he could not remember his client ever specifically being asked to pay a fee or a percentage of the cost of replacing that bridge. In response to a question from Mayor Hanna, Planning Director Alett Little stated that off-site improvements are normally assigned at the Large Scale Development level. If it is already a let City project or a planned City project, the City does not normally ask for a contribution of developers. If the project has not already been let or planned, the City does ask for a contribution. 470 1 November 71 1995 There was a brief discussion between Alderman Hill and Mayor Hanna regarding specifically which roads or projects were being discussed and when off-site improvements would be assigned. Alett Little explained that when a large scale development comes forward, the Planning Commission, planning staff and engineering staff are asked to make the decision regarding whether there are. substandard City facilities in the -area which will be required to be upgraded in order to service the project and whether the project will generate sufficient traffic or need for additional improvements. If those improvements are needed, ¶thenL a proportionate share of that cost is assessed. Ms. Little stated that in this specific instance, the petitioners would be asked to share in' -the cost of the Gregg Street bridge. There is currently an agreement with two other groups which has taken two years to negotiate which will 'supply the funds needed for this particular project: Ms. Little stated if the Council wishes to give instructions to the staff to specifically consider this item at the time it comes through Large Scale Development, they will certainly attempt to do it. All this is a matter of timing and when things come through the development process. Alderman Williams questioned Alderman Hill's assertion that this project was in violation oftheMaster Street Plan. He stated that the loop plan adopted by the Council simply states that Joyce St. would run between Hwy. 265 and Gregg Street. The exact location for the street has been the subject of much discussion and the route finally agreed upon was simply the least expensive alternative. Alderman Williams stated the rezoning would not interfere in any way with the Master Street Plan and'would in fact enhance it by providing a second route out to Gregg Street when the southern part of- the ",proposed road is built: • i Alderman Hill explained his concerns by using a copy of the Master Street Plan and showing the differences between the Master Street Plan and the proposed design as presented in the agreement. There was some discussion between Alderman Hill and Alderman Williams regarding the streets in both the Master Street Plan and the•proposal. There was further discussion between Mayor Hanna and Kevin Crosson regarding the map and the loop concept as discussed in the past by staff and Council. 3 • • • • November 7, 1995 471 Alett Little stated the staff has consistently asked that they not talk about the street locations. Street location is a decision best left to the Planning Commission when there is sufficient engineering data to make those kinds of decisions. Ms. Little stated that the Master Street Plan is a Council -adopted document. The Planning Commission holds the document in high regard and they use it with regularity in order to make decisions. They will not abandon it with regard to this development. Ms. Little stated she supported Alderman Hill's concern with the location on the proposal of the north -south street. It is very important not to make decisions regarding street location until all the data needed to support those decisions is available. Alderman Williams noted that when hearings were held on the Master Street Plan, there was a lot of discussion about the entire Mall area. The Council realized at that time that the roads could not be definitely placed because the Council did not have the expertise and did not have information regarding how the area would eventually be developed. Because of this, lines were intentionally drawn on the Plan for streets but it was stated that these lines were subject to change as the property develops. In response to a question from Alderman Williams, Ms. Little stated that the Medical Park development was brought through by Herb Wimberly and Harry Gray with Northwest Engineers on behalf of partners from Knoxville, Tennessee. Alderman Parker expressed his disappointment that so many references were made at the last meeting to the present petitioners being responsible for this development without it being brought to the Council's attention that this was not the case. Alderman Bassett stated that the reference was obviously a mistake. That development is an asset to the community, but he also feels the CNM development area, for which the petitioners are responsible, is also a fine quality development. Alderman Hill questioned how the boundaries between zonings is going to be determined if the rezonings being requested are based on those exact street locations and those street locations are changed. He also asked if the petitioners are proposing any road in any form besides Joyce St. going to the west. Mel Milholland reviewed the proposed site plan and explained that there is a way to clean up the zoning if a street needs to be shifted. 472 November,74.1995 Ms. Little stated that, depending on.the size of a particular area, they might have to enteruirito a rezoning action. There are very few things. that C-2 is needed for that C-1 won't accommodate. The two things C-2 is primarily needed for is for hotels and large shopping centers. C-1 or even R-0 can accommodate some of the same uses. Alderman Schaper stated that this was the problem with this sort of speculative .rezoning. He:stated he understood Alderman Hill's concerns about all the legal descriptions beingreferenced to these streets whose locations have not yet been defined and which should not be defined until the. Large Sbale Development process. He questioned why the Council would do this rezoning based on streets that have not yet been defined and.which may have to be changed in the future. Alderman Schaper was concerned that when the final developer comes ,, along, the zonings will be wrong and will -have to be changed:. This' upsets people because they think they have one kind of zoning,going-.. in and it turns out something else is really whatis needed to accommodate the developer.':It does not make sense to have'`tor'do, this twice. 2F Alderman Hill again asked ifthe petitioners were requesting anything specific regarding streets other than the, Joyce-iSt'reet, extension. Mr. Milholland stated that they were notasking that these streets be laid out exactly as they are on the proposal. The plan submitted to the Council is 'only a general plan. Alderman Hill asked if the petitioners had any objection to the street he indicated on the map being built to curve back to Joyce. Mr. Milholland stated that his engineering experience warned that the street could not go too far with a curve. There was a discussion between Mr. Milholland and Alderman Hill regarding the street under discussion and the routing of traffic until that street is completed. Alderman Schaper again stated that all of the borders between the zones make sense now only .because of where the streets are indicated on the submitted proposal. If in the Large Scale Development process, those streets end up somewhere else, the zones no longer make sense. Alderman Bassett stated that everythingthat has been submitted by the petitioners has been askedfor by the Council. It is patently unfair to the petitioners:to continue to ask for information and •when that information is'probided,-attack them for the information .' provided. 1 473 November 7, 1995 Mayor Hanna stated that the original request had been for all C-2 zoning. The present proposal was in response to a request from the Council. Alderman Parker stated that the lawyer originally associated with the owners had actually said at one point that if the land was not rezoned, the owners would put in hog farms. From there the request went to 300 acres of C-2, which would not be at all in the best interests of the City. That was an unreal expectation. Alderman Hill stated that he does not see the present situation as unfair to the petitioners. The Council had not asked the developers for any of this information on the map. He reminded Alderman Bassett that in May the staff showed this exact map to the Council before the request ever went to the Planning Commission. The only difference at that time was that all the zoning was C-2. The roads are the same now as with the original map and no one on the Council asked the petitioners to place them there. In response to a request for affirmation on this, Mr. Milholland stated that the roads are pretty close to the same now as they were when originally presented. Jim Erwin asked if Alderman Schaper was not one of those who had requested that the site plan be done to have some idea what uses the developers intended for the site in order to plan for the traffic. This was a particular request the petitioners were responding to with this proposal. Alderman Schaper stated the Planning Commission asked for that information. Alderman Schaper again stated that he understands and shares Alderman Hill's concern that the legal boundary descriptions of zones are being referenced to streets whose locations have not yet been determined. Jim Erwin stated that the real issue is to have a north -south route. The petitioners have been willing to escrow funds for this. The location may slide a little if the City asked for it to slide. Alderman Schaper stated that the petitioners would then be back before the Council to have the area rezoned again because it will need to be something different. Mr. Milholland stated C-2 accommodates everything C-1 accommodates. Most changes in the location of the road would not affect what could be built on that property. • 474 November.7,.1995 Ms. Little stated the legal descriptions prepared by Mr..Milholland do not reference the streets in the proposal., She acknowledged that the streets were in the minds of those discussing these descriptions and distances were calculated using the streets. However, the legal descriptions beingused for these zoning tracts are based on distances, section lines, etc., and do not reference any dedication of right-of-way or .anything having to do with that north -south street. Alderman Hill stated that the intersections are referenced in item #3 of the proposal. Alderman Williams thought that was a reference to the street being built now as the Joyce Street extension. There was_further discussion regarding this between and Mr.'Milholland. Alderman Young asked if the Council was recommending -not plan and just leave the property A-1, Agricultur Alderman Hill that the City al. There was some discussion between Aldermen Hill, Young and Schaper with regard to the definition of planning and whether the Council is going to continue to plan. Alderman Parker stated this is a plan and the issue is that some of the aldermen do not like this plan. Alderman Young asked for -the aldermen to simply state their opposition and not come up with reasons to oppose the plan. Alderman Parker stated the aldermen were not dust coming up with reasons to oppose the plan, but instead were stating reasonsthey do not like this specific planning. Alderman Schaper again stated there are real problems with setting boundaries of zones based on streets whose locations may change, causing another rezoning in the future. Alderman Young expressed his opinion that there is no problem with rezoning it again if needed. There was further discussion regarding this issue between Alderman Schaper and Alderman Young,. and the question was raised. regarding which area would be developed first. Alderman Parker clarified that the developers had expressed a desire to develop first the,area along Joyce Street. They have stated that they are not going to put the north -south road through`t"' until they sell significant amounts of that property tofund. the construction of the street all at one time. 475 November 7, 1995 Mr. Erwin stated that three areas had been identified as potential areas to be developed first. These areas are the land along Gregg Street, land at the south of the north -south street along the By- pass and the area of land along Joyce Street. Mr. Erwin stated the Planning Commission had expressed concern that the developers would run cul-de-sacs down to the creek. They stated that when the roads were developed, they wanted to see a thoroughfare through the property. The present plan was a response to that concern, stating that the developers were willing to build the north -south street and approximating its location. Alderman Young asked if the petitioners want to voluntarily put in three lanes on the bridge in the agreement, and if they were willing to pay for three lanes. Mr. Milholland stated there have not been any negotiations. Alderman Hill asked the staff what the normal right-of-way is for a five lane street with sidewalks. Kevin Crosson stated that the minimum right-of-way is 80 feet. Eighty to 100 feet is normally required. Mayor Hanna opened the floor for discussion from the public. David Glasser, a new resident of Fayetteville, stated that he is the recently appointed director of the Harvey and Bernice Jones for Community Planning and Outreach. Mr. Glasser stated that he had visited several different communities in the area and each community expressed the same concerns. Mr. Glasser expressed his concern about zoning this property commercial and allowing it to be developed in a manner similar to what has happened in large cities in the country. He asked the Council to carefully consider before they allow development in this area to overtake the beauty of the area, which has been the draw for so many others from across the country who have moved here. Mr. Glasser stated that he had moved to this area and accepted this position because he believes in the character and quality of the small towns of Arkansas and he believes in the conservation of these small towns. He stated that if the Council grants open ended approval of large areas of commercial zoning, they are "giving the ship away." He feels the Council is in the unique position of preserving something very valuable in not allowing so much development that it overwhelms the city's character. i 476 November..7, 1995 Mr. Glasser asked for wisdom and thoughtfulness on the parLof .the, # Council. He.:stated this was not.the.way to go aboutcontrolling" and planning the quality of life in this community. He asked..:why,, anyone would be willing to give away.:such a unique quality:of4life'..' for the benefit of a few when the bulk of the community will .suffer ' . because of these kinds of planning decisions. He urged the Council to vote against the rezoning proposal. Doug Wilde, a representative of the 280 member group Friends for Fayetteville, spoke about the purpose of the group. He stated Friends for Fayetteville isa non-profit organization dedicated to preserving and improving' the quality of life of Fayetteville's current and future residents The group is particularly interested in citizen participation in. local planning and development issues. Mr. Wilde stated that the Council has before it a momentous decision in whether or not to rezone more. than 300 acres of agricultural land to commercial and R-0. Mr. Wilde acknowledged and thanked the Council, Planning Commission and staff for all the time and work they had put into this matter. Mr. Wilde stated that the Friends for Fayetteville were concerned about this rezoning for two reasons. The first and .foremost of these reasons is that no one has demonstrated a need for this rezoning at this time. Also, the group is concerned about the negative impacts of rezoning on the areas being rezoned as well -as the other commercial areas throughout the city. , Mr. Wilde expressed his opinion that. land should only be rezoned if it..is.in.the larger interests of the city. Since there are already `largetareas of land zoned commercial throughout the city which `-continue to lie undeveloped or under -developed, the need for more commercial zoning is just not there. Mr..t;Wilde also questioned the consequences of :this 300 acre rezoning. It greatly diminishes future' Councils' flexibility in _rezoning matters. In the.2020 Plan- it states that 800 acres of commercial land will be needed in the next 25 years: This.single rezoning request consumes nearly one-third of that total. If this 800 acre figure is correct and the Council.does not want to create a glut, then future Councils are limited to 22 acres of new commercial land per year: Other•concerns expressed by -Mr. Wilde included the :lumping .of all commerce in one spot guaranteeing more and greater traffic jams, increased run off and lack of green space due to huge parking lots,' and the impact of this rezoning on .existing commercial areas in Fayetteville. Mr. Wilde was concerned that massive commercial development at the periphery of the city will hurt the commercial life of the downtown area just as it has in countless communities across the country. 0 477 November 7, 1995 Mr. Wilde stated that the Friends for Fayetteville wholeheartedly agree with the many concerns raised by the Council regarding this rezoning request. He said that a quality city is one that is planned so that every change in land use adds to the quality of life of the citizens while preserving its unique character. Based on that, this rezoning proposal doesn't pass the test. Mr. Bob Brandon, a resident of Fayetteville, spoke on behalf of the Wilson Park neighborhood which will be a direct beneficiary of the negative impact of this development. He stated that he was very concerned about the traffic impact this development will have on this neighborhood as a result of all the traffic coming out of the west end of the development onto Gregg Street and traveling south to Wilson Ave., a residential street in his neighborhood. No funds are in the current budget to alleviate this problem of increased traffic. Mr. Brandon reminded the aldermen that public safety is not a discretionary activity undertaken by this Council. It is a duty. To vote for this development, which will have a direct negative impact on the public safety in the form of truck traffic and thoroughfare -commercial traffic on residential streets, abrogates the duty and responsibility of the Council to protect public safety. Mr. Morty Newmark of Overcrest Street in Fayetteville, stated that he has lived in this area since 1982. He stated that the prospect of this 300 acre rezoning concerns him more than almost any other issue. He stated that he had lived in many other areas across the country and he came here for the quality of life to be found here, not to shop. Mr. Newmark stated that though the growth of the city is inevitable and desirable, the type of progress typified by this rezoning has been rebuked in almost every place it has happened. He expressed concerns about the incredible possibility of traffic congestion. He also expressed concern on behalf of other merchants in the city who will be forced to compete with this massive commercial area. Mr. Newmark expressed deep concern about what was about to happen here and what he feels we will regret ten years from now. No one is talking about the infrastructure for water, sanitation, etc., to meet the needs of the growing population. He asked the Council to give this rezoning request very serious thought and not vote for the request. Peggy Smith, a resident of Ward 4 in Fayetteville, stated her concern that Fayetteville is growing too fast and the growth should be slowed and controlled. She felt the 2020 Plan would help to accomplish this and the Council should pay close attention to it. 478 • November 7, 1995 Ms.'Smith reminded the Council that the property taxes fortheMall area go to the Springdale school district, not -Fayetteville. The City of Fayetteville will be paying for improvements required by the' development and increased traffic but Springdale will be reaping the benefits. She stated that -she does not see a need for this much area to be rezoned commercial at this time. Alett Little addressed the issue of property taxes and which school district will benefit from those taxes. She stated that the area to the north of Mud Creek is in the Springdale school district and the area to the south of Mud'Creek is in the Fayetteville school district. Property taxes for school millage are divided along that line. Of course, all of the sales taxes from any development in the area does come to Fayetteville. There being no further comments from the audience, Mayor Hanna closed the public hearing and returned discussion to the Council. Alderman Parker discussed the past requests made for rezoning of this parcel of land. He `expressed his disappointment that the traffic study provided for this development did not respond to what he had requested, which was a worst-case scenario projection of traffic numbers asuming that all this area will be intensively developed as is most of the C-2 property in Fayetteville. Alderman Parker repeated what many people had already stated, that there is no demonstrated need for commercial property in this quantity at this time. Fayetteville has plenty of commercial* property presently and to increase the amount is,going jto'make ] ' other commercially zoned areas less..attractive for development. Alderman Parker stated the Council must look at whether there is..,a need for commercial property.. The .big problem at this tithe +is' traffic and the public wants.this issue addressed. Tripling the area of commercial development around the Mall will overloadtthe, area with traffic and compound the .problem. This is contrdry:to•-' the message he feels the voters have been trying to get through to the Council. Alderman Parker stated that this request is for a rezoning for a wide variety of commercial projects and the Council has every reason to expect the highest.possible density development. Alderman Schaper stated that David Glasser was highly regarded and respected in his field and had been chosen for his position with the Jones Center after 'a: nation-wide search. Alderman Schaper asked the: Council to heed Mr. Glasser's warning. 479 November 7, 1995 Alderman Schaper stressed that the many people who have moved to this area from larger cities have done so because of the small-town atmosphere. This is not to say Fayetteville shouldn't grow. He stated that growth does not mean that the city has to sprawl out onto previously undeveloped land when there is so much appropriately zoned land as yet undeveloped or underdeveloped. Alderman Schaper asked the Council to join him in voting no to this rezoning request. He explained that he is not against the proposal in totality but feels the Council should not be zoning the entire 300 acres which cannot possibly be developed in the next ten years. There is no need to engage in this kind of land speculation at the expense of our downtown and existing businesses which will have to struggle to survive against the businesses which will be coming into this area. Alderman Daniel agreed that the downtown businesses are hurting and expressed her concern about this. There has been a great need for an overall plan for this entire Mall area. She is concerned about what the whole thing will look like when this project is finally developed. Alderman Daniel stated that she feels very torn about this issue. There is some truth in what has been said about "sprawl" that will further drain the downtown area, but this matter has been dragging on for too long. Alderman Daniel hoped that in the future the Council will remember and learn from this and develop ordinances and codes to further strengthen the downtown area and keep it vital. In response to a question from Alderman Hill, City Attorney Rose stated that the document presented to the Council is not a legal Bill of Assurance but is a legally enforceable document. He further stated that the Council will not be voting on that document, but will be voting on the zoning itself. Mayor Hanna explained that the items in the Bill of Assurance presented will be addressed at Large Scale Development. Alderman Williams asked City Attorney Rose if it was not true that the Council was not voting and taking into consideration the offer made by the petitioners/in writing which has been signed by the owners of this property. City Attorney Rose stated the Council was certainly taking that into consideration because it has been offered by the petitioners voluntarily. However, that it is not what the Council is voting on at this time. 480 it November -.7, 1995 In response to a question from Mayor Hanna, City Attorney. -.Rose stated that it is correct that the Council will have the opportunity to bring any large scale development that: comes. through with this property back before the Council at the request of any Council member. If the petitioners do not do what they have said they will do, the request for large scale developmentcan be turned down. Alderman Hill stated that he had spoken at length this week with Mr. Erwin and Mr. Milholland..•He has told them that he likes what they,%along with the Planning Commission and staff, have done'and has simply asked them to postpone this matter for two weeks until some of the issues which he feels are crucial to the citizens of Fayetteville can be worked out. Alderman Hill asserted that he is not against this development but --feels there are still some very critical details left to be worked -through. Alderman. Williams stated that although there will be .some disagreements among this .Council, he does not think it is because anyone on the Council has a different agenda. Each member is very interested in Fayetteville's future and all are concerned about controlling growth. Alderman Williams stated growth cannot be stopped .but must be directed to the areas where it will work the best. He asserts that the area around the Mall is obviously the best place for commercial development in Fayetteville. Alderman Williams expressed his disagreement that downtown Fayetteville is in trouble. He stated most of the downtown area business at this time consists of banks, specialty and computer shops and lawyers offices which will not' be adversely affected by this development. This development will not bea threat to downtown Fayetteville. In response to a comment by Mr. Glasser regarding the Northwest Arkansas Mall being a disaster, Alderman.Williams stated that,is where the City gets its money. This is why Fayetteville does not have to have any millage property tax to run the City government. Alderman Williams also commented on how much better..,the• traffic situation -is now in that area since the new lanes. have been.added- to College Ave. As more .connections are built, he feels thea 1' traffic will continue to4,get better. 'It -is much better to put new' commercial development in this area where the highway system and .,K r. . infrastructure is being improved to handle the increase.t # 481 November 7, 1995 Alderman Williams stated that it is his understanding that in a zoning decision one of the things to be considered is the highest and best use of the land. Commercial development in this area is the highest and best use of this land. Alderman Miller stated that there have been many decisions he has been faced with while on the Council that he did not want to make and this is one of them. The major problem with the request is that it is too big. However, when rezonings are considered, as Alderman Williams stated, the highest and best use of the land must be considered, as well as compatibility with the area. Alderman Miller stressed that any development going into this rezoned area will still have to meet all the ordinances this Council has worked so hard to develop to ensure that this and any other development is done well. Alderman Miller stated he had given this issue a great deal of thought and though he still has many reservations, he has decided to trust promises made by Mr. Milholland and others and vote for the rezoning. Alderman Young stated that the central issue for him in this matter is that people mean what they say. He had wanted to make sure the developer was going to put in the street and this agreement assures him of that. Alderman Young stated the Planning Commission and staff have done their job and even some of those opposing the rezoning had stated they like aspects of the plan. Alderman Young stated that many have said that we need to get control of the growth of development. He stated that everything he had done while on the Council had been toward the aim of getting control of the process. Alderman Young questioned the intentions of some who were opposed to this project, feeling that their real intention was to stop growth, not simply control it. He stated if this is anyone's true intention, the citizens have the right to know this and not be misled. Alderman Bassett explained that he was not aware of any other town in Arkansas which has spent more time trying to manage growth and deal with development issues than Fayetteville. He stated with all due respect to Mr. Glasser, a person should spend more than five weeks in a town before making negative judgements. 482 November 7; 1995 Alderman Bassett stated that a lot had -been done over the past few years to.manage growth. The area near the Mall is perfectly suited to commercial development and the City has made progress with the infrastructure- in the area. It is important for the City to generate more sales taxes and this development will meet that need. Alderman Hill asked Mr. Milholland if he .and his,,.client.would support putting the road into the development followingthe'Master Street Plan in joining Joyce and VanAsh. Mel Milholland suggested the issue be addressed at -the Large Scale Development level. Alderman Young stated the Planning Commission has veto power if,tle street is not built as it needs to be. Upon roll call, the ordinance for rezoning R95-24 passed by a vote of 5 to 3, with Parker, Hill, and Schaper voting no. ORDINANCE 3935 APPEARS ON PAGE OF ORDINANCE BOOK Upon roll call, the ordinance for rezoning R95-25 passed by a vote of 5 to 3, with Parker, Hill, and Schaper voting no. ORDINANCE 3936 APPEARS ON PAGE Upon roll call, the ordinance for vote of 5 to 3, with Parker, Hill, ORDINANCE 3937 APPEARS ON PAGE OF ORDINANCE BOOK rezoning R95-25.1 passed by a and Schaper voting no. OF ORDINANCE BOOK Mayor Hanna commended the Council for all the time and thought they put into the issue and thanked the developers for their work. B. WATER LINE CONNECTION :FEES: An ordinance _prescribing connection fees for developers tieing on to a new water line along Salem Road running from the southeast corner of the Salem Village Subdivision to the south side of Mount Comfort Road. Mayor Hanna stated the ordinance was left on its second reading at the. October 17 Council meeting. Parker, seconded by Williams, moved to suspend the rules and move the ordinance to the second reading. Upon roll call, the motion passed on a vote of 8 to 0. City -Attorney Rose read the ordinance for the second time. Alderman Schaper stated that there is now a map defining the assessment area that had been in question. He expressed his support for the ordinance. 483 November 7, 1995 Alderman Parker asked for the reason for not including the area directly across from Salem Village in the assessment area. City Engineer Don Bunn stated the area directly across from Salem Village will have the water line that is put in for Salem Village available. The City of Fayetteville will not have participated in this line. Mayor Hanna asked for any comments from the audience. There were none. Williams, seconded by Young, moved to suspend the rules and move the ordinance to the third and final reading. Upon roll call the motion passed on a vote of 8 to 0. City Attorney Rose read the ordinance for the third and final time. Upon roll call the ordinance passed on a vote of 8 to 0. ORDINANCE 3938 APPEARS ON PAGE OF ORDINANCE BOOK C. REZONING RZ95-32: An ordinance rezoning 27.72 acres located south of Zion Road, east of 71B and west of Crossover Road from A-1, Agricultural to R-2, Medium Density Residential as requested by Jack Torre on behalf of Zion Valley, LLC. Mayor Hanna stated the Planning Commission voted 8-0-0 to recommend the rezoning subject to a Bill of Assurance limiting the development to 104 units. The ordinance was left on its first reading at the October 17 Council meeting. City Attorney Rose read the ordinance for the second time. Alderman Schaper stated that there had been some confusion regarding the exact number of units to be developed at this site. There is now a new Bill of Assurance clarifying the number of units at 104. In response to a question from Mayor Hanna, Alett Little assured the Council that the current Bill of Assurance is for 104 units. Mayor Hanna opened the floor for public comment. There was none. Young, seconded by Daniel, moved to suspend the rules and move the ordinance to the third and final reading. Upon roll call the motion passed on a vote of 8 to 0. City Attorney Rose read the ordinance for the third and final time. • 484 1F November 7, 1995 Alderman Schaper stated it would have been very easy for the owner of this land to request commercial zoning for this area since there is so much commercial zoning surrounding this site. Instead, he requested residential zoning in order to provide housing for people who work in this area. This is good development which conserves land and stated his support of the request. Alderman Young commented on the need for residential with so much area already zoned residential. Alderman Parker stated every authority which speaks of managing and controlling growth speaks of mixed use of property., He expressed support for the fact that this project will allow people who work and shop in this area to live in this area. Upon roll call, the ordinance passed on a vote of 8 to 0. ORDINANCE 3939 APPEARS ON PAGE CONSENT AGENDA OF ORDINANCE BOOK Mayor Hanna introduced consideration of items which marbe'approved °` by motion, or contractsand leases which can bes"approvedA by',,,. 1 resolution, and which may be grouped together and approved simultaneously under a."Consent Agenda" A. Minutes of the October 17, regular City Council Meeting.: 69 to the lowest qualified44, , Gus Shaffar Ford,«for'the Interceptor Vehicles for a A resolution awarding Bid 95 - bidder meeting specifications purchase of 6 Police Platform total of $116,730. RESOLUTION 136-95 AS .RECORDED IN THE CITY CLERK'S OFFICE. Schaper, seconded by Miller, moved that the Consent Agenda be approved. Upon roll call, the motion passed on a vote of 8. to 0. CONSTRUCTION CONTRACT Mayor Hanna stated that Item #2a has been pulled from the agenda and will go before the Street Committee for review. Alderman Williams explained.he wouldlike- totentatively schedule a Street Committee meeting right -after the Agenda Meeting on Tuesday, November 14, subject to the .agreement of the other Committee members. • November 7, 1995 In response to a question from Alderman Schaper, stated the project has never been included in the has never been before the Street Committee and expenditure of money. It would be best to Committee look at it and make a recommendation to 485 Alderman Williams CIP project list, involves a major have the Street the full Council. Mayor Hanna explained that the reason this item was not on the CIP was because it was intended as an in-house project. When the engineering staff looked at it, they realized the road had deteriorated to such a point that an overlay no longer was sufficient. It appears now that there will need to be some drainage work on the uphill side of the street. There had been many complaints from neighbors in the area regarding their land sliding there. Since the project was not on the CIP, there was a request from the Street Committee members for the project to be brought before them. HOUSING COMPLEX Mayor Hanna explained that Tom Embach of Leisure Homes Corporation had asked to present to the Council a development he is proposing for affordable housing for senior citizens. Tom Embach explained that his company started in Mountain Home in 1971. He stated that the projects they develop, they manage themselves. Mr. Embach stated that over the past 25 years his company had established a good track record with outstanding recommendations from officials from the cities where their projects have been developed. There is a strong identified need for housing for senior citizens (defined in this instance as those 55 years of age and older) in this area. In speaking with the staff here in Fayetteville, it was suggested that there was a possibility of using some land held by the City in the Walker Park area might be available for sale to his company for one of their developments. Mr. Embach stated that their aim in building elderly housing was to place it in an area where the residents could easily access either existing or proposed facilities. Because of the proposed senior citizen center planned for the Walker Park area, this would be an ideal area for senior citizen housing. Mr. Embach shared with the Council some background on his company and the developments they had already done. He showed some slides to the Council of previous developments and discussed the design of these buildings and the care taken in landscaping and preserving existing trees. He also discussed the average rent charged for their apartments. 486 November -•7, 1995 Mr. Embach stated that they are interested in .locating a development near or adjacent to the proposed senior citizen center and asked for direction from the Council -as to whether this was a possibility. Mayor Hanna explained that Jan Simco had brought Mr. Embach to him and he was asking whether the City would be receptive to helping him locate a site for building this affordable housing. The Council has discussed the need for affordable housing in the past and one of the ways the City can help developers locate affordable housing in the central part of the cityis to try to find public land and sell it to the developer at fair market value, take the money andleave it with community development. With this money more property can be purchased in the central part of the city for another project in the future. Mayor Hanna further explained that the City would not ask the developer to pay for the land until this project is finished, giving the developer his capital to help in the building project. When the.development is complete; the developer's loan would be in place andhe would then pay the City for the land. Mayor Hanna stated that they realize, if the Council is agreeable to this project, it will be necessary to go through. Parks and Recreation and get their input. At this point it is necessary for the Council to make a decision regarding whether they would be interested in participating in this project. Alderman Parker stated that he would prefer tosee the Parks and Recreation Committee involved in this from thebeginning to get input regarding what land they would see as undesirable for committing to a project like this. Alderman Miller expressed his strong feelings that cities cannot have enough green space and wooded. space. He stated that Mr. Embach has done a commendable job with his past projects and he feels a quality senior citizen housing project with affordable utilities would be wonderful.. He explained he is very protective of the proposed wooded area but will listen to proposals and keep an open mind. Mr Embach stated that he appreciated this and said his objective is to get the best possible site for the residents. stated that he would be willing to bend as much as he can to out the best location for the future residents of his developm He assured the Council that his motivation is not'economic in case. main He work ent. this Alderman Miller stated he appreciated this and assured Mr.'Embach he would remain open minded about this project. 487 November 7, 1995 In response to a question from Alderman Miller regarding ADA requirements, Mr. Embach stated that the plans developed by his company are certified to meet all the Americans with Disabilities Act requirements. All the units are wheelchair accessible and designed to allow tenants to live in them independently as long as possible. Mayor Hanna suggested that Mr. Embach and Jan Simco meet with the Staff and come up with a particular location to come before the Parks Board and get their input. Mr. Embach stated that they would have to get into their funding by January 1 and he had wanted to get some kind of direction from the top to avoid coming back later and having problems. Alderman Parker stated that usually projects such as this come through one of the agencies within the city government with expertise in that area with recommendations to the Council. Mr. Embach stressed that he was asking for guidance and direction regarding the concept of using the land, not permission to use a particular piece of land. Alderman Hill stated that he felt it would be necessary to hear from City Attorney Rose about whether this plan, funding, etc., is appropriate. City Attorney Rose stated that his office would check into this. Mr. Embach expressed his appreciation to the Council for listening to his proposal and stated he looked forward to working with the Council on this. Alderman Williams explained he has some problems with considering selling park land. He stated he would not close his mind to this project but does have some concerns about selling park land for development like this. Alderman Williams reminded the Council that the senior citizen center has not yet been fully funded and much of the funding is now dependent on the passage of the tax to be voted on next week. Without that tax, the money will have to be raised locally and it could be a long time before the center is built. Alderman Parker reminded the public that the tax issue will come up for vote next week. Alderman Schaper urged everyone to get out and vote on this very important issue. 488 November 7; 1995 TRANSFER STATION AND MATERIALS RECOVERY FACILITY • Mayor Hanna introduced consideration of a resolution approving a budget adjustment in the amount of $663,853; approving Change Order.. #1; and awarding a construction contract to Oakridge Builders, Inc. in the amount of $1,708,000 plus a 10% contingency of $153,017 for the construction of the City's Transfer Station and Materials Recovery Facility. L Kevin Crosson stated that based on the discussion at the Agenda Session, the staff has met with the aldermen who were interested in talking about the change order and are now recommending adding back in the contract and reducing the change order by $31,215, to $177,835. . Mr. Williams stated that he had some concern about coming down from the original specs on such a long term project. He stated he realizes the City is trying to save money anywhere possible but it is sometimes better to spend the extra money and build it the way it should be built. Alderman Hill explained that in one instance where they have cut cost, they have changed from a conduit that would have an estimated 100 year life to one that probably has a 95 year life. The change will not hurt the project. Mr. Chuck Nickle stated that they have asked for a little more contingency. Some of the reduction the Council sees in the cost of the project is not a reduction in quality, it is a matter of pulling some work out and doing this work with City forces. The dollars will still be spent, just not out of this contract. In response to a question from Alderman Williams, Mr. Nickle said he;is comfortable that this was going to be a very well built, long lasting ,and durable project. Williams, seconded by Miller, moved that the resolution be amended as presented. Alderman Bassett stated that he appreciates the work done by .Alderman Hill and the staff on this project and he feels this is a much-needed project and it is being done the way it should be done. Alderman Bassett stated that he has been a little disturbed by comments he has read in the paper recently by Representative Hunton of Prairie Grove. He was quoted in one paper as saying to some of the mayors of smaller towns that as long as they were not united, the City of Fayetteville would use them however they choose and charge whatever price they choose for services. He also said the rural areas are not being represented in the Intergovernmental Council meetings and the smaller communities are treated like second class cities. i 489 November 7, 1995 Alderman Bassett stated that these comments had arisen in connection with the discussion about the transfer station. Alderman Bassett stated that he respects Rep. Hunton's right to state his opinion but feels he is wrong in this instance. Alderman Bassett states he is disappointed that Rep. Hunton is trying to divide the county along lines of large vs. smaller communities. Alderman Bassett stated that Mayor Hanna and the Council have an obligation to the taxpayers and citizens of Fayetteville just as the mayors and councils of the smaller communities. He feels that Fayetteville has gone out of their way in the last three years to reach out and work with other communities in an effort to find regional solutions to regional problems. He added that this project was held up for at least a short period of time when Rep. Hunton raised some issues which led to the calling of a public hearing. Neither Mr. Hunton nor anyone else showed up at that public hearing. Alderman Bassett stated that Fayetteville is trying to find some solutions to the solid waste problems and find ways to improve recycling efforts. The City is doing the right things and trying to help other communities do the same thing. It is true that communities that choose to use this transfer station for the purpose of disposing trash are going to pay more per ton than what Fayetteville will pay. The reason for that is that Fayetteville is paying for the lion's share of the station and Fayetteville will be the one to finance the maintenance of this facility for years to come. Alderman Bassett stated this transfer station is a good thing and he is disturbed that an elected official would go out of his way to try to cause a split in the county. Alderman Daniel stated that she also interpreted the statements made by Rep. Hunton as government vs. free enterprise. Alderman Parker stated that he liked the transfer station because it takes away the City's dependence on local land fills, which are an uncertain alternative. He expressed support for the idea of building a facility that will control where the trash goes. Alderman Hill stated that he agreed with Alderman Bassett and appreciated him making the statement. He also wanted to thank Cheryl Zotti, Chuck Nickle and the rest of the staff for their help on this project. He also thanked the contractors and subcontractors who worked on the project. Upon roll call, the motion passed on RESOLUTION 137-95 AS RECORDED IN THE a vote of 8 to 0. CITY CLERK'S OFFICE. 490 November,,7, 1995 AIRPORT- MARKETING PLAN Mayor Hanna introduced consideration of a•resolution.,approving a Marketing Plan which was prepared by the Fayetteville Airport 'Marketing Subcommittee of the Chamber of Commerce, Mayor Hanna stated that this plan had been under discussion for 'some time and presentation had been made before the agenda session last Tuesday. Alderman Williams asked City Attorney Rose if making amendments to this marketing plan would require mote RFQ's or a rebid for everything. City Attorney Rose stated he did not believe that•would be necessary. The question to ask would.be whether the. amendments would materially affect the cost of someone's .bid. The•current proposed amendments would not do this. Alderman Williams stated that when this marketing plan was developed by the Chamber it was presented to the Airport Board and adopted. When it was first presented to the Council, Alderman Williams had stated that he felt nothing should be done.in the Plan that would:imply to current air carriers that the City's commitment to service to them and the traveling public asthe number one priority had changed. Alderman Williams suggested making the amendment the number one objective that Drake Field be maintained as a viable regional air - carrier airport with the five tentative proposals listed under that objective. The remaining objectives would be listed in order after this first objective. Williams, seconded by Young, moved to approve amendment. thproposed,, Alderman Miller expressed his..support for this amendment:;yThe amendment simply makes sure the Council's wishes are clear'to'the consultant involved. ; Mayor Hanna asked members of the Airport Commission in the.audience' and members of the staff if anyone had any objections or comments on the proposed amendment. • John Gearhart, a member of the Airport Board, urged the Council's approval of the Airport Marketing Plan as it was presented. He stated that there is nothing in the Plan that states they will not go after every possible commercial airline in the -country. The plan has had input from experts from other airports, local businessmen and the airport staff: • 491 November 7, 1995 He stated that no one knows what will come out of a marketing plan. He stated that it has been about two and a half years since the airport wanted to start some kind of marketing at Drake Field. Time is important and time has been wasted. He urged the Council to get on with this plan and approve it now. It is important to get started with the marketing now and not waste any more time. Alderman Miller stated he did not feel the two and a half years involved in getting to this point was the fault of the Council. The proposal has only now been handed to the Council with a "take it or leave it" message. The proposal should have come to the Council in May when it was finished. Alderman Miller stated he sees a lot of good in the proposal and the Council is not here to delay it. The proposal has been well done. The Council simply wants the Board to know that as a Council they feel commercial aviation out of Drake Field is very important and would like to see it emphasized. Mr. Gearhart stated that commercial aviation would be emphasized in every way possible in a broad guage marketing plan which ties no ones hands. Mr. Gearhart stated that after the May 4 meeting he had made the suggestion that this go to the Council at that time. Months have been wasted in the meantime and he again urged the Council to get on with it and approve the proposal. Mr. Gearhart urged the Council to leave the details for experts. Alderman Williams stated that the City Council has to decide what is the best policy for the airport, which is one of the City's major assets. It is not improper for the Council to go on record as saying that their main objective is to provide the service to the airliners and the passengers. The marketing plan does not make this the number one priority and it should be there on the plan. Alderman Williams stated that he had attended the Board meeting when each of the items he suggested was discussed. The Board did not appear to have any problem with them. The items are not anything the staff and Board have not already discussed, but just a matter of emphasis. It is something the Council has every right to do and, according to City Attorney Rose, will not delay the proposal at all. In response to a question from Alderman Hill, Mr. Gearhart stated that he is a member of the Airport Board. Alderman Parker stated that he feels everyone on the Council is in support of this marketing plan. The Council has always supported improvements to this airport. 492 November 7, 1995 Alderman Miller expressed his appreciation of Mr. ,Gearhart's expertise and involvement in developing this marketing plan. He asked Mr. Gearhart to understand that the Council members will be the ones answering to the citizens for any decisions made. Mr. Gearhart stated that he would like the opportunity to read the suggested amendment before it is thrown in on top of the plan they have worked so hard on. Alderman Miller stated that the amendment would not change the plan, simply the emphasis. Mayor Hanna asked for any further comments from the audience in regard to the marketing plan. Mayor Hanna stated that the motion on the floor is to enter one more.objective to the plan, as the number one objective. That objective simply states that Drake Field should be maintained as a viable regional aircarrier airport, keep in contact with regional 'air carriers to see what they want, survey the passengers, etc.. It does not appear to change the marketing plan. Upon roll call, the motion to amend the Marketing Plan was approved on a vote of 8 to 0. Young, seconded by Parker, moved that the resolution supporting the Airport Marketing Plan as amended, be approved. Upon roll call, the resolution was passed on a vote of 8 to 0. RESOLUTION 138-95 AS RECORDED IN THE CITY CLERK'S OFFICE. SPECIAL CENSUS Mayor Hanna introduced consideration of a resolution authorizing the mayor to execute an agreementto participate in a county -wide special. census, city-wide special census, and approving a budget adjustment funding the City's cost of the special census. Mayor Hanna stated that this item had been explained to the Council at the Agenda Session. The County Judge has asked the Intergovernmental Council vote on whether or not to have a county- wide census. The seven communities in the county plus Springdale and Fayetteville are represented in the Intergovernmental Council and each one has one vote. They will have to make a decision on this census. r t Alderman Miller stated that there has obviously been growth in every town in this area and a raised census would produce more turn -back money for every community. He does not see how anyone could object to this. It is money well invested. 493 November 7, 1995 Mayor Hanna explained that some communities with a smaller population might not have the money to commit to the census and they might not benefit as much either. The County Judge may suggest that Fayetteville pick up the cost for some of the smaller communities who cannot afford the expense. Alderman Schaper cautioned that if the population of Fayetteville comes in at over 50,000, according to State law, the planning area radius will be reduced from five miles to two miles. This will happen in any event in the next regular census in the year 2000 but it is something that should be planned for. Mayor Hanna opened the floor for any comments from the audience. There were none. In response to a question from Alderman Hill, Mayor Hanna explained that it would probably be 1997 before the City would collect monies assessed through a new census but the census will be started pretty quickly. An application will have to be made and deposits submitted, etc. Williams, seconded by Miller, moved that the resolution be approved. It was clarified that with this vote, the Council is voting to do the City's share in a special census if the Intergovernmental Council votes to proceed with it. Upon roll call, the resolution was passed on a vote of 8 to 0. RESOLUTION 139-95 AS RECORDED IN THE CITY CLERK'S OFFICE. OTHER BUSINESS THE CLIFFS - COST SHARING Alderman Williams apologized to the Council for not putting this item on the agenda at the Agenda Session. He explained that the Street Committee had met, reconsidered the CIP funds for the Cliffs Subdivision and, on a three to one vote, decided to recommend to the Council that they reinstate the cost sharing for the Cliffs Boulevard project. After discussion, it was decided to place this on the agenda under Old Business for discussion at the next regular Council meeting. INCINERATOR SETTLEMENT UPDATE City Attorney Rose gave a report on the Incinerator settlement. He had passed out to Council members a proposed Stipulation of Settlement, subject to Court approval, on the Incinerator case. 494 November -7,.1995 Mr. Rose explained that the Arkansas Supreme. Court recently declared Ordinance # 3444, which imposed the $2.02 charge.to city rate payers, to be an illegal exactment. At that time the Supreme Court also declared the Waste Disposal Agreement, under which the City promised to pay the incinerator bonded indebtedness of the Recovery Authority to be void from its inception. The Supreme Court remanded this case back to Judge Oliver Adams and the two chief things remaining before that judge are the issues of attorney fees to be paid to Barnhart's attorneys and the amount and method of the refund to be made to the rate payers. Mr. Rose presented some figures for the Council to"review along4 with the Settlement Agreement. The total amount col-lected,through.( the $2.02 charge was $4,088,296.76. The total interest earned on - that money was $535,693.00. The average rate payer has paid since Sept. 1989 approximately $150. The total attorney feesthat were spent by all parties on the other side of this case and the FOIA lawsuit amounted to approximately $2,700,000. 4.64 The suit was filed in August, 1989. The attorney fees and costss that were paid from the collections made were approximately $1,500,000. The amount of additional money that the rate payers would have paid had this ordinance not been declared invalid is approximately $16,500,000. Mr. Rose stated that he thinks it is important to remember who the attorneys for Barnhart represented and who Barnhart represented. She was certified by the Court as a class representative for the same people the Council represents, the rate payers andtax payers of the City of Fayetteville. Mr. Rose stated that the general rule, called the American Rule, provides for attorney fees to be given to the prevailing party only if there is a statute that tells you to do so or you have an agreement to do so. The most common exception to that rule is a class action suit such as this for an illegal exaction. Under those circumstances, an attorney who creates a class recovery is entitled to be reimbursed from that common fund created or benefit recovered. In this case that would be the $4 million plus interest. From this a reasonableattorney fee is to be paid. Mr. Rose states that he can find no general rule on what a reasonable percentage of that common fund should be as an award of attorney fees. Research done shows it varies widely from 15% up to 50%, -with -20 to 30% being the most common. Were this a pure illegal exaction case, Mr. Rose would expect the court to award a reasonable attorney fee of somewhere $1.1 and $2 million with the remainder to be refunded to the taxpayers. 4 November 7, 1995 495 The plaintiff's attorneys however have advanced to the City a new theory of attorney fees which increase the possible award of attorney fees in this particular case. Arkansas Statutes provide that attorneys who are successful in contract cases may be awarded attorney fees. The plaintiff's attorneys maintain that the Incinerator case is not only an illegal exaction case but also a contract case since the Supreme Court specifically ruled that the contract between the City and the Authority was void at inception. Accordingly, the have advanced the theory that they are entitled to an attorney fee based upon the beneficial results to the taxpayers as a result of that contract not being valid. They would ask that the attorney fees be based on the $16,500 that the taxpayers are not now required to pay as a result of the attorneys' efforts on that contract. Mr. Rose stated that it is his understanding that the plaintiff's attorneys would ask for approximately one third of that $16 million, or over $5 million as an attorney fee. Under this theory of recovery if they were awarded attorney fees, the city could well be required to pay the $4 million collected back to the rate payers and also up to $5 million from the general fund, totaling almost $10 million of the tax payers money rather than just the $4.5 million that represents the common fund. Mr. Rose stated he has attempted to research this contract theory and can find no case in point. Mr. Rose has also talked with a variety of other attorneys regarding this theory. He does not believe that this theory will likely prevail. However, he cannot say with a degree of legal certainty that the plaintiffs would not prevail. Judge Adams would be the one to initially decided whether to award attorney fees based on the contract theory. The plaintiffs have indicated that they would appeal an adverse decision to the Arkansas Supreme Court which would take an additional nine months to a year and a half. Within that framework, Mr. Rose recommended to the Council that the settlement offer presented to the Council, which has been negotiated with the attorneys for Ms. Barnhart, be approved. Mr. Rose stated that the agreement states that the rate payers will receive the opportunity to get back a prorata refund of the illegally exacted sanitation rates paid, less the award of attorney fees to the plaintiff's attorney. The plaintiff's attorney, under this agreement, will receive 50°% or one half of the illegal exaction. The attorney will receive about $2,500,000 and about $2 million will be refunded to the ratepayers. - • November 7, 1995 —A^Special Master will be appointed to distribute to the ratepayers. Should any funds remain after good faith efforts are made to return this money, it will be paid back into the City's general fund and will be used as the Council sees fit. The attorneys for Ms. Barnhart agree not to interfere in any of the City's third party claims and, indeed, to cooperate with the City in efforts to seek damages from third parties. Mr. Rose stated he has based this recommendation on his belief that it is in the best interests of the City of Fayetteville and its citizens. To not settle is to risk taxpayers money in an amount beyond reason and to continue to litigate for an additional year or more with the net result not likely to greatly increase the amount of money to be received by any average taxpayer. Mr. Rose reminded Council members that Judge Adams will have to approve any settlement. Even if the Council approvesthis recommended settlement, it will go back to Judge Adams and he will decide whether or not this settlement is in the best interest of the class before he approves it. Class members will have a hearing and an opportunity to be heard on all of these issues. Mr. Rose stated that the only decision he wants, from the Council tonight is when they intend to decide the issue; whether at a special meeting or at the next regular meeting. • Alderman Bassett suggested that any decision made should be made at a regular Council meeting. Alderman Bassett stated that the two weeks until the next regular meeting would be enough time to listen to people- and to,;make a decision. He feels it is very important to listen to the citizens of Fayetteville and hear what they have to say with regard'to this matter because it is their money which is being discussed. Alderman Parker suggested that the issue be placed under Old Business on the"next agenda, allowing the Fayetteville citizens to speak fairly early in the evening. Alderman Hill asked City Attorney Rose for an estimation of the costs involved in fighting this once a ruling is made and assuming one party or the other appeals the decision. City Attorney Rose said this would be very hard to estimate but felt it would be reasonable to estimate the cost- at several hundreds of thousands of dollars. 497 November 7, 1995 DECEMBER 5 COUNCIL MEETING Mayor Hanna explained that Alderman Bassett had brought to his attention that the first meeting in December is on the same night Arkansas plays Missouri. It was suggested that the meeting time be moved up from 6:30 to 5:30 or 5:00. The decision was made to discuss this at next week's agenda session. APARTMENT RECYCLING Kevin Crosson announced that the City had begun offering the blue bag recycling to all apartment residents on October 30. This is the same program that has been available to single family residential units. Since that time 100 people have signed up for the program and he anticipates the number will dramatically increase. The residential program has been a complete success and has resulted in a reduction in waste of approximately 23%. SISTER CITY MEETING AND TRIP Alderman Daniel stated that the Sister City Committee will meet on Thursday, November 9, in room 236 at 5:30 p.m. The delegation is set to leave for Santiago on Sunday, November 26. So far only five delegates are going and any interested participants are encouraged to contact Alderman Daniel through City Hall, the Mayor's Office or City Clerk's office. ADJOURNMENT The meeting ad:ourned at 9:55 p.m.