HomeMy WebLinkAbout1997-08-05 MinutesA MEETING OF THE FAYETTEVILLE CITY COUNCIL
A meeting of the Fayetteville
August 5, 1997, at 6:30 p.m.,
Administration Building, 113 W.
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City Council was held on Tuesday,
in the Council Room of the City
Mountain, Fayetteville, Arkansas.
PRESENT: Mayor Fred Hanna; Aldermen
Stephen Miller, Len Schaper,
and Randy Zurcher; City
Clerk/Treasurer Traci Paul;
ABSENT: Alderman Kit Williams
Mayor
Trent Trumbo, Donna Pettus,
Heather Daniel, Cyrus Young,
Attorney Jerry Rose; City
staff; press; and audience.
Hanna called the meeting to order with seven aldermen
present.
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 July 15 regular City Council meeting;
B. A resolution approving a contract with Perry Butcher &
Associates for design and construction supervision of
Phase II of the Girls Softball Complex for a cost of
$19,950 plus an amount not to exceed $11,000 for
reimbursable expenses;
RESOLUTION 68-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
C. A resolution approving a contract with McClelland
Consulting Engineers, Inc., for design and construction
supervision of two additional soccer fields and the Lewis
Soccer Complex in an amount not to exceed $21,915;
RESOLUTION 69-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
Alderman Miller moved the consent agenda. Alderman Schaper
seconded. Upon roll call, the motion passed on a vote of 7 to 0.
Mayor Hanna announced there were several items of interest to the
public on the agenda and, in the interest of time, public comment
would have to be limited to 30 minutes on each item.
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August 5, 1997
.,ANNEXATION --1,431.61 ACRES
Mayor Hanna introduced an ordinance submitting to the.voters.of the
.City of Fayetteville, Arkansas, and, other affected persons the
questions of annexation to said city of 1,431.61 acres, more cr
less, of contiguous territory. This ordinance was left on the
' second reading at the July 15 Council meeting.
Alderman Miller moved to suspend the rules and go to the third
reading. Alderman Daniel:seconded. Upon roll call, the motion
passed on a vote of 7 to -0.
OLD BUSINESS
City Attorney Rose read the ordinance for the third time.
John Lyle, attorney, spoke representing over 300 residents of the
area to be annexed who are opposed to the annexation. He stated if
the ordinance is passed and the election is successful, there will
be litigation. The annexation is legally faulty for several
reasons. One is that much of the land is agricultural, which
cannot be annexed under State statute. There will also be
opposition to a sewage plant.
Alderman. Daniel asked for City Attorney Rose's opinion on it being
-against.the.law to .annex agricultural land.
'Rbse responded this refers to Arkansas Statute 14-40-302. It talks
about five different purposes .for which land may be annexed. It
provides, that contiguous landsishall not be annexed when it has a
fair market value at the time of -adoption of the ordinance only for
agricultural or horticultural purposes and the highest and best use.
'of the land is for an agricultural or horticultural purpose. A
;number of cases have.been,lianded down,Since the initiation of that
}.aw. The prohibition against annexing:agricultural land is not an
absolute prohibition. The' land may indeed be annexed: if the
highest and best use is.a purpose other than agricultural and one
of the five criteria is met in addition to that.
Rose stated itmis.his understanding;that the Council is declaring
the highest and best purpose of these lands, while perhaps having
"some agricultural use,.:is something other than agricultural. If
they find that to be true,;the City can annex.
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Mayor Hanna opened the meeting to public comment.
;Bob Nikovits, W. Persimmon St.; stated he does not want the City
'out there. .He stated the City can go four more miles out Highway
16 West. There is a lot of land out there. One 100 -acre portion
is owned by two people, a lot less than the number involved in
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August 5, 1997
this. If the City is going to take the land being discussed, he
hoped they would take all of it and pay fair market value. He'd
been told once the sewer plant goes in, the land would be devalued
by 20%.
Cyrus Kooshesh, 46th Ave., spoke about wind flow. The flow of the
wind comes from south/southwest and goes toward north/northeast.
The smell will be carried all over town. If the wind goes the
other direction, it will go to Farmington. This place is
sandwiched between highly populated areas. Sewage carries all
kinds of bacteria, viruses, and other dangers to humans. This will
halt growth of the city. A city the size of Fayetteville does not
need two sewer sites.
Bill Dowers, 452 N. 46th Ave., urged the Council to vote against or
table this and not jeopardize the growth of the city. He asked the
Council to be a good neighbor to Farmington. Farmington had asked
to annex this portion but were told no. This will end growth to
the west. He suggested going to another engineering firm for a
solution.
Mike Wilkins, County Road 4605, stated the Council has said it
won't smell out there and it is not harmful to the environment. He
stated signs all around the Wyman community say, "Caution --Keep
Out --Sludge Application Area." This can't be safe. He showed a
picture of one sign.
Mayor Hanna stated the area being discussed will not have a sludge
disposal area.
Mr. Wilkins also stated there is nothing in this area to flush the
White River, as is sometimes done now.
Leslie Barnes, 76 N. Double Springs Road, spoke in opposition of
the annexation. He'd been taught not to mess up his neighbor's
yard. If this plant is going to be as clean and pure as he'd been
assured, he suggested putting it downtown or out by the mall. He
questioned the Council's stewardship of Fayetteville.
Sharon Davison, West Fork, asked the Council how much effort was
made to look into ideas such as citizens using gray water, which
would be ecological and cost saving and lessen the need for a sewer
plant.
Kevin Crosson, Public Works Director, replied no research has been
done on this.
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August 5, 1997
Jay Ross, audience member who stated he is not a resident of the
area, commented that Fayetteville's growth is the reason for the
need. We are trying to cram more residents into this area without
being ready for: them. He stated the Council should be responsive
to the opinions being expressed, each of whichwas against
annexation.
Vernon. McBryde, engineer and owner of 80 acres; realizes sewer
plantsmust be in Someone's:batk yard. Though not liking the idea
of his property being devalued, he stated he cares for
Fayetteville. We need to. figure out'a way to deal with and satisfy
all the individuals who havean interest in the annexation and
Sewer plant. Everyone must pull together.
Alderman Pettus asked if Mr. McBryde had read the CH2M Hill study.
*Mr. McBryde replied he has .read":this. He stated though it is
:engineering.in nature; he could tell the guy who put it together
was out of town. .
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Mayor Hanna closed the public=hearing.
Alderman Miller informed the public that OMI has an open policy and
"that" any citizen is welcome to ,tour the plant during business
hours'.
Mr. Nikovits, who spoke earlier, stated people in Farmington are
scared Fayetteville will cut their water: and sewer off. He asked
if the City could do that.
Alderman Daniel replied the City has a 20 -year contract with
Farmington.
Alderman Miller added the City could shut down services when the
contract is up, as is the case with any legal contract.
Mr. Nicovits stated it is this fear that keeps the people of
Farmington from coming to speak 'against .the annexation.
Alderman Zurcher .proposed an amendment to the ordinance. The
amendment would be that.whatever the:City annexed, it would offer.
to buy at fair market value. No matter what the rights. of City
are, the only equitable way to do this is to buy the land at fair
market value. We've been seeing urban sprawl.in this area. If the
City'bought that land, it .would give us the power to say exactly
how this was developed.
Alderman Schaper responded that the land for the sewer facility
would be bought at fair market value, as is always the case.
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August 5, 1997
Alderman Zurcher stated one reason for the annexation is to square
off the boundaries of the city. That is an invalid reason to annex
this much land, unless we can pay fair market value for it. He
felt the citizens had a good point in their concern for the smell.
The City has not done this before.
Alderman Daniel asked staff if four miles out is still in the
City's planning area.
Crosson replied no. The State legislature doesn't prevent this but
would require more study, and there would probably be a certain
amount of litigation for a brand new law that is fairly vague.
This would be for siting a plant there; just annexing is a
different question.
Alderman Schaper stated squaring off the city has been discussed
for several years. The boundaries we have now are strange. When
we square off, we are including areas that will logically be
developed in the future. Fayetteville doesn't intend to grow
infinitely, and annexing further out would be saying it does want
to be that big.
Alderman Pettus asked City Attorney Rose if the City can annex a
corridor four miles out.
Rose responded there is no prohibition in the statute. The land
simply has to be contiguous to the municipality. He reiterated
there are five reasons to annex property. He stated he would not
advise the City to make a thin corridor and a bubble, as that might
be more difficult to defend.
Alderman Trumbo stated he is not convinced the sewage plant should
go here. That is a different issue from the annexation. He
assured the citizens this is not a done deal.
Alderman Schaper agreed this is a tough decision. Six hundred
thousand dollars has been spent on the study of our sewer system
and future needs. Regarding the question of why a town this size
needs two treatment plants, he noted geography and topography
divide it into two discharge areas. We pump sewage from the west
side of town to the east side then back to the west side and into
the Illinois River. We have to look at the economics of continuing
to do all that pumping. Our consultants say it appears the long-
term cost is less to build two plants than it is to continue to
pump. We have to provide the service --and at the least cost --if we
want the town to continue to grow. The basic issue is doing what's
best for the overwhelming majority.
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August 5, 1997
Alderman Miller explained why the current plant smells. One reason.
is that it was never meant not to smell. . Another reason is the '
sewage from Farmington -stays in the lines for two to three days.
The smell is coming from the lift station, not the -plant.
Mayor Hanna called for the Vote
Upon roll call, the ordinance passed
Alderman Zurcher voting no.
ORDINANCE 4049 APPEARS ON PAGE
RZA97-10
on a vote of 6 to 1, with
OF ORDINANCE. BOOK
Mayor Hanna introduced an ordinance annexing 17.62 acres located
east of Skillern Road and west of Rom Orchard Road as requested by
Jim Neill and Milt McKenzie on behalf of Beverly Jeanne Skillern.
This ordinance was left on the first reading at the July 15 Council
meeting.
Alderman' Daniel -moved the ordinance to its second reading.
Alderman Schaper'seconded.' Upon roll call, the motion passed on a
vote of 7 to 0.
City Attorney Rose read
Mayor Hanna, invited the
.Jerry.Allred,_representing the petitioner, stated he would like to
reserve comments until after the public input.
the ordinance for the second time.
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petitioner to_speak.
Mayor Hanna asked for comments from the Council.
Alderman Zurcher stated this annexation's primary purpose is
rezoning for a development this city doesnot need. We have a glut
of- residential housing on the edge of town. This is a finger ..
annexation. This area is a wilderness area. The people who live
there now do so at a much lower density than the people who would
live in this proposed annexation.'This -is a bad idea. We would be..
increasing traffic, taxing our infrastructure, and losing the
-natural and agricultural areas -on the edge of town. '
Alderman Trumbo.stated the difficulty is looking at the density,
but there are some folks .in the area who are looking to the future
and don't mind.being annexed for the City's services.' The question
is'does it make sense for one small sliver now, or do we look at a
the whole at a later date.
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August 5, 1997
Alderman Schaper agreed. He objects to doing slivers just for a
particular development. One of the overriding principles is
neighborhood integrity. This neighborhood has been developed at
low density. There is a place for that, and the edge of town is
it. It is the last place you want to encourage high-density
housing. A choice is to leave it in the county and let it develop
at county -size lots. It could also be done in the city under
residential estate zoning. Here, R-1 density is as foreign as a
highrise in an R-1 neighborhood, a real change from the way things
are. This is most inappropriate.
Alderman Trumbo noted another difficulty is that the Planning
Commission voted 4-4 for the annexation. Also, neighbors had an
opportunity to buy this land and keep it agricultural.
Alderman Zurcher clarified that the Planning Commission voted this
down .4-4, as there was not a majority to pass it. He then
displayed a diagram from Mr. Baltz which illustrated housing
density in this area. He stated putting that many people on the
edge of town would create many trips.
Alderman Daniel stated that though this is a finger of land, it is
virtually in the city. One reason it is this shape is because Mr.
Skillern sold bits of his property off.
Alderman Schaper stated this has not been offered on the open
market, where it would be bought and developed in the manner
consistent with the immediate surrounding neighbor. It could be
left in the county to do that.
Alderman Pettus pointed out the Council is ignoring the property
owner. Mrs. Skillern wants her property annexed. The Council must
weigh the cost vs. benefit to the City. She would look at this,
plus the request to annex.
Alderman Zurcher asked if, under the rules of annexation, the
burden is to find a good reason to do this for the good of the
city, rather than to find a reason not to do it.
City Attorney Rose responded he is not aware of any burden of this
kind. The petition is before the Council on its own merits. The
Council may approve or disapprove this annexation for any reason or
for no reason at all, as long as the reasons are not
unconstitutional. He has not heard any of those.
Mayor Hanna reminded the Council that this addresses only
annexation and not rezoning. He then opened the discussion to the
public, reminding the audience the discussion would be limited to
30 minutes.
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August 5, 1997
Roy Rom, Rom Family Orchard, stated he is opposed to this
annexation and the development as a R-1 subdivision. He is not
opposed to planned city growth and holds no animosity toward the
developer. This annexation is premature. The. development is ill-
conceived and inappropriate. Annexation is a wedge to open the
door to the developer's plans, which constrains the exerciseof
alternative plans for this property. The Council has received a
petition against this annexation with over .150 signatures. The
Council .is .aware of the negative reaction of the Planning
Commission to this annexation. The Council is aware of the housing
density in this area now.. This annexation is a thorn in the flesh
of the Council and the neighborhood.
Mr. Rom asked the Council four questions:
1:) -What is the,.gain to the City and its citizens from this
annexation?. The infrastructure would be further stressed.
The real estate market for $200,000 to $400;000 houses on city
"lots;is saturated ,There are 2,000 acres of undeveloped land
within the city limits:': He asked if this annexation is going
to be cost effective: He asked if it is a response to the
implied threat .that the property will be developed to
.substandard levels with Cdunty approval.
2.) what-isathe profitability,to the existing community of
residences on acreages? He would say none. The land proposed
for annexation does not lend itself to a well-defined
community development. This annexation will result in a
single -street subdivision with limited style options for
development.
3.) What is the profit to the developer? The profit is
derived from the City and present property owners and future
purchase of properties. Just because something is doable,
profitable, and possible, it is not the right thing to do in
this instance. The neighborhood realizes that, eventually,
this neighborhood will be annexed., When that time comes and
the City is able to offer adequate services, the annexation
will bring to the City finehomes and a beautiful addition. to
the diversity of Fayetteville: He suggested this'17 acres be'.
listed at fair market.value'and developed by individuals
sharing the lifestyle, -beliefs of the present neighborhood.
4.) What profiteth a city if it gain.a few acres and loses its
sense of being and direction?
Tom McKinney, Arkansas Chapter of the Sierra Club, stated this
organization -opposes the annexation. ..'This is a question of
rezoning as well as annexation, -as one will follow the other. The
question is maintaining the integrity of an existing neighborhood.
He asked the. Council to uphold the decision of the Planning
Commission. They understood: the importance of not spot annexing
acreages into the city,,.particularly when it will deteriorate an
existing neighborhood. His opinion was that this could not be
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August 5, 1997
developed to the density the developer wants unless it is connected
to the Fayetteville sewer system. He did not think the area could
stand the septic systems necessary for an intense development under
County ordinances. The landowner can still sell this property on
the open market. He asked the Council to give the citizens of the
community a chance to buy this acreage, which would be equitable to
all.
Kyle Baltz, who grew up on the land just south of the proposed
annexation, clarified remarks he made at the last Council meeting.
He had said there would be less than two houses per acre, which was
not the point he was trying to make. If you take the 17.62 acres,
subtract 2.5 acres for the pond plus the amount of land required
for streets and sidewalks, the average lot size will be less than
a half acre. He noted Mrs. Skillern has not attended a meeting and
only one of the developers has. People are trying to draw a line
between annexing this land and rezoning it. The original
statements made by the developer and his engineer show they were
the first to say what they intend to do with this land. If they
did not want it to be an issue, they should not have brought it up.
Colene Gaston, Rom Orchard Road, stated it made her nervous that
the developer has requested not to make their presentation first.
She asked the Council for opportunity to respond, if the developers
raised any new issues.
Mr. Allred stated he was not aware of any new issues. A
neighborhood meeting had been held in May where he presented
exactly what he wanted to do. There was even a copy of a
preliminary plat. This proposed annexation is in the growth area
and the basic question is does the City want to be involved in the
development of its growth area. Developing at County standards
would probably be the option if it is not done this way.
Mr. Allred stated what this developer is proposing is equal to
Savanna Estates. One of the main reasons to annex it is to be able
to preserve the pond. County lots would have to be bigger for
septic systems; and the pond would have to be drained, filled, and
sold as a lot to absorb the cost. They want to leave the pond and
cluster the homes down to the street. The pond will be left as a
park. It does not have to be brought in as a City park. The
developer is willing to pay the parks fees on the remaining land,
to help with existing parks. The lots will still be over half an
acre in size, in addition to keeping the two -plus acres of the
pond. The developer can better preserve the integrity of the area
if it is in the city.
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August 5;.1997
Alderman Zurcher stated for the most part the City applies the same
standards for subdivisions within the county as they do within the
city. Threatening to develop this land in the county and drain the
pond is not valid because this land won't be sold to these .
developers if it is not taken into the city.
Mr. Allred stated he was not aware of this and characterized it as
an option, not a threat.
Alderman Daniel asked if Mr. Allred had said this property was
offered for sale.
Mr. Allred replied it was his understanding from Mr. Neill that he
did offer it to a representative in the real-estate field who was
working with some of the neighbors, Mr. Winborn, and that he
•offered to sell to them. No offer was tendered.
•
Alderman`Trumbo asked if this property was zoned residential in the
2020 Plan. , ,
Mr. Allred replied it is and the street is also on the Master
Street Plan as a collector„ street. Three other annexation
petitions are .on:hold"at this time.: There will be development out
there in the, next ,few years.
Alderman Schaper stated the Council's first responsibility is to
provide services to the existing citizens of Fayetteville. We
can't now provide for all the potential growth within the city
limits and here we are annexing a sliver of land that doesn't need
to be annexed yet. Also, there is a glut in the real estate market
in that price range.
Mr. Allred did not agree there is a glut on the market in this
price range. Larger homes are moving. Interest has been expressed
for some of these lots, if it is developed in the city.:
Mayor Hanna closed"the public. discussion. .
Alderman Trumbo asked what the density is on estate zoning.
Alett Little, Planning Director, responded there. is a R -A, one unit
per two acres, and R -E, two units per acre.
Alderman- Trumbo thought this could be.pursued before the next
reading.
Colene Gaston spoke again to correct.misinformation. She stated
there was no offer of sale made to the neighbors. There was a
phone call from the developer's representative. She understands
the developers do not:own the property at this point.. They have
contract contingent on approval of annexation and rezoning. They
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August 5, 1997
offered to sell for the lot price plus all they've expended in
engineering, surveying, consulting, lawyers, etc. The neighbors do
not feel it is their obligation to pick up the costs the developers
have expended. They are willing to pay a fair market value.
This item was left on its second reading.
FAUCETTE APPEAL
Mayor Hanna introduced George Faucette's appeal of the decision of
the Planning Commission regarding the dedication of right-of-way
for lands in Washington County. This item was postponed at the
July 15 Council meeting.
George Faucette spoke representing the Henry Tuck Trust. This 60 -
acre farm has been in the Mr. Tuck's family in excess of 40 years.
Their desire is to break it up to ultimately no more than 8 or 10
home sites. Tonight's issue is a lot split passed by the Planning
Commission subject to the taking of lands in that tract; a 90'
right-of-way considered to be a minor arterial. The request is to
not change the Master Street Plan, but to repeal that taking by the
City for that 90'. The folks in this growth area who are subject
to the Master Street Plan have no vote in the city. None of them
were aware there is a Master Street Plan in this area.
Mr. Faucette questioned whether this street is needed. Referring
to a map, he pointed out that between Highway 45 and a point that
is an extension of Joyce Street is 1.9 miles. In that stretch
there are set to be four streets. The character of this
neighborhood is already developed with two -acre to ten -acre home
sites, an area that will never be densely developed, so he
questioned the need for that traffic drainage pattern. It would
cause the land to be more densely developed even in the growth
area, which is not in keeping with the character of the area.
Mr. Faucette noted that the street from Oakland Road is about
4,000' and seems to arbitrarily turn north because Highway 45 is
angling northeast. It would more easily serve the area if it came
back into Highway 45 either on Oakland Road or in the other to -be -
built road.
Mr. Faucette stated that because the need is questionable, the City
does not need to take the land now. He would propose, if the
Council were willing to grant the appeal to not take the land, that
the petitioner would agree that the 90' swath would never have any
structure built on it. If somewhere down the road the City needed
to take the, land, the City would not have to pay the price for
structures. The City would pay just what the land was worth at
that time.
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August 5, 1997
Alderman Miller asked if the Master Street Plan would have to be
changed if the Council granted this request.
Alett Little, Planning Director, responded that. the Master Street
Plan was adopted by resolution and could be changed that way.
;City Attorney Rose did not think that would be necessary. The
effect of the Council's decision would have the practical effect of
amending.
Little read Sec. 159.46,•.Variance to Subdivision Requirements, of
-.the Code of Fayetteville:, '.the Planning Administrator shall
determine whether the proposed division conforms to the official
plans and regulations that make up the comprehensive plan,
including the land;use plain, .the street plan, . . .The Planning
Administrator :shall 'not tw.aive the preliminary and final plat
requirements of this chapter for a proposed subdivision until the
subdivider dedicates sufficient right-of-way to bring those streets
which'",the 47Master Street 'Plan shows .to abut or intersect the
proposed subdivision into conformance with the' right-of-way
requirements of the Master Street Plan for said streets; provided,
thePlanningCommission mayapprove a lesser dedication in the
event of undue hardship or practical difficulties. Such lesser
dedication shall be subject to approval by the City Council." She
stated a lot split is a waiver of the plat requirements. In this
case the Planning Commission did not recommend a lesser dedication.
Little stated with regard to the location of the minor arterial,
there are only two minor arterials planned in the Master Street
Plan on the east side of town. .This location was chosen
approximately half the distance. between the collector and. the
_principal arterial. We tried to more nearly separate the distance
between the major roads.. There is a large hill to the north and a
stream to the south and we went between them so there would be no
cost of a bridge or tearing down or tunnelling through the hill.
Alderman Young stated the offer is to not put up any structures if
the City does not take -the right-of-way now. That would not be
changing the Master Street Plan as we would still be planning to
put.a road there.
Rose stated that is accurate.
Mr. Faucette stated their request is not to change that. They'll
take their chances that the street might be built in the future:
This 90' strip is approximately 3 acres. They planned to have a
legal description of the 90'. that would be a covenant recorded
against the property.
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August 5, 1997
Alderman Schaper would rather have a bill of assurance stating that
when the City needs this right-of-way, the owner has to give it to
the City.
Alderman Young would rather see it in the deed, so every lawyer and
abstractor knows not to build on the land. Giving it to the City
when needed is another issue.
Alderman Trumbo asked if there would be a statute of limitation or
would it be perpetual.
Rose stated he was not sure about the statute of limitations.
Mr. Faucette stated the net effect would be the same as taking it
now.
Alderman Schaper understood the owner could do whatever he wants on
it except build structures up to the point the City says they need
to build the street then they get it at no cost, as they would if
they deny this appeal.
Alderman Pettus stated the City already has a problem with east -
west accesses across town because of poor planning in the past.
Alderman Zurcher asked if the law requires them to give the land to
the City if the lot split goes through.
Little stated current regulations require them to dedicate land in
conformance with the Master Street Plan. This is what every
subdivider is asked to do.
Little stated there were 25 public meetings, the Master Street Plan
was passed, and all of a sudden it is not reasonable to have these
streets in these locations. Regarding it being only a mile apart,
a mile square is 640 acres and you could have a tremendous amount
of traffic there. She stated she has another situation just like
this and this ordinance has been on the books since 1979. She
stated she needs to know what the Council's wishes are clearly and
quickly.
Mr. Faucette stated the person who wants to buy this 17 acres wants
to put a fine home, or two, or three, on it, but might not if a
four lane arterial might come through there.
Alderman Schaper pointed out the Council would not be precluding
the possibility. They are reserving the right to go through there
for that reason. He did not see that there was much additional
burden in saying if that road is required it has to be given to the
City rather than selling it to the City, because the Council could
just deny the appeal and take the land now.
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August 5, 1997
Little stated she does not think the ordinance prevents the City
from purchasing the land at this time. She asked what the value of
the three acres is.
Mr. Faucette replied the contract price is $17,600 an acre.
Alderman Daniel was in favor of being clear by purchasing the land
now.
•
Alderman Schaper stated the City is not required to purchase the
land. The owner is required to deed it to the City.
Alderman Miller colmented:that .the;Master Street Plan is a working
document;not)chieledin•stone.-.,Mr. Faucette has made a reasonable
offer to keep that land open. People out therewould have to
realize.that someday a road might come through there. .He asked if
,cities tare built1for carsior people. . He.. tended to favor the
variance; °' . -
Alderman Pettus -asked whatxhetCouncil could do to assure that the
;.:future' owners`would-be bound bran agreement not to build on the
three acres.
Rose replied he was not too concerned about how to get there. He
thought a deed restriction would be the easiest way to do it. A
billof assurance would be a possibility.- Either way, should be
recorded.
Alderman Young wanted to be sure it was in writing that the City
would not have to buy any structures, if the City buys the land in
the. future.
Rosethought that went without saying.
,Little added that deed restrictions do work. They are filed at the
County. As far as the City enforcement of that, there would not be
,any way of knowing if something was being constructed there or not.
'Rose stated if they did build, the City would have to sue them for
the removal. 'The City should never have to pay for it.
Alderman Trumbo moved to approve the appeal with the condition that
the 90' right-of-way be. restricted from building in a deed
restriction -satisfactory to the City Attorney, because of the
possibility of a future road being built through there.•.Alderman
Daniel seconded. Upon roll call, the motion,passed on a vote of 7
to O. ..
August 5, 1997
NOISE ORDINANCE AMENDMENT
249
Mayor Hanna introduced an ordinance amending the Noise Ordinance to
prohibit outdoor music and other similar sounds between the hours
of 12:00 midnight and 8:00 a.m. This ordinance was left on the
first reading at the July 15 Council meeting.
Alderman Trumbo explained that while Alderman Miller was gone the
Council passed an amendment to the ordinance to implement the
Police Department proactively taking decibel readings and not
requiring a complaint by a citizen. He thought this was an over-
reaction by the Council.
Alderman Trumbo moved to rescind that amendment to the original
ordinance. Alderman Miller seconded.
Mayor Hanna stated there have been generous offers from business
people and club owners to try to work together to work out the
problems on Dickson Street. The Council may not have anticipated
the response to this and may have reconsidered. Alderman Trumbo's
suggestion is an opportunity to redo this and not have so many
citizens unhappy with the ordinance.
Alderman Zurcher stated he did not think it was the change to the
ordinance that generated the response, but rather the Council had
not been clear regarding its intent. The Council did not spell out
to the police that every time the Council talks about this issue,
it is talking about outdoor music not indoor music, nor was it
clear that the Council talked about fining the club owners or sound
board people and not the band. Also, he'd assumed that if the
police took a reading and this was the first time for a too high
reading, they would give a warning. Not wanting to put all the
burden on the police, he suggested taking responsibility for not
spelling these things out in the ordinance. It was not enforced
the way the Council intended it to be, which is why it has become
an issue.
Alderman Schaper raised a point of order. The item being
considered was amending the noise ordinance to prohibit outdoor
music and other similar sounds between the hours of 12:00 midnight
and 8:00 a.m. There was not an agenda item to consider additional
modifications to the noise ordinance.
City Attorney Rose agreed. However, it is the Council's agenda and
he would not advise them they cannot do what they want to do as a
body. He read some instruction regarding reconsiderations: "After
the decision of any question, any member of the majority may
request a reconsideration of any action at the same or next
succeeding meeting." He stated this meeting is the Council's
opportunity to reconsider its action on the other amendment which
15
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August 5, 1997
had to do with whether or not the enforcement had to be complaint
driven. Such an amendment would be appropriate at this time, and
it is the only time to do that. After a motion to reconsider, the
Council can reconsider at that time or table for reconsideration at
some point in the future. That is in regard to the ordinance that
has to do with being complaint driven. The ordinance'before the.
Council now, which has to do with,the hours of music being played,
,is'a separate issue and will be.onwits second reading automatically
,unless the Council tables it.
Alderman Daniel commented.on Alderman Trumbo's motion. This is a
little rash. It should go -back to the Ordinance Review Committee
and not be'voted on at this meeting. Enforcement has been a big
problem.
Alderman Trumbo:stated the Police Department has been getting a bad
rap on this deal. It would be fair to the Police Department to go
back to the way it was and then go to committee to discuss the
overall ordinance.
•
Alderman Schaper had a problemwith it going back to being
complaint driven because of the amount of abuse that has been
heaped on people who exercise their right to complain.
Alderman Young stated the problem in the past is that the Police
Department did not have the manpower to enforce this. That has
changed. More people are trained on the machine.
Alderman Miller stated ordinances usually go through two or three
meetings and for something this controversial it is usually a
reading per meeting. He had missed the last meeting and was
surprised to find an ordinance this controversial done in one
meeting. He thought the Council had made a mistake.
•
Alderman Young pointed out that the club owners affected by this
ordinance were present at the last meeting and were in favor of the
ordinance.
Alderman Daniel asked Alderman Trumbo to withdraw his motion and
, have this referred to the Ordinance Review Committee.
Rose stated that procedurally the motion to reconsider would put
the ordinance that has already been passed back to where it was
before it was voted on, its third reading. It would -simply be
reconsidered. The Council would not be deciding on whether to vote
on it favorably or rescind it or anything else. They could pass it
again, send it to Ordinance Review, table it, whatever they wanted
to do. In. the interim, it would not be in effect because it would
be being reconsidered.
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251
August 5, 1997
Alderman Trumbo moved to reconsider the proactive, non -complaint
driven, amendment to the original ordinance so it would go back to
Ordinance Review Committee. Alderman Miller seconded. Upon roll
call, the motion passed on a vote of 5 to 2, with Aldermen Pettus
and Schaper voting no.
Rose instructed the Council to now decide what they wanted to do
with the ordinance.
Alderman Trumbo responded that his motion had been to send it back
to the Ordinance Review Committee.
The audience was informed there would be no discussion of this
amendment at this meeting and that the Council would now move on to
the amendment discussing the 12:00 midnight to 8:00 a.m. issue.
Alderman Young moved to suspend the rules and go to the second
reading. Upon roll call, the motion passed on a vote of 7 to 0.
City Attorney Rose read the ordinance for the second time.
John Adams, citizen, stated that several years ago Fayetteville
made a change in the sound ordinance. The Council changed the
place the measurement is taken from the point of the complaint to
the point of the source. At the time, the City did not have the
capability to enforce the law. Had it been enforced, tickets like
that given last week would still have been given had there been a
complaint. Layla's was breaking the current sound ordinance. The
only thing missing was a complaint. That was indoor music which
violates the current sound ordinance. In order to resolve this
issue, the Council will have to move back to the previous standard.
Rights should be restricted only when shown to harm another person.
The Council needs to not make this change in the law because it
pertains only to music. The Council needs to repeal the no -
complaint rule. There needs to be harm to someone before taking
away what is precious to someone else. There needs to be a change
from measuring the sound at the property line of the source to the
property line of the complainant. A comprehensive noise ordinance
is needed, but not one that singles out music.
John Gilliam, President of Pride On Dickson St. and an owner of
Ozark Brewing Co., stated this is a recurring issue that threatens
the long-term stability of the Dickson Street district. Live music
is important to Dickson Street and quality of life issues are
important to the residents of Fayetteville. He stated Pride On
Dickson Street is willing to devote its energies to facilitate
discussion and development of an ordinance acceptable to all
concerned. He asked that the Council allow Pride On Dickson Street
and concerned residents the time necessary to draft its own noise
ordinance.
17
252
August 5, 1997
Richard Shewmaker, 605 W. Dickson, next door to George's, stated
he supports live music and Mr. Gilliam's efforts. A way has ,to
made. for redevelopment of the district.
Woody Bassett, representing George's, stated he did not think the
ordinance needed fixing. The Council needs to concentrate on
:putting. -this issue-behind•,it once and for all. He reported on
'Georgerswall. A',12' 'wall has been constructed and has worked
--effectively. The Police Department has monitored it. He urged the
Council not to reinstate the:•proactive amendment. It is not
necessary. 'Regarding a -cut off time for music, George's position
is, that there should not be a midnight ban on music and that.
outdoor music should be allowed to be played until 1:00 a.m. He
• 'hoped .this'' issue 'would be; put to rest at the next meeting. He
supported the'.3ob;being done+by the'Police Department, but felt
they had better things to do with their time. He did not think it
constructive to start from scratch and re -do a noise ordinance.
Alderman Schaper asked what times outdoor music was being played
last year at George's. ,
Mr. Bassett replied George's used to play'outdoor music until 1:00.
a.m. and had to cut off at'midnight on Saturdays before they became
a private club. He thought music was played up to seven nights a
week.. On occasions .over. the years it was played later. They
voluntarily agreed to stop playing at 1:00 a.m. a couple of months
ago when they'd been playing until 1:30 a.m.
Alderman Young stated that from a practical standpoint music is
played mostly four times a week. -
Mr. Bassett stated stopping the music before 1:00 a.m. would be
unreasonable, particularly since George's has made a $10,000
investment to build a wall that has had a tremendous effect. One
a.m. is fair, anything before that is not..
Alderman Pettus asked if he was in agreement with the Pride On
Dickson Street proposal.
Mr. Bassett stated he admired their efforts to get involved; but
based on his experience in this as a lawyer and past Council
member, he believed it would be terribly difficult to reach a
consensus. It would be highly controversial and the Council would
end up with virtually what it has now. He believes if the
ordinance is complaint driven and enforced, everyone can live with
it..
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August 5, 1997
Vicki Bergman -Lanier, Ward 3 resident, spoke as a person who likes
the culture of Dickson Street. Music has funny sound curves. She
explained she once owned a business directly in front of George's
and often could not hear music from George's. Music modulates and
travels in paths affected by the way the ground is, the way the
streets curve, and building locations. It is difficult to regulate
what will happen to music. The ordinance in place is a good one.
She appreciated the concerns of the residents in the area, but
they'd made a choice of where to live. It also needs to be
recognized that this is a college town. She encouraged the renewal
of Dickson Street as it meets the needs of the student community,
the residents, and patrons. She noted there are also repercussions
to containing the louder noise to inside spaces. If the Council
cuts music off at midnight, it discourages other musicians and
quality music groups from coming here. Also the livelihood of
musicians is a major factor. It is important to remember that the
student population represents a tremendous economic base to this
community.
Mayor Hanna informed the audience there would be time for one more
speaker.
Jack Hignett, owner of Powerhouse Seafood & Grill, stated this is
the fifth year he has been in this discussion. It is aggravating
that it keeps being brought up. He'd thought it was fixed.
Something to keep in mind is not everyone has an 8:00-5:00 job.
His employees get off work at 10:00 or 11:00 at night and do not go
home and go to bed. Closing down at midnight is completely
unreasonable. He'd picked Dickson Street because it is an
entertainment center. Redevelopment has been a long time coming;
we are finally getting there.
Alderman Schaper asked for the days and hours Powerhouse has
outdoor music.
Mr. Hignett replied Powerhouse is not a club. It has live music on
Thursday and Sunday until 11:00 p.m.
Mayor Hanna closed the public hearing.
This ordinance was left on its second reading.
Mayor Hanna announced a five minute break.
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254
August 5, 1997
NEW BUSINESS
DEPARTMENT OF JUSTICE GRANTS
*Mayor Hanna introduced a.resolution accepting Department of Justice
grants'in the amounts'of'.$25,818,to add an officer assigned to bike
patrol and $32,662 to add an officer as a school resource officer
and approving a budget adjustment covering the City's portion of
the expense.
Alderman Daniel.movedrthearesolution.. Alderman Schaper seconded.
Upon:, roll `call, >the;resolution.,paesed •on a vote 6 .to 0, with
.Alderman Zurcher not present for the vote.
RESOLUTION 70-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
MCGOODWIN CONTRACT. AMENDMENT
Mayor Hanna introduced a resolution approving an amendment to an
engineering contract with McGoodwin, Williams, and Yates in an
amount not to exceed $291,954 plus a fixed fee of $43,043.
Kevin Crosson, Public Works Director, stated this is a contract for
improvements on the east side of town. This is approximately
17,000'. of 18" and 12" waterline, a thousand gallon per minute
water pump station located on Gulley Road north of Highway 45, and
750,000 gallon elevated tank.
Alderman Miller added that this should take .care of the water
problems out there and the fact if the pump broke down no one would
have water.
Alderman Daniel moved the resolution. Alderman Trumbo seconded.
Upon roll call, the resolution passed on a vote of 6 to 0, with
Alderman Zurcher not present for the. vote.
RESOLUTION 71-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
RZ97-15
Mayor Hanna introduced an ordinance rezoning 2,78 acres located
north. of Wedington Drive and east of Salem Road from C-2,
Thoroughfare Commercial, to R-2, Medium Density Residential, as
requested by Brian Ray on behalf of Clary Development The
Planning Commission voted 8-0-0 to recommend the rezoning.'
City Attorney Rose read the ordinance for the first time.
255
August 5, 1997
Alderman Trumbo moved to suspend the rules and go to the second
reading. Alderman Miller seconded. Upon roll call, the motion
passed on a vote of 6 to 0, with Alderman Zurcher not present for
the vote.
City Attorney Rose read the ordinance for the second time.
Mayor Hanna asked for audience comment.
Brian Ray, Development Consultants, requested that this be held at
the second reading and not go to the third reading. They are
tieing some development together and the owner of the property does
not want it rezoned until large scale development of this property
is approved.
Alderman Schaper expressed concern about the traffic situation on
Wedington Road.
Mr. Ray responded that this proposal is for a senior retirement
apartment complex, which will probably have the least impact of any
development out there. The proposal is for 203 apartments.
Alett Little, Planning Director, stated Perry Franklin of the
traffic division has completed the calculation for the traffic
generation, though she did not have it with her. The fact that it
was elderly people cut the traffic generation by about 75%.
Mr. Ray stated Franklin figured the maximum 24-hour, 2 -way volume
at 548 trips.
This was left on its second reading.
TWIN CITY TAXI
Mayor Hanna introduced a. resolution revoking Twin City Taxi's
Certificate of Public Convenience and Necessity.
City Attorney Rose explained the Council is now sitting as the
Fayetteville Public Transit Board. He would give to the City Clerk
a copy of the certified return of the letter sent to Brad McIntyre
notifying him of this hearing to determine whether or not they are
in violation of the Code of Fayetteville by not having liability
insurance or insufficient liability insurance•on their taxis. He
also filed with the City Clerk copies of a fax memorandum from
Boone -Ritter Insurance Service, Inc., advising the City that auto
coverage for the taxi company has been cancelled for nonpayment as
of July 1, 1997, and a July 10 fax memo from this insurance company
advising their company will not be reinstating the auto coverage.
Rose stated this is sufficient evidence to revoke their license.
21
a
256
August 5, 1997
Mayor Hanna asked if anyone was present from the Twin City Taxi
,Company. No one was.
4Alderman Trumbo'moved.the. resolution. Alderman Daniel seconded.
Upon roll call, the resolution passed on a vote of 7 to 0.
RESOLUTION 72-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
•
PACESETTER APPEAL OF GREENSPACE REOUIREMENT
tA
Mayor Hanna introduced consideration of an appeal of the decision
of'the Parks'& Recreation Advisory Board to require the dedication
of .park land within the Pacesetter Properties Development located
north of Salem Village and west of Salem Rd. as requested by
Michele Harrington on behalf of Pacesetter Properties.
Kevin Crosson, Public Works Director, stated this went back before
the Parks & Recreation Advisory Board for reconsideration of the
request last night. The Board asked for a land dedication. A
proposal was presented that. the Parks & Recreation Advisory Board
did vote on and recommend for the Council's consideration. He had
provided the Council with a packet with a plat where the petitioner
has recommended they dedicate a parcel that they will buy, parcel
A on the map. Also included will be parcel B, for a total of nine
acres. The greenspace allocation is 3.75 acres. The Parks Board
considered this request based on the fact that it is adjacent to
existing park property across the road and approved it.
Alderman Schaper asked how many units the subdivision will have.
Michele Harrington,attorney, replied the plat has not yet been
presented. This issue needs to be worked out before the plat is
drawn. .They are projecting 150 units. If this swap is approved,
there will be no common ground. This is across the street from the
school and the park.
Alderman Schaper stated the reason for the greenspace requirement
and for requiring park land dedication is to have neighborhood
parks.
Crosson stated one of the requirements of the modified greenspace
ordinance formajor development •.requests that the Planning
Commission and Parks Board look at developments like this and
combine them into a neighborhood park.
Alderman Trumbo thought this is a good variance to the greenspace
ordinance.
22
257
August 5, 1997
Ms. Harrington stated this is just north of Salem Village and
across from the new school and part of the boundary is across from
the new park. The park the City has is closer to the subdivision
than this piece. It would tack onto the east side and allow water
for irrigation and access to the east.
Alderman Schaper stated the park already there is a softball
complex.
Ms. Harrington responded this piece would allow that park to have
a place for other things. There will be several developments along
that road, and a large neighborhood park could make for a very nice
facility.
Alderman Schaper noted the Council has not looked at this and it
seemed rushed.
Alderman Schaper
Upon roll call,
Aldermen Trumbo,
moved to table this. Alderman Zurcher seconded.
the motion failed on a vote of 4 to 3, with
Pettus, and Miller voting no.
City Attorney Rose explained a majority of the elected Council, 5
votes, was required to carry this motion.
Alderman Zurcher moved to turn it down.
Alderman Schaper asked if Ms. Harrington would like to withdraw it
until the next meeting.
Ms. Harrington, after conferring with her clients, replied they are
happy to withdraw and provide the Council with whatever they need
to study this. There was no intent to rush.
Johnny Self, one of the owners, stated the Parks Board has looked
at this and thought the water out of that pond would save the City
at least $25,000 plus there would be more space for needed parking.
It was decided this will be under Old Business on the next agenda.
LARGE SCALE DEVELOPMENT APPEALMEADOWBROOK APARTMENTS
Mayor Hanna introduced consideration of an appeal of the decision
of the Planning Commission on the Meadow Brook Apartment Large
Scale Development.
Alderman Daniel moved to
seconded. Upon roll call,
with Aldermen Schaper and
abstaining.
hear the appeal.
the motion passed
Zurcher voting no
23
Alderman Zurcher
on a vote of 4-2-1,
and Alderman Young
258
August 5, 1997
,City Attorney Rose informed the'.Council the abstention goes with
.,.the majority and'it would hear the appeal.
Jim Lindsey,.developer, stated that since the last Council meeting
he Lias heard the last.Planning Commission meeting and studied it at
length.He has talked to members of the Council and has come up
,with a plan he felt would be acceptable to everyone. His attorneys
and engineers have'had extensive meetings -to be sure it meets the
terms of the ordinances: This project has more existing canopy
left on the site than any large scale development that's ever gone
through the City. The'density has been reduced from 120 units to
96, which allowed it to be 7.2 units per acre, down to PUD level
which requires 30o greenspace. This project has over 51%
greenspace. He feels he's been asked to meet an ordinance that
does not exist.
Mr. Lindsey stated they went back to the Planning Commission which
voted -4 to 4. .Before 'that meeting, he did not lobby the
commissioners. He stated Alderman Schaper came and lobbied in that
meeting and discussed matters that were not truthful, honest, or
fair. Mr. Lindsey stated Mr. Schaper started off by saying he only
reduced the density by eight. It was reduced by 24 on this
particular piece of land. Mr. Lindsey stated he'd bought another
piece of land and put a sixteen unit building on it. Mr. Lindsey
stated that Mr. Schaper also said in that meeting that Lindsey was
trying to get approval before the hillside ordinance was passed.
Mr. Lindsey stated he had no intention of running in front of that
ordinance. He stated Alderman Schaper stated Lindsey was using a
new building which would indicate he could redesign the whole
project. Mr. Lindsey stated the new building is a 16 -unit building
over on the other lot that was purchased after they couldn't do the
120. He'd built this type of building 15 years ago using the same
principle with 12 units. Mr. Lindsey stated Mr. Schaper said he
was tearing up 12 to 15 football fields as they demolished this
track of land. This is not true.
Alderman Schaper responded it is about 11 football fields, using
the 100 yards people usually consider a football field.
,Mr. Lindsey continued that Mr. Schaper said this would not be
settled at the Planning Commission or Council but in a court. Mr.
Lindsey stated much more was said by Mr. Schaper to a commission he
helped appoint. Mr. Lindsey stated if that is proper, he had a
problem with it.
Mr. Lindsey stated Alderman Zurcher challenged the chairman on
whether or not he was acting properly with parliamentary procedure.
259
August 5, 1997
Alderman Zurcher responded he was granted what he asked for. It
was for when the public had a comment, the public got to speak and
not one of Mr. Lindsey's lawyers, developers, or friend.
Mr. Lindsey did not agree with this. He stated he could have sued
someone after the last meeting, if he'd wanted to. He would only
sue if someone took it and made it a personal, vindictive, and
deceptive method of operating. He stated what hit him most was
Alderman Schaper's remark that Mr. Lindsey was not showing any type
of positive community spirit by his actions.
Alderman Schaper stated he'd said he did not think it was public
spirited to be trying to get an approval on this thing when Mr.
Lindsey and his folks know the City is in the process of changing
an ordinance.
Mr. Lindsey asked if any of his statements about Mr. Schaper were
not true.
Alderman Schaper replied no. We are looking at a development that
is 112 units. He agreed the density was lowered 24 units on the
steep subject property, but the proposal is for 112 units.
Mr. Lindsey stated you would not be able to get an architect to
draw 96 units on there.
Alderman Schaper stated a very prominent architect in town
volunteered to draw this in a way that would not tear up as much
land.
Mr. Lindsey summarized by saying he has followed the letter of the
law; no ordinance was violated; more canopy was left on this than
any other large scale development or R-2 property; there will be
51% greenspace; they have followed the contours. Mr. Lindsey
stated he feels he is community minded. He feels there has been
personal attacks. He is not asking for some extreme favor, but has
followed the ordinances and law.
Alderman Zurcher gave a brief history of this proposed development.
About a month and a half ago, the Council was given a proposal that
was turned down by the Planning Commission because it did not meet
either the intent or the general requirements of our grading
ordinance. There was excessive grading; 80% of the site was cut
and fill. It came to the Council and was turned down for the same
reasons. The Lindsey Development Corporation came back with
another plan. It is a little better; however, these buildings are
still built for flat land. Fitting the contours of the land does
not mean putting buildings in a curved line. It means building for
a hill. Not only is the grading ordinance being broken, but also
the 2020 Plan. For these reasons, the Planning Commission turned
25
260
:it down.. Now it is
Lindsey ,Corporation
ordinance.
August:5, 1997
back to the Council. He did not think the
has made.a good faith effort to meet the
City Attorney Rose stated it is his opinion that the Council has to
>'abid&ty its;ordinance.,:If the large Scale development meets that
`ordinance," the Council 'has no. choice but to approve it. The
Council cannot rely on future ordinances or changes. He stated it
was his opinion that the Council cannot substitute its discretion
in lieu of the fixed standards in the ordinance. The Council
cannot use generalities to replace the specifics. There is nothing
in the ordinance that gives the Council design review of a large
scale development. If there are other ways to develop this large
scale development that will also meet the ordinance, the Council
cannot pick and chose; it is Mr. Lindsey's choice. He advised the
Council to follow the ordinance and if the Council votes Mr.
Lindsey is in violation of an ordinance, to inform the City
Attorney what the violation is.
Alderman Zurcher read chapter 161.01, Intent, (B), --from the Code of
Fayetteville, "The purpose of this chapter is to control excessive
'grading, clearing, filling, and cutting (or similar activities)
which or in combination cause landslides, flooding, excessive run-
off, degradation of water quality, erosion, and sedimentation in
storm sewer systems and water storage basins." He stated he
sincerely believes this proposal is still excessive and breaks that
part of this ordinance.
Alderman Zurcher read 161.02, General Requirements, (B), from the
Code of Fayetteville, "Development shall conform to the natural
contours of the land, natural drainage ways, and other existing
site conditions.". He stated he saw a natural drainage way on the
tour the other day that has not been. marked on the plan..'
Alderman Schaper pointed out it is marked but destroyed in the
process of development.
Alderman Zurcher stated it is taken underground, not conforming to
the natural contours of the land. He then referred to 161.04,
Minimal Erosion Control Requirements, (A), of the Code of
Fayetteville, "The potential for soil loss shall be minimized by
retaining natural vegetation wherever possible." This is not
replanting pines.
Alderman Zurcher concluded that these are the areas in whichhe
believes the ordinance is being broken.
Alderman Schaper read
'Code of Fayetteville,
rather than shown on
161.08, Grading Plan Specifications, from the
"The following . . . may be reported in text
the grading plan." He stated it asks for a
•
1 261
August 5, 1997
description of quantity in cubic yards, source, and composition of
imported fill material and compaction specifications, also noting
the quantity in cubic yards and destination of excavation materials
to be removed from the site. He asked if this information had been
submitted.
Mr. Lindsey could not say, but assumed it was, if asked for by the
Engineering Division.
Alderman Schaper stated the Council has not seen it and it does not
show up on the plans.
Kevin Crosson, Public Works Director, stated this information is
typically submitted to the Engineering Division and not typically
submitted to the Council. He stated this has been appropriately
submitted and is with the review engineer in Engineering.
Alderman Schaper distributed pictures of this site taken from the
air. It showed the site and amount of clearing and grading, about
80%. He thought what Mr. Lindsey wants to build could be done with
less clearing and grading.
Mr. Lindsey stated over 20% of the site will remain the existing
canopy, 30% of the site will be restored to a high-quality
greenspace, leaving over 51% as greenspace.
Alderman Schaper stated the soils report says the clay needs to be
removed from the site. That is over 1,500 dump trucks full of
clay. Then fill will have to be brought in creating a pad 180'
wide from front to back, 15' into the hillside and filled 15' in
the front. That is a lot of cutting and filling.
Mr. Lindsey stated the soils test indicates the material is stable.
The ordinance says you can't cut more than 15'. The question is
not the whole slope, but how deep you cut down into it. He stated
the material will not be hauled off. It will be left on the site
to compact. The soils report shows it is capable of being
compacted.
Alderman Schaper read from the soils report that the upper clay
soils should be undercut from the building, pavement, and slope
fill areas and removed from the site and that the upper clay should
be removed from the site and not used for select fill in building
and pavement areas or in fill slopes.
Mr. Lindsey stated they would haul off only what the soil report
dictates to be hauled off. It is not known how deep and wide those
veins are. He stated he will abide by the soils report.
27
i'., 262
AuguSt`5, 1997
Alderman Pettus asked City Attorney Rose if Alderman Zurcher had
.read anything that was a specific violation of the ordinance rather
than a general•violation.'She asked was it not discussed last time
that specifics rule the general intent.
•
•
Rose replied that was correct;
a.
Aldermen Pettus asked if there was anything different this time
than last time that was a specific violation of an ordinance.
Rose responded he had not heard so.
Alderman Daniel asked why three story buildings have not been
considered.
Mr. Lindsey replied there are many complications with three story
buildings. There has to be escape from the third story. People
have to walk up an extra flight of stairs. There has to be
interior hallways with two exits. The parking would remain the
same, so there would be no saving there. You don't save as much
total area as you'd think.
Alderman Miller asked about ADA requirements.
Mr. Lindsey stated they are done under Fair Housing which means it
can be adapted for the handicapped. It has to come out at ground
level on a 2% grade.
John Williams, 140 N. Sang, stated he is.a registered architect,
landscape architect, and professor emeritus of architecture. He
read prepared remarks. The special quality of life in Fayetteville
is a combination of tangible and intangible elements. An
intangible is its visual beauty. This is a valuable asset. His
neighborhood is just to the north of the area being discussed.
This neighborhood is unique and naturally beautiful and should be'
protected. It is being threatened by the Meadow.Brook'development.
This development will be visually damaging to Fayetteville because
of the cutting and filling and as it will be seen from .a major
entrance to the city. Part of the site north or Ramey Jr. High
offers many advantages for a different type of housing project. It
is a southern slope, covered with deciduous trees exposed to the
lower angle of the sun during the winter and shaded in the summer..
Summer breezes are from the south and the view is to the south.
The proposed apartments have units oriented to all directions.
This is not the best use of the site.
Mr. Williams thought the proposed development will increase traffic
around the school and so increase danger to the students and
faculty. Subdivision regulation 159.54 says if a proposed
development would compound a dangerous traffic situation, the
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development should not be allowed. This regulation would not allow
the development.
Mr. Williams stated there will be a need to widen the streets to
the east of Sang Ave. Citizens would pay for this and the
additional load on the seWer system.
From his experience, Mr. Williams, believes multiple housing
projects sited on hillsides and slopes which require this amount of
cutting, clearing, filling, and plant destruction are incompatible
and should not be allowed. He requested that the Meadow Brook
development, as shown, be denied.
A citizen, an engineer, stated there has been a lot of discussion
about specific vs. general or intent of the law but no one has
asked the City Attorney about the Council's legal obligation as
elected officials to uphold the spirit and intent of the law. A
few meetings ago, when Alderman Zurcher stated he could approve
this if it were a plan that preserves the natural environment, Mr.
Lindsey's developer stated that is not economically viable. By
this statement, Mr. Lindsey's own developer is implying this is not
suited to this development. Also, with this much opposition, maybe
this should be rethought.
Mayor Hanna ended the public discussion.
Mr. Williams thought the question regarding the traffic around
Ramay Jr. High needs to be decided before the Council votes.
City Attorney Rose read 159.54, Large Scale Development, (D) (4)
from the Code of Fayetteville, "The Subdivision Committee or
Planning Commission (now the Council] may refuse to approve a large
scale development for any of the following reasons." Rose stated
six reasons were listed. Reason four is, "The proposed development
would create or compound a dangerous traffic condition. For the
purposes of this section a dangerous traffic condition shall be
construed to mean a traffic condition in which the risk of
accidents involving motor vehicles is significant due to factors
such as, but not limited to, high traffic volume, topography, or
the nature of the traffic pattern." Rose stated his best legal
advice to the Council is if they have facts before them that lead
them to believe there is a dangerous traffic condition as listed in
the ordinance, this is a reason for turning down a large scale
development.
Alderman Schaper reminded the Council there was a petition signed
by 79 people from Ramay who were concerned with the traffic.
Alderman Pettus asked if staff had done any traffic projections.
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August '5 1997
-Alett Little stated there were traffic reports done for generation.
-She did not have them with her, but generally for apartments you
can --judge about eight trips per day. For the part .on the slope, it
would be 8x96. The grade on Sang would not change appreciably,
therefore, would not create a dangerous situation. It might
compound one, if the slope is judged to be dangerous. One thing
looked at during the development proposal and which has now been
amended was the angle of the slope at which the entry drive to the
upper tier of apartments intersects Sang Street. That was
redesigned to flatten out.
Alderman Zurcher asked why she'd used 96 instead of 112.
Little replied she was looking at the part on the upper tierwhich
exits into the part of .Sang Street that has appreciable grade on
it. You would use the total number for added traffic to a school.
Mr. Lindsey stated there are only five buildings on the slope, so
that would be 6O apartments. There are 96 on the whole sight.
Alderman Miller asked if there was another way to get another exit
orentrance to this.
Mr. Lindsey did not think this is physically possible.
Mr. Williams asked if a study could be made to determine if the law
applies here or not.
Mayor Hanna pointed out most of the city's schools are built on
highways.
Alderman Zurcher stated another consideration is a lot of the kids
who attend Ramaylive in the neighborhoods adjacent to the school.
Those streets are filled with _kids after school. This is a
dangerous situation. •
Alderman .Trumbo moved to approve the large scale development.
Alderman Pettus seconded. Upon roll call, the motion passed on a
vote of 4-3-1, with Aldermen Schaper, Daniel, and Zurcher voting
no, Alderman Young abstaining, and Mayor Hanna breaking the tie and
voting yes.
City Attorney Rose noted the abstention would go with the majority
and this would pass.
RESOLUTION 73-97 AS RECORDED IN THE CITY CLERK'S OFFICE.
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August 5, 1997
CITIZEN'S CONCERN --BUTCH COGER
Mayor Hanna introduced discussion of issues as requested by Butch
Coger.
Butch Coger stated he and his wife are the owners of property
described as White River Water Construction Job No. 96055, Tract
No. N-28. He distributed a memorandum to the Council.
Mr. Coger stated this property is roughly seven acres located on
top of Slaughter Mountain on Highway 45 East between Fayetteville
and Goshen. As property owners, they were approached about an
easement for this waterline project when a person hired by the City
to procure easements called and asked if they were ready to sign an
easement. They had not been aware of the proposed waterline until
this time.
Since that telephone call, they have been engaged in an effort to
lessen the impact on Slaughter Mountain by reducing the size of the
easement and the amount of hillside and trees that would be
affected by this project. From the beginning, they have advised
City personnel that they would gladly give permission for a free
easement if the line could be located in the 60' highway right -of
way that runs from the center of Highway 45 East southward on their
property. They own the 60' right-of-way. He stated their goal is
to protect the hillside from damage and consequent erosion by
blasting that would be necessary to install the waterline and to
save the treed hillside.
City personnel have reduced the amount of the easement they
requested from the original 50' easement, in addition to the 60'
right-of-way, to a 10' easement outside of the right-of-way. This
would still necessitate clearing numerous trees, several of which
are 31" in diameter and others more than 20" in diameter and many
more smaller trees such as dogwood, hickory, locust. Pictures were
passed around.
Mr. Coger contended it would be easier and cheaper for the City to
locate the waterline in the highway right-of-ways. Since the
right-of-way is already cleared of trees and has at least one other
utility, the City could avoid the cost of blasting through the rock
shelf that exists where the waterline is proposed as well as the
cost of removing many trees. There is bedrock all along that
hillside. The Highway Department has already blasted and removed
some of the bedrock so the digging could be accomplished without
further blasting.
Mr. Coger stated Slaughter Mountain is one of the few remaining
beautifully treed areas on this entry to Fayetteville. This is
appropriate since Fayetteville has been designated a Tree City. In
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August.5, 1997
the past,. the City ,has been concerned .that the entrances to
Fayetteville .remain attractive-. Highway 45 East will be more
.attractive if this hillside is spared any additional clearing of
trees.
Mr.Coger stated the only concern expressed by -City personnel when
questioned about locating the waterline in the highway right-of-way
has been over the cost of moving the line if Highway 45 East should
be widened. In order to verify whether such plans exist, he has
contacted several people at the State highway department. The
highway department is working under a 14 -year plan. The only work
scheduled for Highway 45 East is to replace the twin bridges. When
questioned about this project, the highway department replied they
hoped to have the money in seven to eight years to replace the twin
bridges. Questioned _further, they said the twin bridges will be
replaced with two-lane bridges that have two-lane approaches. When
further questioned about demolishing these bridges for four -lanes
in twenty years, they replied that would not happen. The life
cycle of these bridges is 40 to 50 years. It is the opinion of the
highway department that Highway 45 East will not be widened during
the life span of this waterline.
Mr. Coger stated the highway department shares concerns regarding
erosion from installation of the waterline. They cannot make a
final judgement until the City applies for a work permit, but there
is a very good chance the waterline could be made to be located on
the opposite side of the road.
Mr. Coger was also concerned about possible future problems if the
waterline is installed and the formerly rural property continues to
develop. There are already two subdivisions .located between
Slaughter Mountain and Goshen that contain 50 homesites. All are
on septic systems. We are talking about land that sits right next
to the White River. Any flow will go directly into the White
River. In addition, a golf course developmentis being planned for
this area -with potential for 600 homesites. Mr. Coger stated he
has been informed by the Washington County Health Department that
if each house has the minimum acreage and the soil perks, the'.
septic systems would have to be permitted.
Mr. Coger was also concerned about the development along Highway 45'.
East coupled with the other waterlines being constructed now for
which Beaver Lake is the water supply. He questioned whether the
City has done water studies to determine the demand on Beaver Lake.
Mr. Coger noted he is not just concerned about his acreage. It is
his wish that the plans. for the .location of the waterline be
changed on the properties both westand east of his.
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267
Mr. Coger offered to meet with City personnel whenever it was
convenient.
Mayor Hanna asked for questions or comments from the Council.
Alderman Zurcher asked staff what the chances are of putting this
line in the road right-of-way.
Kevin Crosson, Public Works Director, stated water systems are
designed for a 50 to 100 year period. This is why as a general
policy the City requires right-of-way outside of highway right-of-
way, because growth patterns are unknown 50 to 100 years from now.
He stated he is not sure blasting along the hillside has been
verified by City staff. Crosson stated the suggested ditch line
does have some problems. There is an overhead utility the line
could not be placed under. Also, most of the right-of-way has been
acquired for the project. The installation will not be easy
regardless of where it is put.
David Jurgens, Water & Sewer Superintendent, stated most of the
water pipe installed in the 1890's is still in service. The life
span on water pipe should be 100 years. A 20 year or 50 year
planning horizon is not reasonable. As has happened on Wedington,
when the 8" line was installed, there weren't many houses; now the
larger lines are being put right next to the homes. This is why we
generally try to stay out of the highway right-of-way, because it
costs a great deal more to come back later and do it. The State
highway department generally supports keeping utilities out of the
right-of-way whenever possible. Also, with six utilities, the
right-of-way could become crowded. This line would be installed
with a minimum of 36" of cover. It is a 12" pipe. Excavation
would be about 5' fluctuating with the terrain. It is minimum
cover.
ADJOURNMENT
Mayor Hanna adjourned the meeting at 12:28 a.m.
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