The URL can be used to link to this page

Home My WebLink About1998-01-04 MinutesMINUTES OF A MEETING OF THE CITY COUNCIL A meeting of the Fayetteville City Council was held on Tuesday, January 4, 1994, at 6:30 p.m. in the Council Room of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Fred Vorsanger, Len Edens, Joe Box, Heather Daniel, Stephen Miller, Kit Williams, Conrad Odom, and Fred Vorsanger; City Attorney Jerry Rose; City Clerk Sherry Thomas; City Treasurer Glyndon Bunton; Administrative Services Director Ben Mayes; Planning Management Director Alett Little; Environmental Affairs Administrator Cheryl Zotti; members of staff, press, and audience. CALL TO ORDER Mayor Hanna called the meeting to order with eight aldermen present. CITY ENTRYWAY SIGN CONTEST WINNER AWARD Alett Little introduced the design team of Jana Lynn Britton and Frank Riggins, winner of the Entryway Sign Contest, and presented them with a check for $150 and expressed the City's appreciation for their work. Little stated these signs will be placed at the various entryways into the City. 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 December 21, 1993 regular City Council meeting. B. A resolution awarding Bids 93-62 and 93-63 to the lowest bidder meeting specifications for the annual needs of the City for concrete and asphalt. Staff recommends awarding Bid 93-62 to McClinton -Anchor for the City's 1994 asphalt needs and Bid 93-63 to Arkhola Sand & Gravel for concrete needs. RESOLUTION 1-94 AS RECORDED IN THE CITY CLERK'S OFFICE C. A resolution awarding Bid 92-53 to the lowest bidder meeting specifications, Johnson Mechanical Contractors, Inc., for the annual needs of the City for plumbing and related services. The primary project for 1994 will be the Fleet Operations Center, and the total amount designated for this project is an 1 2 January 4,. 1994 amount not)to exceed $85-,000. Additional,projects•throughout the year .a -re not.to• exceed $20,000.... s. D. A resolution awarding -Bid -93-53 to the lowest bidder meeting specifications, Muiti-Craft Contractors, Inc., .for the annual needs of the City for electricalrand'related services.. - The primary project 'foie 19.94. will be the>.Fleet Operations Center, and the total amount designated for this:project is an -t amount not•to exceed .$90,000. Additional projects throughout y RESOLUTION 2-94 AS RECORDED IN THE CITY CLERR'S OFFICE the year are not to'exceed $20,000:` RESOLUTION 3-94 AS RECORDED. IN THE CITY CLEWS OFFICE E. A resolution awarding Bid 93=53 to"the lowest bidder. specifications, Pinnell, Inc..,: for the annual needs City for concrete and}related services. �.. F + The primary project .fpr 1994willfbe the Fleet -Operations Center,,: and the total amount designated for this project isah amount not to exceed $65,000. Additional projects throughout the year are not toyexceed $20,000'. per project. RESOLUTION 4-94 AS RECORDED IN THE CITY CLERK'S OFFICE meeting of the Miller, seconded by Williams, made a motion to approve the Consent Agenda. Upon roll call,-the'motioa passed by note of 8 to 0:)..' REZONE R93-35 Mayor Hanna 'introduced consideration of an ordinance rezoning 5.3 acres located on the north side -sof Wedington. and west;of.Shiloh Drive from R-2, Medium Density Residential, to C-2, Thoroughfare Commercial, as requested by -Rick Osborne on behalf -of Cheryl.Miller and Geneva McFarland. Ther"Planning Commission -voted 5-4-0 to recommend the rezoning. Alett Little Stated the owners of this land also own an additional 11 acres 'in -this` -area.. •.They• will haves 16 acres . of C-2:" This property is bordered on the east and west by -C-2 Staff felt C-1 zoning would beappropriate, but the recommendation by the Planning Commission -was .for C-2:- -- '' City Attorney Jerry Rose read the ordinance for the first time.." Alderman'Danieh stated she:felt the owners have.rplenty.of options with C-1. zoning. She stated the City does not need another commercial strip. .'° + • 3 January 4, 1994 Alderman Williams stated this appears to be purely speculative rezoning. At this time, there are a lot of options available with C-1 zoning. He is concerned about what the owners intend to put on the property. With C-1, they could put a shopping center, grocery store, etc. Alderman Vorsanger read a letter he received from Shawn West who opposed the rezoning. Alderman Bassett asked the differences between C-1 and C-2. Little stated C-1 was more neighborhood uses, and C-2 was more thoroughfare uses. She stated staff felt this should be a neighborhood commercial area. The types of businesses allowed in C-1 are the types the developer has expressed an interest in building in this area. He could not explain to the Planning Commission why they wanted the C-2 rezoning. Alderman Vorsanger stated he was concerned since from the Planning Commission was only by a 5-4 Little .stated there was an earlier vote that rezone the entire tract to C-2. the recommendation vote. failed to pass to Alderman Williams stated he would like to leave the ordinance on first reading and put this on the next agenda when the petitioners or their representative could be present to answer questions. Mayor Hanna stated this rezoning seems really inconsistent with the area. Three of the 4 corners at this intersection are already C-2 zoning. So, he does not really see the difference in allowing the last corner to be zoned as C-2. The ordinance was left on its first reading. REZONE R93-54 Mayor Hanna introduced consideration of an ordinance rezoning 11.67 acres located on the west side of Shiloh Drive and south of 15th Street from A-1, Agricultural, to R-1, Low Density Residential, as requested by Harold Johnson. The Planning Commission voted 9-0-0 to recommend the rezoning. Little stated this is located south of the Clarion Inn and west of the bypass. This zoning is consistent with that of the area. City Attorney Jerry Rose read the ordinance for the first time. Alderman Box, seconded by Odom, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed by a vote of 8 to 0, and the City Attorney read the ordinance for the second time. Miller, seconded by Box, made a motion to further suspend the rules and place the ordinance on its 4 third and;final vote of 8 to O. time. January 41,. 19.94 reading. Upon roll call, the motion. •passed; by.!:a The City Attorney read the.ordinancetor .the .third Alderman Daniel asked how visible this development would be from the bypass. Little stated it would be pretty close, but there will beta line of trees that will help buffer the noises. Alderman Miller stated this land now has a 100% canopy. He stated the developer will have to keep 25% of the trees in compliance with the tree ordinance. Alderman Daniel asked if the City has a sound pollution ordinance. Little stated the City does not have this ordinance, but the State Highway Department does work with HUD on this. Upon roll call, the ordinance passed by a vote of 8 to. 0.. ORDINANCE 3756 APPEARS ON PAGE //'f OF ORDINANCE BOOK XX V //• REZONE R93-56 Mayor Hanna introduced consideration of an ordinance acres located on the southeast corner of Center University Avenue from C-1, Neighborhood Commercial, Density Residential, as requested by Allen White. Commission voted 9-0-0 to recommend the rezoning. rezoning .25 Street and to R-3, High The Planning Alett Little stated the developer plans to develop 5-6 residential units on this land. This land is surrounded on three sides by R-3 zoning. Alderman Miller asked how many units could be built peracre with R-3 zoning. Little stated this zoning allows 16-40 units per acre. However, on this parcel, it would be impossible,to get more than 5 or 6 units because%.of the required parking. . Alderman Miller stated the ground is hollow at this point. Little stated her office has discussed this: with the developer. It will be the developer's responsibility to deal with this. City Attorney Jerry Rose read the ordinance for the first time. Williams, seconded by Miller, made a motion to suspend the rules and place the ordinance on its second reading: Upon roll call, the motion passed by a vote of.8 to 0, and the City Attorney read the ordinance for the second time. Miller, seconded by Edens, made a 5 January 4, 1994 motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 8 to 0. The City Attorney read the ordinance for the third time. Alderman Williams stated he and Mr. White have had discussions about the noise problems, and his decision to build more apartments must mean he is happy about the noise. Alderman Daniel stated Mr. White's other apartments have been very nicely landscaped, and she hopes he will do the same with the new apartments. Upon roll call, the ordinance passed by a vote of 8 to 0. ORDINANCE 3757 APPEARS ON PAGE i14 OF ORDINANCE BOOR xx Y" REZONE R93-35 - CONTINUED Mayor Hanna stated the petitioner's representative is now in the audience, and he asked Mr. Rick Osborne if he could answer some questions for the Council. Mayor Hanna stated the Council was concerned about the 5-4 vote of the Planning Commission. They also wanted to know why C-2 zoning is necessary. Mr. Osborne stated the developer plans to build a nice shopping center on this property. The owners are not going to develop the land. Mayor Hanna stated it had been mentioned they plan to build mini - storage units. He asked if the owners also own the land on either side of this property. Osborne stated there was never any plan for mini -storage units. Alderman Williams asked how C-1 zoning would affect the developer's plans. Alderman Odom stated the Council is talking about the use of the property. He asked if the Council is supposed to be considering only if the zoning is appropriate for the land and the surrounding area, not the proposed use of the land. City Attorney Rose stated the Council is not to look at specifically what the land is to be used for, only if the land is to be used in the correct category. Osborne stated the citizens voted for sewer lines in the area, and the City put in an additional $800,000 to encourage development. Alderman Box stated C-1 would allow all of the things the petitioner has expressed an interest in. : January. 4., , 1994 Osborne stated there is. already C-2 in most of that ,area: ; c:He stated if the developer can get this C-2, he will have enough land. to put in a nice shopping center: He stated the Holiday Inn.•is.td the east of this property, and -the west side of the property as already C-2. He asked why the Council would want to sandwich a parcel of C-1 in between C-2. Alderman Miller asked if the buyer of the land would still 'want the land if. only this 5 acres is rezoned. Osborne, stated -the -:does not know. He askedwhat uses in C-2 were objectionable to the Council. Alderman. Daniel stated she feels it `could be beneficial to -Only have C-1. She is concerned about preserving Ward 4. Alderman Vorsanger stated the Council has tabled this item for'two weeks. He .suggested Mr. Osborne would have a chance to discuss this with his client before the next meeting. Alderman Miller asked why the client -wants C-2 if the C-1 zoning swill:allow the use:the buyer wants. Osborne stated he did not know, but he would find out and be back at the meeting of January 18, 1994. CITY'S MISSION.. STATEMENT . Mayor Hanna introduced consideration of a resolution adopting a Mission;:Statement for the City of Fayetteville....Thet-proposed statement is "To protect andimprove our quality of. life -by listening to and serving the people with pride and fairness." . MayorHanna, _stated ..there was a. committee. of• five: city employees that worked on this statement. This is part of the continuing management.»training program.. the City 'participates in annually. There will also be five quality action teams established to deal with (1) a. customer survey to find out what citizens think should rs'- be the best:services offered by the City; (2). employee development and ,recognition, (3) water'. and sewer taps, -(41. 'improved communication., and (5)..a false alarm policy for the police:andfire departments. Vorsanger,-,seconded by. Odom, made -a motion to approve the mission statement. Upon roll.•call, the motion passed by a vote of 8 to O. `1 RESOLUTION 5-94 AS RECORDED IN THE -CITY CLERK'S OFFICE 7 January 4, 1994 SETTLEMENT OFFER Mayor Hanna introduced consideration of a resolution approving a settlement in Jones, et al v. City of Fayetteville Municipal Court, and approval of a budget adjustment in the amount of $50,000. City Attorney Jerry Rose said the City has been sued by plaintiffs that alleged the City collected improper fines for the municipal court system. The suit has been laying fallow until recently. He introduced Mr. Dody Angulo, the city's attorney that was hired by Scottsdale Insurance Company, who would go over the settlement offer made to the City. Angulo stated of the several cities that were sued by this plaintiff, there are only a couple, including Fayetteville, that have not yet settled. Little Rock was the largest city involved, and their settlement was of a similar nature as that presented to Fayetteville. Little Rock settled for around $240,000. Angulo stated the City has been sued for violating the civil rights statute. It is alleged they denied people due process by collecting these fees. None of these suits have gone to trial. Alderman Williams asked when the suit was filed. Angulo stated the class action suit was filed in 1991 in federal court in Little Rock. It was dismissed because of lack of jurisdiction. It was refiled in 1992. Alderman Williams asked why this case has not progressed to a trial. Angulo stated there are several reasons including the case being filed in the wrong court, and the judge filed a motion to recuse. Alderman Williams stated since attorney fees are usually based on hours worked, how has the plaintiff's attorney incurred $47,000 of expenses when the case has been dormant all this time. Angulo stated this was basically a compromise on the fees. If the case goes to trial, there will be a lot more attorney fees incurred. He stated the City has already admitted liability to some extent, charging the fees, during the request for admissions. Angulo stated the City was wrong in collecting the fees. Alderman Odom asked by whose authority. Angulo stated by state statute. The City collected court costs on all cases that were cancelled or dismissed in municipal court. This has been termed an illegal exaction. t January 4, 19.94 Alderman. Williams. asked when the City determined that this was being done improperly. Angulo stated in 1991 or early 1992. Alderman Williams asked if Angulo contacted City Attorney Rose, who then told the court to stop collecting these fees. Rose stated he believes that was so. . . Angulo statedthe statutes under which thesecosts are assessedare scattered through the codes. There is no uniform method ,of assessing fees. Alderman, Williams asked how the plaintiff's attorneys can. justify $47.,0.00 in fees when the City has admitted guilt.• Angulo stated thefees could be set by the court, but he was reluctant to do this because who knows what .amount the court may set. However, it could be less than what the City: isbeing asked to pay. ,Angulo stated there were other .unresolved issues- in _this case,_and..he doesn't know how involved the litigation could become, that would increase the cost of the plaintiff's attorney fees. Alderman Miller asked what would be refunded. Rose: stated the. courts costs to be refunded wouldbe those fees paid in return for charges being dropped. Mayor .Hanna•askedwhat was the amount of these charges.. Angulo stated between $20 and $40 based on the type of case. Alderman •Wiliiams- asked if we 'know how many people..this .would involve. Angulo 'stated =they have some were about -5,000 people who the court costs. very rough figures. He stated there had charges dismissed but still_paid Alderman Edens asked how Little ::refund pool -needed to be.. • Rock estimated the size their Angulo stated it was just an- arbitrary figure. Alderman Vorsanger stated Fayetteville has.estimated"$6t,:000 as -a pool Angulo stated the City will probably have about 500 to 1 make a claim for:a refundL' 000 people Mayor Hanna asked if the City could make a counter offer. 9 January 4, 1994 Alderman Bassett stated he wanted to make it public that he has done some work for Scottsdale Insurance Company, but he does not see a conflict between that and this situation. He asked what was the deductible on the insurance policy. Angulo stated it is $50,000. The City will be paying his attorney fee as well as the plaintiff's attorney fees and any refunds. Alderman Bassett asked if there was a coverage question. Rose stated the insurance company has agreed to pay if the City has done wrong. The policy contains a clause which stated if you benefit from the wrongdoing, the insurance company does not have to pay the claim. Rose stated he reminded Scottsdale that the City benefitted only on a small basis because most of the money collected was sent to the state. Scottsdale agreed to hire an attorney but only under a "reservation of rights" in that they may not want to pay under the policy. Scottsdale has reviewed the settlement offer and feels it is pretty good. They have stated they will pay the claim in excess of the $50,000 deductible. However, Scottsdale reminded him they could still use this clause and not pay the claim if the City does not use good judgment in settling the case. Angulo stated the Municipal League Defense Fund paid $30,000 each for the other 7 municipalities involved. Springdale's suit was dismissed because they were unsuccessful in identifying a class representative. Sherwood's case is still pending. Alderman Williams asked what Mr. Angulo's fees are to date. Angulo stated about $7,500. Alderman Williams stated about how hard he works on a case is usually equal to about how hard the opposing attorney works. He stated he does not see why the other attorneys would deserve $40,000 more than Mr. Angulo. There are no real major issues to be decided. He asked why not remove this case to federal court and tell the judge we made a mistake, want to refund the money collected wrongly, and let him decide the fees. Angulo stated this case is not removable to federal court because it is a state taxation question and the time for removing has passed. Alderman Vorsanger asked where the refund money would come from. Ben Mayes stated it would come from General Fund fund balance. Alderman Edens stated he felt the City should be able to settle for less than $50,000. 10 January 4, 1994 Angulo_stated Fayetteville and Little Rock are the only two cities that charged court costs when charges were dropped in a case Alderman Edens stated if the City does not settle, -the only thing we would be sticking our necks out on is that the insurance company might not honor the claim. Alderman Williams stated he believes the City should make a counter offer. Alderman Bassett stated he would be really surprised if an overwhelming number of refunds were filed. He has been persuaded that the City cannot be successful in this suit.. He feels the City will have to pay $50,000 no,matter what -happens. He can only vote .to,offer $30,000 because that is what the other cities -paid in legal,fees. . Alderman Williams stated maybe the City should offer ;$10,000 attorney.fee and to pay all refund claims. Angulo stated he would be surprised if they accept this. He has workedwith them in coming down to the $47,000 fee. Alderman Edens asked if Angulo thought they would be more acceptable to $30,000. Alderman Bassett stated he does not like any of this: He asked_if Angulo thought'they were adamant about the $60,000 pool. Angulo..stated he• would- leave that alone because there is -no up front money required for that. The City will only have to pay the actual number of claims filed. Alderman Vorsanger stated he woiuld not vote in favor of settling. Alderman Williams stated perhaps the City should offer up to a maximum of:$15,000 attorney fees.- If they do:not accept this, take the case to court, and the City will admit liability. 'He asked if the City could collect back some of the money sent to the state. Angulo said state law precludes collecting money that has already been appropriated or dispersed. Alderman' Bassett asked why the plaintiff's attorneys -feel Fayetteville should pay more attorney fees than the other cities. Angulo stated there are a couple of reasons. First, the number of cases in Fayetteville is larger. Second, Fayetteville's municipal court assessed -costs when charges were dismissed, and the other cities did -not do this. 11 Williams, seconded by $15,000 attorney fees January 4, 1994 Bassett, made a motion to counter offer for and to pay the refunds. Upon roll call, the motion passed by a vote of 5 to 3, with Aldermen vorsanger, Edens, and Miller voting no. Alderman Bassett thanked Mr. Angulo for coming. He asked that he communicate with City Attorney Rose who in turn will work with this Council. This would save the City some money in his attorney fees. Angulo stated he would. City Attorney Rose stated he has learned something from these suits. He stated Alderman Williams points have been well taken. He will inform each of the aldermen about the status of lawsuits, and he stated he will give each of them a quarterly report. Rose stated this case also casts a spotlight on the City's insurance coverage. He stated the City's entire insurance program needs to be looked into. Rose stated, in addition, in the next few weeks, he will be making a proposal for legislation to limit the award of attorney fees for actions brought against a city that will come from tax dollars. Alderman Bassett stated in the final analysis, it is the state legislature who will have to do something about this. Mayor Hanna stated he will form a committee to look at the City's liability policy. He would like for this committee to look into the Municipal League's defense fund program as well. OTHER BUSINESS APPRECIATION EXPRESSED Alderman Miller expressed his thanks to the City Council and City staff for their care and concern for him during the time of his father's death. LIGHT FESTIVAL OF THE OZARKS Alderman Box stated the Light Festival of the Ozarks was a great success. He asked City Attorney Rose to write a resolution to recognize the interest and help of the citizens and businesses in the project and to thank George Smith for all his work and for getting this project started. Box, seconded by Miller, made a motion to approve this resolution. Upon roll call, the motion passed by a vote of 8 to 0. RESOLUTION 6-94 AS RECORDED IN THE CITY CLERK'S OFFICE 12 January 4, 1994 JUVENILE CONCERNS MEETING Alderman Bassett stated there will be a meeting of the Juvenile Concerns Committee on Monday, January 10, at 4:30 p.m. in Room 111 of City Hall. SHOP FUND ROLL FORWARD BUDGET ADJUSTMENT Ben Mayes stated the City is ready to begin construction on the Maintenance Center. The funds for this project were budgeted in 1993, and he needs a resolution approving a budget adjustment to roll forward the remaining $355,322 from the 1993 to the 1994 budget. Vorsanger, seconded by Odom, made a motion to approve the rollforward. Upon roll call, the motion passed by a vote of 8 to 0. RESOLUTION 7-94 AS RECORDED IN THE CITY CLERK'S OFFICE RICH HABERMAN Mayor Hanna congratulated City Intern Rich Haberman on his new position as City Administrator of Barling, Arkansas. ADJOURNMENT The meeting adjourned at 8:32 p.m. •