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HomeMy WebLinkAbout2000-07-05 - Agendas - Final FAYETTEVIPLE • THE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL JULY 5, 2000 A meeting of the Fayetteville City Council will be held on Wednesday, July 5, 2000 at 6 : 30 p.m . in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. A. CONSENT AGENDA 1. APPROVAL OF THE MINUTES: Approval of City Council minutes from the meetings of June 1 and June 6, 2000 minutes. 2. BID 00-48: A resolution awarding Bid 00-48 to Chris King Electric for electrical services for the remainder of the year 2000 with five one-year renewal options. 3. BID 00-49: A resolution awarding Bid 00-49 to Synthetic Designs Stucco for the Engineering Building at 125 W. Mountain Street in the amount of $45,900.00 plus a 10% contingency of $4, 590.00. 4. BID 00-50: A resolution awarding Bid 00-50 in the amount of $26,860.00 with a 10% contingency to Airworks a Division of Multi-Craft Inc. for the installation of Phase II HVAC System, City Prosecutor's Office and the Jail. 5, DICKSON STREET: A resolution approving Change Order No. 2 (Final) in connection with the Dickson Street Water and Sewer Relocations in the amount of $46,279.00 and a budget adjustment. 6. T-HANGARS: A resolution awarding a contract to Harrison Davis Construction, Inc. in the amount of $489,865 .50 with a 15% contingency for the construction of two eight-bay T-Hangars at Drake Field and approval of a budget adjustment. 7. J.D.G. TELEVISION: A resolution approving a lease agreement with J.D.G. Television, Inc. to lease an area that contains thirteen parking spaces in the Fayetteville Municipal Parking Lot located west of the Campbell Bell Building between Mountain, Church, and Center Streets. This lease agreement will allow J.D. G. Television, Inc. to construct a covered parking canopy for thirteen employee parking spaces and will be designed to incorporate and screen three proposed satellite `receive only' dishes. 113 WEST MOUNTAIN 72701 501521 -7700 FAX 501 575-8257 B. OLD BUSINESS 1, PARTIAL PERMIT: An ordinance repealing Section 156.04, Section 169.03 (B)(6), and Section 170.03 (A) of the Code of Fayetteville, Unified Development Ordinance, and amending those sections to prohibit non-final, partial and/or phased grading and/or stormwater management, drainage and erosion control permits. This ordinance was left on the second reading at the June 20, 2000 meeting. C. NEW BUSINESS 1 . CITY TRAILS: Presentation from Chuck Rutherford on the city's trails. 2. CENTER PRAIRIE TRAIL: A resolution approving the purchase of an abandoned railroad right-of-way in the amount of $50,000 with the intent to build a multi-use trail within the abandoned railroad right-of-way between Prairie Street and the Walton Art Center parking lot. 3. VA 00-4.00: An ordinance approving vacation request VA 00-4.00 submitted by Henry Kelly, Jr. of Millsap Road Investments for property located at 665 Millsap Road, Lot 19 of CMN Business Park Phase I. The property is zoned C-2, Thoroughfare Commercial and contains approximately 2.58 acres . The request is to vacate a portion of an existing water line easement within lot 19. 4. VA 00-5.00: An ordinance approving vacation request VA 00-5 . 00 submitted by Harvey Luttrell on behalf of Wiggins Memorial United Methodist Church for property located at 205 W. 6" Street. The property is zoned R-2, Medium Density Residential and contains approximately 0. 18 acres. The request is to vacate a portion of the City right-of-way. 5. VA 00-6.00: An ordinance approving vacation request VA 00-6.00 submitted by Joe and Angela Stevens for property located on Old Farmington Road between Beechwood and Eastern. The property is zoned 1- 1 , Heavy Commercial/Light Industrial and contains approximately .23 acres. The request is to vacate a portion of Old Farmington Road. 6. AD 00-8.00: An ordinance for AD 00-8 .00, Administrative Item Amendment to Chapter 162 "Use Units" of the Unified Development Ordinance, Section 162. 01 "Establishment and Listing" to allow additional retail uses in the C- 1 Neighborhood Commercial District. 7. RZ 00-16.00: An ordinance approving rezoning request RZ 00- 16.00, submitted by Arden Gale for property located at 1530 Albright Road. The property is zoned A- 1 , Agricultural and contains approximately 4.21 acres. The request is to rezone to R- 1 , Low Density Residential. 8. RZ 00- 17.00: An ordinance approving rezoning request RZ 00- 17.00 submitted by Northstar Engineering on behalf of Emad Damen for property located at 2323 Deane Street. The property is zoned R- 1 , Low Density Residential and contains approximately 1 .47 acres. The request is to rezone to R-2, Medium Density Residential. 9, RZ 00-18.00: An ordinance approving rezoning request RZ 00- 18 .00, submitted by Richard Grubbs on behalf of Tommy and Jodi Holland and Richard and Mary Osborne for property located on east Appleby. The property is zoned R- 1 . 5, Moderate Density Residential and contains approximately 2.5 acres. The request is to rezone to R-O, Residential Office. 10. AD 98-8.00: An ordinance approving AD 98-8.00, Administrative amendment to Chapter 172 "Parking and Loading" of the Unified Development Ordinance, Section 172.01 (13)(1 ) " Standards for the Number of Spaces by Use-Off Street Parking" to revise the required parking for eating places (restaurants). 11. SHILOH DRIVE : 1 ) An ordinance approving a bid waiver with McClinton- Anchor, to allow the reconstruction of approximately 240 if of Shiloh Drive from the existing AHTD right-of-way east to the new Shiloh Drive extension at the CMN property line, including the radius and intersection of Northwood Avenue; 2) Approval of a construction contract with McClinton-Anchor in the estimated amount of $43 ,300. 00 for the above described street reconstruction; 3) Approval of a 15% project contingency of $6,495 .00 for material/construction testing and variations in final quantities. 12. SHILOH DRIVE: A resolution approving a letter contract in the amount of $5,000.00 with Milholland Company for engineering design, construction staking, construction management, and as-built drawings for the reconstruction of approximately 240 If of Shiloh Drive from the existing AHTD right-of-way east to the CMN property line and the intersection with Northwood Avenue. 13, SALES TAX FOR LIBRARY: Consideration of an ordinance levying a one cent sales tax for a period of eighteen months for the consideration of a new Fayetteville Library and setting an election therefore. 14. FUZE WORKS: An ordinance allowing Tyson Foods to use fireworks for the singular occasion of their 65'h anniversary celebration at the Washington County Fair Grounds on July 27, 2000. ®® TRIJMFtn DANIET SANTOS RlTqqELL REYNQl DR DAVIS MA OR HANNA TRljMRQ DANIEL RI NSET T . REYNOT US AUSTIN DAVIS DANTEL SANTOR RI PqqELT AT ISTIN MAYOR HANNA 77 0 - 0 , l� y1p , G 7 Y2 . 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A. CONSENT AGENDA 1 . APPROVAL OF THE MINUTES: Approval of City Council minutes from the meetings of June 1 , June 6, and June 20, 2000. ue b2. BID 00-48: A resolution awarding Bid 00-48 to Chris King Electric for electrical services for the remainder of the year 2000 with five one-year renewal options. 3. BID 00-49: A resolution awarding Bid 00-49 to Synthetic Designs Stucco for the f I1 Engineering Building at 125 W. Mountain Street in the amount of $45,900.00 plus a 10% contingency of $4,590.00. 4. BID 00-50: A resolution awarding Bid 00-50 in the amount of $26,860.00 with a 10% contingency to Airworks a Division of Multi-Craft Inc. for the installation of C( �'�a Phase II HVAC System, City Prosecutor's Office and the Jail. 5, DICKSON STREET: A resolution approving Change Order No. 2 (Final) in Q 1 -00 $46,279.00 with the Dickson Street Water and Sewer Relocations in the amount of $46,279.00 and a budget adjustment. 6. T-HANGARS: A resolution awarding a contract to Harrison Davis Construction, 4� eo Inc. in the amount of $489,865 . 50 with a 15% contingency for the construction of 0 two eight-bay T-Hangars at Drake Field and approval of a budget adjustment. 7. J.D.G. TELEVISION: A resolution approving a lease agreement with J.D.G. Television, Inc. to lease an area that contains thirteen parking spaces in the Fayetteville Municipal Parking Lot located west of the Campbell Bell Building between Mountain, Church, and Center Streets. This lease agreement will allow J.D. G. Television, Inc. to construct a covered parking canopy for thirteen employee parking spaces and will be designed to incorporate and screen three proposed satellite `receive only' dishes. 113 WEST MOUNTAIN 72701 501 521-7700 FAX 501575-8257 B. OLD BUSINESS L PARTIAL PERMIT: An ordinance repealing Section 156.04, Section 169.03(B)(6), and Section 170. 03(A) of the Code of Fayetteville, Unified Development Ordinance, and amending those sections to prohibit non-final, t� partial and/or phased grading and/or stormwater management, drainage and erosion control permits . This ordinance was left on the second reading at the June 1 201 2000 meeting. C. NEW BUSINESS 1. CITY TRAILS: Presentation from Chuck Rutherford on the city's trails. f t' 2. CENTER PRAIRIE TRAIL: A resolution approving the purchase of an abandoned railroad right-of-way in the amount of $50,000 with the intent to build mph ( 0� a multi-use Vail within the abandoned railroad right-of-way between Prairie Street Ike and the Walton Art Center parking lot. 7 3.//l VA 00-4.00: An ordinance approving vacation request VA 00-4.00 submitted by Henry Kelly, Jr. of Millsap Road Investments for property located at 665 Millsap Road, Lot 19 of CMN Business Park Phase I. The property is zoned C-2, Thoroughfare Commercial and contains approximately 2.58 acres. The request is Alvacate a portion of an existing water line easement within lot 19. 4. ✓ �+J VA 00-5.00: An ordinance approving vacation request VA 00-5 .00 submitted by Harvey Luttrell on behalf of Wiggins Memorial United Methodist Church for r� n � property located at 205 W. 6' Street. The property is zoned R-2, Medium Density (/ Residential and contains approximately 0. 18 acres. The request is to vacate a portion of the City right-of-way. 5, �//VA 00-6.00: An ordinance approving vacation request VA 00-6.00 submitted by Joe and Angela Stevens for property located on Old Farmington Road between Beechwood and Eastern. The property is zoned I- 1 , Heavy Commercial/Light Industrial and contains approximately .23 acres . The request is to vacate a portion of Old Farmington Road. 6. //,(AD 00-8.00: An ordinance for AD 00-8.00, Administrative Item Amendment to // // Chapter 162 "Use Units" of the Unified Development Ordinance, Section 162.01 Y (� "Establishment and Listing" to allow additional retail uses in the C-1 (J� / Neighborhood Commercial District./ 7. f/./ RZ 00-16.00: An ordinance approving rezoning request RZ 00-16.00, submitted by Arden Gale for nroperty located at 1530 Albright Road. The property is zoned A- 1 , Agricultural and contains approximately 4.21 acres. The request is to rezone to R- 1 , Low Density Residential. 8. / RZ 00-17.00: An ordinance approving rezoning request RZ 00- 17.00 submitted by Northstar Engineering on behalf of Emad Damen for property located at 2323 Deane Street. The property is zoned R-1 , Low Density Residential and contains approximately 1 .47 acres. The request is to rezone to R-2, Medium Density Residential. // / 9. `��/ ✓ RZ 00-18.00: An ordinance approving rezoning request RZ 00-18 .00, submitted by Richard Grubbs on behalf of Tommy and Jodi Holland and Richard and Mary Osborne for property located on east Appleby. The property is zoned R-1 . 5, Moderate Density Residential and contains approximately 2.5 acres. The request is to rezone to R-O, Residential Office. 10. v/ AD 98-8.00: An ordinance approving AD 98-8 .00, Administrative amendment to Chapter 172 "Parking and Loading" of the Unified Development Ordinance, Section 172.01 (D)(1 ) " Standards for the Number of Spaces by Use-Off Street Parking" to revise the required parking for eating places (restaurants). 11 . ✓ SHILOH DRIVE: 1) An ordinance approving a bid waiver with McClinton- Anchor, to allow the reconstruction of approximately 2401f of Shiloh Drive from ' the existing AHTD right-of-way east to the new Shiloh Drive extension at the CMN property line, including the radius and intersection of Northwood Avenue; Q, piN� 2) Approval of a construction contract with McClinton-Anchor in the estimated amount of $43,300.00 for the above described street reconstruction; 3) Approval ofa. 15%o_project contingency of $6,495 .00 for material/construction testing and variations in final quantities. (12" SHILOH DRIVE: A resolution approving a letter contract in the amount of $5,000.00 with Milholland Company for engineering design, construction staking, construction management, and as-built drawings for the reconstruction of w approximately 2401f of Shiloh Drive from the existing AHTD right-of-way east t www ////SALES the CMN property line and the intersection with Northwood Avenue. 13. �l �l// SALES TAX FOR LIBRARY: Consideration of an ordinance levying a one cent !�Q sales tax for a period of eighteen months for the consideration of a new Fayetteville Library and setting an election therefore. 14. V f FIRE WORKS: An ordinance allowing Tyson Foods to use fireworks for the singular occasion of their 65' anniversary celebration at the Washington County Fair Grounds on July 27, 2000. FAYETTEVI ME - • THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Aldermen, Mayor Hanna, and City Attorney Jerry Rose From: Heather Woodruff, City Clerk Date: June 30, 2000 RE: Minutes of City Council meetings Recently the minutes of the City Council meetings have been questioned. I feel it is necessary at this time to detail my responsibilities as well as the council' s. The Handbook for Arkansas Municipal Clerks, Recorders and Treasurers Association states: While there are no statutory standards governing the content of the minutes, good practice dictates that the minutes should comprise a Qeneral concise but clear description of the actions of the city council not only their final actions in the form of votes but also a sufficient description to reveal that proper procedures were followed One of the duties of city clerks and recorders is the recording of minutes of city council meetings. A. CA Section 14-43-506 provides, "The city clerk shall have the custody of all the laws and ordinances of the city and shall keep a regular and correct journal of the proceedings of the city council . . . " A. C.A. Section 14-45-107 provides, " . . . the recorder/treasurer shall also be, and act as, clerk of the town. He shall attend all meetings of the council and make a fair- accurate- and correct record of all the proceedings laws rules and ordinance made and passed by the council. " The keeping of accurate and complete minutes of council meetings by the clerk or recorder is essential to the validity of the ordinances and other actions of your city or town. The Arkansas Supreme Court has so ruled many times. As City Clerk it is imperative to the records of the city that I maintain a neutral position whether conflicts arise between staff, citizens, or aldermen or a combination thereof. I have taken minutes for the City of Fayetteville for nearly five years now. In the past, the style and format I have used has been a combination of paraphrase and summary. I have found this to be both efficient and acceptable to the City Attorney, Council, Staff, and the general public. Because of the recent tension within our city, I have tried to provide nearly verbatim minutes for the past several meetings. I have found this to be extremely time consuming, inefficient, frustrating and unnecessary. As a neutral party to the proceedings of the meeting and the recorder I find minutes which are more concise to be more affective as both a legal document and historical record. Attached you will find minutes from the June 1 , 2000 and June 6, 2000 City Council meetings. These minutes are nearly verbatim and have consumed nearly forty plus man hours, each, at an estimated cost of $800 to $900 per document. With my current staff and budget, I cannot continue to produce such detailed documents. I will be reverting back to my former style of paraphrase/summary minutes. It is the council's responsibility to review the minutes for errors, omissions, and misinterpretation. Typo and grammatical errors should be brought to my attention before the council meeting so a corrected copy can be presented at the council meeting. For errors in content, interpretation, and/or omissions I propose the following from the Handbook of Arkansas Municipal Clerks and Treasurers Association: From time to time the minutes as prepared by the clerk or recorder might be disputed by a council member. Ifso, then a vote may be taken whether to approve the minutes as prepared or to amend them. If amended by vote of the council then an addendum maybe prepared that conforms with the am_ endment passed by the council._If the motion to amend does not pass, the clerk or recorder should note the discussion in the minutes of the next meeting in which the minutes of the prior meeting have been challenged. City Council Minutes June 1 , 2000 Page 1 MINUTES OF A SPECIAL CITY COUNCIL MEETING NNE 1, 2000 A special meeting of the Fayetteville City Council was held on June 1 , 2000 at 4 :30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas . PRESENT: Mayor Fred Hanna; Aldermen Robert Reynolds, Ron Austin, Bob Davis, Trent Trumbo, Heather Daniel, Kevin Santos, Cyrus Young, and Kyle Russell; City Attorney Jerry Rose; City Clerk Heather Woodruff, Staff, Press; Audience. Mayor Hanna explained a special meeting had been called for Friday, June 2 at 9:00 a.m. by —AldermenRussetl,-S antos_and_Y.oung,.at-the-request-of-an-attorney,-Mr-Fulcher-Aldermen - Trumbo, Davis, and Austin had called today's meeting because they were unable to attend the meeting scheduled for Friday. Mayor Hanna asked Alderman Russell if he wanted to start the meeting with Mr. Fulcher' s presentation. Alderman Russell replied this was not the meeting they had called. It was his understanding that a separate meeting had been called for 4 :30 p.m. for discussion of a stay. It was his understanding this was a separate special meeting that had been called. Whoever called it was in charge. Alderman Trumbo stated he had called the meeting because he had clients scheduled and worked for a living during the day. 9:00 a.m. Friday morning would not be accommodating for him as well as the other people who have full time jobs. Alderman Reynolds stated he was scheduled to fly out of Tulsa at 7:00 a.m. Friday morning. Alderman Austin stated he wanted to open the discussion by stating he thought it was appropriate to consider the value of a suggestion made by Alderman Russell. They had all been thinking about the value and repercussions or benefits of granting a stay. He wanted to know from the City Attorney if there were any real positives to the City Council and the City of Fayetteville, for granting a stay in this issue. City Council Minutes June I , 2000 Page 2 Alderman Trumbo stated he had set in the court room of Chancery Judge John Lineberger, along with Alderwoman Daniel and Alderman Reynolds. He had heard a chancery judge, with twenty- five years experience, say the City Council did not have any jurisdiction to impose a stay on this kind of ordinance. He questioned the legalities of the City Council making that kind of decision. He asked City Attorney Jerry Rose to elaborate. Jerry Rose stated he felt like he was saying the same thing over and over again, and this would be his third day for having said it. He stated his opinion has not changed at all over those three days. He had appeared before the Circuit Court in Washington County and told them this . He then appeared before the Chancery Court and told them what he was getting ready to tell the council. Now he was telling the council for the third time. He explained the City was served last Friday with an appeal. The appeal was from the decision of the Fayetteville Planning Commission to grant large scale development approval to the Steele Crossing Shopping Center. As you well know, that large scale development approval was appealed to the City Council. The council rejected that appeal and the large scale development was thereby approved. The appeal that was served to the City on Friday alleges that the granting of the large scale development -violates the City Ordinances,-specifically the Tree Ordinance by failing to meet what the plaintiffs believe to be a mandatory canopy requirement and by alleging the City improperly removed landmark and rare trees. In addition, it is alleged that no tree preservation plan was submitted. They met in an emergency hearing this past Tuesday at 11 :30 a.m. Judge Kim Smith was there on the plaintiff s application for the stay of the issuing of any permits under the large scale development pending the appeal. In addition, the developers asked at that time to intervene in the lawsuit. That motion was granted, and Argus Properties and Fayetteville Exchange LLC are parties to this action in addition to the City. The Circuit Court did not grant a stay, and instead transferred the proceedings for a stay to Chancery Court on the plaintiff's oral motion for an injunction. They met the next day, Wednesday, at 9:00 a.m. in the morning. That case was before the Chancery Court on a petition by the plaintiff s for a preliminary or temporary injunction. His argument to the Court was and he believed that the Court concurred with his argument. There were only three ways of which he was familiar with how a stay may be granted. One, was through Section 155 .03 of the City Ordinances. Section 155 .03 reads, "that a stay is granted of any action pending the appeal or pending an appeal. " He told the Court, and he told the Council that section has always been interpreted to mean the stay from administrative proceedings within house. In other words, because he believes that a stay when it was on appeal to a Circuit or Chancery Court, transfers jurisdiction to that Court. The provision only applies to in-house, as to appeals from the Planning Commission to the Council, or from an administrative decision to the Board of Adjustments, or from the Board of Sign Appeals to the Planning Commission, those kinds of in-house things . Secondly, he did not believe it applied here because State law is superior to any ordinance that the city may pass. Arkansas Statute Annotated 1455 . 101 and 102 state that a city cannot make ordinances that are inconsistent with state law. And accordingly they have consistently applied that 155 .03 only to appeals to city City Council Minutes June 1 , 2000 Page 3 boards and city councils, rather than court appeals, which have their own statutes, and that was where two and three occurred. The other way a stay may be granted was under State Law at the Circuit Court which allows a stay under some circumstances but for whatever reason that stay was denied by the Circuit Court and the issue was passed on to the Chancery Court where they met yesterday. The Chancery Court considered it under the third way that stays could be granted. That is Rule 65 of the Arkansas Rules of Civil Procedure. Rule 65 of the Rules of Civil Procedure provides for a stay and could be granted on the basis of a bond being submitted for the cost to any damages that may be incurred as a result of a stay. Accordingly yesterday, as he understood, it was signed, and you should have copies of it before you. This is an order by the Chancery Court of Washington County that grants Argus Properties and Fayetteville Exchange LLC herewith enjoined and prohibited from removal of trees for LSD 00-5 .00, the Steele Crossing Shopping Center, pending the trial court decision at the lower court. The plaintiffs have until 12: 00 noon tomorrow to file with the court a security bond in the amount of $310,000.00 in order for that to take place. It was his understanding of the law that the court has ruled under Rule 65 of the Arkansas Rules of Civil Procedure. A court has already ruled on whether or not a stay should take place or not and that is contained in the order. The court has already ruled on the amount of the bond that should be given in that situation, $310,000.00. He did not believe that you, as a City Council, have the authority to do anything different from what this Chancery Court has already done. He believed that would be contrary to the law. Apparently the Judge had appeared to agree with him. Alderman Trumbo stated it seemed to him this was a maneuver on the part of some City Aldermen to get around the plaintiffs coming up with the required bond. He asked if the City Council imposed their own stay would the City have to put up a bond? He asked if it would be prudent for the City Council to vote to impose their own stay, not to issue permits in this case? Would that open up the City to litigation by the developers in any way? Jerry Rose replied he did not know how to answer questions like that. They are kind of Alice in Wonderland questions. He did not know how to answer that. The courts have talked about temporary takings for delays and issuing permits, and those kinds of things. Those cases exist. He was not sure on how to analyze them in that kind of bizarre sort of situation. Alderman Trumbo stated his degree was in finance, and that is why he relies on Mr. Rose's legal advice. He was under the impression it was Mr. Rose's legal advice that it wouldn't be legal, after yesterday's hearing in Chancery Judge Lineberger's Court, for this governing body to have the jurisdiction to attempt to do what some aldermen are wanting the City Council to do. Jerry Rose stated he did not know what they had asked the Council to do. He had not heard that yet. If it was to grant a stay, he had given his opinion and the Court' s opinion on that yesterday. City Council Minutes June 1 , 2000 Page 4 Alderman Russell stated it was his understanding the aldermen were not asking for anything. It was Mr. Fulcher who had filed the pleading in the lawsuit asking the City for this . Jerry Rose stated he did not know how you would file a pleading in Circuit Court asking the City to do anything. Pleading in Circuit Court asks the Circuit Court to do something, not the City. Now, if they are asking the Circuit Court to direct this City to do something; he would welcome that. It would take it off of the Council's back and off of his back. They are welcome to do that. If these folks believe they need to do something that they are not doing, that they have a duty to perform, that they are not performing, that if we have some decision to make, that they are not making, then tell that to the Circuit Court and have them direct the City to do that. There are procedures to make that happen. He did not doubt the passion nor the fervor nor the sincerity of those people who disagreed with the decisions that have been made by the City. He did not doubt that. But in all candor, they have had the opportunity to express their views to the Planning Commission. They were not able to persuade them. They had the opportunity to present their views to the City Council. They were not able to persuade them. They had the opportunity, on Tuesday, to present to the Circuit Court of the County of Washington their position. They did not agree with them. They had the opportunity, yesterday, to communicate to the Chancery Court of Washington County. They, too, did not agree with them. And now, apparently, we are back here again today. Now that' s fine. That's all right. But let's set the record straight on how many opportunities have been presented. Alderman Young asked Mr. Rose in the order the Judge signed if he said in there that the City did not have the right or authority to issue a stay? Jerry Rose answered, no sir. Alderman Young stated that is not what the Judge ruled. Alderman Trumbo asked Alderman Young if he had been in the court and heard what the judge had said? Alderman Young replied the order was what he signed. He did not say that. The order was a legal document. The judge did not say that this ordinance that we have about stays was not effective. Alderman Young stated then he should have said it in his order. Alderman Trumbo said that was not what the judge had been asked to do. He had been asked to address the stay in Chancery Court, and it had nothing to do with the City Council. Alderman Young stated that was right. It had nothing to do with that ordinance. The next thing he wanted to say was he had sat there many, many times and people had asked about appeals and City Council Minutes June 1 , 2000 Page 5 Jerry Rose had always gone through the spiel of various things from appealing to the Planning Commission up to the Council, and every time whenever he would finish, he would finish with the final appeal to the courts. That was an appeal and that is what this ordinance covers. Now they have a different, new interpretation. Alderman Young stated Mr. Rose was. saying that an appeal to the courts was not an appeal relative to this ordinance. Jerry Rose replied, on the contrary ! Let me be perfectly clear. I can stand exactly with what Alderman Young just said. The final appeal is to the courts and that is where these proceedings are at this time. Alderman Austin submitted a resolution to the Council for consideration. He asked the City Attorney to read it. Jerry Rose stated that this was not his resolution. This was Alderman Austin' s resolution. He stated this bothered him very much. He had received a phone call yesterday from some man who believed, very strongly and very fervently, that his opinion changed depending on who asks -him-the opinion. He-assured-them that-was not-true. He could assure them that as City Attorney he was obligated to represent the City Council-of the City of Fayetteville. That changed sometimes as you all probably well know. He did not choose his client. His client chooses him in the sense that their majority, at any time, is the majority that he represents. Those individuals on this City Council, however fervent and however sincere they are in their beliefs, he did not represent them if their opinion did not represent a majority of this Council . He did not wish and did not want to be crosswise with half of his City Council members, however, he has a duty to this City to represent the majority on that City Council, whatever it happens to be at any given time. Not only is he bound by his ethics, and he would be pleased if they would read them, when he threw out the word "zeal" it was not for comedy effect, it was that he was to represent his clients with "zeal" and he had no choice but to do so. Now then, the man on the phone asked him a very interesting question. He said, "Mr. Rose, is there ever a situation in which you believe the will of the people, who elected you as City Attorney to this City, the will of the people is so strong that by golly you' ll buck what the majority is on the City Council and as an elected official by the majority of people, that you' ll go against that majority and you will represent the people? " His answer was yes, he would, but he has not been presented with that situation frankly. It would be very heady wine for your City Attorney to tell you or anybody that by golly I am not going to represent what the majority of the people that elected you to this Board believe is true and right. It would be very heady wine for him to do that. So he will continue to "zealously" represent the majority of this City Council. Those individuals who fail to muster a majority do not get the benefit of his representation in court. He continued, he will continue to give his best legal advice to anybody who asks of it and he will not flavor his advice because he didn't happen to agree with them, or because they happen to go to a different church than he did or because they happen to live in a different neighborhood or believe in something City Council Minutes June 1 , 2000 Page 6 that he did not believe in. He tried to keep his advice as logical and as reasonable as he possibly could. His guess was that most times the folks that don't like what he is saying simply tries to use what he said to their favor and find that is not successful. It has been a very frustrating two weeks for him and he was sure it had been for everyone else. He encouraged them to encourage their attorney to do the best he could in Chancery and in Circuit Court on their behalf. Until then, he would continue doing his job that the people elected him to do, which is to represent these good folks up here, the Planning Commission of this City and what he believed to be, until proven differently, the people of this City. Alderman Young stated Jerry Rose was in a very difficult position and he hoped everyone appreciated that. A lot of people did not have a lot of experience with lawyers, of what lawyers do, but Jerry had to represent the City, he had to represent sometimes the Planning Commission, and the City Council and whatever. It is like he says, it is the majority. He did not know how the lawyers will battle it out. He doesn't really know what is being appealed. It could be the final action of the City Council or the final action of the Planning Commission. The Planning Commission voted 6-2 or 6-3 , something like that, and that would be a majority if you wanted to look at it that way—He-did hope everyone would take into consideration that Jerry is in a very difficult position. The only other thing he would add to was to remember there was a 6-3 vote by the Planning Commission. The vote of the Council was 4-4 which was a tie, and that's the biggest problem Jerry has. Alderman Russell stated he would second, in a large part of, what Cyrus had just said. He would hope none of them would have any animosity toward Jerry Rose or Jack Butt because of the legal position they are taking on behalf of their clients. It is their job to try to find a way to defend what their clients have done or failed to do or are being sued over, in our case. Similarly, it is Mr. Fulcher' s job and Mr. Kester's job to represent the interest of their clients and he would hope no one would have any personal animosity toward them for that either. He thought the request was for Jerry to read the resolution. Alderman Austin stated he has asked Jerry to write four ordinances or resolutions since he has been on the Council. Every time he has drafted them and sent them to Jerry Rose, who then put them into legal language that fits the ordinances of the City of Fayetteville. That is exactly what happened in this case. Thank you, Jerry. Jerry Rose read the resolution. (See attached Exhibit A) Alderman Austin moved for the resolution's adoption. Alderman Trumbo seconded the motion for the resolution's adoption. r City Council Minutes June 1 , 2000 Page 7 Mayor Hanna stated the Council had a motion and a second to approve the resolution that was presented. Alderman Young asked if the Council was going to have public discussion. Alderman Trumbo stated he thought since the Council was an inferior court they should have the two attorneys make their presentations and then the council could vote. Mayor Hanna addressed Mr. Fulcher and asked if he would like to make his presentation? Mr. Clay Fulcher addressed Mayor Hanna and the members of the Council, Mr. Rose, and others. He stated he lived at 683 Cliffside, here in Fayetteville. He stated he was one of the attorneys representing the plaintiffs in the case against the Fayetteville Planning Commission and the City of Fayetteville. He wanted to address a couple of points Mr. Trumbo had brought up. They have never tried to ask the Court or the City Council to stay any ordinance. In their application they filed asking the City of Fayetteville to stay any further proceedings was not an attempt to get ___around the Court_In.fact, that application was filed before they even set down with Judge Smith on Thursday and he sent them over to Chancery Court. The reason they ended up in Chancery Court was Judge Smith said that was the only alternative. He had made an oral motion and they ended up over there. But anybody that was there yesterday and heard the argument that the Chancery Court didn't even have jurisdiction to do what they ended up doing. They ended up issuing a preliminary injunction pending the plaintiffs coming up with a $310,000.00 bond. His application to the City of Fayetteville was simply on an existing ordinance. You heard Mr. Rose explain his interpretation of it. He didn't even think under his interpretation the City Council had to do anything. They don't have to vote. All they have to do is recognize under the current situation this appeal to Circuit Court, which is also covered by City Ordinance 155 .01 , any further proceedings on this development need to be stayed. He did not think this needed to go to a vote of the City Council. It was his understanding, unless the grading permit has been issued, the developer did not have final approval to go out there and start cutting the trees or do any grading, earth moving or any further development until the permit was issued. They made specific application to the City under that ordinance. Their interpretation was the City had the right and the obligation to stay any further proceedings on LSD 00-5 . 00 until their appeal was heard. The other thing that came up yesterday was they told Judge Smith when they were sent back to set a trial date they would be ready to proceed on this thing in 30 days . Obviously, that would have resulted in a considerably lower bond. Both the City Attorney and Mr. Butt argued that motions were going to be filed, discovery would need to be done, and the earliest trial date they could all agree on was October 30th. At this point unless they could come up with the $310,000.00 by noon tomorrow, they were not going to be able to stop Argus, if they in fact have all the required permits, from going out there and removing at least some of the trees. He knew there was another action pending on the redtail hawk. That is why they would at least like to ask City Council Minutes June 1 , 2000 Page 8 the City Council and the City Attorney to reconsider their particular opinion on this particular ordinance that states an appeal will stay all proceedings and furtherance of the action appealed. A couple of other things he wanted to ask about was : ( 1 ) if his clients can post the bond and they go to trial in October and they win, do they get their money back, which would be great? He was not sure who was going to put it up but it' s not going to cost them any money. Obviously if they lose, they have to give that money to Argus for $3,200. 00 a day in damages. That is not a bad return on their investment. They would at least get paid for not being able to develop during that period of time. The second alternative (2) is that his clients are not going to be able to come up with the money by tomorrow at noon, and if they lose at the hearing, both sides are probably going to go home at that point. This is not a statute, but he did not think anybody was going to have to pay the other side' s attorney' s fees. They will have to bear their own cost in fees and they will go on with it. If they are able to prevail in October, what were they really going to win? They were going to win a moral victory and that' s it. Because by October, if they don't post that bond tomorrow, Argus is going to go out there and cut those trees. As far as he knew the only penalty, he had been able to find in the City Ordinances was a $500.00 penalty per violation. He did not know if that even applied. Basically, if they win at that point they will have gone out there with the City's blessing and cut several hundred thousand dollars, maybe several millions, depending upon whose evaluation you put on those -trees, and they can't be replaced. It may well be a hollow victory at that point. One thing he was curious about was, if somebody could put a value on it. If Argus was going to come forward and say, okay if we are proven wrong in October, we are going to pay the City and the citizens of Fayetteville back several million dollars for cutting those trees wrongly. He was not sure if they will say that or not but he would like to know what they had to say. He got into this thing at a late hour so he hasn't really followed what's been going on with the development except for getting certain bits and pieces. Certain things do stand out to him, and he believes he needs to say them. (1 ) This property was re-zoned from agriculture to commercial. Basically, it was his understanding there was some opposition to it, but CMN was allowed to re-zone this to commercial which took $2,000 - $ 1 ,000 an acre agriculture land and has turned it into $50,000 - $ 100,000 an acre land. The people that owned this land have certainly made out and are going to make millions of dollars off of this particular development. Even though he has not had a chance to go through all the files in the City, there were tree preservation plans by CMN in 1998 that indicate that this entire grove of trees, except for a piece that was going to go through with a road, which he believed was Van Asche Avenue, were going to be preserved. There are documents in the City Engineer's Office that read they are going to preserve, at least, 14% of the total acreage in the existing canopy and only replace 2% or 3%. As far as he could tell sometime between the middle of 1998 and when Argus bought this property, all of that went out of the window. One thing he was curious about was that Mr. Milholland who has been the engineer on this project and from reading through the Planning Commission files, said if he had been aware the City was going to enforce this tree ordinance he would have redrawn these lots. He said it looked like to him they could have been redrawn and CMN could have said, hey, we are going to City Council Minutes June 1 , 2000 Page 9 make lots of money off of this thing. We are going to set aside these trees and anybody that was going to develop around them we are going to let them know they can't touch these trees. He says, first of all, he didn't even think the ordinance was in place when all of this stuff was going on. It was pointed out to him on March 16 the thing had been in effect since the early 1990's. The fact he did not think this tree preservation ordinance was going to be enforced, was curious because there was a letter from the City of Fayetteville Landscape Administrator, Kim Hesse, on January 4, 1999, to whom it may concern, and one of the people it was sent to was Milholland Engineering and Survey. In part Ms. Hesse said, " it has come to my attention that little design consideration has been given toward the preservation of rare or landmark trees ." As a major section of the ordinance states, "proposed developments should be designed to maximize the preservation of landmark trees. " A Landscape Administrator's job is to uphold this ordinance. Therefore, it is suggested that I be included in the review of these projects in the early stages of conceptual design. Many of the projects recently reviewed could easily be revised to save trees. The reason he was bringing this up was that everybody was on notice that she was going to take this thing seriously, regardless of whether it had been taken seriously before. Mr. Milholland was on notice. Whether or not Argus was on notice, he did not know. They should have been -told, and if they weren't-told.maybe they have a complaint-against CMN and Mr. Milholland. There was-no reason in the world he could see that these trees should not have been set aside in the first place. Maybe it's too late to do anything about it now but he thought the citizens and the people ought to be aware that Ms. Hesse put people on notice that this was important well over a year before they bought this property and came in with the first design to save zero trees. If it had been up to them there would have not been any trees saved out there. The reason they think they are going to prevail on this, and the reason they think the City ought to reconsider not stopping this development, is right out of the City Council Minutes on May 2, 2000. Alderman Kyle Russell asked Ms . Hesse if in her opinion that the 10.03% plan, although she felt like she needed to give her okay for it at the Planning Commission Meeting, complies with the Tree Protection and Preservation Ordinance? " Ms. Hesse said it did not comply with the ordinance. " In court they called that admission. He thought if they ever got to ajury they will be proven right, the City is going to be proven wrong, all those trees are going to be gone and everybody is going to be wishing we had done something. Any questions? Alderman Santos stated he was worried about any damages the City might be liable for if they don't take action to stay the construction. If the majority of four here were incorrect and the minority of four was correct how many millions of dollars were they setting the citizens up to lose here? Clay Fulcher stated he was not an expert. He believed Mr. Rose could probably answer that better than he could. He was not sure the City was going to be liable either from Argus if they stop it, or from the citizens if they allow it and it turns out to be wrong. He thought it was within the reasonable discretion and he believed a reasonable attitude would be to stay the thing. They City Council Minutes June 1 , 2000 Page 10 weren't given the final permits after the 6-3 vote by the Planning Commission because the thing went up on appeal. That was all they were asking for now. They have appealed pursuant to the City Ordinance and the City Ordinance, which, in their opinion, says all proceedings should be stayed until the appeal has been heard. Alderman Santos asked Mr. Rose if they would be liable, in case the majority of four were correct for the $310,000.00, if that was the damage that would be caused to Argus by delaying the development by the stay? Could Argus ask them for the $310,000.00 if legally the League of Women Voters lost the lawsuit? Why were they betting $310,000.00 against an unknown number of millions? Clay Fulcher stated the injunction was between Argus and the plaintiffs . He did not believe the City had any part in that. They were asking the Council to look at the ordinance about a stay because the judge had said the preliminary injunction was against Argus. It does not have anything to do with the City. Alderman Santos replied, "unless the City was to-grant this stay:" - Clay Fulcher answered, "right. " Alderman Russell stated he believed what Mr. Santos was asking was if the City stays the proceedings, with no bond posted, could Argus then come after the City for $310,000. 00 if they win their lawsuit? Jerry Rose replied he thought it could be conceivable. He really did not know because he had not researched it incredibly well. He and Tim Conklin had talked today on the phone about whether or not this constituted or might constitute a temporary taking. There are some temporary taking lawsuits out there. Temporary takings have been compensated. They are rare. It does not occur frequently, but they have occurred. In some cases they have occurred, a temporary taking has been found in which a delay, a moratorium has been set on permits and they were refused to be granted because of the moratorium or because they were working on something or whatever. It was speculative. There was some risk involved but he was not sure, at this time, exactly what it would be. But there was some risk involved. Alderman Santos asked since the judge had set that $310,000.00, $2,000.00 a day, would that be the damage caused to Argus? Jerry Rose replied that amount was not set in stone. In a temporary takings the amount would not necessarily be the liquidated damages' amount. It might be less or it might be more. City Council Minutes June 1 , 2000 Page 11 Alderman Young stated he doubted that would happen. But, he asked, could they appeal to some other court saying the figure of $2,000.00 a day was excessive or something? Jerry Rose answered, yes, anybody could challenge it. They did run some risk. Alderman Davis stated he appreciated Mr. Fulcher' s comments. If he would go back to the Planning Commission Meeting minutes, he would find out Ms. Hesse started out only wanting 11 . 5%. The papers have yet to report that. During the course of the meeting, she finally agreed, without being brow beaten, to 10.29% of which nobody has reported that either. Next you will find Mr. Odom asked her on page 54 and 55, "Miss Hesse, do you feel you are in compliance?" And her comment was "yes. " There was no comma, nothing else afterwards . The word was "yes. " That was black and white in his opinion. Alderman Santos replied to Alderman Davis that was not right and he was kind of tired of hearing him say that. Alderman Davis asked Alderman Santos if he had the minutes in front of him? Alderman Santos stated he had read the minutes and had watched the meeting on TV. He asked `do you think this is a good compromise"-and-she said "yes." She did not say that it complied with the ordinance. She agreed that it was a compromise. Alderman Davis stated because of that the Planning Commission had voted 6-3 . He believed Mr. Estes, on the previous page or maybe two pages before that, also made a like comment. Alderman Austin stated he believed the Council had asked them to work on a compromise. Alderman Davis added he had asked Ms . Hesse, "if she would say yes that you thought it was a compromise and you thought it was something that could be worked with. Her reply was "yes" in that statement too. Alderman Santos said it was a compromise of the law. Alderman Davis replied Ms. Hesse had thought she could work with that. Alderman Trumbo stated this whole situation was the interpretation of our existing tree preservation ordinance. That is the difference of 6-3 and 4-4 of the governing bodies and the presentations of where we are right now. It was just on the interpretation. He had said all along, they should look at redrafting it. Part of the problem was the interpretation and the discretion of replacement trees to get to the 15% canopy. It has always been that practice. - City Council Minutes June 1 , 2000 Page 12 Alderman Santos stated the only interpretation was the interpretation of the word " cannot. " And " cannot" does not mean "don't want to. " Alderman Davis stated they were not arguing that today. That depended upon the design that was brought forward. Alderman Russell stated he had a question for Mr. Fulcher and a question for Mr. Rose. He understood the permits had been issued, and Argus could act upon them if the injunction was lifted tomorrow. Charles Venable, Public Works Director, answered that was correct. The grading permit had been issued. However, there were some things they had to do. They had to have a preconstruction conference. They had to make sure everything was in place to preserve any trees that were out there. If they did that, then they could begin grading, without removing any trees. Alderman Russell asked Mr. Fulcher if it was his position or his client's position, that any development, any removal of trees, and any pursuant to any City permit, were in violation of the city ordinance he had cited us? Clay Fulcher answered Alderman Russell "yes. " Alderman Russell asked Mr. Rose, regarding the permits that had been issued, if an administrative appeal would stay the proceedings? Jerry Rose replied he really did not know but he would look into it. Alderman Santos stated he wanted to make another comment. He was upset about this meeting being called. He and Aldermen Young and Russell had called a meeting for 9:00 a.m. tomorrow morning, giving more than twenty-four hours notice, so the public would be aware, so the attorneys could be here, so the press could be here. He thought to have called this meeting with only two hours and fifteen minutes notice was an attempt to subvert the democratic process and hide the public' s business from the public. Alderman Austin stated he wanted to respond to that. The media was there. They had TV cameras operating and it would be shown on public TV. There was nothing being hidden. They were debating this issue in public. He resented Mr. Santos making that implication. He thought if Mr. Santos wanted to talk motive, how about having a meeting a 9: 00 a.m. when most of them were employed and working. He added they had agreed a year and half ago they would not call meetings that required their votes until after 4 :30 p.m. in the afternoon. Every alderman had agreed to that. They had violated that trust. It had been an informal agreement. City Council Minutes June 1 , 2000 Page 13 Now committee meetings, receptions, public recognitions, and things like that were not included in the agreement. He called Alderman Trumbo on this issue when he held the tour of the senior center before 4:30 p.m. He had not been able to make the tour. Alderman Santos replied he had no memory of that. Alderman Young stated he did not remember that. He would certainly agree that most meetings, like this needs to be at 4:30 p.m. or 5 :00 p.m. If it had come up, that was probably what he said. But he would have also said that occasionally there would be other reasons to do it. The reason for the meeting at 9: 00 a.m. tomorrow was because there was a deadline of 12 : 00 noon. Alderman Austin replied that 4:30 p.m. had been open. He had checked. This meeting room had been open. As a common courtesy to everyone who was working the meeting should have been held at another time. Alderman Young stated he worked too. He had left a preconstruction meeting to come here. There—was also a courtesy to the press and the public-to give-twenty-four hours notice. Yes, the ordinance, therulesand the procedures say two hours. I have always said that was too short. Alderman Santos added that was barely legal. Alderman Trumbo stated with all due respect when he had been called initially by the City Clerk he had asked her to see if a meeting at 4:30 p.m today would accommodate the other aldermen because he had a client that was scheduled at 9 :00 a.m. tomorrow morning. Alderman Young stated that was not what had happened. They called us and said it was set. Alderman Russell said he had gotten a message that three people had called an additional special meeting at 4:30 p.m. today in Room 219. Alderman Santos stated he would not have gotten that message if Kyle had not known that he was in a meeting and had the front desk receptionist come and find him. Alderman Trumbo asked Alderman Russell if the whole emphasis for tomorrow's meeting was whether or not the Council would vote on the stay? He was of the opinion that the people that believed the way that he did would be better served to know today, rather than tomorrow, when they had a 12 :00 noon deadline. He was considerate of those facts. City Council Minutes June 1 , 2000 Page 14 Alderman Russell replied he thought it would be better to know before 12:00 noon. That' s why Alderman Young and he decided that 9 :00 a.m. would be better than 11 :00 a.m. or 12: 00 noon tomorrow, but it had to be done. Mayor Hanna addressed the aldermen and stated that they had gotten off of the subject. Clay Fulcher asked if there were any questions. Alderman Davis said he had a question for Mr. Fulcher. Why was it that his people could not come up with the bond money? Clay Fulcher answered that most of his people were working citizens and $310,000.00 was a lot of money to come up with within 48 hours. He guessed if they had a month to come up with it, they could. If you want to give them a month, they would certainly try. Alderman Trumbo stated that was Chancery Judge Lineberger' s decision. Alderman Santos stated the Council could make that decision. Mayor Hanna stated no, the Council could not make that decision. Alderman Young stated all it was, was a stay. Alderman Trumbo asked if they had faith in the City Attorney's opinion or if they wanted to go contrary to what he recommends. Alderman Young stated that was what they were discussing. Clay Fulcher stated he had one other comment and then he would sit down. This was obviously the 11 'h hour and by tomorrow there may be some trees removed. He encouraged Mr. Rose and Mr. Butt and Argus and anybody else who might have any influence in this case, if there was any room for compromise, his plaintiffs, clients were certainly willing to sit down. They have one faction that says they have to save them all. Argus says they can't save one more. There is always room for compromise and if something was not done and things stood as they were today, and they go down and cut those fifty-seven trees down, there were going to be bad feelings for a long time in Fayetteville. He hated to see that. Alderman Trumbo thanked Mr. Fulcher for the way he handled this. He had set on a board at the University of Arkansas for seven years with Mary Alice Serafini, and when she filed her lawsuit he had called to thank her for doing it so they could get it off the streets and into the civil courts. City Council Minutes June 1 , 2000 Page 15 It was okay to debate. He was tired of getting calls at his house and cat calls at Farmer's Market and at concerts. It was okay to disagree. But, the cat calling and the vulgar phone calls and messages on his answering machine were not a part of democracy. Jack Butt addressed the Mayor and the City Council and audience. It disturbed him that this City had become polarized. That a board of eight people, whom he believes to be and in some cases knows to be, honest, hardworking, smart, well meaning, well informed, attentive and caring about their jobs, have divided into a four-four split where we on one side our property rights under the United States Constitution and the Declaration of Independence are as essential as life and liberty. They have to temper that with the police rights that any community has to make sure their citizens are safe and secure and there is reasonable access to places. In Fayetteville the tension between this police power, which is really more of a quality of life than actual survival, as confronted with property rights has completely polarized the community. He has struggled since the beginning to find and advise his client and, search with his client for a compromise, and in some cases there just is not one. You have to go forward with what you have and keep looking for a compromise, but what happens, happens . He was sorry that it has come to this. He believes his client' s cause is just. He is paid to represent it, but he wouldn' t have represented it if he did not believe that. The half full part of this situation is Argus came to this community with no preconception of what it would take. There are communities in the United States where they say they don't care what you bulldoze down. They don't care what your building looks like. They don't care if you have any access streets or sidewalks, or scenic easements. And in that case, Argus, like any one of us, is out to do a job, to build a store and make some money. Each of us goes to ourjob and do it our own way, and that is what they do in a community. They are not going to plant three acres of trees, if they don't have to. That community doesn't, by its police power and quality of life accept it, and that community is happy with it. Now they come to Fayetteville and their only preconception is they are going to follow the rules. They come in here and learn through a process, to their surprise and was sure somewhat to their disappointment, they can't take fifteen acres and bulldoze it flat and build a building. Indeed that is probably the most profitable way to do it from purely an economic standpoint, but they discovered that Fayetteville has significant police authority, it is committed to a quality of life and preserving trees, and in essence he perceives Argus has at the cost of about $300,000.00 an acre gifted the City of Fayetteville and it's citizens three acres, three football fields of contiguous old growth trees . They paid a million dollars to buy us all a city park and they are going to build a parking lot so we can go park, and be close to it and the sidewalks. They are going to put trees throughout that parking lot and along all the sidewalks. There may be one or two people in this audience that have lived here practically their whole life. He did not know that grove of trees were there. They added nothing to his life until this became contentious. Well, now he can drive out there, if he wants to shop or if he wants to sit in the park. He and his kids can shop. We have a park to sit in. Three acres, a million dollars cost to Argus. He is going to park his car in a tree- covered parking lot. He is going to drive in through tree lined driveways and there is going to be City Council Minutes June 1 , 2000 Page 16 a buffer of trees and plants between that thing and the bypass so they don't look like the northeast quarter between New York and Washington, D.C. He has been out to those trees. He went out and talked to Mary Lightheart. He looked at the trees. He wandered around and looked at them. He loves trees. He doesn't love them as much as his kids. They are beautiful trees. They are gorgeous trees. And when they fall down that will sadden him. But Argus paid $300,000.00 an acre for the right to develop that property and nobody else in this room even thought of doing that. He can' t go to anyone in this room and say I don't like your Victorian house. It stinks. It destroys my quality of life. I want it to be red brick. That is private property and however you mow your yard and where you put your fences, and whether it is a chain link, and until the community decides at large what the standard is, you get to do what you want to. So Argus said they would meet the standard. The standard proved elusive. And at least eight prior major subdivisions, since 1992, significant variances were given. They cut the trees back to zero back then and that was okay. But Argus said they were going to play by the rules. They come in, and ultimately the Planning Commission approved 6-3 . The City Board, under its rules did not overturn the Planning Commission. And what happens is in our society, whether you are arrested for speeding or for your dog barking, or you sue a neighbor for running over your cat, or you get in a car wreck, there is always a due process decision. It might be before a legislative body. It might be before an administrative body. It might be before a court. But every citizen in this country on every contention has a day in court. Once that day in court is accomplished, then you are vested with and presumed to have the rights that process brought you. Argus went to the Planning Commission and it decided for them. Now at that point they were not allowed to cut trees because within the City, which said they wanted to make sure nothing happens until they have looked at this a second time. So they came in here and most of these people, and him, and all of you went through the process of trying to figure out what the Planning Commission had done. This Board, and he understands it is a 4-4 vote, but under the prescribed rules and procedures, the decision was to sustain it. Now at that point Argus had some invested rights. This popularly elected City Board, by it's prescribed rules upheld Argus. They have paid three and a half million dollars for that property and another hundred thousand or more in engineering fees. They have spent and he appreciated what Mr. Kester was trying to do in saying maybe they ought to go look back at the roots of this, but if we want to do that we are talking about thousands of man hours, tens of hundreds of man hours of city staff time, tracking planning time and all that. The final day in court was here. They are vested with the rights and they are saying they want to move forward. Now throughout our system, again, whether it is an appeal from this Board or Municipal Court or the Circuit Court of Washington County or the Chancery Court, once that right is vested there is a basic rule. It is in some kind of law everywhere for every proceeding that says once this decision has been made for or against you, if the person who suffers from that decision doesn't like it they get another bite at the apple. They get to appeal it somewhere. It happens whether you go to the Supreme Court or Municipal Court or from Circuit Court to the Court of Appeals, everybody has an appeal. The thing is that once this decision has been made in the primary tribunal, the person that wants to prevent the person that won from