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HomeMy WebLinkAbout2000-09-19 - Agendas - Final FAYETTEVIICE • OE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL SEPTEMBER 19, 2000 A meeting of the Fayetteville City Council will be held on September 19, 2000 at 6:30 p.m. in Room 219 of the City Administration Building, Fayetteville, Arkansas. NOMINATING COMMITTEE REPORT A. CONSENT AGENDA 1. APPROVAL OF THE MINUTES: Approval of the minutes from the August 15, 2000 City Council meeting. 2. BOND DEALER SERVICES: A resolution approving a contract with the Bank of America Securities for variable rate demand bond dealer services and authorize . the Mayor and City Clerk to execute the contracts. Budget adjustment authorization is also requested to implement contracts. 3. EXECUTIVE SQUARE: A resolution approving an encroachment into city right-of-way for the purpose of constructing a balcony on the north wall of # 1 West Mountain Street for Executive Square Inc. B. OLD BUSINESS 1. CAMPBELL-BELL BUILDING PARKING LEASE: A resolution approving a one-year lease agreement with Campbell-Bell Building LLC, for two parking spaces in the parking lot west of the Campbell-Bell Building. 2, TED BELDEN PARKING LEASE: A resolution approving a one-year lease agreement with Ted Belden (Campbell-Bell Building) for one parking space in the parking lot west of the Campbell-Bell Building. 3, GAIL AND JERRY MOORE PARKING LEASE: A resolution approving a one-year lease with Gail and Jerry Moore (Campbell-Bell Building) for two parking spaces west of the Campbell-Bell Building. • 113 WEST MOUNTAIN 72701 501521-7700 FAX 501 575-8257 C. NEW BUSINESS 1. VA 00-7: An ordinance approving vacation request VA 00-7 as submitted by John • Phillips for property located at 25 East Rock Street. The property is zoned C-4, Downtown Commercial, and contains approximately 0.37 acres. The request is to vacate a portion of a ten foot wide alley located west of Lot 2, Block 42, Original Town Plat. 2, RZ 00-21.00: An ordinance approving rezoning request RZ 00-21 .00 as submitted by Read Hudson on behalf of Tyson for property located at the southeast corner of Highway 16 and Happy Hollow Road. The property is zoned C-2, Thoroughfare Commercial and C-1 , Neighborhood Commercial and contains approximately 11 .50 acres. The request is to rezone to I-2, General Industrial. 3, CITY ADMINISTRATION ROOM POLICY: A resolution approving a new policy for reserving rooms in the City Administration Building. 4, CABLE BOARD DUTIES: An ordinance amending Section 33.210, Cable Board, Duties, Subsection (c) of the Code of Fayetteville to provide that all guidelines and regulations shall be subject to City Council approval. 5. TELECOMMUNICATION SERVICES: An ordinance providing for the management and preservation of the city' s rights-of-way and public places with respect to telecommunications services; providing for terms and conditions under which telecommunications providers and lessees may occupy the city' s rights-of- way and public places; providing for compensation to the city on a competitively neutral and nondiscriminatory basis; crating an offense and providing penalties. • Meeting of SEPTEMBER 19, 2000 Joe A/*/•tWI AUSTIN ✓ DAVIS TRUMBO DANIEL ✓ SANTOS ✓ YOUNG RUSSELL REYNOLDS ✓ HANNA ✓ AUSTIN t� DAVIS v� TRUMBO DANIEL ✓ SANTOS ✓ YOUNG RUSSELL ✓ REYNOLDS ✓ N Meeting of SEPTEMBER 19, 2000 AUSTIN ✓ DAVIS TRUMBO DANIEL SANTOS YOUNG )( RUSSELL v� REYNOLDS HANNA S AUSTIN DAVIS ✓ TRUMBO DANIEL X SANTOS ✓ YOUNG RUSSELL REYNOLDS s 3 - Meeting of SEPTEMBER 19, 2000 AUSTIN ✓ DAVIS ✓ TRUMBO DANIEL SANTOS ✓ YOUNG X RUSSELL REYNOLDS I/ HANNA AUSTIN ✓ ✓ DAVIS ✓ �/ TRUMBO /e ✓ ✓ DANIEL V/� ,/ ✓ SANTOS ✓ ✓ YOUNG V ✓ RUSSELL V, ✓ �/ REYNOLDS V�e ✓ g -a Meeting of SEPTEMBER 19, 2000 z -z� 0 3° \kv• AUSTIN i/ 1/ DAVIS ✓ ✓ ✓ TRUMBO ✓ ✓ ✓ DANIEL ✓ ✓ �/ SANTOS ✓ YOUNG ✓ t/ RUSSELL ✓ ✓ �/ REYNOLDS ✓ ✓ �/ HANNA O . AUSTIN DAVIS TRUMBO l� DANIEL SANTOS ✓ YOUNG RUSSELL REYNOLDS 7�� do Meeting of SEPTEMBER 19, 2000 C AUSTIN DAVIS ✓ TRUMBO DANIEL ✓ SANTOS ✓ YOUNG ✓ RUSSELL ✓ REYNOLDS ✓ HANNA Z AUSTIN DAVIS TRUMBO Ix DANIEL SANTOS YOUNG RUSSELL REYNOLDS Meeting of SEPTEMBER 19, 2000 AUSTIN DAVIS TRUMBO DANIEL SANTOS YOUNG RUSSELL REYNOLDS HANNA AUSTIN DAVIS TRUMBO DANIEL SANTOS YOUNG RUSSELL REYNOLDS i r i ` CITY COUNCIL . FINAL AGENDA SEPTEMBER 19, 2000 ATTACHED: 1 . BOND DEALER SERVICES: Remove information for Item A.2 in your Tentative Agenda and replace with the attached copies. 2. ROOM POLICY: Information for Item C.3 . 3. TELECOMMUNICATION SERVICES: Additional information for Item C.S . Remove the draft ordinance from the packet you received at agenda session and replace with the attached ordinance. AGENDA SESSION: 1. CABLE BOARD DUTIES: Number this C. 4. Page 1 . under New Business. 2. EXECUTIVE SQUARE: Number this item A. 3. under Consent Agenda. Revisions to the design will be provided on Tuesday. 3, TELECOMMUNICATION SERVICES: Remove draft ordinance from the packet presented at Agenda Session and replace with the attached ordinance. • FAVETTEVIV LE 0 THE CITY OF FAYETTEVILLE, ARKANSAS , FINAL AGENDA CITY COUNCIL SEPTEMBER 19, 2000 A meeting of the Fayetteville City Council will be held on September 19, 2000 at 6:30 p.m. in , Room 219 of the City Administration Building, Fayetteville, Arkansas. NOMINATING COMMITTEE REPORT A. CONSENT AGENDA QNB 1. /APPROVAL OF THE MINUTES: Approval of the minutes from the August 15, 2000 City Council meeting. 2. V BOND DEALER SERVICES: A resolution approving a contract with the Bank of America Securities for variable rate demand bond dealer services and authorize the Mayor and City Clerk to execute the contracts. Budget adjustment F authorization is also requested to implement contracts. R . 3. ✓ EXECUTIVE SQUARE: A resolution approving an encroachment into city right-of-way for the purpose of constructing a balcony on the north wall of 91 West Mountain Street for Executive Square Inc. B. OLD BUSINESS �g 1. CAMPBELL-BELL BUILDING PARKING LEASE: A resolution approving OYT/a a one-year lease agreement with Campbell-Bell Building LLC, for two parking 1 1 spaces in the parking lot west of the Campbell-Bell Building. 2. TED BELDEN PARKING LEASE: A resolution approving a one-year lease agreement with Ted Belden (Campbell-Bell Building) for one parking space in the 130 parking lot west of the Campbell-Bell Building. ` ' 5I2 3. GAIL AND JERRY MOORE PARKING LEASE: A resolution approving a one-year lease with Gail and Jerry Moore (Campbell-Bell Building) for two 0', parking spaces west of the Campbell-Bell Building. 113WESTMOUNTAIN 72701 501521-7700 FAX 501 575-8257 C. NEW BUSINESS h 1.J/Jf VA 00-7: An ordinance approving vacation request VA 00-7 as submitted by John Phillips for property located at 25 East Rock Street. The property is zoned C-4, '�i� Downtown Commercial, and contains approximately 0.37 acres. The request is to 1 vacate a portion of a ten foot wide alley located west of Lot 2, Block 42, Original �I // Town Plat. 2. ✓ J✓RZ 00-21 .00: An ordinance approving rezoning request RZ 00-21 .00 as '7 submitted by Read Hudson on behalf of Tyson for property located at the southeast corner of Highway 16 and Happy Hollow Road. The property is zoned C-2,, Thoroughfare Commercial and C- 1 , Neighborhood Commercial and contains approximately 11 .50 acres. The request is to rezone to I-2, General Industrial. !�i 3. CITY-ADMINISTRATION ROOM POLICY: A resolution approving a new policy for reserving rooms in the City Administration Building. 4, CABLE BOARD DUTIES: An ordinance amending Section 33 .210, Cable Board, Duties, Subsection (c) of the Code of Fayetteville to provide that all guidelines and regulations shall be subject to City Council approval. 5. TELECOMMUNICATION SERVICES: An ordinance providing for the a V management and preservation of the city's rights-of-way and public places with o� i) respect to telecommunications services; providing for terms and conditions under n Vrl r p�" which telecommunications providers and lessees may occupy the city's rights-of- way and public places; providing for compensation to the city on a competitively te neutral and nondiscriminatory basis; crating an offense and providing penalties. FAYETTEVI& LE • I THE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL SEPTEMBER 19, 2000 A meeting of the Fayetteville City Council will be held on September 19, 2000 at 6:30 p.m. in Room 219 of the City Administration Building, Fayetteville, Arkansas. NOMINATING COMMITTEE REPORT A. CONSENT AGENDA 1. APPROVAL OF THE MINUTES: Approval of the minutes from the August 15 , 2000 City Council meeting. 2. BOND DEALER SERVICES: A resolution approving a contract with the Bank of America Securities for variable rate demand bond dealer services and authorize the Mayor and City Clerk to execute the contracts. Budget adjustment authorization is also requested to implement contracts. 3. EXECUTIVE SQUARE: A resolution approving an encroachment into city right-of-way for the purpose of constructing a balcony on the north wall of # 1 West Mountain Street for Executive Square Inc. B. OLD BUSINESS 1. CAMPBELL-BELL BUILDING PARKING LEASE: A resolution approving a one-year lease agreement with Campbell-Bell Building LLC, for two parking spaces in the parking lot west of the Campbell-Bell Building. 2. TED BELDEN PARKING LEASE: A resolution approving a one-year lease agreement with Ted Belden (Campbell-Bell Building) for one parking space in the parking lot west of the Campbell-Bell Building. 3. GAIL AND JERRY MOORE PARKING LEASE: A resolution approving a one-year lease with Gail and Jerry Moore (Campbell-Bell Building) for two parking spaces west of the Campbell-Bell Building. 113 WEST MOUNTAIN 72701 501521 -7700 FAX 501 575-8257 r C. NEW BUSINESS 1, VA 00-7: An ordinance approving vacation request VA 00-7 as submitted by John Phillips for property located at 25 East Rock Street. The property is zoned C-4, Downtown Commercial, and contains approximately 0.37 acres. The request is to vacate a portion of a ten foot wide alley located west of Lot 2, Block 42, Original Town Plat. 2, RZ 00-21.00: An ordinance approving rezoning request RZ 00-21 .00 as submitted by Read Hudson on behalf of Tyson for property located at the southeast comer of Highway 16 and Happy Hollow Road. The property is zoned C-2, Thoroughfare Commercial and C- 1 , Neighborhood Commercial and contains approximately 11 .50 acres. The request is to rezone to I-2, General Industrial. 3, CITY ADMINISTRATION ROOM POLICY: A resolution approving a new policy for reserving rooms in the City Administration Building. 4, CABLE BOARD DUTIES: An ordinance amending Section 33 .210, Cable Board, Duties, Subsection (c) of the Code of Fayetteville to provide that all guidelines and regulations shall be subject to City Council approval. 5. TELECOMMUNICATION SERVICES: An ordinance providing for the management and preservation of the city' s rights-of-way and public places with respect to telecommunications services; providing for terms and conditions under which telecommunications providers and lessees may occupy the city's rights-of- way and public places; providing for compensation to the city on a competitively neutral and nondiscriminatory basis; crating an offense and providing penalties. MINUTES OF A MEETING OF THE FAYETTEVILLE CITY COUNCIL AUGUST 1, 2000 A meeting of the Fayetteville City Council was held on August 1 , 2000 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Aldermen Reynold, Austin, Davis, Trumbo, Daniel, Santos, Young, and Russell, City Attorney Jerry Rose, City Clerk Heather Woodruff, Staff, Press and Audience. ABSENT: Mayor Hanna CONSENT AGENDA APPROVAL OF THE MINUTES: Approval of the minutes from the July 5, 2000 meeting. STEPHENS: A resolution approving a letter agreement with Stephens Inc. for Stephens Inc to provide financial advisory services on the wastewater treatment plant expansion project financing. The rate per hour is $225 .00 and is restricted to certain identified individuals. The authorization requested is not to exceed $22,500 and will be paid from the project budget. Approval of a budget adjustment is also requested. RESOL UTION 104-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. WASTEWATER TREATMENT PLANT EXPANSION: A resolution authorizing the Mayor or his representative to proceed in seeking proposals for variable rate demand bond obligations for use in providing interim financing for the wastewater treatment plant expansion. RESOLUTION 105-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BID 00-52: A resolution accepting the lowest qualified bidder for the purchase of two tractor backhoe loaders. Bid 00-52, Item #1 . The vendor for this purchase will be E. A. Martin Machinery. RESOLUTION 106-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BID 00-53: A resolution accepting the lowest qualified bidder for the purchase of one tri-axle diesel powered dump truck. Bid 00-53, Items #3 and #4. The vendor for this purchase will be Sterling Trucks of Arkansas. RESOL UTION 107-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. City Council Minutes August 1 , 2000 Page 2 BID 00-54: A resolution awarding Bid 00-54 to Ameri-Kan, Inc. in the amount of $ 11 ,747 for the initial purchase of solid waste containers and approval of future purchases as needed for inventory at the attached per unit prices. These containers are sold/leased to commercial businesses for use in our commercial container and commercial recycling programs. RESOLUTION 108-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BID 00-56: A resolution accepting the qualified bidder for the purchase of one tractor, one mower conditioner, two tedders, and one rotary mower with the trade of fourteen various used items which were declared surplus or are being replaced by the items purchased. The vendor for this item will be Williams Tractor. RESOLUTION 109-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BALL AND MOURTON: A request to grant an easement over 25 feet of land near Razorback Road for the purposes of ingress and egress for a parking lot. RESOLUTION 110-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. Alderman Davis moved to approve the consent agenda. Alderman Daniel seconded the motion. Upon roll call the motion carried unanimously. OLD BUSINESS RZ 00-19.00: An ordinance approving rezoning request RZ 00- 19.00, submitted by the Community Development Division on behalf of the City of Fayetteville for property located west of Deane Solomon Road, north of Moore Lane and south of West Salem Road. The property is zoned I- 1 , Heavy Commercial/Light Industrial and contains approximately 2.715 acres. The request is to rezone to R-2, Medium Density Residential. The ordinance was left on the first reading at the July 18, 2000 meeting. Mr. Rose read the ordinance. Alderman Daniel stated this group had been looking for a home for along time. She thought this was a good location for the Sage House and Children's House. There was no public comment. Alderman Austin moved to suspend the rules and go to the third and final reading. Alderman Russell seconded the motion. Upon roll call the motion carried unanimously. City Council Minutes August 1 , 2000 Page 3 Mr. Rose read the ordinance. Vice Mayor Trumbo called for the vote. Upon roll call the ordinance passed unanimously. ORDINANCE 4262 AS RECORDED IN THE OFFICE OF THE CITY CLERK. AD 00-18.00: An ordinance for AD 00- 18.00, administrative amendment to Chapter 166 "Development" of the Unified Development Ordinance, Section 166.04 (A)(8) "Suburban Subdivision-Public Sanitary Sewer Not Accessible" to allow lots smaller than 1 -%2 acres that are on a septic system. The ordinance was left on the first reading at the July 18, 2000 meeting. Mr. Rose read the ordinance. Mr. Conklin, Planning Director, explained last May there had been a decision made to have the cities review all lot splits and subdivision before the County. In the past, Washington County Planning Board and County Planner would review the subdivisions and lot splits. The city would require the county's approval before we would process their lot splits and subdivision. That process had changed. Now the City of Fayetteville would be receiving the request for lot splits and subdivisions. In the past Washington County would approve lot splits less than one- half acres, subject to a permit being issued by the Department of Health for an septic system. Since the change, the city had an ordinance that required the lots to be a minimum of one and a half acres in their planning area. In 1992, they amended the ordinance for subdivisions and lot splits inside the city limits that were on septic systems, with a permit from the Arkansas Department of Health, less than an acre and a half. What he was trying to do was continue what the county had been approving. He felt uncomfortable with approving a lot less than an acre and a half. He wanted to make sure that they had the permit from the health department. What the ordinance change would require was that in order to do a lot split or a subdivision which created a lot less than an acre and half was that they were going to have to go out and physically hire someone to do a perk test. The cost was three to four hundred dollars. They would have to have a permit from the State of Arkansas approving the septic system for that lot. He was asking for a permit up front. This match what they currently required inside city limits for lots not on their sewer systems. It was going to cost land owners more money. In the past they did not require the actual permit from the State Department of Health. Now they were going to require it for anything less than an acre and a half. He had looked at what we required for lots inside city limits and continued it to the growth area. He did not want to create a more stringent standard for outside city limits. He was trying to make sure they did not create lots which could not have a septic system. Currently, inside city limits if they were not able to hook onto the sewer system the same standard would apply. They needed a permit from the Department of Health prior to the lot being created. In the past the approval had been contingent upon a permit from the State Department of Health. He was asking that before they submitted an application to the city for a lot split or a subdivision, he wanted the permit in hand proving that it will work. He wanted to City Council Minutes August 1 , 2000 Page 4 make sure that they did not create lots that they could not build on. Alderman Young stated he wanted to make it clear that it was going to be the city's policy that they had to have the permit for a septic system, when they came to the city for approval from the Planning Commission. Mr. Conklin replied that was correct for anything less than one acre and a half It was going to cost land owners money if they chose to subdivide their land in to lots less than an acre and a half. What he was trying to do was match what they currently did inside city limits. They needed to make sure the system would work on that land. Alderman Daniel asked if there was any alternative if they were denied a permit. Mr. Conklin replied if they denied the permit, it typically meant they would have to have a larger lot size or another type of system to handle their sewage. They would have to have something that would work before they submitted it to the Planning Office. Alderman Santos moved to suspend the rules and move to the third and final reading. Alderman Austin seconded the motion. Mr. Rick Johnson, Arkansas State Health Department, stated the Health Department had regulated the septic systems since 1977. They did not have an acreage size requirement. They required that the site must be suitable and they must have room for an alternate system in order for them to issue the permit. The subdivision was a little different, if someone took three or more lots in any part for sale, they would look at each individual lot. They were now using a system called Soil Morphology. They would look at a pit, the profile of the soil on every lot in the subdivision then they would issue the approval of the subdivision based on the soil morphology. If they soil was not acceptable for a septic system then they would not approve it. All septic systems within Washington County must come before the Health Department for approval. There were no exemptions. Alderman Trumbo asked if this raised development standards. Mr. Johnson replied it had raised standards. He thought they had a good system in the State of Arkansas, probably one of the best in the nation. Alderman Reynolds asked how far the lateral fields had to be from their neighbor. Mr. Johnson replied the usual amount was ten feet. They had to keep any part of the system ten feet from property lines, ten feet from the building. They were also setbacks from wells that they would have to adhere to. They tried to catch sites that were not suitable before City Council Minutes August 1 , 2000 Page 5 development. Ms. Colleen Gaston, 3270 Rom Orchard Road, stated she was concerned about the change in the ordinance. It may tend to encourage development in the growth area. Her concern was the water quality for both the White River and the Illinois River water shed. She was not sure that the Health Department would take into account the accumulative affect. If they were encouraging more dense development in the growth area and increasing the septic systems, that there might be some negative accumulative affect. She asked them to think about it in terms of Urban Planning and if this was promoting sprawl. She asked for some discussion to whether it did promote that. She thought the exemption within the city limits to allow less than an acre and a half made sense because there were very few area within the city limits that were not accessible by sewer system. It was her understanding that no sewer was available in the growth area and would not be for some time. When those areas were brought into the city did they want the responsibility for the problems. Alderman Daniel stated they were receiving more requests for lot splits. Mr. Conklin stated he was relying on the Arkansas Department of Health insure that the systems were going to work. In order to serve these areas with a sewer system when they were annexed, they would need the density to extend sewer. He had looked at the density and he was relying on the State to make sure the systems were going to work on less than an acre and a half. This was something that has been occurring for many years. In the past he had to react to these lots. He was very uncomfortable granting any type of variance without the permit from the Department of Health. He was not going to recommend anymore lots less than an acre and a half without that proof. Which was a change in how Washington County had been handling lot splits. He was trying to make sure that they were protecting their ground water by making sure the Health Department was permitting these. Alderman Santos stated this was more of an anti-sprawl measure. Larger lots were what made them think of creating sprawl. Creating smaller lots were less tasking on the infrastructure. If there was no individual affect there would be no accumulative affect. They were better getting a scientific analysis on whether a system would work on a lot or assuming that it would work. Ms. Gaston stated there were know problems with septic systems. There were no guarantee that once they were permitted that they would be maintained and ran properly. So when they increased the number of systems they had in an area there was a probability that some of them would not be maintained properly. Alderman Santos stated he did not believe there would be an accumulative affect if there was no individual affect. This was a much better guarantee than the existing system. City Council Minutes August 1 , 2000 Page 6 Mr. Conklin explained he had met with Washington County staff and discussed planning procedures within the city, because it had impacted the cities. Before he would receive a paper from the county stating lots were created subject to septic system approval from the Department of Health. That made him uncomfortable. He did not want to make the standard more restrictive than what they required inside the city limits for septic system. The two standards would match. He wanted to make sure they did not end up with lots in the planning area which could not have a septic system. He had reacted to parcels that were three-quarter of an acre. A lot of the lot splits he had seen had an existing house in which the extra acreage was split off to sell. That was one reason why they required existing septic systems on the plat. Before he was having to react to a lot split request where he had no idea where the existing septic system was located or the alternate leach field was. He was trying to be proactive and to make sure things would work in the future. Alderman Daniel agreed with Ms. Gaston in the belief that it encouraged urban sprawl and it would also impact traffic and other aspects of our city. Mr. Conklin replied urban sprawl could be better addressed with zoning. Density or amount of acreage was not dependant of the septic system. There was not a magic number. If they were worried about density in the county, it was more of a zoning issue. Under State law if the County wanted to regulate density, they could. The city did not have the authority to regulate density in the county. He was not recommended that they regulate density by the minimum size for a septic system. Alderman Trumbo stated they had not been able to regulate density in subdivisions and development that were contiguous to the city limits. What they had done in the past was annex the land to up the standards of the development to their city ordinances which were more strict than the counties. Mr. Conklin stated that was correct and that he encouraged developers to annex into the city had hook onto their sewer. Alderman Russell asked how often they did that, and compared to the number that did not annex into the city. Mr. Conklin replied if the sewer was available, typically they would bring the subdivision into the city limits. They could have more lots. Their yield on the number of lots could be increased because they were not on a septic system. Ms. Gaston stated she thought it was good to require the permit up front, but she did not think they were accurate in their ability to regulate growth in the in the growth area. City Council Minutes August 1 , 2000 Page 7 Alderman Trumbo stated he did not believe the city could regulate density in the county. Alderman Santos stated the State planning could not allow them to do anything like zoning in the county. That was the topic of their American Planning Association conference this year. It was really a State Legislature issue and not a City Council issue. Vice Mayor Trumbo called for the vote. Upon roll call the motion carried unanimously. Mr. Rose read the ordinance. Vice Mayor Trumbo asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4263 AS RECORDED IN THE OFFICE OF THE CITY CLERK. PLANNING COMMISSION APPEAL: An appeal of a Planning Commission decision which denied rezoning request RZ 00-20.00 for property located at 2116 E. Joyce Street. The request is to rezone the property from A- 1 to R-O. The ordinance was left on the first reading at the July 18, 2000 meeting. Mr. Rose read the ordinance. Alderman Davis asked Dr. Israel if he had looked at Ms. Hesse's letter and if he had any problems with the letter she wrote to the council. Dr. Israel stated he had just received the letter tonight. There were some things he would have trouble with. His plan was to use the tree canopy on the north side of the property to meet the city' s ordinance on tree canopy. He did not believe they should be asked to provide more than twenty percent trees since the property was not covered by more than twenty percent trees now. Alderman Russell asked Dr. Israel if it was his understanding that Ms. Hesse was requiring him to do more than twenty percent. Dr. Israel thought the letter was a little ambiguous. It stated the trees on the northern boundaries shall be left untouched. He did not know if she was talking about the fifty feet, but on the western side there was probably two hundred feet deep in trees. He was not sure what the requirement was from her letter. He had met on site with Ms. Hesse, Mr. Gabriel and an engineer from the Benham Group. They had come to the conclusion that they was the best site to leave the trees. The trees in front was not significant and that the best place to leave the trees would be in the back. Because they did not know what the requirement of grading and permitting would and the large scale development, he thought that would be the best place to City Council Minutes August 1 , 2000 Page 8 work out what trees would be left and not left. It was their plan to met the city requirement with the trees at the back of the property. Alderman Davis stated Ms. Hesse's recommended twenty percent tree preservation was required in the R-O zoning to be located on the northern boundary. Dr. Israel added the letter also stated that the current boundary would not be disturbed, although the width of the tree preservation area was not discussed. A fifty foot buffer currently exist. He would like to specify that the "tree preservation area was to be left undisturbed and utility and drainage easements be outside that area. " He was not sure that was required by ordinance. Alderman Russell asked if the northern fifty feet more than twenty percent of the property. Dr. Israel replied no, but the tree canopy on the western half of the property was one hundred fifty feet deep. When the letter stated, "the current tree area would be left undisturbed. " He was not sure he understood what she was talking about. It was their intension to leave the northern fifty feet buffer. The other issue he was confused about was that the Army Corp of Engineers had declared it a wet land. But it was not a declared wet land area. Either the owner was misinformed or he was misinformed. The Corp of Engineers had stated that was not a wet land area. They had walked over it and reviewed it and had not classify it as a wet land area. They called it a USA Waterway. It meant the stream only was protected and not outside the stream. There was a need for them to leave the northwest corner in place. That was where most of the drainage went into the creek. They would want to leave that in place. Alderman Santos stated from reading the letter it was his understanding that Ms. Hesse was asking him to leave the northern fifty feet as a buffer. Was that okay with him. Dr. Israel state he wanted to leave it there, but he was not sure that she would speak for the Planning Commission. Alderman Russell stated the Planning Commission had the power to recommend something different from what she recommended. The way that he took the letter was that she was letting them know up front what her recommendation to them was going to be. Mr. Conklin stated that was how he read the letter. Typically when they received a site plan for large scale development, she would review it and make a recommendation. She had gone in prior to the rezoning and made a recommendation of fifty feet. The Planning Commission, when everything else is considered, there may be something different that would come out. There was guarantee until the Planning Commission voted to approve. What they saw before them was a recommendation from the Landscape Administration putting Dr. Israel on notice that she would be looking for a tree preservation area on the north boundary line of twenty percent. City Council Minutes August 1 , 2000 Page 9 Alderman Russell stated it was rare that when Ms. Hesse and the developer agreed on an area for tree preservation that the Planning Commission would want to do something different. They always could, but it was rare. Alderman Trumbo stated he like the way this had developed. Ms. Hesse had expressed during the rezoning that this was what she was going to recommend at this particular point. Right now they were just considering the rezoning to R-O, then if there was a problem with the tree preservation plan between the developer and Ms. Hesse then it could return to this council. Dr. Israel stated in their mind it was the best place to leave it. They wanted to preserve the back fifty feet, if that was what it was, if it met the city's requirement and did not contradict the grading and drainage systems. Alderman Trumbo asked the reasoning behind the Planning Commission denying the rezoning. Mr. Conklin explained the Planning Commission had adopted by-laws. In those by-laws they required finding to be made. On of those finds had to be if the zoning was needed or justified at this time. They looked at existing R-O areas and felt that there was adequate area. There had been some discussion on amending the applicant's request. Their concern had been in regards to drainage and where the water was going back towards the wetland. There were a couple of issues, but they did not have enough votes to carry it to the Council. Alderman Reynolds stated he believed if the Planning Commission had the information that they had in hand the last two meetings they would not have denied this. Alderman Santos stated Mr. Israel was still not willing to cede that fifty foot buffer. Alderman Young stated the Planning Commission had not have the information on the drainage. The applicant had not been there. The only thing they could do was deny it. He thought they would have approved it, if they had the information. Dr. Israel stated he was also developing a six acre tract on the same street. He believed the area would be rapidly developing. Mr. Greg Galbraith, Ozark Regional Land Trust, stated Dr. Hudson had part of the property declared a wet land. There was no question that any disturbance to the back side of the property would impact the drainage and their plans for the property. It was his understanding that Dr. Israel and Ms. Hesse were in agreement with protecting the tree a minimum of fifty feet along the entire north border of the property. That would satisfy them. Therefore they would support and recommend that the Council go ahead and approve the zoning. City Council Minutes August 1 , 2000 Page 10 Alderman Daniel moved to suspend the rules and move to the third and final reading. Alderman Reynolds seconded the motion. Upon roll call the motion unanimously. Mr. Rose read the ordinance. Vice Mayor Trumbo asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4264 AS RECORDED IN THE OFFICE OF THE CITY CLERK. NEW BUSINESS AD 00-22 : A resolution amending the City's Master Street Plan by eliminating a collector street between Prairie Ave. and W. Sixth Street within the property at 404 W. Sixth Street, at the northeast comer of S. School Ave. and W. Sixth Street and reclassifying Prairie Street west of West Ave. and Government Ave. between Prairie Ave. and W. Sixth Street as collector streets. Alderman Trumbo stated he thought they needed to work with these developer's to enhance an eye sore that they had on the south part of town. He thought they should help these investors. Alderman Daniel agreed adding that it would help the area. Alderman Reynolds stated they had done a great job. He would fully support it. Alderman Austin noted there had been four neighbors that spoke for it at Planning Commission. Alderman Trumbo stated it could only enhance the value of the surrounding property owners. Alderman Davis thought it might help encourage other development in the area. Alderman Santos stated they would be eliminating the street when they revised the Master Street Plan. Alderman Santos moved to approve the resolution. Alderman Reynolds seconded the motion. Alderman Davis stated normally they required the developer to put in a road. Mr. Conklin stated the original agreement was to dedicate seventy feet of right-of-way and typically they could build half of the street along with a sidewalk. City Council Minutes August 1 , 2000 Page 11 Alderman Davis asked who would be responsible for building that portion of the multi-use trail through there. Mr. Conklin stated they had agreed to dedicate the area and build the trail. Upon roll call the motion carried unanimously. RESOL UTION 111-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. AD 00-23: A resolution amending the City's Master Street Plan by accepting a lesser dedication of right-of-way along W. Sixth Street just west of S. School Ave. only where the footprint of an existing structure encroaches into the required Master Street Plan right-of-way. There was no public comment. Alderman Santos moved to approve the resolution. Alderman Daniel seconded the motion. Upon roll call the motion carried unanimously. RESOLUTION 112-00 AS RECORDED IN THE OFFICE OF THE CITY CLERK. AD 00-26: An ordinance adopting the Flood Hazard Study, Phase II, provided by the US Army Corps of Engineering for use in managing flood plains within the City of Fayetteville as supplement to the previously adopted Flood Damage Prevention Code (Chapter 153) of the UDO, adopted by Ordinance 4011 , January 7, 1997. Mr. Rose read the ordinance. Alderman Austin moved to suspend the rules and move to the second reading. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Alderman Davis explained flood rates for insurances were set up by the government, so all carriers would have the same rate. Alderman Russell moved to suspend the rules and move the third and final reading. Alderman Austin seconded the motion. In response to questions from Alderman Daniel, Mr. Conklin stated they were looking at the tributaries for Town Branch, Cato Springs Branch. He was receiving this data in pieces. They were focusing on different water sheds and basins. As they received it they would sent it to FEMA to incorporate into a flood insurance map. They were currently waiting on additional information. At this time he was wanting to adopt what the Corp had put together and to use it City Council Minutes August 1 , 2000 Page 12 for flood plain management purposes. They had approximately sixty percent of the city in /digital format. They used this every day for building permits. It has been a great benefit to the city and their GIS system. Town Branch had been approved. The only map he had given them tonight was the tributaries they were adopting the new study for. Upon roll call the motion carried unanimously. Vice Mayor Trumbo asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4265 AS RECORDED IN THE OFFICE OF THE CITY CLERK. MULTI-USE TRAIL: Discussion regarding the possible purchase of abandoned railroad property. ITEM WAS REMOVED FROM THE AGENDA. PARKING LEASES: A resolution granting the Mayor or his representative authority to lease parking spaces at the Fayetteville Municipal Parking Deck or on other City owned or operated parking facilities, including Airport hangar leases, under the terms as agreed between the parties and in conformity with applicable ordinances. The lease amount is not to exceed $20,000 total. ROLLBACK: A resolution approving a settlement of litigation regarding the rollback of ad valorem taxes for the years 1994 through 1999. 0 0 COLE , RAYWID & BRAVERMAN , L . L . P . ATTORNEYS AT LAW 1919 PENNSYLVANIA AVENUE, N .W. , SUITE 200 JEFFREY W. MILLER LOS ANOELE5 OFFICE DIRECT DIAL WASHINGTON , D.C . 20006-3458 238 ROn[caNs AY Nue. SurtE 110 202-559-9750 X263TELEPHONE 1202) 659-9750 EL SEOUND , C IJMRNIA 902454200 TCLEPNONE 13101 843.7999 FAX (202) 452-0067 Fez 13101843.7997 JMILLER@CRBLAW.COM W W W.CRBLAW.COM September 14, 2000 BY FEDERAL EXPRESS Heather Woodruff City Clerk 113 W. Mountain Fayetteville, Arkansas 72701 Re: Comments Of Adelphia Business Solutions Of Arkansas, L.L.C. Regarding The Proposed Telecommunications Ordinance Dear Ms. Woodruff: It was a pleasure speaking with you on Wednesday regarding Adelphia Business Solutions' ("ABS") plans to submit comments on Fayetteville' s proposed telecommunications ordinance which is scheduled to go to a first reading on Monday September 19, 2000. As we discussed, I have enclosed a copy of the comment letter which I submitted to Jerry Rose. Please see that each of the City Council members receive a copy before the meeting. Should you have any questions please do not hesitate to contact me. Thank you for your time and assistance. MDA sincerely, V� effrey W. Miller cc: Jim Stinson, Esq. Mary Margaret Johnson 122975- 1 COLE , RAYWID BRAVERMAN , L . L . P . ATTORNEYS AT LAW 1919 PENNSYLVANIA AVENUE, N .W. , SUITE 200 JEFFREY W. MILLER L03 ANGELES OFFICE DIRECT DIAL WASHINGTON , D.C . 20006-3458 236 ROECOMANE AVENUE, Sung IIO 202-659-9750 X253 TELEPHONE ( 202) 659-9750 EL SEouNo , CAURNI 90245-4200 TELEPHONE (310) 643.7990 FAX ( 202) 452-0067 Fu (310) 643-7997 JMILLER O@CRBLAW.COM WWW.CRBLAW.COM September 14, 2000 BY FEDERAL EXPRESS Mr. Jerry E. Rose City Attorney 113 West Mountain Fayetteville, AR 72701 Re: Comments Of Adelphia Business Solutions Of Arkansas, L.L.C. Regarding The Proposed Telecommunications Ordinance Dear Mr. Rose: Thank you for sending an updated copy of Fayetteville's Draft Telecommunications Ordinance ("draft"). After reviewing the draft, it is apparent that a number of our earlier concerns were not addressed in the changes made to the first draft. Accordingly, the following comments reiterate those concerns in greater detail as well as address new issues raised by the modifications to the draft, and in particular, the revised fee Section. ABS requests that these comments be submitted to the City Council and hopes that they will assist the City in developing a final ordinance which is in accord with the Federal Telecommunications Act of 1996 (" 1996 Act"). Fees Section 10. 1 (a) changed the fee basis for telecommunications companies providing service to residents and/or businesses in the City, to 4% of access line billing within the corporate limits of the City. However, the draft fails to define "access line billing," and therefore, it is unclear what the fee basis actually encompasses. Thus, ABS requests that the City amend the ordinance to include a definition of access line billing. Additionally, given the exceptionally broad definition of gross revenues contained in the draft, we are concerned that the City will attempt to similarly define access line billing. With this in mind we offer the following 123354- 1 COLE , RAYwiD & BRAVER4 L. L. P . • Jerry E. Rose September 14, 2000 Page 2 analysis of the 1996 Act as it pertains to a City' s right to be compensated for the use of the public rights-of-way. Federal law permits municipalities to manage the public rights-of-way and to exact fair and reasonable compensation for the "use" of the public rights-of-way. 47 U.S.C. § 253(c). Federal courts have interpreted Section 253 of the 1996 Act to require that fees be reasonably related to the costs to the city of the "use" of the rights-of-way by telecommunications companies. See Peco Energy Co. v. Township of Haverford, 1999 U.S. Dist. LEXIS 19409, *22(D. Pa. 1999). AT&T Communications of the Southwest, Inc. v. City of Dallas, 8 F. Supp. 2d 582, 591 (N.D. Tex. 1998). Thus, to be valid under Section 253 of the 1996 Act, fees must bear some reasonable relation to the cost to the City of the use of its public rights-of-way. A number of federal courts have held that fees based on gross revenues bear little relation to the actual costs to the City and thus violate the 1996 Act. In City of Dallas, the court held that the City' s requirement that a telecommunications company pay a franchise fee of 4% of local gross revenue from "all of its activities in Dallas contradicts the requirements of the [ 1996 Act]," and "violates § 253(a) of the act as an economic barrier to entry." 8 F.Supp. 2d at 593 . Moreover, in Peco, the court struck down a fee based on 5% of gross revenues noting that "[r]evenue based fees cannot, by definition, be based on pure compensation for the use of the rights-of-way." Peco, 1999 U.S. Dist. LEXIS 19409 at * 19. Although the fee basis in the draft ordinance is 4% of access line billing and not gross revenues, it could be equally as problematic and unlawful depending on the definition the City adopts. For example, the City may determine that access line billing includes all charges relating to a particular access line including, local and long distance charges, customer service and late charges, and equipment rentals and sales. The list of charges that could be included is nearly infinite. As the Peco and Dallas courts determined, fees charged by the City must be reasonably related to the City's costs and that revenue based fees — which access line billing is most certainly a derivation of — cannot be based on pure compensation for the costs of the use of the rights-of-way. The reason is that revenue based fees will fluctuate whereas the costs to the City of managing the rights of way will remain relatively constant, and as such, it is difficult to establish a reasonable relation between the fee charged and the costs incurred. Finally, in addition to the franchise fee, the draft requires ABS to pay an application fee of an unspecified amount as well as to reimburse the city for any costs related to processing the application that were not covered by the fee. The application fee should be set so as to cover the reasonable expenses incurred by the City in reviewing the application, and the City should not have the unfettered discretion to later impose additional charges related to the application. In fact, as noted above, unless the City can show that such fees are related to the management or use of the rights-of-way, they are unlawful. Indeed, similar provisions have been found unlawful. See Peco, 1999 U.S. Dist. LEXIS 19409, *22 ("It is not at all clear, from reading the Ordinance, that the fees do in fact relate to use of the public rights-of-way. Also, it is highly unlikely that four separate fees are all related to the use of the rights-of-way.") 123354- 1 COLE , RAYWID & BRAVERM• L. L. P . • Jerry E. Rose September 14, 2000 Page 3 ABS does not dispute that cities have the right to be compensated for their expenses. However, it is clear that pursuant to the 1996 Act, those fees must bear a reasonable relation to the City' s costs. Accordingly, ABS requests that the City develop a compensation scheme that more directly reflects the costs to the City arising from the management and use of its public rights-of-way. In-Kind Grants Section 15 authorizes the City to require the provider to make certain "payments, in-kind contributions, provision of capacity" for the use by the "City, educational institutions or other public entities, or to undertake other activities or make available other facilities" for the benefit of the City. To begin with, this Section is vague and overly broad. Exactly what types of in-kind contributions is the City envisioning? Fiber? Conduit? Equipment? And how much fiber, conduit or equipment are we talking about? Moreover, if payments are required, what are they for, how will they be calculated, and how large will they be? Finally what are the "other activities" and "other facilities" which ABS would be required to make available for the benefit of the City? Essentially, this section gives the City absolute discretion to demand any payment or provision of service and/or facilities which it deems to be in the public interest. Not only is this Section unreasonable, it is unlawful as well. This provision, requiring a franchisee to provide services and facilities to the City and other public, educational and governmental ("PEG") institutions, appears to be taken from a cable television franchise which often contain requirements for PEG facilities. Under the Cable Act, Cities are permitted to require cable operators to provide such PEG facilities. However, there is no parallel authority for a city to demand such facilities from a telecommunications provider. Additionally and as noted above, under federal law the City is only entitled to compensation which is reasonably related to the costs to the City of the management and use of its public rights-of-way. The application and franchise fees have already compensated the City for the management and the "use" of the public rights-of-way. Thus, the provision of additional payments or in-kind contributions above and beyond the franchise and application fees is unrelated to the City' s costs, and as such, constitutes an impermissible form of compensation. At least one federal court has agreed, ruling that requiring in-kind contributions exceeds a City's authority under the 1996 Act. City of Dallas, 8 F. Supp. 2d at 593 ("Many of Dallas' s franchise requirements such as . . . the dedication of ducts and fiber optic strands to the City's exclusive use — like many of the pieces of information requested in the form franchise ordinance, are totally unrelated to the use of the City's rights-of-way, and are thus beyond the scope of the City's authority"). Finally, Section 10.2 raises legal concerns as well. That section provides that if a franchisee is required to make payments or provide in-kind contributions in the public interest pursuant to Section 15, the City may provide a credit against the fee based on the "percentage of 123354- 1 COLE , RAYWID & BRAVERM• L. L. P . • Jerry E. Rose September 14, 2000 Page 4 gross revenues it would otherwise require." Since the draft provides a number of different fee bases, the question arises as to whether a provider, like ABS, paying a fee based on line access billing would likewise receive a City credit for public interest contributions? Under the 1996 Act, local governments may require "fair and reasonable compensation for the use of their public rights-of-way," but only if the compensation is required on "a competitively neutral and nondiscriminatory basis." 47 U.S.C. § 253 (c)(emphasis added). Thus, the 1996 Act requires that if one provider receive a credit from the City for public interest contributions, then all providers must be granted the same credit. As noted above, ABS believes that the city cannot require public interest payment and in-kind contributions; however, if it chooses to leave this provision in, then it must amend Section 10.2 to allow all providers to receive credit for their public interest payments or contributions. Information Requirements The information requested in the application is redundant and exceeds the City's authority under federal law. Federal law provides that absent a specific state delegation of authority, local governments are prohibited by the 1996 Act from exercising any regulatory powers over telecommunications providers beyond managing the public rights-of-way and requiring fair and reasonable compensation. City of Dallas, 8 F.Supp.2d at 591 . The FCC has considered the issue of local regulation and expressed concern that "some localities appear to be reaching beyond traditional rights-of-way matters and seeking to impose a redundant "third tier " of telecommunications regulation which aspires to govern the relationships among telecommunications providers, or the rates, terms and conditions under which telecommunications service is offered to the public." In re of TCI, Cablevision of Oakland County, Inc., 12 F.C.C.R. 21396, 21441 If 103 (1997). The FCC went on to state that any attempt by local authorities to impose such legislation will be "met with close scrutiny" given that such local provisions are redundant to federal and state regulations and likely to impede competition and impose unnecessary delays. Id. at 21442. Section four of the draft requires the applicant to provide evidence in a form satisfactory to the City that the applicant has the financial, legal and technical qualifications to provide service. In awarding ABS its CPCN, the Arkansas Public Service Commission has determined that ABS possesses the financial, technical, and legal qualifications to provide telecommunications within the state of Arkansas, and individual cities within Arkansas cannot reconsider that decision. BellSouth Telecommunications, Inc. v. Town of Palm Beach, 1999 U.S. Dist. LEXIS 16904 *6-7; Coral Springs, 42 F.Supp.2d. at 1308; City of Dallas, 8 F.Supp. 2d at 591 -594. Such information requests are precisely the type of "third-tier" regulation that the FCC was concerned about. In granting a franchise the City has no power to review the financial, technical or legal qualifications of a provider. As such, requiring ABS to provide such 123354- 1