HomeMy WebLinkAbout2000-06-01 MinutesMINUTES OF A SPECIAL
CITY COUNCIL MEETING •
NNE 1, 2000
000005
City Council Minutes
June 1, 2000
Page 1
fr
,
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
Aldermen kussell, Santos and Young, at the request of an attorney, Mr. Fulcher. Aldermen
Trumbo, Davis, and Aiistinthad 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. `, 33
AldermanRussell re"plied this' was not the meeting they gad 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. -
•
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 chanceryjudge, with twenty-
000006
City Council Minutes
June 1, 2000
Page 2
five years experience, say the City Council did not have any junsdiction 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 plaintiffs 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 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
000007
41
City Council Minutes
June 1, 2000
Page 3
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 Socediire. Rule 65 of the:Ruleiof 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.
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
000008
City Council Minutes
June 1, 2000
Page 4
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
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.
4
•
Q0;0009
City Council Minutes'
June 1, 2000
Page 5
;, 1 -
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 majonty �n 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 asPan
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 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 jai 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
000010
City Council Minutes
June 1, 2000
Page 6
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 Comnussion. 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 wnte 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.
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 attomeys make their presentations and then the council could vote.
000011
0;1
City Council Minutes
June 1, 2000
Page 7
Mayor Hanna addressed ilyIr. Fulcher and asked if he would like to make his presentation?
1.; lei,
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 attomeys
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 obhgation to stay any further proceedings on LSD 00-5.00 until their appeal was
heard. The other thing that came up yesterday was theytoldJudge 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 -the); 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
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
000012
City Council Minutes
June 1, 2000
Page 8
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 attomey'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 dung 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 m 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 cunous 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 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 m 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 Adrnimstrator, Kim Hesse, on January 4, 1999, to whom it may concern,
and one of the people it was sent to was Milholland Engineenng 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
UUUU13
City Council Minutes
June 1, 2000
Page 9
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 bnnging 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 *ell 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 itdid not comply with the ordinance." In court they called that admission. He
thoughtif they ever got to a jury 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? P ' `• a t .. ,.
• r 7 . 6
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
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?
000014
City Council Minutes
June 1, 2000
Page 10
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 m which a delay, a moratorium has been set on permits and they were refused to be
granted because of the moratonum or because they were working on something or whatever. It
was speculative. There was some risk involved but he was not sure, at this tune, 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.
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 nsk.
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.
;000015
City Council Minutes
June 1, 2000
Page 11
1 . *' -
Atr t :. . g
Alderman Santos replied to Alderman Davis that was not'nght and he was kind of tired of
hearing him say that.-
i •
aft
Alderman Davis asked Alderman Santos if he had the minutes in front of him?
1
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 goveming 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.
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
000016
City Council Minutes
June 1, 2000
Page 12
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 meetmg
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.
Now committee meetings, receptions, public recogmtions, and tlungs like that were not included
in the agreement. He called Alderman Trumbo on this issue when he held the tour of the semor
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.
e s t s .
7 •
.{: r # .
s -, ;. • k t
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, the rules and the procedures say two hours. 4 have always said that was too short.
:;.ct)0(.{)
o doily?
City Council Minutes
June 1, 2000
Page 13
Alderman Santos added that was barely legal.
Alderman Truinbo 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 r
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.
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.
Jr.:- ,. 1 • • :.
Alderman Trumbo stated•that was Chancery Judge Lineberger's decision.
UUUUJ.0
City Council Minutes
June 1, 2000
Page 14
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 Attomey'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 11th 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 Serafim, 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.
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 callmg and the vulgar phone calls and
messages on his answenng 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 nghts has completely polanzed the community. He has struggled
since the beginning to find and advise his client and, search with lus 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 tlus community with
0000:lo
City Council Minutes
June 1, 2000
Page 15
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 our job 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
`dTheb{ Bred 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. Ile is going to:drive in through tree lined driveways and there is going
to be a buffer of trees and plants between that thing and the bypass so they dori'tlook 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 Lighthea"rt:' 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. -Tfiey 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 overtum 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
UUUu'u
City Council Minutes
June 1, 2000
Page 16
you are vested with and presumed to have the nghts 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 prescnbed rules and
procedures, the decision was to sustain it. Now at that pomt Argus had some invested nghts.
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 engineenng
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 rime
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 rile. 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
collecting their money, or sending them to jail, or developing their property, has to secure them
to make sure that if they win again, because there is a presumption now that Argus is right, they
have won twice and the legal presumption as well as the practical presumption, most cases
appealed are sustained on appeal, is that Argus is nght. So if Argus has to hold up, you say is
this going to cost you anything, and if it is, whoever is challenging that has to make good on it.
They want to make sure if they go forward and they lose that their bankruptcy or their trip to
Mexico, or their death or whatever isn't going to keep you from losing all the money that you
sustained while this appeal process goes on. Now in this case, all the lawyers would admit that
the process prescribed for this is confusing and somewhat conflicting. If you want to get twelve
of the best lawyers in this city, or in Arkansas, up here, you'd probably get twelve opinions. But
right now this City Board is operating on the opinion of it's elected attorney, with whom I agree.
It is operating based upon the declared decision of a chancery court judge of this circuit who said
he didn't think, especially once it's entered its order, that this Board has any Jurisdiction. Is Mr.
Rose wrong? Is Judge Lineberger wrong? They might be. But they are the guys calling the
shots right now. The outcome of that is Judge Lineberger said to his client they would not cut
any trees until the Circuit Court has had a full chance to do this. They said to them they were
sitting on a three and a half million -dollar investment. Now if I ask everybody in this room to
take your money out of savings, out of the stock market, out of your business or take it out of
wherever you have it to make some money for you, and you go stick it under your mattress for
six months, if it's ten dollars, that is no big deal. If it is three and a half million dollars, Argus is
-. ,iW1J i j
City Council Minutes
June 1, 2000
Page 17
losi'rlg between the interest it loses on that money that it could have made, and the rent that it is
suppose to make as soon as they finish which is about $2,000.00 a day. That is what he told
Judge Lineberger, and Judge Lineberger said they were going to make them want to stop this tree
cutting pay reasonable amounts so if they lose, because right now Argus is presumed to be right,
if the people that appeal them lose, they want something to make Argus whole. And that is going
to be, as it turns out, $310,000.00. Now that's just the way the law goes and he didn't care what
tribunal you are in and if you lose and you are not happy and you want to appeal it and you don't
want the judgement to go into force nght then, whether it is to send you to jail or whether it is to
collect the judgement, or whether in this case it is to proceed with the development, somebody
has to pay to protect the person who has been vested by these duly elected boards with that
attorney to move forward. He doesn't think he was telling anybody there anything they don't
know, he was just explaining that this is a rational, fair process that is contemplated by the law.
The unhappy part, of course are, if the people who don't like the trees coming down can't post
$310,000.00, perhaps the trees will come down. At some point everybody can't be happy about
everything and you have to measure and come to hard decisions about nghts, property rights vs.
city rights of police power and quality of life. That is where it is. Now he is not going to address
whether this Board has the legal authority to enter a stay or not. He does not think they do. Mr.
Rose`doesn't think they do 'Judge Lineberger doesn't think they do Call in six more attomeys
and ge(theiitipinions, they may think it does have that right. He doesn't think they are going
anywhere with that because nobody is ever going to agree. The law is confused. He thinks Mr.
Santos asked ai{ interesting question: What happens if the Councilimposes a stay and Argus
cannot go ahead? He has cautioned Mr. Kester that $310,000.00 is a modest estimate of what
Argus will stand to lose. It has a contract with the tenant to go into that space it rented. He has
not seen the contract so he cannot tell what the details are but he knows there are outs in that
contract, and if construction does not proceed at certain time or does not reach certain levels,
then that tenant can go out. Now Argus is sitting on a $350,000.00 piece of property that it can't
find a renter or a buyer for because they don't know when it will be completed. Now if that -
happens, Argus's damages are at least, or what he believes their damages are going to be, isn't
going to be $310,000.00. It's going to be three, five or six million. He has cautioned Mr. Koster
if this goes to Circuit Court and if his clients, some of whom he knows and respects, and he
thinks are good people, if they lose, Argus will be suing them for the millions they have lost
because they have decided to impose their will on Argus. Now if this City Board decides that it is
going to impose its will on Argus and take the risk that the Board is right and Argus is wrong,
and imposes a stay, he doesn't know what the law is, but he is sure his client will say to him they
are not going to happily sustain the loss of a five million -dollar client, and if you can bring a civil.
rights action or a condemnation or constitutional action against the City because they have cost
us this client, because they have told us to stop when their action was to tell them to go ahead, he
thought that this was a very fair possibility. They are playing with really big chips here and he
knows once those trees are gone, they are gone forever. To the extent these trees are lost what
you have already gained, you have gained the promise of the Mayor that has already been put into
effect through two ordinance proceedings and inquiry, he believed the City will come up with
000022
City Council Minutes
June 1, 2000
Page 18
several hundred thousand dollars to buy conservation easements and tree forests. He beheved
that the City was going to clarify this ordinance so that these kind of unhappy polarizations will
not happen again. He believes Fayetteville will go forward looking for trees that it can get
contributed to it or it can buy out of these tax monies and save. And to him, win, lose or draw,
he thinks trees have liad a major, major victory in Fayetteville as a result of these discussions and
confrontations, and he believes there is something productive to it. As it stands now, my client's
position is they paid for the property, they paid a lot of money for the property Nobody else
could or would buy it. They followed all of the rules set forth for them. They have the decision
of two boards delegated to make it about what they should save or not that they should save it.
They are obliged to go into court on appeals and defend that. If they win, they are going to have
lost a lot of money by virtue of not having done anything on these trees. That is what the judge
openly said, you can't cut the trees but he was going to give them some protection. That is how
we cut the baby in two. Nobody is happy with two half babies. But that is what they have in this
case and his client feels he has followed the rules, obeyed the law, and has done everything that
the duly appointed boards and agencies of Fayetteville have asked them, and they are ready to
proceed. He believes not only is it wrong for this city to attempt to set a stay, he believes it is
financially dangerous for it to do so. He is unhappy to make this speech because he wants Argus
to have their property rights. They have paid for them. Those are lovely trees out there but he
doesn't tell everybody in the room whether or not they can cut their dandelions or shrubs or
bushes because he likes them or doesn't like them. To a certain extent the City has told Argus
they cannot cut at least three acres of trees, you have to plant four more acres. There are going to
be more trees out there when it ends then when it was when it began. That is not perfect but that,
he believes is the compromise that the law directs. So he guesses in concluding he thinks it
would be illegal, inappropriate and subject the City to a high degree of financial liability if it
were to impose a stay. He believes the court has already reviewed that and said here is the stay,
here are the conditions. He didn't think the City of Fayetteville said the judge has the nght to do
any more He would be glad to answer any questions.
Alderman Young stated Mr. Butt had stated that when Argus came in they wanted to abide by the
rules, but the first plan they submitted, the buildings had been crammed together and they were
virtually eliminating all the trees, which did not comply with the ordinance. He felt the larger
issue Mr. Butt mentioned was the property rights issue. He said Mr. Butt was dead nght. He
feels that the people of Fayetteville owned property in this City. This City was the property of
the citizens. He believed that no one from out of state, who didn't live here had the nght to come
in here and tell the people of Fayetteville how their City was going to be. He believed they don't
have the nght to come in and say this city was going to be a desert rather than have trees all over
it. That was what you were arguing.
Jack Butt said, Cyrus, excuse me. The developer has the right.
Alderman Young replied Mr. Butt had stated they did not have the right to tell somebody about
r
00002.3
City Council Minutes
June 1, 2000
Page 19
is
their dandelions. The developers, especially the ones from out of state, did not have the right to
come in and tell the citizens of Fayetteville how their City was going to be.
•q
Jack Butt told Alderman Young that he had misunderstood him. The developer had come in and
started submitting plans and submitted'aud submitted until finally the City of Fayetteville said to
them this was the way it was going to be.' w• j .' 't ' + 4
Alderman Young stated he understood there were compromises. There were also proposals All
they had to do was give up an out lot and they would be building right now, but they kept saying
no, no, that they had a better idea of how Fayetteville should be without trees.
Alderman Russell asked Jack Butt an unrelated question. Is your client Argus the property owner
of record here? •
Jack Butt replied, no, Fayetteville Exchange LLC which is a Georgia Limited Liability Company
registered td do business in Arkansas is the property owner of record. They have hired Argus and
given them wntten authority to develop the property in their behalf.
Alderman Santos cited several takings cases and explained the two part takings test.
After discussion the council agreed to hear public comments.
Mary Lightheart, 2119 Ledford Road in Goshen, stated she paid Fayetteville taxes. There are
legal questions that must be resolved in the courts surrounding these 81 trees. If the courts in the
end determine that these trees are to be saved and the trees have already been cut down, they
cannot be put back into the ground. How will you, City Council members and you, Mr. Mayor,
be able to live with yourselves and face the people of Fayetteville if you allow this to happen?
Dan Coody, 1422 East Rodgers Drive, stated I just wanted to address the resolution that is before
you right now. Fayetteville, of course, is in crisis and this community is bleeding like he has
never seen it bleed before. We have been through the incinerator crisis and everything up to date,
and this is bigger than most issues that we have seen come before the City Council You know
thatwith the incinerator crisis, we had and still have ill will and hard feelings about that ten years
later. This to me is much larger than that. To say that this community needs to get past this and
go on, and take all of the complaints to the court, he believes is skirting the City's responsibility
here because this crisis is a City of Fayetteville crisis born some part within the City government,
on City laws, on City time, with City taxpayer paid folks, staff, elected officials. This is a City -
cnsis. If there is anybody that has the power and the responsibility and the obligation to resolve.
this crisis, it is the City Council. It shouldn't be sent to the court to be resolved. This
community deserves better than what we have been getting as far as people trying to come back
to the table and resolve this issue in as an amicable way as possible. As long as these trees are
000024
City Council Minutes
June 1, 2000
Page 20
still standing there is still a chance, Mr. Mayor or you, City Council, to try to get folks to come
back to the table and resolve this for the good of the community because if this situation persists
and the trees come down regardless of how you feel about the 81 trees, this situation will be a
heartache in this commumty for years to come, and Fayetteville simply cannot afford another
heartache like we have had in the last several years. I would hope you would not wash your
hands of this and send this to the courts for them to sort out the City's problem. I think the City
has an obligation and a responsibility to do that for us and soon. Thank you.
Alderman Trumbo asked Dan, if he was saying that the City Council should go against the
recommendation of the City Attorney on this issue?
Dan Coody replied, I am not worrying about details. About who works and who doesn't work,
the times of the meetings. That to me is trivializing the entire issue. The issue is that we have a
massive cnsis in our town here that needs to be addressed. As far as what Jerry has said, I am
sure Jerry could find a way. If you found a way to say, Jeny, we want to sit down and discuss
this and try to resolve this issue, I don't think he would say no. Would you, Jerry?
Jerry Rose answered, no.
Alderman Trumbo stated Jerry's legal opinion was that the Council does not have the jurisdiction
to impose a stay based on our city ordinances.
Dan Coody stated he would hate to use that as an excuse to do nothing.
Alderman Davis said he asked the question earlier to Mr. Fulcher about why can't the people
raise the funds that are required. He explained an injunction bond was only going to cost them
somewhere between $7-10,000.00, somewhere in that area It was not $310,000.00 at this point.
In time if you can find somebody in the surety business to issue that, you are not really looking at
possibly $310,000.00 at this point depending upon what surety company you can get to write this
bond for you.
Dan Coody said he was afraid that Alderman Davis misunderstood his comments. He was not
really dwelling on the courts and what was legal and what was the letter of the law right now. He
was more concerned about what is right. What was fair, what was just and what was good for
this community. What we are doing nght now is not good for this community. This should have
been resolved months ago. It has not been resolved. That is what has brought all this to this
critical crisis stage, and to continue to ignore this was going to be a generated long term problem,
much longer than these 81 trees coming down is going to do These 81 trees represent more than
just a few trees out there at CMN Business Park. This was the focal point of a lot of things that
have gone wrong in this town. This is a focal point of a lot of rage. Obviously this community is
in cnsis and we need to deal with the root core problem.
000025
City Council Minutes
June 1, 2000
Page 21
..
1
Alderman Trumbo stated he respected Mr. Coody's views but he looked at it as though it had
gone to court, a stay had been issued. They have until noon, so the only legal thing for him to do,
he believes, was to try to keep the City out of court and not have to pay a lot of money. He gave
a lot of credibility to Jerry's recommendation that if the City Council were at this point, after it
had been to the Planning Commission, City Council, Chancery Court, and where they were today
with a deadline of tomorrow, that if they voted to impose a stay; that they would be opening up
the City to a lot of liability.
Dan Coody stated he was not asking them to oppose the stay. Basically,what he was asking
them and Jerry to do was to listen to the majonty of the City Council. The majority of the City.
Council did have the power to ask Jerry to please get in touch with Argus and with Kohls and
with everybody else involved, and say as a last ditch effort, can we please come together to
resolve this for the benefit of us all? That is not incorporating a stay, that is. not. saying you can't
do anything, but the five people on the City Councils, which constitute a majonty, could ask in
good faith to sit down around the table one last time and try to hammer something out to where
this community can start to feel that they matter.
Charles Kester, 13602 White Oak Lane in Fayetteville, I just want to make a few quick points. I
guess I am basically on the same side of this thing as Mr Fulcher, with the exception that my
lawsuit is in Federal Court and it concerns the redtail hawks on the property as opposed to being
in State Court and conceming the actual appurtenances, regarding the development itself. I.do
want to correct a couple of mis-impressions that I believe the City Council may be laboring -
under. The firstis to address Mr. Trumbo's comment about what Judge Lineberger did and
didn't do in the Chancery Court proceedings, Mr. Rose and Mr. Butt specifically asked Judge
Lineberger to rule and order that the City Council did not have the jurisdiction to issue a stay.
Judge Lineberger in open court specifically refused to enter that order. That is why it does not
appear in the written order. Judge Lineberger left it open for the City Council to go ahead and
issue the stay if that is what the Council decides should be done in this case. There has been talk
about state law and local law, that sort of thing. In this case there are already two injunctions,
one from the Federal Court. Notwithstanding that fact, there is another one from State Court. If
this City Council acts, it is going to be the same thing. Notwithstanding those two injunctions,
the City Council will enter its own. There is no conflict between those. They don't necessarily
set a floor saying you all can't do anything different from this, they just each issue a certain level
of protection. This City Council has a complete discretion to go ahead and perform its duties and
enter the stay. Now the reason why we are sitting here talking about it and everybody is kind of
confused, is Mr. Rose and Mr. Butt has both already informed the Council, and frankly Mr.
Fulcher, I can't speak for him but I feel very sure he would agree with me, that this procedure is
rather convoluted and difficult. There is basically three ways a stay can be gotten. One, you can
get it from the State Court when you appeal, that's been done. Judge Lineberger listened to the
plaintiff's side in that case, the appellants, in that case. He said given the nature of this dispute, I
think it is something I should immediately enter a preliminary injunction on and that has
06.
000026
City Council Minutes
June 1, 2000
Page 22
happened. It is also important to note the Federal court did the same thing when they were
presented with the exact same facts. Two different courts have heard this thing. Both of them
have said we should do something to preserve the status quo until we get everything sorted out.
If this City Council takes the opposite position, it will be the people that have heard this and
decided we are not even going to take the minimal step of preserving the status quo while the
courts sort it out. Everybody agrees it needs to be in the courts. All we are asking today is that
this City Council preserve the status quo while the courts sort it out Now the importance of this
is basically that as Ms. Lightheart got up here and said once the trees are bulldozed down or cut
down or whatever happens to them, once they are gone, they are gone. Given the current lay of
the land in Fayetteville, and the way things are now, there is no way the trees can ever grow back
to the size and diameter and have the characteristics they have. They are not going to be the
same kind of habitat for wildlife. We are going to talk about that over m Federal Court
tomorrow at 9:00 a.m. and tomorrow afternoon at 1:00 p.m. If this City Council doesn't act now
on this procedural matter, it doesn't matter what your views of this case are, it is a procedural
vote, and I suppose specifically to the people that were in the majority at the previous Council
Meeting. You all can take the position that all of the merits of the development should go ahead.
We may disagree about that but the courts are going to figure it out. In the meantime, while we
sort it out, as a procedural matter, take the step of preserving the status quo so that we don't kill
everything off we can't fix later. Money can shuffle around, but you can't put the trees back
later. Any one of you, assuming the votes were to go the same way that it did at the first City
Council Meeting, any one of the four of you that were in the majonty at the first City Council
Meeting or the Mayor, has the power to stop this from happening. If you all refuse to do it, and
any one of you can stop it, that is something I think the voters of Fayetteville will remember.
Marquette Mycue, 911 West Hughes. Where there is a will there is a way. From my point of
view there are four council people and the people who are asking for a solution and who are
really taking responsibility. If you don't take responsibility, and if you are not looking for a
solution, you are not going to find one. One is not going to come up The amount of money that
we have seems to be the gauge of our success and the amount of justice that we can afford to buy.
We are now consuming fourteen generations worth of stuff in one year We insulate ourselves
and isolate ourselves from nature and bury ourselves alive in our stockpiling, wealth and material
possessions. Mother Earth has always been easy pickings. Who defends her and our connection
to her? When is enough, enough? When will some City Governments stop developers, stop
industry, and become soulful and develop a conscience? In Amencan tradition, all creation has
something to teach us. The red-tailed hawk teaches us to nse above the immediate situation and
glide somewhat detached, looking down at the larger picture. If we each ask ourselves, what
could happen to our Ozark home if growth continues at this rate and in this unconscious,
unsustainable manner? We can all learn from red-tailed hawks and we can know what is ours to
do. The people know what is theirs to do. Some of us know what is ours to do. Can we all get
together on this and know what is ours to do?
430
•
:.:000p2%7
City Council Minutes
June 1, 2000
Page 23
Representative Jan Judy, 202 West Maple, stated I have always had a strong commitment to the
environment and to environmental issues. I think most of you know that. I have been around the
community a long time and support environmental issues in protecting what we have here in
Northwest Arkansas and our City. Because this has pretty much been a local issue and not really
involved at the State level, I more or less have been as a bystander watching, reading and keeping.
up with the issues. It has gotten to the point where I have been getting a lot of phone calls. A lot
of my constituents are very concerned about this issue as I have always been about protecting
what we have in Fayetteville and keeping what we love so dear to'us safe. This morning after
talking to some of the citizens last night until very late, in the middle of the night, and to some
more this morning, I promised to see what I could do. I did make a•call to the Attomey General's
office and spoke with Charlie Mouton and explained as best I could what I did understand. He
did have some concerns and agreed to look at these issues for me. I faxed him the information
about all of the suits, the injunction and all of that information, and he has agreed to look at that
and get back with the tomorrow. I would hope the City, the Council members, would make
every effort to make sure we don't make irreparable decisions this afternoon that we cannot
change, an issue we need to be careful about. We need to make sure we are not doing anything
that is not exactly right and that the City could possibly be in trouble for. I agree with the citizens
that once the trees are gone, they are gone. We have to really be careful that we are making every
effort to protect what we have and what we feel so dearly about here in Fayetteville. Thank you.
Missy Leflar, .1717 West Center, as far as Attorney Kester said, I would like to say ditto, so I am
not redundant and waste your time. Ido believe the legal term is concurrent. Courts, Trent,
referred to this as an inferior court proceeding. Courts can have concurrent jurisdiction
oftentimes. I was there, too, when I heard Judge Lineberger's conversation. I was over standing
by the door in the courtroom. My take on it was that he was talking in terms of a stay, in terms of
an injunction. Of course, this proceeding,' this tribunal has no 'authority to issue an injunction,
but it does have authority to issue a stay on grading permits. That is way different from an
injunction, which in Arkansas only a chancery court can issie an injunction.:That is why the
Circuit Judge couldn't do that. It can only be in chancery. hang:PI just- Wanted to clarify that. Jan
Judy has the State Attorney General's office looking at this and the City's financial and legal
liability on both sides of the issue. Would there be potential or seriously potential legal liability
as to'Argus Properties and Fayetteville Exchange, because Mr. Butt got up here and talked about
what I took subjectively as an implied threat lawsuit against the City by his client? Could the
citizens sue us? .Might it make sense? And with very little damage and yet preserve some City
financial liability to hold off on the grading permit for a period of say one week to give you time
for No. -1, get the Attorney General's opinion. No. 2, find out and give: Attomey Rose
opportunity to investigate as to the City's potential legal liability if Argus or Fayetteville
Exchange decided to sue. My understanding from Mr. Butt's earlier argument, he talked about
an unconstitutional taking. Well, you will recall an Eighth Circuit Federal Case I attached to a
two-page letter I sent the Council before the May 2 meeting. That circuit, as you know, is a
federal court where you appeal Arkansas decisions, and it clearly, clearly stated that the Eighth
000028
City Council Mmutes
June 1, 2000
Page 24
Circuit considers when a property owner buys property subject to a city ordinance, and it knows
about it on the front end when they purchased it, it cannot later claim what that ordinance
prohibits is an unconstitutional taking. I think if Attorney Rose had opportunity, say a week's
time to research that, he would find that was the case, and you wouldn't be nearly as concemed
about a potential lawsuit by Mr. Butt's clients. I think that would be the case and as you know,
for what that is worth, I'm an attorney. Like he says, you can get six attomeys in a room and
come up with six different opinions. It might make sense if you could buy yourself a week's
time. What kind of damage could the City incur from anybody in a week? It would give you a
week to find out what our Attorney General's going to say and a week to consider these other
two side issues. I just wanted to make that suggestion here today.
Joame Connors, 885 Fritz Dnve, I have been listening to you all for an hour and a half talk about
money and procedures. Money and procedures. What are the procedures to follow? What does
money say? What might it cost us? Who is paying what? It seems like that is your concern.
When are you going to listen to the citizens of Fayetteville? That is what I wonder about. Thank
you.
Lu Weiss said she was not really an activist, and it was taking a lot of courage for her to be up
here. What I want to ask the people who have voted against to take the trees down, in all the
activities that have gone on about this issue, the only people I have met are people who care
about not tearing down the trees. Where are the people who are on the other side? Have you had
people calling you saying they want this development and they don't care if the trees come
down? Why are you, whoever, I get you all mixed up anyway, the ones who voted to do this
development and take down the trees? Are your constituents all calling you and telling you this
is what they want because most of the people here that I have met are all for not taking the trees
down for vanous reasons which I will not go into all that? It has all been said. What I want to
know is our people asking you to have this development? Do we need another store in
Fayetteville? Would you give me an answer, anybody?
Alderman Trumbo answered and said he would just speak for himself. He had a lot of
constituents he saw at church, United Way Board Meetings, University Board Meetings, and
various other civic and charitable organizations, that have said they appreciate him listening and
hearing the pros and cons, and formulating a decision based on the legal opinion of the City
Attomey, and what he believed was the right thing to do. He had heard a lot, and had heard both
sides, and he had listened to both sides. Probably ninety percent of the people he had talked to
had been in favor, but a lot of them were at home with kids, at meetings and didn't want to come
down to a hostile environment to voice their opinion because it has been hostile. He has had calls
at his house and at his office and some nasty things said to him walking in and out of City Hall
and at different places, so it has just really been a heated debate and that a lot of people didn't
wish to come down and voice publicly.
UUUUC.:7
City Council Minutes
June 1, 2000
Page 25
Lu Weiss said she had never done this before but she came down here and she didn't know if you
would call it picketing or whatever and asked people to sign the petition, and it took all of her
courage to do that, but this is so dear to her heart that she has come out and done this. She has
not been feeling well. She has been sick and she came out anyway because she feels so strongly
about this. If the people who had talked to you want this development, want another store, want
more money, why aren't they here? How many people here are for taking the trees down? There .
is not one person. Why aren't the people who feel strongly the other way down here? Why don't
they come down here and voice their opinion?
Alderman Tnunbo stated they had elected him to take care of Ward 3. He did not want the City
to get into litigation. They needed to listen to their City Attorney. They needed to sit down and
re -draft our Tree Ordinance and then go forward with a stronger tree ordinance. • That was what
he was hearing from his constituents in Ward 3.
Alderman Austin stated most of the people that had contacted him were for order and procedure.
They wanted us to follow an orderly plan. He had probably twenty-five phone calls or letters,
and Many of them are out in the audience, and probably eight ,or nine of those are from Ward 1,
and they have let hail know that. He added, when you run for office you are going to be
opposed..Ifyou get elected, .you are going to be opposed more and your judgement will be
publicly analyzed and critiqued and sometimes encouraged. That doesn't bother him. He did not
lose sleep'ovef tliat. `If they started stopping him in the grocery store and saying ugly things to
him, it might bother him. It would bother him if they started saying things to his wife, his family
or doing things like thaeHe has not had any of that..
Lu Weiss stated she has never met anyone who has come to a Council Meeting that has been on
that side and that disappoints her.
Alderman Davis stated that is why they voted for us He had talked to a lot of people in his
neighborhood, his church, and social clubs that he was involved in. For the most part they
respected what he had done and they had thanked him for representing them. They could also
vote them out of office at the next election. He added, this had been the most difficult issue he
had dealt with, but he had been able to discuss both sides of that issue with them. This particular
issue, the people that have called have been against it and have not wanted to hear what he had to
say, whether it was pro or con. All they wanted to do was express their opinion, tell me what
they think, and hang up.
Lu Weiss stated she was not saying that everybody for the trees was the most polite, perhaps, I
mean, this is a very emotional issue. I Just wanted to be sure that you are doing what your
constituents want you to do. We can disagree and I disagree heartily because if we keep cutting
UUUU'U
City Council Minutes
June 1, 2000
Page 26
down the trees, we are not going to have any air to breathe. I assume you all know what happens
with trees and the oxygen and all that stuff. I just want to make sure you are doing what your
people, your constituents want you to do because you are the employees and we are the
employers.
David Garcia, 120 North Block, stated I have to confess that I am one of those people that
actually said something to Mayor Hanna on the street. I saw him in front of the courthouse
yesterday and said hello and shook his hand and I trust I was not too offensive or rude or
impolite. He shook my hand back, so I think it was okay. I also have to confess that I am one of
the people who got arrested out at the tree site. I have talked to probably most of the people, that
were arrested out there, and I think that some of those reasons that people were doing that bear
directly on the question before you which is the resolution before you this evening From where I
sit, it looks to me like the question of eighty-one trees, preserving eight -one trees, immediately
goes to the question of selective enforcement of the law. It looks to me like the question of
selective enforcement of the law immediately goes to business as usual in Fayetteville. That is a
point Mr. Butt smeared from ear to ear and I thank him for that if he is still here, when he
described how many times before this Tree Ordinance has been ignored and bypassed. It looks to
me from where I sit like the fix is in, like it is a done deal. I hope that I am wrong. This City
Council Meeting, the way that it was called, the way the vote will most likely go, looks to me
like the fix is in, it is a done deal. I hope I am wrong. I talked to Junior High School girls who
got arrested out at the tree site. I talked to great grandmothers who got arrested out at the tree site
and they were getting arrested because they believed the way business has been done as usual in
Fayetteville is wrong. Yes, they believe in the orderly process for everybody. Yes, they believe
in the enforcement of law. When I go before the judge I am going to plead guilty because I did
break the law. I am not going to try to evade it. I am not going to try to plea bargain. I am not
going to try to get out of it. I am going to say, Your Honor, I did it and I believe in the rules of
the law so I will submit to your judgement, whatever you see fit to do. But there should be equal
enforcement of the law for everybody. If the City Fathers selectively enforce the law for the
financial benefit of some and the criminal punishment of others, then the rule of law has been
broken. The rule of law has been broken and that should strike terror in all of our hearts, if that
indeed is what is going on. I hope that I am wrong. If it is not a done deal, if it is really a matter
of serious thought concem principle, then a very simple idea was laid out here a little while ago.
Let five or more of the City Council people join together and ask Jerry Rose to contact Argus,
talk to the folks that have been sitting in trees, talk to folks that have been getting arrested, sit
down together and see if we can work something out. If we take the weekend to do that, who
loses? If we take until Monday to do that, who loses? If you are sincerely, seriously trying to
work it out, let's try to work it out. Since it is a really serious thoughtful pnnciple we need to sit
down together, talk it out, lower the temperature for everybody and everything Thank you again.
David Glasser, 513 North Olive, stated I have just a single point to address relating to Mayor
Hanna's request that we address the resolution and not talk about the larger issues. I have heard
.00OUa1.
City Council Minutes
June 1, 2000
Page 27
4 {' • i - f
a lot of discussion about the faultiness of the Tree Ordinance and the fact that you all are going to
contemplate improving it. This is noteworthy and useful activity but it also raises the question
that if all of these decisions have been made in the past on something you allhave admitted as
faulty and ambiguous, I would argue that it would be a very strong case for accepting the motion
for the delay. If you are in the process of examining laws which you have already admitted on
the record are faulty and ambiguous; and so has Attomey Butt made mention of that, it seems to
me prudent regardless of the outcome of this issue for Councilmen and the Mayor to consider
very strongly the virtue of the delay at this point, while you in fact reconsider the structure of the
ordinance. That's it.
Thomas Morin, 2472 Brophy Circle, stated I Just want to address the comments that the attorney
for Argus made regarding private property. Sometime ago, not too long ago, maybe a month ago,
I think it was either in Rogers or Benton, there was a schoolteacher who was arrested for serving
alcohol to junior high and 9`11 and 10`s grade students on his private property. He could not
understand why that was wrong and why they had come to arrest him because it was his private
property. I think, and I truly believe that when it comes to matters of morals it transcends the
private property rights. I am not an attomey but I certainly have to believe that has been proven
many, many times. I feel as a fairly newcomer to Fayetteville, I have been here for only three
years, and in coming here I have seen a lot of things change in those three years. The rampant
development which I have seen in other parts of the country, and the results of it were not at all
aesthetically pleasing. Some places prospered, such as Portland, Oregon, is a fine example:
They have not had one additional parking space since 1971, and yet the city has grown and
prospered. They just choose to do it differently. I have lived. in cities where they retain a 60% of
the tree growth when they put in a development and they prosper. For the 85 trees that are here, I
honestly never felt that it was about the tree issue, but it was about the City Council choosing to
have to come to a place where they had to negotiate and weaken themselves, that the Tree
Ordinance said 15% or 18% or whatever it said, why was that even negotiable? Thank you.
Barbara Moorman, 3450 Finger Road, stated I want to follow up on something that Mr. Austin
said about order and procedure. I also want to say first of all that it occurs to me there has to be a
reason why people would want or people would value something or they would value nature,
more than they would value the law and more than they value the opinion of the people.. I am
very glad to hear, which I did not know before that the Attomey General is going to look into
some of the orders and procedural matters of this particular situation. Mr. Butt referred to the
law-abiding homeowner, and he was drawing an analogy with Argus. I would like to suggest that
Argus is not a homeowner in this community. I don't know whether Argus is law abiding or not,
I have to assume that they are. But as of a few days ago, they were not registered to do business
in the State of Arkansas according to the Secretary of State's Office. I would like to also point
out that Argus when they signed their permit for application for a large scale development signed
as owner of the property. Excuse me, they did not sign as the owner, they signed as the financial
interest and that was the only signature for financial interest. The other financial interest
000032
City Council Minutes
June 1, 2000
Page 28
obviously is Fayetteville Exchange as has been pointed out. The City issued the permits, if I
understand correctly, or the grading permit, today. A phased permit procedure which is not
recognized legally in your ordinance. It is that phased procedure that is costing the plaintiff's
$310,000.00 because if the permit were simply issued without phasing, no work would have been
done up until now. I am really curious, although I am really just asking this question of myself,
who insisted that the permits be issued today? There was no permit until today. All the work
had been done, if I understand correctly, except the issuing of the permit Why would there be
such a rush when there are, one injunction in place and another one on the way? I would like to
point out that when the Department of Environmental Quality in 1999 in Act 147 wanted to
change their operational procedure and adopt a modified phased permit procedure, they had to
ask themselves what is the record, what is the public record of the facility that is involved in this
permit? There is no public record for Fayetteville Exchange. There is one for Argus but not for
Fayetteville Exchange, for the simple reason that Fayetteville Exchange came into being in its
State of Incorporation in Georgia at the end of 1999 and was not registered to do business in the
State of Arkansas until March 7th of this year. They had been involved in this LSD process, if I
understand it pnor to that time. I would like to know, and again I am asking myself this question,
why is the public not being assisted in finding out the record of the companies that are involved
in this because this is very important? Their environmental record, their financial record, what is
their prospect for doing well? One last question, m looking through courthouse documents I kept
coming across the name JDN. JDN Development. I would like to know who they are and I think
it would be interestmg to know if they still have any connection with this project. I hope
someone will say something positive after my speaking.
Bill Moeller, 1511 Markham Road, stated before retiring some fifteen years ago, I counseled
many managers on major decisions that they had to make. One of the guiding principles that I
used in counseling those managers was keep your options open Don't make a decision that
closes off your options if you have an alternative. Now I would like to ask just two questions. I
honestly do not know the answers. These are really questions perhaps Mr. Rose should answer.
Does the City have the authority to fail to issue any permits that are pending at this time? I ask
that question because I see us discussing two different things. I see us discussing stays and I see
us discussing permits. I perceive from the discussion so far those are two different tlungs. The
second question that I have is, does the City Council have the authority to reverse a prior
decision? I honestly do not know the answer to that question. These are organizational
questions, not legal questions. I am not a lawyer. Thank you.
Jerry Rose replied, "Does the City have the authority to not issue permits?" It depended on how
discretionary those permits were. There was at least one case that was very strong to the
proposition that the permitting process was non -discretionary. It should be a check list of things
and so long as you meet that check list and go down and put a check, a permit should be issued.
Does the City have authority to not issue permits? Not unless the ordinance provides for some
discretion, and in most cases very little discretion exists. It was truly a check list or it should be.
0000.
• City Council Minutes
June 1, 2000
Page 29
Bill Moeller thanked Mr. Rose. He said he phrased his question improperly. He said he should
have asked whether they had the authority to delay the issuing of the permits.
Jerry Rose answered, no, sir, he did not think so. What was the purpose of the delay? If the
delay had a good articulate reason, than perhaps. For instance, if there was some more
mformation that needed to be garnered. He would think a delay would be proper. They could
not simply delay the permit because they wanted to.
Bill Moeller replied the reason he asked the question was because he heard several people
suggest there was still time to sit down with these folks, figuratively speaking one on one, and
work out something where we could come up with a win-win solution instead of four members
sitting on one side of the Council being able to say to other four members, we won. Another one
of the guiding principles that I always used with my clients was seeing if you can't find a win-
win solution where you are, make a friend instead of an enemy. Then everybody is happy not
just the folks who won. That is the thrust of my question. Whether that is possible toemploy the
permit process in order to achieve a delay that you folks can use to sit down with these people
and try to work out something as other people have suggested.
Jerry Rose replied he did not know how to use the permit process in that manner. It was
interesting to note every time the attorneys had met over this issue, in whatever accord they had
met, a couple of times this week, at every one of those occasions they had set down and talked
among themselves and if there was anyway at all at which a possible compromise might be
reached in which everyone might be happy, after every one of those conversations, unfortunately,
he had left with the conclusion that it was very unlikely that anything could be reached. He was
not blaming either side. He was just telling them that the sides are very adamant. He thought the
folks that want to preserve the trees, not only want to preserve trees in general but they were very
specific about the trees they wish to preserve and were very specific they didn't want any of those
trees destroyed. They wanted the 15% which they believe to be the mandatory limit in that
ordinance to be enforced. Now he understands that fully but it leaves very little room for
compromise. Accordingly, they have talked. They have talked about trying to institute the.•
Mayor's ideas about trying to provide money to buy urban forest and preserve it in other areas in
the City. They have talked about trying other various means. All of those compromises that
have been suggested and discussed, at least among the attorneys, because they have not been ,
privy to the other possibilities of compromise, have always been back to the problem that, well,
that's all very nice but it won't help these trees that are out there on that property. That has
become very important, and he understands that.
Bill Moeller said Mr. Rose answered his question.
taking the tithe to answer. The second question is,
reverse a prior decision?.
He heard his .answer and he appreciated him
does the City Council have the authority to
000034
City Council Minutes
June 1, 2000
Page 30
Jerry Rose replied, yes, a decision made under our ordinances. There was a provision. If one of
the guys that voted on the wining side makes a motion to reconsider at the meeting following the
decision that was made, then the decision may be reversed. Those are City Council decisions. It
was very normal old Rules of Roberts Procedure kind of stuff.
Alderman Russell asked if in this case, the time for reversal had passed since the meeting
following the decision had also passed?
Jerry Rose replied, yes
Fran Alexander, 1946 N. Fox Hunter Road stated I wanted to give you a little history on the
enforcement of this ordinance as to pertaining to whether you should stay or not. I think that's
what Alderman Austin's resolution and what the discussion is supposed to be about. Sometimes
you can't make a decision without a little history. Several years ago while trying to get this City
to enforce this ordmance, I had numerous discussions with, well, maybe not numerous but
enough, with Mr. Rose about the interpretation of replacement vs. preservation. I took Mr. Rose
a xerox copy of Webster's definition of preservation and mature, so we could discuss what
preservation is vs. replacement, and we could discuss mature vs. young trees I did this because
becoming involved m urban forestry to the extent that I have served on the State Urban and
Commumty Forestry Council. He at that time was trying to help me understand why this was not
bemg enforced as preservation. I believe, Jerry, in part of that discussion, you told me that you
weren't even sure there was an enabling legislation at the State level that would provide the kind
of enforcement that I was talking about.
Jerry Rose said it had been a long time ago but yes he did recall this.
Fran Alexander said yes, it had been a long time but she wanted to establish that this effort has
not gone unnoticed. I and many other people have tried to get this ordmance enforced for years
and years and years. I agree with whoever said today that this may help the trees in the long -run
but it certainly won't help this 81. I bring this up because I think it is very important to
understand in my involvement with people around the State, they have said, as Mr. Butt said
today that he feels that the ordinance does apply to the police ability of the City to enforce its
will, essentially, on private property owners. It falls in the opinions of the people I have spoken
with about this, once again all over the State under the health, safety and welfare aspects of City
law. Now the reason that those trees would apply to health and welfare come under Urban
Forestry consideration because we are heating our cities. This has to do with the issue about
putting urban forests off on the hill somewhere vs. right there where they are having the impact
on the heating. Cities are heat sinks. We are all having to pay for our skyrocketing utility bills
every time a square inch of pavement goes down. We are subsidizing all new pavement and all
new roof tops. We are all subsidizing it because we are raising our temperature. That is what
urban forestry is about. It is not just whether they are pretty or whether they are old or whether
‚J
�u/ u iit
City Council Minutes
June 1, 2000
Page 31
they are big. This is a health and welfare of the community issue, and this is what urban forestry
is based on nationwide. It is a Department of the Forest Service of the United States. This is not
just a little ole lady in tennis shoes issue and I think that you need to keep that in mind. You may
get very tired of me out there hugging trees but, by gosh, this is a national issue for a reason.. It
has all of the commissions, all of the services, and all of everybody out there backing it up. We
are just really slow here sometimes to get the news. The other thing I wanted to tell you was in
the procedure that I followed and other people followed when there was a proposal on the
property at Garland and Wedington to take down those trees for a Mormon church to go in, I
argued .at.the Subdivision level. Mr. Conklin was there. The Staff's decision was to allow
replacement of trees. The Staff approval of that was going to go to the Planning Commission
and it was appealed. I don't know why but that church pulled the plan and went elsewhere.
There is precedent for the effort to get this ordinance to be followed as it was intended and as it
was written. I also wanted to tell you that the Kohl's department store has been answering the E-
mails they have been receiving with a form letter that reads they have dealt with the Landscape
Administrator's plan, trees are being saved, and 100 or more trees are bemg replanted. This is
neutenng the opinion of people about what's happening because when they send out information
like that and then they go in and cut those trees. They are in forsome really bad business. The
other thing I want to say and the last thing I know you will be happy to hear, you were talking
about the people who have come up to you and thanked you for your representation of their
points of view. I agree with the lady who said where are they?. We can't see them. Those of us
who are spending hundreds of dollars, hundreds of hours, and God knows how much emotional
investment in these issues constantly before this government are down here in person. They can
see my face on television. My mother gets to hear about it at bridge club. So by gosh, if I have
the courage to be down here somebody else who has a disagreement with me ought to have the
courage to be down here and if they don't, they are operating in shadow government. I don't
know how many phone calls you really received but you know how many people are here. I
don't know who really said what to you and that is what I constantly refer to in my articles as
shadow government. The other shadow is shadow business. 'We have Fayetteville Exchange
LLC. Who the hell are these people?
•
:Bob Jordan, 280 Ila Street, stated I am the spokesperson for the We've Had Enough. I would .
like to tell you we have gathered over 4,000 signatures: At 4:00 p.m. this afternoon we set up an
account at the Bank of Fayetteville for people to put money`into. to start raising money for the
bond for this lawsuit. We have, at least $4,500.00 in that account. I left at,4:00 p.m. to go to.
work. The citizens of this town care, you knoww.' If the`4,000 people could afford to donate
$100.00 a piece we would haveinore than enough money to pay the bondrfor this lawsuit. I
would like to tell you that there is a win twin solution here. There is a win-win solution. I have .
logged over five hours talking with people at Argus in the last ten days. I can tell you .that there
is a win-win solution. There is'no win-win solution once those trees go down. That's a.lose-lose
solution for the citizens of the community. It's a lose -lose for Argus. It's a lose -lose for Kohl's
department store. I guess you have the right and option here of allowing a win-win solution or
000U3ti
City Council Minutes
June 1, 2000
Page 32
allowing a lose -lose solution.
John DuVal, 1131 Eastwood, stated I want to quote something Mr. Butt said last night on
television, and if he is here and I am wrong I will let him correct me. There was something that
you said, Trent, just a minute ago which is essentially the same thing. Mr. Butt said that he was
glad that this issue would be taken back into the courts and you, Mr. Trumbo, said you would be
glad it would be taken off the streets and into the courts. I've also been working trying to get an
account set up for people to contribute for the bond money so that the $310,000.00 could be paid
for bond. Something you said, Mr. Davis, made me a little bit more hopeful, maybe you could
explain this. People are contributing $25.00 at a time and I am not very hopeful about us being
able to raise the money which means that unless you do allow a stay take effect, we aren't going
to put this back in the courts We are going to turn it over to the bulldozers. Thank you.
Raymond Johnson, 2610 North Old Wire Road, stated I have lived there for almost ten years.
During that time I have cut down eight trees on my little piece of property without any problem at
all. One of the things that has bothered me about this ever since it started is where do you come
up with rare for these trees9 Who determined that these trees were rare?
Alderman Trumbo stated it was drafted by a group back in 1993 and it was never detemuned.
That was why it needs to be redrafted.
Raymond Johnson stated something rare is something you have a little hard time finding it. You
can go anywhere in Fayetteville and find post oaks. Magnificent! What is magnificent about a
post oak? It is the least desirable tree in the oak species. It will only grow on poor ground. It is
a miserable tree from any stretch of the imagination. If the elders of that property prior to this
development had gone out there and cut every one of them down, I dare say nothing would have
been done. They could cut them up for firewood. The only thing they are good for is to be used
for posts, but they quit using them. They are not good for anything. Unless they are out
individually they don't even make a good shade. When I read about all this magnificent, rare,
massive groove of trees out there I went out and took a little look. I bought ten acres out here
west of town in the Mt. Comfort community when I came here in 1959. There are post oaks out
there that would make these look like saplings. Have you ever heard of anyone buying a sapling
post oak and planting it? Anyone? Has anyone ever bought a post oak and planted it. They are a
worthless tree. (Someone in the audience addressed Mr. Johnson) You have? Where did you
get it? I have contacted every nursery and no one has a sapling.
Mayor Hanna said no, we can't have the audience talking back and forth.
Raymond Johnson said he has had his disagreements with the Mayor here. I held his feet over
the fire over a project here in our little Gulley Park which I thought was homble. I called him the
•
000037 u ,
City Council Minutes
June 1, 2000
Page 33
other day and I told him I was proud of the way he was handling it. I am I think you all ought to
get along with the Job and get this over with, get it off the table and let them go on with their
business.
Alderman Santos said to Mr. Johnson in answer to his question about what is a rare and
landmark tree. It was defined in the ordinance. It was decided through. a public process that any
tree over 24 inches in diameter at breast height.
Mr. Johnson asked Alderman Santos if he would agree that they were rare?
Alderman Santos said any tree that big is rare, no matter what the species. That was what was
decided through the public process.
Raymond Johnson said he could show Alderman Santos hundreds of them. You need to look in
the dictionary and see what rare is.`. R , ' ;
Y
Elsa Isaacs,2665 E' Travis}Street, stated I believe when I was a young woman and taught U.S.
history, ArticleFour of the Constitution guarantees all states a republican form of government
which means an elected representative form of government, you are our representatives, the
ordinances 'are our statues -and -itbehooves no one to snpercede the law whether they are
corporations or the humblest person in this city. 2 '' •
Mayor Hanna asked if it was correct that they had a motion and a second?
Alderman Austin asked the Mayor if he could make a couple of comments? He stated he
realized that it was a late hour but he wanted to comment on his votes on the issue, although it
has taken a form of being an anti -tree. This has never been a tree issue with him. It had been an
issue of procedure and following what he thought was the best advice they had received when
they gave their word that they would serve.%That is our City Attorney. In every case, and he had
disagreed with him on a couple of thing privately, but he had taken his advice. Also, lest it be
said that he was not a tree lover, he has planted several hundreds and cultivated several hundreds,
perhaps thousands of planting in his youth, and he was sad to say the media didn't pick up on it.
He had sent each newspaper an article about a special tree to him that was blown down in a
recent tornado. They chose not to print it. It was a large tree. Lying on the ground it came up
above his waist. He wanted to comment that we had a good government. But Ms. Alexander,
they did not have any control over her and many other speakers here tonight, but they were
afforded the right to speak. They did not make laws to govern people that did not live in the City
but they did give them the right to speak. He thought that many comments were made about
people outside our City, and he did not think they ought to make comments about people outside
our City. If they opened it up for speaking, let them speak. Same thing about property owners,
whether they were voting citizens or absentee landowners, or absentee homeowners, or whatever,
City Council Minutes
June 1, 2000
Page 34
if they owned property or they had a standing then they had the same nght as an outsider to speak
at a City Council Meeting.
Alderman Russell stated he thought it was fair to say that all mne of them sitting up here
including the Mayor, sincerely believe that they were doing what their constituents wanted them
to do. He certainly believed that he was He thought a lot of it depended upon who they
considered their constituents to be. He could consider his constituents to be everyone who lived
in Ward 2. He also took an oath because those were the people who elected him. He could also
consider them to be everyone who lived in the City of Fayetteville because that was who we had
taken an oath to serve. If they all saw their constituents as the people who could vote them in or
out, then it's possible that all mne of them were right in saying that they were doing what their
constituents wanted them to do because if you noticed no two people who lived in the same
district had different opinions. Mr. Young and I, Mr. Santos and Ms. Daniel, Mr. Tnunbo and
Mr. Davis, Mr. Austin and Mr. Reynolds, all were voting m pairs according to their district. He
could tell them with 99% certainty that he was doing what the people of Ward 2 wanted him to
do Even if he weren't so sure, he would still do it because he believed it was the right thing to
do He believed it was in conformity with our ordinances. He was less sure about the whole City,
but the only way they really were going to find this out was in November when people exercise
their right to vote. He hoped that all of them were exercising their nght to be here or exercismg
your right not to be here and watching at home, like people who were on the other side of this
issue, go to the polls in November and let's not fight about it until then. He did believe all of
them believed they were doing what their constituents wanted them to do. That bemg said he
respected the opinion of Mr. Rose and of Mr. Butt, that the City did not have the authority to
suspend proceedings under permits or not to issue permits, or in affect create a stay. Judge
Lineberger did not put that in his order and he was not there in court so he didn't know what he
had said. He did have the document in front of hum. If any higher court judge, Judge Smith or
Judge Lineberger or anybody else ever signs an order saying that the City did not have
junsdiction to issue a stay, he would respect that because they were a court inferior to them and
that was what they were bound to do was to follow their decisions. Until then the question was
open and they had several attorneys talk and say they believed the City did not have the authority
to issue a stay. There was also several attomeys who had spoken and said that the City did not
only have the authority but the obligation, or doesn't even have to issue a stay because the
proceedings are already stayed automatically. As he saw it, this resolution basically
acknowledges that we don't have jurisdiction. He was not ready to acknowledge that until he
heard it from a higher court judge and that was the reason he would be voting against the
resolution. He appreciated the opinions on both sides of the jurisdictional question. Mr. Rose
was doing his job by representing the majonty, defending the majority will of the City Council.
He was doing that.
Alderman Davis asked the plaintiffs if they could go back to Judge Lineberger and ask him if he
could give them additional time for the stay to try to accumulate dollars for a surety bond? He
VVVVl.T.L
J JJ
City Council Minutes
June 1, 2000
Page 35
didn't know if that was an option for them at all or not. He did not know the legal system but for
some reason he set that time limit. He did not know the reason. Was that enough time for them
to raise enough dollars to go out and get a surety carrier to back them for $310,000.00? It was
going to depend upon the strength of the individuals that were willing to sign the indemnity
agreement: If those individuals had financial strength then he thought those people needed to .
stand up if they believe in this cause and do what they could to help save these trees: He felt like
the judge for some reason gave them a time limit and he' was not a part of that discussion. If
there was a way he could grant them that, he would consider it, but hecouldnot go against what
the Chancery Judge had given them as far. as time. He would recommend that they go back to the
Chancery Judge, Mr. Lineberger, and see if he will grant them additional time, whether it was
two days, three days or four to accumulate those funds so that they had enough money for a
bonding and in the .meantime find somebody if they were successful with that, find someone that
writes surety bonds, give them the information so that they maybe able to find something for
them. There was no guarantee that they would,. but there was always that possibility. '
Mayor Hanna called for the vote."Upon'roll call the motion tied 'at 4-4. Mayor Hanna
voting to break the tie.
Mayor Hanna asked if there was any other business?
Alderman Santos stated that their 9:00 a.m. meeting was no. longer needed.
Alderman Russell stated that if the City forfeited their jurisdiction and the issue was stayed by
passing this resolution, he did not think there would be anything for them to consider at the
meeting in the mormng.
Mayor Hanna said there would not be a meeting in the morning.
Meeting adjourned at 9:40 p.m.