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HomeMy WebLinkAbout2001-06-05 - Agendas - Final FAYETTEVALE N THE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL JUNE 59 2001 A meeting of the Fayetteville City Council will be held on June 5, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain, Fayetteville, Arkansas. A. CONSENT 1. APPROVAL OF THE MINUTES: Approval of the minutes from April 17 and May 1 , 2001 . 2, POLICE PHYSICAL FITNESS POLICY: A resolution adopting a revision to the Police Department' s Physical Fitness Policy. 3, COPS FEDERAL GRANT: A resolution accepting the $225,000 COPS Universal Hiring Program Federal Grant and approval of a budget adjustment in the amount of $37,617.00 from Use of Fund Balance. 4, INTERLOCAL AGREEMENT: A resolution approving an interlocal agreement between the City of Fayetteville and the City of Johnson for the installation and ownership of a traffic signal at Wilkerson and Joyce. 5, SIDEWALKS AND TRAILS COMMITTEE: A resolution establishing an advisory committee to be known as the Sidewalks and Trails Advisory Committee, setting forth the selection process for membership and the responsibilities of the Sidewalks and Trails Committee. 6, SAGE HOUSE: A resolution approving a long term lease with Economic Opportunity Agency of Washington Co. Inc. for Sage House. 7, COX COMMUNICATION: A resolution approving an amendment to the present franchise agreement with Cox Communication to release them from their obligation to carry a Little Rock, Arkansas, network affiliate broadcast station. 8. PARKING DECK: A resolution approving Amendment No. 2 in the amount of $ 12,000 to the contract with Garver Engineers for additional geotechnical study regarding the proposed parking deck for the downtown area. 9. ARKANSAS BUSINESS TECHNOLOGY PARK: A resolution approving a grant application for assistance from the Economic Development of Arkansas Fund. 113 WEST MOUNTAIN 72701 501521 -7700 FAX 501 575.8257 B. OLD BUSINESS 1 . TREE PROTECTION AND PRESERVATION: An ordinance amending the Tree Protection and Preservation Ordinance to allow for a variance, reduction or alteration in the requirements of the Tree Preservation Ordinance. The ordinance was left on the second reading as amended at the May 15, 2000 meeting. 2. HMR TAX: An ordinance amending § 35 .20 of the Code of Fayetteville to add delis, drive-in restaurants, carry-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list of businesses collecting the city's HMR Tax. The ordinance was left on the first reading as amended at the May 15, 2001 meeting. 3. PARKS HMR TAX: An ordinance amending § 35 .31 of the Code of Fayetteville to add delis, drive-in restaurants, carry-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list of businesses collecting the city's HMR Tax. The ordinance was left on the first reading as amended at the May 15, 2001 meeting. 4. SPECIAL ELECTION: An ordinance calling and setting a date for a special election for the adoption or rejection of ordinances enlarging the definition of what type of business and what type of gross receipts or proceeds would be subject to the Hotel, Motel, and Restaurant Tax and the Parks Hotel, Motel, and Restaurant Tax. The ordinance was tabled at the May 15, 2001 meeting. C. NEW BUSINESS 1 , IMPACT FEES: A resolution approving a contract with Duncan and Associates to conduct Phase 2 of the Development Impact Fee Study for water, wastewater treatment and collection, roads, and parks. 2. AD 01-1 .00: An ordinance approving an amendment to Chapter 171 "Streets and Sidewalks", Section 171 . 13 "Width of DrivewayApproachs" and Chapter 172 "Parking and Loading", Section 172.01 "Parking Lot Entrances" of the Unified Development Ordinance to change the width of a curb cut allowed for commercial driveways and provide for a minium curb radius. 3. ROLL-OFF TRUCK: An ordinance approving a bid waiver for the purchase of a used diesel powered roll-off truck to be utilized by the Fayetteville Solid Waste Division. 4. HENDRICKS SEWER SERVICE: Consideration of a request to provide sewer service outside of the City Limits. City Council June 5, 2001 Young ✓ V�!/ Zurcher Trumbo Davis Santos ✓ Jordan Reynolds Thiel Coody CO t, Young �✓ Zurcher Trumbo Davis ✓ Santos Jordan Reynolds ✓ Thiel ✓ Coody City Council June 5, 20AV Young ✓ Zurcher ✓ �(� Trumbo ✓ '� Davis ✓ Santos ✓ ✓ Jordan ✓ Reynolds Thiel ✓ Coody Jl�° ' ic ✓ 4L�5r o M � • Young ✓ ` !� Zurcher Trumbo Davis Aw SantosOF ✓ (✓ Jordan ✓ Reynolds 40,,�,r Thiel Coody Z�(O —D � — Z• '— —(� • • I ', • , 1 t a` i .. I ) `�J?. � 4 ti, �'.�,� 1� �h a �.' • � y i i� `� ~� � � . ,, . . ' � __ ,,`k City Council June 5, 2001 A TIT �L Young ✓ �/ !/ Zurcher ✓ Trumbov- Davis ✓ �� Santos Jordan ✓ �L Reynolds Thiel ✓ ✓ /� Coody til s � Young oocl Zurcher Trumbo Davis Santos Jordan Reynolds Thiel f Coody — -V , City Counci une 5, 2001 Young Zurcher Trumbo Davis Santos ✓ Jordan Reynolds t✓ Thiel ✓ Coody Young ✓ �� '� Zurcher ✓ i/ Trumbo ✓ ✓ Davis ✓ v Santos r Jordan ✓ v Reynolds Thiel Coody City Council June 5, 2001 0 P7 Young ✓ �/ ✓ Zurcher Trumbo Davis '� ✓ Santos Jordan Reynolds Thiel Coody W", N 0 CV V 172 1 Young Zurcher ✓ tooeLl It Trumbo AV F Davis Santos r A� Jordan Reynolds t/ Thiel ✓ Coody FAYETTEVII�C, E THE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL NNE 59 2001 A meeting of the Fayetteville City Council will be held on June 5, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain, Fayetteville, Arkansas. A. CONSENT 1. APPROVAL OF THE MINUTES: Approval of the minutes from April 17 and May 1 , 2001 . � 1 2. POLICE PHYSICAL FITNESS POLICY: A resolution adopting a revision to the Police Departments Physical Fitness Policy. 3. COPS FEDERAL GRANT: A resolution accepting the $225,000 COPS Universal Hiring Program Federal Grant and approval of a budget adjustment in the amount of �Q I $37,617.00 from Use of Fund Balance. 4. INTERLOCAL AGREEMENT: A resolution approving an interlocal agreement � D Q � between the City of Fayetteville and the City of Johnson for the installation and ownership of a traffic signal at Wilkerson and Joyce. 5. SIDEWALKS AND TRAILS COMMITTEE: A resolution establishing an advisory p committee to be known as the Sidewalks and Trails Advisory Committee, setting forth the selection process for membership and the responsibilities of the Sidewalks and Trails Committee. 6. SAGE HOUSE: A resolution approving a long term lease with Economic Opportunity 1 0 Agency of Washington Co. Inc. for Sage House. 7, COX COMMUNICATION: A resolution approving an amendment to the present franchise agreement with Cox Communication to release them from their obligation to carry a Little Rock, Arkansas, network affiliate broadcast station. I 8, PARKING DECK: A resolution 'approving Amendment No. 2 in the amount of $ 12,000 to the contract with Garver - Engineers for additional geotechnical study regarding the proposed parking deck for the downtown area. 9. ARKANSAS BUSINESS TECHNOLOGY PARK: A resolution approving a grant l \ application for assistance from the Economic Development of Arkansas Fund. 113 WEST MOUNTAIN 72701 501521-T700 FAX 501575-8257 B. OLD BUSINESS 1. VV/TREE PROTECTION AND PRESERVATION: An ordinance amending the Tree I Protection and Preservation Ordinance to allow for a variance, reduction or alteration ' } 3 in the requirements of the Tree Preservation Ordinance. The ordinance was left on the V I /sseecond reading as amended at the May 15, 2000 meeting. 2. ✓✓V HMR TAX: An ordinance amending § 35.20 of the Code of Fayetteville to add delis, drive-in restaurants, carry-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list of businesses c llecting the city's HMR Tax. The ordinance was left on the first reading as amended at the May 15, 2001 meeting. 4 PARKS HMR TAX: An ordinance amending § 35 .31 of the Code of Fayetteville to �� add delis, drive-in restaurants, cavy-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list ofbusinesses collecting the city's HMR Tax. The ordinance was left on the first reading as amended V\ at the May 15, 2001 meeting. SPECIAL ELECTION: An ordinance calling and setting a date for a special election for the adoption or rejection of ordinances enlarging the definition of what type of business and what type of gross receipts or proceeds would be subject to the Hotel, Motel, and Restaurant Tax and the Parks Hotel, Motel, and Restaurant Tax. The An Aw�� ordinance was tabled at the May 15, 2001 meeting. C. . N71IMPACT SINESS FEES: A resolution approving a contract with Duncan and Associates to conduct Phase 2 of the Development Impact Fee Study for water, wastewater treatment and collection, roads, and parks. 2. �/�t/AD 01-1.00: An ordinance approving an amendment to Chapter 171 "Streets and vJ Sidewalks", Section 171 . 13 "Width ofDrivewayApproachs" and Chapter 172 "Parking and Loading", Section 172.01 "Parking Lot Entrances" of the Unified Development f �\� Ordinance to change the width of a curb cut allowed for commercial driveways and provide for a minium curb radius. 3.✓1/ OLL-OFF TRUCK: An ordinance approving a bid waiver for the purchase of used diesel powered roll-off truck to be utilized by the Fayetteville Solid Waste Division. 4. HENDRICKS SEWER SERVICE: Consideration of a request to provide sewer O� service outside of the City Limits. " a7 FAYETTEVIOLE • THE CITY OF FAYETTEVILLE, ARKANSAS FINAL AGENDA CITY COUNCIL NNE 512001 A meeting of the Fayetteville City Council will be held on June 5, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain, Fayetteville, Arkansas. A. CONSENT 1 . APPROVAL OF THE MINUTES: Approval of the minutes from April 17 and May 1 , 2001 . 2. POLICE PHYSICAL FITNESS POLICY: A resolution adopting a revision to the Police Department's Physical Fitness Policy. 3, COPS FEDERAL GRANT: A resolution accepting the $225,000 COPS Universal PHiring Program Federal Grant and approval of a budget adjustment in the amount of DS $37,617.00 from Use of Fund Balance. / 4. INTERLOCAL AGREEMENT: A resolution approving an interlocal agreement between the City of Fayetteville and the City of Johnson for the installation and ownership of a traffic signal at Wilkerson and Joyce. 5. SIDEWALKS AND TRAILS COMMITTEE: A resolution establishing an advisory committee to be known as the Sidewalks and Trails Advisory Committee, setting forth the selection process for membership and the responsibilities of the Sidewalks and Trails Committee. 6. SAGE HOUSE: A resolution approving a long term lease with Economic Opportunity Agency of Washington Co. Inc. for Sage House. 7, COX COMMUNICATION: A resolution approving an amendment to the present franchise agreement with Cox Communication to release them from their obligation to carry a Little Rock, Arkansas, network affiliate broadcast station. 8. PARKING DECK: A resolution approving Amendment No. 2 in the amount of $ 12,000 to the contract with Garver Engineers for additional geotechnical study regarding the proposed parking deck for the downtown area. 9. ARKANSAS BUSINESS TECHNOLOGY PARK: A resolution approving a grant application for assistance from the Economic Development of Arkansas Fund. 113 WEST MOUNTAIN 72701 501521-7700 FAX 501575-8257 B. OLD BUSINESS 1. TREE PROTECTION AND PRESERVATION: An ordinance amending the Tree n( 55 Protection and Preservation Ordinance to allow for a variance, reduction or alteration I j in the requirements of the Tree Preservation Ordinance. The ordinance was left on the second reading as amended at the May 15, 2000 meeting. 2. HMR TAX: An ordinance amending § 35.20 of the Code of Fayetteville to add delis, drive-in restaurants, carry-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list of businesses collecting the city's HMR Tax. The ordinance was left on the first reading as amended P% at the May 15, 2001 meeting. 3. PARKS HMR TAX: An ordinance amending § 35 .31 of the Code of Fayetteville to add delis, drive-in restaurants, carry-out restaurants, concession stands, convenience stores, grocery store restaurants, caterers and similar businesses to the list ofbusinesses collecting the city's HMR Tax. The ordinance was left on the first reading as amended at the May 15, 2001 meeting. 4. SPECIAL ELECTION: An ordinance calling and setting a date for a special election for the adoption or rejection of ordinances enlarging the definition of what type of business and what type of gross receipts or proceeds would be subject to the Hotel, Motel, and Restaurant Tax and the Parks Hotel, Motel, and Restaurant Tax. The ordinance was tabled at the May 15, 2001 meeting. IC. NEW BUSINESS 1 . IMPACT FEES: A resolution approving a contract with Duncan and Associates to conduct Phase 2 of the Development Impact Fee Study for water, wastewater treatment /I and collection, roads, and parks. T2. AD O1-1 .00: An ordinance approving an amendment to Chapter 171 "Streets and Sidewalks", Section 171 . 13 "Width of DrivewayApproachs" and Chapter 172 "Parking and Loading", Section 172.01 "Parking Lot Entrances" of the Unified Development Ordinance to change the width of a curb cut allowed for commercial driveways and 1— provide for a minium curb radius. 3. ROLL-OFF TRUCK: An ordinance approving a bid waiver for the purchase of a used diesel powered roll-off truck to be utilized by the Fayetteville Solid Waste Division. �sS 4. HENDRICKS SEWER SERVICE: Consideration of a request to provide sewer service outside of the City Limits. a oV P� MINUTES OF A MEETING OF THE FAYETTEVILLE CITY COUNCIL APRIL 17, 2001 A meeting of the Fayetteville City Council was held on April 17, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT : Mayor Coody, Aldermen Jordan, Reynolds, Thiel, Young, Zurcher, Trumbo, Davis, Santos, City Attorney Kit Williams, City Clerk Heather Woodruff, Staff, Press, and Audience. CONSENT APPROVAL OF THE MINUTES: Approval of the minutes from the April 3, 2001 meeting. LSD 01-5.00: A resolution approving a waiver of right-of-way dedication for 15' Street as required by Section 166. 10(c) for LSD 01 -5 .00 submitted by McClelland Consulting Engineers, Inc. on behalf of Randy Salsbury of Allied Storage, LTD for property located at 85 W. 15' Street. RESOLUTION 49-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. TCA CABLE: A resolution approving an extension with TCA CablePartners to temporarily operate the cable communication system until June 30, 2001 . RESOLUTION 50-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. UNIFORMS : A resolution awarding a contract with Cintas Corporation for Bid No. 01 -25 to provide uniforms. RESOLUTION 51-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. DOUBLE SPRINGS RD: A resolution approving a city-utility agreement between the City of Fayetteville, and Arkansas Western Gas Co. for the necessary adjustments for the Double Springs Road Bridge over Owl Creek. RESOLUTION 52-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. DOUBLE SPRING BRIDGE REPLACEMENT: A resolution approving funding for a bridge replacement on Double Springs Road in the amount of $229,537; and approval of a budget adjustment. RESOLUTION 53-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. AD 01-13.00: A resolution adopting the drainage study for floodplain and floodway delineation for Mud Creek Tributary at CMN Business Park, Phase 11, prepared by Holloway, Updike and Bellen, Inc. for Milholland Company, dated September 2000. RESOL UTION 54-01 AS RECORDED IN THE OFFICE THE CITY CLERK. Alderman Davis moved to approve the Consent Agenda. Alderman Jordan seconded the motion. Upon roll call the motion carried unanimously. OLD BUSINESS GRADING AND DRAINAGE : An ordinance amending the City's Grading and Drainage Ordinance. This ordinance was tabled on the second reading at the January 2, 2001 City Council meeting. Alderman Young moved to bring the item off the table and to consider it. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Alderman Young moved to suspend the rules and go to the third and final reading. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Alderman Young stated the item they were discussing under Old Business was the original draft the Ordinance Review Committee and Ad Hoc Committee had come up with. The items under New Business were new and revised from the Ordinance Review Committee. Alderman Davis stated he had given the revised ordinance to members of the Ad Hoc Committee. They did not see a problem with the new ordinance. He suggested they let this ordinance go and that they discuss the new proposals. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance failed unanimously. ORDINANCE FAILED. NEW BUSINESS PHYSICAL ALTERATION OF LAND: An ordinance amending § 169.03 of the Code of Fayetteville, Physical Alteration of Land. Mr. Williams read the ordinance for the first time. Alderman Davis asked that they not move through all three readings tonight to give the public more time. Council Minutes April 17, 2001 Page 3 Mr. Gary Lowery, an area resident, suggested that when the city amended its ordinances that they include any other permits required. They should make sure that applicant had all the proper permits and necessary items that were required, not only for city, but the State and U.S. agencies. Alderman Young stated the next ordinance on the agenda included some of those concerns. The Grading and Drainage ordinances were tied together. If they passed this, there was a requirement to show proof of the State permits. ORDINANCE WAS LEFT ON THE FIRST READING. STORMWATER AND DRAINAGE : An ordinance amending § 170.03 of the Code of Fayetteville, Stormwater Management, Drainage and Erosion Control. Mr. Williams read the ordinance for the first time. Alderman Davis stated there had been a couple of comments from the Ad Hoc Committee members. Their concerns had been the word "shall'. He suggested they consider the word, "may". The City Engineer would be in a better position to determine if the Stop Work Order should be issued at the time of infraction based on the circumstances better than the City Council. It should be left to a professional judgement on whether or not a work order needed to be issued. He noted Section CA. did not mention anything about time. Mr. Beavers, City Engineer, stated he personally liked "may" so that he could counsel with the Public Works Director who might know of circumstances that he did not. The Council needed to determine what their intention was. There would not be any physical danger to any adjoining property if they used the word "may". Engineers would not issue a permit if there was. He added, he felt they were only talking about one to two percent of their projects. Alderman Young asked if there were any grace days. Mr. Beavers stated there were fifteen days. Alderman Thiel stated she felt they should leave the word "shall' in there because it was more of a directive than "may." Alderman Young stated if they put "may" in there they would be relying upon good judgement. But, if that did not happen, then what recourse did the public have? Mr. Beavers stated from his understanding the intent was to limit the number of submittals they got from the engineers. They were not talking about protecting adjacent property owners or citizens. Engineering would not issue the permits to being with if they felt that there was any danger to any Council Minutes April 17, 2001 Page 4 property owner or citizen. They were talking about a small percentage of engineers that took multiple reviews to get their plans approved. Alderman Young stated that while they were reviewing plans under this ordinance, they were out there grading under the other ordinance. That was the danger to the public. Alderman Davis stated he felt that they should leave it to the City Engineer's professional judgment. The engineers would know the situation and the Council did not. Mr. Beavers stated he thought it would be prudent if they were to combine the grading the drainage ordinances as part of their Phase II Stormwater Program, which they had to have by the fall of 2003 . They would be starting work on it at the end of this year or the first of next year. They would be having public meetings. He added, he felt there would be many changes through this process. Mr. Richard Maynard, an area resident and member of Ad Hoc Committee, stated the intent of the ordinance was never the stop work order. The intent was to cut down on the number of submittals. The stop work order was only there to get the message out that they could not use phased permitting to get their grading done and to take their time on their drainage plans. It was not intended to stop someone' s work, it was to cut the number of submittals and that was all. Mr. Gary Lowery, an area resident, stated they needed to make sure that people who purchased a home knew exactly where their responsibility ended and the city' s began. His subdivision had problems with a retention pond. He added he preferred the use of the word "shall". Ms. Kay DuVal, an area resident and Ad Hoc Committee member, stated she had also worked on the revisions. She suggested the stronger the law was the less work there would be to do two years from now. She had asked for the word, "shall" all along. They did not know what was coming in development. The clearer and more exact the wording was the less room there was for confusion and misinterpretation. Ms. Coleen Gaston, an area resident (attorney), encouraged the council to delete the language, "the addition of grading, clearing, or filling" from the exception. In responds to questions, Mr. Williams stated it was his understanding that it had been placed there for home owners who need to clear their property of vines and scrub brush. Mr. Gary Lowery, an area resident, asked when were individuals to know if they needed a permit or if it was the city's responsibility to take care of it. They had problems with drainage all over this city. They needed to take care of them. Who tells who, who needs a permit? Where did he go if he wanted to clean something up. Council Minutes April 17, 2001 Page 5 Mayor Coody replied if it was a city easement, publicly owned, it was the city' s responsibility. If it was on private property, the city was very reluctant to spend public money on private property. Citizens had a responsibility to try and keep drainage easements and ways open. THE ORDINANCE WAS LEFT ON THE FIRST READING. COMMUNITY DEVELOPMENT BLOCK GRANT: A resolution accepting the 2001 Community Development Block Grant in the amount of$665,000.00. The mayor congratulated Ms. Yolanda Fields for her work in acquiring the grant. There was no further discussion. Alderman Santos moved to approve the resolution. Alderman Jordan seconded the motion. Upon roll call the motion carried unanimously. RESOL UTION 55-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. RZA O1-1 .00: An ordinance approving annexation request RZA 01 - 1 .00 as submitted by Michele Harrington on behalf of TMC and Associates for property located east of Sunshine Road and north of Highway 16. The property is in the City Planning Area and contains approximately 40 acres. The request is to annex subject property into the City of Fayetteville. Mr. Williams read the ordinance for the first time. Alderman Reynolds stated the response time from the Garland Avenue Fire Station was seven minutes. In the future there would be a station at Rupple Road and Wedington. Alderman Jordan asked if they were going to have good fire. He noted the city required the water to be on and the fire hydrants to be placed before construction could begin on the houses. Wayne Krug, applicant representative, stated the Planning Commission had voted 9-0 to approve the request. Alderman Santos stated there would be an increase in responsibility for on every department. There would be some impact on the city. He commented it would be nice to have impact fees to pay for some of the impacts. Alderman Jordan stated what concerned him was a lot of large developments going in when the city was already under a lot of stress for city services. Large developments did concern him. Alderman Young stated he assumed that it would be left the first reading because he was still looking for a sewer plant report. Council Minutes April 17, 2001 Page 6 Alderman Thiel stated at the agenda meeting the city attorney said that they should have an acknowledgment from developers stating that the city could not guarantee sewer services. Mr. Williams, City Attorney, stated he had prepared a waiver form for everyone to sign who came for an annexation, rezoning or whatever. The applicant would sign a waiver stating that they had received a copy of the notice that the city's sewer plant was at or near capacity and that the city could not guarantee a sewer hook up until a new sewer plant was built. Mr. Bunn stated he would have the sewer report for their next meeting. Last years report stated that the city had two and half years remaining, if they continued to develop at the same rate. He noted the number of housing units and the number of apartment units had not been as high as in the past. He felt confident in saying there was probably a year and half at least left. He added he felt confident that the city would be able to provide this development with sewer. Gary Lowery, an area resident, expressed concern about annexing in a lot of Large Scale Developments and Subdivisions because at the current time the City was not able to fulfill all of its obligations to the current citizens that were already inside the city limits. He added, in his opinion the city was not able to provide adequate street maintenance and upkeep of the streets, let alone the curbs, gutters and sidewalks. A lot of people were asking if the city kept expanding and growing and didn't have the funds to provide the proper city services to all the residents then why did they keep expanding. Why did the city keep growing? He answered, because people kept coming here that's number one. Number two the city was worried about what they were going to do and how they were going to increase the budget. We have less than 66,000 people in the City of Fayetteville. A community that is about the same size as the City of Fayetteville had an annual budget of$46 million dollars. Fayetteville's budget was $85 million. That same city had 634 employees. Fayetteville has 636 employees. They are able not only to sweep the streets but to plow the streets, if necessary. They're able to go out and do what needs to be done repairing the road, patching the cracks, fixing the sidewalks do what's necessary. Fayetteville was not able to enforce all of its codes and ordinances. Fayetteville was not able to produce the kind of work ethic that there needed to be in a city of this size. One of them was our garbage collection services. They were going to have a lot more of these purple garbage sitting out there in these streets. First of all, Fayetteville was violating a State law. The State law says you cannot have these bags out there on the street. That Act 93 of the State law. The State law says that these garbage containers must be waterproof and have a close fitting lid or cover to keep insects out. These garbage bags don't have a lid or cover. Ms. Lou Weiss, an area resident, agreed with that gentleman wholeheartedly. Thank you. Ms. Barbara Momnan, an area resident, asked if this was a speculative rezoning or annexation? Is it the owner that' s asking for this to be done. For the area to be annexed and rezoned or it because the owner wants to sell the land to somebody who wants a particular project out there. Council Minutes April 17, 2001 Page 7 Mr.Krug stated that in this development there are project engineer and the project engineers have already met with both Kim Rogers at the Parks Department and Kim Hesse to survey the project. I guess the answer to questions is once the land is rezoned the development will begin. It is not something that's going to be used down the road. The developer is well aware of the current limitations on the sewer system and they'll willing to proceed with this. Barbara stated that was not the answer to her question. She asked is the owner, as of this moment in time, the developer?". The person who is going to be the owner after the annexation. Alderman Young asked if the developer that was going to develop this was going to buy the property contingent upon rezoning or annexation? Mr. Krug answered that' s correct. Alderman Davis stated he thought Bridgeport, which adjoined this property, was pretty well sold out. He added, there must be a market for this type of development in the area, if most of the other lots were sold. Mr. Krug stated that was correct and asked that the Council if they would consider moving this one to the third reading tonight subject to or contingent upon the signing of the waiver which the developer's were completely aware of. Alderman Davis replied it was standard procedure to have at least two meetings when considering an annexation and rezoning. He would prefer to hold off tonight and leave it on the first reading in order to give the people in that area an opportunity to come up here and address this at a later time. Alderman Zurcher stated the governor and several state agencies recently did a poll in urban areas in Arkansas asking citizens what they were really concerned about in urban areas. The number one concern was sprawl. The way cities were sprawling out and were losing the country sides. We're losing our natural areas because of this growth on the edges of town. He stated he was willing to keep a open mind and to listen to the discussion and have another meeting on this but he had to say his initial reaction to this was that he did not think that would be their best investment. He didn't know if it would be entirely responsible looking at all the infrastructure costs that the city will have to take on if they annexed this land. Alderman Thiel stated according to the reports from the various city departments it didn't look like there would be that many additional infrastructure costs. In response to questions, Mr Krug stated the cost of constructing streets and water and sewer came with development of the subdivision. Council Minutes April 17, 2001 Page 8 Alderman Zurcher replied he didn't mean the streets inside this development. Alderman Thiel stated Wedington had already been widen. She stated she had reservations about taking more property into the city when they were having difficulty servicing what we had. However, because of where the property was located and the proximity to the future wastewater treatment plant and the Boys and Girls Club she stated she thought it was a plus. She noted the property adjoined developments that had a rather large park. They needed to consider that this development could bring in a lot of greenspace money or more greenspace to adjoin the Red Oak Park. She stated she was not opposed to in-fill but they were seeing more and more development on hillsides, on the little lots that are left which she felt could create major drainage and flooding problems down below. She added that when this development actually started the may have some kind of an impact fee in place. Alderman Young stated the specific question Randy has raised was urban sprawl. Every time they started talking about water and sewer and roads and you say we just don't have enough money then you need to look and say maybe development isn't paying. That's the bottom line. If we continuously have these problems that's possibly where to start. But as far as urban sprawl. That's a dilemma. My suspension is the federal government is going to address that in the future years. What we are doing here now hopefully will address it with impact fees. At least that's a start. This a dilemma that you get into whenever somebody requests annexation or even just a rezoning or even aninfill. Its all balled together and you look at overall you just say well if all this development is paying its own ways. If all these new people are contributing then why are we having these budget constraints down the road. Alderman Jordan stated that they could not continue to string out and get as far as Goshen. Some where down the line we've got to learn to fix what we have, what is broken, and then move on with it. Alderman Santos stated development never pays for itself. It's a burden on the rest of us but, if the city did not annex and enforce the city' s regulations out there would be substandard developments, a ring of slums around Fayetteville. The city needed to come up with a better system to make development pay for itself. THE ORDINANCE AS LEFT ON THE FIRST READING. RZ O1 -6.00: An ordinance approving rezoning request RZ O1 -6.00 submitted by Michele Harrington on behalf of TMC and Associates for property located east of Sunshine Road and north of Highway 16. The property is zoned A- 1 , Agricultural, and contains approximately 40 acres. The request is to rezone to R- 1 , Low Density Residential. Mr. Williams read the ordinance for the first time. Council Minutes April 17, 2001 Page 9 Alderman Santos stated this rezoning went with the annexation and that it should also be left on the first reading. Alderman Zurcher stated he did not know if there was a precedent or not but seemed that if they were really worried about bad development out in the county then why didn't the city just go ahead and annexation all of the growth area and just leave it agricultural. Looking at these two proposals I'd be all for leaving it agricultural it's a benefit to the city that way. Len Williamson, TMC & Associates, stated he was the developer desiring to purchase the property. He explained the property adjoined Bridgeport Subdivision. The property literally looked like a bomb with off on it. He stated he knew developers were not well received, but this property needed to be cleaned up. He stated he had developed in Elkins, Fayetteville, and Springdale. Because this property was probably messier than any property he had ever seen. This was a beautiful piece of property. Fayetteville sewer runs right across the heart of the property. Fayetteville services have already been annexed onto the property. It was in a draw with nice trees and greenery. They knew that there was planned growth out there as it related to that infrastructure. They were laying right next to a nice subdivision, Bridgeport and the sewer already on the property it just seems unreasonable to let if fall into the county and be developed with septic tanks with Fayetteville sewer running right across the property. THE ORDINANCE WAS LEFT ON THE FIRST READING. AD O1-12.00: An ordinance approving an amendment to Chapter 161 , Zoning, of the Unified Development Ordinance to include additional multi-family zoning districts, RMF-6, RMF- 12, and RMF- 18. Mr. Conklin, Planning Director, stated that last summer during the General Plan update they talked about some of the problems the city was having between R- 1 , Low-density Residential, Single Family to the Multi-Family Residence, R-2 which allows 24 units per acre. Some the situations we've had when you do change your zoning from R- 1 to R-2 it jumps from 4 units to the 24. In the past we've had developers submit to the city a Bill of Assurance to reduce their density down to more the level that they plan to actual developing. Typically, that was around 8 to 12 units per acre. The staff brought forth to the Planning Commission, the Planning Commission has recommended to the City Council three new zoning districts to allow 6 units per acre for multi-family, 12 units per acre, and 18 units per acre. The bulk in density area calculations and ratios are the same as R-2. Basically, changes the density and are using the same setback standards and other standards within the zoning districts. I think this going to have a positive impact on the city. Its going to allow staff when meeting with developers to actually plan a better fit for their zoning instead of 4 units per acre to 24. We'll be able to actually discuss with them what they plan on bring forth to the Planning Commission and better fit density for their project Council Minutes April 17, 2001 Page 10 Mr. Conklin stated that Planning was not changing anyone' s zoning classification. These were three new zoning districts so when they did bring zoning requests forward they would be able to apply for one of these three new zoning districts. The Council had adopted the General Plan on December 19'". This was one of the first ordinances they were bring forward to implement the General Plan. Alderman Davis ask Mr. Conklin asked if Bills of Assurances approved in the past would be reconsidered for the new zoning districts. Mr. Conklin replied that if this ordinances was passed the Planning Division would not go back and change what the City Council done in the pass. They would continue to enforce the Bill of Assurances. In response to questions from Alderman Davis, Mr. Conklin stated that the city would still have an R-2 zoning district, which was 24 units per acre. This amendment would basically setup three additional multi-family zoning districts. Now there would be more options. Alderman Santos stated this was a great idea. Alderman Santos moved to suspend the rules and move to the third and final reading. Alderman Jordan seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the second time. Alderman Davis moved to suspend the rules and go to the third and final reading. Alderman Jordan seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Gary Lowery, and area resident, congratulated Tim Conklin on the endeavor and the city staff for bring the item forward. In his opinion this was an exceptional idea and exceptional plan. It allowed a buffer between the lower site properties which are in the R- 1 district all the way up to R-24 which is apartment complex. This will be a great buffer from the lower density type establishments to the high density and congratulated the city and the staff for doing so. Richard Maynard, an area resident, stated he supported the amendment. He added it would keep everybody honest. Also replaces a Bill of Assurance and certainly gave the Council more options. There's always a but with everything. He reminded the Council it did not ease their concerns. He reminded the council that zoning was a social contract made with the residents. And yes what the city giveth, the city can taketh a way. The citizens needed to be included. If the city does things that just because of this that we will just accept any rezoning that's just not going to be the case. Council Minutes April 17, 2001 Page 11 Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4307 AS RECORDED IN THE OFFICE OF THE CITY CLERK. RULES OF ORDER: A resolution amending the Rules of Order and Procedures of the Fayetteville Mayor/City Council by adding paragraph D.6. to suspend or waive by two-thirds vote of the membership of the City Council including the Mayor. Therefore a motion to suspend the rules requires six affinnative votes to pass. City Attorney Williams stated often times the council moved to suspend the rules and he had wondered if the mayor would have a vote in that. He had called an Municipal League attorney and received some information. Then he had looked at the statutes. The reason he wanted to do it at this point in time in case the mayor ever wanted to vote he wanted the rules to be set and agreed upon now, when it's not controversial one-way or the other whether the mayor would vote yes or no or choose not to vote. He thought that this should be clear. There was not a direct case specifically on point that said that the mayor had the power. However, the statute that granted, that entitled the organization of the city council, subsection b says "the mayor shall have a vote when his vote is needed to pass any ordinance, by-law, resolution, order or motion." And in his opinion a motion to suspend the rules would be one of those motions. There were a couple exceptions to that which were dealing with the constitutional issues which this would not effect. In other words, the mayor could not vote for an emergency clause. That's a constitutional issue and also the mayor could not vote if there had been an initiated acts by the citizens. The mayor could not vote to appeal the initiated act. But apart from that he thought the mayor could and so he presented this just to get this issue clearly established in case it ever comes or be a time where the mayor would want to suspend to the rules. Alderman Young asked if Mayor Coody had brought this forward. City Attorney Williams interrupted and stated he had brought this item forward. Alderman Young ask the Mayor if he was in favor of it and then requested to proceed on to the next issue. Mayor Coody responded by stating he was neutral and ambivalent and deferred to the wish of the Council. Alderman Young stated that as Kit mention there was no case law on this and Arkansas Supreme Court had not ruled on this. Mr. Williams was using Attorney General opinions on other issue and trying to apply it to this. The only purpose for this proposal that he would see was to reduce the public opportunity to speak to issue before this Council. If the Mayor wanted to vote on these issues Council Minutes April 17, 2001 Page 12 then he suggested the mayor go with these opinions. And if somebody didn't like the way he voted, then they could file a lawsuit, and take it to Arkansas Supreme Court and have a decision made. But don't ask for his blessing to thwart the ability if the public to speak to this Council. Not only to speak to it, but also the citizens out there to have the right their representative here to vote and if the mayor wanted to suspend the rules and go through all three readings in one night when someone might not be there then that denies the voters their right to have their elected officials here to vote this issue. He reiterated that he was opposed to this. Alderman Davis agreed with Alderman Young. He stated that by suspending the rules it limited what the mayor was voted by the citizens to officiate what the council did in the chambers. And by doing this gave the mayor the opportunity to railroad things through which he don't think was Mayor Coody's intention. It could be perceived by the public that that could happen. He did not think the council wanted that perception out there but that could be the case. He added, he thought that the council needed to make sure that citizens had the opportunity to come up and talk to the Council on any given issue and not to have the perception that he could on any given night have three readings on something because the council passed this type of ordinance. He stated in his opinion if the council didn't have two-thirds out of the eight there was no reason to put the mayor in the position to have to make that decisive vote, to give the appearance that they were trying to hurry something on through. Mr. Williams stated the council was allowed to adopted rules and procedure as along as they were not in violation of the State law. The State law on § 14-55-202 that: "All bylaws and the ordinances of a general or prudent nature shall be fully and distinctly read on three different dates unless two- thirds of the members composing the municipal council shall dispense with the rules." So what does it mean, "members of the municipal council?" There has not been a case directly interpreting that to be the mayor. But the next section, the next statute, that means that the Supreme Court interpreted the language, "the whole number of members elected to the council" to mean that the mayor was a member of the council so that that particular council could do it. To him the same thing as members composing the municipal council. Alderman Young stated there was also a rule that the mayor was an a ex-officio member only. Mr. Williams replied, but not for voting purpose. For voting purposes the underlying statute says when his vote, "the mayor shall have a vote when his vote is needed to pass any ordinance, bylaw, resolution, order or motion." And so regardless of whether or not this actually is apart of our Rules and Procedures, if it ever came to that and he was not recommending that the mayor vote one way or the other, but by his interpretation and the Municipal League's attorney was that the mayor had a vote. Alderman Young stated if the mayor wanted to vote to suspend the rules and go on Mr. Williams research and opinion, okay, but, don't ask the council to put it in their Rules and Procedures. Council Minutes April 17, 2001 Page 13 Mayor Coody stated since this centered around the mayor's office and it was apparently controversial he did not have any interest in pursuing this. He added he would certainly never do anything to thwart public input and try to pass ordinances just to try to keep the public out of the public's business. He requested the item be withdrawn. City attorney stated that it certainly did not have to be passed. It was still going to be the law as he interpreted it. The council had one city attorney and that was him and that was his interpretation. He added that occasionally its been the rule to put something on the agenda when it wasn't put on there in time. Like the last meeting, we had to suspend the rules to place an item on agenda so that we can pass it an emergency situation. So sometimes you need to suspend the rules for those types of situations also. Alderman Jordan stated that even if the council did not passed this, the mayor could still vote on it. Mr. Williams replied , yes. Alderman Jordan stated it has never been done before, but that would be a new practice. Mr. Williams replied the way he read the statutes in the case he thought it was clear that the mayor for purposes of motion to suspend the rules-if his vote was needed to pass and only if it was needed to pass can he then vote. If there were five alderman here and we had a quorum and the mayor was also here and everybody votes to suspend the rules the mayor could at that point vote to suspend the rules and without his vote it would not pass. Alderman Young stated but if it went to the Supreme Court they may not agree with that. Mr. Williams replied they already agreed with it. Alderman Davis replied, no the Supreme Court had not. They have interpreted it with language very similar by the statute but they have not addressed this particular issue. Alderman Young stated the courts may agree that the whole purpose of thing was to have at least six alderman here and that would thwart the public. But you don't know what the Supreme Court's going to do. Alderman Young moved to deny the resolution. Alderman Santos seconded the motion. Upon roll call the motion carried by a vote of 7-1 -0. Zurcher voting nay. RESOL UTION FAILED. Council Minutes April 17, 2001 Page 14 BAUM BASEBALL STADIUM: An ordinance allowing the University of Arkansas to use Fireworks for the annual occasion of the celebration of fireworks night marking the end of the Razorback Baseball Season at Baum Stadium. Mr. Williams read the ordinance for the first time. Alderman Davis stated this was something the council always did. It gave them an opportunity to get recognition from the community. So the people will know when the final game was and be out there for the fireworks display. Its always a very nice fireworks display. Mr. Williams stated the normally do an ordinance every year, however, this was an ordinance a permanent ordinance. Alderman Thiel asked if these fireworks made any explosion when they went off in the air. Scott Varady, the associate general counsel at the University, stated generally they do cause some noise, obviously. As Mr. Williams had stated and Mr. Santos pointed out, the purpose for this ordinance was just to grant permission so the council would not have to go through this process everyyear. We just thought it would be more convenient for the Council to approve it in one shot and not have to worry about it from year to year. But they could come back if the council preferred. Alderman Santos stated he had complaints, but they were for the three or four or five football games a year. Alderman Jordan stated he had the same complaints about the noise at the stadium when a rocket for every point that they scored. He added if they did not have a very good team they won't score very much. Alderman Santos stated the cannons had been taken out. Scott Varady stated the fireworks that have been used at the football games have been fired on University property, therefore, was State property and they were not technically obligated to request permission from the city. They did not do them last year because of the ongoing renovation and construction to the stadium. Alderman Reynolds stated baseball to him was a youth program. His family comes in for the celebration because they did baseball more than they did football. This was once a year and he bet here would be 10,000 children who came to see this. Alderman Trumbo moved to suspend the rules and move to the second reading. Alderman Council Minutes April 17, 2001 Page 15 Davis seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the second time. Alderman Trumbo made a motion to suspend the rules and go to the third and final reading of the ordinance. Alderman Davis seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Alderman Jordan asked if this was going to be at Baum Stadium. Mr. Varady stated that technically the fireworks were launched across the street from Baum Stadium on the southwest comer of privately owned property. Alderman Jordan asks if the council passed this, then it can be displayed somewhere else or somewhere else on campus. Alderman Santos said it was for the baseball field. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Mr. Williams stated we need to have a vote a separate vote on the last fireworks ordinance for the emergency clause. Mayor Coody called for the vote on the emergency clause. Upon roll call the clause carried unanimously. ORDINANCE 4308 AS RECORDED IN THE OFFICE OF THE CITY CLERK. J.D. CHINA: An appeal of Planning Commission decision for Large Scale Development LSD 00- 36, J .D. China. Alderman Santos stated he had decided to honor the request for this appeal because he wanted to see if maybe we could do it better. He had heard a lot last year about College Avenue and approving the appearance of College Avenue. The city had a similar commercial strip developing on west Sixth Avenue and he hated to see a mayor twenty years from now saying we got to do something about Sixth Street when we had this opportunity and let it slip. He wanted to see if there was any room for negotiation. He suggested a rezoning for the back lot to allow them to move the restaurant back to save some of the trees and save some of the existing appearance of Sixth Street. That was the only reason he was appealing. There were questions about the rare landmark trees. He was having a hard Council Minutes April 17, 2001 Page 16 time with this plat. He asked the petitioners to explain their position and if they can do any better. Andy Feinstein, Engineering Design Associates, stated he was the project manager and principle designer for this project. They had spent approximately twelve to thirteen months trying to prepare this plan to satisfy the current city ordinances. As far as the tree preservation they had done several iterations on site design. They had changed the building shape and size. They had looked carefully at trying to maintain suitable grades through out the project area to comply with ADA requirements. He felt that they had prepared an adequate plan to satisfy all city's requirements and their clients needs. They had designed a facility which was approximately 6,000 square feet with 191 seats for their patrons. A conditional use for additional parking had been granted to allow a total of 58 parking spaces, approximately four patrons per parking space, which was not considered excessive for this type of facility. They had some rare trees located toward the front of the lot and large trees scattered towards the middle and the back. When they realized that they were going to have difficulty complying with the preservation requirements their client agreed to purchase an additional portion of land to maintain an intact tree canopy. They've agreed to provide an easement on that area to satisfy the tree ordinance. They were very confused as to why they were here tonight. Alderman Trumbo stated he knew that they had gone above and beyond. He stated he was not going to vote for approving this appeal because he thought it was a very nice development. They had been very cognizant of the tree and the preservation. Mr. Feinstein stated that there were no plans to resubmit this with any changes. They were at a make or breakpoint here tonight as to whether the client had the resources to proceed with an entire redesign and to incur the extra costs that may come in to accommodate the suggested changes. In response to questions from Alderman Davis, Mr. Feinstein stated they were split zoned in there and they complied with both the 25% on the residential portion and 15% on the commercial portion. They were in excess of what would be required for both of tracts. Alderman Davis stated he applaud them for going in to make sure that they followed what the ordinance said, supposedly, by making sure they had adequate canopy. He was not going to vote for the appeal either. Alderman Young questioned tree easement, did they know what that was? Tim Conklin replied the Tree and Landscape Administrator had put together language and worked with Planning staff and basically what they were trying to do was to make sure this developer understood that this tree preservation was going to preserved to perpetuity. This was a tree preservation plan and these the trees were going to be saved. That future owners will know that these trees cannot be removed in the future. Council Minutes April 17, 2001 Page 17 Alderman Young stated that was his concern. It goes with the land and that it be looked at and was it legal to do that. Mr. Williams stated that when this property was rezoned there was a Bill of Assurance that was passed with this presented by the owner of the land to the City Council at that point in time in order to secure or help secure the rezoning to commercial. And that Bill of Assurance ran with the land and guarantee the preservation of certain values and amenities in the community and binds themselves and their successors and assign to save 60% of all the trees on the land. Later the owner and the buyer of this property sued each other in court to remove this Bill of Assurance. And the judge determined the City was not a party to that suit. But the judge determined that that Bill of Assurance should be declared null and void and held for not leaving the aforesaid property subject to the tree protection and preservation ordinance of the City of Fayetteville, Arkansas. They might have what they think was some sort of forever tree easement, the language in this Bill of Assurance done on September 12, 1990 where it said that the preservation of 60% of the all the existing trees with a caliper of 8" or more would be done had been held null and void. He could not guarantee what might happen in the future to any other legal documents that they have supposedly guaranteed trees on that other lot. Alderman Young stated the reason he was raising this issue was mainly for the people that were considering revising the tree ordinance because he thought they had been discussing tree easements and some other mechanisms. Every time they've said that he has been wondering what it was they were talking about. Now if its legal fine. But he had never have scooped it out but it may or may not be a legal document that will stand in the courts. Mr. Williams stated there was a local chancellor that held that, in a very friendly lawsuit between the owner and buyer of the property. He took it away. He said it no longer had any force and effect. He noted that one of the reasons that the judge gave for that was that in his order and he quoted that "the aforesaid property remains subject to any tree protection and preservation ordinance implemented by the City of Fayetteville, Arkansas." And by that he meant not the big lot but the commercially zoned lot which he thought under this plan was going to be fully graded and every tree would be gone in that lot. Alderman Young stated he personally could understand what the judge was doing but he thought a tree easement might be a little more difficult for a judge to nullify. Alderman Young ask if the lots were combined then. Or will they be. Mr. Feinstein replied that actually the lot was a sing lot which was split zoned. They were never separate. There was a lot split approved by this Council sometime in the past. However, it was never consummated or recorded. Council Minutes April 17, 2001 Page 18 Alderman Young asked was this all one piece of property. Mr. Feinstein replied yes. Alderman Young replied which meant that the back portion was part of the tree preservation plan which was locked in then. In response to questions from Alderman Jordan, Mr. Feinstein stated they were covered by the same deed. If they had opted to purchase the rear lot, then they would have consummated the lot split. Alderman Jordan stated basically they were getting their 20% by combining the two lots. Mr. Williams asked how do they have one lot with two different zonings. Mr. Conklin explained they had many situations in the community where people owned a single piece of property with more than one zoning designation. Alderman Thiel suggested some kind of a deed with an easement just for the conservation of trees in that particular lot. Conklin stated that staff along with the landscape administrator had a standard type conservation easement that was recorded over at the county courthouse that removed the development rights off of land by legal description to save or preservation the trees. He would have to defer to the city attorney, but the landscape administrator and city planner were trying to make sure that future developers and owners of property were put on notice that these were tree preservation areas that could not be developed. Mr. Williams stated just like other easements, that easement would have to run in favor. They would have to own that easement as a city so that they will be able to then enforce it. Alderman Santos stated as it stood now, the applicant had approval for that lot split. They could sell that back lot again. Somebody could develop that back lot as R-2. It would be very easy for them to say that couldn't reasonably preserve any trees on there or certainly wouldn't have to worry about preserving any landmark trees. Was it feasible for you to develop that front lot and save the landmark trees. It's the same questions they had with the CMN development. The trees must be preserved unless they cannot be preserved. And that's what Ms. Hesse had decided and the Planning Commission agree with her was that you couldn't develop that lot and preserve any trees. So instead you they're going to preserve the trees on the back lot except if a similar case follows as the one Mr.