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HomeMy WebLinkAbout2001-01-02 MinutesMINUTES OF A MEETING OF THE FAYETTEVILLE CITY COUNCIL JANUARY 2, 2001 A meeting of the Fayetteville City Council was held on January 2, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor Dan Coody, Aldermen Reynolds, Thiel, Young, Zurcher, Trumbo, Davis, Santos, and Jordan, City Attorney Jerry Rose, City Clerk Heather Woodruff, Staff, Press and Audience. OATH OF OFFICE Judge Rudy Moore swore in the new Mayor, Aldermen and City Clerk. CONSENT AGENDA APPROVAL OF THE MINUTES Approval of the minutes from the December 5, 2000 City Council meeting. ROLLFORWARD A resolution approving a budget adjustment which will allow for the rollforward of all projects or items in progress which were appropriated in the 2000 budget. The items which are approved will become a part of the 2001 Budget. RESOLUTION 1-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. TRAFFIC SIGNAL A resolution expressing the willingness of the City of Fayetteville to utilize Federal Aid Monies for the signalization of State Highway 112 and Drake Street. RESOLUTION 2-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. Alderman Young moved to approve the resolution. Alderman Santos seconded the motion. Upon roll call the motion carried unanimously. WIRELESS COMMUNICATION * An ordinance approving an amendment to the Wireless Communication Facility Ordinance 4178. The ordinance was left on the second `reading as amended at the December 19, 2000 City Council meeting 000002 City Council Minutes January 2, 2001 Page 2 Alderman Trumbo moved to suspend the rules and move to the third reading. Alderman Young seconded the motion. Upon roll call the motion carried unanimously. Mr. Rose read the ordinance. Mr. Conklin stated this was an ordinance amendment to clarify the section with regard to replacement towers. The intent was to clarify the section to allow tower providers to replace their towers and to leave their current towers up for a certain period of time and replace it as close as technology feasible. Also, during this process they talked about adding into the ordinance sections that dealt with screening of the tower equipment, fencing, colors, height requirements. They had clarified the ongmal height by amending the ordinance stating that the onginal height is the height of the original tower structure and not including antennas. This ordinance only applied to guide towers. It allowed guide towers that were less than thirty-six inches wide to be replaced with a guide tower up to thirty-six inches wide. The height has been clarified. This will allow Arkansas Western Gas to replace their existing facility on Rockwood Trail. Alderman Young stated the neighbors had wanted more information. He assumed they had received the information because he had not heard from them. Mr. Conklin stated Arkansas Western Gas had given out a packet of information. They had also held an open house on December 27 for the property owners. Mr. Dangeau, Arkansas Western Gas, stated they had scheduled the meeting, but no one had been able to come because of the weather. They had sent out an informational letter explaining everything that was relevant to the tower, the ordinance and the amendment. They also included photographs. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4285 AS RECORDED IN THE OFFICE OF THE CITY CLERK. GRADING AND DRAINAGE An ordinance approving amendment to the City's Grading and Drainage ordinances. The ordinance was left on the second reading as amended at the December 19, 2000 City Council meeting. Mr Rose stated Ms. Gaston had requested to submit some things in wntmg to them so they could consider amending the proposed ordinance. He had talked to Ms. Gaston and she had requested them to table the ordinance until the following meeting. 0093 nn -s t..%,aa00 City Council Minutes January 2, 2001 Page 3 Alderman Tnunbo asked how it would work procedurally. Alderman Zurcher stated the decision the Committee had made was not without controversy. Alderman Daviis's'tated'th€tliang up appeared to be on the number of submittals. The Committee had been formed to deteimme if grading was allowable or permissible before the drainage calculations were finalized. Everyone on that Committee basically agreed that was okay and not a problem. The problem at this point in time was on the number of submittals and the number of days. He thought they could give the Engineering Department a couple of weeks to see what they felt was workable and doable. Mr. Richard Maynard, an area resident, stated the Committee had been formed to determine if they wanted phased permits or the partial permits at all. It was near unanimous and they decided . it was a good policy for both developers and the City. He did not think that there was any point to sending it back to the Ad Hoc Committee. The Committee had made its decision. Their difference was on what kind of conditions that they wanted to give it out. Did they want to focus on the number of days or on the number of submittals. He hoped the public would accept the idea that phased permitting was a prettygood thing and that they should continue with'it., By their next agenda meeting they would offer them another alternative to whatkind of deadline they wanted. They were going to provide them another way to look at this. The length of time before allowing the grading ordinance and approving the grading perniit was the result of the problem and was not the problem itself. The problem itself was the number of submittals. At some point was there going to be.a mandatory stop work order that went beyond the discretion of the engineer. + ! § . ' f 1 6 Mr. Beavers, City Engineer, stated the one hundred and twenty days came from the estimates that he had formulated trying to allow for their review time which was the average time for them to review a submittal. This would put the burden back on the private engineer to get the revisions back to them. Alderman Trumbo moved to table the ordinance. Alderman Santos seconded the motion. Upon roll call the motion carried unanimously. ORDINANCE WAS TABLED ON ITS SECOND READING. HMR TAX An ordinance amending Section 35.20 of the Code of Fayetteville regarding the HMR Tax. The ordinance was left on the first reading at the December 19, 2000 City Council meeting. Ms. Marilyn Johnson, A&P Commission, stated the A&P Commission had been considering this since late summer. The City of Fayetteville's ordinance had been passed in 1977. They have not UUVUUlt City Council Minutes January 2, 2001 Page 4 updated that ordinance since. State law has changed many times. This was originally considered a luxury tax when people use to eat out for the fun of it. Since that time it has somewhat become a necessity for many families. The A&P Commission believed it was an issue of fairness. Those businesses which had six seats or more are having to pass this tax to their customers and those which do not have six seats do not have to collect the tax. She asked the Council to update the ordinance to reflect State law. The A&P Commission would be willing to eliminate the Deli's in the grocery stores. Mayor Coody asked how could they do a better job of collecting the tax from the people who have not paid their taxes. Ms. Johnson stated they had been working with City staff and at the State allowable procedures for collections. HMR Tax was a specialized tax, set up by a special code. They were currently working with the Prosecutmg Attorney. Alderman Young suggested they leave it on the second reading. Alderman Zurcher stated he believed this tax was set up to get tourist dollars. It would be hard for him to look at some of them and believe they were getting most of their income from tourist. He thought most of them were places that Fayetteville residents went to more than anyone else. Alderman Thiel stated she felt sales taxes were regressive, however, she felt HMR Taxes to be luxury taxes. They were paid by citizens who could afford them and tourist. Most citizens agreed with this because they had voted for the HMR Tax twice. Most people had not realized there were some exceptions to that. She had not realized that. She thought she was gomg to be paying the tax on all prepared food that she bought. To her a prepared food was a luxury. Alderman Santos stated he felt the ordinance needed a lot of work. He preferred sending it back to Ordinance Review Committee to get some definitions in the ordinance. Ms. Johnson stated to the best of her knowledge their proposed ordinance was directly from State law. To the best of her knowledge they were the only ones with an on -premise limit with six seats. Alderman Santos stated just because State law allowed it did not mean that they had to do it. Mr. Rose stated the problem was, did they have good reason for excluding some. It became an equal protection of the law questions. They would need a good reason for singling out people. Alderman Santos moved to send the ordinance to Ordinance Review Committee. Alderman Thiel seconded the motion. 009005,-11.rN;'u+0 City Council Minutes January 2, 2001 Page 5 Mr. Brockwick, 200 W. Lafayette, stated he had some petitions against this. If they were to take away the convenient stores and grocery storesthey were not talking about much money at all They had a good ordinance. It worked. The A&P Commission collected record revenues in November. $117,000 in November. They had never collected that much before. They were taxing the little guy to be fair. He asked them to keep it as it was. Alderman Zurcher stated the petitions had approximately 650 signatures. Mr. Jeff Erf, an area resident, asked if the City Council passed the ordinance, what would the additional revenue be used for specifically and would any of it go towards the Town Center. Ms. Johnson replied the A&P Commission as set up by State law has total discretion over use of those funds. It was her understanding that most of that could go into special projects. The Town Center funds for the corning year are already set in the budget. They did not anticipate any additional funds being needed for tliat. Upon roll call the motion carried unanimously. ORDINANCE WAS REFERRED TO ORDINANCE REVIEW COMMITTEE. NEW BUSINESS RZ 00-25.00 An ordinance approving rezoning request RZ 00-25 00 as submitted by Dennis Caudle for property located at 1192 Rupple Road. The property is zoned R -O, Residential Office and contains approximately 0.52 acres. The request is to rezone to C-2, Thoroughfare Commercial. Mr. Rose read the ordinance for the first time. Mr. Conklin stated this was the second time this request has been brought before the City Council. The original request had been for an acre and a half to be rezoned to C-2. At that meeting it was sent back to the Planning Commission. What had been considered was a ninety - foot strip of property directly adjacent and south of existing mini -storage units. The Planning Commission did approve the amended request. Along with the amended request was a Bill of Assurance. The Bill of Assurance will state that the property can only be used for storage facility, climate controlled. There had been a lot of discussion on screen of the facility. That will be dealt with at the Planning Commission during the conditional use process. In 1990 there had been a request to rezone the property to C-2. At that time they had rezoned the northern 3.5 acres to C-2. He requested that the item not go through all three readings. He still needed to work with the applicant on the Bill of Assurance and legal description. Staff recommendation had been denied. It remained the same. It was staff recommendation that additional storage units in this 0G' City Council Minutes January 2, 2001 Page 6 area were not appropnate. The basis for their recommendation had been that he had three and half acres and the remainder should be left as R -O and developed as such. Alderman Santos asked if they could make the rezomng conditional upon the Conditional Use being approved. Mr. Conklm stated they had not done that in the past, placing conditions on rezonmgs. His understanding was that a Bill of Assurance could only be offered by the applicant. The applicant had offered a new Bill of Assurance. Mr. Rose stated he was concerned about placing a condition on a rezoning because they would get into contract zonmg. Alderman Santos expressed concern about leaving only a half of a lot to be developed as R -O. Mr. Conklin stated it was his hope that the R -O lot would develop with professional offices, which would help hide the storage building. They would rather see the site develop as R -O with professional offices to help screen the building. His hope was that something would develop m front. The owner has proposed a solid fence in front of the storage facility. Alderman Davis stated he thought the remaining acre of land would be enough for an office with the proper amount of parkmg and landscaping. Mr. Conklm stated they should be able to develop an office building on an acre, but they would be limited on the number of parking spaces. One of the reasons the Planning Commission decided to approve the amendment was that Mr. Caudle did have an existing facility out there and to build an additional building m another location he would incur additional expenses. They also looked at the additional R -O out front and that in the future there could be something out front to screen this building. Alderman Zurcher asked if the staff still stood behind their findings. Mr. Conklin replied that they still stood behind their findings. Those findmg were from their Planning Commission by-law. They required staff to make those findings with regard to consistency. Based on those findings they had recommended denial. Alderman Reynolds asked if the owner had agreed to remove the gate on Wedington Drive. Mr. Conklin stated that he had not. The dnve had been blocked off. The Bill of Assurance did not talk about canopy, it discussed number of trees. Clearly, there were approximately 200 trees on the site that had been kept. • • • . City Council Minutes January 2, 2001 Page 7 Y ' Mr. Dennis Caudle, owner, stated they had discussed the need for a climate controlled facility in Fayetteville. They only needed ninetyifeet to construct this building. They had discussed constructing a fence in front of the storage units. They had spent thousands of dollars to bring the sewer onto. the 191. They had never had any intentions of constructing a storage unit on that lot. He did n ttgrr e with a lot of the staff findings. The traffic was not a problem. People went for months without coming to the facility. There was no questions there was a need for this type of building. This building was like the existing one. It was not going to be any different than what was there. ORDINANCE WAS LEFT ON THE FIRST READING. EMERGENCY GENERATOR An ordinance waiving competitive bidding for purchasing a replacement emergency generator for use by the Police Department, authorizing Chris King Electric to install the new generator and remove the old generator and ratifying staff actions in obtaining an emergency generator to ensure emergency communications system maintains electrical power. The City's existing emergency generator is inoperable and parts are not readily available. A replacement generator is available. Mr. Rose read the ordinance for the first time. Alderman Davis moved to suspend the rules and move to the second reading. Alderman Trumbo seconded the motion. Upon roll call the motion carried unanimously. Mr. Rose read the ordinance for the second time. Alderman Trumbo moved to suspend the rules and move to the third and final reading. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Mr. Rose read the ordinance for the third time. Mayor Coody asked shall the ordinance pass. Upon roll call the motion carried unanimously. Alderman Reynolds asked if we had retained the old generator. Mr. Steve Davis, Budget Manager, stated the old generator would be reworked by their Water and Sewer Department for use as emergency backup power for one of their lift stations. ORDINANCE 4286 AS RECORDED IN THE OFFICE OF THE CITY CLERK. • 4 • 000008 City Council Minutes January 2, 2001 Page 8 TREE SETTLEMENT A resolution approving a settlement agreement in Serafini, et al. vs City of Fayetteville, Arkansas et., al., CIV 2000-536. Mr. Rose stated the settlement had been given to him today by the attomey for the Sierra Club, Rob Leflar. Mr. Clay Fulcher and Colene Gaston had also worked on it . It was in the nature of a counter offer. Mr. Rob Leflar, legal Co -Chair of the Sierra Club, stated three reasons why this was a good settlement. It was good for the living environment, good for the citizens of Fayetteville, and it was good for the political health of the City. The City would be making a commitment to the protection of environmentally valuable property as well as developing the trail network. This would be a commitment of policy which would be backed with funds. The prospect of acquisitions would be recommended by a broad based task force. They hoped it would set the model of cooperative problem solving. Randy Zurcher was one of nine people on the Sierra Clubs Executive Committee when they voted to join the on going lawsuit. They endorsed him for the City Council. He ran based on his environmental stands. He understood people had questioned if he should vote on this matter. They felt he nught have a conflict of interest. What Randy chooses to do was a matter of his own reasoning. He had written an article on ethics in Arkansas. The general conclusion was this, they exist for the purpose of protecting the public against abusive office for personal gain. Normally that it was monetary. Conflict of interest rules have never been used to block an elected representative from debating or voting on a policy decision. It would be an abuse of conflict of interest law to employ them to imped the normal workings of normal democratic policy making process. Mayor Coody stated he wanted to add that not a penny of this was going into legal fees. It was all staying m the community. Alderman Trumbo stated one of his considerations on this proposed settlement was, if it was settled that they had not gotten anywhere in terms of other potential law suits. It was his understanding the premise of his client's lawsuit was that the existing canopy was 20%, with what they cut down was 10%. The minimum m the Tree Preservation Ordinance was15%. The Landscape Administrator in her deposition for this trial said that it did follow the ordinance to allow for the replacement. It then was brought up to 28% Going below the 15% canopy, then allowing replacement. He would like to compromise. What would preclude another group from filing a lawsuit on St. Paul's Church that started with 38% canopy and they were able to cut down to 16%. The requirement in that zoning was 20%. They went way below what CMN did and they were able to replace and plant new trees to get it back up to 20%. The new library was going to cut down 90% of 24" landmark rare trees and then replant new trees. What would keep another group from filing the same lawsuit. City Council Minutes January 2, 2001 Page 9 Mr. Leflar replied the intent of the settlement is to resolve this controversy. Once this was settled then they were done with it. He could not speculate how the City might enforce the Tree Ordinance in the future. He hoped that they would enforce it in an appropriate way. Once the settlement was done, then they were done with it as far as that particular project.. Alderman Trumbo stated this was the same thing on cutting down and replacing trees. He wanted to make sure that they were all on the same page. The way it was just interpreted was the same way that CMN was. He had asked the gentleman who had climbed the tree with Ms. Lightheart, would he climb the trees at the library, and he had said yes. He was going to do the same thing for that site. It was going to be the same situation. He did not know if the settlement would resolve that. Mr. Leflar stated there was a committee studying the ordinance. Perhaps that was the answer. Alderman Trumbo stated he had a couple of attorneys bring it to his attention that the ordinance did not allow for discrimination of trees depending on whether they were in a historic district or in a pasture. There was no distinction on where the trees were. Alderman Zurcher stated it was his understanding that the Landscape Administrator did have a lot of pull in the decision of, can they do this and still save the canopy. Ms Hesse may have said in her deposition that the City did not break the law. She did at two different times dunng the , deliberations say the opposite. That the City was not in compliance with the ordinance Alderman Trumbo stated she was to recommend it, then there were nine Planning Commissioners that voted on her recommendations. Alderman Thiel stated that what he was saying was that atrial would have some affect on off setting future challenges. She did not see where a trial would prevent someone from challenging something in the future. Alderman Trumbo stated it would be a jury to decide this thing. If the jury decided with the City and that they did follow the ordinance, as a:Qty they would know if they needed to redraft the Ordinance. Theie wer&no monetary damages`at.this point..Wliy would they not just make a budgetary decision to allocate money for this. • " t , Mr. Leflar stated this was a lawsuit about policy change. He believed people voted for policy change. Alderman Young suggested developments. giving the letter from the Landscape Administrator to all future 1 City Council Minutes January 2, 2001 Page 10 Mr. Leflar stated in the past there have been times when this ordinance has been ignored. He believed it had served a useful function. Alderman Young stated the Landscape Administrator was not the determming factor. She made a recommendation. She was not the one making the decision. The Planning Comnussion was. She could be overruled by the Plarm ng Commission. The settlement indicated that she was the determining factor and she is not. Alderman Reynolds stated another problem with this was when this was over and the City had paid out $450,000, we still would not have closure with who was right or who was wrong. He believed that the City needed closure so in the future we would not have this crisis again. Mayor Coody stated he understood Alderman Reynolds' position. He cautioned that if the City did take it to court, of which he personally hoped they did not, and if they found closure, one way or the other, the City will either win it or it will lose. He asked Mr. Jack Butt if the City loses, they stand an excellent opportunity to lose the business that wants to go onto that piece of property and we would get about as much tax money every year coming in as what the City would be keeping so we're not losing money here. Basically the reality of it is putting it to the public use, so he thought that this particular business brmgs m roughly $225,000, $235,000 a year in sales tax in cities where they are, so we might find out that the City was right or the City might find out they were wrong. If the City was wrong then the penalty for that was very high. He believed the risks certainly outweighed the gains so that was why he felt it was probably m the best interest of the City. Alderman Reynolds asked what happens in that development when Lot 7 wants to be developed and they say they will have to cut another 5 or 7 trees to put in the parking lot and build the building. Mayor Coody stated that this had been already approved. Alderman Davis stated that this had been already approved by the current Tree Preservation Committee. Alderman Reynolds asked if this was going to bother another retail lot out there or if this was going to settle that Kohls development? Mayor Coody stated that this one issue is all that this lawsuit is about. Whether the City settles this or whether the City takes it to court, it will not have a bearing on any other piece of property anywhere else here in town. Alderman Davis stated he wanted to make sure that the people understood that Lot 15 was where City Council Minutes January 2, 2001 Page 11 Khols was going, regardless of whether we go to court, win or lose, Khols was still going to exist provided they want to come in and there was no way to have knocked them off that block. Lot 7 was the one that the MayorAwas speaking of when he made the statement if we lose then the current Tree Preservation Agreement that was set up between Kim Hesse and them would possibly be lost at that point in time but would have to come back and go through the process again. Whereas, if they accepted the compromise or we make some adjustments to the compromise this evening as a group, at that point that the Tree Preservation Plan would still go forward and whoever was going to develop on Lot 7 could use that current plan as it has already been approved. Alderman Zurcher asked Alderman Davis if he was saying that if this doesn't go to court, there is no judgement, then that can happen? Alderman Davis answered that if the Council compromised tonight and we all come into agreement with that, then Lot 7 is able to proceed on as it has already been set up with the Tree Preservation Committee. We cannot go back and change that. If this goes to court and the City loses, then that is the only opportunity that anyone has to re -look at that lot. '°t ` r Mayor Coody stated that there was one other option. If the City wins, they can certainly take the existing plan that has been approved and start work. They can also voluntarily modify their plan if they so choose. We are not just locked into that one plan., , Alderman Davis stated that was correct, but they can and if we do compromise, if the City wins, they are allowed to go ahead and use the preservation plan that has already been set up. Alderman Zurcher stated that what concerns him about that was the first preservation plan that was approved was nothing like the preservation plans approved now. There was a plan approved in 1998 that saved a lot more which was before those lots were split which saved 15% canopy. Alderman Young stated that was the success certain interest that he was talking about Alderman Zurcher asked if Alderman Young could tell him more about it. Did they not go back to the original plan? Is that a whole can of worms that we cannot get into? Alderman Young replied that it was not spelled out in that settlement. Alderman Davis answered this was not the intent of what this settlement was Alderman Trumbo asked Mr. Leflar if it was his client's positional use that they had already had 51, 100-200 year old trees that were cut and are down, so if they settle this tomght, did he know that he was going to have another 8-10, 150 year old big trees being sawed down, but this was City Council Minutes January 2, 2001 Page 12 okay with your client? Mr. Leflar stated that if they agreed on the settlement tonight, his clients are finished with that project. Alderman Trumbo asked Mr. Leflar if his clients knew that there were going to be 8 more of these big 150 year old trees just falling down like the 51? Mr. Leflar stated that they were aware of it. Mr. Jack Butt asked if Rob Leflar would yield to him because a number of the questions asked were pertinent to the kmd of development strategy results and he did not think he was prepared or as knowledgeable on that as he was, so if he could roll in some answers to your questions and some supplement to his own presentation he was making on behalf of lus client, which of course is Argus Properties and Fayetteville Exchange, the developers of the property, and he did not want to get too far beyond that without congratulating all the newly elected officials for their win. It is going to make things interesting and maybe exciting and he hoped better for Fayetteville. We'll wait and see. He meant that earnestly. We need good leadership in the City and he thought they had been lucky to have had it This is a chance for new people to step in their places and get their share of the same, and errors, and make some hopefully wise judgements. He wanted to give them some factual background on this thing that he thought would be old hat but there are new Council members, and if he was wrong he hoped that either Jerry Rose or Tim Conklin will stand up and interrupt him. Of all of the development requirements for Lot 7 and 15 which were optioned together by his client, many are left together. First of all on one Lot 15 the trees were down. The landscape is great and the construction was underway and to his knowledge Khols Department Store will be up and running in the near future. And there is nothing anybody can do win, lose or draw in this lawsuit about the fact that store will come on line, those trees are gone, those taxes are going to come into Fayetteville's call for good, bad or indifferent, and he believes that everybody agrees that is pretty much water under the bridge. On Lot No. 7 adjacent to it, Khols has a capitalistic interest in some contractual obligations to bring that lot into development. It has met some of the development requirements. The most significant one we are talking about here is the Tree Preservation Plan. It was allowed under a permissible way of proceeding to get what it was going to do with the trees on Lot 7 lumped together with what it was going to do with the trees on Lot 15 so that those trees were a kind of a done deal. Now there may still need to be some adjustments if when they go to submit a grading plan, they can't make the water dram just nght without removing another tree or buildmg more trees or putting in a pond, that could happen, but it would be very indirect and tangential m the fact that they have said that the Planning Commission has approved and this City Board has approved a tree plan that says we are going to cut these number of trees and we are going to preserve this number of trees and that's the way our development is going to be, and that is what is on the books. They are this far from having a final conclusive regal deal and another tenant City Council Minutes January 2, 2001 Page 13 that will go in there that will;generate six figures of tax for the City every year. Now, if this settlement makes that it lis extremely probable that development will go on line with the tree plan that has already been approved. If this settlement doesn't make, then the uncertainties of litigation could cause that development to go away Just the fact that they have to wait three or four more weeks and wait for some uncertainties, and if we lose the ligation, then that opportunity will go away for some indefinite amount of time, a day, a week, a month, a year, a decade, and the City will not have come on line with sales tax income from that Lot 7. Lot 7 is ready to go as far as trees goes if the settlement is made or if we win. Now, we meaning Khols. To go back to the beginning of this thing, he doesn't really understand why anybody regardless of whether you ire for the Sierra Club or for Argus or for the City; would be opposed to the settlement.'A7vote against this settlement i§ either a vote against the Sierra Club, which is by definition a vote against the League of Women Voters. It is a vote against Argus. Argus will perceive that anybody that votes against this settlement as being against this development and that store and it is bringing $100,000-200,000 of tax dollars on line within the next year. He did not know why anybody would vote against it but he had talked to a number of the Aldermen and he had reasons presented. First of all there is a belief that one side or the other is going to be vindicated in the trial. That is completely mistaken. This jury trial is first of all going to be expensive. It is going to be expensive to Argus as a developer who has poured way more money than they ever thought they could into this project just trying to get one building on line. They have to pay him for 2-3 days of trial and preparation. The jury trial was going to be unpredictable. If you thought the Planning Commission comprised of interested, well informed, intelligent, well meaning people, wasn't a good result, and this City Board comprised equally wasn't a good result, this matter is going to be decided by a jury of twelve people. It is not a requirement that they be a resident of the City of Fayetteville. It is not a requirement that they have any kind of IQ, that they be publically elected, it is only that they have been called off of the list and they show up and they don't disqualify them. Now you could have twelve people who don't live in Fayetteville and who hate Fayetteville, who begrudge Fayetteville, and don't like paying sales tax here, and they try to figure out subconsciously what can they do to make everybody here mad. Now that is the wisdom of throwing this to a jury trial. Now he does not want to under mind the Jury system. He has pledged to uphold the Constitution and the Constitutional rights and generally when they were dealing with automobile accidents or murder trials or contract disputes, there are well established procedures and jury instructions, and while lawyers can't predict to a certainty, they are all pretty comfortable with exactly what the Jury is going to be told and how a common man or common woman will take those instructions then they try to get into their mind and think what they are going to do We can appeal the decision of the Planning Commission but all you are doing is making the jury a Planning Commission. He did not know what the instructions to the jury were going to be. Mr. Rose doesn't know what those instructions are going to be nor does Clay Fulcher. They are going to have to invent their own, present them and let the judge hash through them, and then give a set of instructions that has probably never been given to a jury before in the jurisprudence jurisprudential history of the State of Arkansas. Itis going to be completely unpredictable what that jury is told and if you flip • City Council Minutes January 2, 2001 Page 14 a coin, you have a higher degree of predictability and probability in predicting what this jury was going to do regardless of what the legal rights are. Now he has advised his client we ought to wm the case. He imagined Clay Fulcher has told his client in good faith that they have done the research and they ought to win the case. And to the extent that there is any logic in the way either one of them is going to do, that logic all goes out the window because they are gomg to be dealing with twelve people off the street that are going to be listening to and trying to understand instructions that the lawyers don't even know what they are yet, and they won't know until the judge reads them after 2 or 3 days of trial. It is going to be expensive to take this to jury trial. It is going to be unpredictable. The other thing which Alderman Reynolds referred to is that they need to get to the end of this This jury trial is going to be inconclusive. We don't know what the mstructions are going to be and they could come back and say we have hold of Fayetteville. What does that mean? Not a clue. How do you interpret the ordinance the next time? Not a clue. Who did right or wrong? Not a clue. We have hold of Fayetteville. What if they uphold the Sierra Club and League of Women Voters. We don't uphold Fayetteville. This Tree Ordinance doesn't pass. Why not? What do we do next time? We don't uphold the city ordinance. That's all there is to it. We are right back in the starting place with an ambiguous resolution, no hint from the judge or jury what was right or wrong about it, it's just either okay or no. Now we will be vindicated that Alderman Trumbo with the concerns that you have about it, what are we gomg to do about somebody sitting in a tree at the Library or at the church. I think we are concerned about that. We don't like the kind of disruption of friends but the jury trial isn't going to settle that. It can't. It won't. It was not designed to settle this one dispute which, of course, all this settlement is going to do is settle this one dispute. Alderman Trumbo stated that this was part of lus problem. Say we settle it and have this money for two years for this one project and then we get sued on this other one, and the old one, a half of a million for sidewalks. Mr. Butt said that was a good question and it was a good concern but as all of us who have committed to public service to create perfection in our government and delivery of services, it was impossible. You just deal with all kinds of unpredictable "what -ifs." The biggest problem here, and he maintained this the first time he addressed the Council many months ago about this thing and the problem is still there. This regulation is dangerously ambiguous and Fayetteville has skated for 8-9 years on it because nobody got upset about any particular tree. When somebody decided that it was worth sitting m a tree for twenty days over, it underscored the lawyers who were looking at this regulation to how weak it was for this ordinance and it needs to be fixed. That's the long term cure. It is under way right now. He was frankly sad it was not finished before the Episcopal Church or the Library went in for their tree works. But until that sticks, this lawsuit wasn't gomg to fix it. This settlement wasn't going to fix it. There's nothing going to fix it except the Committee going through with a fine tooth comb, and Mr. Rose, the City Attorney, and he volunteered to do it, and that offer is still good, sort through there and see how many ways can we bust this ordinance. We dig them all up and we resolve them and we • F • • 00aO015. City Council Minutes January 2, 2001 Page 15 make them fit, and they still will not be perfect. The root of the problem is the ambiguity in the ordinance. 'Flail _sttiit,wi l not fix that. arid;kis settlement won't fix that. r.1 h • Alderman Trumbo stated he agreed whole heartedly with Mr. Butt. He had a very well informed and very good dialogue with Lowell Grisham from the St. Paul's Church. He told Lowell that he was in favor, and when this thing first started he said let's look at not going below 15%, period. If that is what we want to do at the City, let's do that. Of course, he said that was not fair. because we couldn't build onto our church if we did that. That's what he was afraid of, that they were just not going to get where everybody wants to be. Mr. Butt said if that ax falls and that may be as a crash of the matter and a possible task to see by and to still obtain perfection. To whatever extent we need to get as close as we can in that order. This lawsuit isn't going to get anything. This settlement isn't going to get anything except for the respect of this case. So going to a trial is going to be expensive. It is going to be unpredictable and it is going to be inconclusive except this issue will go to bed, but there will be a lot of people on both sides such as Argus, if they lose will be unhappy, Sierra Club, if they lose will be unhappy. He believes that this is appropriable that the City can come together and for once whatever money conies to the pot doesn't go into the pockets of the attorneys, doesn't go into the pockets of the plaintiffs, but it goes into the City. That is why Argus wants a settlement. Now there is another problem that he calls "devil in the details" problem. There are a bunch of details about a task force and how much money and how long they have and all of that. The problem is that when you are negotiating with the City Board or School Board or a Legislature, you don't really talk with their attorney and maybe one spokesman has kind of stepped forward. Everybody here wants to add their little tweak to that but it just doesn't work that way and he knew some of you were a little unhappy with the time and being under the complexity of a task force but he believed about a third of the City Board were re-elected because people were overwhelmingly interested in these trees and he bet he could find one or two of them to sit on this thing. And if there are those of you who are up there who are worried about what they may do then you can throw your extra two bits in and go your extra 2-3 hours to a meeting every. 3-4 weeks and make sure that one side or the other doesn't hold the sway. It is an important enough issue that he thought, he was not saying the task force was good or bad, he just hated to see a settlement that the lawyers and parties have been working on for months and months and months, which he thought could do a lot to kind of heal the City, go down the tubes because someone wanted to tweak it, half an inch or half a foot this way. The guts of it are there and we can tweak forever and we are never going to make everybody happy. He would urge you, unless you are planning to wait a month from now, or how critical it is, that you go look for those little details where they want six people on the committee and you want four and they want these people and you want those people. That will kill any settlement if you start trying to fine tune it as a nine member group.. The third one is another point he would like to make, that but for the emotionality of the trees, he would like to make a bet that he could have gotten this settlement through last April and everybody would have been patting everybody on the back. He would . , d "t: , City Council Minutes January 2, 2001 Page 16 have called up 3 or 4 of his favonte Aldermen, at least Aldermen who would take his calls, and he would have said, listen, I have a great deal. We have a couple of stores going out there and we are going to raise three, four, or five hundred thousand dollars a year m sales taxes as a gesture towards the quality of life in the most liveable city, Fayetteville, why don't we take an equal amount of money for one year and put it aside for the cause of the trees. The Quality Life Issue. Everybody likes that. It is a win-win, Mother's apple pie, what do you say? What is it going to cost us? It will cost you one percent of the sales tax. You understand? It is going to slip it through the Planning Commission so the stores will be up and running six months earlier to get the money earlier, and I am not sure we are going to lose anything. That's the kind of deal that if we, if somebody had just been a little smarter than he was, this would have happened and nobody would have had any objection taken one year of sales taxes on two stores or two years on one store, and putting it into pure Quality of Life to get those stores on line a little bit quicker. This is not a bad deal. We are not giving away money to the devil, or to Springdale, or to attorneys. Everybody up there that doesn't like parks, trails or trees, raise your hand. Well, you are not going to that It is a question of how it gets implemented and how we split the pie between police and fire and parks and trails. So this is not a settlement that he believes you will say six months from now, I just hate putting money into trails for this City. It is a good deal. He believes it is a nonunal thing considering the tax money coming on line. Now, another important thing is that somehow that this is giving in on the lawsuit or proving that the City lost, that we haven't maintained or sustained the position. The idea to come up with one or two years worth of sales tax money was not Mary Lightheart's. I talked with Mary and her attorneys at length under a tree looking up at her about settlement possibilities and he could personally guarantee you this was not her idea. It was not the Sierra Club's idea. It was Mayor Hanna's platform and it wasn't offered to settle anything. Back when all of this commotion was gomg on, in essence to say, I want to prove to the City that I am not a tree hating Quality of Life hating kind of guy, I have a couple of good ideas we are going to do. First of all we are going to appoint a committee and clanfy this tree ordinance so we will avoid this again And he did that. The next thing we are gomg to do is we are going to take a couple of years worth of sales tax money and we are going to put it towards getting conservation easements. They held press conferences and published it in the newspaper. This isn't the Sierra Club's idea. This is the Sierra Club going, that's a good idea. Do you mind if we jump onto the band wagon with Mayor Hanna? And since then they have been talking to Jerry Rose and me, saying, is there any way we can make this thing work out? Well, Mayor Hanna has already agreed we are going to try to make this lawsuit go away. To the extent you feel like those of you who may vote against this because you think the Sierra Club and League of Women Voters have come up with a liberal, tree hugging, leftist idea, and held a gun to your head idea on it, this is Mayor Hanna's idea.. He went to the Sierra Club and said, we have a great idea here. We finally have something on the table that we can all talk about. What do you think? And that is what has been going on for the last 2-3 months. A settlement decision in this case, I think, is critical because it shows that the City can work through it's development problems. Any good city that has growth will come with developmental problems. They are administrative problems, and if they cannot solve the tl 1: J r administrative, then they are solved politically, and I think this City is dangerously closeto the point where it needs to say to the developers by its actions, we can solve your development problems administratively, if not administratively, politically, because most of his business clients when they first come to me they say, I hate lawyers and the only thing I hate worst than lawyers are lawsuits. So when you tell a developer that the last big development. that came in could not be solved administratively. It couldn't be solved politically. We had to go to litigation on it. Just shoot it with a silver bullet. They are going somewhere else. He thinks that it is important this City demonstrate that politically it can resolve a development problem. For those of you that think that this settlement, and I am not speaking to anyone, and maybe there is nobody that thinks this, but I am amazed at the diversity of perspectives that have come to this settlement from the townspeople and the Board. But for those of you that think that the Sierra Club and League of Women Voters is getting sold short m this settlement isn't green enough. You cannot win a result as good as this with a re -run vote of the Sierra Club. It is impossible. If you go to trial and lose, the building will be built, the trees will be cut, the name will come on line and you will get zero of it unless you can win a brand new. political battle here Let's say you go to trial and you wm. If you go to trial and you win, Lot 7 goes undeveloped, the City is $150,000 to $250,000 poorer for the next year or two, five, ten, twenty years because that lot is undeveloped and that is almost a half of a million dollars that would have been invested within the next three years, and trails and trees get invested in nothing. But you have saved maybe 20- 30 trees out on Lot 7. $500,000, 20-30 trees. If this task force or. committee can't buy 10, 100, 1000, 1500 trees with that money, somebody isn't paying attention to their work. I mean, the amount of green space that we could preserve and accumulate is vast. But by going to this trial, I guess, the Sierra Club and those who want the Sierra Club to back out of this settlement, and those against it because they think the Sierra Club isn't green enough, you can't do any better than the settlement. Half a million dollars into green space and parks. I don't know why anybody would vote against this settlement. Going to trial is not going to prove a point. It's not going to provide any perfect resolution and it's going to leave a wound and somebody else can be mad for six months or a year. Argus is selfish. They want to build that building. I think Fayetteville ought to be selfish. I think it ought to want to bring $150,000 to. $200,000 in tax money on line the next year. The Sierra Club and the League of Women Voters are going home with their share. They have $500,000 worth of green space, and for those of you who think you may have lost those organizations, you are the ones who should be raising your hands saying, I Cate parks and trees`. That is crazy. We all like those. We are simply coming up with a deal that the old Mayor proposed,' and he thought it was a wise proposition, and he proposed that and the lawyers went off on that, and there it is. He said he would be glad to answer any questions, but in case you are wondering Argus is for this settlement. s e. Alderman Davis stated most people like to contact the Mayor. He spoke with one which he talked to about Lot 7 being'free and clear basically; using'the current Tree Preservation that has d been agreed upon, most at that point m time have changed their opinion somewhat but not wholeheartedly, but some of them thought the compromise might be something worth looking '0`0 0 0`17;$ City Council Minutes January 2, 2001 Page 17 City Council Minutes January 2, 2001 Page 18 into. The thing most of them are fearful of is they don't want anyone to think there is actually one side who has won or one side who has lost, and he doesn't think anyone here tonight could feel that way because if it does go through, basically no individual is going to wm. It is going to be a win-win situation, because we are able to take those funds that we will be setting up and be using them for the trees, environmental extensive lands and trail acquisition and right of way for those purposes. That's good. And regarding Lot 7 as he mentioned being able to be developed with the current preservation plan that has been approved, all that is gomg to do is hopefully increase the sales tax revenue at the City of Fayetteville. Mr. Butt replied that he would address an issue brought up by Alderman Young. One of the City's ambiguities in this ordinance is if you had a hundred acres of land and someone wanted to subdivide, they are required more to get their tree plan and their subdivision approved to preserve, let's say commercial property 15%. Let's take an extreme case. In fact Steele Crossing is not altogether different from this extreme case. They pick out fifteen acres in one comer and say, these are the trees we are going to preserve, everything else goes. Well, that subdivision meets the standard. Now it is dividing the "X" number of lots and let's say one lot has that fifteen acres with all of the trees on it. The regulation has been consistently apphed and the staff has been steadfast about this, even Ms. Hesse has been steadfast about this. Once he files that two or three or five or ten acre lot which is part of the subdivision, and it has all the trees necessary, he gets a new tree plan. All he has to do is preserve 15% of those trees. And with that and yet in a worse case, have a hundred acres, 15% of 15%, and he can't do the math, but that is not very many trees left out of one hundred acres. Now, he was not going to say that was right or wrong, but he was going to say that the City staff has been adamant m saying that was the way it always has been interpreted. He thought the regulation was a little bit ndiculous and maybe it needs to be solved. Taking this case to trial is not going to solve anything. It won't solve that issue, the words just have to be rewritten to make it clear whether or not the success of an interest problem and how we deal with that. The City staff has always dealt with it as though every time you get a lot of that subdivision, use a large scale developer to get another buyer to help you out. Right, wrong, he did not know, ambiguous, probably, is there a fixed forth, not through trial, not through this settlement. You can only rewrite the words. So part of the fix is that the settlement won't solve everything but this settlement and along with the rewriting of this ordinance will get as close as he can see the thing. Alderman Davis asked Mr. Leflar if in his first section where you are speaking about the funds for 01 and 02 being used for the acquisition of city trails, right of ways, conservative easements and fee simple space, and you go down a couple lines it talks about the expenditures of the funds. Just out of curiosity, there is some different verbiage in there, such as environmentally sensitive areas or lands with sufficient environmental enmities. He guessed he was a little lost on the interpretation. What was the intent when he looks at the first three items used? Would you explain that and clanfy that? 1 0000,19 Vil ri City Council Minutes January 2, 2001 Page 19 Mr. Leflar replied, yes. The first sentence that you referred to specifies the type of a legal estates that could be acquired such as the simple estates, the conservation, the easements and the rights of way. That is more of a legal matter. The second sentence specifies the types of purposes that those lands would serve. One would be the preservation of trees. Second, environmentally sensitive lands or the significance of environmentally sound trails. Alderman Davis asked Mr. Leflar if most of those did not fall back into conservation easements? Mr. Leflar said it could be that you would get an easement for preservation that some environmentally sensitive land, or could be you get a fee simple, and that would be up to the City Council to decide. Ultimately the task force would attempt to identify plats of property within the second categories, further on down in the paragraph. Once the Council accepted those recommendations of that types of property and the identified properties, then the Council would vote on exactly which type of estate to get. Alderman Davis stated that was all the questions he had. Mayor Coody asked if anyone else had anything. He then asked Mr,•Leflar if he had anything F further to say. t ' 1 Mr. Leflar stated that completed"everything he had to say. 1 : 1 • 1 . .. ,. t In response to a citizen, Mr. Butt stated the property was owned by the CMN Steele family, it is optioned to Argus which has a further lease option. At this point everybody's deadlines for having performed have passed because of this, but in good faith they're negotiating extending that and all three are holding their breaths hoping CMN can sell to Argus, Argus can develop and lease to this company, and we can go on down the road. Mr. Butt stated that as of four o'clock this afternoon, Argus was still thinking realistically, optimistically they could close the deal and make the settlement tonight. John Maguire, Administrative Services Director, addressed the Mayor. Let the Bookkeeping Department of the City, including Budgets, are going to go on record as of now to collect the tax. Do the deal. Mayor Coody asked if anyone else in the audience wanted to have a say in this. Alderman Zurcher asked if he could have one more question for Mr. Leflar. Could you Just explain "fee simple", "fee simple estates". Mr. Leflar stated that "fee simple estates" means when you own the property completely. 000020 City Council Minutes January 2, 2001 Page 20 Alderman Zurcher asked so that this would be land that the City would actually buy? Mr. Leflar answered, that's right. Mr. Butt said he thought that this was important to note because the conservation easement was won out of step with Mayor Hanna. Early on you would have thought Rob and himself both were card carrying Sierra Club members when we started out but he has been trying to talk to them about this Conservation easements are among the most innovative things going on and if you got trapped at a woodland, it could be a scalped bear development of twenty acres, you can agree with the City that he was going to give you a conservation easement, say a hundred feet around each border where there are mature oaks and hickory's and everything else, and you promise forever and ever, you know the old trees use to say as long as sun rises and sets, we will never cut the woodlands in the hundred feet around this twenty acre development. Now once you have made that promise, you can develop it any way you want to, the lot owners can develop it, but nobody can ever touch those trees. And for giving that to the City, he gets a huge tax deduction because he has given up the nght to develop several acres. So it is kind of one of those win-win deals and his vision of concept here for $400,000-$500,000 you can buy a lot of property that is just trees that probably can't be developed and won't be developed but it keeps somebody from cuttmg them down, keeps them from cutting them down in perpetuity. He thinks you could save thousands and thousands of trees and tens or hundreds of acres, not by buying up the land, not by controlling the development, not by saying who gets to live there, but simply acquiring the City's name in preclusion against anybody developing it. They have to leave it in some kind of natural growth. So the extent that you do not understand conservation easement, the owner still owns it, but they have given up their right to cut down those trees and develop it. But out of three acres you could give up the trees closest to the highway, develop the two acres back from it, as much as you want to, and get a big tax deduction for the fact that you have given up your right to cut down those trees. That is conservation easement. It may also be practicable for a any number of reasons, the City just to get title to it is typical combination. Conservation easements are an important concept that could be brought to trial for this settlement. Alderman Davis asked Mr. Butt that in essence what he was doing was that he was buying development nghts. Alderman Santos stated that usually they were donated but it was possible for them to buy conservation easements. They are donated just for the tax break but somebody may get money and a tax break. Mr. Samuel Campbell, an area resident, stated that this was his money that they were talking about. It doesn't matter whether it is sales tax or property tax, it still comes from the people who are doing the spending. He thought the negatives here amount to, No. 1, that is the timing. The Council is a new Council and hasn't had time really to compare the various needs of the City and 000:0:21. ` City Council Minutes January 2, 2001 Page 21 to weigh them. If this thing boomerangs on you, it can be said that you did something stupid on the first day you took office... Mayor Coody said that likely would be said no matter what they do tonight. Mr. Campbell continued. It was not a good idea and could boomerang. What you are doing here is trying to legislate by litigation. Wrong frame work. What has happened is a small group that did not like what the Council did, and filed a lawsuit, and then they come in on bended knee, asking for $400,000 to file the lawsuit. If the lawsuit had any merit, under the law, you would think that they would come in threatening and demanding, but instead of that they come in begging you. That should tell you that the lawsuit doesn't Wave much to go on. The second thing is the use of the money. You don't have a program yet. It doesn't exist. You are funding a program that doesn't exist..' You would "think that if their obj ectives here had any merit they would come in with a program or buy trees, or build this trail or go from there to there, and it would have an ongin and a destination and a use. But that doesn't exist. Then they are going to have a board.` He did iiot know if it was spelled out of hot whether that board is going to use this $450,000 as operating funds or •for studies. It is not spelled out. He asked where was the money out there on the line. And you are doing it by getting a judge to sprinkle legitimacy on it. Wrong way to go. He has watched the Council settle the space in many cities and this is the strangest thing he has ever seen. It doesn't fit. He wondered of the Council had been instructed by the City Attomey as to your judiciary connection with the facts. It would be very strange if this thing boomeranged and you wound up paying it out of your own pocket. The plaintiffs don't have that responsibility. It would be this Council's responsibility At least they ought to know that when they take that they have some legal opinion from the City Attorney. He inquired of the Council if they had ever been instructed by the City Attorney? Alderman Santos answered that the City Attorney had wntten this settlement. Mr. Jerry Rose, City. Attomey, in response to Mr. Campbell's question, said that he could think of no lecture that he had given the Council. Certainly, over the past twelve years, he had talked about that judiciary duty. He thought the Council was aware of it in the oath that they had taken tonight, respecting that. He believed the Council to be well informed. He will until proven differently. Mr. Campbell said according to the timing here, this is the first meeting of this new Council, and they are doing a very strange thing. A little group gets off in the corner and files a lawsuit, and the City Council comes rushing in with $450,000 to solve the lawsuit? It doesn't add up. Alderman Zurcher said he would like to address that a little bit. He said Mr. Campbell said, "a little group", and actually we are talking about two groups that add up to over 300 people plus three other plaintiffs. Now away from that issue, he did not think you could separate the political UUUUz; City Council Minutes January 2, 2001 Page 22 season that they just had from these hearings about this issue. This issue was so big that this was "the issue" of this campaign season. Overwhelmingly this issue won. The people that brought suit against the City were shown, in his opinion, and this was only his opinion, was shown by the voters of Fayetteville to be nght. He guessed that was where part of it comes from, where it doesn't seem so strange to hun that this small group, however small some people want to believe, won out pretty big. He thinks that showed that they were right on that issue. Mr. Campbell stated he wanted to say that doesn't make it seem like the nght thing to do, and there is a nght way to do it. The tree thing has out lived its usefulness. It is done. Now we can approach the problem in a business like way. A prominent member of the plaintiff's group sits on the Board. Is she going to vote? Or is she going to step aside? Alderman Thiel stated she was the President of the State League of Women Voters. She was not on the local League Board, the Washington County League Board. She was not on that Board whenever they made the decision to file this lawsuit. She stated she had not decided yet whether she was going to abstain or not because on principle and on law she did not have to abstain. She was not part of that lawsuit at all. Actually, Randy Zurcher is probably smce he was on the local Executive Board of the Sierra Club. She was just kmd of waiting to see what she was gomg to do but she thought she would like to see this thing resolved because that way no one will have a reason to come back and question their motive. Mr. Campbell replied rather to jump into it on the first meeting of a new Council, get rid of the lawsuit. Let them go to court if they think they have a lawsuit. They wouldn't be in here on bended knee if they had a lawsuit. And Dan, vote for money for a program that you have designed, the staff has designed, and get those bicycles going up the hill or wherever you want to go. It's not a bad idea to have some bicycles out there. Mayor Coody stated there were serious draw backs if the City were to pursue this m the court. He thought that this could be a costly situation for everyone involved and they would not have any idea really how it would end up. There may be advantages to settlmg this thing. We might be finding ourselves in a world of hurt if we take this to court and lose for example. You can never tell how a Jury will rule m a situation like this. Mary Lightheart stated it was nice to see different faces up there. Her calendar told her that today was January 2nd. However, her heart told her it was May 2"a. She was having deja' vu. The weather outside and the different physical appearances were the only two things that told her that it was not May 2"d. It seemed they were back to ground zero. It may even become a three to three vote with expectations to you, Mr. Mayor, to break the tie against the settlement, for or against the settlement, for or against the trees. How ironic. Many of them will expect and look forward, look for you to continue supporting these trees that you so willingly did before the election. Her intense feelings of protecting the trees on Lot 7 and her outrage that even within 00OU2-= zirp • City Council Minutes • January 2, 2001 Page 23 the leadership they will not be protected`if)tW acpept this settlement; and of the same strong feelings that led her to live m the trees for three weeks.. She cannot ignore the fact that Grandmother gave her life and she gave over $500,000 of her life in hopes of savmg the trees. This settlement does not require the City Council to uphold the Tree Ordinance. She felt that this was just a repeat performance. She was disappointed beyond words with your endorsement of the settlement. This settlement does not address the issues that provoked her to climb that tree and Dan, you remember you and I, you came to me and suggested that I go to T13, and you chose that. It was the most beautiful tree out there. There are thirty rare landmark trees left. Thirty. It is still the same ordinance. It is the same succession clause. She feels very confused because this settlement does not address the truth and that's not to say that there can't be another settlement. I mean, it is not either this settlement or court. There are other things to chose from. If you vote to disburse funds that will only serve to distract citizens from the issue in this case. She had no. doubt that the City of Fayetteville now could put bicycle trails and disburse funds all on their own without having to do it through a settlement pretending to love trees. Accepting this settlement will not resolve anything for the past or the future. It offers no interpretation of the Tree Ordinance. Trent, I think we are agreeing. How will we protect the trees on Lot 7? It is nice to say it is a done deal but they still broke the law. The City still broke the law on those trees. It would nice, but trails and money are unrelated issues. This lawsuit has never been about monetary compensation. Saving the trees on Lot 7 is the issue. Interpreting the Tree Ordinance is the issue. The Tree Ordinance is not addressed in this settlement. The successor and interest clause is not addressed. Rare landmark trees are not canopy trees. The Rare and Landmark Preservation Requirements are assumed to be 100%. The Tree Preservation Plan for Lot 7 should be receded for three reasons. No. 1, the plan for Lot 7 was approved by a letter and an escrow agreement that had not been reviewed by the Planning Commission. No. 2, the successor and interest clause was not observed when permission to cut trees on Lot 15 was given to CMN, successor and interest. CMN 's 1998 Tree Preservation Plan was not enforced with the respect to the successor. No. 3, CMN's 1998 Preliminary Plat Tree Preservation Plan was not observed when CMN gave Argus the mission for tree destruction on Lot 7 in violation of CMN's own Tree Preservation Plan of 1998. This settlement omits crucial words, CMN, Argus, Kohls, Lot 15, Lot 7. She did not plan to sweep Lot 7 under the rug in the name of, "let's all be friends now." She plans to pursue protecting Lot 7 to the best of her ability. And she asks you, Mr. Mayor, and all the Council members, please do not accept this settlement. If you truly wish to stay out of the courts, then she asked them to study the truly conservative settlement which was presented to you as an alternative to this settlement. It addresses the Tree Ordinance and it will ensure that our new Administration will know how to enforce these tree protecting ordinances in the future so they can continue to have some trees that we can call our Ozark Mountains. Thank you. Mary Alice Serafini stated she wanted to first of all congratulate them all on their elected office both recently and in the past. She was here as a private citizen and the President of the League of Women Voters of Washington County. We really appreciate the fact that all of you are willing to bear this public responsibility and really talk to them about what they are interested in. She • • City Council Minutes January 2, 2001 Page 24 appreciated their consideration of the settlement that they were offering. She thinks that it addresses what they collectively wish to put m place for Fayetteville to make Fayetteville as a City, both environmentally and economically. By committing to preservation of valuable trees and enhancement of our trail system, by creating a vision of beauty and a potential pay-off that comes when the City presents itself with beauty and a system of trails that the entire public can appreciate. Ultimately each of us benefits, including our businesses, but especially our health, both physically and socially, will we make commitments in this waiver. You probably know that the League of Women Voters has been interested m tree preservation for many, many years and has brought this to City Council historically. Manon Orton, one of our members was the Mayor of Fayetteville many years ago and she said the first time she brought up tree preservation she got even blanker stares than what she was seeing from you, and you are a very well informed Council. But we have come a long way. Marion Wycoff set on the development of the ordinance. She shared her frustrations with us as we studied the issues around the ordinance that we are functioning under. We all shared in the fact that it wasn't as strong as we would have like to have seen but there were balances that created the ambiguities that many of you have addressed but we still are committed to working on making this a good ordinance for the City of Fayetteville. Joe Barnette, one of our current members is sitting with the task force and working hard on this. We are willing to listen to points of view and are willing to make this a very powerful, helpful ordinance that really means that when people develop land they really invest in land, and part of that investment is preserving trees. The League of Women Voters works through consensus and she was asking all of you too, to work through consensus on this issue and consider the spirit of this settlement as a positive turn for the City of Fayetteville. Thank you very much. Ms. Terry Eastin, an area resident, stated she would like to tie her thoughts into Mr. Butt's well put presentation. But the first thing she had to do was to eat a little crow and it doesn't taste good but she was going to do it anyway. The last time that she spoke before this Council she spoke from her position of anger and she apologized for shanng that anger. Every time she would come into this Council room and had asked for in respect for the citizen who stands at this podium and speaks their beliefs, she did not feel like respect was the course of that evening. She would also like to extend an apology to Vice Mayor Bob Davis. She and Bob are teaching each other about trails and their benefits for this City. Sometimes in the heat of that effort, we crossed. She believed Mr. Davis has the interest of trails and trails construction in his heart. She really did, Bob That is evidenced by the fact that there are going to be many new trail projects beginning in Ward 3. Not as Chair of Friends for Fayetteville and not as the State Chair of the Arkansas Trails Council, she was there to ask the Council to accept this settlement. She was here on behalf of trails and trails advocacy. Now her tie back to what Mr. Butt had to say has to do with the conservation easements. Conservation easements represent a method for getting a trail system and network in place m this City. The most difficult dung about establishing a trails network, and she knew that Alderman Davis would agree with her, are acquiring easements and land and places to put those trails. This is a win-win situation for Parks & Recreation, for Trails 000,Q254j, City Council Minutes January 2, 2001 Page 25 and for all the things that Mary Alice just mentioned. So she would ask that you please vote to accept the settlement. Thank you. Randy Johnson who lives on Old Wire Road and was a tax payer of this City. Let's just assume that he had not heard a word that has been said, and a lot of it he had not. Ya'll are going to set here on the jury and Judge, he assumed. If you approve this somebody is guilty, nght? Mayor Coody answered, no sir. Mr. Johnson asked, why not? He thought Kim Hesse has done a good Job. She is going to be guilty if you approve of this settlement of not doing her Job. Right? Mayor Coody answered, that there would be a lot them up there that would disagree with that perspective. Mr. Johnson asked if this was kind of like flea bargaining, isn't it? We go flea bargaining to see if we can't keep out of court. He thinks the City has to go to court to settle this. He certainly does not approve of spending money on easements, unless it is going to ease under power lines to cut trees down to keep us from having power outages in ice storms. You are going to have a new tree ordinance. Are you going to enforce it? Mayor Coody answered; yes. Mr. Johnson asked if they were going to enforce all of the City's ordinances? Mayor Coody answered, yes, that was the plan. Mr. Johnson asked, your litter ordinance? • Mayor Coody said he was sorry he didn't understand him. Mr. Johnson said, your litter, anti littering. You going to enforce that? Mayor Coody answered, yes -It will take a while to get up to speed because they don't have all of the personnel they need to`enforce ordinances. They were behind on a lot of them, but yes, they would like to do that. , A Mr. Johnson asked if they were going to enforce them? x s ` 1 f r Mayor Coody answered, yes. - UUUUdti City Council Minutes January 2, 2001 Page 26 Mr. Johnson said that he was almost 86 years old. He would never live to see the day you will enforce your ordmances. Mr. Johnson said he wanted to ask the Council a question. Why are you here? He was serious. Why are you here? Alderman Zurcher answered and said that the majority of people who voted elected them to be there. Mr. Johnson answered, you are by a slim majonty, you know. Alderman Zurcher said, by 100 votes. Mr. Johnson said that was a weak argument in this case, very weak. Alderman Zurcher stated that was the only one he had. Mr. Johnson said he was asking you why are you here? You make variances all of the time. You have made some probably tonight. You'll say you are only allowed six parking lots but we are going give you ten. Don't you? Don't you do that? Mr. Johnson asked if they had done that recently? Alderman Davis answered, yes, sir. Mr. Johnson then asked what was the difference between that and a few trees? Can you tell me? Can anybody tell me? Alderman Thiel said she did not understand Mr. Johnson's question exactly. Mr. Johnson said that his question was, why is this one ordinance so important? Alderman Thiel answered she believed the citizens of Fayetteville had indicated that it was important. She believed that the election did indicate that. She believed by the overwhelmmgly way that Mayor Coody won and she won in Ward 1. She believed that it did indicate that because they basically campaigned on the platform of this tree issue. Mr. Johnson said to Alderman Thiel, let me ask you a question. Why do you want to save a tree? Mr. Johnson said, answer me, please! Why, why do you want to save a tree? Alderman Thiel asked Mr. Johnson why did he want to cut one down? : s ri . Mr. Jolmson said he just wanted to know what was so important? 0 Q01024j «j 061 City Council Minutes January 2, 2001 Page 27 t Alderman Thiel answered, shade, oxygen, cooling, they cool the atmosphere. Mr. Johnson asked if they were good for our health? Alderman Thiel said, absolutely! Mr. Johnson asked, why is it that in the places of the world where there are more trees than anywhere else that we have the shortest life span? Alderman Thiel answered that was an interesting point but she did not think that it had any thing to do with the trees. Mr. Johnson said he was serious about this. Now take Agri Park out here. It is a beautiful park. It doesn't have too many trees, .does it? It is much more attractive than this hillside over here that has a bunch of little trees glowing up close.together. • Getting back to this settlement; -he is utterly opposed to it but if you do vote that these people that approved of this were guilty for not enforcing the ordinance, he thought you ought to spend it on trimming trees under power lines or something that does not require up keep on your land that you are going to buy. You don't keep the land that we have now too well taken care of. We have more parks he was told than the City could take care of. Why do you want more? Any'answei?. _ F. y Mayor Coody said that this was a whole different issue outside of parks. These are large issues. It is hard to answer all of your questions. Do you have a specific point that you would like to • come to? Mr. Johnson said his point was that you are going to judge somebody guilty if you pass this ordinance, this settlement. You are going to say that Kim Hesse didn't do her job, the Council didn't do their Job, the Mayor didn't do his job. Mayor Coody answered that some of us might say this is the way to avoid going to court. It would cost us a potential lot of money in the long run. He believes that there was a lot moreto it Mr. Johnson asked how much it cost to go to court? t Mayor Coody said he did not know. He did not know the answer to that question. Mr. Johnson asked if he thought the court might throw it out without trying it? UUUU4a City Council Minutes January 2, 2001 Page 28 Mayor Coody said he bet they would try it. Mr. Johnson asked, no possibility? Mayor Coody said the teal date was set for the 18th. Mr. Johnson asked, Mr. Rose, how much he thought it would cost? Mr. Rose answered that he got paid whether they went to court or not. It was one the good deals that he made before. Mr. Johnson asked, a million dollars? Mr. Rose answered that he did not know. A lot of it would depend probably on the attorney fees gamered by the other attorneys and not by him. It would cost him two or three days of time for the trial, and he was sure, if not that many, twice that many in preparation of work. He was not sure how you place a dollar value on that. Mr. Johnson said, well, he only had one other recommendation to the Council. Send somebody out to Colorado City, Arizona, and find out how to run a city. They tell you what to do, when to do it, and how to do it. Mayor Coody thanked Mr. Johnson. He asked if there was anyone else that would like to address the Council? Morty Newark wanted to congratulate all of the newcomers to the Board, to the Council. He played a number of different sides and he has been physically and emotionally involved in this ever since it came up He believes, as has been stated earlier this evening, voters have really spoken in a very strong way on a number of different races. He thought that the League of Women Voters and the Sierra Club are bnnging this issue basically to a head. He believes that this has been a compromise here. He sympathizes with those who want to save the trees on Lot 7. He would like to see the trees also saved on Lot 7. This issue that goes to court is not gomg to settle so many things that they needed to settle. What we need to settle happens in a legislative atmosphere, in a legislative environment. His personal feeling is that he has faith in a process and faith in people that were elected and are on the City Council right now that they will do the right thing. In the next year next two years, next three years, four years, we can begin a process in the nght direction beginning with a voluntary settlement without having a jury saying you have to do this, without having a Judge saying you have to do this. But a process that is a healmg process which is a step in the nght direction. And voluntarily over the next period of time, moving in a direction that will clan& this ordinance so that we continue to do the right thing and then eventually, in a year, two, three years, we are going to have an ordmance that none could Lu 44,7 r City Council Minutes January 2, 2001 Page 29 nval. That there won't be any holes that are so obvious or so big that we are .going to be stuck and have a lose and back to square one where we have been for the last eight years. He was asking each of them to have faith in themselves to do the right thing, to begin a process of reconciliation, a process of healing and a process of bunging harmony to this issue, to people on . both sides of this issue. And everybody is going to be satisfied. You are going to have people no mater what you do that are going to say they don't like this That is just the nature of the position that you are in because you are never going to please everybody. But he believes that you are. going to please most of the people who have spoken at the ballot box in November and said we want to see the City Council start moving in a direction to do the right thing. This is the first step on the second day of the year. in the first meeting when you all can start to do the right thing and as Mr: Maguiresaid, let's do the deal. Let'' s do this settlement 'Let's make most of the people • happy arid let's take that initiative and take the momentum of this settlement on into the new year where we can start to see some results and some harmony and coming together while we enforce our ordinances and do the right thing.. Mayor Coody said to Morty that he had brought forth some great eloquent points and he had always admired his speaking skills. This whole issue about this tree sit, the three weeks where Mary Lightheart set in the tree, and all of the grounds for the public support, publicity, has changed the way that we will do business in this town for years to come. It changed our government. It changed the way that we perceive ourselves as a community. It is going to have a positive impact for a long, long time For those folks that would rather us turn down the settlement and go onto court, he would rather find ourselves doing as you say, shaking hands and saying we are going to work together to make this community better for everyone, for the business community and the environmental community. He believes that this settlement probably will go a long way towards doing that more than going to court would do. He appreciated Morty's comments. • Alderman Reynolds addressed the Mayor and wanted to ask a question. The lady that brought this all about, Mary Lightheart, stated tonight that she was against it and if we take this settlement tonight and she goes back out onto Lot 7 and gets into a tree again, what are we going to do? Mayor Coody said he did not have an answer for him. Alderman Reynolds asked if the developer was going to do his job this time? Mr. Butt answered that was an interesting thing. The emotions were so high that they weren't sure whether Mary Lightheart was supported by 5, 10, 60, 100, 1000 people. They were afraid that if they took one person out of a tree, you risk literally life and limb to calm 20-30 people trying to remove a person, that within the next day there would be several hundred people out there and we wouldn't have one person in a confrontation, we would have a Woodstock out of V V V V J V City Council Minutes January 2, 2001 Page 30 control on the tree issue. And the notion was to wait her out, and in hind sight he did know if that was good or bad, but it got everybody in Fayetteville, helpfully or unhelpfully focused on this issue for a long time. People kept saying to me, why don't you snatch her out of there? Tough decisions are made in hard times. He could assure you, and he will warn Ms. Lightheart that if she tries to get m that tree tonight that we have excellent Pohce force and she will be out of there as soon as they know that she is there, and anybody else because he is puttmg Fayetteville on notice that Lot 7 is off limits. If people climb those trees, they are trespassing. They will be criminally prosecuted. They will be physically removed from the trees. We have been through this once and found out that was not the right way to do it the first time. We will move them out of there and he thought that position is warranted here because he thought that most of the community by casting their votes for this Board, by meeting before the prior Board and this Board, by being here tonight, the whole tone of this thing, while there are people still opposed to it because it is not green enough or too green, this is a conciliatory tone and he does not see hundreds or thousands of people running out there, particularly m this weather, to climb mto a tree. Let me just say here we are putting you on notice that we are going to pull them out of there and enforce the property owner's the best we can. And this gets back to Alderman Trumbo's concern, nobody can keep somebody bent on doing something out of the ordinary from doing it if they get it m their craw, they gotta do it. If it is not this ordmance, it maybe another one, but the cure for that is in trying to avoid the ambiguities that lead to the frustration where both sides felt the other one was just so wrong they had to go climb into a tree or file a lawsuit or something. Alderman Reynolds asked that if the Council agreed to this, they were going ahead and enforce it, right? Mr. Butt answered that all he could say was that the developer if given a choice of letting a person sit in a tree or throwing them out this time they will pull them out as quickly as they can get them out. Alderman Reynolds thanked Mr. Butt. Alderman Zurcher said he would add one thing to that was as a person who was not sitting up here when that issue went down, there was a lot more and other issues besides just the trees being threatened and cut down. He believed that there was a feeling with a lot of people that people were not being listened to. People could show up at the City Council meetings in droves and pack this room out and line up and speak, 30 of them at a time, and be ignored. He does not believe you are going to see that here with this new configuration. He believes things have just changed and things are different. He doesn't Just say this because over this issue he night lose some friends. He considers Mary Lightheart a good friend He considered Mr. Presley a good friend. He is so thankful to them for what they did with this issue. He believes that we need people at certain times to do those things. At the same time those people are not the plaintiffs in • • City Council Minutes January 2, 2001 Page 31 this lawsuit. That was not their clean this. -They played their role and played it well. They brought the attention that was needed ihere but on the legal side, they were not involved in the legal side. He believes it is more appropriate for them to work as a City. Mayor Coody asked if Rex wanted to speak. Rex. Dufour said; thank/you and congratulations to the new faces on the Council and Mayor Coody. He said he was a bicycle activist in town. It was about a year and a few months ago that he stood before this Council to present a petition to the Council with about eight hundred signatures on it that called for construction of some multi -use trails on Hwy. 265. That particular effort failed but it certainly got the attention of folks, the Mayor's attention at that time and some Council attention, and he was very gratified that some of the money of this settlement might be put towards the construction of more multi -use trails. The point he wanted to make was, actually two points, is that one, construction of multi -use trials and alternate transport is a good thing for Fayetteville It is something that Fayetteville needs very badly and if you compare Fayetteville to cities of equivalent size across the country, they were and are badly behind. We are making up time quickly but we're behind other cities of equivalent size. The second point he would like to make is that any money spent on acquisition of land for these trails, if we spend say $100,000 to acquire land for multi -use trails, that can leverage another $400,000 in federal funding for trail construction. He believes that in that sense it is worth much more than the face value of the settlement. If we spend $200,000 then we'll leverage another $800,000 of federal funds. So that is something to keep in mind when you are thinking about voting for this settlement is that any funds that are put towards multi -use- trails or even green ways thatcan be used towards multi -use trails will be leveraged four times. It is a 20/80 match. Alderman Thiel asked Rex if no monies from this fund shall be spent on the construction of trails. Mr. Dufour answered, okay, that's fine. Alderman Thiel stated just for the purchase of land and trails. Mr. Dufour said that as Terry has mentioned it and Bob Davis knows that the acquisition of the land for the trails getting the trails done, we have lost a good opportunity. This is a chance for the City to really leverage a lot more money than just the settlement and he would really encourage all of you folks to vote for the settlement. Mayor Coody thanked Rex. Alderman Trumbo said to Rex that even if this thing doesn't get passed on the settlement, he thought didn't they have in the Budget an amount of money for this proposed settlement already. • City Council Minutes January 2, 2001 Page 32 I mean, the money can still be appropnated on a budget adjustment for it whether this is approved or not. Mr. Dufour answered that was a good point and he would encourage the City to allocate funds if this settlement doesn't go through today. Alderman Tnunbo stated obviously you have a green Council here and a Mayor, and they still have the opportunity to vote and do exactly the same thing. Mr Dufour answered, good idea. Mr. Rose said he did not know if that was a legal question. He did not know if it had a legal answer to it. Certainly by way of settlement, budgetary decisions are often made. That is not unusual m the City area. It happens on virtually every lawsuit we have done over his ten years here. So it is not an unusual thing nor does he thmk it was unusual for cities across the State of Arkansas, the Umted States, however seldom you may do it. Now whether or not that's a wise decision or unwise decision, is beyond his legal capabilities of answenng. That's what these folks do, not me. Alderman Trumbo said, but there are those that believe that if this Council decides to do the jury and decide this and settle this, there are those that believe that say for example on recycling because there is snow all over Springdale everything that was picked up last week for recycling wasn't recycled. It was dumped in the landfill. There are those that believe that, well, they settled that tree thing, I'm going to have to sue them on this other deal and they will settle. Alderman Zurcher said he had a question for Mr. Rose. How many times have we been sued in the last year or two by these special mterest groups over things the City has done or has not done that weren't nght by their opinion? Mr. Rose said he could not think of any other than this. Mayor Coody asked if the Council had anything to add to the discussion. Fran Alexander stated she believed that the settlement is wise. And the other thing is that she agrees with Mary and that puts her in a rather schizophrenic position. Mainly she thinks that if they settle they need to understand that there is a line in there that says, "expenditures from the funds shall be for the preservation of trees, environmentally sensitive lands or lands with significant environmental immunities or pnor additions to the City's existing systems of multi- use sidewalks and trails." She agreed with Mary because the settlement needs to address what the issue occurred from and that is the preservation of trees. She is going to lock Trent in a room someday and explain this thing to him as closely as she can but m the meantime. 0y003:,`t 0 ...._” City Council Minutes January 2, 2001 Page 33 Alderman Trumbo said people that have timberland lease them for specific or selective cutting and replacement and can be a big tree activist in the urban forest . I mean, we can never agree on people that profit from that and then protect trees. Ms. Alexander said that Alderman Trumbo was absolutely incorrect on almost everything he had just said, but other than that what we have to do here is understand that urban forestry is the key to understanding',!o'v`hat;tihepreservation ordinance is there for and what the canopy is there for and what urban forestry really means in opposition to forestry as a industry that is producing products in a different way. Urban forestry produces a healthy environment for people living under that canopy. Urban forestry is not addressed in this other to say the preservation of trees. Now what the issue centers around, and the reason she disagrees with Mayor Hanna about this, is that you are not keeping the commercial development healthy by buying trees. It is the use of public money to preserve as best you can where the impact of the wound is that building and concrete made from the City that we should be understanding if we settle and get money, we need to say that preservation of trees and environmentally sensitive immunities or whatever, is where this money needs to be concentrated on. Now that can be in trails because trails are roads and you can shape roads and shape trails at the time, but you need to understand that the wound is occurring in urban forestry issues from commercial development and residential development in such a way that if we are going to settle anything we need to settle understanding the needs of what the Tree Preservation Ordinance is about. Now she is on that Ad Hoc Committee and she is telling you through this thing one word at a time so there are no ambiguities or misinterpretations. And it won't matter. It will depend upon the political makeup at the time that it is used no matter how hard we work because that is one of the reasons that we still haven't fimshed this thing. We may be months more trying to finish it. It took them eighteen months to wnte the first one and one of the reasons it has all the ambiguities in it is because it was so political at that time to get it passed at all. There were so many compromises made and so many of every aspect of it done at that time that it is what they finally settled on. So hopefully in our current atmosphere we will be able to come with an ordinance revision for you that as Mr. Butt said, and she hoped Jerry will be still here with us to just shoot as many holes in it as they can and the public can too. She thought one of the sad parts is that the settlement has not been published in the paper for people to read and to offer you their suggestions. She is like she said, a schizophrenic mind here. She is for the settlement because she doesn't think they are going to gain anything by going to court, but she is also in agreement with Mary that this is about tree preservation. It is not really about other thing's. x Alderman Trumbo. asked Fran to help him again on the tree preservation. He knows that he is slow but if we are trying to go forward he keeps bringing up a current project at St. Paul's Church . I mean, they could have expanded to the east and saved all of these trees. They went to the north and those trees are fifty years old. They are healthy. They are big and have been around forever.' It is a historic district but that is okay; and he asked you that before and then the trees at the library, and that's okay because you said they were diseased and we need to study UUUU:51 City Council Minutes January 2, 2001 Page 34 and those landmark trees can be taken out, but that is what my problem is that if he voted for the settlement you have people who are going to be upset about public projects and we haven't anything. Ms. Alexander said, you know, really in a way, Trent, she wished he would win his 15% thing. If we enforced the 15% like he was saying, it ought to be the same for everybody. Alderman Trumbo said St. Paul expanded their church, the library couldn't build their new library, and Washington Regional couldn't build a new hospital. Ms. Alexander said she was saying m the future. You can't claim back or we would be able to do something about what Mr. Butt's been up to. The thing that she was talking about was the future. We need to comprehend what the ordinance says. It says, " if you cannot develop it without lowering the preservation percentage, then an administrator has to make that call." Alderman Trumbo said, nght. Ms. Alexander said with the argument it has always been is that they don't want to do it even if they could do it. That is the argument. It is not if you can't. It's that you don't wanna, and that is where the crutch is here. Now m the case of the library, it went through 26 public hearings. The neighbors on the west side did not want to maintain that high slope with a three story piled on top of them puttmg them in a deep, deep valley They wanted that side removed. She has learned in 33 years of environmental work that if you don't have people who are directly affected on your side, give up. Those folks did not want the west side of that property kept, and that intersection there was dangerous and therefore, if those trees were in perfect health, the Landscape Administrator had to make the call whether those trees stayed or not. The rest of those trees, she had told you, have been analyzed for their health. They were trees that were growing under foundations and they were trees growing around homes A lot of them were very small and a lot of them were diseased. She had been asked by the architect, if the trees only had fifteen years between them. Did they take out the trees or did they work around them. She said if they had trees where two arborists had analyzed their condition and they did not have that much life in them and they could not stand the impact of the construction around them. That was what the judgement was based on, not the percentage. If they wanted to stick to the percentage of the 15%, then they would be X-ing projects all over the place. It was not ambiguous. The ordinance allowed that flexibility for each individual project to be judged under its individual circumstance. In response to comments from Alderman Trumbo, Ms. Alexander stated they could not take care of everybody's misconceptions. Every individual site had to be looked at and Judged differently. Mr. Ron Pursley stated he was here to ask them not to vote for this settlement. He felt it did not address the issues of the lawsuit of which he feels are very valuable. He feels they are valuable U.0 U t -0 City Council Minutes January 2, 2001 Page 35 to the citizens and he thinks that the very fact that some of you ate sitting here are an expression of how much the citizens have valued that lot out there and valued a final summation of the interpretation of that ordinance of that specific site. He realized this was very politically expedient to use this as a vehicle to get money for trails. The trails had been worked on for a while here in the City. He thought it was a very important project to continue. He thought that the environmental climate also expressed at the election that the citizens were for environmental changes that would bring trails into existence. He thought the trails could happen very easily without using the lawsuit as a vehicle to fund them. He guessed that it comes down to them having to make a choice between finding out for certain in a court of law whether or not there was an incorrect interpretation at the CMN site and whether or not they value that more or less than trails. He would hate to think that this would come down to an evaluation like that. He thought they needed to take this to court and let it run its course. Then subsequent to that money should be asked for trails. Thank you for your time. Ms. Cindy Seigers stated she lived at 1907 Harold Street. She said she was a plaintiff in this lawsuit. She thanked the Council for hearing their comments tonight. She thought she was a full hour and a half ahead of schedule from the last time. She believed she spoke almost to 11:00 o'clock but she feels rested so for them to take a deep breath and settle in. She said her • comments were brief. She thought there was a really good spirit about this settlement. She also thought there was a spirit of compromise here. After a very trouble year in Fayetteville she thought they were ready to move forward and that is what we really would like to do. She would sort of like to divorce this suit from trails development. • She thought they were trying to settle over preserving green space rather than building more roads. She hoped the Task Force when it is formed would take that into consideration. It really will be a diverse committee. She thought all views that were expressed tonight should be represented on that committee if it's formed with a mission of the settlement. She encouraged the Council again to please take them very seriously. It was a good effort, she thought, by both parties and they were looking forward very much to the outcome. Thank you very much. 'Mayor Coody thanked Cindy. He asked if there was anyone else who wanted to speak and if not they could bring it back to the Council if there was no one who would like to speak publicly. Alderman Trumbo said he had a letter from a constituent who requested he read this letter before the Council. He said he lives in Ward 3. His name is Darin Farrish and he lives in Timbercrest, the same subdivision he lives in. The letter reads as follows: "Hello, my name is Darin Farrish and I have bee a resident of Fayetteville since 1969. I have owned several businesses over the years and have always loved Fayetteville and have been proud to call it home. I have noticed over the last several years we are hearing more from a group of people that call themselves progressive. To me a progressive person would be one who was moving Fayetteville forward in a responsible manner, increasing the tax base, providing our residents with more and better Job opportunities and maintaining Fayetteville's position as a leading City in Northwest Arkansas. 000036 City Council Minutes January 2, 2001 Page 36 Two of our Aldermen, Ms. Thiel and Mr. Zurcher, who called them progressive, helped Fayetteville progress by being associated with entities that sue the City of Fayetteville over 51 trees. How many jobs and how much sales tax would be created by that facility? You know, the progressive people don't care. I understand that this litigation includes the League of Women Voters and Ms. Thiel was an officer at the time the suit as filed," (Trent interjected that this had already been addressed) "I saw a Parks meeting where Ms. Thiel and Mr. Stockland, a local tax attorney, got into a tiff because she said he shouldn't vote on a Youth Center item because he was a member of the Youth Center Board. I suspect that you will take the same stance when it comes time to vote on this matter and abstain. Mr. Zurcher has a relationship with the Sierra Club who is also a party to this litigation. In any event, I understand that the City of Fayetteville has no monetary exposure in this litigation. Even though we have no monetary exposure you are proposing to pay these progressive entities $450,000 for more trees in Fayetteville. Let me first say that everyone likes trees and the only difference is the relative value that each of us place on trees. I believe that most residents put more emphasis on city services like fire, police, trash collection, than trees. People are more important than trees. We have a group of progressive people who would cost our residents jobs, sales tax dollars and city services because they wanted to keep the same 51 trees rather than replant trees. The City of Fayetteville cannot roll over every time a group of people want something different than others. Your job is to provide essential city services and construct essential city infrastructure . You are responsible for being good stewards of the tax dollars we pay you. Settling this lawsuit is an irresponsible expenditure of City dollars. That $450,000 could be used to make improvements to the baseball facilities at Walker Park so the boys have somewhere to play baseball that is at least half as nice as where the girls and adults play. It could be used towards a new sewer plant that we need badly. It could be used for programs to make the Fayetteville parks safe for the public. It could be used for additional support for our new Youth Center Building that will be enjoyed by 4,000 children in our community. It could be used for the parking garage that needs to be constructed in downtown Fayetteville. There are many other places that this City could use $450,000 and we certamly don't need to spend it to settle litigation against progressive groups who put trees in front of city services. Benton County is getting more of the new jobs, new tax dollars and new neighbors than Fayetteville. That is largely due to our progressive group of people who make Fayetteville a less attractive place to live than our neighbonng towns. I want you to know that there will be a group of people who will contmue to watch City Government and tell you when we believe you are actmg irresponsibly. We are determined not to become a veteran community to Springdale spending the tax dollars you collect from me and many business owners like me to settle this litigation is irresponsible and not even remotely progressive." Alderman Truunbo stated that as far as he understood the tax settlement was suppose to be derived from sales tax from Kohls and not from other sources. He thought Mr. Farrish was wrong m that but this is just like any other tune when the Council takes comments from everybody on different views This is just a constituent that's at home watching. Mayor Coody thanked Alderman Tr umbo and asked if anyone else had any comments for the City Council. 4.01g;347 0 0 347 City Council Minutes January 2, 2001 Page 37 Alderman Zurcher stated earlier Alderman Reynolds mentioned closure. He thought on this it was definitely something they did need some closure. This is a big issue. He said after seeing the results of the elections he was feeling good about closure. He was feeling a pretty strong sense of closure here because the people got their say in the best way possible -in a democracy. They went and voted. To him the only thing that was left on this was trying to get the parties involved in the lawsuit to get together and say there are some terms that we can agree on and agree to quit suing each other over. To him that is closure. With that said, Mr. Butt encouraged them not to start tweaking this thing but he did want to make one little tweak and he would like to propose this as a motion to amend this thing. On the first page of the settlement agreement at the top, down on No. 4, it says, "the attached letter. " That refers to the letter Ms. Hesse is going to send the developers, engineers and architects. After that last sentence on No. 4, it says, "the attached letter" will be sent by -certified mail. He would like to add to that or amend that so it will read, the letter will also be given to all persons proposing a development affected by a tree regulation. That was one thing Alderman Young brought up that was'a kind of a sticky point. So that way a letter wouldn't just be automatically be sent out. It would automatically be sent out to all developers, architects, etc, but also if somebody comes up with a proposal for a development that would be affected by a tree regulation this letter would automatically be given to them too. Alderman Trumbo said he would second that. Tim Conklin, City Planner, said he wanted to make sure when someone came to their office he knew how to handle this. Should they attach the letter to the development application and include it in the packet? Alderman Davis asked Mr. Leflar if this was acceptable to the plaintiff's side? Mr. Leflar replied they had no objection to that. Mayor Coody asked Jerry Rose, City Attorney, if he had it written down in a way they could clearly understand it. Mr. Rose answered, that's fine. Alderman Young said there were certaindevelopments that really don't come under the Tree Regulation but if it does, it would be included in that packet. Upon roll call the motion unanimously passed. ,900038 • City Council Minutes January 2, 2001 Page 38 Alderman Santos said he was ready to make a motion. He said it looked like both sides on this lawsuit were asking to let them stop fighting, so let's let them stop fighting. He moved to accept the settlement. Alderman Zurcher seconded the motion. Mr. Rose asked if he could make a few ground riles before they start so people won't accuse him of changing the rules after the vote was taken. Here are the rules how he understands them. First of all, Alderman Thiel and Alderman Zurcher came to him both and discussed with him on a number of occasions the possibilities of the conflict of interest. He has looked at Rob Leflar's article. He found it as you would have found it. It was a well written scholarly article written by a part of a great faculty of a great university of a great city. It's about what you would expect, nothing less, certainly nothing more than that. He did a little research on his own and tried to look at some text as and tried to give his advice to the two Aldermen that requested it. He can tell you that his role is not to tell them if they can vote or not Nobody has made him judge as City Attomey or may instruct these people what to do. He tried to give them his best legal advice. Generally that advice runs to what the legal risks are involved. As far as Ms. Thiel, if his understanding the facts are correct, she has no supervisory or leadership authority m the local chapter that has brought the lawsuit of the League of Women Voters And accordingly, what legal risk, in his estimation, that Ms. Thiel has is very, very minimal if any at all. Mr Zurcher is a httle bit different situation. If there was a legal risk involved, it is his read on it he would assume that legal risk much the same way as an officer or director of a corporation might have some degree of legal nsk or perhaps a stockholder who has a majority or controlling interest might incur. He doesn't think mere stockholdership or mere membership, for instance, in the Sierra Club would eliminate their ability to vote, but he thought under these circumstances the legal risk of Mr. Zurcher voting would be considerably higher than Ms. Thiel's and accordingly he has talked to the Aldermen about that. However, the decision is theirs It is a decision that is one they will have to make. Remember that the general rule is they have abided by for years and years and, one that his predecessor followed, was that abstentions to with a majonty. Okay? Whatever a majority votes the abstentions go towards that majority. The Mayor may vote, in any case, in which his vote is needed for the passage of a measure That means the Mayor does not have to wait for a tie to vote. He may vote if his vote is needed for the passage of a particular measure not just ties. It takes five votes. It takes a majority of those elected to the City Council for this resolution to pass. Alderman Santos asked about counting abstentions. Mr. Rose answered that abstentions, again, go with the majonty. He said he would give them an example. Should there be a 3-3-2 abstention vote, the Mayor may vote, and in so doing build a majority. Therefore, the 2 abstentions would follow that majority. If that nominally should occur that would be his rule. What else do you want to know? He thought that this was one of City Council Minutes January 2, 2001 Page 39 those occasions in which it would be best for him not to give the Council his advice about this settlement. He believed that this was stnctly a client decision and he didn't know a client that had been better informed as a ggoup than the one he was lookmg at here. The Council has heard every argument that he could certainly think of to tell them for and against this from all these people that have been here tonight and some he had not even thought of. He believed the Council was getting good advice, in the sense, they were gettmg good reasoning and you have heard all of the arguments. This was a client decision and one that you must make. Mayor Coody said they still had a motion and a second to approve this settlement for a resolution. Mr. Rose said yes, we do indeed. • Upon roll call the motion carried by vote of 5-2-1. Young and Truinbo voting nay. Thiel abstaining. Meeting Adjourned at 1.1:00 p.m.