HomeMy WebLinkAbout2007-08-07 MinutesMayor Dan Coody
City Attorney Kit Williams
City Clerk Sondra Smith
KA
City of Fayetteville Arkansas
City Council Meeting Minutes
August 07, 2007
City Council Meeting Minutes
August 7, 2007
Page 1 of 43
Aldermen
Ward 1 Position 1
— Adella Gray
Ward 1 Position 2 —
Brenda Thiel
Ward 2 Position 1 —
Kyle B. Cook
Ward 2 Position 2 —
Nancy Allen
Ward 3 Position 1 —
Robert K. Rhoads
Ward 3 Position 2 —
Robert Ferrell
Ward 4 Position 1 —
Shirley Lucas
Ward 4 Position 2 —
Lioneld Jordan
A meeting of the Fayetteville City Council was held on August 07, 2007 at 6:00 PM in Room
219 of the City Administration Building located at 113 West Mountain Street, Fayetteville,
Arkansas.
Vice Mayor Jordan called the meeting to .order.
PRESENT: Alderman Gray, Thiel, Cook, Allen, Rhoads, Ferrell, Lucas, Jordan,
Attorney Kit Williams, City Clerk Sondra Smith, Staff, Press, and Audience.
,r
'ABSENT: Mayor Coody
Pledge of Allegiance
Vice Mayor Jordan: Alderwoman Gray has a special presentation for us tonight.
City
Alderman Gray: We do have a special presentation. The First School of First Presbyterian
Church is going to sing for us. This is just the K-1 Class. They are going to sing a recycling
song that they felt would be a very good one for our city. They wrote the song.
Presentation: First School of First Presbyterian Church K-1 Class - Carolyn Swaney, Teacher
,and David Channell on guitar.
Alderman Gray: We appreciate this very much.
Vice Mayor Jordan: I believe Alderwoman Allen wants to pull an item from the Consent
Agenda.
Alderman Allen: Yes, I would like to pull #7 please.
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Vice Mayor Jordan: Should we put it at the end of the Consent Agenda right before we start
unfinished business?
Alderman Allen: That would be great.
CONSENT:
Approval of the July 03, 2007 and July 17, 2007 City Council meeting minutes.
Approved
Bid # 07-46 Littlefield Oil Company: A resolution to approve an annually renewable contract
with Littlefield Oil Company pursuant to Bid # 07-46 in the approximate annual amount of
$1,228,023.00.
Resolution 137-07 as Recorded in the office of the City Clerk.
Bid # 07-49 Sunbelt Fire, Inc: A resolution awarding Bid # 07-49 to Sunbelt Fire, Inc.
(Emergency One) for the purchase of one (1) 114' Articulated Aerial Platform Truck in the
amount of $886,843.00 for use by the Fayetteville Fire Department; and approving the purchase
of ancillary equipment in an amount not to exceed $25,000.00.
Resolution 138-07 as Recorded in the office of the City Clerk.
Bid # 07-56 Downing Sales and Service: A resolution awarding Bid # 07-56 to Downing Sales
and Service, Inc. for the purchase and installation of one (1) recycling baler in the amount of
$211,393.00 plus applicable taxes; and approving a project contingency in the amount of
$5,500.00.
Resolution 139-07 as Recorded in the office of the City Clerk.
IBM AS400: A resolution approving the purchase of an IBM AS400, Model 9406-515 through
the state purchasing contract in an amount not to exceed $43,700.00 for use by the Fayetteville
Police Department.
Resolution 140-07 as Recorded in the office of the City Clerk.
Airport Museum: A resolution to approve a budget adjustment in the amount of $16,000.00
from Economic Development Funds to the Airport Museum to finish the cabinets for display of
historic documents.
Resolution 141-07 as Recorded in the office of the City Clerk.
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GeoSyntec Consultants, Inc: A resolution awarding a contract to GeoSyntec Consultants, Inc.
in the amount of $199,883.00 to develop a Nutrient Reduction Plan in accordance with the
Beaver Water District Agreement, WSIP Subproject BWD-1, RFP 06-17.
This Resolution was removed from the Consent Agenda and added before Unfmished
Business.
Stone Bridge Lift Station Upgrade: A resolution approving an out -of -scope agreement with
OMI in the amount of $236,225.00 for the upgrade of Lift Station 13 (Stone Bridge), WSIP
Subproject EL -4 LS -13; and approving a 2% EL -4 project contingency in the amount of
$7,000.00.
Resolution 142-07 as Recorded in the office of the City Clerk.
Industrial Park Lift Station Upgrade: A resolution approving an out -of -scope agreement with
OMI in the amount of $74,942.00 for the upgrade of Lift Station 14 (Industrial Park), WSIP
Subproject EL -4 LS -14; and approving a 2% EL -4 project contingency in the amount of
$1,500.00.
Resolution 143-07 as Recorded in the office of the City Clerk.
McCollum Road Lift Station Upgrade: A resolution approving an out -of -scope agreement
with OMI in the amount of $74,931.00 for the upgrade of Lift Station 16 (McCollum Road),
WSIP Subproject EL -4 LS -16; and approving a 2% EL -4 project contingency in the amount of
$1,500.00,
Resolution 144-07 as Recorded in the office of the City Clerk.
Clean-up at 509 East Huntsville Road: A resolution certifying to the Tax Collector of
Washington County the costs of abating unsightly and unsanitary conditions upon the property
located at 509 E. Huntsville Rd. in the City of Fayetteville, Arkansas.
Resolution 145-07 as Recorded in the office of the City Clerk.
Eagle Park Improvement Grant: A resolution authorizing the Mayor to apply for an Arkansas
Parks and Tourism Outdoor Recreation Grant in an amount not to exceed $125,000.00 for
improvements to Eagle Park.
Resolution 146-07 as Recorded in the office of the City Clerk.
McClelland Consulting Engineers, Inc: A resolution approving task order #1 with McClelland
Consulting Engineers, Inc. in the amount of $45,000.00 to conduct an obstruction survey of the
Drake Field Runway Approaches; accepting a grant from the Arkansas Department of
Aeronautics in the amount of $2,250.00; and approving a budget adjustment in the amount of
$4500.00.
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Resolution 147-07 as Recorded in the office of the City Clerk.
Alderman Lucas moved to approve the Consent Agenda as read. Alderman Cook seconded
the motion. Upon roll call the Consent Agenda passed 7-0. Alderman Rhoads was absent
during the vote.
Alderman Allen asked that the following item be removed from the Consent Agenda for
discussion.
GeoSyntec Consultants, Inc: A resolution awarding a contract to GeoSyntec Consultants, Inc.
in the amount of $199,883.00 to develop a Nutrient Reduction Plan in accordance with the
Beaver Water District Agreement, WSIP Subproject BWD-1, RFP 06-17.
Alderman Allen: In my short stead on the Council there have been a number of times with the
Consent Agenda where I have not been real clear why something would be on Consent but I
think I am getting a better grip on that. I took a better look at this and wondered why we would
need to have a consultant come in to do this study. I wondered why it has to be outsourced and
why we couldn't do it in house. Basically I am wanting some explanation as to why this should
be on Consent.
David Jurgens, Water/Wastewater Director: As for the Consent, I can't really answer that, it is
eligible for Consent because it is approved by resolution but we are happy to discuss anything
that you wish to discuss. The reason we are going to a consultant for this is because frankly this
is something that staff doesn't have the skills or training to do in order to determine where the
nutrient loading is getting into the white river and then into Beaver Lake. It's an evaluation of a
lot of different factors. It's an evaluation of soil types and where the soil might be coming from
run-off where stream banks are eroding. It also looks at specific mapping from aerial
photography. It's looking within the City of Fayetteville but our City limits have a lot of non-
developed area inside the White River Basin. So frankly it's skills that the staff doesn't have in
hand. It also gives us an independent, impartial evaluation of where the nutrient loadings are
getting into Beaver Lake, nutrient loadings being specifically phosphorous being the primary.
The reason we need the contract and to do this work is because our Wastewater Treatment Plant,
in getting its new permit, one of the issues that came up was the nutrient loading to Beaver Lake.
David described why the contract is needed.
Alderman Allen: Did anyone else have any thoughts on this particular item or was I the only
one.
Alderman Ferrell: I was asked to serve on the committee that went through the RFP's for this
process and I too had questions like you. I realized it was part of the process to get the permit.
Alderman Cook: We have been kicking around this idea for years. I know at the water and
sewer level we talked about it a few times and ultimately this Council approved a year ago the
policy of moving forward with this study and that is what started the RFP process. The Water
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and Sewer Committee agreed with that and I thought it was a good thing personally because it's
studying the White River watershed which is our water supply. There have been a lot of
discussions about the loading on that basin and I thought this was a good thing for the City to
kick into do. It's been a long time in discussion.
Alderman Thiel: If I recall this also went to the Environmental Concerns Committee.
Alderman Allen: I thank you for the Council's input and I'm comfortable with leaving it there.
Alderman Allen moved to approve the resolution. Alderman Lucas seconded the motion.
Upon roll call the resolution passed 7-0. Alderman Rhoads was absent during the vote.
Resolution 148-07 as Recorded in the office of the City Clerk.
UNFINISHED BUSINESS:
CUP 07-2560 Bohot Appeal: A resolution to grant the appeal of the Planning Commission's
approval of Conditional Use Permit 07-2560 (Bohot) and to deny the conditional use. This
appeal was Tabled at the July 17, 2007 City Council meeting to the August 7, 2007 City
Council meeting.
Jeremy Pate, Director of Current Planning gave a brief description of the item. He stated this
J has been appealed by Aldermen to the City Council. Planning Commission approved this 5-3.
The request is for a childcare facility and that does allow up to 10 children however the Planning
Commission amended the Conditions of Approval and stated no more than eight children.
Jeremy gave the conditions of approval. He stated the project meets all our general criteria for a
childcare facility. It is simply an issue of compatibility. Staff recommended approval finding
this would serve this neighborhood and other neighborhoods in the area.
Wilma Bohot, resident of 124 E. 26th Circle: I want to open a licensed in home daycare to
provide a safe place for children.
Vice Mayor Jordan set some rules for public speaking and he asked the audience to please
adhere to them when addressing the Council.
Dave Harvey, a resident of 145 E. 26' Circle stated I would like to address the additional traffic
that would be generated in our neighborhood if Wilma Bohot is allowed to start a daycare center.
He described his concerns regarding the traffic. He also stated this is not compatible with the
neighborhood. He stated that most if not all the children that will be using the day care will be
arriving from other areas which will be a source of the additional traffic. He stated 80% of the
current residents have voiced theiropposition to the proposed daycare center and the
incompatibility with the neighborhood and the fact that we have covenants up there that restrict
the use of any commercial program that might wish to be developed.
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Jay Rodman, resident of 115 E. 26th Circle pointed out that in 2006 the Planning Commission
voted unanimously to deny this application. He asked what has changed in a year. He went on
to speak against approval of the daycare. He stated we oppose any commercial activity in our
long established residential only neighborhood. On behalf of all the residents of the
neighborhood that have expressed in an overwhelming majority their opposition to this
conditional use permit that the Council recognize what the Planning Commission could not. Our
neighborhood was designed to be residential only.
Lisa Claybrook, a resident of E. 28th Circle stated I sent an email expressing my support for Ms.
Bohot. As a new mother and family we have found it very difficult to find adequate daycare in
Fayetteville that isn't an institutional facility. We looked for in home daycare specifically and
we know that is the type of environment that we want our child in. So we were delighted to meet
Wilma and learn more about the steps that she has gone through to make sure she had an
accredited, safe and supportive environment that was a home environment for a child. She is the
second house on the first street so the traffic will not be filtering through the entire
neighborhood. To say that it is only a retirement neighborhood is a little short sided because
neighborhoods change over time. I feel she has gone through all the steps to make sure that she
met state and city requirements and she has lived in the neighborhood for 20 years. I know she
has the best interest at heart for it and plans to stay. I don't think she intends to take away from
the quality of life that we all enjoy while living there. I feel that this type of daycare is needed in
Fayetteville.
Janet Wilson, a resident of Club Oak Street stated I think the issue here is not so much the
daycare center but by allowing the daycare center it would open the door to other home based
businesses. That is the dangers that the majority of the people who are against the daycare have
in mind.
Samantha Mansell, resident of 149 NW Campbell Loop Rd. stated I have known Ms. Bohot for
10 years now. She is a wonderful person and is very trustworthy. For them to be concerned
about the traffic, she is the second house in there. She will provide a safe environment for the
children and they will be able to come and there will be no harm done. It's not like all the
parents will be there all at once. She will be able to provide the best daycare because it is very
hard to find daycare out there for children now days.
Jim Hashbarger, resident of 2519 S. College Drive stated that I don't think that most of the
people that live there have anything personally against the daycare or applicant. It's the fact that
we have purchased our houses with the knowledge that it was a residential area. If we keep it
residential it adds more to that community and would preserve what we bought when we
purchased our land:
Ann Hanna Newell, resident of 41 E. 29th Circle stated the covenants have never been rescinded
and it states that there should be no commercial activities in that particular neighborhood. She
went on to express her concerns about the traffic that the daycare would add to the street. She
asked the Council to please consider the fact that we have all invested money in our homes. She
stated we don't wish any harm to Ms. Bohot but commercialism in residential areas is two
opposite ends of the spectrum. She suggested placing the daycare on 71B.
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Terra Vaneustren, speaking on behalf of her mother who lives at 6 E. 291h Street expressed her
concerns about the traffic this daycare would generate. She also pointed out that the hill is very
dangerous especially in the winter time. She stated that it is dangerous for preschoolers to go up
that hill because accidents happen.
Robert Cooper, a resident of 2957 S. College Drive stated for ten years I had a daycare next
door to me. I would like to ask for a show of hands of those of us who are here in support of Ms.
Bohot and those who are opposed.
Those in support of Ms. Bohot, please raise your hand.
Members of the audience raised their hands.
Those who are opposed to Ms. Bohot please raise your hand.
Members of the audience raised their hands.
William Summers, a resident stated today I read the Planning Commission minutes and the
associated documents from the meeting where they approved this petition. I think they made the
right decision and I urge the Council to sustain them.
Casey Howell, owner of a daycare in Rogers stated the daycare is nothing like a commercial
business nor a preschool. There have been several issues from the neighbors about parking.
Her driveway would park 9 to 10 cars easily. The neighbors were also afraid that the children
would be out in the road so she put up a privacy fence. There was also an issue about noise
while the daycare is in operation. I have been in Ms. Bohot's house several times and where she
plans on having her in home daycare was in the den. The den is in the center of her home, there
would be no noise from those children. Several of them are talking about this being a
commercial business. This is not commercial, all she is asking for is a conditional use permit,
this does not change any zoning in the area. She went on to speak about Ms. Bohot's
qualifications. She stated she has been approved for all of this. I feel a lot of this has been
blown out of proportion. She stated the most cars I have had in my driveway at one time since I
have owned my business is three. Parents get off at different times and go to work at different
times. I hope that you all will allow Ms. Bohot to fulfill her dreams.
Alderman Thiel: I don't think this is a question about Ms. Bohot's character. I think she has
the credentials to provide this service and I know she has worked hard to try to get this
established. As it has been pointed out this has been the second time she has tried for this. I
think the concern of everyone is that they bought their home with a certain idea of what that
neighborhood is going to be and they want it to stay that way. They have a valid concern about
this setting a precedent. I will have to support the neighborhood because they feel very strongly
about this. I feel like it is not compatible with the neighborhood and it's going to add traffic to
the neighborhood and they just don't want it.
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Alderman Gray: I agree with Ms. Thiel. I will have to support the neighborhood as well. I
have had many letters, phone calls and emails from residents in this community. Even though I
think that good daycare is very important, we have to respect all the other families who bought
their homes thinking that there would not be any commercial business. I will have to support the
neighborhood and hope that Ms. Bohot can find another location to have her daycare. I want her
to be able to do what is important to her as well as provide a service for children in our
community.
Alderman Lucas: To appeal this it took three aldermen. I looked over this and decided to sign
this appeal. I am a strong proponent of protecting an established neighborhood. I think that if
there is strong opposition in a neighborhood to change then you must listen to it. This is just
maintaining the stability in a neighborhood so I will support this appeal. She went on to point
out that this was denied last year and she could not see any change that would make it any
different. She stated there are other areas that a daycare could be put in but mainly it was
protecting established neighborhoods. Each side has their rights to protect their neighborhood.
Alderman Allen asked Kit Williams I am trying to understand covenants and how much we
look at that when making this decision.
City Attorney Kit Williams: The City Council like the Planning Commission should not
consider restrictive covenants; they are private contractual agreements between the property
owners. Often times there are disputes to what the covenant means. If the property owners are
unhappy with granting a conditional use or some business that violated their restrictive covenants
then they can certainly take it to court. Those are private rights and they can't be enforced
outside this arena by the neighbors if in fact they believe they have violated the restrictive
covenants.
Alderman Allen: I was wondering, we talk about only the new neighborhoods having the
mixed use, is that just an unwritten philosophy or is that actually a part of the 2025 Plan? I
wasn't aware that we didn't look at a mixed use in an established neighborhood.
Jeremy Pate: I would agree, I don't think we differentiate between new and old neighborhoods
in terms of use; obviously the City Plan 2025 does promote infill which is surrounded by older
neighborhoods. We did a quick search and since 2004 the Planning Commission has approved 4
conditional use permits for in home daycares none of which have been new neighborhoods, they
have all been in old neighborhoods.
Alderman Allen: Thank you, I also wondered if there had been any other efforts for conditional
uses in this neighborhood through the years.
Jeremy Pate: We were asked that question and we didn't really find any applications for
conditional use permits. It doesn't mean they weren't there from the 1960's and 1970's but we
did not find any readily available requests. Obviously the commercial uses in the Country Club
were established well before we required conditional use permits or special approvals for that.
The only one I have was associated with the Country Club.
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Alderman Allen: There has not been a traffic study done to your knowledge. It seems to me a
load of golfers or folks coming to eat dinner or to swim would generate far more traffic than this
daycare might. Especially considering that it is at the end of the hill.
Jeremy Pate: I know there was an extension of this development further over on the other side
of the mountain several years back. I looked in those files and I couldn't find any evidence of a
traffic study associated with that project. It was rather small but it was an extension of a single
family development back behind the east side of the hill where it starts falling back to the east. I
did not find any information regarding a traffic study. I'm sure we did some work when the city
improved the curve but that was many years ago. So it would probably be outdated.
Alderman Thiel: I don't think we are really considering the covenants. I was aware that we
were not considering the covenants.
Alderman Allen: The neighbors had made reference to it and I thought it was good to clarify it.
Alderman Thiel: I still think the idea of mixed use needs to be something that the
neighborhood will use and does want. The two that Jeremy mentioned are accessible and they
would easily serve neighborhoods all the way around. We need to keep in mind that there is one
way in and out of this development. It is not something that people can use from all the way
around it. It will either be used from people that live there or from people that come up the hill.
Alderman Gray: Jeremy do you recall when we had the other conditional use applications,
were there folks who spoke out against or do you recall?
Jeremy Pate: Yes there were in both instances. As I remember most recently in 2006 and I
believe the other one was either early 2006 or 2005. The one on Raven Lane there was some
concern about traffic because the access there is from Mt. Comfort and how that would work.
There was concern about no sidewalks within that subdivision because it was constructed in the
1960's without sidewalks and the Commission heard those concerns. The other one east of
College Avenue they had concerns about parking on the street. It is a narrow street and so there
was some additional restrictions stating no parking on the streets. Hopefully this will solve some
of the neighbors concerns.
Alderman Thiel: Maybe we need to revisit the 2025 Plan in regard to mixed use in established
neighborhoods. That is a very good point. People that lived in those neighborhoods did oppose
that. We need to respect established neighborhoods, people who have bought into those
neighborhoods that have invested their money and livelihoods and that needs to be respected. So
maybe it is something we could look at.
Jeremy Pate: In reference to that, all of those prior projects that I have mentioned weren't
reviewed under the City Plan 2025 so this has been a conditional use for decades that you are
allowed to utilize. So the encouragement for mixed use under the City Plan 2025 is a little bit
separate from this whole discussion to be honest. We have not utilized that as something to push
these more and more. We accept applications as we get them but we see one or two childcare
facilities a year under conditional use permits and have regardless under City Plan 2025 or the
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General Plan 2020 and even before that. I just wanted to clarify that. I don't think the new plan
is promoting childcare facilities to be in neighborhoods any more than the last plan did.
Alderman Allen: Have you seen any precedent from one conditional use triggering other
conditional uses in the neighborhood?
Jeremy Pate: Not to my knowledge. A conditional use permit is looked at on a case by case
basis. Every single one of those is contact sensitive, one application for one particular
conditional use. We have to look at these individually and understand what impact is associated
with that particular use and make that recommendation accordingly. I don't think we can look at
one as establishing precedent for something else on the other side of town or even next door, we
would look at them individually.
Alderman Allen: I would agree and I certainly saw that to be the case when I was on the
Planning Commission. I think a lot of times folks feel like wherever they are, what they are
seeing at that time is the way it will always be. It is a case by case situation. I care about what
happens with this neighborhood. It is just hard for me to understand how the second house on
the first street with eight children is going to ruin the lives of the neighborhood. I think that
happens any time someone goes up there to play golf with their buddies or go swim or eat
dinner.
City Attorney Kit Williams: I prepared a resolution and the reason I did that is that you will
need to pass this resolution to grant the appeal and to deny the conditional use. It will require
five affirmative votes because this would be reversing the Planning Commission.
City Attorney Kit Williams read the resolution.
Alderman Thiel moved to approve the resolution. Alderman Gray seconded the motion.
Upon roll call the resolution passed 7-1. Alderman Allen voting no.
Resolution 149-07 as Recorded in the office of the City Clerk
Amend Chapter 161: Zoning Regulations: An ordinance amending Title XV: Unified
Development Code of the code of Fayetteville to amend Chapter 161: Zoning Regulations in
order to clarify language regulating the height stepback of buildings located in the Main Street
Center Zoning District. This ordinance was Left on the Second Reading at the June 19, 2007 City
Council meeting. This ordinance was Left on the Second Reading at the July 3, 2007 City
Council meeting and Tabled to the July 17, 2007 City Council meeting. This ordinance was left
on the Third Reading and tabled at the July 17, 2007 City Council meeting to the August 7,
2007 City Council meeting.
Alderman Cook: We have tabled this a couple of times for our Ward. We did discuss it at a
Ward meeting with the residents and they were there for another topic so they didn't have much
comment on this one. Personally we have had this debate on this area and this height. I do have
some reservations about nixing that step back but overall we as a policy decided to allow six
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stories in the zoning so I am going to go ahead and support this change even though I have some
reservations. I think overall it's probably the right thing to do at this point.
Alderman Allen: I have some paranoia and I have some reservations about this also but I have
been convinced that this is the right thing to do so I will support it.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 5042 as Recorded in the Office of the City Clerk.
Amend Chapter 161: Zoning Districts: An ordinance amending Title XV: Unified
Development Code of the Code of Fayetteville to amend Chapter 161: Zoning Districts in order
to consider specific areas that are currently zoned Downtown General a Commercial Zoning
District between 1 P.M. to 11 P.M. and as a residential zone for all other locations and times for
the purposes of the noise ordinance. This ordinance was Left on the First Reading at the July 3,
2007 City Council meeting. This ordinance was Left on the Second Reading at the July 17,
2007 City Council meeting.
Alderman Allen: The neighbors have asked that this be tabled. They are trying to continue in
their experimentation with the Smokehouse and the police and their noise meters so I would like
to table this indefinitely until we can get this worked out.
Julie Meisch, Manager of the Garden Room at the Ozark Mountain Smokehouse: If it is tabled
are we going to go ahead and decide to put it back on the agenda for the next two weeks?
Alderman Allen: I think that the neighbors wanted to make sure that they could be there and
talk with you all and try to find a time that everybody could be there for the next experiment
before we brought it forward. So in case that hasn't happened in two weeks that is why I was
suggesting we do it indefinitely.
Julie Meisch: The next opportunity we have is the 1 Ith
Alderman Allen: The woman that would be most impacted by that will not be in town that
particular day so they wanted to know the next available time.
Julie Meisch: It is just moment to moment right now. I think we could still go on with the
experimentation of the levels since the band will be there. The reading will still be the same and
I think at this point you all are determining if the number is going to be altered at all. I know we
have discussed with the neighbors the redirection, the insulation for the soundproofing, if it is
impacting that one neighbor that is not able to be here on the 11 th, can we go ahead and do the
readings since it down to that?
Alderman Allen: You have done all that you plan to do in terms of insulation and acoustical?
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Julie Meisch: We have done everything that we can do. Our reconstruction can not happen
until our busy season is over which is in December and the first of January.
Alderman Cook: I don't have a problem with going ahead and doing the readings and then at
least get a measurement of where we are at at this point. I don't see a problem with that.
Vice Mayor Jordan: So we could go ahead with the tabling.
Alderman Cook: Yes, I think we should continue with that, but as far as taking the readings, I
think we should measure it at that point and see where we are at for sure.
Julie Meisch: We really need to figure out where we are going to go with this.
Alderman Allen: It is the woman who is the most concerned but the readings whether she is
there or not.
Alderman Cook: I'm sure we will hear comment from her in a future date when she is around.
Julie Meisch: We will be having an event so the readings will not be on our actual property but
of course where they would come to do the reading for a complaint, are we clear with that
Nancy?
Alderman Allen: I'm not sure that I understand what you are saying, are you talking about on
the l I"?
Julie Meisch: Yes Ma'am, we have a wedding going on.
Alderman Allen: I think that is why we decided to do it that day because that was the next time
you had an event. What time would the music be going so that I can visit with Chief Tabor
about a time?
Julie Meisch: I can email a specific time out, I didn't know if you wanted to try to do it when
he is doing a pre -setup testing time or if it needs to be going on during the actual event. I will
email out those two time periods and go from there.
Alderman Rhoads: Is the tabling keeping you from doing business?
Julie Meisch: Yes, we do bookings; wedding receptions a year in advance, so all these events
that we are having now were booked last year. We are trying to book according to next year and
brides aren't booking right now because of this ordinance issue.
Alderman Rhoads: How long are we going to table this? Is it going to be said and done on the
11 th?
Alderman Allen:
It sounds to me like it
could
be. The neighbors that I
heard from were just
wishing that they
could be there, but the
sound
level will be whatever it
is so I guess it really
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isn't necessary to table it beyond the next meeting. So we will go ahead and hear it in two
weeks.
Alderman Allen moved to table the ordinance to the August 21, 2007 City Council meeting.
Alderman Cook seconded the motion. Upon roll call the motion to table passed
unanimously.
This ordinance was Left on the Second Reading and Tabled to the August 21, 2007 City
Council meeting.
RZN 07-2592 (Bellwood S/D Ph. II): An ordinance rezoning that property described in
rezoning petition RZN 07-2592, for approximately 8.41 acres, located west of Rupple Road,
south of Bellwood Subdivision Phase I from RMF -12, Residential Multi -Family, 12 units per
acre, to RMF -18, Residential Multi -Family, 18 units per acre. This ordinance was Left on the
Second Reading at the July 17, 2007 City Council meeting.
Alderman Lucas moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan: This was shown at the Ward 4 Meeting, Shirley do you want to elaborate
on it.
Alderman Lucas: Yes, it was brought before the Ward 4 Meeting and the concern was
increasing the density without knowing what is going to be there. On the west side of Rupple
Road in this area are all single family residents or duplexes and this is increasing the RMF -12.
So with our problems on Rupple Road, and it's going to be a while before we get that
straightened out, I am not in favor and quite a bit of people in Ward 4 are not in favor of
increasing the density. If it was a PZD we might look at it differently but this is just an across
the board rezoning.
Dave Jorgensen: I heard what you had to say Shirley and I totally respect that. The only
comment I have is that we did go to the ward meeting and I didn't hear very much opposition
although you may have received comments after that. I don't think it is too far out of place being
that we have commercial property south of us there. We are buffering the property to the north
with RSF-7 property and then we have the commercial property so we felt like it was a pretty
good fit going from the RMF -12 to RMF -18. We have three large lots and this would allow us to
put in about ten more units on each one of those three lots. The problem was the property we
had originally rezoned RMF -12 was a chunk of property. Then we brought our plan before the
Planning Commission and as you know everyone is really interested in connectivity. You may
have seen the streets that go through this parcel of property. It cuts through the property north,
south, east, and west so that we end up with a lot less property than we originally had. All the
developers come to us and say we can't make this work with these small lots so that is the reason
for the request.
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Alderman Thiel: What I am hearing and what I feel is that if this was a planned zoning district
to where we had some conditions of approval, that would make it a lot more acceptable and at
least we would know what we're looking at.
Alderman Ferrell: Jeremy, when this came through you all recommended approval but what
was your thought on the density?
Jeremy Pate: What we looked at as we do in all rezonings is will this property be compatible in
transition to adjacent properties. In terms of transition you look at 3 and 4 units per acre, 5 and
6, 7 units per acre directly north of this and then this transitions to 12. So what we are looking at
before you get to the residential office and commercial was a higher density and a smaller parcel
of land but a higher density to transition between those. In terms of how we looked at that, in the
Bill of Assurance that they have established with this property they have committed to
connecting to all the properties that surround them in one way or another. In all the plans that we
have reviewed it does carve up that property with right of way into smaller pieces of property
that could be developed. We looked also at the comments and the policy decision the Council
made one year ago when it unanimously approved the RMF -12 and felt that those comments and
the comments of the Planning Commission supported a higher density in this area.
Alderman Ferrell: I think I am hearing you say as you transition towards a commercial, it
seems naturally logical that you would have a deeper density going in that direction.
Jeremy Pate: Yes sir.
Alderman Lucas: The commercial is on Wedington isn't it?
Jeremy Pate: Actually it is on Rupple Road as well.
Alderman Lucas: But it's on the corner of Rupple and Wedington. That is where the
commercial is. South of this isn't it?
Jeremy Pate: There is commercial to the south but also to the north.
Dave Jorgensen: It looks like this is going to go down in flames, and my question is can we
withdraw or table this so we don't have a vote and then we can bring a plan before the Ward 4
meeting to look at it and maybe have a better feel for what RMF -18 would look like. The
problem is if we have a vote we cannot get it rezoned to RMF -18 within a year's period of time,
is that correct?
City Attorney Kit Williams: That is correct; a motion to table indefinitely is a way to kill an
ordinance but not one that can't be resurrected by a motion to bring it off the table. If they want
to give you the opportunity to do that, a motion to table this indefinitely, it would do the trick.
Vice Mayor Jordan: If you want to bring something back to look at I don't think that would be
a bad thing. I think the folks in Ward 4 would like to see it again.
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Dave Jorgensen: If this gets voted down then we can't bring this before this Council for
another year and we would like the chance to do that.
Alderman Cook: I know it's a straight rezoning, unless we bound them to a plan, all we are
talking about is a rezoning.
City Attorney Kit Williams: There is a Bill of Assurance with this and it can be even more
detailed depending on what the applicant might want to do. A Bill of Assurance can make
certain requirements even on development standards and everything else even if the applicant so
chose to offer that.
Alderman Cook: So it depends on how far he wants to go with the Bill of Assurance.
Dave Jorgensen: Or we could bring it before the Council in the form of a PZD.
City Attorney Kit Williams: You could do that anyway, you could come back for a rezoning as
long as it's not an RMF -18, isn't that right Jeremy?
Jeremy Pate: Yes, that is correct.
Alderman Lucas moved to table the ordinance indefinitely. Alderman Thiel seconded the
motion. Upon roll call the motion passed unanimously.
This ordinance was Left on the Third Reading and Tabled Indefinitely.
NEW BUSINESS:
R-PZD 07-2578 (Bailey Meadows): An ordinance establishing a Residential Planned Zoning
District titled R-PZD 07-2578, Bailey Meadows, located west of School Avenue and north of
Bailey Drive; containing approximately 3.86 acres; amending the official zoning map of the City
of Fayetteville; and adopting the associated master development plan.
City Attorney Kit Williams read the ordinance.
Jeremy Pate gave a brief description of the ordinance. He stated in 2005 the Planning
Commission voted to deny RSF-4 on this particular property because it is primarily an
agricultural area. Adjacent to this property are single family residences ranging from one fourth
acre to a couple of acres in size. Staff looked at a residential planned zoning district to try to
maintain a level of compatibility that would be acceptable to the neighborhood. • Staff
recommended approval and the Planning Commission voted unanimously in favor of this
request. It meets our City Plan 2025 in this area which is more of a rural type of use and it does
transition with the adjacent properties in terms of there is pasture directly to the north and a very
large farm and single family residences off of Bailey Drive.
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Alderman Thiel: I was contacted by the owner and there is urgency on this, and he would like F
us to go through all three readings.
Alderman Thiel moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed 7-0. Alderman Rhoads was
absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Thiel moved to suspend the rules and go to the third and fmal reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed 7-0. Alderman
Rhoads was absent during the vote.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
0. Alderman Rhoads was absent during the vote.
Ordinance 5043 as Recorded in the Office of the City Clerk.
Amend Ordinance 4971 (R-PZD 04-1307 Aspen Ridge): An ordinance repealing and
replacing Ordinance No. 4971, extending the expiration date for R-PZD 04-1307 (Aspen Ridge)
to June 29, 2008.
City Attorney Kit Williams read the ordinance.
Jeremy Pate stated this is a request to extend the expiration date for the Aspen Ridge planned
zoning district which has expired. The project was originally approved January 18, 2005 under
the old planned zoning district which we amended in late 2005. The PZD at that time only
allowed one year for all building permits to be issued on a project, we now allow for a developer
to present to you as a Council their proposal for phasing which is usually beyond one year. For
reasons such as size and issues that are beyond staff's knowledge in terms of the contract on this
project, staff is recommending that this project continue to move forward and that the expiration
be extended by the City Council. The expiration date would be June 29, 2008 to get all the
building permits associated. I want to clarify that is for both phases.
Alderman Thiel: The neighborhood has contacted me and there have been a lot of problems
with that project, our city engineer can attest to. The previous developers backed out of an oral
agreement that they had made at the meeting when we approved this. That was to work with the
Arkansas Audubon on an education program studying the"town branch. That just seemed to
escalate from there. I would like to meet with the neighborhood, our city engineer and these
developers between now and the time we approve this and see if we can't look at some of the
problems. The last time the Council gave them an extension of time, nothing really changed.
Town Branch is certainly not as clean as it was prior to this project and that needs to be looked
j
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at. I feel like it is important that the neighborhood, the development, the engineer and their
representatives meet before we approve this.
Vice Mayor Jordan: Just so I understand what you are saying, you want to hold it?
Alderman Thiel: I would like to table it to the next meeting.
Vice Mayor Jordan: Brenda, we can just leave it if you want to.
Alderman Allen: I would like to echo Alderman Thiel's concerns. I feel like some promises
have not been kept in this area. Before allowing an extension I would like to feel like we are all
on the right page and being straight with one another.
Aubrey Shepherd with the Town Branch Neighborhood stated I brought some photos tonight to
share. It's one of my favorites and I would like to hand those over to you since you seem to be
doing something that would allow us to meet and discuss this.
Mr. Shepherd passed out photos of what the Town Branch looked like previously and currently.
He described each photo to the Council and pointed out the current problems with the property.
Dawn Farber, a PHD Doctoral Candidate at the University in Civil Engineering: What has been
recommended so far is exactly what we are looking for. We have had a lot of dishonesty and
some issues with what has been happening. If they are going to be responsible and do the
development stuff that is great, but I don't think we should approve anything until they prove to
us that they are going to do that and maybe have something in place that if they don't do that we
can repeal it again.
Alderman Cook: Ron, on the stormwater permit, typically the general contractor gets that, from
my understanding both general contractors are not working on this site anymore. I know under
the new stormwater permits the owner gets that. Who is actually holding the stormwater permit
on this site?
Ron Petrie, City Engineer: It's going to be the responsibility of the actual property owner
Alderman Cook: Is there a current active stormwater permit on this site?
Ron Petrie: There is one and they are certainly in violation of it without question.
Alderman Lucas: What happens if they are in violation of it?
Ron Petrie: The permit that Alderman Cook referred to is a State permit, so the State would
have to get involved. They would issue a violation letter and possibly fines for the violations. To
my knowledge none of that has occurred.
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Alderman Ferrell: Let's just say that a citizen complained to the City and it got to the State
saying that this silt fence was down, would the State contact them or do they go through official
channels?
Ron Petrie: They have a procedure and they would send a violation notice automatically to the
owner.
This ordinance was left on the First Reading
Amend Chapters 171 & 172: An ordinance amending Title XV: Unified Development Code of
the Code of Fayetteville to amend Chapter 171: Streets and Sidewalks and Chapter 172: Parking
and Loading in order to reduce the required driveway widths and regulate parking in the front
yard area of residential dwelling units.
City Attorney Kit Williams read the ordinance.
Alderman Lucas: This was brought before the Ordinance Review committee. I don't think
there was a problem with any of it except the parking in the front yard and there was a sticking
point there. We brought this forward because of the request from our constituents, there was
such a problem in our ward about people abusing the parking in their front yard. It was not the
intent to not allow occasional parking for special events such as funerals and birthday parties so I
would like to make an amendment to this to try to address some of the concerns that were
brought up at Ordinance Review. I would like it to say #5 Special Events: Infrequent parking in P
the front yard above the maximum number of spaces or percent of area shall be allowed.
Alderman Thiel: I think that sounds like a good suggestion, I want to make sure that the term
infrequent is something that has some legal ease to it. Is infrequent a clear enough definition that
it can be used?
City Attorney Kit Williams: Often in ordinances there is nonexact terminology used. Often
times, ordinances must have these kinds of terms in there. I think infrequent is exact enough so
that it can be enforced. If we try to enforce it and the judge says it's not clear enough, then we
can come back a number of times per year but usually it's better to have something that is more
adaptable like this is. I would imagine that the first time there is a problem like this the police
would probably issue a warning ticket and say this is happening frequently. If it continues
happening we are going to have to give you a ticket.
Alderman Thiel: I appreciate Shirley coming forward with this because it answers all the
concerns I had so I agree with everything else in the ordinance.
Alderman Lucas moved to amend the ordinance to allow for parking in the front yard for
special events. Alderman Ferrell seconded the motion. Upon roll call the motion passed
unanimously.
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Alderman Gray moved to suspend the rules and go to the second reading. Alderman Lucas
seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Lucas moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Thiel: There were letters written about this and I received emails. I wonder if we
shouldn't wait on this. I am fine with it and I know that this has been an issue in Ward 1 too.
Vice Mayor Jordan: The only emails I have received are from folks wanting to see it pass. I
haven't had any opposition so far.
Alderman Allen: I am okay with passing it too but it seems to me that the underlined problem
is not so much parking on the lawn but that a lot of these areas where the parking is taking place
are rentals. I would like to throw out there that I hope the Council will soon think about the idea
of a rental registry so that we can get to the core of this problem.
Vice Mayor Jordan: We hear a lot of complaints when there are five and six cars parked in a
yard seven days a week, 24 hours a day and there are parties every night, which is the reason we
wanted to bring this forward. It was not to cause any problems for folks that are not coloring
outside the lines. It is to tighten it up to where we've not got parking lots in the front yard seven
days a week.
Tim Conklin: I did receive one email with regard to; they did not feel it was appropriate for the
City of Fayetteville to regulate the number of cars parked in the front yard.
Alderman Allen: As did I receive a few. There are some people that feel that is not the
government's business.
Alderman Lucas: I mentioned before that property rights are a two way street. People say they
should be able to do what they want with their property. On the other hand, if they abuse
something and it goes too far and a property owner is disrespectful for the neighborhood, it
affects the value of the other people's homes. So they have rights too. We are just trying to
strike something there in the middle so that if we have unsightly rutted front yards and it is just a
continuous problem, then some of the neighbors have recourse to protect the value of their
property. Realtors will tell you that curb appeal is one of the major things. People have -the right
to protect their property against someone that is being disrespectful to the neighborhood with
parking all over.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
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Ordinance 5044 as Recorded in the Office of the City Clerk.
Amend Ordinance 5002: An ordinance to amend Ordinance No. 5002 in order to make the
newly enacted §92.32 of the Fayetteville Code effective earlier.
City Attorney Kit Williams read the ordinance.
Greg Tabor, Police Chief. Several months ago a new animal ordinance was enacted by this
Council and the effective date of it was six months later which is October 17, 2007. What we are
asking for in this ordinance is to move . the effective date of one section of that ordinance to
October 1, 2007. That section has to do with regulating animals or pets at special events. If this
passes it is my intention to disallow pets at Bikes, Blues and BBQ.
Alderman Cook moved to suspend the rules and go to the second reading. Alderman Gray
seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Lucas seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 5045 as Recorded in the Office of the City Clerk.
Amend Chapter 96 Noise Ordinance: An ordinance to Amend §96.05 Motor Vehicle and
Motorcycle Sound limit by adding a new subsection (E) to prohibit excessive engine revving.
City Attorney Kit Williams read the ordinance.
Greg Tabor, Police Chief. This is in addition to our current noise ordinance; it specifically has
to do with revving of the engine. To be a violation, should this pass, there would have to be two
elements, the revving of the engine and that revving would have to create a noise disturbance,
which is already defined in our ordinance. To be in violation you would have to meet both of
those requirements. This will be in effect all year around. Noise complaints are one of the
biggest complaints that we get year around. Alderman Ferrell had some concerns with Bikes,
Blues and BBQ and I talked to the new chairman of Bikes, Blues & BBQ and that board does not
have a big issue with this. They do not think it is a deterrent to their event or will be seen as a
negative.
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Alderman Allen: It seems to me unless you put every part of your force on revving, this is
going to be very difficult to enforce.
Greg Tabor: It will be easier to enforce than what we currently have.
Alderman Ferrell: I believe this ordinance would be like no cheering at a razorback game or in
public after a home town victory. So I will not be supporting this.
Alderman Thiel: Since the director of the Bikes, Blues & BBQ is not opposed to this I really
don't see where I could object to it.
Greg Tabor: I only spoke to the chairman but he told me they talked about it at the board
meeting the night before.
Alderman Thiel: And that they did not have a real problem with it.
Greg Tabor: That's correct.
Alderman Thiel: I think the sponsors of the Bikes, Blues & BBQ have always wanted to
maintain control of this festival. It is a good festival and they don't want it to get out of hand. I
think they want everyone in Fayetteville to enjoy it as much as possible. I think sometimes the
extremely loud noise takes away some of that enjoyment from people that like to watch the
motorcycles and be involved in the activities on Dickson.
Greg Tabor: I think the board probably sees that loud pipes is one of the biggest complaints
and anything that can be done to cut down on some of those complaints is more positive for the
community to have the rally.
Alderman Lucas: I am all for Bikes, Blues & BBQ but this is going to address this all year
around. I support our police and if someone is abusing this, this will give them something to
back them up.
Alderman Cook: What is the penalty?
City Attorney Kit Williams: There is a penalty section in the chapter. I think the maximum is
$500. That is up to the judge to determine.
Alderman Cook: While the revving is annoying it is usually the activity that happens after the
revving when I see most people begin to break the law. I struggle with this change in the
ordinance because it is almost over the top. The revving is annoying at times and I hear those
complaints also but it is the activity that occurs afterwards that is really the issue in my opinion.
The police force during Bikes, Blues & BBQ has so many other issues to deal with besides the
revving of the motorcycles that I would rather see them take care of rather than deal with people
revving their engines. I struggle with this change.
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Alderman Rhoads: I don't really struggle with it at all because a good police force is called
upon to make discretionary calls on a daily basis. I think we have a good police force and I think
they use their discretion wisely. I think this will probably stop more problems rather than being
too restrictive on people's right to have fun. I support it.
Alderman Ferrell: In my mind there is not necessarily a direct linkage between a revving and a
violation after that.
Greg Tabor: A lot of times what happens after the revving is a wheelie or smoking your tires.
A lot of times you have a city or state law that addresses those kinds of things. What I would
hope is that when word of this gets out the revving will be cut down which will then cut down on
the activity that happens after the revving.
Alderman Thiel: If this passes I want to make sure that we have ample signage up to let people
know that it is a law.
Greg Tabor: We are working with Bikes, Blue & BBQ to get some information out and some
links to our city ordinances so people can view them and know what they can and cannot do at
least during that week and then obviously we need to do some press stuff to get the information
out for the rest of the public and the rest of the year.
Alderman Allen: I have difficulty with this ordinance because while you say it is all year round
we know that it is primarily directed to Bikes, Blues and BBQ.
Greg Tabor: Absolutely.
Alderman Allen: I always kind of think of a rev as a cha-ching and I know they can just rev
right on out of here. I don't want us to over regulate, it concerns me. I think people should be
allowed to have a good time.
Greg Tabor: I think if you looked at Daytona Beach, Florida, one of the biggest rallies in the
country, and Laconia, New Hampshire that is where we got this from. They have very strict
ordinances about revving and racking your pipes. Those rallies have been going for 60 to 80
years, a lot longer than ours and I don't see that it has affected their rallies. I think if you talked
to the people in those cities they would say it has no affect.
Alderman Allen: I just wonder if maybe there could be a trial period for this before we actually
made it an ordinance.
i
Alderman Lucas: You can always change it back.
Greg Tabor: Someone asked about warnings, it basically will be up to the discretion of the
officer. I would hope the first time they saw somebody doing it and since this is the first year we
would be very liberal with the warnings. I can't make that promise it will be up to the specific
officer at the time and the circumstances.
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Alderman Allen: If it fails you are still left with authority of some sort aren't you if their
conduct is inappropriate?
Greg Tabor: You could be if it was disorderly conduct or careless driving. You still have what
is there with the noise ordinance now about being a certain decimal at a certain distance. None
of that has anything to do with the revving of the engine. I think with this addition to the
ordinance the revving of engine no matter if it is really quiet or really loud it will be a violation
or could be a violation.
City Attorney Kit Williams:
disturbance.
I would say it would have to be loud to be able to create a noise
Alderman Gray moved to suspend the rules and go to the second reading. Alderman Lucas
seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Lucas moved to suspend the rules and go to the third and final reading.
Alderman Cook seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Lucas: The key thing for me was excessive engine revving. That is one of those
things they can't really judge with a machine, it is what is disturbing and annoying.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance failed 4-4.
Alderman Lucas, Gray, Thiel and Rhoads voting yes. Alderman Jordan, Cook, Allen and
Ferrell voting no.
This ordinance Failed.
Boardwalk Property Owners Association: An ordinance waiving the requirements of formal
competitive bidding and approving a cost -share with the Boardwalk Property Owners Associated
(POA) in an amount not to exceed $69,674.00 to dredge the Boardwalk POA pond.
City Attorney Kit Williams read the ordinance.
Ron Petrie, City Engineer: We have discussed this item on several different occasions at Street
Committee and had many neighborhood meetings. I think we all understand the issue at hand.
The two primary problems that we had since about the year 2000 is the construction of Highway
265 and also Summersby Subdivision. We have a short video that we took in 2004 when the
subdivision was done and the houses were being built. At the time we had a hole in the
ordinance, there was nothing we could do as staff to change what was going on.
Ron showed the video clip.
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Alderman Thiel: This is not the first time the city will be spending money to remediate storm
water issues on private property. The one on Amber Drive cost us almost $90,000. That was for
one piece of property and one lot. This Council supported that action because of a subdivision
that had been built out and also the way the street had been built by the developer. Was there not
another example on Wedington?
Ron Petrie: I think you could probably point out numerous examples.
Ron explained some of the drainage problems that have been addressed in the past.
We are currently studying the Washington Willow area from Lafayette to Mission and the
drainage systems in that area that are not public systems today. We have a broad list of what we
have done. I think with this we are caught up on the pond issue, if we did not have a pond here
this is basically Mud Creek; this is the beginning of Mud Creek. If we had a large slittion
problem in Mud Creek and we were approached by 80 property owners wanting to clear out Mud
Creek and clean it out to some extent to provide it back to its natural state, I think we would be
willing to listen to that. In my mind it is hard for me to separate that situation and this situation.
Alderman Gray: When was the culvert built that directs the storm water into that pond for the
whole region?
Ron Petrie: There are several different dates. When this subdivision originally went in there
were several pipes put in. The city did some work; we came back and improved that because
there was flooding in this neighborhood. In my opinion it would be poor construction when the
subdivision was built. We spent a significant amount of money to fix those problems. Those
were put in during the early 1990's and when the city came in it was approximately 2000 when
we did that work. Then the State's project, most of those pipes that went across Highway 265
that dump into this were put in around 2002 or 2003.
Alderman Gray: My point is it keeps being referred to as Boardwalk's pond when really it is a
regional reservoir for drainage. That's the reason I feel the City has some liability here. When
we put in the culvert to direct the water from several regions into the pond, which happens to be
at Boardwalk then it becomes a liability for the City at that point in time is my feelings.
Alderman Jordan: Who actually owns the pond?
Ron Petrie: The Boardwalk POA is who legally owns the pond.
Alderman Cook: Is there a flooding problem currently?
Ron Petrie: Not that I am aware of.
Alderman Cook: All those other issues you mentioned there was a flooding issue in those other
ones. Homes were being flooded in those other issues that you discussed.
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Alderman Jordan: As a matter of fact there was one gentleman that put newspapers on the
back of his house to keep the flooding out of his home.
Alderman Ferrell: Has there ever been any remediation initiated by the POA, citizens, earth
scouts or groups in that area that anyone knows of to either slow it or remove any of the slit?
Ron Petrie: I am not aware of any.
Alderman Gray: As long as it was just for Boardwalk, was there any problem with the pond,
before Summersby and before Highway 265.
Ron Petrie: I wasn't the City Engineer at the time but the complaints that we received started
during the period when those items started. I started with the City in 1998 and I am not aware of
any back in that period.
Alderman Thiel: Where does that spillway go?
Ron Petrie: It is Mud Creek.
Alderman Thiel: I understand your argument that the other public funds were spent to prevent
flooding. If this pond completely fills in you don't want that slit running down into Mud Creek.
What this contract will do is to dredge that out so that it increases the size of the holding area.
Obviously I support it because I have looked at it. It is creating a health hazard to the people that
1 live there. It is also an issue with what is flowing into Mud Creek. I feel like it is something that
if it had not been there we would have had a worse problem. I feel like it makes sense to fix it.
The neighborhood came forward and they are volunteering to pay approximately 10% of the
cost. I would like to hold this so the Mayor can be part of the discussion because he was at the
meetings.
Rick Ballmer: A lot of the points that I will go through Ron has already mentioned. I
appreciate the opportunity to speak. The pond in our neighborhood is partially filled with dirt
and silt as you all understand. The run off comes from the widening of Crossover and the
development of the Summersby addition. The pond has become an intended slit trap. The pond
has become an unofficial regional sedimentation for the City's storm water run off plan. During
the construction of the widening of Crossover, large drain pipes were connected to existing drain
pipes which resulted in dirt and debris entering the pond. The pond and the area around the pond
are a main focal point for neighborhood interaction in our neighborhood. Because of the dirt and
silt that is under the pond it has decreased its depth and created a perfect environment for
mosquito's and other pests as well as nuisance vegetation such as algae. The pond has been a
feature of our neighborhood that has attracted home buyers to decide to make purchases within
our neighborhood. The amount of dirt and slit that has been channeled into the pond diminishes
its attractiveness. If it is not repaired the pond will continue to become a haven for stagnant
water and pest. After meeting with the Mayor almost two years ago it was suggested that the
project be a cost share. Based on that suggestion our POA created a reserve fund to help prepare
for these cost. The amount that we have proposed is approximately 25% of our annual budget.
We have worked with the Mayor and the city engineer's office for these two years to determine
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the best solution. The city engineer feels confident that the proposal that is before you will
return the pond back to its original condition. Due to regulations that are now in place, the
completion of the Summersby project and the completion of the widening of Highway 265 that
future damage would be unlikely. We would like to thank the Mayor's office and the city
engineer's office and the Council for considering this issue.
Bob Smith: My home happens to be the lot that backs up to where the country culvert that
dumps into the pond ends. Between 2000 and 2002 I called the City on multiple occasions and
they would come out with backhoes and dump trucks and move rip rap from another drainage
ditch to access that and they would scoop it out and haul it off. As construction built out in
Summersby and Highway 265 was completed that begin to diminish. If this remediation takes
place this will probably never occur again because we won't have those issues to deal with.
Clayton Taylor: I noticed the goals that you have on the wall one of them is a beautiful city
clean and green. Green is what we are talking about. We are not the ones that are responsible
for dumping the silt and dirt into this pond. This is a creek that runs through our property, yes it
is private property but there is an entrance into this pond and an exit. We did not put the creek
there and we are not the ones that designed the culverts to flow into the creek. We happen to
have a pond that is on this creek. There is no way for us to stop what is coming down into the
creek, into our pond. For over two years we have been working with the City on this. There is
no way we can pay for this on our own; there is no way we can afford it. We need the City's
help. We are one of those communities out there that is helping the City be green and be
environmentally correct and we would really appreciate your consideration on it.
Alderman Rhoads: For the life of me I can't quite figure out why on earth do these people that
didn't cause the problem, we either caused it directly or indirectly, and they have to fight to get it
taken care of for over two years. I can't understand why we can't vote on this right now. Why is
it not the right thing to do? I would be so frustrated if I lived in that subdivision.
Alderman Gray: I agree completely with Alderman Rhoads. We have the money budgeted to
take care of this issue. This is an issue that has been caused by the public; it is not a private
issue. I think it is totally the thing that we need to do.
Alderman Rhoads: Who is against it and why?
Alderman Jordan: I am against it. I had a POA that came to me two months ago and what I
have been taught and what I have heard from this Council when it is a POA it becomes private
property. There where issues that were caused by drainage problems and according to what I
understand from the City Attorney is that becomes POA property.
City Attorney Kit Williams: Obviously POA property is private property but as Ron pointed
out we have worked on other private property when there has been drainage issues or other
situations like that.
Alderman Jordan: On POA property?
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City Attorney Kit Williams: On private property whether it be POA property or privately
owned property that really doesn't make a difference. It is private property it is not City
property. It would certainly be a clearer situation if it was public property. In this particular
situation I think there has been damage caused from outside this POA. The pond evidently was
in pretty good shape prior to the developments outside the property owner's situation, the
neighborhood and that has caused damage. That is not the only place that has caused damage.
However I think that it is certainly legal for the City to be able to assist in cleaning up these
facilities even if they are private. But, it is a policy decision on your part whether you want to do
that. I really think you need to look at each one of these situations on a case by case basis to try
to determine why the problem developed. Normally detention ponds that are within POA's that
are privately owned, they are their responsibility, they should maintain them and keep them
working. It would be an exceptional and a rare circumstance where the City should step in and
do a cost share or do some other remediation work in order to try to help POA property because
generally POA property is the responsibility of the property owner's association.
Alderman Jordan: I understand where you are coming from. There was a place called
Magnolia Crossing that floods almost every time it rains and runs right into the creek, it fills the
creek up, puts it over the banks and gets right along that creek. I remember bringing this to this
Council and the Council told me at that point time that was unfortunate that occurred but that
was under a lot of the old ordinances and drainage issues and that has been changed.
Alderman Ferrell: Tell me more about Magnolia Crossing.
1 Alderman Jordan: That is off of Highway 62 across from the Smokehouse.
Alderman Thiel: What caused the problem?
Alderman Jordan: It was poorly designed and poorly constructed.
Alderman Thiel: Magnolia Crossing was?
Alderman Jordan: Yes.
Alderman Thiel: But it was not caused from some outside entity, it was caused by the
development itself?
Alderman Jordan: I would think that would be a correct statement.
Alderman Gray: Before we had ordinances to control those things.
Alderman Jordan: That's correct.
Alderman Lucas: Just like this.
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Alderman Jordan: It is hard to explain to those people why they are not getting relief over
there especially when the runoff goes into a creek and fills that creek up and people that live
along that creek are almost flooded.
Alderman Rhoads: That's why this job is not always that easy, sometimes you have to make a
decision. In this case things are different and we caused it, we have to take care of it and we are
going to fix it. If someone else has something else in their ward that is a similar situation I
would love to hear about it. This is not in my ward; this is just the right thing to do.
Alderman Jordan: I don't terribly disagree with that but if this does pass you will be hearing
from those other areas in town I will assure you of that.
Alderman Lucas: All the POA's have problems of some sort or another and I think this is
setting a precedent.
Alderman Rhoads: I guess what they should have done about eight or nine years ago is they
should have damned the thing and then let the slit run someplace else and then we would have it
taken care of. If indeed other POA's have problems like this then I would like to hear about
them and if it is a problem that the City allowed to happen or caused then we should pony up the
money and take care of it.
Alderman Gray: I agree. I feel like if it was before we had the ordinance to cover them, just
exactly like what caused the problem in Boardwalk then it is our responsibility to take care of it.
Our staff can investigate and bring a recommendation to us, bring us the facts just like they
brought us on Boardwalk and then it is our responsibility to do what is right and take care of
these issues.
Alderman Jordan: If you all want to vote on it, we will vote.
Alderman Rhoads: I hope we vote on it and I hope that people do not vote against it because it
is not in their ward.
Alderman Gray: I agree I would like to have us vote tonight but I think we need to wait for the
Mayor.
Alderman Allen: I am concerned about the precedent that it might establish, that is my primary
concern. I wonder why you don't go after the developer rather than the City because it was their
project that created the problem.
City Attorney Kit Williams: As Ron said it was not the developer. The developer completed
his subdivision, followed our ordinances, filed the final plat and then he could start selling lots
which he did. Then the homebuilders came in and we did not have regulations at that point to
assure that the homebuilders would not allow such erosion problems. It was not the developer, it
was various different homeowners and when we found out what was happening we did
everything as a City I think we could, including passing new ordinances but as you know it takes
a while for ordinances to come into effect. When someone is already working you can't go and w
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immediately stop them. I think the City acted responsibility in this case. I don't think it was the
City's fault except we didn't anticipate far enough ahead what was going to be the problem.
Alderman Rhoads: Is there a problem with setting the precedence of doing the right thing? Let
somebody else bring something else up and if indeed it's a similar situation then hopefully we
will do the right thing again and again and again. I don't find any logic to either one of your
arguments. Who else is against it and why?
Alderman Allen: I think your thinking is just different than mine. I believe there are some
problems with a precedent because I don't think it is necessarily the right thing to do. I think it is
just going to boomerang and everyone will think the City should have to tend to problems in
their areas. I would like to know more about their dues and what they are used for. I just have
concerns about it. It is not a matter of if it is the right thing to do because certainly I think we
should do it always. I am not certain that I think it is. I would be in favor of tabling this and
gathering more information because if we vote on it tonight I will vote against it.
Alderman Cook: There is not a flooding situation there so I don't see why we need to spend the
money on that.
Alderman Ferrell: I don't vote against another ward, I want to point that out. There has been a
lot of communication among citizens and I want to help where we can but from the first time I
heard about it I was thinking more along a 50/50 type deal, part of that was because there is a
POA. I also thought about the precedence but if it were more of a 50/50 type deal that would
make it a lot more palatable to me. You can go to a lot of old farms around and their ponds are a
foot deep because they are silted in and they are not necessarily sitting at the bottom of a valley.
Lake Sequoyah, which is a City owned lake, you can't launch a boat there because it is silted in
so bad. Whatever we do I want you to remember that.
Alderman Thiel: I do think we should hold this. When Lake Lucille started filling up there was
a real out cry from the people that lived there. That project did get halted. I am not sure if the
City actually spent money on Lake Lucille or not.
Ron Petrie: I don't believe so. The Mission Hills situation, the subdivision was complete,
almost the same situation that we have here except there was one person that bought all the lots
to build houses on all the lots. What that person did was clear every one of the lots at the same
time, there was huge rainfall events straight into the lake. The property owners there had one
person to go after which they did in court. At that point the City refused to sign any building
permits. My understanding is that person eventually went bankrupt and they had to drop the
case.
Alderman Thiel: The point I am making is the City did do something.
City Attorney Kit Williams: I was on the City Council at that time and it was brought to the
City Council and my memory, is that we at least did a stop work order to prevent anything else
from happening until they could get their erosion control procedures up. That was a single
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individual that was doing that and so it was an easier way to be able to stop it immediately. I
don't remember any remediation effort with Lake Lucille.
Alderman Thiel: You didn't have to because to some extent you had stopped further problems
from occurring. I think that's the point we are trying to make. It was recognized that it was
causing a problem because we had City trucks going out there and removing silt that was coming
down off the hill. Some of that was coming from Highway 265 too. I think each thing has to be
looked at individually. This is a different situation in the responsibility that the City has.
Alderman Allen: I think there is a slightly different responsibility with Lake Lucille too in that
it was Mission Hills that created the problem.
Alderman Thiel: Summersby created the problem to Boardwalk.
This ordinance was left on the First Reading.
Sale of 4.0 Acres to Ozarks Electric: An ordinance waiving the requirements of Ordinance No.
4358 and approving an offer and acceptance contract between the City of Fayetteville and
Ozarks Electric Cooperative Corp. for the sale of four (4) acres of unneeded land with an access
and utility easement for same at the West Side Wastewater Treatment Plant for $140,000.00;
approving a budget adjustment; and authorizing the Mayor and City Clerk to execute said
agreement.
f
City Attorney Kit Williams read the ordinance.
David Jurgens, Water & Wastewater Director: This sale has been in discussion for roughly
three years. The land is not perceived to be needed for any future wastewater treatment plant
expansion. There is benefit down the road of having the electric substation co -located with the
plant because the chances of losing power are a lot less that way. We are requesting you waive
the ordinance because frankly we think it would be a waste of money. We have a price that is
comparable to the previous appraisal that we have for the land just north of there. We don't see
any use of selling this land to any developments or any other uses because it is so close to the
wastewater plant.
Robert Erickson, Ozarks Electric: I will answer any questions you have.
Alderman Gray moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
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Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 5046 as Recorded in the Office of the City Clerk.
Repeal Youth Activities Committee: An ordinance to Repeal Article 17, Youth Activities
Committee, Chapter 33 of the Fayetteville Code.
City Attorney Kit Williams read the ordinance.
Alderman Cook: As chair of the Nominating Committee we have for years been trying to fill
that committee with very little response. Every once in a while we get some response from
applicants but that committee has never been fully filled even enough for any kind of a quorum.
I think it is time that we put this to bed.
Alderman Ferrell moved to suspend the rules and go to the second reading. Alderman
Lucas seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 5047 as Recorded in the Office of the City Clerk.
Pops Old Time Bar-B-Que — Appeal of the Planning Commission's Decision to Deny RZN
07-2637: An ordinance rezoning that property described in rezoning petition RZN 07-2637, for
approximately 0.64 acres, located at 504 East 15t11 Street from R -O, Residential Office to C-1,
Neighborhood Commercial.
City Attorney Kit Williams read the ordinance.
Jeremy Pate, Director of Current Planning: This is an appeal of the Planning Commission's
decision to deny the rezoning request. The existing structure was constructed in the 1960's and
has existed as a restaurant since about 1968. The Planning Commission's vote was split 5-2-1 to
recommend denial of the rezoning request. Staff also did not recommend in favor of this
particular zoning request finding that there were particular objectionable uses that could occur
j with the C-1 zoning. There are no commercial zoning districts surrounding this property. A
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Bill of Assurance has been submitted by the owner. This would limit the use of the property to
restaurants, offices, and neighborhood shopping. Other restrictions stated are in the future to add
a smokehouse for barbeque or small office. Specific activities that would not be allowed would
be gas stations, liquor stores or drive in restaurants. The Planning Commission did not see this
Bill of Assurance. You are the first board that reviewed this in tandem with the request. It is my
understanding that the primary reason for this request is signage. The applicant can not install
the standard 75 square foot sign ten foot from the property line like a commercial business can.
Under special circumstances I can issue a variance, I would have to find that this property is
unique and warrants a special circumstance that is unique to this property and not to another.
That can be a variance but only up to 15% so that would only add a couple of square feet to this
sign even if a variance could be granted. To staff a rezoning policy decision to zone a property
for a sign and is not necessarily in the best interest of the City. However I would certainly advise
you to look at the whole zoning as it encompasses the entire property and the C-1 zoning. Staff
did not recommend approval of that for those reasons, we felt it would be a spot zoning in that
area. The Planning Commission had some of the same concerns.
Alderman Ferrell: Did you say there might be some more conditions that might be coming
forward as an offer from the applicant.
Jeremy Pate: I haven't heard of anything in this particular case.
Alderman Thiel: These were the conditions I think that were discussed at the Planning
Commission.
Y
Jeremy Pate: No, the Bill of Assurance that you have in front of you was submitted with the
appeal so they were not considered by the Planning Commission.
Alderman Thiel: But they were concerns. The owner felt like these were the concerns and that
is what he was trying to address.
Jeremy Pate: Yes, some of those were mentioned as concerns.
Alderman Thiel: The owner felt like these were the concerns and that is what he was trying to
address.
Jeremy Pate: You're right.
Alderman Lucas: This person can continue operating this as a barbeque place under a
conditional use which is what they have been using for all these years.
Jeremy Pate: Actually they have not even utilized that; they are an existing nonconforming use.
They were there prior to the property being rezoned. Different property owners since the 1960's
have petitioned for rezoning to commercial property and the Council has denied them.
Alderman Lucas: There is nothing to keep them from continuing to operate.
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Jeremy Pate: They can continue their existing operation. If they cease use, I believe it is for
120 days, they would no longer be able to operate the business. But he can also get a conditional
use application in the R -O zoning for a restaurant and that would take the nonconforming status
away entirely. It would not help a signage issue however and I think that was his concern that he
expressed.
Alderman Thiel: So you are saying that probably staff would support an R -O zoning?
Jeremy Pate: It is zoned R -O currently. That is a compromise reached by the Council many
years ago.
Bill Starks, owner: We have been operating for 15 months as a barbeque establishment. When
we went to the Planning Commission I had no knowledge of there being a possible Bill of
Assurance that I could fill out. I and my wife have no intentions of ever changing it from a
restaurant. We have a restaurant there, it is successful, we have a good business there but it
would be a lot better if we could put a sign out front. We are right on 15th Street and it is the
main traffic artery. We would like to identify ourselves as being in business on this street
because there is a lot of traffic to Razorback games. Under R -O I understand that it is a two
foot by two foot sign that I can have out there and I might as well not have it if that is all that I
can have. The only reason I would like it zoned C-1 is so I can identify it as a restaurant. It has
been a restaurant for 38 years; I would just like to identify it as one. I think I made assurances on
that Bill of Assurance that I have no intention of doing anything else with it and it will stay on
the title that nobody else can either. All I want it for is my restaurant and possibly put my real
estate office in there some day. I own a real estate office also. If the Council requires some
other kind of assurance that I won't do anything else, I will consider doing that but really all I
want is the signage. Thank you so much for your attention.
Alderman Thiel: This has been used as a restaurant for 38 years and I don't really understand
the objection to rezoning it. I don't like an established business that hasn't bothered anybody
and that people enjoy and appreciate not being allowed to be ensured that if they close their
doors for six months that they would not be able to reopen. I think the Bill of Assurance is
eliminating anything that might be a concern. I know we are looking at this whole area in the
near future with the South Fayetteville Master Plan. This is almost totally surrounded with
RMF -24 and that is a real consideration because it is developed out more residentially. I know `
we will be giving some thought to rezoning a lot of this and probably base the zoning more on
the existing use rather than RMF -24 which is not the existing use. That also validates the
argument of making it what it is being used as.
Alderman Ferrell: What size sign do you think you need?
Bill Starks: I am looking at something like a four foot by four foot sign. It doesn't have to be
big. I have woods on one side of me that goes right up to the right of way. I have a church on
the other side that gets within 25 foot of the right of way and I sit 50 foot back. My lot is only
130 foot wide and by the time they see the restaurant they are past it. It makes us nonexistent
without a sign there.
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Alderman Ferrell: 0.64 acres is what you are asking to rezone.
Jeremy Pate: A four by four sign would be allowed in an R -O district. You are allowed a
maximum of 16 square feet in an R -O district if you utilize a monument sign. If you use a pole
sign it is much more restricted. You are only allowed four square feet which is the two by two
that he indicated. A four by four sign ten feet off the right of way is allowed even in the R -O
district.
Bill Starks: When he is talking about a monument sign that means one sitting on the ground and
it would not give me any exposure at all. I don't think it would be enough.
Alderman Ferrell: I am inclined to agree with you, if that place has been there 38 years as a
restaurant and you are willing to do the Bill of Assurance.
Alderman Allen: You talked about having some latitude in terms of signage. How much?
Jeremy Pate: 15% is the maximum that I am allowed to grant a variance. I would also have to
find that this is unique to this property and that there is some hardship. It is usually a pretty
difficult test.
Alderman Allen: What about if the sign was on the building?
Jeremy Pate: It is also a maximum of 16 square feet on the building. On the building you
would be allowed the same size sign as you would be allowed out by the road.
Alderman Lucas: Are there any variances on the sign ordinance that are brought forward to the
Council or to the Planning Commission?
Jeremy Pate: No. We use to have a Board of Sign Appeals that was directly responsible for
issuing variances, that was abolished by the Council.
City Attorney Kit Williams: Yes, that is a real good way to get sued by having too much
discretion in appointed or elected officials. I thank the City Council for putting all the discretion
within Jeremy and limiting it pretty restrictedly.
Alderman Thiel: There is a C-2 just west of there. What is that?
Bill Starks: That is a wooded lot sitting behind the corner house that is on Washington and 15th
Street.
Alderman Thiel: They could put a liquor store there.
Bill Starks: They can put a liquor store, gas station or anything they want in there in that
relation.
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Jeremy Pate: There are distance separation requirements for drive-in establishments and liquor
stores from churches.
Bill Starks: It is 500 feet from my front door.
I
Alderman Gray: I think Pop should have his sign so I will be glad to support it.
Bill Starks: Thank you, I appreciate it.
Alderman Cook: I support what he is trying to do but I am a little uncomfortable rezoning a
piece of property.so he can have a sign. That seems like a backwards way to rezone.
City Attorney Kit Williams: It would also be making it where it would be a conforming use.
Right now he is a preexisting nonconforming use.
Alderman Thiel: I think that is more important. He is requesting this for the sign but I think it
is important that business not go away there. That is what concerns me.
Jeremy Pate: Our recommendation for it to become conforming was to follow the conditional
use process. That is what we talked about with Mr. Starks initially. That would not help with
the sign. That would just bring it into conformance. We felt that was a more appropriate way to
pursue this. Unfortunately the commercial zoning is really the only way to get a larger sign on
the property.
Alderman Cook: What is going to be the process on south Fayetteville?
Alderman Thiel: We are going to start having public meetings in September.
Tim Conklin: The actual event will happen in September. It will be very similar to the
Downtown Master Plan.
Alderman Thiel: It is going to be like Dover, Kohl did the Downtown Master Plan except we
are using staff rather than hiring a consulting firm to do it. I think we have a very good staff and
I think they will do a great job.
Alderman Cook: You are going to propose rezoning then?
Tim Conklin: One of the outcomes of that would be looking at the existing zonings and what
changes might need to be made.
Alderman Lucas: I want the restaurant to continue but I think this is a spot zoning and I am not
in favor of spot zoning. So, I support the staff.
A citizen: He needs a bigger sign, a much bigger sign out by the street. The reason is very
selfish because every weekend when I drive from Duncan along 15th Street I am looking as to
where it is going to be. You can't see it until you get right up there. He has a good case for
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needing a substantial sign out by the street. If you put this guy out of business you will be sorry
because you need to taste his barbeque. p^H
Alderman Allen: Can he have a neon sign?
Jeremy Pate: Yes.
Alderman Thiel moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Cook: Does this include the Bill of Assurance?
City Attorney Kit Williams: Yes.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
1. Alderman Lucas voting no.
Ordinance 5048 as Recorded in the Office of the City Clerk.
R-PZD 07-2613 (Holcomb Heights Ph. II): An ordinance establishing a Residential Planned
Zoning District titled R-PZD 07-2613, Holcomb Heights Phase Il, located east of Rupple Road,
west of Phase I; containing approximately 5.77 acres; amending the official zoning map of the
City of Fayetteville; and adopting the associated master development plan.
City Attorney Kit Williams read the ordinance.
Jeremy Pate gave a brief description of the R-PZD. This project will be assessed approximately
$42,000 for construction of Rupple Road along their frontage along with the extension of the
street to get to that once it is constructed. That is a recommendation by the Planning staff and
the Planning Commission. Staff recommended approval of this planned zoning district. The
Planning Commission voted 8-0 in favor of this project.
Alderman Jordan: I would like to hold this on the second reading so this can be shown at our
meeting.
Representative of the Project: I think that is fine. Two extra weeks will not affect us. We will
be happy to present this at the Ward 4 meeting.
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Lex Broyles: I would request all three readings tonight. Phase .I passed on the first night with
all three readings. We would be glad to present it at Ward 4 again but it has been to Ward 4 a
number of times, that's why there has been no public comment. This is surrounded by homes
and none of these people are here tonight because we have met with them and they approve
inherently of the project. I understand and appreciate Mr. Jordan's request and we will present it
either way but we would like to do all three if possible.
Alderman Ferrell moved to suspend the rules and go to the second reading. Alderman
Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman Thiel was
absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Lucas: It is not going to be connected to the present Rupple Road?
Jeremy Pate: No, it is not constructed currently.
Alderman Lucas: Is there a development in between or something?
Jeremy Pate: Actually the right of way has been dictated. There is one project south of this and
the bridge was just constructed with Clabber Creek along the Salem Village side but it just stops
right there. That was all actually constructed after Salem Heights had already been approved and
was constructed. What we did with Salem Heights was we required a dedication of right of way
so that when the road can be constructed there is property there to do it. So that has been
dedicated to the city. This project would be the same and both projects are being required to pay
for their share of that road, which is half of that road which is typically what we do. When future
development comes on the other side we will get additional right of way dedication and
additional funds.
Alderman Lucas: So that is what we are waiting for is development on the other side?
Jeremy Pate: That's correct. Right now we would not have the right of way to actually be able
to construct the entire road.
Alderman Lucas moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed 7-0. Alderman
Thiel was absent during the vote.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
0. Alderman Thiel was absent during the vote.
Ordinance 5049 as Recorded in the Office of the City Clerk.
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VAC 07-2638 (Estes): An ordinance approving VAC 07-2638 submitted by Peter (Tripp) and
Brandy Estes for property located at 2350 Big Oaks Drive to vacate a portion of a drainage
easement on the subject property.
City Attorney Kit Williams read the ordinance.
Jeremy Pate gave a brief description of the vacation. We have all the signatures from the utility
companies. The Planning Commission voted 8-0 to recommend this vacation request to the City
Council.
Alderman Ferrell moved to suspend the rules and go to the second reading. Alderman
Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman Thiel was
absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Ferrell moved to suspend the rules and go to the third and fmal reading.
Alderman Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman
Thiel was absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Lucas: This is with the conditions the staff put on it?
Jeremy Pate: Yes.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
0. Alderman Thiel was absent during the vote.
Ordinance 5050 as Recorded in the Office of the City Clerk.
VAC 07-2639 (Four Seasons Sunrooms/Boss): An ordinance approving VAC 07-2639
submitted by Bill Boss for property located at 5608 Reliance to vacate a portion of a utility
easement on the subject property.
City Attorney Kit Williams read the ordinance.
Jeremy Pate gave a brief description of the vacation. The Planning Commission voted 8-0. We
have all signatures recommending approval from all utility companies with regard to this
particular applicant as well. Condition number two I believe that can be removed if you would
like. I think we have determined that is actually a side set back. You can leave or remove it. It
is really up to you.
City Attorney Kit Williams: If it is not needed, let's remove it.
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Alderman Cook moved to amend the ordinance to remove Condition of Approval # 2.
Alderman Ferrell seconded the motion. Upon roll call the motion passed 7-0. Alderman
Thiel was absent during the vote.
Alderman Cook moved to suspend the rules and go to the second reading. Alderman
Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman Thiel was
absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman
Thiel was absent during the vote.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
0. Alderman Thiel was absent during the vote.
Ordinance 5051 as Recorded in the Office of the City Clerk.
Liberty Bank Appeal: A resolution to grant the approval of the Planning Commission's
approval of large scale development 07-2574 for Liberty Bank by modifying condition #3 and
allowing the bank's requested curb cut on Joyce BLVD.
Jeremy Pate gave a brief summary of the project.
The Planning Commission approved a large scale development but it had several conditions of
approval as is normal. One of those conditions, Condition # 3 Planning Commission
determination of curb cuts and appropriate locations. Staff is not supportive of the proposed
curb cut onto Joyce Boulevard, finding that the additional turning movements created by the
requested curb cut will increase the potential for traffic conflicts on a highly traveled and high
speed principal arterial street. As noted in Figure # 8 in the submitted traffic study a high
number of vehicle turning movements will be created by the proposed curb cut that will likely
conflict with through traffic Joyce and east bound traffic attempting to utilize the turning lane to
access Vantage Drive. Sufficient access to serve the proposed development was planned and is
available to the property via Vantage Drive, a collector street, to the east which is signalized and
a private drive that connects from Vantage Drive to another signalized intersection at the
entrance Bellafont at Joyce Boulevard. It also refers to additional information submitted by the
Engineering Division. I think the issue here is not necessarily the project, the project has been
approved, it is the curb cut onto Joyce Boulevard. We have access management policies in place
and that was discussed with the Planning Commission, one of those out of Chapter 166.08 states
that local streets and driveways shall not detract from the safety and efficiency of bordering
arterials. In terms of staff's review of this project we feel that this property has been served with
j adequate access and a proposed additional curb cut onto Joyce Boulevard in the proximity
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between College Avenue and Old Missouri Road has approximately 34 curb cuts, a lot of which
were developed prior to our current access management policies. Essentially our concern is for
safety on this arterial route, which is a principal arterial, our highest class functional designation
in the City of Fayetteville in terms of our Master Street Plan.
Ron Petrie, City Engineer: There is a memo in the packet. Ron went over the drawing that was
in the City Council agenda packet.
As staff we did something that we did not particularly care for. We allowed a signal to be
installed approximately 600 feet apart on Joyce Boulevard, one is right there at Vantage and the
other one is to the west of the private drive. The reason we allowed that is it met the warrants
and had the opportunity to control the access points in this area to those signalized intersections.
This is a great site, it is a great project but you are looking at a driveway that is approximately
215 feet to a signalized intersection to the east and 330 feet to a signalized intersection to the
west. They have three other access points on the property. This will be the fourth access point
on the property. Looking at the traffic on Joyce, which was in excess of 22,000 vehicles per day
in 2002, you factor in the Bellafont and this is where we look at peak hours, on Joyce 3,102
vehicles in that peak hour. You take that down that is one car per second assuming a free flow
condition. This obviously is not a free flow condition we have all the signals in the area. You
have a tremendous traffic volume, you have complete access into these signalized intersections
and so obviously we as staff can not support the request.
Alderman Ferrell: When Bellafont was coming through Planning and us was that a cooperative
deal with them and somebody else to add a lane because of the anticipation of the new traffic?
Ron Petrie: Yes.
Alderman Ferrell: So there was an anticipation of much heavier and new traffic coming
through there.
Ron Petrie: Absolutely they created that center turn lane.
Daniel Ellis, Crafton, Tull, Sparks and Associates, Vice President of Civil Engineering: I have
Greg Simmons with me who is a traffic engineer with Peters & Associates. We've gone back
and analyzed these intersections as staff has requested. We don't agree with them that there is
adequate access provided by the curb cuts off of Vantage Drive. We have models to demonstrate
that. Most of the bank traffic comes at the peak hour when the traffic is leaving Bellafont
subdivision and in that particular situation Vantage Drive is completely blocked and you can't
make a left hand turn into the banks drive or the drive into Bellafont off of Vantage Drive. So
that leaves one point of access which is on past Liberty Bank, 330 feet as Ron said. So we are
asking the bank customer to basically drive a city block to access the bank on their way home.
There is another bank right there; they are just going to pick a different bank. I think restricting
the curb cut off of Joyce Boulevard makes it almost impossible to get to Liberty Bank when they
actually need to do most of the bulk of their business, in the evening when customers are going
home.
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Daniel presented a PowerPoint presentation to the City Council that showed the access points
and the traffic flow. He stated this is inaccurate based on statistical information provided to us
by city staff and their traffic counts that was done by the Bellafont subdivision.
Based on what you see here is our argument that adequate access is not being provided without
the curb cut off of Joyce Boulevard. We comply with all the existing city ordinances that are in
place concerning curb cuts, we are not asking for any waivers or variances with our curb cut onto
Joyce Boulevard.
Stan Langley, Attorney for Liberty Bank: We did some research with regards to any legal
issues that there might be in regard to the granting of the ingress and egress from Joyce Avenue.
We shared that information with Mr. Williams the City Attorney and he has shared his legal
research and information with us. I believe that we concur that there are no legal issues in
dispute as to this particular application.
City Attorney Kit Williams: I trust that the City Council had a chance to look at my memo on
this. The Supreme Court has held that the owner of property abutting upon a street has an
easement in such street for purpose of ingress and egress. This property right is not diminished
merely because the property owner has alternative means of ingress and egress. There are
several cases that have held this. It doesn't mean it is an unlimited right of ingress and egress,
this is a limited right so that cities can put restrictions on curb cuts. We don't have to allow a
curb cut all the way down the block or as many curb cuts as somebody wants. We have some
limitations and some discretion on what we do in relation to traffic management. The Supreme
Court has recognized that cities need be in a lot of discretion within traffic management issues
because we need to solve these local problems locally. However there is a difference between
regulating a curb cut and absolutely prohibiting one on a street. It doesn't mean that we could
not do that. If we could find through strong evidence that this created or compounded a
dangerous traffic situation theoretically you could deny any curb cut onto Joyce Street. But, if
we did that we would be basically taking away an easement right that they have, a property
interest that they own. We could do that but we would need to pay them whatever the value of
the easement right is. I would think when you look at the value and the cost of land along the
major boulevard, Joyce which is one reason they bought there is to have access to it and visibility
and everything else that it could be an expensive easement that we would be denying them and
that the taxpayers of Fayetteville would have to pay for. I think you need to think very carefully
about this. Obviously we can control and restrict curb cuts. I think currently it has been
proposed that it be a right exit only, a two way in but a right exit only. I think that the applicant
has acknowledged that the left turn out would be very dangerous and might have a bad level of
service too.
Stan Langley: Yes it would.
City Attorney Kit Williams: I think we can do some restrictions on them but I would caution
us about totally prohibiting any sort of curb cut in this particular circumstance because they have
a very long frontage. In the right circumstance we might be able to do that but an owner of
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property along a road does have access rights to it. I think we need to be very careful in
honoring those property interests. e
Alderman Ferrell: When you look at the model that was given and the illustrations by Mr. Ellis
it looks like it begs for more ingress and egress. I understand city staff but as I look at this and
after I listened to what Kit Williams had to say I am inclined to agree. I am in support of
granting this appeal.
City Attorney Kit Williams read the resolution.
Alderman Allen: What is the status of Bellafont is it proceeding?
Jeremy Pate: I don't know the status.
Howard Hamilton, Liberty Bank: We saw the owner of Bellafont tonight and they have
obtained their financing and they are going ahead with the development.
Alderman Cook: I agree with staff's comments, I think it is really going to create a nightmare
of a situation traffic wise, which Joyce Street right there already is to start with. Especially with
the two signals there, with the one way in and the right out I think that would certainly help the
situation but I still think it is going to be a log jam in there. Especially at peak traffic hours it is
going to be a mess. I will say frankly whether we approve or deny that it is still going to be a log
jam in there. My concern is it is going to create a worse safety problem than what we were
going to end up with anyway.
Alderman Ferrell moved to approve the resolution. Alderman Lucas seconded the motion.
Upon roll call the resolution passed 6-1. Alderman Cook voting no. Alderman Thiel was
absent during the vote.
Resolution 50-07 as Recorded in the Office of the City Clerk.
Abshier Heights — Waive Chapter 166.20 of the UDO: An ordinance to waive Chapter 166.20
of the Unified Development Code, Expiration of Approved Plans and Permits, for R-PZD 06-
1883 (Abshier Heights) and to provide for a one-year approval extension.
City Attorney Kit Williams read the ordinance.
Jeremy Pate gave a brief summary of the project to the Council.
Alderman Cook: I was asked to bring this forward even though I did not support this
development initially. I will say the developers went above and beyond the call of duty to work
with the neighborhoods initially. I don't have any sour grapes on that. They are too far along to
deny anything at this point. I request the Council support this.
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Alderman Cook moved to suspend the rules and go to the second reading. Alderman
Lucas seconded the motion. Upon roll call the motion passed 7-0. Alderman Thiel was
absent during the vote.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the third and final reading.
Alderman Gray seconded the motion. Upon roll call the motion passed 7-0. Alderman
Thiel was absent during the vote.
City Attorney Kit Williams read the ordinance.
Vice Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-
0. Alderman Thiel was absent during the vote.
Ordinance 5052 as Recorded in the Office of the City Clerk.
Dan Coody, Mayor
at 10:25 PM
mA
Sondra E. Smith, City Clerk/Treasurer
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