The URL can be used to link to this page

Home My WebLink About2012-01-03 - Agendas - Final Aldermen Mayor Lioneld Jordan Ward 1 Position 1—Adella Gray 7ayve e�l e Ward 1 Position 2—Brenda Boudreaux City Attorney Kit Williams Ward 2 Position 1 —Mark Kinwn Ward 2 Position 2—Matthew Petty City Clerk Sondra Smith Ward 3 Position l—Justin Tennant ARKANSAS Ward 3 Position 2—Robert Ferrell Ward 4 Position 1 —Rhonda Adams Ward 4 Position 2—Sarah E.Lewis Final Agenda City of Fayetteville Arkansas City Council Meeting January 3, 2012 A meeting of the Fayetteville City Council will be held on January 3, 2012 at 6:00 PM in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance Mayor's Announcements, Proclamations and Recognitions: City Council Meeting Presentations, Reports and Discussion Items: 1. Election of Vice Mayor-ALDERMAN FERRELL ELECTED. 2. Report on the Condition of the Pension Funds 3. Re-approval of Nominating Committee Report-APPROVED Agenda Additions: A. Consent: 1. Approval of the December 6, 2011 and the December 20, 2011 City Council meeting minutes. APPROVED 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 2. Police Department Policy: A resolution to approve Police Department Policy 33.1.1 Physical Fitness and 53.1 Inspections. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 01-12 3. Trail Naming: A resolution naming Oak Ridge Trail and Meadow Valley Trail. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 02-12 4. Bid #11-71 Keeling Company: A resolution awarding Bid #11-71 and approving a contract with Keeling Company in the amount of$77,333.34 for the purchase of two (2) irrigation wheels for effluent irrigation to hay fields. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 03-12 5. Community Services Division Budget Adjustment: A resolution to approve a budget adjustment to recognize $1,929.00 in donation revenue for the Ranger's Pet Food Bank and $568.00 in donation revenue from the Fayetteville Fraternal Order of Police and citizens for the Senior Giving Tree. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 04-12 6. 2012 Community Development Block Grant (CDBG): A resolution authorizing the Mayor to execute the Community Development Block Grant (CDBG) agreement for 2012 when received in the estimated amount of$589,066.00. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 05-12 7. 2012 Washington County Inter-Local Agreement: A resolution approving a month-to- month animal sheltering contract with Washington County, Arkansas beginning in 2012. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 06-12 8. Southwestern Electric Power Company (SWEPCO): A resolution approving an agreement with Southwestern Electric Power Company (SWEPCO) to participate in an energy efficiency rebate program in the amount of $13,569.32, and approving a budget adjustment. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 07-12 B. Unfinished Business: 1. Kum & Go Appeal: Appeal of the Planning Commission's determination to limit access for a proposed Kum and Go Large Scale Development at Martin Luther King, Jr. Blvd and Hill Avenue. This resolution was tabled at the December 20, 2011 City Council meeting to the January 3, 2012 City Council meeting. TABLED TO THE JANUARY 17, 2012 CITY COUNCIL MEETING 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayetteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 C. New Business: 1. 2012 Budget Reappropriation Request: A resolution amending the 2012 city budget by reappropriating up to $57,649,568.00 in bonded or ongoing capital projects, outstanding obligations and grant-funded items previously appropriated in the 2011 city budget but not completed or delivered in 2011. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 08-12 2. VAC 11-3970 (862 & 846 Huddle Place/Slavens): An ordinance approving VAC 11- 3970 submitted by Jorgensen & Associates for property located at 862 & 846 Hoddle Place in Addison Acres Subdivision to vacate a utility easement, a total of 0.57 acres. PASSED AND SHALL BE RECORDED AS ORDINANCE NO. 5474 3. Freeze City Clerk Salary: An ordinance to suspend the normal pay adjustment of the City Clerk/Treasurer for 2012. PASSED AND SHALL BE RECORDED AS ORDINANCE NO. 5475 D. City Council Agenda Session Presentations: City Council Tour: Announcements: Adjournment: 6:30 p.m. NOTICE TO MEMBERS OF THE AUDIENCE All interested persons may address the City Council on agenda items of New and Old Business. Please wait for the Mayor to request public comment and then come to the podium, give your name, address, and comments about the agenda item. Please address only the Mayor. Questions are usually answered by the Mayor, Aldermen or Staff after the public comment period is over. Please keep your comments brief and respectful. Each person is only allowed one turn at the microphone for discussion of an agenda item. All cell phones must be silenced and may not be used within the City Council Chambers. Below is a portion of the Rules of Order and Procedure of the Fayetteville City Council pertaining to City Council meetings: (a) Agenda additions. A new item which is requested to be added to the agenda at a City Council meeting should only be considered if it requires immediate City Council consideration and if the normal agenda setting process is not practical. The City Council may only place such new item on the City Council meeting's agenda by suspending the rules by two-thirds vote. Such agenda addition shall be heard prior to the Consent Agenda. 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 (b) Consent Agenda. Consent Agenda items shall be read by the Mayor and voted upon as a group without discussion by the City Council. If an Alderman wishes to comment upon or discuss a Consent Agenda item, that item shall be removed and considered immediately after the Consent Agenda has been voted upon. (c) Old business and new business. (i) Presentations by staff and applicants. Agenda items shall be introduced by the Mayor and, if an ordinance, read by the City Attorney. City staff shall then present a report. An agenda applicant (city contractor, rezoning or development applicant, etc.) may present its proposal only during this presentation period, but may be recalled by an alderman later to answer questions. Staff and applicants may use electronic visual aides in a City Council meeting as part of their presentation. (ii) Public comments. Public comment shall be allowed for all members of the audience on all items of old and new business and subjects of public hearings. No electronic visual aid presentations shall be allowed, but the public may submit photos, petitions, etc. to be distributed to the City Council. If a member of the public wishes for the City Clerk to distribute materials to the City Council before its meeting, such materials should be supplied to the City Clerk office no later than 9:00 a.m. on the day of the City Council meeting. Any member of the public shall first state his or her name and address, followed by a concise statement of the person's position on the question under discussion. Repetitive comments should be avoided; this applies to comments made previously either to the City Council or to the Planning Commission when those Planning Commission minutes have been provided to the Aldermen. All remarks shall be addressed to the Mayor or the City Council as a whole and not to any particular member of the City Council. No person other than the Aldermen and the person having the floor shall be permitted to enter into any discussions without permission of the Mayor. No questions shall be directed to an Alderman or city staff member except through the Mayor. (d) Courtesy and respect. All members of the public, all city staff and elected officials shall accord the utmost courtesy and respect to each other at all times. All shall refrain from rude or derogatory remarks, reflections as to integrity, abusive comments and statements about motives or personalities. Any member of the public who violates these standards shall be ruled out of order by the Mayor, must immediately cease speaking and shall leave the podium. Interpreters or TDD for hearing impaired are available for all City Council meetings, a 72 hour advance notice is required. For further information or to request an interpreter, please call 575-8330. A copy of the complete City Council agenda is available at accessfayetteville.org or in the office of the City Clerk, 113 W. Mountain, Fayetteville,Arkansas. 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 City Council Meeting: January 3,2012 Adjourn: '' 3o P'M' Subject: Roll Boudreaux Kinion LZ Petty Tennant �tp ol$�tal Ferrell Adams Lewis Gray Mayor Jordan Subject: Election of Vice Mayor Motion To: Awtvv� Motion By: Seconded: Boudreaux Kinion 41ve Oa Petty k."11-1a Tennant ve� e � Ferrell t¢ (Ls 01Cf Adams 6 Lewis Gray Mayor Jordan C'v '� City Council Meeting: January 3,2012 Subject: Re-approval of Nominating Committee Report Motion To: Motion By: Seconded: � � Boudreaux ✓ Kinion ✓ Petty ,✓ ✓}?LSP. Tennant ✓ Ferrell ✓ Adams t Lewis r✓ ,Gray Mayor Jordan Subject: Consent Motion To: Ft Motion By: i Seconded: Boudreaux Kinion t/ 'klaclj Petty - - Tennant t0 Ferrell tr'' s Adams O' _ / Lewis J, /t4A_ Gray LO` Mayor Jordan City Council Meeting: January 3,2012 Subject: Kum & Go Appeal Motion To: C)"it �Wv � 10 !1 ao! Motion By: i 5 Seconded: =1 nALV B. 1 Boudreaux Unfinished Kinion Business Petty Tennant Applicant Ferrell request item Adams to be tabled Lewis for two weeks. Gray y TeWJ40 Mayor Jordan ?auk I�E, � 7-0 Subject: Motion To: Motion By: Seconded: Boudreaux Kinion Petty Tennant Ferrell Adams Lewis Gray Mayor Jordan City Council Meeting: January 3,2012 Subject: 2012 Budget Rea ro riation Request Motion To: Ga Motion By: Seconded: K n i C. 1 Boudreaux W/ New Kinion V1, Business Petty i/ Tennant Ferrell Adams r� Lewis a/ Gray ✓ Mayor Jordan 7 Subject: VAC 11-3970 (862 & 846 Hoddle Place/Slavens) Motion To: +0 ode 4 J � d Motion By: Seconded: s 5 �' t C.2 Boudreaux ✓ ✓ ✓ �/ New Kinion ,/ ✓ Vol' ,✓ Business Petty f/ ✓ We ✓ Tennant t ✓ yd' Ferrell WOIO� ✓ P Adams Ceasmi 643 .. Lewis 5y'1� Gray t� ✓ Mayor Jordan City Council Meeting: January 3,2012 Subject: Freeze City Clerk Salary Motion To: 3.ad Motion By: 7 �r1 Seconded: C.3 Boudreaux i/ ✓ New Kinion �✓ �/ ✓ Business Petty i/ ✓ Tennant i/ ✓ ✓ Ferrell ✓ �t ,/� Adams (�2,65By�( [{.•115P.s�" S P Lewis Gray �/ t✓ �� Mayor Jordan Subject: Motion To: Motion By: Seconded: Boudreaux Kinion Petty Tennant Ferrell Adams Lewis Gray Mayor Jordan • Ta7yerl Departmental Correspondence LEGAL NSAS DEPARTMENT Kit Williams City Attorney 1'O: Mayor Jordan Jason B.Kelley Assistant City Attorney THRU: Sondra Smith, City Clerk FROM: Kit Williams, City Attorney �C DATE: January 4, 2012 RE: Resolutions and Ordinances prepared by the City Attorney's Office and passed at the City Council meeting of January 3, 2012 I. Police Department Policy: A resolution to approve Police Department Police 33.1.1 Physical Fitness and 53.1 Inspections. 2. Trail Naming: A resolution naming Oak Ridge Trail and Meadow Valley Trail. 3. Bid # 11-71 Keeling Co.: A resolution awarding Bid #11-71 and approving a contract with Keeling Company in the amount of$77,333.34 for the purchase of two irrigation wheels for effluent irrigation to hay fields. 4. Community Services Division Budget Adjustment: A resolution to approve a budget adjustment to recognize $1,929.00 in donation revenue for the Ranger's Pet Food Bank and $568.00 in donation revenue from the Fayetteville Fraternal Order of Police and citizens for the Senior Giving Tree. 5. 2012 CDBG: A resolution authorizing the Mayor to execute the Community Development Block Grant agreement for 2012 when received in the estimated amount of$589,066.00. 6. 2012 Interlocal Agreement with Washington County: A resolution approving a month-to-month Animal Sheltering contract with Washington County beginning in 2012. 7. SWEPCO Agreement: A resolution approving an agreement with Southwestern Electric Power Company to participate in an energy efficiency rebate program in the amount of$13,569.32, and approving a budget adjustment. 8. 2012 Budget Reappropriation Request: A resolution amending the 2012 City Budget by reappropriating up to $57,649,568.00 in bonded or ongoing capital projects, outstanding obligations and grant-funded items previously appropriated in the 2011 City Budget but not completed or delivered in 2011. 9. City Clerk Salary Freeze: An ordinance to suspend the normal pay adjustment of the City Clerk/Treasurer for 2012. 2 Aldermen Mayor Lioneld Jordan Ward 1 Position 1—Adella Gray 7ayve e�l e Ward 1 Position 2—Brenda Boudreaux City Attorney Kit Williams Ward 2 Position 1 —Mark Kinwn Ward 2 Position 2—Matthew Petty City Clerk Sondra Smith Ward 3 Position l—Justin Tennant ARKANSAS Ward 3 Position 2—Robert Ferrell Ward 4 Position 1 —Rhonda Adams Ward 4 Position 2—Sarah E.Lewis Final Agenda City of Fayetteville Arkansas City Council Meeting January 3, 2012 A meeting of the Fayetteville City Council will be held on January 3, 2012 at 6:00 PM in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance Mayor's Announcements, Proclamations and Recognitions: City Council Meeting Presentations, Reports and Discussion Items: 1. Election of Vice Mayor 2. Report on the Condition of the Pension Funds 3. Re-approval of Nominating Committee Report Agenda Additions: A. Consent: 1. Approval of the December 6, 2011 and the December 20, 2011 City Council meeting minutes. 2. Police Department Policy: A resolution to approve Police Department Policy 33.1.1 Physical Fitness and 53.1 Inspections. 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 3. Trail Naming: A resolution naming Oak Ridge Trail and Meadow Valley Trail. 4. Bid #11-71 Keeling Company: A resolution awarding Bid #11-71 and approving a contract with Keeling Company in the amount of$77,333.34 for the purchase of two (2) irrigation wheels for effluent irrigation to hay fields. 5. Community Services Division Budget Adjustment: A resolution to approve a budget adjustment to recognize $1,929.00 in donation revenue for the Ranger's Pet Food Bank and $568.00 in donation revenue from the Fayetteville Fraternal Order of Police and citizens for the Senior Giving Tree. 6. 2012 Community Development Block Grant (CDBG): A resolution authorizing the Mayor to execute the Community Development Block Grant (CDBG) agreement for 2012 when received in the estimated amount of$589,066.00. 7. 2012 Washington County Inter-Local Agreement: A resolution approving a month-to- month animal sheltering contract with Washington County, Arkansas beginning in 2012. 8. Southwestern Electric Power Company (SWEPCO): A resolution approving an agreement with Southwestern Electric Power Company (SWEPCO) to participate in an energy efficiency rebate program in the amount of $13,569.32, and approving a budget adjustment. B. Unfinished Business: 1. Kum & Go Appeal: Appeal of the Planning Commission's determination to limit access for a proposed Kum and Go Large Scale Development at Martin Luther King, Jr. Blvd and Hill Avenue. This resolution was tabled at the December 20, 2011 City Council meeting to the January 3, 2012 City Council meeting. C. New Business: 1. 2012 Budget Reappropriation Request: A resolution amending the 2012 city budget by reappropriating up to $57,649,568.00 in bonded or ongoing capital projects, outstanding obligations and grant-funded items previously appropriated in the 2011 city budget but not completed or delivered in 2011. 2. VAC 11-3970 (862 & 846 Hoddle Place/Slavens): An ordinance approving VAC 11- 3970 submitted by Jorgensen & Associates for property located at 862 & 846 Hoddle Place in Addison Acres Subdivision to vacate a utility easement, a total of 0.57 acres. 3. Freeze City Clerk Salary: An ordinance to suspend the normal pay adjustment of the City Clerk/Treasurer for 2012. D. City Council Agenda Session Presentations: City Council Tour: 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayetteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 Announcements: Adjournment: NOTICE TO MEMBERS OF THE AUDIENCE All interested persons may address the City Council on agenda items of New and Old Business. Please wait for the Mayor to request public comment and then come to the podium, give your name, address, and comments about the agenda item. Please address only the Mayor. Questions are usually answered by the Mayor, Aldermen or Staff after the public comment period is over. Please keep your comments brief and respectful. Each person is only allowed one turn at the microphone for discussion of an agenda item. All cell phones must be silenced and may not be used within the City Council Chambers. Below is a portion of the Rules of Order and Procedure of the Fayetteville City Council pertaining to City Council meetings: (a) Agenda additions. A new item which is requested to be added to the agenda at a City Council meeting should only be considered if it requires immediate City Council consideration and if the normal agenda setting process is not practical. The City Council may only place such new item on the City Council meeting's agenda by suspending the rules by two-thirds vote. Such agenda addition shall be heard prior to the Consent Agenda. (b) Consent Agenda. Consent Agenda items shall be read by the Mayor and voted upon as a group without discussion by the City Council. If an Alderman wishes to comment upon or discuss a Consent Agenda item, that item shall be removed and considered immediately after the Consent Agenda has been voted upon. (c) Old business and new business. (1) Presentations by staff and applicants. Agenda items shall be introduced by the Mayor and, if an ordinance, read by the City Attorney. City staff shall then present a report. An agenda applicant (city contractor, rezoning or development applicant, etc.) may present its proposal only during this presentation period, but may be recalled by an alderman later to answer questions. Staff and applicants may use electronic visual aides in a City Council meeting as part of their presentation. (ii) Public comments. Public comment shall be allowed for all members of the audience on all items of old and new business and subjects of public hearings. No electronic visual aid presentations shall be allowed, but the public may submit photos, petitions, etc. to be distributed to the City Council. If a member of the public wishes for the City Clerk to distribute materials to the City Council before its meeting, such materials should be supplied to the City Clerk office no later than 9:00 a.m. on the day of the City Council meeting. Any member of the public shall first state his or her name and address, followed by a concise statement of the person's position on the question under discussion. Repetitive comments should be avoided; this applies to comments made previously either to the City Council or to the Planning Commission when those Planning Commission minutes have been provided to the Aldermen. All remarks shall be addressed to the Mayor or the City Council as a whole and not to any particular member of the City Council. No person other than the Aldermen and the person having the floor shall be permitted to enter into any discussions without permission of the Mayor. No questions shall be directed to an Alderman or city staff member except through the Mayor. (d) Courtesy and respect. All members of the public, all city staff and elected officials shall accord the utmost courtesy and respect to each other at all times. All shall refrain from rude or derogatory remarks, reflections as to integrity, abusive comments and statements about motives or personalities. Any member of the public who violates these standards shall be ruled out of order by the Mayor, must immediately cease speaking and shall leave the podium. Interpreters or TDD for hearing impaired are available for all City Council meetings, a 72 hour advance notice is required. For further information or to request an interpreter, please call 575-8330. A copy of the complete City Council agenda is available at accessfayetteville.org or in the office of the City Clerk, 113 W. Mountain, Fayetteville,Arkansas. 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316 • aye evlle THE CITY OF FA PART ENTCORARKANSAS DEPARTMENT CORRESPONDENCE TARRA RSAS CITY COUNCIL AGENDA MEMO To: Mayor Jordan and members of the City Council Thru: Sondra E. Smith, City Clerk P.eJ From: Lisa Branson, Deputy City Clerkj Date: December 29, 2011 C Subject: Revised Nominating Committee Report PROPOSAL: At the December 20, 2011 City Council meeting, members of the City Council unanimously approved the Nominating Committee Report. In regards to the Airport Board appointment, Bill Corley should have been appointed to the Aeronautical Term ending 12/31/16 and Ken Haxel should have been appointed to the University of Arkansas Term ending 12/31/16. RECOMMENDATION: Assistant City Attorney Jason Kelley recommends that the City Council re-approve these two appointees on the Airport Board to the correct positions. A copy of the revised Nominating Committee Report is attached. BUDGETIMPACT: None Revised Nominating Committee Report Meeting: Wednesday, December 14,2011 City Hall, Room 326, 4:00 p.m. Members Present—Adella Gray, Bobby Ferrell,Rhonda Adams, and Mark Kinion The Committee recommends the following candidates for appointment: Active Transportation Advisory Committee • Quin Thompson—One Tenn Ending 12/31/13 • Gale Wingate—One Term Ending 12/31/13 • Jared Hintergardt—One Tenn Ending 12/31/13 • Nick Jones—One Term Ending 12/31/13 • Aaron Thomas—One Tenn Ending 12/31/13 Airport Board • Bill Corley—One Aeronautical Tenn Ending 12/31/16 • Ken Haxel—One University of Arkansas Term Ending 12/31/16 Animal Services Advisory Board • No applications were received Audit Committee • Judy Jacobs—One Term Ending 12/31/14 Board of Adjustments • Tim Stein—One Unexpired Tenn Ending 03/31/15 Construction Board of Adiustments and Anneals • Brian Hogue—One Unexpired Alternate Member Tenn Ending 03/31/12 Environmental Action Committee • Dana Smith—One Citizen-at-Large Term Ending 12/31/14 • Lori Yazwinski—One Citizen-at-Large Term Ending 12/31/14 Housine Authority Board of Commissioners • Matthew Cabe-One Term Ending 12/28/16 Parks and Recreation Advisory Board • Phillip McKnight—One Term Ending 12/31/14 • Grant Hodges—One Term Ending 12/31/14 • John M. Paul—One Tenn Ending 12/31/14 Telecommunications Board • Greg Goggans—One unexpired Term Ending 06/30/13 Urban Forestry Advisory Board • Betty Martin—One University Representative Term Ending 12/31/13 • Donald Steinkraus—One Community Citizen-at-Large Term Ending 12/31/13 B. 1 &Go Appeal Taetred leaDepartmental Correspondence reloflo i ApKmm LEGAL Kit Williams TO: Mayor Jordan City Attorney City Council Jason B.Kelley Assistant City Attorney CC: Don Marr, Chief of Staff Jeremy Pate, Development Services Director Chris Brown, City Engineer FROM: Kit Williams, City Attorney DATE: December 27, 2011 RE: Kum & Go Appeal Potential costs to taxpayers if left turn in access is denied MOTION TO TABLE When Alderman Ferrell asked if denying the left turn in from Martin Luther King Boulevard was a "deal killer" and Kum & Go's representative said "Yes," I became concerned that the City Council's decision could have costly implications for our taxpayers. This concern was reinforced when the property owner came forward to explain the difficulties in selling this large parcel with 360 feet of street frontage on Martin Luther King Boulevard without at least a full right and left in curb cut on MLK. What concerned me were clear holdings by the Arkansas Supreme Court that a city may not take away a property owner's access easement to an abutting street without the payment of just compensation. "Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself, and any subsequent act, by which that easement is substantially impaired for the benefit of the public, is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation." Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S.W. 2d 753, 753-754 (1931). (emphasis added). B. 1 Kum&Go Appeal Page 2 of 10 Four decades later, the Arkansas Supreme Court reaffirmed this access easement right as a property right for a lot abutting a street. "The owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Flake v. Thompson, 249 Ark. 713, 460 S.W. 2d 789, 795 (1970). In that case, the City of Little Rock had passed an ordinance that would have denied access to University Avenue to the property owner and argued that it could do so because the property owner had access to another (lower level) city street. The Arkansas Supreme Court held "that the ordinance constituted an unwarranted invasion of private rights and was discriminatory and oppressive, and thus it is unreasonable and arbitrary." Id. at 796 "The property right of ingress and egress of appellants in the easement was one that could not be taken from them by the city, at least without the payment of just compensation." Id. (emphasis added). If denying Kum & Go's requested left turn in access from MLK would kill this $3.5 million project and leave the property owner with several acres of prime commercial land which cannot be reasonably sold, this "taking" by the City could be very expensive for our taxpayers. That concern prompted me to ask the City Council to table this appeal not only so our Engineering Department could analyze the rather "thin" traffic study presented by Kum & Go, but so I could properly advise you on the legal and possible financial ramifications of your decision on the appeal. BACKGROUND OF KUM & GO'S REQUESTED LEFT TURN IN Kum & Go had to be granted a variance for access onto Martin Luther King Boulevard because its driveway could not be at least 250 feet from both Royal Oak and Hill Avenue. The driveway's proposed location on Site Plan F (which Kum & Go is requesting you to approve) is 272 feet from Hill Avenue but only 91 feet from Royal Oak. I believe that legally we must allow Kum & Go some access onto Martin Luther King Boulevard along its 389 foot frontage. Both the Planning Department and Planning Commission agree that a driveway should be allowed. The only issue is its precise location and the possible limitation of such access. 2 B. 1 Kum&Go Appeal Page 3 of 10 The Access Management section of the Unified Development Code specifies when a curb cut can be limited so as not to provide both left and right turns into and out of the property. "If a parcel on the corner of an arterial or collector street (like this parcel) provides such a short frontage along a major street that there is no safe ingress/egress functional location on that street, the (City) may deny the curb cut or may limit such curb cut to ingress or egress only." §166.08 (17)(1)(e). (emphasis added) The 389 foot street frontage on MLK is certainly not "short". It appears much longer than the gas station/convenience store frontage at MLK and Razorback which has unlimited curb cuts on both of these major roads and much more center lane car stacking on MLK to turn left onto Razorback than the Hill Avenue intersection. The same is true for the new fast food restaurant on the southeast corner of MLK and Razorback. The City should present clear scientifically established safety dangers of allowing a left turn in from MLK at this location before restricting this normal property right which is being allowed to competitors and will likely cause the loss of this land sale to the property owners and the applicant's multimillion dollar investment in our City. All are in agreement that there is a safe right turn in and out functional location in the approximate location shown by Site Plan F. The issue is whether a left turn into the property at this location over 90 yards from the Hill Avenue intersection is so dangerous that the City can deny this normal property right of the owner. Even if such left turn in access can be legally denied, the Arkansas Supreme Court holdings would probably require just compensation for this taking. The City could present several types of evidence to factually support its contention that this left turn in access would be too dangerous to allow. City Staff could present evidence of sight distance problems with the proposed location. Staff could present a traffic study demonstrating certain traffic movements at this location (such as left turns in) are so unreasonably dangerous that such access should be denied. This has yet to be presented. The 20-30 second video (that does not even include a complete traffic signal rotation and with no scientific evidence that the traffic shown is the normal volume, direction and speed for that intersection) provides virtually no evidence for the City Council to determine the safety or danger level of the proposed left turn in from MLK. It is less than 4 hundredths of one percent of one day's traffic history of that intersection. This is not good evidence of what occurs during the remaining 99.96% of the day at that intersection. General statistics that left turns on major roads cause the most accidents are probably too general to justify a decision to deny a left turn at this location. If there was no center turn lane, there would be increased danger of rear-end accidents. All of us know the caution we must use when driving in the left lane on North College Avenue 3 B. 1 Kum&Go Appeal Page 4 of 10 between North Street and Maple Avenue to avoid being stopped behind a driver turning left onto Trenton or Prospect or into one of the numerous businesses (including a coffee shop, restaurant and liquor store) along that stretch of four lane (no center turn lane), high volume, 35 m.p.h. street. The same is true on Highway 71B from Martin Luther King to Dickson Street. Fortunately, in the case of Kum & Go on Martin Luther King, there is a center turn lane on Martin Luther King with enough room to "stack" several cars. This is a far safer situation than AutoZone, IGA and many other businesses including service stations on the newly reconfigured and reconstructed portion of North College from Rock Street to Maple which allow full access curb cuts closer to major intersections. Please keep in mind that our Access Management Ordinance states: "Where a curb cut must access the arterial street, it shall be located a minimum of 250 feet from an intersection or driveway." I presume that a 250 foot requirement from an intersection was to ensure safety and lack of conflict with such intersection. Kum & Go's Site Plan F satisfies that safety requirement for the intersection with Hill Avenue. Thus, the City's reliance upon possible safety concerns because of the Hill Avenue intersection are substantially weakened because this driveway meets the separation requirements of the Access Management Ordinance. Kum & Go's proposed driveway does not meet the separation requirement with Royal Oak because it is only 30 yards away. This is where the variance requested by Kum & Go can best be scrutinized for safety issues. Since Royal Oak would be used almost exclusively by residents of this apartment complex, it would be a low volume exit. I doubt if its actual traffic has been counted. This is much less of a safety issue than numerous other curb cuts permitted elsewhere on MLK, Archibald Yell and College Avenue (even on the City rebuilt section of College Avenue). An equal protection of the laws argument concerns me with this case. REQUIRING FULL DRIVEWAY ACCESS FROM AND ONTO THE ONE LANE — ONE WAY ROYAL OAK Kum & Go's proposed gas station/convenience store has two separate access points on MLK and Hill Avenue. To require it to connect to a one lane, one way Royal Oak so that residents do not have to either go to Hill Avenue or turn right onto MLK seems like an over-reach and a potential violation of Constitutional protections given developers. The City can require exactions (more normally known as "costs") of a developer in rough proportion to the impact the developer is causing to City infrastructure (like streets). Thus, the cost to pay for the erection of a new traffic signal as suggested by its own traffic engineer to reduce any stacking issues could be a reasonably proportionate exaction (or cost) required from Kum & Go for this project's impact on City streets. 4 B. 1 Kum&Go Appeal Page 5 of 10 Likewise requiring a developer of a large corner lot to have curb cuts on both MLK and Hill for both its customers' convenience and safety and for fire access would likely be within a city's power. However, requiring a third access onto and from a one lane, one way street that functions as an apartment complex driveway is much more difficult to justify. This is especially true because this additional driveway would not only be very expensive (hundreds of thousands of dollars) and use significant portions of the developer's land, it would also force the movement of the curb cut on MLK into the 250 foot "danger zone" from the intersection with Hill Avenue (a real city street). What small amount of traffic (only from the apartments) might use this driveway would cause conflicts with traffic entering from MLK and could encourage illegal cut through traffic if Royal Oak was ever backed up waiting to enter MLK. The City already approved Royal Oak's right turn onto MLK as safe enough to build this "city street". Certainly a right turn into Kum & Go off MLK is also safe and is recommended by Planning and Engineering as safe. So this very expensive driveway from the one lane Royal Oak is being required to replace two "safe" right turns for a very limited number of drivers. I fear this requirement exceeds the proportionate impact of this development, and thus the City may lack the constitutional power to require this questionable and very expensive third access from and onto the one way, one lane Royal Oak. In addition, all this extra pavement for the driveway seems to run counter to the City Council's express policy supporting low impact development. The sidewalk alternative proposed by Kum & Go is also more compatible with the City Council's adopted policy to move toward a less car dominated, more pedestrian and walkable environment. CONCLUSION "We have held that the owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970). We have also noted that this property right is not diminished merely because the property owner has alternative means of ingress and egress. Wright v. City of Monticello, 345 Ark. 420, 47 S.W. 3d 851, 857 (2001). (emphasis added). Even if we have well proven public safety concerns, "(t)he property right of ingress and egress ... could not be taken from them by the city, at least without the payment of just compensation". Flake v. Thompson, supra (emphasis added). I appreciate Kum & Go's proposed compromise not to insist on a left out onto MLK 5 B. 1 Kum&Go Appeal Page 6 of 10 Boulevard because of concerns for the safety of its customers and the proximity of the traffic signal on Hill Avenue. Accepting such a compromise (Kum & Go originally sought a full access including left out onto MLK) would allow this project to be built and prevent a probably successful inverse condemnation case against the City. In the late 80's and early 90's, the Fayetteville Board of Directors committed illegal exactions (sometimes after being warned) which they justified as "doing the right thing." These decisions cost our taxpayers several million dollars paid to attorneys who sued us successfully arguing that following the Constitution and state law was actually "doing the right thing." I was on the City Council who had to clean up those messes and authorize the multimillion dollar payments ordered by the Courts for those attorneys. When I became Fayetteville City Attorney in 2001, I made a commitment to myself to do my best to avoid those multimillion dollar mistakes. Because the City Council has heeded my occasional warnings, our taxpayers have not had to pay these exorbitant attorney fees for over a decade. I ask you once again to carefully consider the law that gives property owners access rights to City streets and be aware that, if you deny an access right in this case, the result could be writing a fairly large check on our taxpayers' account. 6 B. 1 Kum&Go Appeal Page 7 of 10 TITLE XV UNIFIED DEVELOPMENT CODE shared between two or more lots. (e) Variance- In order to protect the ingress Where a curb cut must access the and egress access rights to a street of arterial street, it shall be located a an abutting property owner, a variance minimum of 250 feet from an to the curb cut minimums shall be intersection or driveway granted by the Planning Commission to allow an ingress/egress curb cut at the Number of Curb Cuts Permitted safest functional location along the Length of Street Frontage Maximum Number of Curb property Such a curb cut may be Cuts required to be shared with an adjoining 0-500 ft. 1 parcel if feasible. If a parcel on the 501-1000 ft, 2 corner of an arterial or collector street 1001-1500 ft- 3 provides such short frontage along a More than 1500 ft. 4 major street that there is no safe ingress/egress functional location on that street, the Planning Commission (b) Collector Streets, Curb cuts shall be may deny the curb cut or may limit such located a minimum of 100 feet from an curb cut to ingress or egress only intersection or driveway When necessary, curb cuts along collector (2) Speed. All streets should be designed to streets shall be shared between two or discourage excessive speeds more lots- (G) Non-conforming Access Features Number of Curb Cuts Permitted Length of Street Frontage Maximum Number of Curb (1) Existing. Permitted access connections in Cuts place on the date of the adoption of this 0-100 ft. 1 ordinance that do not conform with the 101-250 ft. 2 standards herein shall be designated as 251-500 h- 3 nonconforming features and shall be brought More than 500 ft. 4 into compliance with the applicable standards under the following conditions: (c) Local and Residential Streets, Curb cuts (a) When new access connection permits shall be located a minimum of 50 feet are requested; from an intersection or driveway In no (b) Upon expansion or improvements case shall a curb cut be located within greater than 50% of the assessed the radius return of an adjacent curb cut property value or gross floor area or or intersection- Curb cuts shall be a volume; minimum of fifteen (15') feet from the adjoining property line, unless shared. (c) As roadway improvements allow, Number of Curb Cuts Permitted (H) Easements. Utility and drainage easements shall Length of Street Frontage Maximum Number of Curb be located along lot lines and/or street right-of- Cuts way where necessary to provide for utility lines 0-50 ft. 1 and drainage- The Planning Commission may 51-125 R 2 require larger easements for major utility lines, 126-250 ft. 3 unusual terrain or drainage problems- More than 250 ft. 4 (1) Residential lots. The use and design of lots shall conform to the provisions of zoning where City (d) Residential Subdivisions- In the case of zoning is in effect. When no City zoning applies, residential subdivisions, curb cuts shall the following standards shall govern unless in be discouraged along arterial and conflict with more stringent city, county or state collector streets. When necessary, curb regulations: cuts along arterial and collector streets shall be shared between two or more (1) Bulk and area regulations: lots. Curb cuts along all streets shall be located a minimum of five feet (5') from the adjoining property line, unless Plannin Area shared- Lot area minimum 10,000 sq.fl- CD166:35 B. 1 Kum&Go Appeal Page 8 of 10 RESOLUTION NO. A RESOLUTION TO GRANT THE APPEAL OF KUM & GO, L.C. AND TO AMEND AND APPROVE ITS LARGE SCALE DEVELOPMENT TO MATCH THE PLAT SUBMITTED WITH ITS APPEAL LETTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby grants the appeal of Kum & Go, L.C. from some of the terms or conditions imposed by the Planning Commission and amends and approves the Large Scale Development plat to conform with the plat submitted by Kum & Go, L.C. as Site Plan F (attached to this Resolution) regarding its driveway access onto and from Martin Luther King, Jr. Boulevard and changing the access from Royal Oak from vehicular to pedestrian. All other terms and conditions approved by the Planting Commission when approving LSD 11-3966 (Kum & Go at Martin Luther King and Hill Avenue) shall remain in full force and effect. PASSED and APPROVED this 3rd day of January, 2012. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer ...w ,«,....e... �..,w.,...., s,l B. 1 �'=6804!Kur i&Go Appeal _ I Pac a 9 of 10 'dt+• 'i•o �///y 3t r 1 x` Prlrofe Prgo.rfY o/Tinct I, Agora Rrtlq - A -46'4irE: .14310_- } f� r / Il • ' f 14�` i 4 LI y •T.M1 I I t =om"", _ r I l I f 1 I j as rl Vr 'qI rare r 1j Ii(1 I ' �3 O �I ytl , OI paM > mrm 7;�,•?-�-tfa DNA IL,1 I ' yyGGG s i I __ � �'-- _ _C-- � �_ __ .tea-��u.��!/ �• �'�f ` C M S � r- > Z a ENGINEERINQ RS3OCL7TE9,!NC r STI RE#26728-FAYETTEVILLE,AR KUM & G0, L. 6 § SITE PIAN FKUM&60 REOUES 8400 Westown Parkway r>brsz�fs , MtK&HILL ( n Wast Des Moines,lava 50266 PArafs>mswi •"'��d A`'' B. 1 Kum&Go Appeal Page 10 of 10 City Council Meeting Minutes January 3,2012 Page 1 of 6 Aldermen Mayor Lioneld Jordan Ward 1 Position 1—Adella Gray 7ayve e�l e Ward 1 Position 2—Brenda Boudreaux City Attorney Kit Williams Ward 2 Position 1 —Mark Kinwn Ward 2 Position 2—Matthew Petty City Clerk Sondra Smith Ward 3 Position l—Justin Tennant ARKANSAS Ward 3 Position 2—Robert Ferrell Ward 4 Position 1 —Rhonda Adams Ward 4 Position 2—Sarah E.Lewis City of Fayetteville Arkansas City Council Meeting Minutes January 3, 2012 A meeting of the Fayetteville City Council was held on January 3, 2012 at 6:00 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Mayor Jordan called the meeting to order. PRESENT: Alderman Gray, Boudreaux, Kinion, Petty, Tennant, Ferrell, Lewis, Mayor Jordan, City Attorney Kit Williams, City Clerk Sondra Smith, Staff, Press, and Audience. ABSENT: Alderman Adams Pledge of Allegiance Mayor's Announcements, Proclamations and Recognitions: City Council Meeting Presentations, Reports and Discussion Items: Election of Vice Mayor Alderman Boudreaux moved to elect Alderman Ferrell as Vice Mayor. Alderman Tennant seconded the motion. Alderman Boudreaux: Bobby has served for a long time and has a lot of knowledge and experience. I think he will do a good job. Alderman Gray: I think he is a very serious Alderman. He does lots of homework and I appreciate him. I think he will do an excellent job. 113 West Mountain Fayetteville,AR 72701 (479)575-8323 accessfayelteville.org Telecommunications Device for the Deaf TDD/TTY(479)521-1316