HomeMy WebLinkAbout2009-06-09 - Agendas - Final Aldermen
Ward 1 Position 1—Adella Gray
Mayor Lioneld Jordan Ward 1 Position 2—Brenda Thiel
Taye eel e Ward 2 Position 1 —Kyle Cook
City Attorney Kit Williams Ward 2 Position 2—Matthee w Petty
Ward 3 Position l—Robert K.Rhoads
City Clerk Sondra Smith
ARKANSAWard 3 Position 2—Robert Ferrell
S
Ward 4 Position 1 —Shirley Lucas
Ward 4 Position 2—Sarah E.Lewis
Final Agenda
City of Fayetteville Arkansas
Special City Council Meeting
June 9, 2009
A meeting of the Fayetteville City Council will be held on June 9, 2009 at 5:30 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
A. New Business:
1. Hyland Park Phase II — Water Storage Tank: A resolution to accept and approve the
City Council Sewer Committee's decision to begin construction plans for a 500,000
gallon water storage tower on Lot 22 of Hyland Park Phase II.
2. Hyland Park Phase II — Declaratory Judgment Action: A resolution to authorize the
Fayetteville City Attorney to file a declaratory judgment action or other appropriate
request for judicial relief concerning the ownership of Lot 22 of Hyland Park Phase II
and the City's right to construct a water tower thereon.
Agenda Additions:
Announcements:
Adjournment:
113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax)
accessfayetteville.org
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As a courtesy please turn off all cell phones and pagers.
A copy of the City Council agenda is available at accessfayetteville.org or in the office of the
City Clerk, 113 West Mountain, Fayetteville,Arkansas.
113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax)
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City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
6/9/2009
City Council Meeting Date
Agenda Items Only
David Jurgens Water&Wastewater Utilities
Submitted By Division Department
Action Required:
Approval of a resolution to accept and approve the City Council Sewer Committee's decision to begin construction
plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II.
$ _ $ 2,189,147 Mt Sequoyah Press Plane Imprvmt
Cost of this request Category/Project Budget Program Category/Project Name
5400.5700.5314 A2 $ 139,888 Water and Wastewater
Account Number Funds Used to Date Program/Project Category Name
04036-1 $ 2,049,259 Water/Sewer
Project Number Remaining Balance Fund Name
Budgeted Item = Budget Adjustment Attached
N M'�)&AO
zN og Previous Ordinance or Resolution# 151-04
Dep ant D actor Date
Original Contract Date: 10/5/2004
Original Contract Number: 900
City�tEo ey nn t1 Date
Finance and Internal Services Director Date Received in City "' ^ED
Clerk's Office I
L.
of S affate Ep
Received in /
Mayor's Office o
'MAYor Date
Comments:
Revised January 15,2009
aye evlle
Special City Council Meeting of June 9, 2009
CITY COUNCIL AGENDA MEMO
To: Mayor Lioneld Jordan
Fayetteville City Council
Thru: Don Marr
From: David Jurgens, Utilities Director V v
Fayetteville Sewer Committee
Date: June 2, 2009
Subject: Approval of a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II
RECOMMENDATION
Staff recommends approval a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase Il.
BACKGROUND
Lot 22 of the Hyland Park Phase II subdivision was designated as the site for the water storage tank when the
subdivision plat was filed in July 1974,with the following statement on the plat: "Lot 22 has been approved by
the Planning Commission for construction of a water tower and is to become the property of the City of
Fayetteville."
DISCUSSION
At a Sewer Committee meeting on August 15, 2008, the Committee reviewed all viable tank alternatives and
directed staff to proceed with negotiations with the Hyland Park Homeowner's Association regarding a potential
land swap for another suitable property near the site. After information was sent to the HOA in September,
2008, no response was received from the HOA. In response to a letter sent by the City on 15 April, 2009,the
HOA stated their refusal to negotiate or support the City's actions in any way. Negotiations have recently
resumed, but a firm decision is required in order to proceed with tank construction.
Additional detail is included in the enclosed fact sheet.
A full presentation of the issues will be made at the City Council meeting.
BUDGETIMPACT
There is currently$2,049,259 in the impact fee fund and$128,549 in the Water/Sewer fund budgeted for this
project.
Mt Seq Tank CCMemo 9JunO9 2 of 2
Ta`yZ evi le
Afl KANSAS
MAY 29,2009 CONTACT: David Jurgens,P.E.
Utilities Director
479-575-8330
d i ureensa,ci.t'avetteville.ar.us
MT. SEQUOYAH PRESSURE PLANE WATER STORAGE FACT SHEET
General
The City of Fayetteville provides water to its customers to meet three basic needs in the
following priority order: domestic water consumption (including commercial and industrial
uses), fire protection, and irrigation. This service requires a combination of water storage tanks,
pump stations, and many miles of pipe.
Elevated water storage tanks, and pump stations to fill them, are required to provide adequate
water flow and pressure to higher elevations of town. These tanks, like the one on Mt. Sequoyah,
ensure consistent pressure and adequate volume to meet all three of the basic water needs. The
majority of our customers receive pressure from the primary pressure plane which contains 27
million gallons of water. Residents on the highest elevations in the City receive water from the
Mt. Sequoyah pressure plane, served by the tank on Skyline Drive, holding 250,000 gallons.
Residents on the higher area east of the City, in the area around Sassafras Road, are served by the
Gulley tank, holding 750,000 gallons of water. These relative elevations are shown below.
1000' Mount Sequoyah 18151800'
1700' 1700'
' Gulley 1860'
1800' 1800'
Primary Put...to Pfene 1570'
1500' 1500'
1Joo' 1409
Comparison of Water Storage Elevations in Fayetteville
Mt. Sequoyah Pressure Plane Current Condition
In evaluating our system, the City identified a significant shortfall in the higher elevations
including the areas of Mt. Sequoyah, Hillcrest, Rockwood, Applebury, Ridgeway, Hyland Park,
and Canterbury. The entire affected area, shown on the attached map, contains 1,817 water
connections and 162 fire hydrants.
The largest impact of this shortfall is that the entire area has inadequate fire protection, especially
during summer peak water usage periods. The general residential fire protection requirement is
1,500 gallons per minute. At this time, fewer than 5% of the hydrants in this area can meet this
requirement during peak usage. The shortfall also impacts our ability to provide consistent
domestic water pressure and flow during summer peak usage periods. Customers at the highest
elevations have very low pressure and flow during these times.
aye edle
ARKAN5A5
Mt. Sequoyah Pressure Plane Solution
To correct this shortfall, the City must build a water storage tank which will hold approximately
500,000 gallons to meet regulatory and industry design standards and meet water demand
requirements during hot weather. This tank must be located on a hilltop, as the water pressure in
our system is provided by gravity. The tank elevation is required to be 1815 feet above sea level,
to provide adequate pressure and match the existing elevated water storage tank on Mt.
Sequoyah, which is on this same system. Using ground storage tanks and/or pumps, both
separately and in combination,has been evaluated, and will not meet the requirements due to the
size of the area being served, the volume of water required, and the age of the existing water
piping system.
In July, 2005, McClelland Consulting Engineers developed a Preliminary Engineering Report of
alternatives; costs are shown below. The Arkansas Department of Health identified that our
current water storage of 250,000 gallons is approximately 25% of what is needed, and that
"additional storage needs to be constructed."The ADH letter of April 7, 2008 states "The Mt.
Sequoyah area does not have adequate storage for the water demand in the area and the city
needs to address the situation."
McClelland's report identified four possible locations and cost estimates, shown below and on
the attached map. These estimates are based on March 2008 prices. They do not include a
$450,000 - $660,000 pumping station that has to be installed no matter which alternative is
selected; nor do they include the cost of purchasing land.
Pipe Length
Site General Location Height Required Cost
1 Hyland Park Phase 2 Platted Tower Lot 22 139' 2,900' $ 1,894,425
2 Skyline Dr. by existing Mt. Sequoyah Tank 101' 12,500' $ 3,845,760
3 South end of Crest Drive off Rockwood Tr. 109' 9,300' $ 3,413,035
4a NW of Hyland Park Phase 2 Tennis Court 143' 3,500' $ 2,126,740
From the water hydraulics/engineering perspective, sites 1 and 4a, on the top of Hyland Park
Hill, provide by far the best physical location as they place the storage closer to both the water
pump stations that fill the tanks and to the areas of greatest use, balancing the system and
providing the most reliable service. They also significantly reduce the amount of piping that
would have to be constructed throughout the entire area. With a tank and pump station on both
of the prominent hilltops in the system, storage is optimized to meet demand. Site 2, with the
new tank being located adjacent to the existing tank on Skyline Drive, is the least desirable
alternative. Close-ups of the approximate locations are shown in the attached aerial photos.
This project also has a significant impact on the City's overall fire protection, or ISO, rating,
which directly impacts homeowners' insurance prices. The City is currently at a 4 rating. By
adding fire stations, upgrading fire equipment, and improving the water system, we believe this
rating can be improved City-wide. Not having this water storage tank project underway would
probably negate the other improvements and keep the City at its current rating or cause the rating
to be degraded, causing insurance rates city-wide to increase.
Attachments: Mt. Sequoyah Pressure Plane Map with Tank Sites
Tank Site Close-up Aerial Photos
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Altemative NO.3 A Altemutive N.Ja _ ..
A
RESOLUTION NO.
A RESOLUTION TO ACCEPT AND APPROVE THE CITY
COUNCIL SEWER COMMITTEE'S DECISION TO BEGIN
CONSTRUCTION PLANS FOR A 500,000 GALLON WATER
STORAGE TOWER ON LOT 22 OF HYLAND PARK PHASE II
WHEREAS, the City Council Sewer Committee considered the scientific, legal,
practical and location issues to fulfill the City's demonstrated need for additional water
storage in the Mt. Sequoyah Pressure Plane during several lengthy meetings in 2008;
and
WHEREAS, the City Council Sewer Committee on August 21, 2008 unanimously
determined that the most cost effective, efficient, and safest solution is to build an
additional 500,000 gallon water tower on or near Hyland Park Phase II; and
WHEREAS, in response to some suggestions or proposals of some members of
the Hyland Park Homeowners Association, the City Council Sewer Committee asked
City staff to examine the possibilities and propose any other sites near Lot 22 of Hyland
Park Phase II which could be substituted for Lot 22 if the Hyland Park Homeowners
Association or other private entities obtained and dedicated such acceptable site to the
City of Fayetteville; and
WHEREAS, over eight months have elapsed since two alternate sites were made
known to the Hyland Park Homeowners Association which responded to Mayor
Jordans "reminder' letter of April 15, 2009, about the "potential exchange
arrangement" with a clear refusal for any cooperation as the "unanimous position of
this Association"; and
WHEREAS, during this Special City Council meeting, the City Council listened
to Fayetteville citizens, engineers, the Fayetteville Fire Chief, the Fayetteville Water and
Wastewater Director and other interested persons discuss the need for additional water
storage, domestic water pressure issues, water necessary for fire fighting capability, fire
insurance rate issues, hydraulic considerations for effectively serving residences on the
two mountains in the Mt. Sequoyah Water Pressure Plane, aesthetic issues, and the
historical record surrounding Hyland Park Phase II, its Final Plat and Lot 22.
NOW,THEREFORE 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
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the Mt. Sequoyah Water Pressure Plane, which serves not only the
numerous homes on the upper level of Mt. Sequoyah, but also many homes and future
home sites on the mountain upon which Hyland Park and Stone Mountain
developments sit, is in urgent need of expanded water storage not only for adequate
pressure for domestic use, but for fire fighting water.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the most cost effective, efficient and safe location for additional water
storage is on or very near the top of the mountain occupied by Hyland Park Phase II.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby
determines that since the Hyland Park Homeowners Association has refused and failed
to propose or convey any other scientifically and financially sound alternative to Lot 22
of Hyland Park Phase II, City staff should proceed with construction plans for a 500,000
gallon water storage tower on Lot 22 which Note 3 of the Final Plat of Hyland Park,
Phase 2 identified as: "3. Lot 22 has been approved by the Planning Commission for
construction of a water tower and is to become the property of the City of Fayetteville."
PASSED and APPROVED this 91h day of June, 2009.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCELL GAL llliYARTMF.NT
TO: Dan Coody, Mayor
City Council
David Jurgens, Water & Wastewater Director
FROM: Kit Williams, City Attorney ( �t
DATE: July 29, 2008
RE: Water tank site at Hyland Park
I. History of the Dedication to the City of the Water Tank Site
The Preliminary Plat for Phase II of the Hyland Park Subdivision was
reviewed on March 28, 1974 before the Plat Review Commission of the
Fayetteville Planning Commission. Jim Lindsey presented the plat which had been
substantially revised from an earlier submission. City employee "Bobbie Jones
said the site for water facilities should be shown some way. I would suggest
giving it a lot number with a note on the plat that that Lot has been approved by the
Planning Commission as a site for a water storage tank or however it is to be
used." ((Page 2 of the Minutes of Plat Review Committee of May 16, 1974.)
On May 16, 1974, the Plat Review Committee again considered Hyland
Park, Phase 2. City Engineer Paul Mattke noted:
"I.ot 22 will be a water storage site and will be deeded to
the City. It will not be a utility easement; it will be
public properly. The note referenced to it should be
changed to say that it is to become the property of the City
of Fayetteville, then sketch in whatever easements the utility
companies need.
"Make the note similar to the one used on Rosewood Estates.
(That Plat hada note which read, `Lot has been approved
by the Planning Commission for construction of a water pump
station."') (Page 6 of the Minutes of Plat Review Committee of
May 16, 1974.)
On May 28, 1974, the Planning Commission reviewed the proposed Final
Plat of Hyland Park, Phase 2, Block 5 with President of Hyland Park, Inc., Jim
Lindsey present and representing the developers. The Planning Commission
unanimously approved the Final Plat by passing Resolution PC 23-74. Section 2
of that Resolution states:
"That the City of Fayetteville, Arkansas accept the final
plat along with the land dedicated for streets and other public
uses in the Hyland Park subdivision described as follows ...."
On June 4, 1974, the Fayetteville Board of Directors approved the Hyland
Park Subdivision, Phase II, Block 5 and passed Ordinance No. 2015 which stated:
"That the City of Fayetteville, Arkansas, hereby accepts and
confirms the final plat of Hyland Park Subdivision, Phase II,
Block 5, hereby accepts and confirms the dedication of the
streets and utility easements shown therein and hereby
declares said street and utility easements to be public streets
and utility easements and the Board of Directors hereby
assumes the care, control and jurisdiction of same."
On July 19, 1974, Nita Lindsey as Secretary for Hyland Park, Inc. signed a
corporate resolution as shown on the Final Plat of Hyland Park, Phase 2, Block 5:
"Resolution Resolved that Nita Lindsey, Secretary of Hyland
Park, Inc. is hereby authorized to execute the certificate of
Ownership and dedication as shown on this Final Plat."
Also on the recorded Final Plat is:
"Certificate of Ownership and Dedications: We hereby
certify that we are the owners of the property shown and
described herein and that we do hereby dedicate all streets,
alleys, easements, parks and other open spaces to public or
private use as noted."
2
Both Jim and Nita Lindsey signed this Certificate of Ownership and
Dedication on July 19, 1974.
"Notes: ...
3. Lot 22 has been approved by the Planning
Commission for construction of a water tower
and is to become the property of the City of
Fayetteville."
The Final Plat also shows the:
"Certificate of Acceptance and Dedication: The dedications as
shown on this subdivision are hereby accepted by the Fayetteville
City Board of Directors on June 4, 1974."
This was signed by Mayor Russell Purdy and attested to by City Clerk
Darlene Westbrook on July 25, 1974. Thereafter, this Final Plat was filed for
record at the Washington County Court House.
I1. Analysis and Arguments of Hyland Park Residents
Hyland Park resident and outstanding attorney Connie Clark wrote a
Memorandum arguing that the City of Fayetteville does not own Lot 22 (the water
tank site) or has abandoned any rights it might have had to lot 22. She further
asserts that "If the City of Fayetteville Condemns Lot 22, It Will Subject Itself To
A Claim For Inverse Condemnation." I will endeavor to respond to her assertions
beginning with the most vital issue of ownership of the water tank site (Lot 22).
A. Does the City own Lot 22?
Ms. Clark notes that A.C.A. §14-301-102 states:
"No street or alley which shall be dedicated to public use
by the proprietor of ground in the city shall be deemed a
public street or alley, or to be under control of the city
council, unless the dedication shall be accepted and
confirmed by an ordinance specially passed for that purpose."
3
Every year or so, our Planning Department compiles a list of dedicated
streets and alleys which we then submit to the City Council for acceptance of the
dedication of such streets by ordinance. I do not believe we have passed any such
ordinance for easements, water or sewer mains, dedicated park land or other
dedicated public space for the last couple of decades. I do not intend to
recommend any such ordinance since I do not believe A.C.A. §14-301-102 applies
to any dedications except for streets and alleys. This statute was apparently
enacted by the Legislature (in 1875) to protect cities ,from having maintenance
responsibilities for streets that could be unilaterally dedicated by a property owner.
Not until the City Council accepted the dedicated street did the City have to
assume the care and maintenance of the street.
The Property Owners Association admits "this statute refers only to streets
and alleys," but argues it should also be a requirement for any property dedicated
to public use. Although I believe the Legislature had much stronger reasons to
apply it to streets and alleys than to other public facilities, my opinion and the
POA's opinion of what the law should be is irrelevant. This statute requiring the
dedication of streets and alleys to be accepted and confirmed by ordinance to be
deemed a public street or alley refers only to streets and alleys.
"(T)he basic rule of statutory construction is to give effect
to the intent of the legislature. We construe a statute just
as it reads, giving the words their ordinary and usually
accepted meaning." Gonzales v. City of DeWitt, 357 Ark.
10, 159 S.W. 3d 298, 301 (2004) (citations omitted)
(emphasis added)
This most basic rule of interpreting a statute shows it has no application to
dedicated public property except for streets and alleys. Even if it did apply,
Ordinance No. 2015 of June 4, 1974 and the Certificate of Acceptance of
Dedication on the Final Plat signed by the Fayetteville Mayor and Clerk should
dispel any issue concerning A.C.A. §14-301-102.
The POA then argues that the Certificate of Ownership and Dedication did
not specifically name the water tank site (Lot 22): "We do hereby dedicate all
streets, alleys, easements, parks and other open spaces to public or private use as
noted." While the POA emphasizes the "or private" use, I think the "as noted" is
more important. The "Notes" specify that "Lot 22 has been approved by the
Planning Commission for construction of a water tower and is to become the
property of the City of Fayetteville." Lot 22 is clearly "open space" and does not
4
have the designation "common property" as Lot 23 across the street carries. That
"common property" is specifically "intended for use by the Homeowners in
Hyland Park for recreation . . ." and is thus for private use. Lot 22 " the property
of the City of Fayetteville" "for construction of a water tower" is expressly public,
not private property.
The POA challenges the above interpretation of the language of the Final
Plat by citing City of Sherwood v. Cook, 315 Ark. 115, 865 S.W. 2d 293 (1993).
"The two essential elements of a dedication are the owner's
appropriation of the property to the intended use and its
acceptance by the public." Id. at 296.
The POA contends "neither of these two elements has been met in our case."
I believe that Note 3 clearly appropriates Lot 22 for a "water tower" and
"property of the City of Fayetteville." The Certificate of Acceptance of Dedication
by Mayor Purdy along with Ordinance No. 2015 constitutes its acceptance.
The Arkansas Supreme Court in the City of Sherwood case held:
"The dedication is sufficient if it appears, from a
consideration of the plat as a whole, with reference to the
surrounding circumstances, that the spaces were intended
to be devoted to a public use." Id. at 297.
Note 3 of the Final Plat makes it clear that Lot 22 is intended to become city
property for construction of a water tower.
The POA also argues that Note 3 is not a dedication to the public, but
instead the developers were "reserving unto themselves the right to sell Lot 22 to
the City of Fayetteville for construction of a water tower." This is clearly not what
Note 3 nor the Certificate of Ownership and Dedication says.
Even if the POA could argue that the owner's Certificate of Dedication and
Note 3 were ambiguous, the rules of construction require any doubt to be construed
in the City's favor.
"(A)ny doubt or ambiguity in the meaning of a dedicatory
plat is construed most strongly against the dedicator and
to the reasonable advantage of the grantees of the dedicated
5
use, i.e., so as to benefit the public rather than the donor.
City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W. 3d 627,
631 (2005) (emphasis added)
Therefore, even if there can be some argument about exactly what the
dedicator on the Final Plat meant in his Certificate of Ownership and Dedication
and Note 3, the argument must be resolved "so as to benefit the public rather
than the donor." Id.
B. Has the City abandoned its rights to Lot 22?
The POA contends that any interest the City might have had in Lot 22 has
been abandoned and lost through non-use and lack of fencing and maintenance.
There appears little statutory or case law support for this assertion.
"(W)hen an owner of land files a plat and thereafter lots are sold
with reference to it, such action constitutes an irrevocable
dedication of any street or passageway for public use shown or
indicated on the plat. Furthermore, whenever a dedication
becomes irrevocable, a public authority can accept the dedication
for public use whenever the necessity occurs. City of Sherwood
v. Cook, 315 Ark. 115, 865 S.W. 2d 293, 297 (1993) (emphasis
added)
Thus, a city need not begin any active public use of a dedication at any
particular time, but is free to do so "whenever the necessity occurs."
In the City of Cabot v. Brians case, the Brians tried to quiet title (acquire
ownership rights) to an access easement designated as "reserved" for a future right
of way on a final plat. They asserted they had used the parcel as their own and
were entitled to it through adverse possession. A.C.A. §22-1-204 prohibits the
adverse possession of realty against a city.
"(A)n owner of land who sells lots by reference to a plat,
makes an irrevocable dedication of the streets, alleys, squares,
parks, and `other public places marked as such on the plat'
to the public use and that the dedication "becomes irrevocable
the moment that these acts occur ... where lots have been sold
6
by reference to a plat, `no formal acceptance by the city' is
necessary because, by that act, the dedication becomes
irrevocable." City of Cabot v. Brians, supra at 632 (citations
omitted)(emphasis added)
The "irrevocable dedication" of public places shown on the plat occurs when
any lot is sold and "once the dedication has occurred, the City may accept it at any
time or when the necessity should arise." Id. The Fayetteville Water and Sewer
Department and the Fire Department say that time is now and the necessity to
construct the water tower is now.
"(T)he City need not have formally accepted or confirmed
the dedication of the parcel under the circumstances of
this case or made immediate use of the parcel once
acquired. The irrevocable dedication occurred when lots
were sold by reference to the plat, and the City, at that point,
could accept the dedication at any time. Such dedication and
right to accept it invested the City with, at the very least, a
`right to possession' of the parcel, which under Ark. Code
Ann. §22-1-204, would bar appellees' adverse-possession
claim." Id.
C. Will the City Be Liable for Inverse Condemnation For Constructing
a Water Tower on Lot 22?
Such a contention was presented by the Mintons in Minton v. Craighead,
304 Ark. 141, 800 S.W. 2d 707 (1990). In that case the owners claimed "their
residential properties had been devalued because Craighead County had built a jail
in their neighborhood." Id. at 708. The Arkansas Supreme Court affirmed the
dismissal of their claims as follows:
"It must often happen that the value of a city lot is
diminished as a result of the condemnation of adjoining
property for some distasteful purpose, such as the
construction of a city jail. But as the court convincingly
demonstrated in City of Geary v. Moore, 118 Oki. 616, 75
P.2d 891, this is an injury `for which the law does not, and
never has, afforded any relief."' Id. at 708, 709.
7
III. Conclusion
The POA's attorney, Connie Clark, has presented good arguments in her
Memorandum pointing out all of the possible weaknesses in the City's position
that it received Lot 22 as a dedication on the 1974 Final Plat of Hyland Park, Phase
II, Block 5. I certainly admit the situation would be more clear if the Certificate of
Ownership and Dedication had expressly mentioned Lot 22 or if the Plat had
writing on Lot 22 such as: "City property, Water Tower site." The dedicator
instead referred in his dedication to "other open spaces to public or private use as
noted." He then noted in Note 3 that "Lot 22 has been approved by the Planning
Commission for construction of a water tower and is to become property of the
City of Fayetteville."
Note 3 itself could have been more clearly worded, but "any doubt or
ambiguity in the meaning of dedicatory plat is construed most strongly against the
dedicator and to the reasonable advantage of the grantees of the dedicated use, i.e.
so as to benefit the public rather than the donor." City of Cabot v. Brians, 93 Ark.
App. 77, 216 S.W. 3d 627, 631 (2005).
I believe the City has a strong case supporting its position that Lot 22
has been dedicated to the City for use as a water tower site. Reasonable minds
can differ in their interpretation of the facts and law so that litigation is always
possible and in this case, very likely. Although I believe the City would probably
prevail, it is not inconceivable that the POA would be successful.
The impact of placing such a tall water tower within this long established
and beautiful neighborhood should not be ignored. All of us realize its impact on
the closest neighbors would be very significant. Therefore, I anticipate
protracted litigation from the POA (which includes several extremely competent
attorneys) if no solution other than to build a water tower on Lot 22 can be found.
The POA might be able to prevent construction during this litigation by Court
injunctive relief. Even without such an injunction, the City Council would have to
decide whether to proceed with construction and risk being forced to condemn the
property (if the POA was successful) or to delay until the Court could rule.
8
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
6/9/2009
City Council Meeting Date
Agenda Items Only
David Jurgens Water&Wastewater Utilities
Submitted By Division Department
Action Required:
Approval of a resolution to authorize the Fayetteville City Attorney to file a declaratory judgment action or other
appropriate request for judicial relief concerning the ownership of Lot 22 of Hyland Park Phase II and the City's right to
construction a water tower thereon.
Is $ 2,189,147 MtSequoyah Press Planelmprvmt
Cost of this request Category/Project Budget Program Category/Project Name
5400.5700.5314.02 $ 139,888 Water and Wastewater
Account Number Funds Used to Date Program/Project Category Name
04036-1 $ 2,049,259 Water/Sewer
Project Number Remaining Balance Fund Name
Budgeted Item XX Budget Adjustment Attached O
Previous Ordinance or Resolution# 151-04
Depar, ent Irector Date
- Original Contract Date: 10/5/2004
Original Contract Number: 900
pp 1� Date
1Ow% (k . Id.,Jr Lro9
Finance and Internal Services Director Date Received in City
Clerk's Office EN fRED
09
C f Staff Date
_ Received in
Mayor's Office l�
� ay
Mayor Date
Comments:
Revised January 15,2009
aye ev le
Special City Council Meeting of June 9, 2009
CITY COUNCIL AGENDA MEMO
To: Mayor Lioneld Jordan
Fayetteville City Council
Thru: Don Marr
f
From: David Jurgens, Utilities Directo \U/
Fayetteville Sewer Committee
Date: June 2, 2009
Subject: Approval of a resolution to authorize the Fayetteville City Attorney to file a declaratory
judgment action or other appropriate request for judicial relief concerning the ownership of Lot 22 of
Hyland Park Phase Il and the City's right to construction a water tower thereon
RECOMMENDATION
Staff recommends approval of a resolution to authorize the Fayetteville City Attorney to file a declaratory
judgment action or other appropriate request for judicial relief concerning the ownership of Lot 22 of Hyland
Park Phase II and the City's right to construction a water tower thereon.
BACKGROUND
Lot 22 of the Hyland Park Phase II subdivision was designated as the site for the water storage tank when the
subdivision plat was filed in July 1974, with the following statement on the plat: "Lot 22 has been approved by
the Planning Commission for construction of a water tower and is to become the property of the City of
Fayetteville."
DISCUSSION
At a Sewer Committee meeting on August 15, 2008,the Committee reviewed all viable tank alternatives and
directed staff to proceed with negotiations with the Hyland Park Homeowner's Association regarding a potential
land swap for another suitable property near the site. After information was sent to the HOA in September,
2008, no response was received from the HOA. In response to a letter sent by the City on 15 April, 2009,the
HOA stated their refusal to negotiate or support the City's actions in any way. Negotiations have recently
resumed,but a firm decision is required in order to proceed with tank construction.
Additional detail is included in the enclosed fact sheet.
A full presentation of the issues will be made at the City Council meeting.
BUDGETIMPACT
There is currently$2,049,259 in the impact fee fund and$128,549 in the Water/Sewer fund budgeted for this
project.
Mt Seq Tank CCMemo 9J=09 I oft
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE THE FAYETTEVILLE
CITY ATTORNEY TO FILE A DECLARATORY JUDGMENT
ACTION OR OTHER APPROPRIATE REQUEST FOR
JUDICIAL RELIEF CONCERNING THE OWNERSHIP OF
LOT 22 OF HYLAND PARK PHASE II AND THE CITY'S
RIGHT TO CONSTRUCT A WATER TOWER THEREON
WHEREAS, the City Council has determined that the City needs to construct a 500,000
gallon water storage tank on Lot 22 of Hyland Park Phase I1; and
WHEREAS, the Hyland Park Homeowners Association has maintained "that the city
does NOT own lot 22," (letter of May 1, 2009; attached as Exhibit A); and
WHEREAS, the Hyland Park Homeowners Association has asserted "that the City will
have to prove its ownership of Lot 22 in a Court of competent jurisdiction and (4) such may well
result in a substantial pecuniary loss to the city." (letter of May 1, 2009)
NOW,THEREFORE 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 authorizes
the Fayetteville City Attorney to file a Declaratory Judgment action or other appropriate request
for judicial relief concerning the ownership of Lot 22 of Hyland Park Phase II and the City's
right to construct a water tower thereon.
PASSED and APPROVED this 9"' day of June, 2009.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
(5/4/2009) KitWilliams - Fwd:
. .....- --___-- ----
Page 1
From: Lioneld Jordan
To: Williams, Kit
Date: 5/4/2009 12:23 PM
Subject: Fwd:
Attachments: Hyland Park HOA,wpd; Hyland Park HOA.doc; Hyland Park HOA.pdf
FYI
Lana
>>> "Chip Wright" <chio wright(o)cox.ne > 5/1/2009 5:00 PM >>>
To the Mayor and All Council Members:
Attached in three separate formats(Word Perfect—wpd;Word—doc and Acrobat—pdf)is a letter setting forth the
position of the Hyland Park Property Owners Association, Phase II,to the letter of April 15, 2009 from Mayor
Jordan. In addition,a hard copy of the letter is being sent to the Mayor and those Council members choosing to list
their addresses on the City of Fayetteville web site.
By copy of this email to all homeowners in the Association,I am likewise furnishing them with a copy of the
already approved letter,also in the three formats noted above.
The President of our Association is Herschel Sandefur;the Secretary is Connie Clark;I am the Treasurer.
Any or each of you should feel free to contact any member of this Association to address any questions you might
have concerning our position as the letter does,in fact,set forth the unanimous position of this Association.
Thanks,
Tilden P."Chip"Wright III
Treasurer
Hyland Park Homeowners Association, Phase II
2405 Boston Mountain View
Fayetteville,AR 72701
Home: 479-521-3263
Cell: 479-841-7456
email: chip wright0cox.ne
E-mail message checked by Internet Security(6.0.0.386)
Database version:5.12300
http:tlwww.petools.com/internet-security ( httl2://www.pctools.comfen/internet-security
HYLAND PARK HOMEOWNERS ASSOCIATION, PHASE II
Tilden P. Wright III, Treasurer
2405 Boston Mountain View
Fayetteville, AR 72701
May 1, 2009
Re: Reply to Water Tower Ultimatum
Mayor Lioneld Jordan
City of Fayetteville
113 West Mountain Street
Fayetteville, AR 72701
Mayor Jordan:
Homeowners in Hyland Park Phase II, an addition to the City of Fayetteville, received copies of
your letter of April 15, 2009. As you addressed your letter to me, instead of to our President, it
has fallen upon me to respond.
At a regularly scheduled meeting of the Homeowners Association, held on the 20th of April,
2009, your letter was an agenda item. At the outset, let me congratulate you on alienating each
and every homeowner in this association. Your letter and delivery of an ultimatum was
offensive.
The members of our association have attended numerous meetings with the city, including the
engineering office, as well as public forums. At every turn we have tried to inform city
representatives that the city does NOT own lot 22. Although at one time offered to the City, a
legal dedication, as required by Arkansas law, did not occur solely due to the failure of the
governing body of the City to accept such a generous offer long before development and
construction of this residential neighborhood. The City has never maintained Lot 22; has never
participated in any of the costs incurred by this Association for its maintenance; has not paid any
of the Association annual dues nor exercised any of the other normal indicia of a claim of
ownership. The payment of property taxes, upon which you so heavily rely, only began when
your ownership was first placed in question. Prior to learning of the Associations denial of your
ownership, you expressed absolutely no interest in Lot 22. Lot 22 and the proposed water tower
site sits in the front yard of one of our neighbors and is within 100 feet of their residence. Lot 22
together with the common area immediately across the street, is the point of entry to this
established neighborhood and will be forever blemished by this construction. At a time of
significant home devaluation nationwide, your proposed action further makes our property less
valuable and certainly less marketable.
Although a task normally relegated to the city, our HOA has suggested several options. We have
asked that the city consider the abandoned fire station property on Crossover or an
"undeveloped" elevated site to use for water storage. We have asked them to consider
underground storage on our common property with a "smart"pump or at least some combination
that results in a smaller above ground storage unit. We are not alone in trying to help the city. A
site has even been freely offered by the Stone Mountain Developer. These options appear
reasonable, and should certainly merit discussion. But, from the very outset of this latest effort
to take property from this Association, it became apparent the City did not want to consider
alternatives. All of our arguments and requests have fallen on deaf ears. The decision had
already been made. In spite of the alternatives offered, Page 2
May 1, 2009
the city remained on target to construct a 14 - story, one-half million gallon water tank at the
entry to our neighborhood .
In an amazing show of arrogance and audacity, the city attorney even requested that this
Association prove the city does not own lot 22; we were asked by then Mayor Coody to try to
negotiate with another neighbor, not a part of our neighborhood association, to obtain a site for
the city; we have been asked to find and purchase a suitable site and "donate" it to the city; and
we have been asked to swap our common area land on which neighborhood amenities exist for
an unclouded title to a lot we already own, lot 22.
We are unaware of the city ever placing such a huge piece of infrastructure in an individuals'
yard in an established neighborhood. Orders from the department of health and the shrill cries
about fire safety reveal that the city has likely failed to meet its water infrastructure needs for
many years. It is wrong to punish homeowners by ruining a well established neighborhood to
quickly cover for the administrations lack of planning, poor system maintenance, and failure to
build water infrastructure in the new neighborhoods which are the root cause behind the need for
the tower.
Here is our answer to your ultimatum:
a. We will not "swap" a piece of the common area property for an unclouded title to lot 22;
b. We will not acquiesce in the claim of ownership, by the city, of Lot 22; and
c. We will not acquiesce in the construction of a water tower anywhere within Hyland Park Phase II.
It is my belief that some, if not all, of the members of this Association will take whatever actions
they deem necessary to protect their investments in their homes. I further believe that some
outside of this Association will also suffer consequences from this action by the city and I would
anticipate they would likewise take action to protect their homes. There is no doubt that the
construction of this contemplated water tower at the chosen site will have a significant, negative
impact on the values of every home located in its vicinity. Whether the city, its attorney, its
governing body or others believe there is real monetary exposure under these circumstances is
not the point. The point is (1) the exposure does exist; (2) it will be decided, not by the city and
not by the Association, but rather by an independent legal body; (3) it is very likely that the city
will have to prove its ownership of lot 22 in a Court of competent jurisdiction and (4) such may
well result in a substantial pecuniary Loss to the city.
We sincerely hope you reconsider this ill-fated decision.
Tilden P "Chip" Wright III
Treasurer
Hyland Park Phase II
cc: Fayetteville City Council Members, by regular mail and email
Homeowners, Hyland Park Homeowners Association, Phase II
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Lioneld Jordan, Mayor
City Council
CC: David Jurgens, Utilities Department Director
FROM: Kit Williams, City Attorney`) .0,L
DATE: May 5, 2009
RE: Hyland Park Homeowners' Association letter of May 1, 2009
The City of Fayetteville has long tried to work with the Hyland Park
Homeowners' Association about the City's need to install a water tank at a usable
level on that mountain. In late July of 2008, I issued a legal memo (copy attached)
detailing how and why Lot 22 of Hyland Park Phase II came to be set off and
dedicated to the City of Fayetteville "for construction of a water tower and is to
become the property of the City of Fayetteville." (plat of Hyland Park, Phase II)
The POA pointed out potential weaknesses in the language of the plat and
argued that the City does not own Lot 22. I quoted in my Conclusion from a 2005
Court of Appeals' case that: "any doubt or ambiguity in the meaning of the
dedicatory plat is construed most strongly against the dedicator (developer) and to
the reasonable advantage of the grantees of the dedication use, i.e. so as to benefit
the public rather than the donor." City of Cabot v. Brians, 93 Ark. App. 77, 216
S.W. 2d 627, 631, (2005).
I stated then and continue to believe that "the City has a strong case
supporting its position that Lot 22 has been dedicated to the City for use as a water
tower site." I also noted that "Reasonable minds can differ in their interpretation
of facts and law so the litigation is always possible and in this case, very likely."
Following another City Council Sewer Committee meeting on August 21,
2008, the Committee unanimously determined that an elevated water tank on
Hyland Park's mountain was necessary and advisable. The aldermen hoped that
City staff could work with the Hyland Park Homeowners' Association to see if
another feasible site for the water tank could be found at a proper elevation on the
mountain. City staff did attempt such cooperation. Attached is a copy of my letter
to Bill Clark of Hyland Park discussing two other possible locations for the water
tower.
Unfortunately, no progress was made. Finally, (seven months after my letter
identifying three possible options) on April 15, 2009, Mayor Jordan sent a letter
(attached) to Chip Wright, Jim Waselues and Bill Clark who had all been very
active in this matter. Although Mayor Jordan's letter was termed "an ultimatum
(and) offensive," by Mr. Wright, it was polite, if necessarily clear, that the City
could not wait any longer to accomplish the needed upgrade to our water capacity
not only for homeowners' normal uses, but for fire protection. I urge you to read
Mayor Jordan's letter yourself.
All of the "options" suggested by Mr. Wright in his letter have been
examined by City engineers and independent engineers and rejected as not feasible
or much more expensive, unfair to other neighborhoods and not the most effective
solution to the water capacity needs (especially for fire protection). Most, if not all
of these other options were rejected unanimously by the Aldermen Sewer
Committee in August of 2008.
WHAT TO DO NOW?
Unless the City Council wishes to reverse the unanimous decision of the
Aldermen Sewer Committee, City Staff will need to begin the design of the water
tank on the Hyland Park Mountain. Currently the only land owned or dedicated to
the City of Fayetteville that will be feasible for such water tower appears to be
Lot 22 of Hyland Park, Phase II.
Such an elevated water tank will be expensive to engineer and will need to
be engineered for a specific site and elevation. I noted in my conclusion to my
July 29, 2008 memo: "Although I believe the City would probably prevail, it is not
inconceivable that the POA would be successful." Therefore, in order to give our
citizens even more assurance that the tax revenues will not be endangered, we may
need to proceed with a Declaratory Judgment suit so a Court can analyze the facts,
plat, and law to determine whether our dedication rights prevail over any claims by
the POA.
2
I filed a Declaratory Judgment Action in the TIF bonds case and was glad I
did when the Supreme Court ruled the originally approved distribution of property
tax increments had to be changed in order to be constitutional. That Declaratory
Judgment suit prevented a later illegal exaction suit which would have been
successful and would probably have cost our city's and our schools' taxpayers
potentially hundreds of thousands of dollars in attorney's fees. Not as much
money is probably at stake here, but I still feel it would be worth the expense and
effort of litigation to get a judicial decision about Lot 22.
I believe that City staff will present a Resolution for your consideration in
the near future to allow full discussion before the entire City Council so that you
can determine whether or not you wish to authorize the construction of a water
tank on Lot 22. A second section of this Resolution will probably allow you to
determine whether or not you wish me to file a Declaratory Judgment action prior
to construction to resolve the issue of the dedication of Lot 22 to the City for use as
a water tower site.
3
Teevle
ARKANSAS
April 15, 2009
Mr. Chip Wright
Hyland Park II Homeowners' Association
2405 East Boston Mountain View
Fayetteville, AR 72701
Dear Mr. Wright,
At the Water and Sewer Committee meeting August 21, 2008, representatives of the Hyland Park II
Homeowners' Association stated they would attempt to identify land that met the stated placement
requirements of the water tank site in the vicinity of alternative 4, northwest of the intersection of
Canterbury Road and Boston Mountain View. The stated intent was for the land to be swapped, at no
expense to the City, for lot 22, designated on the subdivision plat as the water tank site.
Fayetteville must proceed with the construction of this much needed water storage tank, but has not yet
received information that a piece of land has been designated and a potential exchange arrangement
has been initiated. Adequate time has passed for any arrangements to be made. If the City does not
receive information whereby we can review the suitability of an adequate area at the alterative 4 site
west of Canterbury Road prior to May 15, 2009, then we shall begin final design, followed by tank
construction, for lot 22.
Thank you for your time. Please do not hesitate to contact me at 479-575-8330 if you have any
questions.
Sincerely,
L 2ECity, of Fayetteville
1111tis�
Mayor Lroneld Jordan
cc: Jim Wasclues, 1018 North Canterbury Road
Bill Clark, 823 North Canterbury Road
City of Fayetteville 113 West Mountain Fayetteville,Arkansas 72701 479-575-8330,fax 479-575-8257
Ltr to Hyl Pk POA 15AprO9
KIT WILLIAMS
FAYETTEVILLE CITY ATTORNEY
DAVID J. WHITAKER
Assistant City Attorney
Judy Housley
Office Manager
THE CITY OF FAYETTEVILLE.ARKANSAS
Phone (479) 575-8313 113 W. Mountain,Suite 302
FAX (479)575-8315 Fayetteville,AR 7270.1-6083
September 15, 2008
Honorable Bill Clark
111 Holcomb
Springdale, AR 72764
RE: Water Tower site
Dear Bill:
The Water and Wastewater Department has studied three potential
sites on your mountain and the minimum area needed for each site.
Enclosed are area maps of each site:
(1) Lot 22 (basically the whole lot with any left over being buffer);
(2) Lot 23 with a portion of the strip of land which is probably still
owned by Lindsey. This would not use all of Lot 23 as the pool and
clubhouse would be unaffected;
(3) A portion of lot 7 of John Smyth Addition (Gary Combs' lot with
a portion of the Lindsey undeveloped and undedicated jeep trail. This
must be larger because we anticipate the need to build a retaining wall and
do more grading on this steeper slope.
I also enclosed two larger versions of 2 and 3 for your use in a
neighborhood meeting.
The City's engineers looked for cases where water towers had
collapsed in the United States and could find no examples in recent years.
(They found no examples at all, but only went back a few years.) I believe
the Mayor has committed to including your neighborhood input about the
design of the water tower. Please let me know if you need further
information.
With kindest regards,
KIT WILLIAMS -'
Fayetteville City Attorney
KW/jh
Enclosures
Cc: Mayor Coody