HomeMy WebLinkAboutOrdinance 5465 ORDINANCE NO. 5465
AN ORDINANCE TO AMEND §34.27 SALE OF MUNICIPALLY OWNED
REAL PROPERTY OF THE CODE OF FAYETTEVILLE BY ENACTING A
NEW (H)(5) TO EXEMPT THE SALE OF WATER/SEWER UTILITY
EASEMENTS AND TO ENACT AN EMERGENCY CLAUSE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends
§34.27 Sale of Municipally Owned Real Property of the Code of Fayetteville by enacting (H)
(5) as shown below:
"§ Sale of Municipally Owned Real Property
"(1-1)(5) The City Council may sell a water and sewer utility easement
to an adjoining city or water and sewer commission if approved by City
Council Resolution. Such easement sale is exempt from all
requirements of this section."
Section 2: Emergency Clause. That the City Council of the City of Fayetteville,
Arkansas hereby finds that this change in the manner in which the City Council can sell city
property is essential in expediting the conveyance of a water and sewer easement to the
Springdale Water and Sewer Commission in a timely manner and declares that this ordinance is
necessary to preserve the public health and therefore an emergency is hereby declared to exist so
that this ordinance shall be in full force and effect from the date of its passage and approval.
PASSED and APPROVED this 6ffi day of December, 2011.
APPROVED: ATTEST: °°°sea9errcvavvv,
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®FAYETTEI/ILLE®By:
O LD JO A , Mayor LISA BRANSON,Deputy City Clerk�����'e s''��11i�Sp, .A,,e
AGENDA REQUEST
FOR: COUNCIL MEETING OF DECEMBER 6, 2011
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Repeal §34.27 Of The Code Of Fayetteville And To Enact A
Replacement §34.27 Sale Of Municipally Owned Real Property Of The Code Of
Fayetteville And To Enact An Emergency Clause
APPROVED FOR AGENDA:
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Utilit e. Dire for Date
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1 Departmental Correspondence
LEGAL
a e eV e
ARKANSAS
• •
DEPARTMENT
Kit Williams
City Attorney
Jason B.Kelley
Assistant City Attorney
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
David Jurgens, Utilities Director
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney L
DATE: November 4, 2011
RE: Amending §34.27 Sale of Municipally Owned Real Property
Earlier this week Utilities Director David Jurgens came to the City
Attorney's Office because he needed to sell a water/sewer easement to the
Springdale Water and Sewer Commission to replace the existing water/sewer
easement the Springdale Water and Sewer Commission was losing because of the
widening of Highway 265. Because this would be a sale of a real property interest
(the easement), we were concerned that §34.27 Sale of Municipally Owned Real
Property must be applied.
Even though later amendments to §34.27 gave partial exemptions for sales
to public entities, the City Council would probably need to obtain an "independent
appraisal" since the Springdale Water and Sewer Commission's appraisal was not
"obtained by the city" nor probably "independent" as expressly required by the
detailed restrictions of §34.27. The costs of the appraisal and display ad in the
newspaper would constitute a significant percentage of this proposed $3,000.00
sale. The 30 day wait after publication of the display ad, certified mail and posting
of signs before the City Council could consider the sale will unreasonable delay
(two months from the beginning) the Springdale Water and Sewer Commission's
work to relocate their mains.
The situation has again brought to the forefront the unnecessary expenses
and delays caused by §34.27 when the City Council should be able to use its
unhindered authority, sufficient knowledge, and good judgment to decide whether
or not to sell city property. This code section was first enacted on January 2, 2002
in an attempt to ensure Fayetteville citizens received the highest amount of money
for any city land that might be sold because it was no longer needed for a corporate
purpose. Unfortunately, the multiple City Council meetings and Resolutions,
notification requirements, multiple publications, appraisals, sealed bidding process,
etc. of this code section made selling any city property pursuant to this section
almost impossible.
Its expensive process requiring two appraisals and multiple newspaper
advertisements resulted in less money received for our citizens the only time in a
decade that it was actually used to sell property to a private entity. That purchaser
was the only bidder and bid only the minimum price set earlier in a public meeting.
Our taxpayers had to pay for two independent appraisals, at least four
"conspicuous display advertisements" in the paper and certified mail to all adjacent
property owners which meant our taxpayers lost money because of the
cumbersome and expensive process required by §34.27.
The City Council itself soon saw the real problems this ordinance had
caused and began creating exemptions and more exemptions and more exemptions
through the years when confronted with the proper need to sell city property to
public utilities, nonprofit organizations, government agencies and to private
entities for industrial development and for redevelopment. Even with all those
exemptions the current §34.27 remains so cumbersome, time consuming and
expensive that it works like shackles on the City Council when the City Council
members need and should be able to make timely decisions about city property no
longer needed for city purposes.
I trust the common sense and careful consideration of the City Council when
it comes to decide whether or not to sell city property that is not being used or
otherwise not needed for corporate purposes. The City Council can look at the
price the City initially paid for some or all of the property it is considering selling.
It can look at any existing appraisal on the property or get a new appraisal if
needed. The City can properly rezone the property before any sale to ensure the
new owner's use will be compatible with its neighbors.
2
CONCLUSION
The City Council should trust itself to make a wise and informed decision
about whether or not to sell city property and to whom and for how much. It does
not need the existing code section's expensive, cumbersome and lengthy
restrictions on the City Council's own power and discretion to do what is best for
our citizens. Thus, I recommend you amend the Sale of Municipally Owned Real
Property as shown on the attached proposed ordinance to comply with state law
and in recognition of the City Council's proven ability to be good stewards of the
City's finances and property.
An Emergency Clause is necessary so that the new ordinance can take effect
immediately and empower the City Council to sell the requested easement to the
Springdale Water and Sewer Commission so as not to delay its construction of
mains. Attached is David Jurgens' memo about this easement.
Even though this is not proposed to be brought to you before the City
Council meeting of December 6, 20115 I wanted you to know a month early of my
proposed amendment so you would have plenty of time to consider this change.
Please let me know of any thoughts or concerns about this proposed change.
3
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CITY COUNCIL AGENDA MEMO
PVle�tleMEETING DATE OF DECEMBER 6,2011
THE CITY OF FAYETTEVILLE,ARKANSAS
ARKANSAS
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To: Fayetteville City Council
Thru: Mayor Lioneld Jordan
Don Marr, Chief of Staff
From: David Jurgens,Utilities Director
Water/Sewer Committee
Date: ,. November 3,2011
:�
Subject: Crossover Road-Northern Section- Springdale Water Utilities Easement Acquisition
RECOMMENDATION
City Administration recommends approving the sale of one permanent and one temporary construction
easements to the Springdale Water and Sewer Commission for the north section of the Highway 265 AHTD
widening project between Joyce Boulevard and the northern City limits.
BACKGROUND
AHTD is widening Crossover Road(Highway 265)between Joyce Boulevard and the northern City limits.
They do not allow utilities to remain inside their easement. The area north of Clear Creek receives water
service from the Springdale. Just like the City of Fayetteville, Springdale is being required to relocate their
utility lines, so they need to acquire land owned by the City for their new easements. This land was
purchased by the Water Department in the 1940's as part of Lake Fayetteville.
DISCUSSION
Springdale is relocating their water lines on the east side of Highway 265. To move their lines,they require
one permanent easement of 0.383 acres on one tract of land valued at$2,400, and one temporary
construction easements valued at$600. The values were established by an appraisal performed by Reed&
Associates, and are consistent with Springdale's offers for the remainder of this project. The City's land
agents have reviewed this easement; it meets all criteria we would apply when acquiring our own easements.
Sale of City property must comply with §34.27 of Fayetteville's Code of Ordinances, which the City
Attorney is recommending be modified due to its complexity and expense. In this case,the cost of
specifically complying with the ordinance as currently written would cost almost as much as the revenues
received from the sale. This proposed sale complies with the City Attorney's recommended modification of
the ordinance,but does not comply with the ordinance as it exists without the proposed modifications.
BUDGETIMPACT
As the land was purchased by the Water/Sewer fund,revenues received from this sale must be entered into
the Water/Sewer fund. This will reflect a$3000 in Water/Sewer revenue.
Springdale Hwy 265 North Easement CCMemo Novl 1
IV UO CAd;
a ORDINANCE NO.
AN ORDINANCE TO REPEAL §34.27 OF THE CODE OF FAYETTEVILLE
AND TO ENACT A REPLACEMENT §34.27 SALE OF MUNICIPALLY
OWNED REAL PROPERTY OF THE CODE OF FAYETTEVILLE AND TO
ENACT AN EMERGENCY CLAUSE
WHEREAS, §34.27 of the Code of Fayetteville was enacted on January 2, 2002 in an
attempt to ensure that the citizens of Fayetteville would receive the highest possible amount of
money for a parcel of City property if the City Council determined to sell such City property
because it no longer served a municipal purpose; and
WHEREAS, the number of notices, publications, appraisals, City Council hearings and
public bidding process made this selling process so cumbersome, long and expensive that the
ordinance was amended by the City Council in 2002, 2004 and 2005 to provide numerous
exemptions from §34.27's requirements for various types of land sales; and
WHEREAS, in the decade of its existence, the full process specified in §34.27 for the
sale of City property to a private entity has occurred only once, took months to accomplish and
resulted in only a single bidder who purchased the property at the minimum set price for the City
land; and
WHEREAS, state law specifically authorizes that only the City Council can sell City
land by passing a Resolution or can exchange land with another city by passing an Ordinance,
thus ensuring that the City Council will always have the final say in any proposed City land sale
or exchange.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals
§34.27 of the Code of Fayetteville and enacts a replacement §34.27 Sale of Municipally Owned
Real Property of the Code of Fayetteville as shown below:
2 3 POWERS OF'MUNICIPALITIES GENERALLY 14-54-302
quarry, because the ordinance was en- nuisance per se.Rogers Group,Inc.v.City
acted pursuant to subdivision (1) of this of Fayetteville, 629 F.3d 784 (8th Cir.
section. Contrary to the city's argument, 2010).
since the quarry was located outside the
corporate city limits but within one mile of Publie Health.
those limits, the city could not regulate A town has the authority to legislate for
the quarry without a judicial determina- the protection of public health. Phillips v.
as a subset tion that its activities constituted a nui- Town of Oak Grove, 333 Ark. 183, 968
)le. There- sane,and no such judicial determination S.W.2d 600(1998).
a properly had been made; the quarry was not a
legal exac-
of author- 14-54-104. Additional powers of cities of the first class.
re was an
:ing to the CASE NOTES
a a settle-
ated with Streets,Alleys,Etc. § 14-54-303 was controlling for the town
ram were Ordinance vacating a street exceeded to vacate a street, because an incorpo-
omwall v. the scope of subdivision (2) when it at- rated town's ability to vacate a street
3.W.3d 93 tempted to extinguish an abutting land- under § 14-54-303 was independent, and
owner's property right of ingress and §§ 14-301-301 to 14-301-303 had no appli-
egress over the street without compensa- cation when an incorporated town used its
Really al- tion.Wright v City of Monticello,345 Ark. authority under § 14-54-303. Riley v.
act and 420, 47 S.W.3d 851 (2001). Town of Higginson, 2009 Ark. App. 294,
r
r c t a a Trial court did not err in deciding that 307 S.W.3d 34 (2009).
appellee
ies were SUBCHAPTER 3 --REAL AND PERsoNAL PROPERTY
by joint
funding SECTION. SECTION.
ll sewer 14-54-302. Purchase, lease, and sale au- 14-54-304. Property exchange by munici-
t facility thorized. palities.
limits of
r,City of 14-54-302. Purchase, lease, and sale authorized.
V.3d 562
(a)(1) Municipal corporations are empowered and authorized to sell,
convey, lease, rent, or let any real estate or personal property owned or
controlled by the municipal corporations. This power and authorization
shall extend and apply to all such real estate and personal property,
boards, including that which is held by the municipal corporation for public or
governmental uses and purposes.
16-105- (2) Municipal corporations are empowered and authorized to buy
any real estate or personal property.
(b)(1) Municipal corporations are also empowered and authorized to
donate property, or any part thereof, to the federal government or any
agency thereof,for any one(1)or more of the following purposes,that is,
having the real estate, personal property, or both, activated, reacti-
vated, improved, or enlarged by the donee.
city in (2)(A) The municipal corporation may donate the fee simple title and
iinary
k.Or- absolute interest, without any reservations or restrictions, in and to
ment all real estate,personal property, or both, or any part of the property,
r that_ to the federal government,if this property was previously conveyed or
suc
et otherwise transferred by the federal government to the municipal
e its corporation without cost to the municipal corporation.
1'f
vs
y'
14-54-303 LOCAL GOVERNMENT 4 5
(B) All other donation instruments shall contain provisions by
which the title to the property donated shall revert to the municipal
corporation when the donated property is no longer used by the donee 14-54-8W
for the purposes for which it was donated.
(c) The execution of all contracts and conveyances and lease con-
tracts shall be performed by the mayor and city clerk or recorder,when
authorized by a resolution in writing and approved by a majority vote Corporate
of the city council present and participating. Conway,
be read hay
municipalit:
History.Acts 1935,No. 176,§ 2;Pope's 183, § 2; A.S.A. 1947, § 19-2310; Acts zoning ordir
Dig.,§ 9539;Acts 1953,No. 13,§ 1; 1959, 2005, No. 436, § 1. 56-416 cou:
No. 159,§ 1; 1977,No.823,§ 1; 1983,No. and expans
the ordinar
RESEARCH REFERENCES
14-54-8W
U.Ark.Little Rock.L.Rev.Survey of sembly, Local Government, 28 U. Ark.
Legislation, 2005 Arkansas General As- Little Rock. L. Rev. 373.
CASE NOTES Corporate
Conway,
Contracts Not Formally Authorized. between a mayor and the owner of a be read haI
Absence of a city council's resolution stagecoach who sought to sell the stage- municipalit:
was fatal to the validity and viability of an coach to the city. Dotson v. City of Lowell, zoning ordir
alleged Memorandum of Understanding 375 Ark. 89, 289 S.W.3d 55 (2008). 56-416 cou:
and expans:
14-54-303. Authority of incorporated towns. the ordinar
CASE NOTES S1
Proper Authority. 301 to 14-301-303 had no application SECTION.
Trial court did not err in deciding that when an incorporated town used its au- 14-54-902.
this section was controlling for the town to thority under this section.Riley v.Town of 14-54-903.
vacate a street, because an incorporated Higginson, 2009 Ark. App. 294, 307
town's ability to vacate a street under this S.W.3d 34(2009).
section was independent, and §§ 14-301-
14-54-304. Property exchange by municipalities. Effective
§ 3:Mar.31
Municipalities are authorized to exchange properties, real or per- vided: "It is
sonal, with other municipalities or with counties. Provided, any such General A&
exchange shall be approved by ordinance of the governing body of the sg that cit
significant i
municipality and shall be accomplished in accordance with procedures that these 1
prescribed by the governing body. cities and c
that this a
History.Acts 1999, No. 1248, § 2. 1248 became law without the Governor's because fed
Publisher's Notes. Acts 1999, No. signature. assist cities
Therefore,
FAYETTEVILLE CODE OF ORDINANCES
TITLE III ADMINISTRATION
An employee of the city shall be permitted to furnish
services as an independent contractor to the City only (1) A conspicuous display advertisement placed
if. in a newspaper of general circulation in the
city, on at least four separate occasions;
(A) The employee fully discloses his or her direct or
indirect financial interest in any contract or (2) Certified mail, return receipt requested, to all
service agreement to the City Council and such adjacent property owners; and
services are approved by City Council
Resolution; (3) Signs, prominently displayed, and at all
approaches to the subject real property,
(B) No favoritism is allowed to the city employee over announcing that the City Council will be
other possible service providers; considering the sale of the real property, the
date on which the sale is to be debated, as
(C) Such services are not of the same type as well as the telephone number of the mayor's
performed by the city employee in his or her office.
regular city job, nor are services for the
department wherein the employee works; (E) Upon an affirmative vote of the City Council, the
city shall solicit sealed bids, at a minimum price
(D) The employee's immediate supervisor specifically set by the City Council, from all interested
approves such extension of employee service parties. Bids must equal or exceed the minimum
and ensures it will not adversely affect the price set by the City Council and the appraised
employee's regular city employment duties; value of the property.
(E) City employees who are not within the Parks and (F) The city shall sell the subject real property to the
Recreation Department are specifically allowed to highest qualified bidder. In the event none of the
work as independent contractors as bids from a qualified bidder equals the minimum
scorekeepers, referees and umpires for the price set by the City Council, the city shall reject
Fayetteville Parks and Recreation Department all bids, and may reopen the bidding, upon City
without the need for a City Council Resolution. Council approval.
(Code 1965, §2-70; Ord. No. 3013, 6-5-84; Code 1991, (G) Upon receipt of an acceptable bid, and
§34.26;Ord.5351,9-7-10) authorization by a separate resolution of the City
State law reference(s)--Purchase, lease and sale Council,the conveyance of the real property shall
authorized,A.C.A.§14-42-107. be performed by the mayor and city clerk.
34.27 Sale Of Municipally Owned Real (H) Exemptions from the requirements of this
Property ordinance:
(A) Municipally owned real property shall not be (1) The sale of the industrial park, business
park, and technology park lands are
offered for sale without the express authorization, expressly exempt from the provisions of this
by resolution, of the City Council. The City ordinance. Industrial park land includes all
Council shall determine whether the property of the land in and around the South Industrial
should be rezoned prior to offering it for sale. park as specifically identified within the black
(B) Such resolutions shall contain a specific finding bold line on the map attached as Exhibit A.
by the City Council that the subject real property (2) The sale of real property to other public
no longer serves a municipal purpose. entities or to a non-profit corporation for
(C) Two simultaneous and independent appraisals of charitable purposes shall only require asingle appraisal, a single display
the real property shall be obtained by the city for advertisement placed in a newspaper of
the City Council's consideration, dated within six general circulation in the city, the certified
months of the proposed sale. mail, and sign requirements set forth in
subsections (D)(2) & (3). Following the
(D) Public notice shall be given not less than thirty setting of a minimum price by the City
calendar days before the first City Council Council no lower than the appraised value,
meeting at which such a resolution is introduced, the public entity or non-profit corporation
by all of the following means: may purchase the property at that price, and
CD34:6
- FAYETTEVILLE CODE OF ORDINANCES
TITLE III ADMINISTRATION
the sale shall be exempt from the provisions
of subsections (E), (F) & (G) of this (F) Bidders shall remain anonymous and
ordinance. shall not have access to other bidders or
bids;and
(3) If the City Council has approved by
ordinance the Project Plan for a (G) The City Council shall have access to
Redevelopment District that includes the real-time data including all bids and bid
acquisition of real property or buildings with amounts.
the intent to resell this property to a private
developer, this acquired property shall be (H) The City is authorized to pay a
exempt from the requirements of this section reasonable fee to the reverse Internet
and can be sold by City Council Resolution. auction vendor.
(4) The dedication of real property to the (1) The fee may be included as part of
Arkansas State Highway Commission shall the bids received during the reverse
be exempt from the requirements of this Internet auction and paid by the
section and may be dedicated by City winning bidder or paid separately
Council Resolution. by the City.
Note--Ord. 4380, adopted March 19, 2002, enacts (a) The City Council retains the
provisions for exemptions from the requirements of right to:
_ ordinance; such provisions have been set forth above. This
ordinance was enacted with an Exhibit A attached thereto (i) Refuse all bids made
and may be viewed in the office of the city clerk anytime
during regular business hours. during the reverse Internet
auction; and
(Ord.No.4358, 1-2-02;Ord. No.4380,§1,(Ex.A),3-19-02;
Ord.No.4651,12-07-04;Ord.4752,9-06-05) (ii) Begin the reverse Internet
auction process anew if the
State law reference(s)--Purchase, lease and sale City Council determines it is in
authorized,A.C.A.§14-54-302;Bidding process,A.C.A.§14-
54-402. the best interest of the city or
town.
34.28 Purchase By Reverse Internet (Ord.4724,7-19-05)
Auction
34.29-34.99 Reserved
(A) Bidders shall be provided instructions
and individually secured passwords for
access to the reverse Internet auction
by either the City, or reverse Internet
auction vendor;
(B) The bidding process shall be timed, and
the time shall be part of the reverse
Internet auction specifications;
(C) The reverse Internet auction shall be
held at a specific date and time;
(D)The reverse Internet auction and bidding
process shall be interactive with each
bidder able to make multiple bids during
the allotted time;
(E) Each bidder shall be continually signaled
his or her relative position in the bidding
process;
CD34:7
ORDINANCE NO.
AN ORDINANCE TO PEAL §34.27 OF THE C DE OF FAYETTEVILLE
AND TO ENACT A LACEMENT §34.27 ALE OF MUNICIPALLY
OWNED REAL PROPER Y OF THE CODE F FAYETTEVILLE AND TO
ENACT AN EMERGENCY C USE
WHEREAS, §34.27 of the Code o ay eville was enacted on January 2, 2002 in an
attempt to ensure that the citizens of Fayettev' e would receive the highest possible amount of
money for a parcel of City property if the C' Council determined to sell such City property
because it no longer served a municipal pure se; d
WHEREAS, the number of noti es, publicati ns, appraisals, City Council hearings and
public bidding process made this sell' g process so c bersome, long and expensive that the
ordinance was amended by the Cit Council in 2002, 004 and 2005 to provide numerous
exemptions from §34.27's require nts for various types o and sales; and
WHEREAS, in the dec e of its existence, the full pr ess specified in §34.27 for the
sale of City property to a priv e entity has occurred only once, t ok months to accomplish and
resulted in only a single bidd who purchased the property at the m' imum set price for the City
land; and
WHEREAS, sta e law specifically authorizes that only the Cit Council can sell City
land by passing a Res ution or can exchange land with another city by p ssing an Ordinance,
thus ensuring that the City Council will always have the final say in any prop sed City land sale
or exchange.
NOW, T EREFORE BE IT ORDAINED BY THE CITY COUN OF THE
CITY OF FA TTEVILLE,ARKANSAS:
Secti n l: That the City Council of the City of Fayetteville, Arkansas hereby peals
§34.27 of the Code of Fayetteville and enacts a replacement §34.27 Sale of Municipally Owned
Real Property of the Code of Fayetteville as shown below: