HomeMy WebLinkAboutOrdinance 5521 ORDINANCE NO. 5521
AN ORDINANCE TO AMEND §154.03 PRIVATE PARTIES/ZONING
AMENDMENT TO CLARIFY THE POWERS OF THE PLANNING
COMMISSION AND CITY COUNCIL WHEN A PROPERTY OWNER SEEKS
REZONING
WHEREAS, the provision of §154.03 Private Parties/Zoning Amendment relating to
the Planning Commission should clarify that it cannot approve a rezoning request, but only
recommend approval to the City Council; and
WHEREAS, subsection (C) should be repealed as it does not comply with statutorily
required procedures for approving a rezoning request.
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
§154.03 (B) of the Unified Development Code and enacts a replacement §154.03 (B) as shown
below:
"§154.03 (B) Action by Planning Commission.
(1) The Planning Commission may forward the rezoning request
as submitted or amended by the Planning Commission to the
City Council with a recommendation of approval.
(2) The Planning Commission may disapprove the rezoning request
so that the rezoning request will not be considered by the City
Council unless the applicant properly appeals."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals
§154.03 (C) and enacts a new(C) as shown below:
Page 2
Ordinance No. 5521
"(C) Action by the City Council.
(1) The City Council may by majority vote approve and enact the
rezoning ordinance as recommended by the Planning
Commission or as requested by the applicant who has properly
appealed the Planning Commission's denial of the requested
rezoning.
(2) The City Council may amend the proposed rezoning request and
approve such amended rezoning ordinance by majority vote.
(3) The City Council may refuse to approve the rezoning request
which is thereby denied.
(4) The City Council can by motion return the proposed rezoning to
the Planning Commission for further study and recommendation.
PASSED and APPROVED this 4t'day of September, 2012.
APPROVED: ATTEST:
By: Y4V1, By: A6J6,e
O ELD , Mayor SON RA E. SMITH, City Clerk/Treasurer
0���`FF:K,l'T RE9 11/t�����
.....
FAYETTEVILLE.
�'.p••.`kANS ••.z��.
��i���ui Oi i�����•
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
7/17/2012
City Council Meeting Date
Agenda Items Only
Andrew Garner Planning Development Services
Submitted By Division Department
Action Required:
ADM 12-4170: Administrative Item (UDC SECTION 154.03(C)(2)): Submitted by the CITY PLANNING DIVISION to
repeal UDC section 154.03(C)(2).
Cost of this request Category/Project Budget Program Category/Project Name
Account Number Funds Used to Date Program/Project Category Name
Project Number Remaining Balance Fund Name
Budgeted Item Budget Adjustment Attached
pb•M•'011L Previous Ordinance or Resolution#
Department Direct r Date
A-' ��Y;�e °� '�p`t' Original Contract Date:
LIQKtZS, Z�iZ Original Contract Number:
City Attorney Date
Z- 06-22-112A09 :29 R C V D
Fi ance Wrd Internal Sery ces Director 4Dat Received in City
Clerk's Office
Chief of St ate ENT Epi
� Received in
Mayor's Office
6 z
L-Avyor Date
Comments: /��
&
�.. Revised January 15,2009
Zaye
ev.
THE CITY OF FAYETTEVILLE,ARKANSAS
DEPARTMENT CORRESPONDENCE
ARKANSAS
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan, City Council
Thru: Don Marr, Chief of Staff
From: Jeremy Pate, Development Services Director
Date: June 20, 2012
Subject: ADM 12-4170 Repeal UDC Section 154.03(C)(2) Petition opposed to rezoning
BACKGROUND:
Chapter 154.03(C)(2) states that if a certain number of property owners have signed a petition opposed to a
rezoning, then the rezoning cannot become effective except by a three-fourths vote of the City Council. This
code section appears to have been enacted with all other zoning and development code sections for the City
during a Special Meeting of the City Board of Directors on June 29, 1970. The City Attorney does not believe
this section of the code has ever been used in an attempt to require a super majority vote. Further, the City
Attorney believes that this code section is illegal because it is beyond our statutory power. A memo from the
City Attorney is attached.
RECOMMENDATION:
Staff recommends approval of an ordinance to amend the Unified Development Code to repeal Section
154.03(C)(2).
BUDGET IMPACT:
None.
CHAPTER 154: AMENDMENTS (c) Return to Planning Commission. By
resolution, may return the proposed
amendment to the Planning
154.03 Private Parties/Zoning Commission for further study and
Amendment recommendation.
(A) Petition. Any private party or parties desiring an od w d ' + ff c+
amendment to Chapter 160, upon payment of the the A '- f + f ^p04!i,"-,44q-4^
appropriate fee, shall submit to the Planning ignoo
Commission a petition giving the following ii ho,-6f+na
information: in
(1) Legal description of the property involved;
(2) Zoning classification request for the property;
and,
Gifi
(3) Statement explaining why the proposed
changes will not conflict with the surrounding (D) Re-petitions for amendment. No application for
land uses. zoning amendments will be considered by the
Planning Commission within 12 months from the
(B) Action by Planning Commission. The Planning date of final disapproval of a proposed
Commission may take one of the following amendment unless there is evidence submitted
actions: to the Planning Commission which justifies
reconsideration.
(1) Approval. The proposed amendment may
be approved as presented. (E) Withdrawal.
(2) Approval in modified form. Approved in (1) Before publication. A petition for
modified form by a majority of the Planning amendment may be withdrawn at any time
Commission and recommended for adoption before publication of the notice and posting
by the City Council with the reasons for such signs for the public hearing.
recommendations stated in writing.
(2) After publication and posting of notice. After
(3) Disapproval. If the Planning Commission the publication and posting of notice, the
disapproves a proposed amendment, the petition may be withdrawn at the discretion
reason for such disapproval shall be given in of the Planning Commission. If the petition
writing to the petitioner. is permitted to be withdrawn after the public
hearing, it shall be in the Planning
(4) Neither approves nor disapproves. If the Commission's discretion whether or not a
Planning Commission neither approves nor petition affecting part or all of the same
disapproves a proposed amendment within property may be refiled sooner than one year
45 days after the public hearing the action on from the date of withdrawal.
such amendment by said Planning
Commission shall be deemed favorable; this (Code 1965, App. A., Art. 12(1); Ord. No. 1747, 6-29-70;
period may be further extended by vote of Ord. No. 2538, 7-3-79; Code 1991, §160.156; Ord. No.
the Planning Commission if all the parties 2716, §1, 6-15-93; Ord. No. 3925, §7, 10-3-95; Ord. No.
involved agree in writing to an extension. 4100,§2(Ex.A),6-16-98)
Cross reference(s)--Notification and Public Hearings,
(C) Action by the City Council. Ch. 157.
(1) Action. The City Council, may take one of 154.04-154.99 Reserved
the following actions:
(a) Approval. The City Council, by majority
vote, may by ordinance adopt the
recommended amendment submitted by
the Planning Commission.
(b) Modify and adopt. By ordinance, may
modify and adopt the proposed
amendment.
aPVI Departmental Correspondence
ARKANSASLEGAL
�_Ww DEPARTMENT
Kit Williams
City Attorney
TO: Mayor Jordan
Jason S.Kelley
City Council Assistant City Attorney
CC: Andrew Garner, Senior Planner—Current Planning
Sondra Smith, City Clerk
FROM: Kit Williams, City Attorney
DATE: June 18,2012
RE: Update on §154.03 (C)(2) Petition opposed to rezoning
HISTORY
My research reveals that this code section was enacted along with all other
zoning and development code sections for the City during a Special Meeting of the
City Board of Directors on June 29, 1970. The Board of Directors suspended the
rules to get to the third and final reading at this Special Meeting. The minutes do
not reflect any discussion or questions before Ordinance No. 1747 was passed
unanimously. Current Code §154.03 (C) was on pages 85 and 86 of Ordinance No.
1747. During my six plus years as an Alderman and eleven plus years as City
Attorney, I do not believe this section has ever been used in an attempt to require a
super majority vote. I do not believe the City Board of Directors then nor the City
Council now could require such a three-fourths vote to rezone property because it
is probably beyond our statutory power to do so. Therefore I recommend the
repeal of this probably illegal subsection of the UDC.
A.C.A. §14-55-203 Voting requirements for passage --
Effective dates is the general state statute detailing how many votes are needed to
pass an Ordinance or resolution: "To pass any bylaw, ordinance, resolution, or
order, a concurrence of a majority of a whole number of members elected to the
council shall be required." There are a few specific exemptions to this rule (for
example a two-thirds vote is required to pass a business license tax).
I
i
The state statutes are clear that an amendment to the zoning of a district shall
be "by a majority vote of the city council." A.C.A. §14-56-423. Can the Board of
Directors or City Council place more strenuous requirements for passage of a
zoning amendment than specified in state law? I do not think so.
"[4-6] Cities have no inherent authority to enact legislation.
That authority is dependent upon the Constitution and the
General Assembly. Municipal zoning authority is conferred
solely by state enabling legislation. Failure to comply with
mandatory procedural requirements of the enabling
statute renders a zoning ordinance invalid." Brooks v.
City of Benton, 308 Ark. 571, 826 S.W. 2d 2591 261 (1992)
(Citations omitted). (emphasis added)
i
Arkansas Attorney General David Pryor opined in Opinion NO. 2002-132:
"a municipality may not, by the adoption of procedural rules, deviate from the
requirement of state law. The procedure for the passage of municipal ordinances
is a state, rather than a municipal affair." (emphasis added).
2
ORDINANCE NO.
AN ORDINANCE TO AMEND §154.03 PRIVATE PARTIES/ZONING
AMENDMENT TO CLARIFY THE POWERS OF THE PLANNING
COMMISSION AND CITY COUNCIL WHEN A PROPERTY OWNER SEEKS
REZONING
WHEREAS, the provision of §154.03 Private Parties/Zoning Amendment relating to
the Planning Commission should clarify that it cannot approve a rezoning request, but only
recommend approval to the City Council; and
WHEREAS, subsection (C) should be repealed as it does not comply with statutorily
required procedures for approving a rezoning request.
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
§154.03 (B) of the Unified Development Code and enacts a replacement §154.03 (B) as shown
below:
"§154.03 (B) Action by Planning Commission.
(1) The Planning Commission may forward the rezoning request
as submitted or amended by the Planning Commission to the
City Council with a recommendation of approval.
(2) The Planning Commission may disapprove the rezoning request
so that the rezoning request will not be considered by the City
Council unless the applicant properly appeals."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals
§154.03 (C) and enacts a new(C) as shown below:
"(C) Action by the City Council.
(1) The City Council may by majority vote approve and enact the
rezoning ordinance as recommended by the Planning
Commission or as requested by the applicant who has properly
appealed the Planning Commission's denial of the requested
rezoning.
(2) The City Council may amend the proposed rezoning request and
approve such amended rezoning ordinance by majority vote.
(3) The City Council may refuse to approve the rezoning request
which is thereby denied.
(4) The City Council can by motion return the proposed rezoning to
the Planning Commission for further study and recommendation.
PASSED and APPROVED this 17th day of July, 2012.
APPROVED: ATTEST:
By: BY:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
a Page 1 of 2
City Clerk-Fwd: PZD ordinance change
From: Alan Long
To: , City Clerk
Date: 7/17/2012 4:01 PM
Subject: Fwd: PZD ordinance change
CC: mayor , , , , Justin Tennant, Bob Ferrell , Rhonda Adams , Sarah Lewis , Sarah Lewis ,
Matthew Petty
Kit,please see below. I believe that there may be some confusion regarding the ammendment that you
have brought forward. In your memo to the city council and the mayor it states, "...I do not believe this
section has ever been used in an attempt to require a super majority vote."
If you read the email below,you will recall that we specificially asked if this section could prevent a
PZD. This was during the time when the 5 person ordinance was being considered and the Marinoni
property development was being discussed along with project Cleveland.
Our neigborhood specifically intends to use this section of the UDC. I ask that the council not change
this section of the code. It would be inproper to change the code during a time when residents have
asked if this code can be applied to protect their property.
Best Regards,
Alan Long
Ward 4 resident
Waterman Woods.
From: "Kit Williams" <kwilliamsn_ci.fayetteville.ar.us>
Date: April 18, 2012 4:41:52 PM CDT
To: "kay stevengrockhouselaw.com" <kay steven(2rockhouselaw.com>
Cc: Andrew Garner<a arner ,ci.fayetteville.ar.us>, Jeremy Pate
<jpatenci.fayetteville.ar.us>, steven kay<steven ci,rockhouselaw.com>
Subject: Re: PZD ordinance change
Steve,
As Alan has informed me that you represent him, I must direct my answer to you. The
Unified Development Code speaks for itself. However, it appears to me that this section
(which I have never seen used before)would apply to all zoning actions which should
include a Planned Zoning District which does have an explicit zoning component.
Please keep in mind that zoning regulations are always construed in favor of the Property
owner and against the City. Language in this section "those immediately adjacent in the rear
thereof' seem to limit those who may object rather strangely. It will be difficult to construe
the intended meaning of this language.
Kit
Kit Williams, Fayetteville City Attorney
(479) 575-8313
FAX(479) 575-8315
113 West Mountain
Fayetteville, AR 72701
Alan Long <alanthomaslong&a,gmail.com>4/18/2012
file://C:\Documents and Settings\ssmith.000\Local Settings\Temp\XPgrpwise\50058C41F... 7/17/2012
Page 2 of 2
11:38 AM>>>
Does the following (154.03)(c)(2) apply to the PZD process for each
approved PZD that comes before the city council?
(2)
*Vote. *When a proposed amendment affects
the zoning classification of property, and in
case a protest against such change is signed
by the owners of 20% or more either of the
area of the lots included in such proposed
change, or of those immediately adjacent in
the rear thereof extending 300 feet from the
street frontage of such opposite lots,then
such amendments shall not become
effective except by the favorable vote of
three-fourths of the City Council.
Alan
479.466.8219
Alan Long
Ward 4 resident
Waterman Woods.
file://C:\Documents and Settings\ssmith.000\Local Settings\Temp\XPgrpwise\50058C41F... 7/17/2012
a e LvIeDepartmental Correspondence
: LEGAL
• • DEPARTMENT
Kit Williams
City Attorney
Jason B.
TO: Mayor Jordan Kelley
y Assistant City Attorney ey
City Council
FROM: Kit Williams, City Attorney
DATE: July 12, 2012
RE: State Statutory Procedural Rules To Adopt Ordinances Must Be
Obeyed
I understand there is still some question about the legal need to repeal
§154.03 (C)(2) of the Unified Development Code. This section reads as follows:
"Vote. When a proposed amendment affects the zoning
classification of property, and in case a protest against such
change is signed by the owners of 20% or more either of the
area of the lots included in such proposed change, or of those
immediately adjacent in the rear thereof extending 300
feet from the street frontage of such opposite lots, then
such amendments shall not become effective except by
the favorable vote of three-fourths of the City Council."
§154.03 (C)(2)
By requiring a 75% super majority to pass a rezoning ordinance if a proper
opposition petition has been presented, this U.D.C. Code section directly conflicts
with at least three State statutes. State law provides that a rezoning amendment
shall be "made in conformance with the procedure prescribed in §14-56-422, or by
majority vote of the City Council." A.C.A. §14-56-423 Change in plans, etc.
(emphasis added).
A.C.A. §14-56-422 Adoption of plans, ordinances and regulations states
that the ordinances recommended by the Planning Commission to the City Council
may be adopted by the City Council "by a majority vote of the entire
