HomeMy WebLinkAboutOrdinance 5233 ORDINANCE NO. 5233
AN ORDINANCE AMENDING THE UNIFIED
DEVELOPMENT CODE SUBSECTION 166.12:
STRUCTURES NOT ALLOWED OVER PUBLIC
EASEMENTS, TO CLARIFY WHAT TYPES OF
STRUCTURES ARE PERMITTED IN EASEMENTS,
AND TO ESTABLISH CONSISTENT GUIDELINES
FOR THE INSTALLATION OF STRUCTURES IN
EASEMENTS.
WHEREAS, landowners are allowed to use their property within an easement as
long as such use does not damage or impede the easement owner's use of the easement;
and
WHEREAS, certain structures do not damage or impede the use of an easement
and should be permitted within said easement; and
WHEREAS, additional regulations are necessary to clarify what types of
structures are permitted in easements, and to establish consistent guidelines for permitting
structures within easements;
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 and replaces §166.12 Structures Not Allowed Over Public Easements, with the
following language:
"§166.12 Structures Not Allowed Within Public Easements"
(A)No portion of any building, pool (in-ground or above ground) or other immovable
structure shall be built within a public utility easement.
(B)Walls, brick or stone fences (with or without metal portions), monument or pole
signs, and other difficult to move structures may only be built within public
easements if permitted by the Zoning and Development Administrator after
receiving written approval by all utility providers that could access
Page 2
Ord. No. 5233
the easement. The written documentation shall be filed of record in the
Washington County Circuit Clerk's office. Any related damage or relocation of
utilities or the structure in the easement shall be at the owner/developer's expense.
The owner shall be responsible at his or her own expense to promptly remove any
permitted structure or portion of such structure within the easement if a utility
company or the City needs access. A utility company or the City may remove
such structure or portion of a structure itself to avoid delaying necessary
installation, maintenance or repair work without liability to the property owner
who may reinstall the permitted structure at his or her own expense once the
installation,repair or maintenance work is finished.
(C)Readily movable fences (field fence, barbed wire, chain link, woodboard privacy,
etc.) may encroach upon non-drainage public easements. Although the property
owner is legally responsible to remove a fence blocking an easement, the City or
utility company may remove such fence blocking an easement if access to the
easement is necessary. The City or utility company will reinstall the fence to its
approximate pre-removal condition after the maintenance, installation, removal or
repair of mains or utility structures is finished. Neither the City nor any utility
company shall be liable for damages to any property owner as a result of this
subsection.
(D)No fences may be installed in any drainage easement if such installation could
impede the drainage through the easement.
(E)No item may be installed within a pubic easement that could restrict the function,
visibility, or access to a utility structure such as a manhole, meter, electrical,
phone, or cable box, or other structure as may be built for utility function. No item
shall be placed within three feet of a fire hydrant or in any way that may restrict
visibility, access or use of the hydrant, which includes the clear space around the
hydrant from which a pressurized hose may extend when in use. �g�YFFIIFFF1P7Y!
�a4q� RIUT R�`oi��v
PASSED and APPROVED this 21St day of April, 2009. m-m�q,��G G1�Y pF SUo��1�'E
o- p FAYETTEViLLE s
m �
APPROVED: ATTEST: o�y -Q �J=N,O
®a
r d°ode a/V,Italia0[�000
By: By: ,
L10NELD Jtfo^ Mayor SON ` RA E. SMITH, City C1erk/Treaswer
RECEIVED
APR, 3 0 2009
FAYETTFVILLE
GICITY CLERWS OFFICE
Arkawas �
m� ($ ze
1R:• . t s �
Northwest Arkansas Times
Benton County Daily Record
P. O. BOX 1607
FAYETTEVILLE, AR 72702
PHONE: 479-571-6421
AFFIDAVIT OF PUBLICATION
I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Arkansas
Democrat Gazette newspaper. Printed and published in Benton County
Arkansas, (Lowell) and that from my own personal knowledge and
reference to the files of said publication, the advertisement of: City of
Fayetteville — Ordinance #5233
April 27, 2009
Publication Charge : $118.36
Signed:
Subscribed and sworn to before me
This 2f day of al A W 2009.
Notary Public
My Commission Expires:
Do not pay from Affidavit, an invoice will be sent
1- oJp Fyo•`AN
®s� :
ECENE®
APR, 3 0 2049
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
ORDINANCE NO. 5233
AN 09DINANCE AMENDING THE UNIFIED DEVEL- Ile
OPMENT CODE SUBSECTION 1$6.12: STRUC- 7ayye
!�`f
TURES NOT ALLOWED OVER PUBLIC EASE- TMENTS, TO CLARIFY WHAT'TYPES OF STRUC-
TURES ARE PERMITTED IN EASEMENTS.AND TO ARKANSAS
ESTABLISH CONSISTENT GUIDELINES FOR THE
INSTALLATION OF STRUCTURES IN EASEMENTS.
WHEREAS,landowners are allowed to use their property within an easement as long as such use
does not damage or impede the easement owrer's use of the easement;and
WHEREAS,certain structures do not damage or impede the use of an easement and should be
permitted within said easement;and
WHEREAS,additional regulations are necessary to clarity what types of structures are permitted
in easements,and to establish consistent guidelines for permitting structures within easements;
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 and replaces
§166.12 Structures Not Allowed Over Public Easements,with the fallowing language:
"§166.12 Structures Not Allowed Within Public Easements"
(A)No-portion of any buildings pool(in-ground or above ground)or other immovable structure shall
be built within a public utility easement.
(B)Walls,brick or stone fences(with or without metal portions),monument or pole signs,and other
difficult to move structures may only be built within public easements it permilted by the Zoning and
Development Administrator after receiving written approval by all utility providers that could access
the easement.The written documentation shall be filed of record in the Washington County Circuit
Clerk's office.Any related damage or relocation of utilities or the structure in the easement shalt be
at the owner/developer's expense.The owner shall be responsible at his or her own expense to
promptly remove any permitted structure or portion of such structure within the easement if a utility
company or the City needs access. A utility company or the City may remove such structure or por-
tion of a structure itself to avoid delaying necessary installation,maintenance or repair work without
liability to the properly owner who may reinstall the permitted structure at his or her own expense
once the installation,repair or maintenance work is finished.
(C)Readily movable fences(field fence, barbed wire,chain.link,woodboard privacy,etc.)may
encroach upon non-drainage public easements.Although the property owner is Iegaily responskble
to remove a fence blocking an easement,the City or utility company may remove such fence block-
ing an easement if access to the easement is necessary.The City or utNity company will reinstall the
fence to its approximate pre-removal condition after the maintenance;installation,removal or repair
of mains or utility structures is finished.Neither the City nor any utility company shalt be liable for
damages to any property owner as a result of this subsection.
(D)NO fences maybe installed in any drainage easement if such installation could impede the
drainage through the easement.
(E)No item may be installed within a pubic easement that could restrict the function,visibility,or
access to a utility structure such as a manhole,meter,electrical,phone,or cable box,or other strut
-
lure as may be built for utility function.No item shall be placed within three feet of a fire hydrant or
in any way that may restrict visibility,access or use of the hydrant,which includes the clear space
around the hydrant from which a pressurized hose may extend when in use.
PASSED and APPROVED this 21st day of April,2009-
APPROVED: ATTEST:
By: By:
ILIONELD JORDAN,Mayor SONDRA E.SMITH,City ClerkMOasurer.
U 9L-)
City of Fayetteville Staff Review Form 1 P-1 169
633
City Council Agenda Items
and SAM 69 7cvl
Contracts, Leases or Agreements
4/7/2009
City Council Meeting Date
Agenda Items Only
Andrew Garner Planning Development Services
Submitted By Division Department
Action Required_
ADM 09-3219 (UDC Ch. 166.12 Structures Not Allowed Over Public Easements): An ordinance amending Ch. 166.12
of the Unified Development Code to clarify what types of structures are permitted in easements, and to establish
consistent guidelines for the installation of structures in easements.
nla
Cost of this request Category!Project Budget Program Category I Project Name
n/a
Account Number Funds Used to Date Program 1 Project Category Name
nla
Project Number Remaining Balance Fund Name
Budgeted Item Budget Adjustment Attached
Previous Ordinance or Resolution#
Depart nt D rec r Date
Original Contract Date:
3- [316q Original Contract Number:
City Attorney Date
A CJ
A���o� Received in City
J/ k Clerk's Office
Ch of ff ate
• Received in uf�
Mayor's Office
M or Date
Comments:
Revised April 16,2007
' r. Ing #x 9149&
City Council Meeting of April 7, 2009
Agenda Item Number
CITY COUNCIL AGENDA MEMO
To: Mayor and City Council
Thru: Jeremy Pate, Director of Development Services
From: Andrew Garner, Senior Planner
Date: March 13, 2009
Subject: UDC Ch. 166.12 Amendments - Structures Not Allowed Over Public
Easements (ADM 09-3198)
RECOMMENDATION
On March 9, 2009 the Fayetteville Planning Commission and staff recommended in favor
of an ordinance to amend the Fayetteville Unified Development Code.(UDC) to clarify
what type of structures are and are not permitted in public utility easements. After the
Planning Commission meeting the City Attorney provided a memorandum to Planning
Staff with some recommendations on the proposed ordinance changes. These
recommendations are consistent with staff and Planning Commission's intent of the
ordinance changes and have generally been incorporated into the proposed ordinance.
BACKGROUND
City of Fayetteville Unified Development Code chapter 166.12 prohibits the installation
of any structures over easements. This ordinance is intended to prevent permanent
immovable structures from impeding the installation or maintenance of utilities and to
allow utilities to continue and expand their specific utility services in the easement.
However, there are numerous instances where signs, trash enclosures, and other
structures have been placed over public utility easements, with or without permission of
the City and or utility providers. In certain cases, more "temporary" or "movable"
structures can be installed in easements and not restrict or impede the use of the easement
for utility provision. The lack of a clear direction in the code to allow such structures
leads to a wide interpretation of what should and should not be permitted. Planning staff
proposes amending UDC Chapter 166.12 to more clearly define what types of structures
are and are not permitted within a public easement, and to clearly describe that certain
structures that are difficult to move, such as brick or stone fences, must obtain written
permission from utility companies and the City and file a legal recorded document prior
to installation. The proposed ordinance change would allow applicants more flexibility in
the development of their property, while maintaining the integrity of the casement. The
proposed modifications to the code would.provide utility companies assurance that any
damage or relocation of utilities, or damage/removal of certain structures by utility
companies would be at the owner/developer's expense. In addition, the decision to allow
the identified structures would be entirely at the discretion of the utility service providers
and the City. This .policy is not intended to be directly applicable to encroachments
within public rights-of-way or Master Street Plan setbacks.
City Council Meeting of April 7, 2009
Agenda Item Number
DISCUSSION
This item was heard at the regular Planning Commission meeting on March 9, 2009 and
forwarded by vote of 9-0 with a recommendation for approval to the City Council. The
proposed ordinance modification was discussed by the utility companies and City staff at
the February 11, 2009 Technical Plat Review meeting, and briefly discussed at the March
3, 2009 Board of Adjustment meeting. Neither the utility companies nor the Board of
Adjustment voiced any objection to the proposed amendments. After the Planning
Commission meeting, staff has incorporated additional changes suggested by the City
Attorney, which are consistent with the intent of the proposal.
BUDGET IMPACT
None.
ORDINANCE NO.
AN ORDINANCE AMENDING THE UNIFIED
DEVELOPMENT CODE SUBSECTION 166.12:
STRUCTURES NOT ALLOWED OVER PUBLIC
EASEMENTS,. TO CLARIFY WHAT TYPES OF
STRUCTURES ARE PERMITTED IN EASEMENTS,
AND TO ESTABLISH CONSISTENT GUIDELINES
FOR THE INSTALLATION OF STRUCTURES IN
EASEMENTS.
WHEREAS, landowners are allowed to use their property within an easement as
long as such use does not damage or impede the easement owner's use of the easement,
and
WHEREAS, certain structures do not damage or impede the use of an easement
and should be pennitted within said easement; and
WHEREAS, additional regulations are necessary to clarify what types of
structures are permitted in easements, and to establish consistent guidelines for permitting
structures within easements;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section I: That the City Council of the City of Fayetteville, Arkansas, hereby
repeals and replaces §166.12 Structures Not Allowed Within Public Easements, with
the following language:
"§166.12 Structures Not Allowed Within Public Easements"
(A) No portion of any building including in-ground pools or other immovable structure shalt be built
within a public utility easement-
(B) Walls, brick or stone fences (with or without metal portions), monument or pole signs, and other
difficult to move structures may only be guilt within public easements if permitted by the Zoning and
Development Administrator after written approval by all utilities that could access the easement-
The written documentation snail be filed of record in the Washington County Circuit Clerk's office.
Any related damage or relocation of utilities or the structure in the easement shall be at the
owner/developer's expense.
(C) Readily movable fences (field fence, barbed wire, chain link, woodboard privacy, etc_) may
encroach upon non-drainage public easements, but the owner is responsible at their own expense
to promptly remove any portion of the fence blocking the easement if a utility company or the City
needs access. A utility company or the City may remove such fence itself to avoid delaying
necessary installation, maintenance or repair work without liability to the property owner who may
reinstall the fence at his own expense once the installation,repair or maintenance work is finished.
(D) No fences may be installed in any drainage easement if such installation could impede the
drainage through the easement.
PASSED and APPROVED this day of , 2009.
APPROVED: ATTEST:
By: By.
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
Ile
ru.yc L%Lle"V H
ARKANSAS PC Meeting of March 9, 2009
THE CITY OF FAYETTEVILLE, ARKANSAS
125 W. Mountain St_
Fayetteville,AR 72701
PLANNING DIVISION CORRESPONDENCE Telephone_(479)575-8267
TO: Fayetteville Planning Commission
FROM: Andrew Garner, Senior Planner
THRU: Jeremy Pate, Director of Current Planning
DATE: Mar eh-3, 9 Updated March 11, 2009
ADM 09-3219: (UDC AMENDMENT CH. 166.12, DEVELOPMENT): The request
is to modify the Fayetteville Unified Development code Section 166.12 to permit yard
accessories over public easements if written permission is provided by utility companies.
Planner: Andrew Garner
BACKGROUND
City of Fayetteville Unified Development Code chapter 166.12 prohibits the installation
of any structures over easements. This ordinance is intended to prevent permanent
structures from impeding the installation or maintenance of utilities and to allow utilities
to continue and expand their specific utility services in the easement.
However, there are numerous instances where signs, trash enclosures, and other small
yard accessories have been placed over public utility easements, with or without
permission of the City and or utility providers. In certain cases, small yard accessories
can be installed in easements and not restrict or impede the use of the easement for utility
provision. In past instances where owners have proposed to install a small yard accessory
in a utility easement, but do not want to vacate the easement, staff has required the
property owner to obtain written permission from all affected utility companies to ensure
their rights of access/maintenance and use of the easement are not impeded. However, the
lack of a clear direction in the code to allow such accessories leads to a wide
interpretation of what should and should not be permitted.
Planning staff proposes amending UDC Chapter 166.12 to permit customary yard
accessories within a public easement if the applicant can provide written permission to
the City by all affected utility companies. This would allow applicants more flexibility in
the development of their property, while maintaining the integrity of the easement. The
proposed modifications to the code would provide utility companies assurance that any
damage or relocation of utilities, or damage/reinnoval of the yard accessory by utility
companies would be at the owner/developer's expense_ This policy is not intended to be
directly applicable to encroachments within public rights-of-way or Master Street Plan
setbacks.
The proposed ordinance modification was discussed by the utility companies and City
staff at the February 11, 2009 Technical Plat Review meeting_ The utility companies
discussed that they were comfortable with the proposed ordinance changes with the
understanding that principal structures such as a residence or building would not be
allowed in easements, that written permission would be required by all utility companies
prior to construction in an casement, and that any relocation or damage of utilities or the
applicant's accessory structure would be at the owner/developer's expense. This item was
also briefly discussed at the March 3, 2009 Board of Adjustment meeting. The Board of
Adjustment did not voice any objections to the proposed amendment, but did recommend
that the written permission form signed by utility companies get filed of record so that the
deed for the property will show that the structure is allowed over the easement.
RECOMMENDATION
Planning Staff recommends approval of ADM 09-3219 to amend Chapter 166.12 of the
UDC to permit customary yard accessories within utility easements if written approval by
utility companies is provided.
Planning Commission Action: X Forwarded to C.C. ❑ Denied ❑ Tabled
Motion: Cabe
Second: Winston.
Vote: 9-0-0
Meeting Date: March 9,. 2008
Comments:
1 .
Fayetteville Code of Ordinances
Commission, the Planning Commission may (C) Exemptions_ The following shall be exempt from
require the subdivider to reserve sites for the requirements of this section_
public use that are indicated within the
boundaries of the proposed subdivision (1) Overhead wires, supporting structures, and
which are indicated on an officially adopted associated structures of a temporary nature
plan,to permit the public board, commission, which provide temporary service_ A permit
or body having jurisdiction, or financial obtained from the Zoning and Development
responsibility, the opportunity to acquire said Administrator for said temporary service,
sites. addressing the nature and duration of said
service,shall be required.
(2) The subdivider at his option may provide
such areas or may be required to make them (2) Existing lines of 12Kv and above_
available for acquisition by the city under
statutory procedure_ All such areas shall be (3) A single power pole near the exterior
maintained at the expense of the city or boundary of a development shall be allowed
other body which may be involved_ to provide connections for underground
service.
(C) Future acquisition. The Planning Commission
may require the subdivider to establish building (D) Nothing herein shall be construed to usurp the
lines to allow for future acquisition of right-of-way authority of the Arkansas Public Services
for arterial streets. Commission and in all instances of conflict, the
rules and regulations of said Arkansas Public
(Code 1965, App. A., ArL 8(10.1); Ord. No. 1747, 6-29-70; Service Commission shall prevail.
Ord. No_ 3073, 3-19-86; Code 1991, §160.119; Ord_ No_
4100,§2(Ex_A),6-16-98;Ord.4919,9-05-06) (Ord_ No_ 4100, §2 (Ex. A), 6-16-98; Ord. No. 4169, §t, 6-
16-99)
166.12 Structures Not Allowed Over
Public Easements 166.14 Commercial Design And
No portion of any structure shall be built over any Development Standards
ublic utility easement Hovuever -cxsfoar
f�da abut nfMAM (A) Purposes-
"'o.
urposes_
1..
r -
� �t� fabocno les r�. . .: .
kZiW,ra °barrels end o,-erA l iffiam (1) To protect and enhance Fayetteville's
erllted '+iit(1in an easeient�tf� appearance, identity, and natural and
a aL d a ' ro riatte ull �e economic vitality-
=6"kl :n
�adztf be fs1e of- e (2) To address environmental concerns which
%fl/�r tatlCr}unf� ru�t Cleik s oftIry � d include, but are not limited to, soil erosion,
ag"eetacaton of u#rhttes:andlor t1e ous o vegetation preservation,and drainage_
atd��s� „�ivtthrtT=the;�asemeratla���ae�° }1e
(3) To protect and preserve the scenic
resources distributed throughout the city
166.13 Underground Utility Wires which have contributed greatly to its
economic development, by attracting
(A) In the new residential developments requiring tourists, permanent part-time residents, new
Planning Commission approval and new industries,and cultural facilities.
commercial developments all utility wires, lines,
and/or cable in said developments utilized by (4) To preserve the quality of life and integrate
electric and/or telecommunications companies the different zones and uses in'a compatible
shall be placed underground. manner_
(B) Waiver. In case of hardships, (including but not (5) To address the issues of traffic, safety, and
limited to financial, geological, environmental, or crime prevention_
regulatory) unique to the subject property, the
Planning Commission may grant a waiver, on a (6) To preserve property values of surrounding
permanent or temporary basis, to allow the property-
erection, construction, installation, maintenance,
use or operation of poles and overhead wires and (7) To provide good civic design and
associated overhead structures_ arrangement.
CD 166.32
TITLE XV UNIFIED DEVELOPMENT CODE
CHAPTER 151: DEFINITIONS
Setback. (Zoning) A required open space other than a court unoccupied and unobstructed by any
structure or portion of a structure 30 inches above the general ground level of the graded lot upward,
,+-
provided however that
Ctt3g ar'cr may be permitted in any yard subject to height limitations and requirements
limiting obstruction of visibility_
Structure or building. (Zoning) Anything constructed or erected with a fixed location on the ground, or
attached to something having a fixed location on the ground. Among other things, structures include
buildings, manufactured homes, , ray cacport' sheds, tc
CD151:1
-,XAMPLE UTILITY PERMISSION FG.-IM
December 3, 2008
City of Fayetteville
113 West Mountain Street
Fayetteville, Arkansas 72701
To Whom It May Concern:
The Washington County Farm Bureau Insurance company has constructed a new office
building at the . northwest corner of Wedington Drive/Meadowland Drive. We have
applied for a sign permit from the City of Fayetteville for a new monument sign ten (10)
feet off of the Wedington Drive right-of-way. There is a utility easement and utilities in
this vicinity of the site. Because the sign is proposed to be located within a utility
easement, the City requires written sign off from all utility providers prior to issuance of
a sign permit.
We request that you sign the signature block below indicating no objection to the sign
installation, with the understanding that any damage or relocation to existing utilities or
the sign, will be at the owner/developer's expense.
- Sincerely,
Vince Massanelli
Farm Bureau Insurance
Agency Manager
Attachments: (1) site plan indicating sign and utility location; and (2) picture of the proposed sign
The sign is approved as indicated in this letter and attachments:
Electric Ozark Electric Gas Arkansas Western Gas
Service: Service:
Signature: Signature:
Water City of Fayetteville Sewer City of Fayetteville
Service: Service:
Signature:
Signature:
Telephone AT&T Cable Cox Communication
Service: Service:
Signature: Signature:
RI.
-FAYETTEVILLE
THE CITYOF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Jeremy Pate, Director of Current Planning
FROM: Kit Williams, City Attorney
�.a
DATE: March t0, 2.009
RE: Amendment to §166.12
LEGAL DEPARTMENT
I think your proposed amendment to §166.12 Structures Not Allowed Over Public
Easements, needs some work to make it more clear and to prevent unnecessary regulation.
"Structure" is defined in the UDC as "anything constructed or erected with a fixed location
on the ground, or attached to something having a fixed location on the ground." (Chapter
151, UDC) Of all the things you proposed to have listed in § 166.12 for which property
owners would have to apply for a permit after approval of all utilities (including the City),
only "walls" and "fences" are mentioned in the definition as a "structure_"
"Furniture" is defined in Merriam-Webster's Collegiate Dictionary, 10th Edition as
"movable articles used in readying an area (as a room or patio) for occupancy or use."
(emphasis added) Thus, under your new § 166.12, a homeowner would have to fill out an
application (pay a fee?), obtain written approval of all utility service providers, and file the
document in the Circuit Clerk's Office if they wanted to place an easily movable lawn chair
or table within a public easement. I guess a new permit would be needed for each new chair
or table or if the land owner wanted to move his lawn furniture within the easement.
I thought the City wanted to encourage citizens to use rain barrels. The ones I have
seen are pretty mobile (especially if drained). This ordinance change would place a
bureaucratic process in the way for any homeowner seeking to follow our advice to get a rain
barrel if that barrel might encroach upon an easement.
In normal property law, a landowner is allowed to use his property within the
easement conveyed to another party as long as such use does not damage or impede the
easement owner's use of the easement. Thus, easements (except ingress and egress) always
allow fences across them even though the easement owner may order the portion of the fence
in the easement removed if it is necessary to work on the buried pipe or overhead line
permitted by the easement.
When the City purchased or condemned easements for the new sewer pipelines in the
Fayetteville Waste Water Improvement Project, we sometimes crossed fenced pastures_ We
rebuilt those fences across our easements when construction was completed. If we had not
allowed the fences to be reconstructed, we would have drastically devalued the whole
pasture. (And we would have had to pay fair compensation for this taking.)
Let me suggest possible wording for a revised § 166.12.
"§166.12 Structures Not Allowed Within Public Easements
"(a) No portion of any building including any elevated
deck, in -ground pools or other immovable structure
shall be built over a public utility easement.
"(b) Walls, brick or stone fences (with or without
metal portions), above ground swimming pools,
monument or pole signs, `portable' storage buildings,
ground level decks, and other difficult to move
structures may only be built within a public easement
if permitted by the Director of Current Planning after
written approval by all utilities that could access the
easement_ The written documentation shall be filed
of record in the Washington County Circuit Clerk's
Office.
"(c) Readily movable fences (field fence, barbed
wire, chain link, etc.) may encroach upon non -drainage
public easements, but the owner is responsible at the
owner's expense to promptly remove any portion of
the fence blocking the easement if a utility company.
or the City needs access. A utility company or the City
may remove such fence itself to avoid delaying necessary
installation, maintenance or repair work without liability
to the property owner who may reinstall the fence at his
own expense once the installation, repair or maintenance
work is finished." '
"(d) No fences may be installed in any drainage
easement if such installation could impede the
drainage through the easement.
As you see, I do not think any references to furniture, ornaments, fabric canopies or
rain barrels should be made, nor should any permit be required for such items.
ORDINANCE NO.
AN ORDINANCE AMENDING THE UNIFIED
DEVELOPMENT CODE SUBSECTION 166.12:
STRUCTURES NOT ALLOWED OVER PUBLIC
EASEMENTS, TO CLARIFY WHAT TYPES OF
STRUCTURES ARE PERMITTED IN EASEMENTS,
AND TO ESTABLISH CONSISTENT GUIDELINES
FOR THE INSTALLATION OF STRUCTURES IN
EASEMENTS.
WHEREAS, landowners are allowed to use their property within an easement as
long as such use does not damage or impede the easement owner's use of the easement;
and
WHEREAS, certain structures do not damage or impede the use of an easement
and should be permitted within said easement; and
WHEREAS, additional regulations are necessary to clarify what types of
structures are permitted in easements, and to establish consistent guidelines for permitting
structures within easements;
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 and replaces §166.12 Structures Not Allowed Over Public Easements, with the
following language:
"§166.12 Structures Not Allowed Over Public Easements"
(A) No portion of any building, pool (in -ground or above ground) or other immovable structure shall be
built within a public utility easement.
(B) Walls, brick or stone fences (with or without metal portions), monument or pole signs, and other
difficult to move structures may only be built within public easements if permitted by the Zoning and
Development Administrator after receiving written approval by all utility providers that could access
the easement. The written documentation shall be filed of record in the Washington County Circuit
Clerk's office. Any related damage or relocation of utilities or the structure in the easement shall be
at the owner/developer's expense.
(C) Readily movable fences (field fence, barbed wire, chain link, woodboard privacy, etc.) may
encroach upon non -drainage public easements, but the owner is responsible at their own expense
to promptly remove any portion of the fence blocking the easement if a utility company or the City
needs access. A utility company or the City may remove such fence itself to avoid delaying
necessary installation, maintenance or repair work without liability to the property owner who may
reinstall the fence at his own expense once the installation, repair or maintenance work is finished.
(D) No fences may be installed in any drainage easement if such installation could impede the
drainage through the easement.
(E) No item may be installed within a pubic easement that could restrict the function, visibility, or
access to a utility structure such as a manhole, meter, electrical, phone, or cable box, or other
structure as may be built for utility function. No item shall be placed within three feet of a fire
hydrant or in any way that may restrict visibility, access or use of the hydrant, which includes the
clear space around the hydrant from which a pressurized hose may extend when in use.
PASSED and APPROVED this
APPROVED:
By:
LIONELD JORDAN, Mayor
day of , 2009.
ATTEST:
By:
SONDRA E. SMITH, City Clerk/Treasurer
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
Don Marr, Chief of Staff
Jeremy Pate, Development Services Department Director
David Whitaker, Assistant City Attorney
FROM: Kit Williams, City Attorney (.
DATE: April 10, 2009
RE: §166.12 Structures Not Allowed Over Public Easements
Addition to subsection (B)
Thank you for allowing me time to propose an additional
amendment to subsection §166.12 of the Fayetteville Code. Since land
development ordinances are interpreted in favor of the property owner
and against the City, I wanted the ordinance to be very explicit that the
City and utility companies have the. same right to move the permitted
(difficult to move) structures in subsection (B) as they do for the "readily
movable fences" in subsection (C). Equally important is the "without
liability" language.
Below is what I recommend how subsection (B) should read with the
newly proposed language in bold.
(B) Walls, brick or stone fences (with or without metal
portions), monument or pole signs, and other difficult
to move structures may only be built within public
easements if permitted by the Zoning and Development
Administrator after receiving written approval by all
utility providers that could access the easement, The
written documentation shall be filed of record in the
Washington County Circuit Court clerk's office. Any
related damage or relocation of utilities .or the structure
in the easement shall be at the owner/ developer's
expense. The owner shall be responsible at his or her
own expense to promptly remove any permitted structure
or portion of such structure within the easement if a
utility company or the City needs access. A utility
company or the City may remove such structure or
portion of a structure, itself to avoid delaying necessary
installation, maintenance or repair work without liability
to the property owner who may reinstall the permitted
structure at his or her own expense once the installation,
repair or maintenance work is finished."
Please amend the ordinance to add these two sentences before
deciding whether or not to pass this ordinance. I also suggest that the title
of the section be changed to read "Structures Not Allowed Within (instead
of "Over") Public Easements". This probably is not legally necessary as the
operative wording in the section usually uses "within" or "in" a public
easement. However, I believe that even though a title of a section does not
control its meaning, the description_of the sectionprovided by the title
would be better served by using "Within" rather than "Over" public
easements.
$3
4lRI/®� I V W�'(N C.-_
ADS. - r9 A
ORDINANCE NO.
AN ORDINANCE AMENDING THE UNIFIED
DEVELOPMENT CODE SUBSECTION 166.12:
STRUCTURES NOT ALLOWED OVER PUBLIC
EASEMENTS, TO CLARIFY WHAT TYPES OF
STRUCTURES ARE PERMITTED IN EASEMENTS,
AND TO ESTABLISH CONSISTENT GUIDELINES
FOR THE INSTALLATION OF STRUCTURES IN
EASEMENTS.
WHEREAS, landowners are allowed to use their property within an easement as
long as such use does not damage or impede the easement owner's use of the easement;
and
WHEREAS, certain structures do not damage or impede the use of an casement
and should be permitted within said easement; and
WHEREAS, additional regulations are necessary to clarify what types of
structures are permitted in easements, and to establish consistent guidelines for permitting
structures within easements;
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 and replaces §166.12 Structures Not Allowed Over Public Easements, with the
following language:
"§166.12 Structures Not Allowed Within Public Easements"
(A) No portion of any building, pool (in -ground or above ground) or other immovable structure shall be
built within a public utility easement.
(B) Walls, brick or stone fences (with or without metal portions), monument or pole signs, and other
difficult to move structures may only be built within public easements if permitted by the Zoning and
Development Administrator after receiving written approval by all utility providers that could access