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HomeMy WebLinkAboutOrdinance 5315 ORDINANCE NO. 5315 AN ORDINANCE TO CORRECT AND CLARIFY §113.02(C)(4)AND §113.12 (C)(4) OF THE CODE OF FAYETTEVILLE WHEREAS, a typographical mistake was made within a section of both the Rock Quarry Operating License Ordinance 1§113.02(C)(4)1 and the Red Dirt Mining Facility Operating License Ordinance {§113.12(C)(4)} when what was supposed to read "contact information" was inadvertently typed as"contract information"; and WHEREAS,the purpose of this section is clearly expressed as"In order for citizens to easily and correctly identify dump trucks and their owner/operators ...."(emphasis added);and WHEREAS, both sections should be amended to correctly reflect the City Council's intent that only the "contact information" for dump truck drivers should be provided by the quarry or dirt farm operators and not any"contract information." 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 amends §113.02 (C)(4) by repealing the reference to "contract" information and enacting the City Council's original and true intention by replacing"contract"with"contact"information. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §113.12 (C)(4) by repealing the reference to "contract" information and enacting the City Council's original and true intention by replacing"contract"with"contact"information. PASSED and APPROVED this 20th day of April, 2010. APPROVED: ATTEST: By: By: O LD JOMayor S NDRA E. SMITH,City Clerk/T� " o ,,��� Y®O,c°SGS' oma • •c�� FAYETTEVILLE m '�9sygRkANSP.°��� GTOVA° • J AGENDA REQUEST FOR: COUNCIL MEETING OF APRIL 20, 2010 FROM: KIT WILLIAMS, CITY ATTORNEY ORDINANCE OR RESOLUTION TITLE AND SUBJECT: An Ordinance To Correct And Clarify §113.02 (C)(4) And §113.12 (C)(4) Of The Code Of Fayetteville APPROVED FOR AGENDA: c), 5) 6 City Attorney 'Date Development Services Director Date Chief o Staff Date ayor a 3-►o I�,Urn 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: Jeremy Pate, Development Services Director FROM: Kit Williams, City Attorney ' ---- _.-_...__...... DATE: March 30, 2010 RE: Attorney General Opinion No. 2009-203 on legality of Rock Quarry Operating License Ordinance We just discovered that Senator Ruth R. Whitaker of Cedarville requested the Arkansas Attorney General to opine whether the Rock Quarry Ordinance is "enforceable" and whether it "violates the freedom of privacy." Attached is the Arkansas Attorney General's Opinion issued March 1.6, 2010. As you can see, the Attorney General's opinion is that the City's regulations "likely fall within the city's police power and do not conflict with any state statute." (page 1) What did catch the Arkansas Attorney General's eye (but unfortunately, no one else's until today) was a typo in §113.02 (C)(4) which reads "contract" when it was supposed to read "contact." "The rock quarry operator shall maintain an up-to-date and accurate log of the owner and operator of each numbered dump truck and shall immediately supply the owner and operator's name, address and contract information to any Fayetteville employee, official or citizen who requests such information." (emphasis added) During all my meetings with the rock quarry operators and red dirt farms operators, no one brought this typo to my attention. This did not come up and was not specifically discussed during the numerous Ordnance Review Committee meetings and the four City Council meetings during the consideration of the Rock Quarry and Red Dirt Farms Ordinances. I apologize for missing this typo and recommend we amend these ordinance to correct this mistake. I agree with the Attorney General that our regulations concerning blasting, operation of the rock quarry and items constituting a possible nuisance per accidens "fall within the city's police power and do not conflict with any state law." (page 5) I also agree with the Attorney General that "(i)t is unclear whether the city may use its police power to require the contract between two private businesses to be laid bare before anyone who asks." (page 6) I do not believe that revealing the "contract" information was ever intended. Instead, the ordinance was supposed to require revealing the "contact" information so that a dump truck owner or operator could be contacted about problems or issues (uncovered loads, spilled rock, etc.). If this typo had been discovered prior to suit, I would have recommended amending the ordinances and code administratively as this is certainly a "scrivener's error" rather than the intended wording needing a correcting amendment. However, at this point I believe I should submit a clarifying ordinance for your consideration. This ordinance would replace "contract" with "contact" which I believe was the City Council's true intent for this regulating ordinance. I am glad, but not surprised, that the Arkansas Attorney General has agreed that everything (but the typo "contract") within the ordinance appears to be within the City Council's discretionary police power and not in conflict with any state law. Hopefully, the Federal District Court and/or Eighth Circuit Court of Appeals will eventually agree with the Arkansas Attorney General and the City of Fayetteville and uphold the Rock Quarry Operating License Ordinance. ORDINANCE NO. AN ORDINANCE TO CORRECT AND CLARIFY §113.02 (C)(4) AND §113.12 (C)(4) OF THE CODE OF FAYETTEVILLE WHEREAS, a typographical mistake was made within a section of both the Rock Quarry Operating License Ordinance 1§113.02(C)(4)) and the Red Dirt Mining Facility Operating License Ordinance {§113.12(C)(4)} when what was supposed to read"contact information" was inadvertently typed as "contract information"; and WHEREAS, the purpose of this section is clearly expressed as "In order for citizens to easily and correctly identify dump trucks and their owner/operators ...." (emphasis added); and WHEREAS, both sections should be amended to correctly reflect the City Council's intent that only the "contact information" for dump truck drivers should be provided by the quarry or dirt farm operators and not any"contract information." 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 amends §113.02 (C)(4) by repealing the reference to "contract" information and enacting the City Council's original and true intention by replacing"contract"with"contact" information. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §113.12 (C)(4) by repealing the reference to "contract" information and enacting the City Council's original and true intention by replacing "contract"with"contact" information. PASSED and APPROVED this 20th day of April, 2010. APPROVED: ATTEST: By: By. LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer FAYETTEVILLE CODE � TITLE XI BUSINESS F the Arkansas Department of Environmental Quality can be grounds for a suspension or revocation of the City's Rock Quarry Operating License. (See §133.05) (2) Dirt and mud control measures. The rock quarry operator is required to ensure that any and all vehicles leaving the rock quarry shall have all mud and dirt removed from the tires and exterior parts of the body of the vehicles prior to exiting the site onto public- roads. (3) Loose rock and gravel. The rock quarry operator is responsible to ensure that all dump trucks leaving the rock quarry site that may utilize any city street and are carrying more than half a truck load of gravel, rocks or dirt have their load fully and properly covered. (44) Dump track identifying number. In order for citizens to easily and correctly identify dump trucks and their owner/operators who are servicing the rock quarry, the rock quarry operator shall require any dump truck accessing or servicing his facility to have an easy to read four digit number at least six inches high and twelve inches wide on the tail gate of the dump truck. The rock quarry operator shall maintain an up-to-date and VIPaccurate log of the owner and operator of each numbered dump truck and shall 1,01 immediately supply the owner and operator's name, address an contract information to QW� any Fayetteville emp oyee, official or citizen who requests such information. ?,eA 1, rr+ FAYETTEVILLE CODE OF ORDINAI' TITLE XI BUSINESS REGULATIO load fully and properly covered, abate a nu (4) Dump truck identifying number. In order for red dirt millimits of Fa citizens to easily and correctly identify dump city limits a; trucks and their owner/operators who are servicing the red dirt mining facility, the red (Ord. 5281 , 1 dirt mining operator shall require any dump truck accessing or servicing his facility to 113.14 D1 have an easy to read four digit number at least six inches high and twelve inches wide on the tail gate of the dump truck. The red lealf (A) Red dir dirt mining operator shall maintain an up-to- 43 �k for obtr date and accurate log of the owner and A,n�u^� paving operator of each numbered dump truck and shall immediately supply the owner a ' (B) House and mobile e operator's name, address and contract me information to any Fayetteville employee, residens official or citizen who requests such dormitoi information. (C) Operatic (5) Only dump trucks with proper identifying blasting: number may be loaded. The red dirt mining on the I operator shall not load or permit to be loaded any opt or permit to exit the red dirt mining facility vehicles any dump truck unless the , identifying site. Sty number specified in subsection (4) is clearly equipme legible, easy to read and not obscured by constitut dirt, mud or otherwise. (D) Major Ni (D) Control of Dump Truck Tailgate Banging rock bre the use (1 ) it is the express duty of the red dirt miningnon-stati facility operator to prevent a dump trucor other delivering anything to the red dirt mining a half-m Fayettevi facility or receiving red dirt from the far liitv NORTHWEST ARKANSAS NEWSPAPERS-Lc Northwest Arkansas Democrat Gazette The Morning News of Springdale RECEIVED The Morning News of Rogers MAY 2 6 204,', Northwest Arkansas Times CITY OF FAYETTEVILLE Benton County Daily Record CITY CLERK'SbFFICE 212 North East Avenue, Fayetteville Arkansas 72701/ PO Box 1607, 72702 PHONE: 479-571-6421 AFFIDAVIT OF PUBLICATION I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Northwest Arkansas Newspapers LLC. Printed and published in Benton County, (Lowell), Arkansas and that from my own personal knowledge and reference to the files of said publication, the advertisement of: City of Fayetteville — Ordinance 5315 May 3, 2010 Publication Charge : $ 166.77 Signed: -------- _ Subscribed and sworn to before me This'Z4 day of 2010. Notary Public JOSHUA M LYNCH Notary Public-Arkansas Washington County My Commission Expires 10-28-201 8 My Commission Expires: —t Commisate�n # 12368414 �0 �r� , Do not pay from Affidavit, an invoice will be sent � O CE"NO 5315: Ya A�7 OC�IItCE�TO� CO1,RE(I AND CLAZ2IF� F e r WHEREAS a typograpJaYoal mis ade�t)iusechop o£_both heRockQuarryOperaring�eenseOrdiPanced�RedDattMining aty Overptmg License Oynance{§113 12(� j` supposed to read gntactmfonnataon�wasgnadvertentlytypedasc g q on anda WHEREAS erpuwSose ofthrs,ep o fear ale �as order'; rz citizens to easily aifd correctly identify dump a dR e Jo basis added and s s r � �� a e� houd e� .d to rrpc e ec he City ' � fCfoatAoditera�nld be " cede 9� Y operators and s t�so o ti� e e tro co a �. sas rtd pnact�in the C�i�y Co §�or�ppu�a�g�ditei `y Wlt}1 Section 2:,That the City,Council'of the City of•Fayeteviile,'Arkansas hereby amends§113 12(C(4)by repealutg the reference to contract mfo at<ori and enacYm thU'Crty Gouncii,s orfgmal find tnie mtentiori fy rep�acr i :contra wrtl r;coniact w- Won PASSED'and'APPROVED this 20th day ofApnl,2010. APPROVED: ATTEST: By.I:IO,NELD JORDA`N;,Ivlayo�� By SQNpRA E`r SMI�H�City�Cl� easurer v