Loading...
HomeMy WebLinkAboutOrdinance 5372 ORDINANCE NO. 5372 AN ORDINANCE TO REPEAL THE DIRECT APPEAL TO CIRCUIT COURT PROVISION OF §156.03(C)(6)FLOOD DAMAGE PREVENTION CODE WHEREAS, §155.05 Appeals from Planning Commission Decisions provides for an appeal to the City Council for all variances of the UDC; and WHEREAS, §156.03(C)(6) mistakenly prohibits such appeal to the City Council of a Planning Commission decision on a variance of the Flood Damage Prevention Code of the UDC. 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 the second sentence of§156.03(C)(6)which states: "Any person or persons aggrieved by the decision of the Planning Commission regarding a variance request may appeal such decision in the courts of competent jurisdiction." PASSED and APPROVED this 7fl'day of December, 2010. APPROVED: ATTEST: By: By: is&A&,i, ELD J N, Mayor SONDRA E. SMITH, City Clerk/Treasurer ®®4y611991i PIPl9p v 0� �RK✓TREy �G Y :FAYETTEVI LLE® m TON AGENDA REQUEST FOR: COUNCIL MEETING OF DECEMBER 7, 2010 FROM: KIT WILLIAMS, CITY ATTORNEY ORDINANCE OR RESOLUTION TITLE AND SUBJECT: An Ordinance To Repeal The Direct Appeal To Circuit Court Provision Of §156.03(C)(6) Flood Damage Prevention Code APPROVED FO AGENDA: City Attorney Date / 'o hief otaff Date r yor D e 11-08-10PO4 : 13 RCVD l� EKED FAYETTEVILLE THE CITY OF FAYETTEVILLE,ARKANSAS KIT WILLIAMS,CITY ATTORNEY DAVID WHITAKER,ASST.CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Jeremy Pate, Development Services Director Chris Brown, City Engineer FROM: Kit Williams, City Attorney DATE: November 8, 2010 RE: Minor amendment to the Variance Chapter (156) of the Unified Development Code to allow appeal to the City Council. When the Flood Damage Prevention Code was enacted as Chapter 168 of the Unified Development Code, its variance provision was enacted into the Variance Chapter (156) of the U.D.C. The Flood Damage Prevention Code was a recommended uniform ordinance which the City needed to adopt for FEMA purposes. However, the variance section differs from all other development variance provisions decided by the Planning Commission by stating: "Any person or persons aggrieved by the decision of the Planning Commission regarding a variance request may appeal such a decision in the courts of competent jurisdiction." All other variances decided by the Planning Commission can be appealed to the City Council by the owner or by an Alderman. {See §155.05(A)(1)(i)} I believe the quoted language should be repealed so that any variance request from the Flood Damage Prevention Code can also be appealed to the City Council before the applicant has to appeal to Circuit Court. Attached is my recommended Ordinance. ORDINANCE NO. AN ORDINANCE TO REPEAL THE DIRECT APPEAL TO CIRCUIT COURT PROVISION OF §156.03(C)(6) FLOOD DAMAGE PREVENTION CODE WHEREAS, §155.05 Appeals from Planning Commission Decisions provides for an appeal to the City Council for all variances of the UDC; and WHEREAS, §156.03(C)(6) mistakenly prohibits such appeal to the City Council of a Planning Commission decision on a variance of the Flood Damage Prevention Code of the UDC. 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 the second sentence of§156.03(C)(6)which states: "Any person or persons aggrieved by the decision of the Planning Commission regarding a variance request may appeal such decision in the courts of competent jurisdiction." PASSED and APPROVED this 7th day of December, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer `(3/2/2010) Kit Williams 4th Qtr. Updates.pdf Selte 59" TITLE XV UNIFIED DEVELOPMENT CODE 167, Tree Preservation and Protection, in (b) Findings. The Planning Commission those cases where their strict application shall make findings indicating: would work an injustice as applied to the proposed development due to a situation (i) Parking generated. That the unique to the subject real property; provided proposed use will not generate as that such variance shall not have the effect much parking as required under the of nullifying the intent and purpose of the existing standard. chapter. The Planning Commission's approval of said variance must be affirmed (ii) Shared parking. That shared by the City Council to become effective, and parking facilities are available;or a denial of the requested variance may be appealed to the City Council. (iii) On-street parking. That on-street parking can satisfy intermittent and (6) Flood Damage Prevention Code. The occasional demands. Planning Commission shall hear and decide requests for varian ro (c) Conditions. All variances shall meet the of �bs9m ny person or persons conditions listed below: aggecision of the Planning Comng a variance request (i) Downtown Core, Main Street mayecision in the courts of Center, and Downtown General com . Districts.Conditions for variances in Downtown Core, Main Street (a) In passing upon such applications, the Center, and Downtown General Planning Commission shall consider all Districts: technical evaluations, all relevant factors, and standards specified in other a. In lieu fee. An in I i eLe eo f sections of this ordinance. $1,200.00 for each on-site parking space shall be paid to (b) Variances m ay be issued for the the city. This money shall be reconstruction, rehabilitation, or held in an interest bearing restoration of structures listed in the account and shall be expended National Register of Historic Places, for public parking facilities without regard to the procedures within the district it is collected identified in the remainder of this within 10 years from the date it ordinance. Variances may only be is collected. If said money has issued for such repair,or rehabilitation if not been so expended within strict enforcement of the ordinance 10 years of the date collected, would preclude the structure's continued said money, together with the designation as a historic structure, and interest thereon, shall be the variance is the minimum necessary refunded to the person or entity to preserve the historic character and who made the contribution; or design of the structure. b. Shared parking. For any (c) Generally, variances may be issued for parking space which is new construction and substantial proposed to be shared under improvements to be erected on a lot half the provision of §172.05(C). acre or less in size contiguous to and The applicant must present a surrounded by lots with existing signed agreement with the structures constructed below the base owner of the property. The flood level, providing items (1) through agreement shall address the (11) of §168.03(A) have been fully number of spaces required for considered. As the lot size increases both properties, the number of beyond half acre, the technical spaces available together with justification required for issuing the a site plan, and any other variance increases. pertinent information, such as restrictions on sharing for (d) Variances shall not be issued within any certain days or hours. designated floodway if any increase in flood levels during the base flood (5) Tree preservation plan. A developer may discharge would result. petition the Planning Commission for a variance from the requirements of Chapter CD156:7 yr. 0il'?,il2' 10)''Kit Williams 4th Qtr. Updates-pdf Selte 60 Fayetteville Code of Ordinances (e) Variances shall only be issued upon a Clerk and shall be recorded in a manner determination that the variance is the so that it appears in the chain of title of minimum necessary, considering the the affected parcel of land. flood hazard,to afford relief. (7) Outdoor Lighting Plan. (f) Floodplain variances shall only be issued if: (a) Undue Hardship. So that substantial justice may be done and the public (i) There are exceptional or interest secured, a developer may extraordinary circumstances or petition the Planning Commission for a conditions applicable to the variance from the requirements of property involved or to the intended Chapter 176: Outdoor Lighting, by use of the property, which do not showing that their strict application apply generally to other property in would cause undue hardship as applied the same flood zone; to the proposed development;'provided that such variance shall not have the (ii) A determination that failure to grant effect of nullifying the intent and purpose the variance would result in of the chapter. exceptional hardship to the applicant; and, (b) Conditions. In granting variances, the Planning Commission may impose such (iii) A determination that the granting of conditions as will, in its judgment, a variance will not result in secure substantially the objectives of the increased flood heights, additional requirements so varied. threats to public safety, extraordinary public expense, (8) Bicycle rack variance. The Planning create nuisances,cause fraud on or Commission may modify the design victimization of the public,or conflict standards or the requirement for a bicycle with the other provisions of the rack. Code of Fayetteville. (Ord.4714,6-21-05; Ord.4930, 10-3-06; Ord.5296, 12-15- (g) Variances may be issued for new 09) construction and substantial improvements and for other 156.04 Stormwater Drainage And Erosion development necessary for the conduct Control of a functionally dependent use provided that the provisions of §168.03(A) are Certain variances of the stormwater management, satisfied and that the structure or other drainage, and erosion control regulations may be development is protected by methods applied for as follows: that minimize flood damages during the base flood and create no additional Criteria. A variance may be granted from any threats to public safety. requirement of the stormwater management, drainage, and erosion control regulations using the (h) Upon consideration of the factors in this following criteria: section, and the purpose of this ordinance, the Planning Commission (A) Special circumstances. There are special may impose conditions to the granting of circumstances applicable to the subject property floodplain variances as it deems or its intended use;and necessary to further the purpose of this ordinance. (B) Results. The granting of the variance will not result in: (i) Any applicant to whom a variance is granted shall be given written notice that (1) Surface water runoff. An increase in the rate the structure will be permitted to be built or volume of surface water runoff; with a lowest floor elevation below the regulatory flood elevation surcharge and (2) Adjacent property. An adverse impact on that the cost of flood insurance will be any adjacent property, wetlands, commensurate with the increased risk watercourse, orwater body; resulting from the reduced lowest floor elevation. A copy of the notice shall be (3) Water quality. Degradation of water quality; recorded by the floodplain administrator or in the office of the Washington County CD156:8 NORTHWEST ARKANSAS RECEIVED NEWSPAPERS DEC 30 2010 Northwest Arkansas Democrat Gazette CITY OF FAYETTEVILLE The Morning News of Springdale CITY CLERK'S OFFICE The Morning News of Rogers Northwest Arkansas Times Benton County Daily Record 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 Washington & 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 5372 December 23, 2010 Publication Charge : $ 51 .88 Signed: ' d l Subscribed and sworn to before me This,)9 day of Q�c �. , 2010. Notary Public _-- ---- -------------- 7Jimearson County Ivly Commission EXpIreS: Commmber 12374647 Noc-ArkansasMy Compires Jan.20,2020 Do not pay from Affidavit, an invoice will be sent RECEIVED DEC 3 0 2010 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE ORDINANCE NO.5372 AN ORDINANCE TO,..REPEAL jHE.DIRECT.APPEAL TQ CIRCUIT COURT PROVISION,OF,§156.03(0)(6) FL00))-0AMAGE PREVENTION'CODE E(IS, 55.D6 Appeals frpm-Planning C' -,t- W"T' ComssionDecisioris"provides for an appeal'to thenaKnNSAs City Coundil fdr all uadances of the U©C'and'; ` WHEREAS§156.03(0)(6)mistNcetly prohibits such appeal to the City Council of a Planning; �0omm(ssioh decision pn a vadanGe of the Roo,'d'DamagePreyeritlon`Code of the.C1DC:"` NOW,THEREFORE;°BE IT;ORDAINER BY THE CITY COUNCIL OF,THE KITY;OFY FAYETiEVILLE ARKANSAS ` � � r Soction:is That the'City Coflrfbll of'the C ty of,Fayettevllle,Arkansas'hereby repeals thee second ser)tence §156 03(C)(B�;which states Any person or pedf rsons aggdeyed by the decision of the Planning Commission regarding of vadande request may epp'eal sudh cision in the cob' of oorn teni-)urisdiction:" "PASSED and APPRQYED.this 7thday of December.2010 APPROVED: ATTEST: BY: ;ay:s:' LIONELD,JORDAN,,Mayor SONDRA E.SMITH,City Clerk/Treasurer