HomeMy WebLinkAboutOrdinance 5393 IIIIIII IIIIII III IIII VIII VIII VIII VIII I III VIII IIII VIII II(I(IIII IIII IIII
Doc ID: 013934670004 Type: REL
Kind: ORDINANCE
Recorded: 03/23/2011 at 03:21:38 PM
Fee Amt: $30.00 Paae 1 of 4
Washinaton Countv. AR
Bette Staws Circuit Clerk
File201110000 /7 9 7(�7
7
ORDINANCE NO. 5393
AN ORDINANCE TO AMEND §113.02 REGULATIONS TO ABATE
NUISANCE, AND §113.03 JURISDICTION OF THIS ORDINANCE OF
THE FAYETTEVILLE CODE AND TO DECLARE AN EMERGENCY
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 Regulations To Abate Nuisance (B) Operation of Rock Quarry by repealing and
deleting the following language "or within one mile beyond the city limits of Fayetteville" from
both subsections (1) and (2).
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.02 Regulations To Abate Nuisance (C) Dust, Mud and Rock Control Measures by
repealing and deleting the following language "or within one mile beyond the city limits of
Fayetteville" and by repealing and deleting subsections (2), (4) and (5) and renumbering
subsection(3) as (2).
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.02(D)(2) by repealing the first sentence of this subsection. Attached as Exhibit A is
§113.02 as amended.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.03 Jurisdiction of This Ordinance by repealing and deleting this section in its entirety
and enacting the following replacement §113.03 Jurisdiction of the Rock Quarry Operating
License Article.
"§113.03 Jurisdiction of the Rock Quarry Operating License Article. The
Jurisdiction of The Rock Quarry Operating License Article shall be applicable to
any and all rock quarries located within the corporate limits of Fayetteville."
Page 2
Ordinance No. 5393
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby determines
that to ensure the validity and operation of the Rock Quarry Operating License Article of the
Fayetteville Code within the city limits of Fayetteville which is necessary to preserve the public
health, peace and safety of Fayetteville citizens, this ordinance needs to take effect immediately.
Therefore the City Council of the City of Fayetteville hereby declares that an emergency exists
and that this ordinance shall be in full force and effect from the date of its passage and approval.
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PASSED and APPROVED this 22°d day of March, 2011. A`. G�G�Ay•pF•SG ,%
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FAYETTEVILLE;
APPROVED: ATTEST:
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By: By: dY� G� l�N�
KOALD JO , Mayor SONDRA E. SMITH, City Clerk/Treasurer
EXHIBIT "A"
CHAPTER 113: ROCK QUARRIES AND DIRT MINING FACILITIES
ARTICLE I a.m. until noon on Saturday. No major noise
ROCK QUARRY OPERATING LICENSE producing activities shall occur before 8:30
a.m. or after 4:30 p.m. on a weekday or
anytime on Saturday or Sunday. No rock
113.02 Regulations To Abate Nuisance quarry shall be allowed to operate on a
federally recognized holiday or Sunday.
(A) Rock Blasting/Use of Explosives.
(2) All rock quarries within the city limits of
(1) No rock blasting shall be allowed within 60 Fayetteville shall be prohibited from any
yards of any house within the city limits of operations until the owner/operator of such
Fayetteville. quarry has obtained a valid, annual Rock
Quarry Operating License. This license to
(2) No rock blasting explosive charge or location operate shall be issued by the Fayetteville
shall exceed the most restrictive limitations Planning Department on a fiscal year(July 1
within federal, state and Washington County through June 30) schedule with no fee
regulations or laws. assessed.
(3) All rock blasting within the permitted quarry (C) Dust, Mud and Rock Control Measures. All rock
shall only be allowed between the hours of quarries within the city limits of Fayetteville shall
10:00 a.m. and 3:00 p.m. on the first and only be allowed to operate with the following
third Wednesday of each month unless such safeguards and measures to ensure that dust,
Wednesday is a federal or city holiday. If dirt, mud, loose rock and gravel, and all other
such Wednesday is a holiday, the permitted possible irritants or nuisance substances do not
blasting day will be moved to the next day adversely affect Fayetteville residents. It is the
(Thursday). If the permitted blasting day express continuing duty of the licensed rock
would be unsafe or not feasible or practical quarry operator to ensure all of these safeguards,
because of inclement weather or other requirements and measures are constantly
condition beyond the reasonable control of enforced.
the quarry operator, the Director of
Development Services may designate (1) Dust control measures. Water or other
another weekday during the next five substances or measures must be fully
weekdays as a permitted blast day. effective during the operation of the rock
quarry to ensure the quarry is in full and
(4) Upon timely request by the rock quarry continual compliance with the requirements
operator, the Director of Development of the Arkansas Water and Air Pollution
Services or designee is empowered to grant Control Act as administered by the Arkansas
a variance of the time limitations for rock Department of Environmental Quality. A
blasting if inclement weather or other violation of the permit conditions required by
condition beyond the reasonable control of the Arkansas Department of Environmental
the operator has caused a safety issue that Quality can be grounds for a suspension or
requires rock blasting outside the 10:00 a.m. revocation of the City's Rock Quarry
until 3:00 p.m. permitted period. Re- Operating License. (See§133.05)
notification is not required unless the blasting
is moved to another day.
(2) Loose rock and gravel. The rock quarry
(5) The rock quarry operator shall notify by operator is responsible to ensure that all
telephone the Director of Development dump trucks leaving the rock quarry site that
Services and any Fayetteville neighbor may utilize any city street and are carrying
within a mile of his quarry who has more than half a truck load of gravel, rocks
requested such notification at least two or dirt have their load fully and properly
hours prior to rock blasting. covered.
(B) Operation of Rock Quarry. (D) Control of Dump Truck Tailgate Banging.
(1) All rock quarries within the city limits of (1) It is the express duty of the rock quarry
Fayetteville shall only be allowed to operate operator to prevent a dump truck delivering
during the period of 7:00 a.m. until 6:00 p.m. anything to the quarry or receiving rock from
Monday through Friday, and during 7:00 the quarry to engage in Dump Truck Tailgate
Banging as defined in §113.04 (E) at any
time upon its property.
(2) No dump truck which has banged its tailgate
shall be loaded or otherwise serviced for a
full operational day of the quarry after the
incident to include all day Monday if the
tailgate banging occurs after 4:30 p.m.
Friday or anytime on Saturday or Sunday.
Loading or servicing such dump truck during'
this suspension shall constitute a violation of
this ordinance and the Rock Quarry
Operating License.
113.03 Jurisdiction of the Rock Quarry
Operating License Article.
The Jurisdiction of The Rock Quarry Operating
License Article shall be applicable to any and all rock
quarries located within the corporate limits of
Fayetteville.
Washington County,AR
I certify this instrument was filed on
03/23/2011 03:21:38 PM
and recorded in Real Estate
File Number 2011-00007977
Bette Stamps-Circuit Clerk
AGENDA REQUEST
FOR: SPECIAL CITY COUNCIL MEETING OF MARCH 22, 2011
FROM: KIT WILLIAMS, City Attorney
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Amend §113.02 Regulations To Abate Nuisance, And §113.03
Jurisdiction Of This Ordinance Of The Fayetteville Code And To Declare An
Emergency
APPROVED FOR AGENDA:
(Z
City Attorney Date
AM- J141� 13-X-//
Chief of Staff Date
i`
L a-t /
yor Date
03-21-11A10: 14 RCVD
Il
a e ea Departmental Correspondence
ARLEGAL
www.accessfayetteville.org ]DEPARTMENT
Kit Williams
City Attorney
TO: Mayor Jordan Jason B.Kelley
y Assistant City Attorney
City Council
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services:Director
FROM: Kit WilliamsCity Attorney �_ �- -
DATE: March 18, 2011
RE: Amendment of Rock Quarry Operating License Article
I recommend immediately amending the Rock Quarry Operating License
Article of the Fayetteville Code to maintain the operation and effectiveness of the
Rock Quarry Operating License Article to any rock quarry that is now or may in
the future operate within the Fayetteville city limits. Although the Arkansas
Attorney General and the State Court (which confirmed the legality of the Motor
Vehicle Racing Facility Ordinance) determined that the City Council had statutory
power to cause a nuisance on the doorstep (within one mile) of the city limits to be
abated, the Federal Courts have questioned this statutory power unless the City
first sues the business.
By passing these amendments at the Special City Council Meeting called by
Mayor Jordan and passing the Emergency Clause, this Rock Quarry Operating
License Article will immediately be amended to remove the only parts of the
Rock Quarry Operating License Article which were questioned in this litigation.
In fact, since the Rogers Group, Inc. only operates a rock quarry beyond the city
limits, it cannot complain about an ordinance which affects only rock quarries
inside the city limits. Amending a challenged ordinance is what the City Council
did in 2002 when the City Council promptly amended the Fayetteville Sign
Ordinance to ensure its continued constitutionality after it had been fully examined
during the Federal Court case.
ORDINANCE NO.
AN ORDINANCE TO AMEND §113.02 REGULATIONS TO ABATE
NUISANCE, AND §113.03 JURISDICTION OF THIS ORDINANCE OF
THE FAYETTEVILLE CODE AND TO DECLARE AN EMERGENCY
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE,ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.02 Regulations To Abate Nuisance (B) Operation of Rock Quarry by repealing and
deleting the following language "or within one mile beyond the city limits of Fayetteville" from
both subsections (1) and (2).
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.02 Regulations To Abate Nuisance (C) Dust, Mud and Rock Control Measures by
repealing and deleting the following language "or within one mile beyond the city limits of
Fayetteville" and by repealing and deleting subsections (2), (4) and (5) and renumbering
subsection(3) as (2).
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.02(D)(2) by repealing the first sentence of this subsection. Attached as Exhibit A is
§113.02 as amended.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby amends
§113.03 Jurisdiction of This Ordinance by repealing and deleting this section in its entirety
and enacting the following replacement §113.03 Jurisdiction of the Rock Quarry Operating
License Article.
"§113.03 Jurisdiction of the Rock Quarry Operating License
Article. The Jurisdiction of The Rock Quarry Operating License
Article shall be applicable to any and all rock quarries located within
the corporate limits of Fayetteville."
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby determines
that to ensure the validity and operation of the Rock Quarry Operating License Article of the
Fayetteville Code within the city limits of Fayetteville which is necessary to preserve the public
health, peace and safety of Fayetteville citizens, this ordinance needs to take effect immediately.
Therefore the City Council of the City of Fayetteville hereby declares that an emergency exists
and that this ordinance shall be in full force and effect from the date of its passage and approval.
PASSED and APPROVED this 22nd day of March, 2011.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
CHAPTER 113: ROCK QUARRIES AND DIRT MINING FACILITIES
ARTICLE I major noise producing activities shall occur
ROCK QUARRY OPERATING LICENSE before 8:30 a.m. or after 4:30 p.m. on a
weekday or anytime on Saturday or Sunday.
No rock quarry shall be allowed to operate
113.02 Regulations To Abate Nuisance on a federally recognized holiday or Sunday.
(A) Rock Blasting/Use of Explosives. (2) All rock quarries within the city limits of
Fayetteville shall be prohibited from any
(1) No rock blasting shall be allowed within 60 operations until the owner/operator of such
yards of any house within the city limits of quarry has obtained a valid, annual Rock
Fayetteville. Quarry Operating License. This license to
operate shall be issued by the Fayetteville
(2) No rock blasting explosive charge or location Planning Department on a fiscal year(July 1
shall exceed the most restrictive limitations through June 30) schedule with no fee
within federal, state and Washington County assessed.
regulations or laws.
(C) Dust, Mud and Rock Control Measures. All rock
(3) All rock blasting within the permitted quarry quarries within the city limits of Fayetteville shall
shall only be allowed between the hours of only be allowed to operate with the following
10:00 a.m. and 3:00 p.m. on the first and safeguards and measures to ensure that dust,
third Wednesday of each month unless such dirt, mud, loose rock and gravel, and all other
Wednesday is a federal or city holiday. If possible irritants or nuisance substances do not
such Wednesday is a holiday, the permitted adversely affect Fayetteville residents. It is the
blasting day will be moved to the next day express continuing duty of the licensed rock
(Thursday). If the permitted blasting day quarry operator to ensure all of these safeguards,
would be unsafe or not feasible or practical requirements and measures are constantly
because of inclement weather or other enforced.
condition beyond the reasonable control of
the quarry operator, the Director of (1) Dust control measures. Water or other
Development Services may designate substances or measures must be fully
another weekday during the next five effective during the operation of the rock
weekdays as a permitted blast day. quarry to ensure the quarry is in full and
continual compliance with the requirements
(4) Upon timely request by the rock quarry of the Arkansas Water and Air Pollution
operator, the Director of Development Control Act as administered by the Arkansas
Services or designee is empowered to grant Department of Environmental Quality. A
a variance of the time limitations for rock violation of the permit conditions required by
blasting if inclement weather or other the Arkansas Department of Environmental
condition beyond the reasonable control of Quality can be grounds for a suspension or
the operator has caused a safety issue that revocation of the City's Rock Quarry
requires rock blasting outside the 10:00 a.m. Operating License. (See§133.05)
until 3:00 p.m. permitted period. Re-
notification is not required unless the blasting
is moved to another day. (2) Loose rock and gravel. The rock quarry
operator is responsible to ensure that all
(5) The rock quarry operator shall notify by dump trucks leaving the rock quarry site that
telephone the Director of Development may utilize any city street and are carrying
Services and any Fayetteville neighbor more than half a truck load of gravel, rocks
within a mile of his quarry who has or dirt have their load fully and properly
requested such notification at least two covered.
hours prior to rock blasting.
(B) Operation of Rock Quarry. (D) Control of Dump Truck Tailgate Banging.
(1) It is the express duty of the rock quarry
(1) All rock quarries within the city limits of operator to prevent a dump truck delivering
Fayetteville shall only be allowed to anything to the quarry or receiving rock from
operate during the period of 7:00 a.m. until the quarry to engage in Dump Truck Tailgate
6:00 p.m. Monday through Friday, and Banging as defined in §113.04 (E) at any
during 7:00 a.m. until noon on Saturday. No time upon its property.
EXHIBIT,
(2) No dump truck which has banged its tailgate
shall be loaded or otherwise serviced for a
full operational day of the quarry after the
incident to include all day Monday if the
tailgate banging occurs after 4:30 p.m.
Friday or anytime on Saturday or Sunday.
Loading or servicing such dump truck during
this suspension shall constitute a violation of
this ordinance and the Rock Quarry
Operating License.
113.03 Jurisdiction of the Rock Quarry
Operating License Article.
The Jurisdiction of The Rock Quarry Operating
License Article shall be applicable to any and all rock
quarries located within the corporate limits of
Fayetteville.
� •
a e PIjT e Departmental Correspondence Z17
LEGAL
ARKANSAS
• • DEPARTMENT
Kit Williams
City Attorney
TO: Mayor Jordan Jason B.Kelley
y Assistant City Attorney
City Council
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
FROM: Kit Williams, City Attorney
DATE: March 11, 2011
RE: Federal Court Rejection of City's Petition for Certification of Question
to Arkansas Supreme Court
On March 10, 2011, the Federal District Court for the Western District of
Arkansas issued its Order which denied Fayetteville's request to allow the
Arkansas Supreme Court to interpret the state statute upon which the Rock Quarry
Ordinance was enacted. The Order stated: "the Court believes that the law of the
case doctrine prevents it from reconsidering the issue of whether the City has
statutory authority to declare nuisances for activities that are operated outside the
city limits." (Page 7 of Order)
The City of Fayetteville certainly agrees with the Court that the "(1)aw of the
case doctrine is a doctrine of discretion, not a command to the courts." (Page 7 of
Order quoting a 1986 Eighth Circuit Court of Appeals case) In our request to
allow the Arkansas Supreme Court to decide the meaning of the contested state
statute, the City acknowledged that any referral of this issue rested within the
Federal District Court's discretion which it has now exercised to deny our request.
The City of Fayetteville's Answer to the initial Complaint of the Rogers
Group, Inc. questioned whether this case should be brought in State rather than
Federal Court. Because Rogers Group, Inc. is a foreign corporation, it could sue
the City of Fayetteville in Federal Court. During the hearing for the Corporation's
Motion for a Preliminary Injunction, the City asked that the Federal Court abstain
from asserting jurisdiction so that Arkansas Courts could determine the meaning of
Arkansas law. That request was denied as has our final request for referral to the
Arkansas Supreme Court.
I continue to agree with the Arkansas Attorney General's official Opinion
that the City Council has proper state statutory authority to protect our citizens by
passing an ordinance to abate nuisance activities occurring on our City's doorstep
just as the City Council did to abate a nuisance in the ThunderValley situation in
2002. The Circuit Court for the Fourth Judicial District of Arkansas found your
ordinance abating a nuisance beyond the city limits legal and constitutional when it
was challenged by the owner of ThunderValley in 2003. However, it does not
appear that the Arkansas judicial authorities will be allowed to determine if the
Rock Quarry Ordinance is legal and constitutional this time.
FAYETTEVILLE CODE OF ORDINANCES TITLE XI BUSINESS REGULATIONS CAW
CHAPTER 113: ROCK QUARRIES AND DIRT MINING FACILITIES
ARTICLE I
ROCK QUARRY OPERATING LICENSE
(5) The rock quarry operator shall notify by
telephone the Director of Development
113.01 Finding Of Nuisance And Need
Services and any Fayetteville neighbor
For Abatement
within a mile of his quarry who has
The City Council of the City of Fayetteville, Arkansas
requested such notification at least two
hours prior to rock blasting.
determines and finds that the operation of a rock
quarry would be a nuisance to the citizens and City of
(B) Operation of Rock Quarry.
Fayetteville, Arkansas if operated or used other than
as prescribed in §113.02 and, therefore, should be
(1) All rock quarries within the city limits of
abated by the reasonable regulations required by this
Fayetteville or within one mile beyond the
ordinance.
city limits of Fayetteville shall only be
(Ord. 5280, 10-20-09)
allowed to operate during the period of
7:00 a.m. until 6:00 p.m. Monday through
Friday, and during 7:00 a.m. until noon on
113.02 Regulations To Abate Nuisance
Saturday. No major noise producing
activities shall occur before 8:30 a.m. or after
(A) Rock Blasting/Use of Explosives.
4:30 p.m. on a weekday or anytime on
Saturday or Sunday. No rock quarry shall be
(1) No rock blasting shall be allowed within 60
allowed to operate on a federally recognized
yards of any house within the city limits of
holiday or Sunday.
Fayetteville.
(2) All rock quarries within the city limits of
(2) No rock blasting explosive charge or location
Fayetteville or within one mile beyond the
shall exceed the most restrictive limitations
city limits of Fayetteville shall be prohibited
within federal, state and Washington County
from any operations until the owner/operator
regulations or laws.
of such quarry has obtained a valid, annual
Rock Quarry Operating License. This
(3) All rock blasting within the permitted quarry
license to operate shall be issued by the
shall only be allowed between the hours of
Fayetteville Planning Department on a fiscal
10:00 a.m. and 3:00 p.m. on the first and
year (July 1 through June 30) schedule with
third Wednesday of each month unless such
no fee assessed.
Wednesday is a federal or city holiday. If
such Wednesday is a holiday, the permitted
(C) Dust, Mud and Rock Control Measures. All rock
blasting day will be moved to the next day
quarries within the city limits of Fayetteville or
(Thursday). If the permitted blasting day
within one mile beyond the city limits of
would be unsafe or not feasible or practical
Fayetteville shall only be allowed to operate with
because of inclement weather or other
the following safeguards and measures to ensure
condition beyond the reasonable control of
that dust, dirt, mud, loose rock and gravel, and all
the quarry operator, the Director of
other possible irritants or nuisance substances do
Development Services may, designate
not adversely affect Fayetteville residents. It is
another weekday during the next five
the express continuing duty of the licensed rock
weekdays as a permitted blast day.
quarry operator to ensure all of these safeguards,
requirements and measures are constantly
(4) Upon timely request by the rock quarry
enforced.
operator, the Director of Development
Services or designee is empowered to grant
(1) Dust control measures. Water or other
a variance of the time limitations for rock
substances or measures must be fully
blasting if inclement weather or other
effective during the operation of the rock
condition beyond the reasonable control of
quarry to ensure the quarry is in full and
'the operator has caused a safety issue that
continual compliance with the requirements
requires rock blasting outside the 10:00 a.m.
of the Arkansas Water and Air Pollution
until 3:00 p.m. permitted period. Re-
Control Act as administered by the Arkansas
notification is not required unless the blasting
Department of Environmental Quality. A
is moved to another day.
violation of the permit conditions required by
CD113:3
E � i .r +-la'i 14 w
FAYETTEVILLE CODE OF ORDINANCES
TITLE XI BUSINESS REGULATIONS
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.
offending dump truck to include the date and
time of the occurrence. No dump truck
which has banged its tailgate shall be loaded
or otherwise serviced for a full operational
day of the quarry after the incident to include
all day Monday if the tailgate banging occurs
after 4:30 p.m. Friday or anytime on
Saturday or Sunday. Loading or servicing
such dump truck during this suspension shall
constitute a violation of this ordinance and
the Rock Quarry Operating License.
(Ord. 5280, 10-20-09; Ord. 5315, 4-20-10)
(3)
Loose rock and gravel. The rock quarry
operator is responsible to ensure that all
113.03 Jurisdiction Of This Ordinance
dump trucks leaving the rock quarry site that
Pursuant to A.C.A. §14-54-103(1), this ordinance to
may utilize any city street and are carrying
abate a nuisance shall be applicable to any and all
more than half a truck load of gravel, rocks
rock quarries located within the corporate limits of
or dirt have their load fully and properly
Fayetteville and for one (1) mile beyond the city limits
covered.
as prescribed in A.C.A. §14-262-102.
(4)
Dump truck identifying number. In order for
(Ord. 5280, 10-20-09)
citizens to easily and correctly identify dump
trucks and their owner/operators who are
113.04 Definitions
servicing the rock quarry, the rock quarry
operator shall require any dump truck
accessing servicing his facility to have
(A) Rock Quarry means any open excavation used
easy to read four digit number least six x
for obtaining building stone, slate, limestone or
inches high and twelve inches wide on the
other type of rock used for paving or building
tail gate of the dump truck. The rock quarry
purposes.
operator shall maintain an up-to-date and
accurate log of the owner and operator of
(B) House means any habitable structure including a
each numbered dump truck and shall
mobile or manufactured home, a dwelling, a
immediately supply the owner and operator's
residence, an apartment, a condominium, a
name, address and contact information to
dormitory, a hotel or motel.
any Fayetteville employee, official or citizen
who requests such information.
(C) Operation of Rock Quarry means any blasting,
operation of any mechanical equipment on the
(5)
Only dump trucks with proper identifying
premises of the rock quarry or any operation of
number may be loaded. The rock quarry
dump trucks or other large vehicles on the
operator shall not load or permit to be loaded
premises of the rock quarry site. Starting,
or permit to exit the rock quarry any dump
running the engine or moving any equipment or
truck unless the identifying number specified
dump truck on the premises shall constitute
in subsection (4) is clearly legible, easy to
operation of the rock quarry.
read and not obscured by dirt, mud or
otherwise.
(D) Major Noise Producing Activities means blasting,
rock breaking, dump truck tailgate banging, and
(D) Control of Dump Truck Tailgate Banging,
the use by the quarry operator of non -static
backup warning devices on its loader, breaker or
(1)
It is the express duty of the rock quarry
other major equipment. Rock crushing within a
operator to prevent a dump truck delivering
half mile of a house within the city limits of
anything to the quarry or receiving rock from
Fayetteville is also a major noise producing
the quarry to engage in Dump Truck Tailgate
activity.
Banging as defined in §113.04 (E) at any
time upon its property.
(E) Dump : Truck Tailgate Banging means the
avoidable and loud banging of a dump truck
(2)
The rock quarry operator shall keep a record
tailgate used to vibrate the bed to loosen material
of the owner/operator and number of the
in the bed sought to be dumped. The relatively
quiet bong that might be unavoidable when a
CD113:4
FAYETTEVILLE CODE OF ORDINANCES
TITLE XI BUSINESS REGULATIONS
dump truck load is dumped and the truck moves
away from the pile without applying the truck's
brakes is not regulated by this ordinance.
(Ord. 5280, 10-20-09)
113.05 Issuance, Suspension Or
Revocation Of License
(A) Issuance. The Director of Development Services
or designee shall prepare and issue an annual
Rock Quarry Operating License upon proper
application of an owner/operator of a rock quarry
within the jurisdiction of this ordinance after
ensuring the rock quarry operator will be in full
compliance with all requirements of this
ordinance and has all other current and valid
federal, state and county permits required for
rock quarrying operation.
(B) Suspension. The Director of Development
Services may suspend a Rock Quarry Operating
License for up to thirty (30) days for violations of
the terms of the license after a due process
hearing.
(C) Revocation. The Director of Development
Services may revoke a Rock Quarry Operating
license for repetitive, continuing, intentional, or
substantial violations of the requirements of this
ordinance. The Director of Development
Services may require adequate assurances that
any operator whose license has been revoked
will fully comply with the Rock Quarry Operating
License before reissuing another license.
(D) Appeal. Any person whose license has been
suspended or revoked pursuant to this section,
may appeal such suspension or revocation to the
City Council by providing the City Clerk's Office
with a written request for City Council review
within ten business days of the issuance of
suspension or revocation. The City Council may
then determine whether the rock quarry operator
violated the requirements of the ordinance and, if
so, whether suspension (up to 30 days) or
revocation is appropriate for such violation.
(Ord. 5280, 10-20-09)
113.06 Penalty
(A) Any owner, lessor or lessee of real property upon
which is located a rock quarry and any operator,
manager, or employee of such rock quarry shall
ensure such quarry is operated within the limits of
this ordinance and shall be guilty of a criminal
violation for any violation of the requirements of
CD113:5
this ordinance
(B) The Rock Quarry Operating License may be
suspended or revoked by the Director of
Development Services after a due process
hearing for an owner's, manager's, operator's,
employee's, or lessee's violation of any terms or
limits within this ordinance or for operating the
rock quarry not in conformity with its Rock Quarry
Operating License.
(C) Any owner, operator, manager, lessee or
employee of a rock quarry shall be guilty of a
criminal violation if such person operates the rock
quarry in violation of any of the Terms of this
ordinance, without a current and valid Rock
Quarry Operating License, or in violation of any
of the terms of his Rock Quarry Operating
License.
(D) Each violation of the operational hour limitations
or the number of rock blasting events allowed by
this Ordinance or the applicable Rock Quarry
Operating License shall constitute a separate
violation of this ordinance and shall be
punishable by a fine of up to $500.00.
(Ord. 5280, 10-20-09)
113.07 No Reduction In Property Owner's
Right To Sue For Nuisance
Nothing in this ordinance removes or reduces a
property owner's right to sue or seek an injunction
against any owner or operator of rock quarry if a court
of competent jurisdiction finds that such facility
constitutes a private or public nuisance to that
property owner.
(Ord. 5280, 10-20-09)
113.08-113.10 Reserved
ARTICLE II
RED DIRT MINING FACILITY
OPERATING LICENSE
113.11 Finding Of Nuisance And Need
For Abatement
The City Council of the City of Fayetteville, Arkansas
determines and finds that the operation of a red dirt
mining facility would be a nuisance to the citizens and
City of Fayetteville, Arkansas if operated or used
other than as prescribed in §113.12 and, therefore,
should be abated by the reasonable regulations
required by this ordinance.
(Ord. 5281, 10-20-09)
NORTHWEST ARKANSAS
NEWSPAPERS,
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Northwest Arkansas Democrat Gazette
The Morning News of Springdale
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
MAR 3 1 2011
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
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 5393
March 26, 2011
Publication Charge : $ 163.87
Signed:
Subscribed and sworn to before me
This aGday of }korJ , 2011.
Notary Public A"1511
Jim Mears'
Washington County
Commission Number 12374647
My Commission Expires: Notary Public - Arkansas
My Commission Expires Jan. 20, 2020
Do not pay from Affidavit, an invoice will be sent
►PPROVED this 2
L
O
2rid'day:of Mi
ATTEST:
Ran
0011PWE. SMITH, City dierk/Treasurer
:he office of the City Clerk/treasurer.
MAR 31 2011
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE