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