HomeMy WebLinkAboutOrdinance 5477 ORDINANCE NO. 5477
AN ORDINANCE TO ENACT INTO THE CODE OF FAYETTEVILLE §10.18
AUTHORITY AND TO AMEND §150.03 AUTHORITY IN THE UNIFIED
DEVELOPMENT CODE
WHEREAS, it is prudent to enact into the Code of Fayetteville including the Unified
Development Code the increased powers granted by the State Legislature to Arkansas cities by
its recent amendment of Title 14, Chapter 43, Subchapter 6 Powers Over Municipal Affairs
which repealed the limitations on municipal authority within the Dillon's Rule; and
WHEREAS, a new code section should be enacted in Title 1, General Provisions of the
Fayetteville Code to better identify the statutory and constitutional authority to support the City
Council's power to enact the Fayetteville Code; and
WHEREAS, §150.03 Authority of the Unified Development Code should be amended
to more fully cite the constitutional and statutory authority to support the City Council's power
to enact the Unified Development Code of the Code of Fayetteville.
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 enacts
§10.18 Authority of the Code of Fayetteville as shown below:
"§10.18 Authority
"The provisions contained within the Code of Fayetteville including the
Unified Development Code formerly, currently or hereinafter enacted
are based upon, derive authority from and are enacted pursuant to any
and all of the power and authority conferred upon cities by the
Arkansas Constitution and by the Arkansas General Assembly through
its statutes, including, but not limited to, all of Title 14 Local
Government of the Arkansas Code specifically including but not
limited to Subchapter 6, Power Over Municipal Affairs of Chapter 43
Government of Cities of the First Class, Chapter 54 Powers of
Municipalities, Chapter 55 Ordinances of Municipalities, and
Page 2
Ordinance No. 5477
Chapter 56 Building and Zoning Regulations; Chapter 75, Municipal
Sales and Use Taxes of Title 26 Taxation; Title 3, Alcoholic
Beverages and any and all other state statutes or constitutional
provisions that provide any authority to the City of Fayetteville to enact
ordinances, codes, or regulations within or referenced by the Code of
Fayetteville. No specific reference to authority within any code section
excludes the general authority of all state law and this section."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§150.03 Authority of the Unified Development Code so that it will now repeat the exact
language of the newly enacted §10.18 Authority shown above.
PASSED and APPROVED this 17th day of January, 2012.
APPROVED: ATTEST:
By: By:
O ELD J AN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
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AGENDA REQUEST
12-30-1 1 PO4:03 RCVD
FOR: COUNCIL MEETING OF JANUARY 17, 2012
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Enact Into The Code Of Fayetteville §10.18 Authority And To Amend
§150.03 Authority In The Unified Development Code
APPROVED FOR AGENDA:
Development Services Director Date
ZpII
CiqWt—torneA Date
Chief of St ff Date
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•
a e eVl e Departmental Correspondence
LEGAL
ARKANSAS
www.accessfayetteville.org DEPARTMENT
Kit Williams
City Attorney
TO: Mayor Jordan Jason B.Kelley
y Assistant City Attorney
City Council
CC: Jeremy Pate, Development Services Director
Andrew Garner, Senior Planner— Current Planning
FROM: Kit Williams, City Attorney
DATE: December 30, 2011
RE: Adoption of Authority Section to ensure the Fayetteville Code is
supported by all possible legal authority
To ensure that all sections and regulations of the Code of Fayetteville (to
include the Unified Development Code) are supported by all the possible
constitutional and statutory authority available to city councils, I recommend that
the City Council enact a new Authority section within both the Fayetteville
Code's and the Unified Development Code's General Provisions Chapters.
Although the City has not faced a challenge that City Council's power is limited to
only a cited statutory authority, I believe we should prevent any such possibility by
enacting the broadest statement of constitutional and statutory power for the City
in the General Provisions of both the Code of Fayetteville and the Unified
Development Code.
Such an enactment now is especially timely as the Arkansas Legislature this
year amended the Powers Over Municipal Affairs subchapter of the
Government of Cities of the First Class Chapter of the Local Government title.
This subchapter has been referred to as the "Home Rule" statute, but has been of
limited use because of judicial limitations imposed by the Arkansas Supreme Court
known as "Dillon's Rule." Act 1187 of 2011 expressly rejected this limitation by
adding subsection (b) to A.C.A. §14-43-602 which reads:
"(b) The rule of decision known as Dillon's Rule is
inapplicable to the municipal affairs of municipalities."
Black's Law Dictionary defines "Dillon's Rule: as follows:
"The doctrine that a unit of local government may exercise
only those powers that the state expressly grants to it, the
powers necessarily and fairly implied from that grant, and the
powers that are indispensible to the exercise of the unit of
local government."
The legislative express rejection of the Dillon's Rule regarding application
of the "Home Rule" statute has provided significantly more power and authority to
city councils. The Arkansas Supreme Court sometimes ended its statement of
Dillon's Rule by stating that "any substantial doubt about the existence of a power
in a municipal corporation must be resolved against it." White County v. Cities of
Judsonia and Kensett, 369 Ark. 151, 251 S.W. 3d 275, 279 (2007). This corollary
to Dillon's Rule has also probably been abrogated by the express repeal of Dillon's
Rule by Act 1187.
By enacting into the Code of Fayetteville the new authority granted to cities
in Arkansas by Act 1187, we have an additional shield to protect our Fayetteville
Code and U.D.C. from a legal attack claiming that the City Council has exceeded
its powers when enacting any provision within our Fayetteville Code.
ORDINANCE NO.
AN ORDINANCE TO ENACT INTO THE CODE OF FAYETTEVILLE §10.18
AUTHORITY AND TO AMEND §150.03 AUTHORITY IN THE UNIFIED
DEVELOPMENT CODE
WHEREAS, it is prudent to enact into the Code of Fayetteville including the Unified
Development Code the increased powers granted by the State Legislature to Arkansas cities by
its recent amendment of Title 14, Chapter 43, Subchapter 6 Powers Over Municipal Affairs
which repealed the limitations on municipal authority within the Dillon's Rule; and
WHEREAS, a new code section should be enacted in Title 1, General Provisions of the
Fayetteville Code to better identify the statutory and constitutional authority to support the City
Council's power to enact the Fayetteville Code; and
WHEREAS, §150.03 Authority of the Unified Development Code should be amended
to more fully cite the constitutional and statutory authority to support the City Council's power
to enact the Unified Development Code of the Code of Fayetteville.
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 enacts
§10.18 Authority of the Code of Fayetteville as shown below:
"§10.18 Authority
"The provisions contained within the Code of Fayetteville including the
Unified Development Code formerly, currently or hereinafter enacted
are based upon, derive authority from and are enacted pursuant to any
and all of the power and authority conferred upon cities by the
Arkansas Constitution and by the Arkansas General Assembly through
its statutes, including, but not limited to, all of Title 14 Local
Government of the Arkansas Code specifically including but not
limited to Subchapter 6, Power Over Municipal Affairs of Chapter 43
Government of Cities of the First Class, Chapter 54 Powers of
Municipalities, Chapter 55 Ordinances of Municipalities, and
Chapter 56 Building and Zoning Regulations; Chapter 75, Municipal
Sales and Use Taxes of Title 26 Taxation; Title 3, Alcoholic
Beverages and any and all other state statutes or constitutional
provisions that provide any authority to the City of Fayetteville to enact
ordinances, codes, or regulations within or referenced by the Code of
Fayetteville. No specific reference to authority within any code section
excludes the general authority of all state law and this section."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§150.03 Authority of the Unified. Development Code so that it will now repeat the exact
language of the newly enacted §10.18 Authority shown above.
PASSED and APPROVED this 17th day of January, 2012.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
TITLE XV UNIFIED DEVELOPMENT CODE
CHAPTER 150: G.E14ERAL PROVISIONS
150.01 Title (Code 1965,App.C,Art. 1,§C;Ord.No. 1750,7-6-70;Code
This title.shall be known and may be cited as the 1991, §159.03; Ord: No. 3895, §1, 6-20-95; Code 1991,
Unified Development Code,.Code of Fayetteville, and §163.04(A);Ord.No.4100,§2(Ex.A),6-16-98).
may be cited and abbreviated as"UDC." 150.05 Relationship To Previous
(Ord.No.4100,§2(Ex.A),6-16-98) Development Ordinances
The UDC shall be considered a restatement of
150.02 Purpose previously adopted development ordinances and not
The UDC is adopted for the purpose of implementing a new enactment unless otherwise specifically
the Comprehensive Land Use Plan and any other provided. Any situation which was considered
plans or policies adopted or amended by the City nonconforming under the ordinances previously in
Council, in a manner that furthers the health, safety force does not achieve lawful, conforming status
and general welfare of the people of the community under this chapter merely by the repeal of the
and to provide uniform standards for the development previous ordinances to enact the UDC.
of land and the installation of.related improvements.
The UDC sets forth the procedures; requirements, (Ord.No.4100,§2(Ex.A),6-16-98).
and minimum standards intended to promote an
appropriate mix of land uses in,an orderly manner; 150.06 Relationship To Other Provisions
enhance aesthetic quality, moderate street Of The Code Of Fayetteville'
congestion, secure safety from events such as fire, The use of buildings and land shall be subject to all
flood, erosion and landslides; prevent overcrowding of other applicable provisions of the Code of Fayetteville
land; provide adequate light and air, and provide for regardless of cross references within the UDC. Cross
circulation, recreation, and other public services and references to other provisions of the Code of
facilities. The UDC provides for,but is not limited to, Fayetteville are for the convenience of the reader.
development of land uses which protect established Lack of a cross reference shall not be construed as
neighborhoods, and commercial and industrial an indication that other'provisions of the Code of
districts; allows compatible infill of established areas; Fayetteville do not apply.
provides flexibility for mixing of uses to achieve
traditional neighborhood developments; protects -16-98)(Ord:No.4100,§2(Ex.A),6
significant environmental resources; and makes a
livable community. 150.07 Conflicts
(Code 1965,App.C.Art. 1,§A;Ord.No. 1750,7-6-70;Code (A) UDC/other code requirements. The provisions of
1991, §158.02; Code 1965, §1713-14 Ord. No., 1893, 12-19- the UDC shall be held to be minimum
72; Code 1991, §160.001; Code 1965,App. A,Arta 13; Ord requirements. Where requirements of the UDC
No. 1747, 6-29-70; Code 1991, §150,02; Code 1965,§1715'
14; Ord. No. 1893, 12-19-72; Ord. No. 4100, §2 (Ex. A), 6- are at a variance with other requirements within
16-98;Ord.No.4919,9-05-06) the Code of Fayetteville, the highest or most
restrictive requirements'shall apply.
150.03 Authority
The provisions contained in the UDC are adopted (B) UDCIUDC. Where a conflict arises between one
pursuant to the authority conferred on the city by the section of the UDC and another section of the
General Assembly of the State of Arkansas, A.C.A. UDC;the most stringent section shall apply.
§14-54-103, General Powers of Cities.and Towns;
A.C.A. §14-54-104; Additional Powers of Cities of the (C) UDCIComprehensive Land Use Plan. The
First Class;and A.C.A.Title 14, Chapter 56, Municipal regulations contained herein are adopted giving
Building and Zoning Regulations--Planning; as due consideration to the Comprehensive Land
amended. Use Plan. Thus, the requirements of the UDC
shall take precedence over the policies of the
(Code 1965,App.C,Art. 1,§B;Ord. No. 1750,7-6-70;Code Comprehensive Land Use Plan. Any conflict
1991,§159.02;Ord.No.4100,§2(Ex.A),6-1648) therewith should not be considered basis for
challenger
150.04 Jurisdiction
The city's planning jurisdiction is the area within the _(D) UDC/private agreements. The UDC is not
corporate boundaries as well as the area described in intended to abrogate any private agreements,
the planning area boundary description as filed with deed restrictions,covenants, easements, or other
the City Clerk and Washington County Circuit Clerk's private agreements on the use of land. Where
office. Such planning area bountlary description may the UDC is more restrictive or imposes higher
be modified from`time to time in accordance with standards than the private agreement, the UDC
A.C.A. §14-56-41;3. shall control;' Where the provisions of a private
CD,150:3
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BENTON COUNTY DAILY RECORD
212 NORTH EAST AVENUE,FAYETTEVILLE,ARKANSAS 72701 1 P.O.BOX 1607,72702 479-442-1700 1 WWW.NWANEWS.COM
AFFIDAVIT OF PUBLICATION FEB 0 6 2012
I, Cathy Wiles, do solemnly swear that I am the Legal Clerk of the CITY OF FAYETTEVILLE
Northwest Arkansas Newspapers, LLC, printed and published in CITY CLERK'S OFFICE
Washington and Benton County, Arkansas, bona fide circulation,
that from my own personal knowledge and reference to the files
of said publication, the advertisement of-
City of Fayetteville �
�' bFtDIN4NCE NO 55477,
Ordinance #5477
AN O,FiDINAJICE TO ENACT INTO THE CODF
OFFLE §10 1,8 AUTHORITY
AMENL03 HORITY IN AUTTHE UNIFIED
Was inserted in the Re ular Editions on: DEVELQp�Er TcoDE 1 r aRxA�sas
g WHEREAS his prpdent to enact'tnto the Code r
January 29 2012 ofFayettevilledncludmlg the Unified Development Code t}he`increased powers granted by"
i the State Legisiature.to ArkansAd,oltles,by it&.gdent<amendrnent-of Ti}le 14,Chaptgr.43„
Subchapter 6.Powers,Over Muncipal Affairs which repealecJ the limitations on municipal= +
authority,within the D(lori's:Rule end
INHERFAS anew codesection should pe enacted m 11t1e;`•1 General: 6f,the
(00 Ile Coed to betteridenpfy the'stetutoryeand const tutorial author ty to support they
Publication Charges: $ 110.25 City Councils power to enact the Fayetteville Code and
g WHEREAS §j80 03 Authority of the Unified Developmppt Code should be arnendgd to-
mote fug cite She constitutional and kk6tory authority to support the City Council's power,
to enact the UnifiedtDevelopment Code df the;Code'of Fayetteville. '
NOW,THEF1kFUftE BE IT ORDAINED BY THE CITY FpUNCIL OF THE CITY OF
FAYETTEVILC ,AnKOsAS
Seefion 1 That the(3ty Gouncil of the City,
of Fayetteville Arkansas hereby enacts§7078;
p Authority of the Code of Fayetteville as shown below
W�-� §1978AuthoNty " t
"The proulsionscontainedtwJtrintne Cede of Fayetteville InclucJing the Unified Development
Code formerJY;currently orhereinafter enacted are based ypon derive authority from and
are enacted pUrsuant2o arty andel d}the£power arid authodtj conferred upon cines by the=
Cathy Wiles Arkansas-Consttution and by the Arkansas General Assembly hrough its tatutes incJud,
m8 abut not Iimfied to ail of Ttle 14
N
Local Government of the kansasCode specifically
ineludlhg-but notlimited t6hSubchapta}6 POVLer�Ver Munfbipa(A`ffidki of Chapt6t,
GoYemment ofi Ci3ies of ,the First Clsgs Chapter 54 Powers of Munic3lalities CtSapter
55'Ordinanan
ces of 1Vlunicipalities ancJ Chapter 56 Building: d Zohijig Regulationa
Chapter 75 M6nicFpsi Sales rind Use Taxes of Tftla 28 T�xatioh;Ttle,3,Aico otic
Beverages and any and,all otherstate statutes
pt-,,constitutional proves{ons that provide
an"y authority to�the Cdy of Fayetteville to enact`a?iilnances cones or regulations witfiin or
Subscribed and sworn to before me referphced by the Code of Fayettewlie;No speciflc reference io authority_nnthm any Eode�
section eXcludes the general autbonty of all state law and this section
This day of �7 , 2012. Section 2 Thaf the CityfGouhcil of the City ofiFayetteville Arkansas hereby amends
§�15b Q3 Autho7lty of tl�e Unified Aeye!qpment Code so that it will no v repeat the exact:
language of the newly enacfed§1018 Ailthority shown above.
PASSED anal"APPROVEDihis•17th=day of January,2012.
APPFiOVED: ATTEST,;4
By.•- By.
LIONELD.JORDAN,Mayor SONDFW�E SMITH;CIty CIerWlYeasurer '.
Notary Public
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