HomeMy WebLinkAbout200-02 RESOLUTIONRESOLUTION NO. 200-02
A RESOLUTION APPROVING AMENDMENTS TO THE BILL OF
ASSURANCE SUBMITTED WITH ORDINANCE NO. 4410,
PASSED AND APPROVED BY THE CITY COUNCIL ON
AUGUST 20, 2002.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of Fayetteville, Arkansas, hereby
approves amendments to the Bill of Assurance, which was submitted with
rezoning Ordinance No. 4410, passed and approved by the City Council on
August 20, 2002. A copy of the Revised Bill of Assurance, marked Exhibit "A" is
attached hereto and made a part hereof
PASSED and APPROVED this 17th day of December, 2002
irt
<,
By:
4
EATHER WOODRUFF, C1 Clerk
APPROVED:
By:
DAN COODY, Ma
NAME OF FILE:
CROSS REFERENCE:
Item #
Date
Resolution No. 200-02
Document
1
12/17/02
Resolution # 200-02
2
12/12/02
Bill of Assurance
3
12/20/02
Staff review form
4
12/26/02
Memo from Heather Woodruff, City Clerk to Tim Conklin,
Planning
NOTES:
• •
REVISED AND SUBSTITUTED BILL OF ASSURANCE
FOR THE CITY OF FAYETTEVILLE
This Revised and Substituted Bill of Assurance is given this l0 day of December,
2002 by Mathias Properties, Inc., hereinafter referred to as "Buyer/Developer" unto the City of
Fayetteville, hereinafter referred to as "City".
WITNESSETH:
WHEREAS, Buyer/Developer has a contract to purchase approximately 21 acres in the City
of Fayetteville, which property is situate in Section 5 and part of Section 8 of Township 16 North,
Range 30 West, Washington County, Arkansas, hereinafter referred to as "Subject Property"; and
WHEREAS, Buyer/Developer's contract to purchase Subject Property is conditioned upon
certain approvals from City; and
WHEREAS, Buyer/Developer did recently request, on behalf of the owners of the Subject
Property, a rezoning of the Subject Property and such property was rezoned to RMF -6 and in
connection therewith, a Bill of Assurance was given to the City relating to the use the Subject
Property, and
WHEREAS, it has now become necessary to modify the original Bill of Assurance dated the
22' day of July, 2002; and
WHEREAS, City has agreed to accept this Revised and Substituted Bill of Assurance and
has or will pass a resolution to accept it.
NOW, THEREFORE, Buyer/Developer covenants with City as follows:
1. Buyer/Developer acknowledges that this Bill of Assurance was offered to assist in the
rezoning of the Subject Property and hereby acknowledges that this Bill of Assurance shall constitute
a binding agreement and contract with City relating to the use of the Subject Property.
2. Buyer/Developer expressly grants to the City the right to enforce any and all terms of this
Bill of Assurance in the Circuit Court of Washington County, and agrees that if Buyer/Developer
or its successors or assigns violate any terms of this Bill of Assurance, City shall have the right to
seek injunctive relief on its behalf and the behalf of the citizens of City. Buyer/Developer
acknowledges that the Fayetteville Planning Commission and the Fayetteville City Council have
reasonably relied upon all of the terms and conditions of this Bill of Assurance in considering
whether to approve Buyer/Developer's rezoning request.
OR!O!NAL
•
•
3. The use of the Subject Property shall be limited to single-family condominiums and patio
homes.
4. The number and type of structures upon the Subject Property are limited to the following:
Five (5) Single Family Units, Ten (10) Condominiums with Four (4) per Condo -Forty (40) Units,
Thirty -Seven (37) Patio Homes with Two (2) each -Seventy -Four (74) Units, Seven (7) Units on Two
(2) Lots along Deane Street. The total number of Units shall be One Hundred Twenty -Six (126).
As used herein, "Unit" shall mean a single family dwelling.
5. The Buyer/Developer agrees to install 2"DBII Loblolly pine trees space at 30'O.C. along
the south boundary line. In addition, a privacy fence will be installed along this same south property
line.
6. Condominiums units will have two (2) bedrooms each with a one -car garage. Each patio
home will have two (2) or three (3) bedrooms with a two -car garage.
7. The Buyer/Developer agrees to install a view obscuring hedge along the back of the other
properties along Sang Avenue.
8. The quality of construction shall be established and enforced by covenants.
9. Buyer/Developer acknowledges that occupants of the Units must abide by City ordinances
relating to the occupancy of any one Unit.
10. Greenspace will be set aside for City Park or use by occupants of this project.
11. Buyer/Developer specifically agrees that all such restrictions and terms shall run with
the land and bind all future owners unless and until specifically released by Resolution of the
Fayetteville City Council. This Bill of Assurance shall be filed for record in the Washington County
Clerk's Office and shall be noted on the Final Plat, which includes all of Buyer/Developer's Subject
Property.
12. This Revised and Substituted Bill of Assurance is offered as a complete revision of the
Bill of Assurance dated July 22, 2002 and it is intended to be substituted therefor.
13. Nothing contained herein shall preclude Buyer/Developer from filing, as part of its final
plat process, restrictive covenants relating to the use of the Subject Property; provided, however,
nothing contained in any other restrictive covenants shall release Buyer/Developer from any
obligations hereunder to the City.
•
• •
IN WITNESS WHEREOF, and in agreement with all the terms and conditions stated above,
Buyer/Developer voluntarily offers such assurances.
MATHIAS PROPERTIES, INC.
BY:
ACKNOWLEDGMENT
STATE OF ARKANSAS
)ss.
COUNTY OF WASHINGTON
On this / 2 fh day of December, 2002, before the undersigned, a Notary Public, duly
commissioned, qu�,l1fied an acting within and for the County and State, appeared in person the
within named amix j'.FS to me personally known, who stated that he was the
of Mathias Properties, Inc., a corporation, and was duly authorized in such
capacity to execute the foregoing instrument for and in the name and behalf of said corporation, and
further stated and acknowledged that he had so signed, executed and delivered said instrument for
the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of December, 2002.
My Commission Expires:
1 , a-ocx ,
_142.1
Notary Publ
w LL)ik
•
• •
REVISED AND SUBSTITUTED BILL OF ASSURANCE
FOR THE CITY OF FAYETTEVILLE
Hi
This Revised and Substituted Bill of Assurance is given this lA day of December,
2002 by Mathias Properties, Inc., hereinafter referred to as 'Buyer/Developer" unto the City of
Fayetteville, hereinafter referred to as "City".
WITNESSETH:
WHEREAS, Buyer/Developer has a contract to purchase approximately 21 acres in the City
of Fayetteville, which property is situate in Section 5 and part of Section 8 of Township 16 North,
Range 30 West, Washington County, Arkansas, hereinafter referred to as "Subject Property"; and
WHEREAS, Buyer/Developer's contract to purchase Subject Property is conditioned upon
certain approvals from City; and
WHEREAS, Buyer/Developer did recently request, on behalf of the owners of the Subject
Property, a rezoning of the Subject Property and such property was rezoned to RMF -6 and in
connection therewith, a Bill of Assurance was given to the City relating to the use the Subject
Property; and
WHEREAS, it has now become necessary to modify the original Bill of Assurance dated the
22"" day of July, 2002; and
WHEREAS, City has agreed to accept this Revised and Substituted Bill of Assurance and
has or will pass a resolution to accept it.
NOW, THEREFORE, Buyer/Developer covenants with City as follows:
1. Buyer/Developer acknowledges that this Bill of Assurance was offered to assist in the
rezoning ofthe Subject Property and hereby acknowledges that this Bill of Assurance shall constitute
a binding agreement and contract with City relating to the use of the Subject Property.
2. Buyer/Developer expressly grants to the City the right to enforce any and all terms of this
Bill of Assurance in the Circuit Court of Washington County, and agrees that if Buyer/Developer
or its successors or assigns violate any terms of this Bill of Assurance, City shall have the right to
seek injunctive relief on its behalf and the behalf of the citizens of City. Buyer/Developer
acknowledges that the Fayetteville Planning Commission and the Fayetteville City Council have
reasonably relied upon all of the terms and conditions of this Bill of Assurance in considering
whether to approve Buyer/Developer's rezoning request.
1
•
• •
3. The use of the Subject Property shall be limited to single-family condominiums and patio
homes.
4. The number and type of structures upon the Subject Property are limited to the following:
Five (5) Single Family Units, Ten (10) Condominiums with Four (4) per Condo -Forty (40) Units,
Thirty -Seven (37) Patio Homes with Two (2) each -Seventy -Four (74) Units, Seven (7) Units on Two
(2) Lots along Deane Street. The total number of Units shall be One Hundred Twenty -Six (126).
As used herein, "Unit" shall mean a single family dwelling.
5. The Buyer/Developer agrees to install 2"DBII Loblolly pine trees space at 30'O.C. along
the south boundary line In addition, a privacy fence will be installed along this same south property
line.
6. Condominiums units will have two (2) bedrooms each with a one -car garage Each patio
home will have two (2) or three (3) bedrooms with a two -car garage.
7. The Buyer/Developer agrees to install a view obscuring hedge along the back of the other
properties along Sang Avenue.
8. The quality of construction shall be established and enforced by covenants.
9. Buyer/Developer acknowledges that occupants of the Units must abide by City ordinances
relating to the occupancy of any one Unit.
10. Greenspace will be set aside for City Park or use by occupants of this project.
11. Buyer/Developer specifically agrees that all such restrictions and terms shall run with
the land and bind all future owners unless and until specifically released by Resolution of the
Fayetteville City Council. This Bill of Assurance shall be filed for record in the Washington County
Clerk's Office and shall be noted on the Final Plat, which includes all of Buyer/Developer's Subject
Property.
12. This Revised and Substituted Bill ofAssurance .is offered as a complete revision of the
Bill of Assurance dated July 22, 2002 and it is intended to be substituted therefor.
13. Nothing contained herein shall preclude Buyer/Developer from filing, as part of its final
plat process, restrictive covenants relating to the use of the Subject Property; provided, however,
nothing contained in any other restrictive covenants shall release Buyer/Developer from any
obligations hereunder to the City.
•
•
IN WITNESS WHEREOF, and in agreement with all the terms and conditions stated above,
Buyer/Developer voluntarily offers such assurances.
STATE OF ARKANSAS
COUNTY OF WASHINGTON
MATHIAS PROPERTIES, INC.
BY:
ACKNOWLEDGMENT
)ss.
On this / 2.. th day of December, 2002, before the undersigned, a Notary Public, duly
commissioned, qu fied an acting within and for the County and State, appeared in person the
within named amp/ iii -PS to me personally known, who stated that he was the
of Mathias Properties, Inc., a corporation, and was duly authorized in such
capacity to execute the foregoing instrument for and in the name and behalf of said corporation, and
further stated and acknowledged that he had so signed, executed and delivered said instrument for
the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this /a
day of December, 2002.
My Commission Expires.
fith
Notary Publ
--
SAlk
1
• •
STAFF REVIEW FORM
x Agenda Request
Contract Review
Grant Review
For the Fayetteville City Council meeting of December 17, 2002.
FROM:
Tim Conklin, City Planner
Name
Division Department
ACTION REQUESTED: To approvCADM%t2-37.00 to consider amending the Bil of
Assurance associated with ,RZN. 02-17.00 (Mathias/Barnes) for property
located south of Deane Street, west of Sang Avenue and east of Porter
Road. The amendment would alter the number of single-family homes,
duplexes, and four plexes allowed in the proposed Skyler Place
Subdivision.
COST TO CITY:
s0
Cost of this request Category/Project Budget Category/Project Name
Account Number
Project Number
Funds used to date Program Name
Remaining balance Fund
BUDGET REVIEW:
Budget Coordinator
Budgeted Item Budget Adjustment Attached
Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW: GRANTING AGENCY:
3g4V-2°a
at ADA Coordinator Date
Lty Fjtorney /D -D t Internal Auditor Date
Purchasing Officer
Date
STAFF RECOMMENDATION: Staff recommended consideration by the City
Council of an amended Bill of Assurance and on November 25, 2002
the Planning Commission voted 9-0-0 to forward the request to the
City Council with no recommendation.
6ivision
Head
Department Director
Date
Date
Admip. strat've Services Date
Di(4r
Mayor{ ( S
Cross Reference
New Item: Yes No
Prev Ord/Res#:
Orig Contract Date:
RESOLUTION NO.
A RESOLUTION APPROVING AMENDMENTS TO THE BILL OF
ASSURANCE SUBMTI T1:D WITH ORDINANCE NO. 4410,
PASSED AND APPROVED BY THE C:11Y COUNCIL ON
AUGUST 20, 2002..
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of Fayetteville, Arkansas, hereby
approves amendments to the Bill of Assurance, which was submitted with
rezoning Ordinance No. 4410, passed and approved by the City Council on
August 20, 2002. 'A copy of the Revised Bill of Assurance, marked Exhibit "A" is
attached hereto and made a part hereof.
PASSED and APPROVED this 3rd day of December, 2002.
ATTEST:
B
• •
FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
PLANNING DIVISION CORRESPONDENCE
TO: Fayetteville Planning Commission
FROM: Sara Edwards, Associate Planner
THRU: Tim Conkhn, A.I.C.P., City Planner
DATE- November 21, 2002
PC Meeting of Nov. 25, 2002
113 W. Mountain St.
Fayetteville, AR 72701
Telephone: (479) 575-8264
ADM 02-37.00: Administrative Item: An administrative item to consider amending the Bill of
Assurance associated with RZN 02-17 (MathiasBames) for property located south, of Deane
Street, west of Sang Avenue and east of Porter Road. The amendment would alter the number of
single-family homes, duplexes, and four-plexes allowed in the proposed Skyler Place
Subdivision
RECOMMENDATION:
Staff recommends the Planning Commission forward this item to the City Council with a
recommendation.
PLANNING COMMISSION ACTION: Required YES
0 Approved 0 Denied
Date: November 25, 2002
CITY COUNCIL ACTION: Required YES
0 Approved
Date: December 17, 2002
0 Denied
Comments:
BACKGROUND:
This property was rezoned on August 20, 2002 from R-1 to RMF -6. A Bill of Assurance
G:IPL.4NNINGIREPORJSIPCREPOR7S20021NOVEMBER111-151ADM02-37 SKYLER.DOC
• •
was offered as part of the proposed rezoning. The Bill of Assurance outlined the exact
number of units that would be allowed on the site as well as the number of single-family
homes, duplexes, and four -unit condominiums and the locations of each. Due to an
unanticipated amount of area needed for detention four duplex lots were lost based upon
what was proposed onginally with the rezoning. In order to make up for the lost lots and
dwelling units the developer has proposed the following changes:
Change the use of lots 1 and 10 from Single -Family Residential to 4 unit condominium.
Change the maximum number of units allowed on lots 56 and 57 from five to seven.
NOTIFICATION:
All adjacent property owners were notified of the large scale development by the
developer and by the Planning Commission.
The large scale development notice was published in the paper.
•
The developer notified property owners directly affected by the change in the Bill of
Assurance.
The Planning Division notified property owners directly affected by the change.
The Asbell Neighborhood Association President notified all members with email
addresses via email of the proposed changes.
Staff notified the Asbell Neighborhood Association via email of the proposal and the
meeting dates.
CONDITIONS:
1. The revised Bill of Assurance offered by the owner shall be amended to
include the addition of hedges along lots 1 and 10 adjacent to Porter and Sang.
G:IPLANNINGIREPOR7SIPCREPORJS2002WOVEMBERIJI.251ADM02-37 SKYLERDOC
Planning Commission
November 25, 2002
Page 8
• •
ADM 02-37.00: Administrative Item: An administrative item to consider amending the Bill of
Assurance associated with RZN 02-17 (Mathias/Barnes) for property located south of Deane
Street, west of Sang Avenue and east of Porter Road. The amendment would alter the number of
single-family homes, duplexes, and four-plexes allowed in the proposed Skyler Place Subdivision.
Aviles: Item four on our agenda is an administrative item, this is a companion item with
number five, which is a Preliminary Plat. We will hear both items separately.
ADM 02-37.00 is an item to consider amending the Bill of Assurance associated
with RZN 02-17.00 for property located south of Deane Street, west of Sang
Avenue, and east of Porter Road. The amendment would alter the number of
single-family homes, duplexes, and four plexes allowed in the Skyler Place
subdivision. Sara, would you give us the staff report for this please?
Edwards: Yes. As part of the rezoning, the applicant, on the Bill of Assurance, listed the
types and numbers of units to be constructed. As requested at agenda session, we
did get you the original staff report with the proposed plan at the time of rezoning.
When this development came for Preliminary Plat approval we discovered that a
larger area was going to be needed for detention than they originally planned on
which basically caused a four lot reduction. In an effort to recover those units, they
are requesting that the Bill of Assurance be revised. That is to change lots one and
ten from single-family residential to a four plex and lots 56 and 57 from five units
to seven units. Because the Planning Commission originally considered this Bill of
Assurance in a recommendation of the rezoning, we wanted to give you a chance to
make a recommendation with regard to the change. Also, since agenda session I
have distributed emails from the neighborhood association regarding their feelings
on that requested change and you should've got a memo from the City Attorney as
well.
Aviles: Thank you very much. Is the applicant present?
Jorgensen: My name is Dave Jorgensen and I am here on behalf of the owner/developer,
Bleaux Barnes and Sam Mathias on this project. I am here to try to answer
questions and explain the reason for the revised Bill of Assurance. I think Sara did
a pretty good job on that basically but we are here to try to answer questions.
Aviles: Do you have anything to add at this point or should we take public comment first?
Jorgensen: No I don't.
Aviles: Ok, thanks Dave. Is there any member of the audience that would like to address us
on this matter?
Maynard: My name is Richard Maynard, I am president of the Asbell Neighborhood
Association. I understand that this is kind of an unusual situation with you
amending the bill. Mr. Barnes and Mr. Mathias met with us, as you know, last May
Planning Commission
November 25, 2002
Page 9
• •
to talk about this project. In the past it was a pretty contentious piece of property. I
do want to remind the Commission that at that time these six houses were not part
of the discussion. They were not even offered as part of that. Those got added on
later as they got more into their development and realized they had these lots
vacant: I think it was Mr. Conklin that suggested that they put single-family units
there. We certainly would not object to that, it sounded like a good idea. As Ms.
Edwards explained, because of the detention pond they had to lose these units. Mr.
Jorgensen called me and asked me what I thought of this and what I thought the
neighborhood would think of it and I said I don't really see a big problem here
because what we agreed to was really density, the type of duplexes, what we agreed
to at that May 23`d meeting were just duplexes and the condos by themselves. This
was kind of added as a bonus. I think it is unfortunate that it had to change but one
or two houses taken away is not going to make a big deal to us I suppose I could
stand up here and say "Sony folks, you agreed to those six houses on that Bill of
Assurance." Personally though, I think it would be a real big breach of trust on us
as an association and as a neighborhood to hold them to that because they have
dealt with us with nothing but good faith and we want to do the same. Had this
been in the original agreement that we made on May 231'11 think it might be a little
trickier. If that would have been a selling point of yes we will give up our last big
area of R-1 zoning, we do regard it certainly as ours, if that was a big selling point,
then it might be kind of tough, but again, it wasn't. It was something that was
added on later to try to improve upon this development. I don't know a lot about
development but I am learning and I know you can only plan so far and so well and
cover all your basis. I think this is something that was unforeseen. When I read in
the paper on Friday that we might have to start all over from scratch it really kind of
worried me. I do want to tell you from a neighborhood point of view, we have one
other neighborhood member here and I would like him to weigh in on this too. We
have a real investment in this thing going through We want it to go through right
absolutely. You all know that land has been out there and it has been sitting out
there for three years. I think if you ask anybody in the neighborhood probably
100% of them, including me, if you ask them what you would rather have out there
they would probably say nothing, leave it alone but we know that is not an option
and is R-1 an option? I don't think so because nobody has made an offer on that in
three years. I would think that after what happened three years ago somebody
would have at least tested the waters. We are looking at a big area in the middle of
our neighborhood that we know is going to get filled in. Opposed to what happened
three years ago, at least here if their marketing plan works, we have a better than
even chance for a lot of home ownership. We feel that this is the best development
for that neighborhood that we are going to get. I can't say that for sure. I know we
have already discussed that but I am only saying this in that I hope that you will
approve this because we don't want to start from scratch or have to start all over
with somebody else on something that maybe will be better, whatever that means,
but it could certainly be a lot worse. In short, we have no problem with this change
for the reason I said at the very beginning. The houses were not part of the mix
when they first approached us about this. It was something added on and now they
Planning Commission
November 25, 2002
Page 10
Aviles:
Scarbrough:
Aviles:
Whitaker:
• •
have had to take a couple of them away. I think she said that she gave you the
emails. They originally asked if we wanted to have a meeting on this and I said no,
out of respect for the neighbors time I am not going to do that. I don't know if you
have copies of all of the emails, I think I sent you everything that I have. I have
them here, of the people that responded, and I only went by households by the way.
There were sixteen that said that they have no problem with this, only two objected
and the Asbell Neighborhood Association board was eight to zero in favor of these
changes. If somebody said "I have no problem." I didn't write them back and say
"How did your spouse feel?" if they said it was aye it was one vote. Unless you
have any questions I guess that is all I have to say.
Thank you very much Mr. Maynard. Is there any other member of the audience
that would like to address us?
My name is Dale Scarbrough and I am with Richard here. I think that they have
dealt with us in good faith and I don't think that changing because they need a
larger detention pond is a problem. I understand the economics of the situation,
trying to recover those units so I don't see a problem with it. In the sense that the
way they are marketing these units is to own them, not to rent them. I think for me
that is an important point. If it was rental property I would have a problem maybe
with that but so far they have done a good job and I agree with the change. I don't
think it is a problem.
Ok, thank you very much. Is there anyone else that would like to speak on this?
Seeing no one, I will go ahead and bring discussion back to the applicant and to the
Commission. Before we get started on that we do have a memo from our City
Attorney's office and I wonder David, if you would give us a short synopsis of that
please.
Just very briefly, what I was asked at the Thursday meeting to look at was whether
the change in the language of the Bill of Assurance would require that the applicant
return to square one as it were in the entire request for rezoning process or in short
what was the affect of that change on this process. The memo briefly goes through
the statute regarding rezoning and some of the language from that. I guess the jest
of it is that the Bill of Assurance has more of a characteristic of say a contract or
agreement that the City Council has approved. The rezoning itself does not change
no matter what as far as the facts here. The language has significantly changed
after reading through it and comparing the two documents, they are a significant
change from each other in several areas that I have outlined in the memo. What
that is going to require is that the City Council by resolution approve a contract
amendment is basically what it procedurally will look most like. It will simply be
an item where the Council will consider and by simple majority vote may approve
the changes to the language of the Bill of Assurance. The good news for the
applicant is that there is no need to seek rezoning. Obviously, the RMF -6 I believe
it is, is still going to be RMF -6 no matter what happens as far as that subsidiary
Planning Commission
November 25, 2002
Page 11
Aviles:
Whitaker:
Aviles:
Whitaker:
Aviles:
Jorgensen:
• •
question is concerned. Yes or no that remains the zoning. All I really need is to get
the Council's approval on that. After some discussion with the folks in Planning it
looks as though there certainly would be no problem with a conditional approval, if
you chose to, of the Preliminary Plat forwarding the admin item onto Council for
their consideration. The final step would be just getting the underlying approval for
the Bill of Assurance from the Council.
I have a question about one other thing in your memo. I think you recommended
some rewording of that.
I would like to see the second one have some of the stuff that the first one had in it
and I think that is a stylistic thing but I think in the end it has a lot of import for
property owners ten years out who pull it and don't really need to know about the
detention pond but they really do need phrases like "reasonably relied upon" a
reference to the township and range description of the property, things like that. I
think that is a format thing that we can work on and it is not a big deal. There was
one thing in item number four where suddenly in the new version there is specific
talk about the garages, single and two car garages. While I am certainly not going
to comment on the wisdom one way or the other of the language being in there it
wasn't in the original one so therefore, that lead to our conclusion that the
document had changed considerably from the first one. Specifically, the
introductory paragraphs, if that earlier language could be reinstated and we could
drop out any of the justification for the change. That is more appropriate in a memo
describing why the Bill of Assurance needs to be changed, not on the Bill of
Assurance itself'.
You would have time to work with the applicant regarding the redrafting of that
before it would go to Council?
Absolutely. The earliest thing at the Council at this point is the 17t. The 3`a is
already overbooked to the extreme. I think anybody that takes a look at the
December 3`d City Council agenda would agree that it probably is one of the longest
ever seen.
Thank you very much. Dave, do you want to respond?
I don't know that I have got a lot to add to this whole deal other than what was
already mentioned. The bottom line net result is this is exactly the same amount of
units that we originally had on the Bill of Assurance. The other thing is the fact that
we offered this Bill of Assurance in good faith and I guess maybe we got too
detailed in all the various things and maybe we should've just said 126 units, RMF -
6 and some of the very basics but it just so happened that we even actually spelled
out the amount of single-family units and four plexes and duplexes and on and then
we get into the situation about the detention pond. At any rate, we feel like we can
work out the verbiage with the city on it and move along, we are hoping anyway.
Planning Commission
November 25, 2002
Page 12
Aviles: Ok, thank you very much.
Estes: Because a Bill of Assurance may not be a condition preceding to granting a
rezoning at agenda I asked our City Attorney to opine whether it was permissible
that we hear this administrative item. He has done so and he has summarized his
opinion for us in a memo In that memo citing applicable statute and case law he
concludes that the new document must be reconsidered by the City Council before
the Planning process may proceed. It is for that reason that I would move that we
forward ADM 02-37.00 to the City Council without recommendation for it's
consideration.
Aviles: Thank you Commissioner Estes. Do I have a second?
Bunch: Second.
Aviles: There is a second by Commissioner Bunch. I think that this when looked at in
conjunction with the upcoming Preliminary Plat which I will be recommending that
we approve subject to Council's approval of this administrative item, I think that
this is the proper procedure to take so I will be voting for the motion. Is there any
additional discussion? Renee, would you call the roll please?
Roll Call: Upon the completion of roll call the motion to forward ADM 02-37.00 to the City
Council with no recommendation was approved by a vote of 9-0-0.
Aviles: The motion carries unanimously.
NOV-14-2002 02:51P FROM:
• •
T411151. P:2/2
ORGENSEN & ASSOCIATES
CIVIL ENGINEERS • SURVEYORS
124 WEST SUNBItIUCE, SUITE 5 • FAYETTEVILLE, ARKANSAS 72703 • (479) 442-9127 • PAX (479) 582 4807
DAVID L. JORGENSEN, P.6., P.L.S.
CHRISTOPHER B. BRACKETT, P.E.
11/14/02
City of Fayetteville
113 W. Mountain
Fayeneville, AR 72701
Att: Planning
Re.: Skyler Place Additiun
As you know, we recently received approval fur Ilia rezoning ufproperty between Porter Rd,
Sang Street and sQnrh of Deane Street, which is a project called Skyler Place Addition. Along
with the rezoning was a bill of assurance that states the number of units on the lots. The property
was zoned to RMF -6, which allows for 126 units.
I lydraulie calculaliuus have caused the detention pond to he larger than originally expected which
reduced the number of lois and therefore the number of units.
As requested by the Planning Dept, we hereby request that this he placed on the City Council
Agenda for review.
The amount of the allowed units will not, change (126 units). The requested change is as follows:
Lot 1 Condominium (4 units) instead of 1 single tinnily
Lot 10 Condominium (4 units) instead 01'1 single tinnily
Lot 56 4 units instead of 3 units
Lot 57 3 units instead of 2 units
The intended use is summarized as
I.ot 1-10
Lots 11,12,22,23 & 55
Lots 13-21 & 24-51
Lots 52, 53 & 54
Lot 56
Lot 57
follows:
Condominium (4x 10)
Single family
Patio homes (2x37)
Common
a
40 units
5 units
74 units
0 units
4 units
3u
ni ss
126 units
This has btxm presented and reviewed by the president of the Asbell Neighborhood Association
(Richard Maynard) and also to the affected adjacent owners on Porter Rd.
All other items of the Bill of Assurance will be adhered to in full.
Please call conceming any questions you may have.
Thank you.
Sincerely;
David L..lo ensen, P E.
• SfRUCFURAL DFSR N • LAND DEVELOPMENT • WATER SYSTEMS • WASTEWATER SYSTEMS • LAND SURVEYING.
nuv-,tet-Ct C OC:Jlr rKurl:
•
•
TCII15831
P:2'2
JORGENSEN & ASSOCIATES
CIVIL ENGINEERS • SURVEYORS
124 WEST SUNBRIDGE, SUITE 5
City of Fayetteville
113 W. Mountain
Fayeneville, AR 72701
At Planning
Re: Skyler Place Addition
FAYETTEVILLE, ARKANSAS 72703 • (479) 442-9127 • PAX (479) 5824807
DAVID L. JORGENSEN, P.B. P.L.S.
CHRISTOPHER B. BRACKETT, P.B.
11/14/02
As you know, we recently received approval fur the rezoning or property between Porta Rd,
Sang Street and south or Deane Street, which is a project called Skyler Place Addition. Along
with the rezoning was a bill of assurance that states the ntnnber of units on the lots. The properly
was zoned to RMF -6, which allows for 126 units.
I Iydraulic calculalions have caused the detention pond to he larger than nriginally expected which
reduced the number of lots and therefore the number of units.
As requested by the Planning Dept, we hereby request that this he placed nn the City Council
Agenda for review.
The amount of the allowed units will 'not change (126 units). The requested change is as follows:
Lot 1 Condominium (4 units) instead of 1 single family
Lot 10 Condominium (4 units) instead ul'1 single family
Lot 56 4 units instead of 3 units
Lot 57 3 units instead of 2 units
The intended use is summarized as follows:
I.ot 1-10 Condominium (4x10)
Lots 11,12,22,23 & 55 Single family
Lots 13-21 & 24-51 Patio homes (2x37)
Lots 52, 53 & 54 Common
Lot 56
Lot 57
= 40 units
- 5 units
= 74 units
= 0 units
— 4 units
— 3 units
126 units
This has bran presailtxl and reviewed by the president of the Asbell Neighborhood Association
(Richard Maynard) and ulsu to the alTectcd adjacent owners on Porter ltd.
All other items of the Hill of Assurance will be adhered to in full.
Please call conceming any questions you may have.
Thank you.
Sincerely;
David L. Josen, P.E. `^
Planning Commission
November 25, 2002
• STRUCTURAL DESIGN • LAND DEVELOPMENT • WATER SYSTEMS • WASTEWATER SIgt.E 4-471//4Qi/ll4fAIVB hIC. •
Page 4.3
, NOV-22-2002 02:55P FROM:
•
•
TO:575e3o P:3'4
9. Petitioner specifically agrees that all such restrictions and terms shall nm with
the land and bind all future owners unless and until specifically released by
Resolution of the Fayetteville City Council. This Hill of Assurance shall be
filed Ihr record in the Washington County Clerk's Office and shall be noted
on the Final Plot, which includes all of.Petitioner's Property.
1N WITNESS WHEREOF, and in agreement with all the terms and conditions
stated above, as the owner, developer or buyer (Petitioner) voluntarily offer all
such assurances.
Date
Date
Notary Oath
STATE OF ARKANSAS )
COUNTY (W WASHINGTON
And now on this day of—, 2002, appeared before rime, Rleau Barnes
and Sam Mathias, and after being placed upon his oath swore or affirmed that they agreed
with the terms of the Bill Assurance and signed thcir names above.
My Commission Expires:
Notary Public
Planning Commission
November 25, 2002
ADM 02-37 Mathias/Barnes
Page 4.5
JUN -29-2002 02:59' FROM
70:5758316
III •
7. Occupants mutt abide by the City ordinance that no more than 3 unrelated • .
people may occupy any unit
8. Oreenspace will be set aside for City Park or use by occupants of this project.
9. All of the above items as per plat submitted for this rezoning request
fN WITNESS WHEREOF, and in agreement with all the terms and conditions
stated above, as the owner, developer or buyer (Petitioner) voluntarily offer all
such assurances.
nate
STATr OF ARKANSAS
• • COUNTY OF WASHINGTON
And now on this'"' day of ,.2002, appeared before me, Blcau Burnes
and Sam Mathias, and after being pla.ed upon his oath swore or affirmed that they agreed
with the terms of the Bill Assurance and signed their names above.
Notary Oath
02&'^ 6.a.
nate
My Commission Expir;s:
�.%‘\citL'9iPl, yq,
NOTARYgri
¢=
%�4���Y1,1o%Az:
•
P:3'3 '
•
Public
Planning Commission
November 25, 2002
ADM02-37 (Mathis/Barnes)
Page 4.7
JUN -28-2002 02:58P FROM:
•
•11111
T0:57583� P:2/3
BILL OF ASSURANCE
FOR THE CITY OF FAYETTEVILLE
c7Tht buyer/developer of property located between Sang Ave and Poner Rd and Deane
Street more particularly described as approximately 21 Acres in part of section 5 and part
of section 8 of T16N, R. 30W in Washington county Arkansas hereby voluntarily offers
this Bill of Assunutcc and enters into this binding agreement and contract with the City or
Foycttcvtlle, Arkansas. This bill of Assurance is offered to assist in the rezoning of the
above described property.
The petitioner expressly grants to the City nfFayetteville the right to enforce any and all
of the terms of this Bill of Assurance in the Chancery/Circuit Court of Washington
County and agrees that if Petitioner or Petitioner's heirs, assigns, or successors violate
any tens of this Bill of Assurance, substantial irreparable damage justifying injunctive
relief has been done to the citizens and City of Fayetteville, Arkansas. The Petitioner
acknowledges that the Fayetteville Planning commission and the Fayetteville City
council will reasonably rely upon rill of the teens and conditions within this Hill of
Assurance in considering whether to approve Petitioner's rezoning request.
Petitioner hereby voluntarily offers assurances that Petitioner and Petitioner's property
shall be restricted as follows IF Petitioner's rezoning is approved by the Fayetteville City
Council.
The use of Petitioner's property shall he limited to single-family
condominiums & patio homes.
2. Other restrictions including number and type of structures upon the property
arc limited, as follows; 7 single family units, 8 condominiums with four per
condo -32 units, 41 patio homes with 2 each=82 units,Xunits on two lots
along Deane Street. S
3. The petitioner agrees as install 2" D131I Lohlolly pine trees spaced at 30' U.C.
along the south boundary line. In addition, a privacy fence will be installed
along this same south property lure.
4. Condominiums units will have 2 bedrooms each. ,
5. The Petitioner agrees to install a view obscuring hedge along the east
boundary of this project
6. Quality of construction shall be established and enforced by covenants.
. JUN -28-2082 02:55P FROM:
•
TO:5758316
dub
7. Occupants roust abide by the City ordinance that no more than 3 unrelated
people may occupy any unit.
8. Greenspace will be set aside for City l'ark or use by occupants of this project.
9. All of the above items as per plat submitted for this rezoning requesL
•
TN WITNESS WHEREOF, and in agreement with all the terms and conditions
stated above, as rhe owner. developer or buyer (Petitioner) voluntarily offer all
such assurances.
Lys • 11,BA.-0--•
•
6 2 1T- o 2-
Date Date
Notary Oath
STATI? OF ARKANSAS
COUNTY OF WASHINGTON
And now on this day oto', 2002, appeared before me, Bleau Barnes
and Sam Mathias, and after being plai.ed upon his oath swore or affirmed that they agreed
with the terms of the Bill Assurance and signed their names above.
My Commission Expires:
ttttftL'Bri,,4i
i
cpum. Eau 444-
NO-IA13Y =
E! P bi.06 c
%nS71Y1,1�a1.`:
GO�.
utma
P:3'3
• Public
FR
FAYETTEVIeLE
- THE CRY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Planning Commission
LEGAL DEPARTMENT
C.
FROM: David J. Whitaker, Assistant City Attorney D.1 Mb:C.
DATE: November 22, 2002
RE: ADM 02-37.00 Amended Bill of Assurance
You have requested a legal opinion as to whether the Revised Bill of
Assurance proffered by Messrs. Mathias and Barnes can be accepted by the
Planning Commission as is, or whether it requires reconsideration of the
rezoning already approved by the City Council.
As expected, no case law has developed dealing with precisely this
question. We can, however, look to the state statutes governing municipal
zoning for guidance. A.C.A § 14-56423 governs the rezoning process in
Arkansas:
"After adoption of plans, ordinances, and regulations and proper
filing in the offices of city clerk and county recorder, no alteration,
amendment, extension, abridgement, or discontinuance of the
plans, ordinances, or regulations may be made except in
conformance with the procedure prescribed in § 14-56-422, or by a
majority vote of the city council." (Emphasis added.)
Even a cursory examination of the proposed revisions to the Bill of
Assurance reveals that it easily qualifies as an ' alteration" or "amendment" of
the originally approved plan. Not only do the numbers in Restriction #2 change,
but language concerning garages appears at the end of Restriction #4. The
introductory paragraphs no longer contain the required property description or
the appropriate language establishing that the City reasonably relied upon the
Bill of Assurance when first considering the rezoning. For all of these reasons, I
cannot help but conclude, that the new document must be reconsidered by the
City Council before the planning process may proceed.
• •
This does not mean, however, that the applicants must return to "square
one" in the process. The last clause of the above -quoted statute allows such
changes to be approved by a majority vote of the City Council, without the need
to retrace the entire rezoning path. City of Russellville v. Banner Real Estate, 326
Ark. 673, 933 S.W.2d 803 (1996). Indeed, the facts of this situation do not require
amendment of the previously approved ordinance itself.
Mr. Crouch's point that the zoning of the parcel in question will not be
affected by these changes is correct, as far as it goes. But, the central point here is
that the Bill of Assurance, by its own terms, states that "the Planning
[C]ommission and the Fayetteville City [C]ouncil will reasonably rely upon all of
the terms and conditions within this Bill of Assurance in considering whether to
approve the Petitioner's rezoning request." (Emphasis added). There is no
reason to believe that the City Council did not so rely.
All of this leads to the conclusion that the Council must approve these
changes by a majority vote. A resolution will do, inasmuch as only the
underlying agreement is being amended, and not the zoning of the parcel itself.
This process will be greatly expedited if the missing language from the opening
paragraphs is reinserted before the new document is submitted to the City
Council I have attached a draft of the resolution for inclusion in the Agenda
Request.
If you have any questions or concerns regarding this opinion letter, please
contact me at 575-8313.
SS
•
-ebbe WC. Sar rnu•':
0 •
BILL OF ASSURANCE
FOR THF CITY OF FAYETTEVILLE
;The buyer/developer of property located between Sang Ave and Poner Rd and Deane
Street more particularly described as approximately 21 Acres in part of section 5 and part
ot'section 8 of T1 6N, R 30W in Washington county Arkansas hereby voluntarily offers
this Bill of Assurance and enters into this binding agreement and contract with the City of
Fayetteville, Arkansas. This bill of Assurance is offered to assist in the rezoning of the
above described property.
The petitioner expressly grants to the City of Fayetteville the right to enforce any and all
of the terns of this Bill of Assurance in the Chancery/Circuit Court of Washington
County and agrees that if Petitioner or Petitioners heirs, assigns, or successors violate
any term of this Bill of Assurance, substantial irreparable damage justifying injunctive
relief has been done to the citizens and City of Fayetteville, Arkansas. The Petitioner
acknowledges that the Fayetteville Planning commission and the Fayetteville City
council will reasonably rely upon ell of thc terms and conditions within this bill of
Assurance in considering whether to approve Petitioner's rezoning request
Petitioner hereby voluntarily offers assurances that Petitioner and Petitioner's property
shall be restricted as follows IF Petitioner's rezoning is approved by the Fayetteville City
Council.
The use of Petitioner's property shall be limited to single-family
condominiums & patio homes.
2. Other restrictions including number and type of structures upon thc property
are limited, as tbllows; 7 single family units, 8 condominiums with four per
condo -32 units, 41 patio homes with 2 each=82 units, scones un two Tots
along Deane Strut. s
3. The petitioner agrees to install 2" DSII Loblolly pine trees spaced at 30' U.C.
along the south boundary line. In addition, n privacy fence will be installed
along this same south pmperty.hoe.
4. Condominiums units will have 2 bedrooms tech.
5. Thc Petitioner agrees to install a view obscuring hedge along the east
boundary of this project
6. Quality of construction shall he established and enforced by covenants.
Planning Commission
November 25, 2002
ADM02-37 (Mathis/Barnes)
Page 4.6
11:13.,-28 -2002 02 59P FROM:.
Ca)
TO:5758316
al •
7. Occupants must abide by the City ordinance that no more than 1 unrelated
people may nccupy any unit.
S. Orcen+pace will be set aside for City Park or use by occupant of ttus project.
9. All of the above items as per plat submitted for this rezoning request.
IN WITNESS WHEREOF, and in agreement with all the terms and amditioos
stated above, as the owner. developer or buyer (Petitioner) voluntarily ober all
such assurances.
o X71
i-sIT- oL
Date
Nolan Oath
STATE OF ARKANSAS
COUNTY OF WASHINGTON
6 a - eta
Date
Md now on thisaell" day of ,.2002, appeared before me, Bleats Barnes
and Snm Mathias, and after being placed upon his oath swore or affirmed that they agreed
with the terms of the Bill Assurance and signed thein names above.
twin
•
Public
Planning Commission
November 25. 2002
ADM02-37 (Mathis/Barnes)
Page 4.7
IKN-CG-CCRC u7•usr , %..•
• •
REVISED ISED BILL OF ASSURANCE
FOR TIIE CF1'Y OF FAYETTEVILLE
11/20/02
The owner recently received approval for the 'teaming of pmperty between Porter Rd,
Sang Strict and south of Deane Street, which is a property called Skyler Place Addition.
Along with the rezoning was a bill of assurance that states the number of units on the lots.
The property was zoned to RMF -6, which allows for 126 units.
Hydraulic calculations have caused the detention pond to he larger than originally
expected which reduced the number of lois and therefore the numbcr of wins.
As requested by the Planning Dept, we hereby offer the following Revisal Bill of
Assurance. The amount of the allowed units is 126 and this does not change. The only
difference between this revised bill of assurance and the original is the makeup of the
units.
The petitioner expressly grants to the City of Fayetteville the right to enforce any and all.
of the terms of this Bill of Assurance in the Cimint Court of Washington County and
agrees that it' Petitioner or Petitioner's heirs, assigns, or successors violate any term of
this Bill of Assurance, substantial irreparable damage justifying injunctive relief has been
dune to the citizen; and City of Fayetteville, Arkansas.
Petitioner hereby voluntarily offers assurances that Petitioner and Petitioner's property
shall be restricted as follows;
1. lie use of Petitioner's property shall be limited to single-lamily
condominiums & patio hones.
2. Other restrictions intruding number and type of structures upon the property
are limited, as follows; 5 single family units, 10 condominiums with four per
condo a 40 units, 37 patio homes with 2 each — 74 units, 7 units nn two lots
along Deane Street, for a total of 126 units.
3. The petitioneragrees to install 2" D1311 Loblolly pint trees spaced at 30' U.C.
along the south boundary line. In addition, a privacy fence will he installed
along this same south property line.
4. Condominiums units will have 2 bedrooms each with a ono -car garage. F.uch
patio home will have 2 or 3 bedrooms with a two -car garage.
5. The Petitioner agrees to installs view obscuring hedge along the back of the
other pnpenics along Snng Ave.
•
Planning Commission
November 25, 2002
ADM02-37 (Mathis/Barnes)
Page 4.4
NOV-20-2002 04'02P FROM:
iu:rxfao
•
6. Quality of construction shall be established and enforced by covenant:.
7. Occupants must abide by the City ordinance that no more than 3 unrelated
people may occupy any tint.
It. Greenspace will be set aside for City Park or use by ou upants of this project.
9. Petitioner specifically agrees that all such restrictions and terms shall run with
the land and bind all future owners unless and until specifically released by
Resolution of the Fayetteville City Council. 'flus Hill of Assurance shall be
filed for reconl in the Washington County Clerk's Office and shall be noted
on the Filial Plat, which includes all of Petitioner's Property.
IN WITNESS WHEREOF. and in agreement with all the terms and amditions .
stared above, as the owner, developer nr buyer (Petitioner) voluntarily offer all
such assurances.
Date Date
Notary Oath
STATE OF ARKANSAS
COUNTY OF WASHINGTON
And now on this — day of—, 2002, appeared before me, Blcau Bames
and Sam Mathias, and atter being placed upon his oath swore or affirmed that they agreed
with the terms of the Bill Assurance and signed their names above.
My Commission Expires:
Notary Public
Planning Commission
November 25, 2002
ADM02-37 (Mathis/Barnes)
Page 4.5
ORDINANCE NO. 4410
MICROFILMED
AN ORDINANCE REZONING THAT PROPERTY DESCRIBED IN
REZONING Ph 1 n ION RZN 02-17.00 FOR A PARCEL CONTAINING
APPROXIMATELY 21.03 ACRES LOCATED SOUTH OF DEANE STREET,
WEST OF SANG AVENUE, AND EAST OF PORTER AVENUE,
FAYETTEVILLE, ARKANSAS, AS SUBMITTED BY DAVE JORGENSEN
OF JORGENSEN & ASSOCIATES ON BEHALF OF BLEAUX BARNES
AND SAM MATHIAS
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the zone classification of the following described property is
hereby changed as follows:
From R-1, Low Density Residential to RMF -6, Low Density Multi -Family
Residential as shown in Exhibit A attached hereto and made a part hereof.
Section 2. That the official zoning map of the City of Fayetteville, Arkansas, is
hereby amended to reflect the zoning change provided in Section 1 above.
PASSED and APPROVED this the 20th day of August, 2002.
By:
20 2171 391
Sh:6 WV 8-AONlOOl
00338 80i 03113