HomeMy WebLinkAbout137-09 RESOLUTIONRESOLUTION NO. 137-09
A RESOLUTION TO ACCEPT AND APPROVE THE CITY COUNCIL
SEWER COMMITTEE'S DECISION TO BEGIN CONSTRUCTION PLANS
FOR A 500,000 GALLON WATER STORAGE TOWER ON A PORTION
OF LOT 7 OF JOHN SMITH ADDITION
WHEREAS, the City Council Sewer Committee considered the scientific, legal,
practical and location issues to fulfill the City's demonstrated need for additional water
storage in the Mt. Sequoyah Pressure Plane during several lengthy meetings in 2008;
and
WHEREAS, the City Council Sewer Committee on August 21, 2008 unanimously
determined that the most cost effective, efficient, and safest solution is to build an
additional 500,000 gallon water tower on or near Hyland Park Phase II; and
WHEREAS, in response to some suggestions or proposals of some members of
the Hyland Park Homeowners Association, the City Council Sewer Committee asked
City staff to examine the possibilities and propose any other sites near Lot 22 of Hyland
Park Phase II which could be substituted for Lot 22 if the Hyland Park Homeowners
Association or other private entities obtained and dedicated such acceptable site to the
City of Fayetteville; and
WHEREAS, Jim Waselues was able to obtain an Offer and Acceptance
Agreement from Lovers Lane, LLC to sell an appropriate .66 acre lot for the
construction of the water tower for the lot's purchase price of $75,000.00 (which will be
paid by Mr. Jim Waselues, plus a donation of $125,000 of additional cost for the lot from
Lover's Lane, LLC to the City).
WHEREAS, during this Special City Council meeting, the City Council listened
to Fayetteville citizens, engineers, the Fayetteville Fire Chief, the Fayetteville Water and
Wastewater Director and other interested persons discuss the need for additional water
storage, domestic water pressure issues, water necessary for fire fighting capability, fire
insurance rate issues, hydraulic considerations for effectively serving residences on the
two mountains in the Mt. Sequoyah Water Pressure Plane, aesthetic issues, and the
historical record surrounding Hyland Park Phase II, its Final Plat and Lot 22.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the Mt. Sequoyah Water Pressure Plane, which serves not only the
numerous homes on the upper level of Mt. Sequoyah, but also many horns and future
home sites on the mountain upon which Hyland Park and Stone Mountain
developments sit, is in urgent need of expanded water storage not only for adequate
pressure for domestic use, but for fire fighting water.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the most cost effective, efficient and safe location for additional water
storage is on or very near the top of the mountain occupied by Hyland Park Phase II.
Section 3: That the City Council of the City of Fayetteville, Arkansas, upon
acquisition of access from Canterbury at no cost to the City, hereby determines that
since Jim Waselues has offered to purchase any and all City rights by Quit Claim Deed
for Lot 22 for the $75,000.00 cash price of a .66 acre lot to be purchased from Lovers
Lane, LLC for $75,000.00 (plus Lover's Lane's additional donation of $125,000.00), and
since the .66 acre lot which can be obtained by the City at no out of pocket expense is
suitable, functional and less intrusive for the needed water tower, the City should agree
to these proposals, convey Lot 22 by quit claim deed to Mr. and Mrs. Waselues upon the
conveyance of the .66 lot split from Lot 7 of John Smith Addition and Jim Waselues's
payment of the $75,000.00 (less the $1,000.00 earnest money deposit).
PASSED and APPROVED this 16th day of June, 2009.
APPROVED: ATTEST:
B
y:
Lam• 1 ELD J M R ► , , Mayor
By:
#9,
S NDRA E. SMITH, City Clerk/Treasurer
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FAYETTEVILLE;
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David Jurgens
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
6/9/2009
City Council Meeting Date
Agenda Items Only
Water & Wastewater
Division
Action Required:
Utilities
Department
Approval of a resolution to accept and approve the City Council Sewer Committee's decision to begin construction
plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II.
Cost of this request
5400.5700.5314.02
Account Number
04036-1
Project Number
Budgeted Item
EMI
2,189,147
Category / Project Budget
$
139,888
Funds Used to Date
2,049,259
Remaining Balance
Budget Adjustment Attached I
Mt Sequoyah Press Plane Imprvmt
Program Category / Project Name
Water and Wastewater
Program 1 Project Category Name
Water/Sewer
Fund Name
Dep. . ent Dector
Cit ey
Finance and Internal Services Director
O°1
Date
Previous Ordinance or Resolution # 151-04
Original Contract Date: 10/5/2004
Crov.e_ 2?l Original Contract Number:
Date
Date
ate
900
Received in City
Clerk's Office
Received in
Mayor's Office
Comments:
Revised January 15, 2009 �J
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STettefile
CITY COUNCIL AGENDA MEMO
Special City Council Meeting of June 9, 2009
To: Mayor Lioneld Jordan
Fayetteville City Council
Thru: Don Marr
From: David Jurgens, Utilities Director
Fayetteville Sewer Committee
Date: June 2, 2009
Subject: Approval of a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II
RECOMMENDATION
Staff recommends approval a resolution to accept and approve the City Council Sewer Committee's decision to
begin construction plans for a 500,000 gallon water storage tower on lot 22 of Hyland Park Phase II.
BACKGROUND
Lot 22 of the Hyland Park Phase II subdivision was designated as the site for the water storage tank when the
subdivision plat was filed in July 1974, with the following statement on the plat: "Lot 22 has been approved by
the Planning Commission for construction of a water tower and is to become the property of the City of
Fayetteville."
DISCUSSION
At a Sewer Committee meeting on August 15, 2008, the Committee reviewed all viable tank alternatives and
directed staff to proceed with negotiations with the Hyland Park Homeowner's Association regarding a potential
land swap for another suitable property near the site. After information was sent to the HOA in September,
2008, no response was received from the HOA. In response to a letter sent by the City on 15 April, 2009, the
HOA stated their refusal to negotiate or support the City's actions in any way. Negotiations have recently
resumed, but a firm decision is required in order to proceed with tank construction.
Additional detail is included in the enclosed fact sheet.
A full presentation of the issues will be made at the City Council meeting.
BUDGET IMPACT
There is currently $2,049,259 in the impact fee fund and $128,549 in the Water/Sewer fund budgeted for this
project.
Mt Seq Tank CCMemo 9Jun09 2 of 2
•
aieevle
AflKAN 5A5
MAY 29, 2009
CONTACT: David Jurgens, P.E.
Utilities Director
479-575-8330
diurgens(a ci.fayetteville.ar.us
MT. SEQUOYAH PRESSURE PLANE WATER STORAGE FACT SHEET
General
The City of Fayetteville provides water to its customers to meet three basic needs in the
following priority order: domestic water consumption (including commercial and industrial
uses), fire protection, and irrigation. This service requires a combination of water storage tanks,
pump stations, and many miles of pipe.
Elevated water storage tanks, and pump stations to fill them, are required to provide adequate
water flow and pressure to higher elevations of town. These tanks, like the one on Mt. Sequoyah,
ensure consistent pressure and adequate volume to meet all three of the basic water needs. The
majority of our customers receive pressure from the primary pressure plane which contains 27
million gallons of water. Residents on the highest elevations in the City receive water from the
Mt. Sequoyah pressure plane, served by the tank on Skyline Drive, holding 250,000 gallons.
Residents on the higher area east of the City, in the area around Sassafras Road, are served by the
Gulley tank, holding 750,000 gallons of water. These relative elevations are shown below.
1800*
Mount Sequoyah 1815'
7800'
1700'
7700'
Comparison of Water Storage Elevations in Fayetteville
Mt. Sequoyah Pressure Plane Current Condition
In evaluating our system, the City identified a significant shortfall in the higher elevations
including the areas of Mt. Sequoyah, Hillcrest, Rockwood, Applebury, Ridgeway, Hyland Park,
and Canterbury. The entire affected area, shown on the attached map, contains 1,817 water
connections and 162 fire hydrants.
The largest impact of this shortfall is that the entire area has inadequate fire protection, especially
during summer peak water usage periods. The general residential fire protection requirement is
1,500 gallons per minute. At this time, fewer than 5% of the hydrants in this area can meet this
requirement during peak usage. The shortfall also impacts our ability to provide consistent
domestic water pressure and flow during summer peak usage periods. Customers at the highest
elevations have very low pressure and flow during these times.
r
aye eville
ARKANSAS
Mt. Sequoyah Pressure Plane Solution
To correct this shortfall, the City must build a water storage tank which will hold approximately
500,000 gallons to meet regulatory and industry design standards and meet water demand
requirements during hot weather. This tank must be located on a hilltop, as the water pressure in
our system is provided by gravity. The tank elevation is required to be 1815 feet above sea level,
to provide adequate pressure and match the existing elevated water storage tank on Mt.
Sequoyah, which is on this same system. Using ground storage tanks and/or pumps, both
separately and in combination, has been evaluated, and will not meet the requirements due to the
size of the area being served, the volume of water required, and the age of the existing water
piping system.
In July, 2005, McClelland Consulting Engineers developed a Preliminary Engineering Report of
alternatives; costs are shown below. The Arkansas Department of Health identified that our
current water storage of 250,000 gallons is approximately 25% of what is needed, and that
"additional storage needs to be constructed." The ADH letter of April 7, 2008 states "The Mt.
Sequoyah area does not have adequate storage for the water demand in the area and the city
needs to address the situation."
McClelland's report identified four possible locations and cost estimates, shown below and on
the attached map. These estimates are based on March 2008 prices. They do not include a
$450,000 - $660,000 pumping station that has to be installed no matter which alternative is
selected; nor do they include the cost of purchasing land.
Site General Location
Pipe Length
Height Required Cost
1 Hyland Park Phase 2 Platted Tower Lot 22 139' 2,900' $ 1,894,425
2 Skyline Dr. by existing Mt. Sequoyah Tank 101' 12,500' $ 3,845,760
3 South end of Crest Drive off Rockwood Tr. 109' 9,300' $ 3,413,035
4a NW of Hyland Park Phase 2 Tennis Court 143' 3,500' $ 2,126,740
From the water hydraulics/engineering perspective, sites 1 and 4a, on the top of Hyland Park
Hill, provide by far the best physical location as they place the storage closer to both the water
pump stations that fill the tanks and to the areas of greatest use, balancing the system and
providing the most reliable service. They also significantly reduce the amount of piping that
would have to be constructed throughout the entire area. With a tank and pump station on both
of the prominent hilltops in the system, storage is optimized to meet demand. Site 2, with the
new tank being located adjacent to the existing tank on Skyline Drive, is the least desirable
alternative. Close-ups of the approximate locations are shown in the attached aerial photos.
This project also has a significant impact on the City's overall fire protection, or ISO, rating,
which directly impacts homeowners' insurance prices. The City is currently at a 4 rating. By
adding fire stations, upgrading fire equipment, and improving the water system, we believe this
rating can be improved City-wide. Not having this water storage tank project underway would
probably negate the other improvements and keep the City at its current rating or cause the rating
to be degraded, causing insurance rates city-wide to increase.
Attachments: Mt. Sequoyah Pressure Plane Map with Tank Sites
Tank Site Close-up Aerial Photos
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RESOLUTION NO.
A RESOLUTION TO ACCEPT AND APPROVE THE CITY
COUNCIL SEWER COMMITTEE'S DECISION TO BEGIN
CONSTRUCTION PLANS FOR A 500,000 GALLON WATER
STORAGE TOWER ON LOT 22 OF HYLAND PARK PHASE II
WHEREAS, the City Council Sewer Committee considered the scientific, legal,
practical and location issues to fulfill the City's demonstrated need for additional water
storage in the Mt. Sequoyah Pressure Plane during several lengthy meetings in 2008;
and
WHEREAS, the City Council Sewer Committee on August 21, 2008 unanimously
determined that the most cost effective, efficient, and safest solution is to build an
additional 500,000 gallon water tower on or near Hyland Park Phase II; and
WHEREAS, in response to some suggestions or proposals of some members of
the Hyland Park Homeowners Association, the City Council Sewer Committee asked
City staff to examine the possibilities and propose any other sites near Lot 22 of Hyland
Park Phase II which could be substituted for Lot 22 if the Hyland Park Homeowners
Association or other private entities obtained and dedicated such acceptable site to the
City of Fayetteville; and
WHEREAS, over eight months have elapsed since two alternate sites were made
known to the Hyland Park Homeowners Association which responded to Mayor
Jordan's "reminder" letter of April 15, 2009, about the "potential exchange
arrangement" with a clear refusal for any cooperation as the "unanimous position of
this Association"; and
WHEREAS, during this Special City Council meeting, the City Council listened
to Fayetteville citizens, engineers, the Fayetteville Fire Chief, the Fayetteville Water and
Wastewater Director and other interested persons discuss the need for additional water
storage, domestic water pressure issues, water necessary for fire fighting capability, fire
insurance rate issues, hydraulic considerations for effectively serving residences on the
two mountains in the Mt. Sequoyah Water Pressure Plane, aesthetic issues, and the
historical record surrounding Hyland Park Phase II, its Final Plat and Lot 22.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the Mt. Sequoyah Water Pressure Plane, which serves not only the
numerous homes on the upper level of Mt. Sequoyah, but also many homes and future
home sites on the mountain upon which Hyland Park and Stone Mountain
developments sit, is in urgent need of expanded water storage not only for adequate
pressure for domestic use, but for fire fighting water.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
agrees with, accepts and reaffirms the well reasoned decision of the City Council Sewer
Committee that the most cost effective, efficient and safe location for additional water
storage is on or very near the top of the mountain occupied by Hyland Park Phase II.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby
determines that since the Hyland Park Homeowners Association has refused and failed
to propose or convey any other scientifically and financially sound alternative to Lot 22
of Hyland Park Phase II, City staff should proceed with construction plans for a 500,000
gallon water storage tower on Lot 22 which Note 3 of the Final Plat of Hyland Park,
Phase 2 identified as: "3. Lot 22 has been approved by the Planning Commission for
construction of a water tower and is to become the property of the City of Fayetteville."
PASSED and APPROVED this 9th day of June, 2009.
APPROVED: ATTEST:
13y: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
LEGAL DEPARTMENT
TO: Dan Coody, Mayor
City Council
David Jurgens, Water & Wastewater Director,
FROM: Kit Williams, City Attorney
DATE: July 29, 2008
RE: Water tank site at Hyland Park
I. History of the Dedication to the City of the Water Tank Site
The Preliminary Plat for Phase II of the Hyland Park Subdivision was
reviewed on March 28, 1974 before the Plat Review Commission of the
Fayetteville Planning Commission. Jim Lindsey presented the plat which had been
substantially revised from an earlier submission. City employee `Bobbie Jones
said the site for water facilities should be shown some way. I would suggest
giving it a lot number with a note on the plat that that Lot has been approved by the
Planning Commission as a site for a water storage tank or however it is to be
used." ((Page 2 of the Minutes of Plat Review Committee of May 16, 1974.)
On May 16, 1974, the Plat Review Committee again considered Hyland
Park, Phase 2. City Engineer Paul Mattke noted:
"I..,ot 22 will be a water storage site and will be deeded to
the City. It will not be a utility easement; it will be
public property. The note referenced to it should be
changed to say that it is to become the property of the City
of Fayetteville, then sketch in whatever easements the utility
companies need.
"Make the note similar to the one used on Rosewood Estates.
(That Plat hada note which read, 'Lot has been approved
by the Planning Commission for construction of a water pump
station.'") (Page 6 of the Minutes of Plat Review Committee of
May 16, 1974.)
On May 28, 1974, the Planning Commission reviewed the proposed Final
Plat of Hyland Park, Phase 2, Block 5 with President of Hyland Park, Inc., Jim
Lindsey present and representing the developers. The Planning Commission
unanimously approved the Final Plat by passing Resolution PC 23-74. Section 2
of that Resolution states:
"That the City of Fayetteville, Arkansas accept the final
plat along with the land dedicated for streets and other public
uses in the. Hyland Park subdivision described as follows ...."
On June 4, 1974, the Fayetteville Board of Directors approved the Hyland
Park Subdivision, Phase II, Block 5 and passed Ordinance No. 2015 which stated:
"That the City of Fayetteville, Arkansas, hereby accepts and
confirms the final plat of Hyland Park Subdivision, Phase II,
Block 5, hereby accepts and confirms the dedication of the
streets and utility easements shown therein and hereby
declares said street and utility easements to be public streets
and utility easements and the Board of Directors hereby
assumes the care, control and jurisdiction of same."
On July 19, 1974, Nita Lindsey as Secretary for Hyland Park, Inc. signed a
corporate resolution as shown on the Final Plat of Hyland Park, Phase 2, Block 5:
"Resolution Resolved that Nita Lindsey, Secretary of Hyland
Park, Inc. is hereby authorized to execute the certificate of
Ownership and dedication as shown on this Final Plat."
Also on the recorded Final Plat is:
"Certificate of Ownership and Dedications: We hereby
certify that we are the owners of the property shown and
described herein and that we do hereby dedicate all streets,
alleys, easements, parks and other open spaces to public or
private use as noted."
2
Both Jim and Nita Lindsey signed this Certificate of Ownership and
Dedication on July 19, 1974.
"Notes:.. .
3. Lot 22 has been approved by the Planning
Commission for construction of a water tower
and is to become the property of the City of
Fayetteville."
The Final Plat also shows the:
"Certificate of Acceptance and Dedication: The dedications as
shown on this subdivision are hereby accepted by the Fayetteville
City Board of Directors on June 4, 1974."
This was signed by Mayor Russell Purdy and attested to by City Clerk
Darlene Westbrook on July 25, 1974. Thereafter, this Final Plat was filed for
record at the Washington County Court House.
IL Analysis and Arguments of Hyland Park Residents
Hyland Park resident and outstanding attorney Connie Clark wrote a
Memorandum arguing that the City of Fayetteville does not own Lot 22 (the water
tank site) or has abandoned any rights it might have had to lot 22. She further
asserts that "If the City of Fayetteville Condemns Lot 22, It Will Subject Itself To
A Claim For Inverse Condemnation." I will endeavor to respond to her assertions
beginning with the most vital issue of ownership of the water tank site (Lot 22).
A. Does the City own Lot 22?
Ms. Clark notes that A.C.A. § 14-301-102 states:
"No street or alley which shall be dedicated to public use
by the proprietor of ground in the city shall be deemed a
public street or alley, or to be under control of the city
council, unless the dedication shall be accepted and
confirmed by an ordinance specially passed for that purpose."
3
Every year or so, our Planning Department compiles a list of dedicated
streets and alleys which we then submit to the City Council for acceptance of the
dedication of such streets by ordinance. I do not believe we have passed any such
ordinance for easements, water or sewer mains, dedicated park land or other
dedicated public space for the last couple of decades. I do not intend to
recommend any such ordinance since I do not believe A.C.A. §14-301-102 applies
to any dedications except for streets and alleys. This statute was apparently
enacted by the Legislature (in 1875) to protect cities .from having maintenance
responsibilities for streets that could be unilaterally dedicated by a property owner.
Not until the City Council accepted the dedicated street did the City have to
assume the care and maintenance of the street.
The Property Owners Association admits "this statute refers only to streets
and alleys," but argues it should also be a requirement for any property dedicated
to public use. Although I believe the Legislature had much stronger reasons to
apply it to streets and alleys than to other public facilities, my opinion and the
POA's opinion of what the law should be is irrelevant. This statute requiring the
dedication of streets and alleys to be accepted and confirmed by ordinance to be
deemed a public street or alley refers only to streets and alleys.
"(T)he basic rule of statutory construction is to give effect
to the intent of the legislature. We construe a statute just
as it reads, giving the words their ordinary and usually
accepted meaning." Gonzales v. City of DeWitt, 357 Ark.
10, 159 S.W. 3d 298, 301 (2004) (citations omitted)
(emphasis added)
This most basic rule of interpreting a statute shows it has no application to
dedicated public property except for streets and alleys. Even if it did apply,
Ordinance No. 2015 of June 4, 1974 and the Certificate of Acceptance of
Dedication on the Final Plat signed by the Fayetteville Mayor and Clerk should
dispel any issue concerning A.C.A. § 14-301-102.
The POA then argues that the Certificate of Ownership and Dedication did
not specifically name the water tank site (Lot 22): "We do hereby dedicate all
streets, alleys, easements, parks and other open spaces to public or private use as
noted." While the POA emphasizes the "or private" use, I think the "as noted" is
more important. The "Notes" specify that "Lot 22 has been approved by the
Planning Commission for construction of a water tower and is to become the
property of the City of Fayetteville." Lot 22 is clearly "open space" and does not
4
have the designation "common property" as Lot 23 across the street carries. That
"common property" is specifically "intended for use by the Homeowners in
Hyland Park for recreation ..." and is thus for private use. Lot 22 " the property
of the City of Fayetteville" "for construction of a water tower" is expressly public,
not private property.
The POA challenges the above interpretation of the language of the Final
Plat by citing City of Sherwood v. Cook, 315 Ark. 115, 865 S.W. 2d 293 (1993).
"The two essential elements of a dedication are the owner's
appropriation of the property to the intended use and its
acceptance by the public." Id. at 296.
The POA contends "neither of these two elements has been met in our case."
I believe that Note 3 clearly appropriates Lot 22 for a "water tower" and
"property of the City of Fayetteville." The Certificate of Acceptance of Dedication
by Mayor Purdy along with Ordinance No. 2015 constitutes its acceptance.
The Arkansas Supreme Court in the City of Sherwood case held:
"The dedication is sufficient if it appears, from a
consideration of the plat as a whole, with reference to the
surrounding circumstances, that the spaces were intended
to be devoted to a public use." Id. at 297.
Note 3 of the Final Plat makes it clear that Lot 22 is intended to become city
property for construction of a water tower.
The POA also argues that Note 3 is not a dedication to the public, but
instead the developers were "reserving unto themselves the right to sell Lot 22 to
the City of Fayetteville for construction of a water tower." This is clearly not what
Note 3 nor the Certificate of Ownership and Dedication says.
Even if the POA could argue that the owner's Certificate of Dedication and
Note 3 were ambiguous, the rules of construction require any doubt to be construed
in the City's favor.
"(A)ny doubt or ambiguity in the meaning of a dedicatory
plat is construed most strongly against the dedicator and
to the reasonable advantage of the grantees of the dedicated
5
use, i.e., so as to benefit the public rather than the donor.
City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W. 3d 627,
631 (2005) (emphasis added)
Therefore, even if there can be some argument about exactly what the
dedicator on the Final Plat meant in his Certificate of Ownership and Dedication
and Note 3, the argument must be resolved "so as to benefit the public rather
than the donor." Id.
B. Has the City abandoned its rights to Lot 22?
The POA contends that any interest the City might have had in Lot 22 has
been abandoned and lost through non-use and lack of fencing and maintenance.
There appears little statutory or case law support for this assertion.
"(W)hen an owner of land files a plat and thereafter lots are sold
with reference to it, such action constitutes an irrevocable
dedication of any street or passageway for public use shown or
indicated on the plat. Furthermore, whenever a dedication
becomes irrevocable, a public authority can accept the dedication
for public use whenever the necessity occurs. City of Sherwood
v. Cook, 315 Ark. 115, 865 S.W. 2d 293, 297 (1993) (emphasis
added)
Thus, a city need not begin any active public use of a dedication at any
particular time, but is free to do so "whenever the necessity occurs."
In the City of Cabot v. Brians case, the Brians tried to quiet title (acquire
ownership rights) to an access easement designated as "reserved" for a future right
of way on a final plat. They asserted they had used the parcel as their own and
were entitled to it through adverse possession. A.C.A. §22-1-204 prohibits the
adverse possession of realty against a city.
"(A)n owner of land who sells lots by reference to a plat,
makes an irrevocable dedication of the streets, alleys, squares,
parks, and `other public places marked as such on the plat'
to the public use and that the dedication "becomes irrevocable
the moment that these acts occur ... where lots have been sold
6
by reference to a plat, 'no formal acceptance by the city' is
necessary because, by that act, the dedication becomes
irrevocable." City of Cabot v. Brians, supra at 632 (citations
omitted)(emphasis added)
The "irrevocable dedication" of public places shown on the plat occurs when
any lot is sold and "once the dedication has occurred, the City may accept it at any
time or when the necessity should arise." Id. The Fayetteville Water and Sewer
Department and the Fire Department say that time is now and the necessity to
construct the water tower is now.
"(T)he City need not have formally accepted or confirmed
the dedication of the parcel under the circumstances of
this case or made immediate use of the parcel once
acquired. The irrevocable dedication occurred when lots
were sold by reference to the plat, and the City, at that point,
could accept the dedication at any time. Such dedication and
right to accept it invested the City with, at the very least, a
`right to possession' of the parcel, which under Ark. Code
Ann. §22-1-204, would bar appellees' adverse -possession
claim." Id.
C. Will the City Be Liable for Inverse Condemnation For Constructing
a Water Tower on Lot 22?
Such a contention was presented by the Mintons in Minton v. Craighead,
304 Ark. 141, 800 S.W. 2d 707 (1990). In that case the owners claimed "their
residential properties had been devalued because Craighead County had built a jail
in their neighborhood." Id. at 708. The Arkansas Supreme Court affirmed the
dismissal of their claims as follows:
"It must often happen that the value of a city lot is
diminished as a result of the condemnation of adjoining
property for some distasteful purpose, such as the
construction of a city jail. But as the court convincingly
demonstrated in City of Geary v. Moore, 118 Oki. 616, 75
P.2d 891, this is an injury 'for which the law does not, and
never has, afforded any relief.'" Id. at 708, 709.
7
M. Conclusion
The POA's attorney, Connie Clark, has presented good arguments in her
Memorandum pointing out all of the possible weaknesses in the City's position
that it received Lot 22 as a dedication on the 1974 Final Plat of Hyland Park, Phase
II, Block 5. I certainly admit the situation would be more clear if the Certificate of
Ownership and Dedication had expressly mentioned Lot 22 or if the Plat had
writing on Lot 22 such as: "City property, Water Tower site." The dedicator
instead referred in his dedication to "other open spaces to public or private use as
noted." He then noted in Note 3 that "Lot 22 has been approved by the Planning
Commission for construction of a water tower and is to become property of the
City of Fayetteville."
Note 3 itself could have been more clearly worded, but "any doubt or
ambiguity in the meaning of dedicatory plat is construed most strongly against the
dedicator and to the reasonable advantage of the grantees of the dedicated use, i.e.
so as to benefit the public rather than the donor." City of Cabot v. Brians, 93 Ark.
App. 77, 216 S.W. 3d 627, 631 (2005).
I believe the City has a strong case supporting its position that Lot 22
has been dedicated to the City for use as a water tower site. Reasonable minds
can differ in their interpretation of the facts and law so that litigation is always
possible and in this case, very likely. Although I believe the City would probably
prevail, it is not inconceivable that the POA would be successful.
The impact of placing such a tall water tower within this long established
and beautiful neighborhood should not be ignored. All of us realize its impact on
the closest neighbors would be very significant. Therefore, I anticipate
protracted litigation from the POA (which includes several extremely competent
attorneys) if no solution other than to build a water tower on Lot 22 can be found.
The POA might be able to prevent construction during this litigation by Court
injunctive relief. Even without such an injunction, the City Council would have to
decide whether to proceed with construction and risk being forced to condemn the
property (if the POA was successful) or to delay until the Court could rule.
8
Jun 15 2009 5:13P11 FAYETTEVILLE CITY ATTORNE 4795758315 p.2
OFFER AND ACCEPTANCE CONTRACT
Come now the City of Fayetteville, Arkansas, a municipal corporation and
Lovers Lane LLC an Arkansas Limited Liability Corporation by and through its
authorized officer and agent, Gary Combs and agree as follows:
1. Mr. Gary Combs for Lovers Lane, LLC asserts that Lovers Lane, LLC is the
lawful owner of Lot #7 of the John Smith addition as well as the parcel shown and
identified in Exhibit A attached hereto and has or will have by the date of closing the
legal ability to convey clear title to this parcel of approximately 0.66 acre by warranty
deed free of all liens and mortgages. Lovers Lane, LLC desires to sell this parcel (which
includes a lot and the accompanying permanent construction and utility easements) as
identified on Exhibit A which together contain about 0.66 acre to the City of Fayetteville
for Seventy -Five Thousand Dollars ($75,000.00) in cash in addition to Lovers Lane,
LLC's donation to the City of Fayetteville of One Hundred Twenty Five Thousand
Dollars ($125,000.00) which is the price the of the parcel above $75,000.00.
2. The City of Fayetteville hereby tenders a check in the amount of $1,000.00 as
earnest money which shall apply to the $75,000.00 cash portion of the purchase price at
closing. This offer of purchase is expressly contingent upon approval of a lot split,
approval of the right to construct a water tower and approval of this contract by the
City Council of the City of Fayetteville, Arkansas. if title requirements are not fulfilled
or Lovers Lane, LLC fails to fulfill any obligations under this contract, the earnest
money shall be promptly refunded to the City and the City shall retain all of its rights to
request judicial relief. If, after all conditions have been met, the City of Fayetteville fails
to close this transaction, the earnest money shall become liquidated damages for Lovers
Lane, LLC.
3. Conveyance will be made to the City of Fayetteville by General Warranty
Deed, except it shall be subject to recorded instruments and easements, if any, which do
not materially affect the value of the property. Such conveyance shall include any
mineral rights owned by Lovers Lane, LLC. The deed of conveyance shall restrict the
City of Fayetteville and any successors or assigns to using the property for the
construction, maintenance and operation of a water tower with all necessary accessory
structures and facilities (including but not limited to: the driveway, retaining walls,
drainage control measures, water piping, electrical and/or communication lines,
warning light on the top of the tower, and communication devices for governmental use
only). The deed shall expressly prohibit any attachment of any cellular antennas
upon the water tower or other structure and the construction of any cellular tower or
accessory buildings upon the conveyed property. Such restrictions shall run with the
land.
Jun 15 2009 5:14PM FAIYETTEVILLE CITY ATTORNE 4795758315 p.3
4. Lovers Lane, LLC shall furnish and pay for a policy of title insurance in the
amount of the purchase price from a title insurance company as selected by the City of
Fayetteville.
5. Lovers Lane, LLC agrees to allow the City of Fayetteville, at City of
Fayetteville's expense, to survey the property. Lovers Lane, LLC agrees to cure any title
problems which may result from any differences between the recorded legal
descriptions of the property and the survey description. Said title problems, if any,
must be solved prior to closing to the satisfaction of the City of Fayetteville.
6. Taxes and special assessments due by closing shall be paid by Lovers Lane,
LLC. Ad valorem taxes and special assessments shall be prorated as of closing.
7. The closing date shall be within twenty one (21) days after approval of this
offer by the City Council, but may be extended by joint agreement of the parties.
8. Possession of the property shall be delivered to the City of Fayetteville on the
date of closing.
9. Lovers Lane, LLC hereby grants permission for the City of Fayetteville or its
employees or designates to enter the above described property for the purpose of
inspection and/or surveying.
10. All improvements are included in the purchase price.
11. Lovers Lane, LLC shall disclose to the City of Fayetteville any and all
environmental hazards of which Lovers Lane, LLC has actual knowledge. Lovers Lane,
LLC has no knowledge of any environmental issues. The City may investigate and
inspect the land for any environmental hazards and can withdraw from this contract
without penalty if substantial environmental problems are discovered before closing.
12. This agreement shall be governed by the laws of the State of Arkansas.
13. This agreement, when executed by both the City of Fayetteville and Lovers
Lane, LLC shall contain the entire understanding and agreement of the parties with
respect to the matters referred to herein and shall supersede all price or
contemporaneous agreements, representations and understanding with respect to such
matters, and no oral representations or statements shall be considered a part hereof.
14. This contract expires, if not accepted by Lovers Lane, LLC on or before the
16th day of June, 2009.
2