HomeMy WebLinkAbout45-13 RESOLUTIONRESOLUTION NO.45-13
A RESOLUTION TO OPPOSE SENATE BILL 367'S ENDANGERING ALL
OF FAYETTEVILLE'S DEVELOPMENT REGULATIONS
WHEREAS, Senate Bill 367 which is co -sponsored by Fayetteville Representative
Charlie Collins, would endanger and likely prevent enforcement of any development regulations
by Fayetteville and all other Arkansas cities; and
WHEREAS, Fayetteville development regulations are necessary to protect neighboring
land owners from flooding, fire hazards, land erosion, large billboards and flashing signs, and
other incompatible, unsightly and unscreened development which could damage the peace,
health and safety of our citizens and devalue their neighboring properties; and
WHEREAS, SB 367 would penalize Fayetteville taxpayers if the City sought to enforce
development ordinances such as the Tree Preservation and Protection Ordinance and the
Stormwater Management, Drainage and Erosion Control Ordinance or fire safety codes, etc.; and
WHEREAS, the Arkansas Supreme Court has consistently held that "the individual's use
and enjoyment of property is always subject to reasonable regulations in order to preserve the
welfare of the public at large," Yarbrough v. Arkansas State Highway Commission, 539 S.W. 2d
419, 421 (1976).
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 expresses
its opposition to Senate Bill 367's unmerited attack upon all Arkansas cities' attempts to protect
and preserve the health, safety and welfare of their citizens by enacting and enforcing reasonable
zoning and development regulations.
Section 2: The City Council of the City of Fayetteville, Arkansas hereby requests that
Representative Charlie Collins, all other State Representatives and Senators who represent
citizens of Fayetteville, and all other Arkansas Legislators to oppose, reject and vote against SB
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367 and any amended versions thereof.
PASSED and APPROVED this 5t' day of March, 2013. =`tee• GAT Y o��
FAYETTEVILLE
APPROVED: ATTEST:VGT
Ot t 1► `�`
By:
LI iLD JO N ayor SONDRA E. SMITH, City Clerk/Treasurer
AGENDA REQUEST
FOR: COUNCIL MEETING OF MARCH 5, 2013
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A Resolution To Oppose Senate Bill 367's Endangering All Of Fayetteville's
Development Regulations
APPROVED FOR AGENDA:
Pb/-)t
Date
Date
02-25-13i 04:02 RCVD
0
eDepartmental Correspondence
RKANSAS
Kit Williams
City Attorney
TO: Mayor Jordan Jason B. Kelley
Don Marr, Chief of Staff Assistant City Attorney
Jeremy Pate, Development Services Director
Andrew Garner, Senior Planner — Current Planning
Peter Nierengarten, Sustainability & Strategic Planning
FROM: Kit Williams, City Attorney
DATE: February February 22, 2013
RE: Senate Bill 367 — Taxpayers may be forced to pay for application of
development regulations including stormwater, drainage, tree
preservation, landscaping, etc.
Senate Bill 367 seeks to penalize city implementation of all regulatory
programs affecting property by forcing taxpayers to pay for any perceived
diminution in value of the immediately affected property owner's land. The
legislators supporting this bill disagree with the United States Supreme Court
which upheld reasonable zoning regulation of a parcel by recognizing that
neighboring property owners also had property rights that were also worthy of
protection. This "every lot is an island" approach ignores any ill effects or loss in
value of neighboring lots if the property owner develops his lot with absolutely no
regulation enacted by the democratically elected representatives of the citizens.
This law expressly attacks "overlay districts" such as the Fayetteville City
Council enacted in 1994 to prevent further ugly and property devaluating
commercial development near I-540. Some property owners complained that the
City was devaluing their property by requiring greenspace, minimal landscaping
and the construction of something other than the cheapest, square all metal
buildings. Since a developer might be able to convince a jury that those
regulations could "devalue" his property by more than 10% (by requiring
additional expenditures or not allowing construction and paving of 100% of his
lot), the taxpayers would face serious financial losses if the City tried to enforce
these regulations. Thus, these and all other development and any new zoning
regulations could not be safely enforced.
When the I-540 Overlay District was being considered, one of our most
successful and largest developers rose to speak to the City Council. Long known
for his conservative views and his property development smarts, Mr. Jim Lindsey
said this about the effect of the proposed land regulations of the I-540 Design
Overlay District. "(T)his ordinance will create an atmosphere of beauty (and)
growth along the bypass." (Minutes of the June 20, 1994 City Council meeting.)
Although the legislators sponsoring this bill evidently think Mr. Lindsey was
wrong to believe reasonable land regulations could foster beauty and growth, his
predictions have been proven true. In fact, these regulations spurred such quality
commercial development along I-540 (increasing everyone's land values) that
later, the Fayetteville citizens requested and the City Council passed commercial
design standards for the entire City.
Since the adoption of such commercial design regulations and the later
enactment of Tree Preservation, Hillside and Streamside Preservation and other
development regulations, the City of Fayetteville has experienced great
commercial growth. Indeed Fayetteville's sales tax receipts have doubled since the
I-540 Design Overlay District was enacted. So history has proven Mr. Lindsey
was absolutely correct that reasonable developmental regulations can spur quality
development, growth, and increasing land values.
If SB 367 passes, all these development regulations must be thrown in the
trash because it would be too risky to try to convince a jury that regulatory
requirements and limitations on John Doe's land have not at least slightly (10%)
decreased his property values to protect the property values of his neighbors. The
landowner (like the legislative sponsors of this Bill) would argue that the jury must
only look at his property in isolation and with no consideration of his neighbors. If
John Doe shows some of his land must be landscaped or remain greenspace or that
his building would cost more than the cheapest construction, a jury might believe
he suffered enough of a devaluation (10% of the land's value) and award him
taxpayer money to compensate him for doing what all his neighboring landowners
already did. John Doe would cash in by building the "cheapest house on the
block" devaluing all of his neighbor's properties which are left with no protection
when development regulations are gutted by SB 367.
2
Representative Charlie Collins (who is sponsor of SB 367) was an
excellent neighborhood representative when he spoke against an adjoining land
owner's proposal to develop his land with "too much" density at the end of the
dead end road running through Mr. Collins' neighborhood. Drainage issues
including loss of trees on the hillside and traffic problems were presented as
reasons to deny the development proposal. The neighbors also cited the City's fire
safety regulations to prevent the landowner from developing his property as
densely as he wished. If Representative Collins' SB 367 had been the law last
year, I would have had to inform the City Council that they would have to ignore
many of Mr. Collins' and his neighbors' concerns and complaints.
SB 367 would weaken or endanger all development regulations of every city
in Arkansas. It basically repeals much of Chapter 56 Municipal Building and
Zoning Regulations — Planning of Title 14 of the Arkansas Code as well as other
State regulatory codes (building codes, fire codes, etc.) Senate Bill 367 would
likely result in the virtual freezing of all zoning and changes to the zoning code.
Even granting a property owner's request to rezone his property might be
dangerous as neighboring property owners could claim that their properties' values
have been reduced by more than 10% by the change in zoning authorized for the
applicant.
In the many condemnation cases we have faced, the expert real estate
appraisers often disagree about the land's value by more than 100% (one estimates
the value at $5,000.00 and the other at $10,000.00). One major case involved land
owner's appraisers' valuation of $800,000.00 while the City's was $40,000.00.
We eventually settled for $100,000.00 or one -eighth of the landowner's appraisal.
Thus, a 10% difference in the appraised value of real estate will almost always
been attainable. Most condemnation jury decisions are compromises between what
the two land appraisers say the property is worth. Thus, a jury determination of a
10% difference in overall value regardless of the real impact of any zoning or
development regulation on the property would be very likely. SB 367 strongly
encourages litigation and would make the taxpayers pay even in very questionable
circumstances.
Property owners have long been protected by the 5th Amendment of the U.S.
Constitution and Arkansas inverse condemnation decisions. SB 367 would throw
out decades of careful analysis and decisions by the Arkansas Supreme Court
weighing a property owner's rights versus the rights of his neighboring property
owners to determine when a regulation goes too far and compensation is
N
warranted. SB 367 places the bar for compensation so low that no regulation,
regardless how reasonable and needed, would be safe to apply.
CONCLUSION
Senate Bill 367 which is co -sponsored by Fayetteville's own Charlie Collins
would basically repeal Fayetteville's:
(1) Tree Ordinance;
(2) Flood Damage Prevention Code;
(3) Land grading regulations;
(4) Stormwater Management, Drainage and Erosion Control regulations,
(5) Landscape regulations;
(6) Fire Prevention Code;
(7) Virtually all development regulations designed to protect neighbors by
requiring responsible development by a property owner.
SB 367 would likely freeze all current zoning in Fayetteville as even
approving a property owner's requested rezoning could be dangerous if neighbors
claim such rezoning would reduce their own property's value.
A RESOLUTION TO OPPOSE SENATE BILL 367'S ENDANGERING ALL
OF FAYETTEVILLE'S DEVELOPMENT REGULATIONS
WHEREAS, Senate Bill 367 which is co -sponsored by Fayetteville Representative
Charlie Collins, would endanger and likely prevent enforcement of any development regulations
by Fayetteville and all other Arkansas cities; and
WHEREAS, Fayetteville development regulations are necessary to protect neighboring
land owners from flooding, fire hazards, land erosion, large billboards and flashing signs, and
other incompatible, unsightly and unscreened development which could damage the peace,
health and safety of our citizens and devalue their neighboring properties; and
WHEREAS, SB 367 would penalize Fayetteville taxpayers if the City sought to enforce
development ordinances such as the Tree Preservation and Protection Ordinance and the
Stormwater Management, Drainage and Erosion Control Ordinance or fire safety codes, etc.; and
WHEREAS, the Arkansas Supreme Court has consistently held that "the individual's use
and enjoyment of property is always subject to reasonable regulations in order to preserve the
welfare of the public at large," Yarbrough v. Arkansas State Highway Commission, 539 S.W. 2d
419,421 (1976).
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 expresses
its opposition to Senate Bill 367's unmerited attack upon all Arkansas cities' attempts to protect
and preserve the health, safety and welfare of their citizens by enacting and enforcing reasonable
zoning and development regulations.
Section 2: The City Council of the City of Fayetteville, Arkansas hereby requests that
Representative Charlie Collins, all other State Representatives and Senators who represent
citizens of Fayetteville, and all other Arkansas Legislators to oppose, reject and vote against SB
367 and any amended versions thereof.
PASSED and APPROVED this 5t" day of March, 2013.
APPROVED:
al
ATTEST:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 89th General Assembly A Bill
3 Regular Session, 2013 SENATE BILL 367
4
5 By: Senators J. Hendren, Bledsoe, A. Clark, J. Dismang, Hester, Holland, J. Hutchinson, Irvin, B. King,
6 D. Sanders
7 By: Representatives D. Altes, Baine, Ballinger, Barnett, Collins, Cozart, Davis, Deffenbaugh, C. Douglas,
8 D. Douglas, Gossage, Harris, Mayberry, Wren
9
10 For An Act To Be Entitled
11 AN ACT TO ADDRESS THE PROTECTION OF PRIVATE PROPERTY;
12 AND FOR OTHER PURPOSES.
13
14
15 Subtitle
16 TO ADDRESS THE PROTECTION OF PRIVATE
17 PROPERTY.
18
19
20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
21
22 SECTION 1. DO NOT CODIFY. Legislative findings.
23 (a) From time to time, state and local regulatory programs have the
24 effect of reducing the market value of private property.
25 (b) When state and local regulatory programs reduce the market value
26 of private property and do not through their implementation abate a public
27 nuisance affecting the public health, safety, morals or general welfare, it
28 is fair and appropriate that the state or the locality compensate the
29 property owner for the loss in market value of the property caj4sed by the
30 implementation of the regulatory program.
31 (c) Compensation to the property owner is also fair and appropriate in
32 cases involving regulatory programs which abate a public nuisance when the
33 property owner neither contributed to the public nuisance, acquired the
34 property knowing of the public nuisance, nor acquired the property under
35 circumstances in which the property owner should have known about the
36 nuisance based upon prevailing community standards.
02-19-2013 10:18:59 KLL123
SB367
1 (d) In order to establish a fair and equitable compensation system to
2 address these stated public policy concerns and findings, there is hereby
3 established a compensation system in this act.
4
5 SECTION 2. Arkansas Code Title 18, Chapter 15, is amended to add an
6 additional subchapter to read as follows:
7 Subchapter 17 - Private Property Protection Act
8
9 18-15-1701. Title.
10 This subchapter shall be known and may be cited as the "Private
11 Property Protection Act".
12
13
18-15-1702. Definitions.
14
As used in this subchapter:
15
(1) "Real property" means real property,
the use of which is
16
directly controlled or regulated by a regulatory
program;
and
17
(2) "Regulatory program" means any
rule,
regulation, law, or
18
ordinance that affects the fair market value of
real
Dronerty. Such
19 regulatory programs include without limitation moratoriums on growth,
20 aesthetic or scenic districts, environmental districts, overlay districts,
21 green space ordinances, landscape ordinances, tree ordinances, land use
22 planning programs, or zoning programs.
23
24 18-15-1703. Inverse condemnation.
25 (a) Whenever implementation by the state or any of its political
26 subdivisions of any regulatory program operates to reduce by at least ten
27 percent(10%) the fair market value of real property for the uses permitted
28 at the time the owner acquires the title, or on the effective date of this
29 act_, whichever is later, the property shall be deemed to have been taken for
30 the use of the public.
31 (b)(1) The owner or user shall have the right to require condemnation
32 by and adequate compensation from the governmental unit, or units when more
33 than one (1) governmental unit is involved, imposing the regulation resulting
34 in decreased value, or to receive compensation for the reduction in value
35 caused by government action, and in either case to have the compensation
36 determined by a iurv.
2 02-19-2013 10:18:59 KLL123
SB367
1 (2) When more than one (1) governmental unit is involved, the
2 court shall determine the proportion each unit shall be required to
3 contribute to the compensation.
4 (3) Compensation is required under this section only in
5 instances where the fair market value of the property is reduced by at least
6 ten percent (10%).
7 (c)(1) Governmental units subject to the provisions of this subchapter
8 shall not make waiver of the provisions of this subchapter a condition for
9 approval of the use of real property or the issuance of any permit or other
10 entitlement. Plaintiffs may accept an approval of use, permit, or other
11 entitlement granted by the governmental unit without compromising their
12 riszhts under this subchapter if:
13 (A) A written reservation of rights is made at the time of
14 acceptance of the authorization, permit, or other entitlement; or
15 (B) By oral statement made before the governmental unit
16 granting the authorization, permit, or other entitlement at a public meeting
17 at which the governmental unit renders its decision.
18 (2) The owner or user may make his or her reservation in either
19 or both forms.
20 (d) When any regulatory program resulting from a zoning ordinance
21 operates to change a permitted use and the fair market value of the affected
22 real property is the same or greater than before the effective date of the
23 implementation of the regulatory program, compensation shall not be paid
24 under this subchapter.
25
26 18-15-1704. Nuisance matters.
27 (a) Compensation shall not be required under this subchapter if the
28 regulatory program is an exercise of the police power to prevent uses noxious
29 or harmful to the health and safety of the public.
30 (b) A use shall be deemed a noxious use if it amounts to a public
31 nuisance.
32 (c) Determination by the governmental unit or units involved that a
33 use is a noxious use or poses a demonstrable harm to public health and safety
34 is not binding upon the court.
35 (d) This subchapter does not apply to laws or rules within the
36 jurisdiction of the State Health Officer.
3 02-19-2013 10:18:59 KLL123
SB367
1
2 18-15-1705. Statute of limitations.
3 (a)(1) The statute of limitations for actions brought under this
4 subchapter is under § 16-56-115.
5 (2) The statute of limitations begins upon the final
6 administrative decision implementing the regulatory program affecting
7 plaintiffs' property.
8 (b) A program is implemented with respect to an owner's or user's
9 property when actually applied to that property.
10
11 18-16-1706. Regulatory rollback.
12 (a)(1) If the governmental unit exercising inverse condemnation under
13 this subchapter is unwilling or unable to pay the costs awarded, it may relax
14 the land use planning, zoning, or other regulatory program as it affects the
15 plaintiff's land and all similarly -situated land in the jurisdiction in which
16 the regulatory program is in effect to the level of regulation in place as of
17 the time the owner acquired title or on the effective date of this act,
18 whichever is later.
19 (2) In this event, the governmental unit is liable to the
20 plaintiff landowner or user for reasonable and necessary costs of the inverse
21 condemnation action, plus any actual and demonstrable economic losses caused
22 to the plaintiff by regulation during the period in which it was in effect.
23 (b) This section does not affect any remedy which is constitutionally
24 required.
25 (c)(1) Notwithstanding other law, the governmental unit subject to an
26 award of compensation under this subchapter may elect to relax the land use
27 planning, zoning, or other regulatory program without further public
28 hearings, proceedings, or environmental review.
29 (2) If the governmental unit elects to relax the affected
30 regulatory program, the previous program shall automatically be in effect.
31
32
33
18-15-1707. Legal
Nothing in this
challenges.
subchapter precludes property owners from
bringing
34
legal challenges to regulatory
programs affected by this subchapter
in
35
instances in which the
regulation caused diminution in value of
the property
36
for the uses permitted
at the time the owner acquired title, or
the effective
4 02-19-2013 10:18:59 KLL123
SB367
1 date of this act, whichever is later, nor shall it preclude property owners
2 from bringing legal challenges to regulatory programs under other law.
3
4 SECTION 4. EMERGENCY CLAUSE. It is found and determined by the
5 General Assembly of the State of Arkansas that some actions by the state and
6 its political subdivisions reduce the value of real property; that the
7 property owners now are not being compensated for that reduction in value;
8 and that this act is immediately necessary because the inequity needs to be
9 eliminated as soon as possible. Therefore, an emergency is declared to exist,
10 and this act being immediately necessary for the preservation of the public
11 peace, health, and safety shall become effective on:
12 (1) The date of its approval by the Governor;
13 (2) If the bill is neither approved nor vetoed by the Governor,
14 the expiration of the period of time during which the Governor may veto the
15 bill; or
16 (3) If the bill is vetoed by the Governor and the veto is
17 overridden the date the last house overrides the veto
18
19
20
21
22
23
24
25
26
27
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5 02-19-2013 10:18:59 KLL123
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&��
'Ville Departmental Correspondence
RKANSAS
Kit Williams
TO: Mayor Jordan City Attorney
City Council Jason B. Kelley
Assistant City Attorney
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
FROM: Kit Williams, City Attorney ,cL
DATE: March 5, 2013
RE: "Private Property Protection Act"
When I wrote the Resolution in opposition to Senate Bill 367 of 2013 which
calls itself the "Private Property Protection Act", I had forgotten that I had drafted
a very similar Resolution 18 years ago. Resolution No. 23-95 (copy enclosed) was
passed unanimously by the Fayetteville City Council on February 21, 1995 and
signed by Mayor Hanna to oppose House Bill 1726 of 1995 which was entitled
(you guessed it) the "Private Property Protection Act."
I have attached the City Council meeting minutes from the February 21, and
March 7, 1995 meetings when the Resolution and House Bill 1726 were discussed.
All eight of the aldermen spoke in favor of my Resolution. In response to a
question from an alderman, then City Attorney Jerry Rose stated the proposed
Personal Property Protection Act was "extremely unclear and would open the City
to extensive litigation." (March 7, 1995, page 101) The minutes reflect that I
agreed with Mr. Rose then, and I agree now that such a law would create
tremendous litigation danger for our citizens.
It was unneeded, very dangerous and expensive for cities back in 1995 and
is even more dangerous from the taxpayers' perspective now. It was a bad Bill
then and is a bad Bill now, and I hope it is defeated again.
MINUTES OF A MEETING OF THE CITY COUNCIL
A meeting of the Fayetteville City Council was held on Tuesday,
February 21, 1995, at 6:30 p.m., in the Council Room of the City
Administration Building, 113 W. Mountain, Fayetteville, Arkansas.
PRESENT: Mayor Fred Hanna; Aldermen Stephen Miller, Kit Williams,
Cyrus Young, Woody Bassett, Robert Prichard, Len Schaper,
and Heather Daniel; City Attorney Jerry Rose; City
Clerk/Treasurer Traci Paul; Administrative Services
Director Ben Mayes; Planning Director Alett Little;
Assistant Public Works Director Charles Venable; members
of staff, press, and audience. -
ABSENT: Alderman Steve Parker
CALL TO ORDER
Mayor Hanna called the meeting to order with seven aldermen
present.
MEDAL OF VALOR -AWARD
Mayor Hanna presented a Medal of valor to Fayetteville Fire Fighter
Marty Powers for his rescue of Angelica Smith, an occupant of a
fire at 309 1/2 W. Spring Street on January 31, 1995.
Mayor Hanna also recognized citizens Steve Powell, Wayne Mattlock,
and Danny island for being first on the scene and trying to attack
the fire with fire extinguishers.
STATE OF THE CITY ADDRESS BY MAYOR FRED HANNA
Mayor Hanna stated Fayetteville has lived up to its reputation for
another year. it is still a hot bed of tranquility. The major
issue facing the City in 1995 is growth and how to manage it. The
growth over the past three years has been phenomenal. People are
concerned about traffic, congestion and the consequences of the
growth.
Economically, things have gone well, almost too well in terms of
not being able to keep up with infrastructure demands.
Fayetteville is not out of control and is still a planned
community. Citizens should step forward with any suggestions to
make things even better.
Financially, Fayetteville is in good shape. Financial Statements
for 1994 are on file in the City Clerk's office for review. The
accounting firm of Arthur Anderson & Company will begin an
independent audit of the City's financial records in March. A
formal report will be submitted to the Council and Fayetteville
citizens by mid 1995. Preliminary reports are positive.
74
February 210 1995 ,
Robson also discussed concerns regarding the -revenue bondtissue,
Alderman Williams -stated the City is going, to be bound by what the
supreme Court does. The issue before..•the,y CounciL tonight •was"
whether or not the City.�was;going•to,autiior ze its attorneys to sue
the third parties`- if ,they' -dog not` -Piave a; ollrjng'agreement.
Robson ' stated he .was. concerned that' i Ms;. rGayy is working. on .the -
language of the tolling *-agreements.; r.;,�Tliei_ Council , is allowing
clocked in attorneys -tb' criticize clocked-out'-attorney9'. -The
attorneys for the .residents and: sanitat°a:onil-rate'payers- in the City
of Fayetteville ; have s nrct Pmade any ,-, oney�. \ over three, million
dollars has NOW spent ; •It,* -hAb� . een. a paper blizzard.
In answer to questions -from' Robson regarding whether or not
Alderman Bassett's sister is. a• partner' 'of Wright-- :Lindsey . &
Jennings and whether or .not Alderman, Bassett -ever interVened in
behalf of the former City Attorney for- Scottsdale insurance
corporation, Alderman Bassett stated,-.tor'.the Mayor, that -he would
address the questionata more appropriate- time.
Robson accused Alderman Bassett of leading. -:the other Aldermen in
making decisions. He also accused r91derman Bassett* ofi- behind
closed doors_, getting other -Aldei7meri t-b �s;ign agreements to be on
the directors of the Authority.. - -
Alderma-n Bassett stated he has not done anything behind closed
doors. - -
mayor Hanna explained that the issue.before the Council is -tolling
agreements.
HOUSE• . BILL 172 6 :
ow
Alderman Williams stated House Bill, 17.26-� has- been prop'osed.• This
bill would cripple the City's effor-ts to -manage the growth and
development." - It'-clairims to protect private property -but it. really
endangers -every. landowner who relI'dis_upon_:Fayetteville's zoning and
environmental laws to preserve. their rnelcghb6thood; - protect their
homes and businesses.. -it endangers .every-taxpayer•.because it
authorizes a flood of litigation.
Alderman Williams read a resolution opposing proposed House Bill
1726 and.notifying the Arkansas Legislature.; Municipal League, and
the Governor's Office of such -opposition.':
Alderman Williams, seconded by Daniels Made a motion to aec6pt the
resolution. '
Alderman Daniel stated House Bill 1726-.-is meddling in Municipal
affairs,
E
1
75
February 21, 1995
Alderman Schaper stated Fayetteville is trying to control the
growth in our city and manage it properly.. This bill would take
away the ability to control growth and cripple current zoning laws.
Alderman Prichard expressed concern of how Charles .Stewart is
choosing to represent the people of Fayetteville. -
Alderman Bassett stated the City is trying to find ways to manage
our growth and to keep this one of the best cities in which to live
in the country. There will always be debate about how that should
be done. Decisions about how to deal with issues that directly
affect Fayetteville should be made by the elected City Council.
This bill would cause an explosion of litigation.
Alderman Young stated people do not realize the effects this bill
would have if passed. This bill would take away the one thing
protecting landowners, zoning districts.
Alderman Miller stated our State Representative has introduced this
bill that would destroy the very city that has been represented so
well for so many years.
Elam Denham -stated fourteen states have passed similar bills. This
bill supports the United States Constitution and the Arkansas
Constitution's Private Property Protection Provisions. It requires
the government to pay fair market value for what it takes from its
citizens. . This bill will protect citizens from governmental
intrusions.
Harley Brigham stated he agrees with the views of the Council
members and supports the proposed resolution.
Tom McKinney thanked the Council for the proposal and support of
the -resolution. He stated a similar bill is currently working its
way -through Congress. McKinney pointed out laws already in place
that apply to the same issues as House Bill 1726. .'
Mayor. Hanna expressed regret that the name of Representative
Charlie Stewart had been discussed and stated he is an honorable
man. This bill should not reach the floor of the house. Charlie
Stewart probably accomplished what he intended to do here tonight.
Upon roll call, the resolution passed by a vote of 7 to o.
RESOLUTION 23-95 AS RECORDED IN THE .CITY CLERRJ'S OFFICE.
1
RESOLUTION NO. 21-95
A RESOLUTION OPPOSING PROPOSED HOUSE BILL 1726
.AND NOTIFYING THE ARKANSAS LEGISLATURE,
MUNICIPAL LEAGUE, AND GOVERNOR'S OFFICE OF
SUCH OPPOSITION.
WHEREAS, our citizens' health, safety, and investment in real estate have long been
preserved and protected by zoning laws, building codes, and environmental regulations; and
WHEREAS, the Fifth Amendment to the United States Constitution has for over 200
years protected private property rights so that landowners must receive fair compensation if their
property is taken for public use; and
WHEREAS, proposed House Bill 1726 would cripple our City's efforts to preserve
Fayetteville's beauty, quality of life, and economic vitality by placing a financial straightjacket
on any effort to manage our growth, preserve neighborhood integrity, improve building and
landscaping requirements, ensure environmental protection, and preserve green space and park
land; and obtain help building. necessary infrastructure; and
WHEREAS, our taxpayers would suffer as House Bill 1726 would encourage extensive
and costly litigation and require payments to landowners or their attorneys even in questionable,
minor cases; and
WHEREAS, since this Bill would apply retroactively to all regulatory programs now in
effect, specifically "land use laws and zoning", every city and town in Arkansas, as well as many
state agencies such as the Department of Pollution Control and Ecology would face massive
litigation and possible bankruptcy.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City of Fayetteville, Arkansas strongly opposes every part of
proposed House Bill 1726 and urges its complete and total defeat by the Legislature and veto by
the Governor, if need arises.
See -don 2. That a copy of this resolution shall be transmitted to every Arkansas
legislator, both Representative and Senator, the Municipal League and the Governor's Office.
PASSED AND APPROVED this -ZIA- day of . February , 1995.
Page 2
Resolution No. 2 3— 9 5
APPROVED:
By:—Yw'e'&Af4�.—"'
Fred Hanna, Mayor
ATTE T: I
By:�� k, J
Traci Paul, City Clerk
101
March 7, 1995
E. SOUSE BILL 1726
Mayor Hanna stated that Alderman Parker requested the opportunity
to express his views since he was not present when the Resolution
against 1726 was passed.
Parker stated that the Bill would go back to the committee for
changes including assurance to landowners that they would not have
to give back to the state and -to restate that it did not apply to
government's efforts to curb public nuisance. These issues were
addressed in the November election where a group of candidates
brought up the idea of property rights which were rejected by
Fayetteville voters. He stated that this was not a personal
property protection act but an act for people to evade' managed
growth. A new bill entitled "Look Before You Leap" that performs
the same function and has the same danger to city regulation and
zoning. He stated that during his campaign he discussed 'the
overlay District, Greenspace Ordinance, Tree Ordinance, Traffic,
and Managed Growth and found that his constituents supported'these
issues which contrasts discussion with Representative Charles
Stewart regarding his support. Representative Stewart's support
was from realtors and bankers. In summation he stated he supported
the City Council's resolution and urged immediate action from the
public.
In answer to a question from Alderman Schaper regarding what the
potential impact was to the City, Rose stated that if the Bill is
passed the City would have to evaluate and determine if the City is
liable for any loss of value to the property owner or adjoining
property owners and the compensable impact this would have on the
City. It is. extremely unclear and would open the City to extensive
litigation.
Alderman Parker expressed concern that if the City did pass an
overlay District ordinance resulting in- devaluation of property
they may be held liable for damages.
Alderman Williams agreed with Rose in the unclarity .of' the Bill and
stated that the Bill could result in a statewide moratorium on
rezonings.
Alderman Schaper requested support from the public for the
Council's resolution and asked constituents to call Representative
Stewart at (501) 682-6211 or fax (501) 682-9160. Parties involved
in litigation with the City over the overlay District spoke at the
hearing in Little Rock in favor of the Bill.
Alderman Young wished to make a correction regarding the moratorium
on rezoning stating that it would stop rezoning and that was a big
difference. It would take an act of the State Congress for a
rezoning.
102
March 7, 1995
Alderman Parker also requested to address the Council.regardinT.
personnel requirements in City Planning and Engineering.
Alderman Parker stated that the Council 'should support the requests
from Planning and Engineering to facilitate the requests. the
Council made -of these departments and fulfil the Council's promise
to .provide whatever resources necessary:
Venable requested a- Draftsman with computer capabilities
responsible for development of maps and ongoing .projects in
Engineering and Planning., along with an Engineering Technician.
Additionally a Permit Clerk was requested with duties including
public greeting and assistance with permit completion.. Venable
also requested equipment.
Little stated that options for workload shift were being discussed
to alleviate time constraints. Data: Processing has been. very
cooperative in -upgrading all systems t(5 facilitate information -flow.
which helps work move forward timely. Other .work is contracted
outside the City which is -working well.
Alderman Parker stated that he favored advertising for the three
described positions at this time and addressing budgetary issues
later.
Alderman, Williams suggested addressing these issues at the meeting
scheduled for: March 8, 1995 so that documentation could be
provided.
Alderman Bassett agreed with Alderman .Williams' suggestion.
CONSENT AGENDA
Mayor Hanna introduced consideration .of' iteins which may be approved
by motion-, or contracts and leases which can :be :approved by
resolution., and which may- be grouped•'together and approved
simultaneously. under a "Consent Agenda"::
A. -Minutes of the,February 21, regular 'City`Council meeting.
B. -A resolution'awarding an engineering contract to Development
Consultants, LLC,.for,construction engineering services for
the Joyce�',Blvd. at U.S.,, 71B. intet rsec. bi n-mprovement project.,
in the am6unt Hof' ,$21;;964.94- -'and approving a 10project
contingency o.f $2,196.
RESOLUTION 3.5-95 AS RECORDED IN THE CITY CLERRtS OFFICE.
Page 1 of 1
��► !
Sondra Smith - SB 367 6j
From: Alan Fortenberry <AFortenberry(a@wdh2o.org>
To: "Lioneld Jordan (ljordan@ci.fayetteville.ar.us)" <ljordan@ci.fayetteville.ar.us>
Date: 3/5/2013 4:56 PM
Subject: SB 367
CC: "Don Marr (dmarr@ci.fayetteville.ar.us)" <dmarr@ci.fayetteville.ar.us>, Colene Gaston
<cgaston@bwdh2o.org>, "ssmith@ci.fayetteville.ar.us" <ssmith@ci.fayetteville.ar.us>,
"ismith(a)Ci.fayetteville.ar.us"<lsmith(a-,ci.fayetteville.ar.us>
Mayor,
I understand that a resolution opposing the passage of SB367 is coming before the Council this evening. The
District concurs with the City's opposition to this legislation. The programs addressed within the legislation, that
result in the proper planning of development both here and throughout the state, are essential in preserving
water quality in our streams and lakes. The District is very appreciative of the efforts of Fayetteville in relation
to measures that have helped to preserve the quality of our drinking water source — Beaver Lake. We encourage
the Council to adopt this resolution to stand in opposition of this legislation. Thank you for considering this
matter.
Alan D. Fortenberry, P.E.
CEO
Beaver Water District
P.O. Box 400
Lowell, AR 72745
(479) 756-3651
afortenberry@bwdh2o.org
file:///C:/Users/ssmith/AppData/Local/Temp/XPgrpwise/513 623AEFAYETTEVILLECITY... 3/5/2013