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HomeMy WebLinkAbout2020-06-16 - Minutes -Council Member Sonia Gutierrez Ward I Position I Council Member Sarah Marsh Ward 1 Position 2 Council Member Mark Kinion Ward 2 Position I Council Member Matthew Petty Ward 2 Position 2 Mayor Lioneld Jordan City Attorney Kit Williams City Clerk Kara Paxton City of Fayetteville Arkansas City Council Meeting June 16, 2020 City Council Meeting Minutes June 16, 2020 Page 1 of 28 Council Member Sloan Scroggin Ward 3 Position 1 Council Member Sarah Bunch Ward 3 Position 2 Council Member Teresa Turk Ward 4 Position 1 Council Member Kyle Smith Ward 4 Position 2 A meeting of the Fayetteville City Council was held on June16, 2020 at 5:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Mayor Jordan called the meeting to order. In order to create social distancing due to the Coronavirus, COVID-19 pandemic, Council Members Sonia Gutierrez, Sarah Marsh, Mark Kinion, Matthew Petty, Sloan Scroggin, Sarah Bunch, Teresa Turk, and Kyle Smith joined the meeting via online using a video conferencing service called Zoom. Mayor Lioneld Jordan, City Attorney Kit Williams, City Clerk Treasurer Kara Paxton, Chief of Staff Susan Norton, Police Chief Mike Reynolds, Fire Chief Brad Hardin, Chief Financial Officer Paul Becker, and two staff members from the IT Department were present in City Council Chambers while demonstrating recommended social distancing. Pledge of Allegiance Mayor's Announcements. Proclamations and Recognitions: Mayor Jordan: In light of the current health concerns, Fayetteville City Hall is closed to the public. This meeting is being held virtually. I am present in Council Chambers with a handful of essential support staff. City Attorney Kit Williams, City Clerk Treasurer Kara Paxton, Chief of Staff Susan Norton, Police Chief Mike Reynolds, Fire Chief Brad Hardin, Chief Financial Officer Paul Becker, and two representatives from the IT Department. City Council Members, City Staff, and the public are participating online or by phone. Other than those of us you see before you, the 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 2 of 28 voices you hear during the course of this meeting are being recorded for public record and piped into the Council Chambers. Participation remains of the upmost importance to the City of Fayetteville. We have provided many ways to participate in the meeting, which includes contacting Council Members, City Clerk office or city staff prior to the meeting. The meeting can be viewed through Fayetteville's government channel online, YouTube, joining the Zoom conference by smartphone, tablet or computer. Instructions are shown onscreen. Staff can view when you join the meeting and when you raise your virtual hand. We ask that you refrain from doing this until the public comment portion of the item on which you wish to comment. I will provide a longer than usual period of time for you to raise your virtual hand. When recognized, please state your name and address for the record. Each speaker is allowed five minutes to comment, which staff will monitor. City Council Meeting Presentations, Reports, and Discussion Items: Nominating Committee Report Council Member Bunch presented the Nominating Committee report and recommended the appointments as submitted. Council Member Smith moved to approve the Nominating Committee Report. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. Agenda Additions: Require Persons To Wear Face Masks: An ordinance to require persons to wear face masks that cover the nostrils and mouth to help restrict the spread of the COVID-19 virus, to establish reasonable exemptions, to operate a non -emergency business support hotline, to set practical enforcement conditions, and to approve a budget adjustment. Council Member Petty: I would like to place this item on the agenda with the justification that many members of the community have written in and asked us to have this discussion. Council Member Petty made a motion to add the ordinance to the agenda. Council Member Marsh seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Petty stated there is an emergency in Washington County and believes this ordinance can make a difference. He stated masks will be required in public service areas except when eating, drinking, and exercising. He stated the city will be exempting small group settings where social distancing can be followed and for people with a relevant disabling condition. He stated it is not applicable for outdoors generally, except for events where the format or attendance prevents social distancing. He stated businesses must post signage and distribute masks for free or a small fee. He spoke about $100,000 being used for a public safety campaign, which will target 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 3 of 28 high interaction sites, free masks for businesses to redistribute, and sets up a non -emergency hotline. He stated the ordinance includes a Sunset Clause, which Council will consider repealing when the state emergency order ends. He stated the ordinance proposes no penalties on individuals and practically no penalties on businesses. He stated the only penalty for an individual is that they will be barred entry. He stated if a business has difficulty enforcing the requirement, crime such as trespassing, disorderly conduct, threatening or assaulting another person, can continue to be enforced. He spoke about safety officers being equipped with ample masks for distribution to anyone they encounter that doesn't already have one. He spoke about the penalties for businesses if they willfully neglect the rules. He gave examples for businesses, such as masks will be required in a mechanic's customer service area, but not in the workshop. He stated masks will be required in a corporate lobby, but generally not in employees -only areas. He stated masks will be required in all public -facing areas in a retail setting, such as a grocery or hardware stores. He believes masks wearing can flatten the curve as the economy reopens. He spoke about the ordinance being intended to support business efforts. He stated if the state chooses to challenge the city in court, the entire ordinance is not under threat. He believes the issue of local control and home rules deserves a zealous defense. He spoke about Washington County suffering a unique effect that demands a unique urgency and restrictions. He spoke about masks wearing being the single most important thing the city can do to control the spread of COVID-19. He believes if the state disagrees with the program with the city's notion that masks wearing should be done at a high rate for the public safety, the state should have to argue and justify why the program should stop. He spoke about other options for the state. He spoke about the Emergency Clause and state and local jurisdiction. He stated undoing a law is a harder proceeding and puts the city in a better position with an Emergency Clause being passed. He spoke about the many citizens who worked on the ordinance with him. He stated if the Council votes for this, he would make Council honorary co- sponsors or legitimate co-sponsors if possible. Council Member Kinion stated he appreciated Council Member Petty for bringing the item forward. He spoke about his concerns of not having home rule, but believes the ordinance is necessary. He stated he would be happy to be an honorary co-sponsor. Council Member Marsh: I would be happy to be an honorary co-sponsor. Our primary responsibility is to the health, safety, and welfare of our community. I believe this is consistent with those goals. This echoes the sentiment I have been hearing from the community. Council Member Turk: Thank you for bringing this forward. I have been discussing with lots of folks in the last week who are echoing what is before us. Have you corresponded or heard any information from the Dickson Street merchants or the Chamber of Commerce? With the Emergency Clause, I would like the business community on board. Council Member Petty stated he has heard from several of the merchants in our Downtown. He spoke about the Fayetteville Independent Restaurant Association. He stated he has not heard a formal statement from the Dickson Street Merchants Association, nor has he heard from the Chamber of Commerce. He stated by the correspondence received, there are many business owners who have become aware of this ordinance. He stated he does not want to give the impression that the amount of outreach that has been done in the last two days could not be better with more time. He stated they should have a discussion with the broader business community when an ordinance 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 4 of 28 such as this is done, but after careful thinking, time is of the essence because people are dying. He spoke about a willful neglect cause. Council Member Turk: Have you heard from any business owners that are against this ordinance? Council Member Petty: No, I haven't, but being fair I have not gone down an exhaustive list. I am certain there are business owners in the community that could be against this. I have not heard any significant volume of opposition. The emails I received today, I counted one in opposition and there wasn't a claim this person was a business owner. The overwhelming sentiment of business owners is they need the city to give them back-up and want help with this. Council Member Turk: Chief Reynolds, is this enforceable? What is the burden on the Police Department and any problems you anticipate with enforcing this? Mike Reynolds, Chief of Police: I will do my best to answer that. It's a lot to take in within the last ten minutes. What I am hearing from Council Member Petty is that law enforcement would have a limited response. From that limited response, if a business owner asked someone to leave their business because they aren't complying with the masks ordinance, then they are criminal trespassing. If it goes to the next level where they start becoming verbally assaulting, then it becomes disorderly conduct and could escalate from there. When one of those crimes would be committed is when the Police would respond at that point. What is the definition of the health safety officer and who in the city does that apply to? If that applies to the Police Department, then based upon what I'm hearing, the Police Department will respond to those other complaints as well. I need some clarification with that. As far as it related to responding to the calls where other criminal violations would occur, I have a lot of faith in our community that it would be very rare to not see compliance. The capacity of the calls is a big concern to me. Out of the largest 25 cities in Arkansas, we are 24th per capita. We have responded to about 500 calls in three months related to COVID. I anticipate more of the same if this is passed and that we would see something similar to the same type of complaints we have seen with the Mayor's orders and the Governor's directive. Council Member Turk: Responding to those 500 complaints in the last three months, how has that been on your officers? Did it stretch you thin or could you absorb that additional workload in your office? Mike Reynolds, Chief of Police: Fortunately, we were able to absorb that. It did not overtax us. It has a lot to do with the directives I have given my officers during the COVID pandemic. We aren't out there being as proactive as what we normally would be. Our arrest statistics are down over 80%. Our traffic citations are down 90%. A lot of what we normally do proactively is not being done. Our call volume has been down as well. Since March 12, 2020 comparing year to date, we are down about 7%. Over the last couple of weeks though, the call volume has come up and we are up year to date now, compared to last year. We are seeing our call rate increase as we move from Phase 1 to Phase 2. It is a concern and we need to monitor. Given the current situation nationwide as it relates to law enforcement, it gives me pause for the Police Department to be involved in enforcing a health regulation. There are a lot of perceptions out there and I think we 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayefteville-ar.gov City Council Meeting Minutes June 16, 2020 Page 5 of 28 are a better Police Department than most. We have proven that in the efforts we have done at the Fayetteville Police Department. Council Member Bunch thanked Council Member Petty for his work on the ordinance. She stated she believes citizens want to do what is right and for some people it's not been made abundantly clear we need to do this. She stated this will remove all ambiguity of what is expected of citizens and why it is expected. She believes it will boost compliance. She stated if the city helps provide masks for businesses, she thinks it will make businesses feel safer with being open. She spoke about setting a good example for the entire region. Council Member Smith: The $100,000 you have got in the budget adjustment to support this, is there a reason why we chose the General Fund, as opposed to our emergency reserves we allocated for COVID response? Council Member Petty: No, not a particular reason. I suppose it is because of habit. I didn't consider other funding sources because I knew this one was available and had ample funding. At our last presentation we were looking at several million dollars that were there. Council Member Smith: When we were sent this today, I did a survey of Ward 4 businesses. We mostly have restaurants and gyms that are already fairly well covered under the state guidelines. Car dealerships will conduct a lot of their business outside. I expect that medical clinics and veterinarians have this fairly well under control. I called Wal-Mart, Harps, Walgreens, and Westwood Gardens. I invited them to join us tonight. They don't relish the idea of having to enforce this, but they understand it is healthier for their customers and employees to be wearing masks. Their primary reason for not enforcing it so far is the concern they may drive a customer away to another store. They don't want to be responsible for being the corporation that says you have to do this. We have an opportunity to provide them some cover and to take that mandate from their corporate headquarters and put it in the people's headquarters. For weeks, we have been hearing from the community demanding this and pleading for it. The businesses will work with what is asked of them. I am sure it will be challenged in the courts. This is an unprecedented time and lots of untested assumptions about the separation of powers between the legislative branch and the executive. I am encouraged that the courts have been deferring in favor of action for public health in the last months. Council Member Bunch: I read through the many emails. I was really surprised and expected there would be some pushback from businesses, but I haven't seen it. This is the right thing to do. Council Member Gutierrez thanked Council Member Petty for bringing the item forward and would be happy to be a co-sponsor. She stated she learned from the emails received that people from other communities were willing to leave their community and shop in Fayetteville if the masks ordinance passed. She stated the city taking a progressive forward movement toward helping keep everyone safe will improve the economy. She requested to know if Council Member Petty had heard from food delivery, food processing, and food preparation. Council Member Petty stated not nearly as much as he would have liked. He stated this is an ordinance that has gaps in it and is not an ordinance that captures all scenarios. He stated he did 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteviIle-ar.gov City Council Meeting Minutes June 16, 2020 Page 6 of 28 not feel there was a great deal of clarity on how to craft a reasonable law around those issues, but it doesn't mean that the ordinance fails to address it at all. He stated his experience with numerous conversations with people in the food sector is that if they have an experience driven restaurant, there is already a robust sanitation practice and masks wearing practice. He stated he thinks of the ordinance as a 90% or 95% solution and if they can achieve that, he is hopeful they can figure the rest out socially. Council Member Scroggin thanked Council Member Petty for bringing the ordinance forward. He spoke about the possibility of legal trouble. He spoke about loving his job at the U of A and is ready to teach in front of people. He wants to do what they can to make sure students can come back. He spoke about sales tax loss and landlords suffering if students don't come back. Rob Qualls, 2140 East Jonquil Road stated he is representing For Fayetteville. He spoke in favor of the ordinance. Kathleen Paulson, 115 Mount Nord stated she is a Physician at the University of Arkansas. She thanked Council Member Petty for bringing the item forward. She spoke in favor of the ordinance. Council Member Petty: Chief Reynolds asked for a little clarification on what is intended by the term, safety officer. That term was chosen for flexibility as the administration implements the intended public safety campaign. At the beginning of the outbreak, many of our calls were staffed and fielded via dispatched Fire Safety Officers, as well as Police Safety Officers. I envision masks handouts and health directive signage at high activity entrances. The intention in laying out a couple of tenants of the public safety campaign is to provide guidance to the administration, but not to preclude other actions. $100,000 was chosen as a reasonable budget based on the public engagement workplans that have been included in other workplans at the city, where engagement has been a priority. We can get a lot done with this amount of money, but it may not be enough. We should challenge the administration to spend all the money to great impact and to come back for more if necessary. It seems unclear exactly how this may impact classes at the University of Arkansas. Our assumption would be that it does not affect what the U of A does on their campus. It may be what is necessary to persuade the administration of the university to establish policies that are consistent with the City of Fayetteville. Thank you to For Fayetteville, Farmers Market, Fayetteville Independent Restaurant Association, Partners for Better Housing, health care workers, business owners and customer service workers. Council Member Turk: Would you be willing to delaying the implementation of the Emergency Clause for three days? The businesses and city are going to have to find masks. The outreach campaign you envision, which I support, it's going to take them a little bit of time to structure and organize people to be able to put that into place. I recognize the weekend is coming up and it's most likely when we have the most exposure in certain facilities. Council Member Petty spoke about appreciating Council Member Turk's sentiments about the Emergency Clause. He stated his instinct is that it's important for them to act decisively, but doesn't know if that precludes what Council Member Turk is asking for. He stated the willful neglect clause says as long as a business is making a good faith effort, there's no risk of penalty. He stated posting signs as the law requires and to take steps to acquire masks, is sufficient. He 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes June 16, 2020 Page 7 of 28 stated he's not sure what would, as a practical course would be gained by a delay of implementation of a few days, given the willful neglect clause. He stated it may seem he is relying on that quite a bit, but it's because it is important. He stated it is the first time they have ever used this standard to try an approach an ordinance like this. He believes the Emergency Clause is important. Council Member Turk: I appreciate your willful neglect clause, but I was trying to make it simple. Some business owners and the public may not quite understand what that means. Council Member Smith: Is there an implementation delay even with an Emergency Clause, due to newspaper notification requirements? City Attorney Kit Williams: There is a little bit of a delay. I have never seen an Emergency Clause that didn't say immediately. That is the whole reason you have an Emergency Clause to make it become effective as soon as possible. I've never seen an Emergency Clause that had any time delay built within the Emergency Clause. In order to enforce any punitive parts of the ordinance it requires publication before any of the fines can be imposed. The rest of the ordinance will go into effect. Council Member Smith: Do you know how long that delay is? When will the ordinance be published in the newspaper? Kara Paxton, City Clerk Treasurer: I have been talking with the Northwest Arkansas Democrat Gazette regarding that. For any ordinance we publish, they will only publish in the Sunday paper. I've been working directly with Kit Williams and Blake Pennington. They have been in contact with Cathy Wiles with the Democrat Gazette. Council Member Smith: That would give the span of time we need for people to adjust before any penalties would be in place. It is important we are clear immediately that this is the standard and what is medically recommended for public health. That advice doesn't take effect in three days. That advice should have taken effect weeks ago. Council Member Kinion stated he is careful about invoking the Emergency Clause because he wants to make sure the public is informed. He stated if there ever was a health emergency, this is a health emergency. He stated he's not trying to escalate it to a level that is higher than it is. He stated the willful neglect covers the owner of a business or a business management. He stated the ordinance says businesses have to enforce that people are wearing masks. He requested to know if businesses would need to buy masks quickly. Council Member Petty: The ordinance requires that businesses will distribute masks to the public and have those in their possession to distribute them. The willful neglect does give them time to acquire those masks in good faith effort. Council Member Kinion: Very seldom do I immediately support an Emergency Clause. It lets the public know we are taking this seriously because it is a serious matter. I have no problem with invoking the Emergency Clause on this legislation. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 8 of 28 Council Member Gutierrez: I don't have a problem invoking the Emergency Clause. I appreciate Council Member Turk's consideration for giving businesses time to prepare. We don't need to delay this. We are a bit behind and maybe we could have prevented the spike in the number one county leading cases in the whole State of Arkansas. I read from the Arkansas Health Department about the directive of resuming restaurant and dine in operations. They updated their Phase 1 from Phase 2. It clearly says staff who comes into contact with the public should always wear a mask that covers the nose and mouth. The staff in the back are encouraged to wear face masks, but that's problematic for me with people who are preparing food and are not required to wear a mask. I'm willing to have some discussion and amend that as soon as we can. I don't want to complicate what we already have out there now. Mayor Jordan: If we are going to provide masks, how would we go about getting the masks? Chief Hardin was telling me that they are difficult to come up with. Is that true? Brad Hardin, Fire Chief: That is absolutely correct. It took us more than a month to get our hands on 2,000. We had 1,000 for the Fire Department and 1,000 for the Police Department. I believe Paul was talking to Andrea about that. Did you find out? Paul Becker, Chief Financial Officer: We won't be able to know when delivery will be until we place the order. Nobody will commit until you actually place an order with them. It is going to take some time before we can procure masks and I'm not sure how long it will take. We will try to get them as quickly as possible, but it will take some time. Susan Norton, Chief of Staff. Is competitive bidding something we need to dispense with? Paul Becker: If we go over $20,000 it would violate the procurement law. We can keep it under $20,000 worth of masks at this point. Once we locate a vendor, we can come back and deal with that. Susan Norton: The first order would be however many we can get. Are they $3 each? Paul Becker: We have seen some that are $3 each and we could place an order for as many as we can get for that sum. We can talk about the procurement situation after that and then place the second order. Mayor Jordan: Do we have to put it out for bid? Paul Becker: We should put it out for bid if it is over $20,000 or get a waiver. However, what I am suggesting, is we put it out for as many as we can get for $20,000. We can get that order placed, receive those masks, and get a secondary order. We will then bring the purchasing back that we can override the need for competitive bidding. Susan Norton: That would be about 6,000 we could get in our first order. Council Member Petty: It seems there is a miscommunication that the expectation is we will provide the highest level of masks based on the pricing that has been put forward. Masks are 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes June 16, 2020 Page 9 of 28 available on the consumer market for much less than $3 each. I don't feel we need to go through a procurement right now, except for understanding what the process is. This is about providing masks that are effective and we can provide at volume. Susan Norton: I understood that. The research we did initially was for a three-ply fabric and it was not of the type that would be needed for severe situations, which is what most people are buying. If you are meaning those little surgical masks, then that is a different story because they are cheaper. We need come clarification from the expectation of what we believe would be effective. Council Member Petty spoke about what he thinks the expectation is. He stated the intention is for whatever the city can do at the necessary volume. He spoke about bulk purchases of disposable ear loop masks as commonly worn by health care workers. He stated he wouldn't preclude creative solutions. Mayor Jordan spoke about the economical price of each masks and how many will be needed. Paul Becker spoke about the pricing and efficiency of obtaining masks. Mayor Jordan: If we need to spend more than $20,000 then you all would have to approve that. In the discussions I am hearing, everybody wants to move on this quickly. Council Member Turk: Do we have the same limit and requirements on Emergency Funding as we do on General Funds? Paul Becker: It's not just General Fund, it's any type of bid and procurement. As the ordinance is written, it doesn't talk about what fund it comes out of. We will procure $100,000 in the Emergency Fund since it is left up to administration. However, the procurement rules apply across the board. We should be able to get a substantial amount of face coverings for $20,000. My recommendation is to do that and procure what we can for that amount of money. In the meantime, we find sources and we go out for a larger purchase at that point. Later if it looks like there is more money, then we discuss a budget adjustment for over the amount we had. Masks in volume takes time to get. Council Member Smith: One of our common processes is to waive competitive bidding for exceptional situations where the bidding procedure is not feasible. Would this emergency situation qualify? Paul Becker: It's not something we can do right now because we don't have procurement toward you with a specific vendor. Once we establish a vendor, we could do that. Normally, we come back with an ordinance, waive competitive bidding, name the vendor for the amount and we push it forward. Right now, we can do what we can with $20,000. Later we can come back with an ordinance to waive competitive bidding for a larger quantity. Mayor Jordan: Council, give me enough latitude to let me work on it and I will make it happen. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 10 of 28 Council Member Petty: That is what we are intending to do. Paul's plan makes sense and is a workable plan. I want to encourage the Council Members to think in terms of program management. After the first $20,000 we will know how many we need, how fast we are distributing them, and if we need to change the kind of masks we are purchasing. I hope we can use this as an opportunity to pursue new partnerships and approach our COVID response creatively. Mayor Jordan: I know Kit has some legal concerns. City Attorney Kit Williams: I sent a memo to the City Council because I'm very concerned this is beyond the power of the City Council to do. If you look at the directives from the Secretary of Health for the COVID virus, they all begin the same way. It says the Secretary of Health in consultation with the Governor has sole authority over all instances of quarantine isolation and restrictions on commerce. The State Health Department has the authority to promulgate health regulations having the effect of law for the purpose of efficiently controlling communicable diseases. If you look at statute ACA 20-7-109 Authority to Regulate Public Health, it says the power is confirmed on the state board of health to make all necessary and reasonable rules of a general nature for the protection of public health and safety, suppression and prevention of infectious, contagious, and communicable diseases and the proper enforcement of quarantine, isolation and control of such diseases. The legislature chose to use all because the courts have interpreted it what the Board of Adjustment puts out through its directives creating actual law and not just regulations. I am very concerned because the State Board of Health and the Governor have made it clear on numerous occasions that they believe they have sole authority for these sorts of regulations, and they will not attempt to regulate face masks wearing by the general public in many situations. On a personal note, I believe in face masks wearing. It is by far the smartest thing to do and wish everybody did it. In this case, it is only a question of law that I am addressing as your City Attorney. My concern is if the Governor, despite the fact he has told us numerous times that he has the sole authority over these issues, that he will just go ahead and let Fayetteville go its own way and do things he has expressly said he would not do, which is require the wearing of face masks. It's possible there will be no action taken. The Attorney General doesn't have to have the Governor to request her to take action. She can take action to defend any state statute she believes is being violated and challenge our ordinance. This ordinance is intended to preserve the health and safety of our citizens. We have many statutes that grant us the power to protect the health and safety of our citizens, but every one of those statutes that has that, also has this provision not inconsistent with the laws of this state. I am very concerned as the City Attorney that the City Council might be exceeding the power that has been granted to the cities by the state. This should not be viewed upon as a power struggle between the city and the state. The cities and counties are created by state statutes. In any power struggle we lose because they created us. If you want to pass this, I can't recommend that as the City Attorney. I supplied another potential option, which would use the power of our citizens to ensure our businesses would begin to do the same thing you are wanting them to do now. They would do it because of what the citizens would be telling the businesses rather than what the City Council would be telling the businesses. That would be legal. Council Member Kinion: If you are an elected official you are representing your constituency. You do the right thing and move forward with what they ask you to do. Even if we are challenged, we have done the right thing. I don't have any reservation about moving forward on this. This makes a statement to every municipality. We do not have home rule in this state. We have Russell's 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 11 of 28 rule and it's not allowing different personalities of different municipalities to govern by the will of the citizens that live in the municipality. We had 15 minutes worth of reasons not to do it, but this is the right thing to do. Council Member Gutierrez requested to know if they get challenged, what is the worst -case scenario. City Attorney Kit Williams: I'm not sure what the worst -case scenario could be. The Attorney General could take us to court, get an immediate temporary restraining order, and preliminary injunction against ever enforcing the ordinance. Whether there would be much in the way of damages, I can't opine on. I didn't know anything about this until yesterday, which is when Council Member Petty emailed me and said he wanted to do an ordinance. I am not prepared at this point to say what all the downsides could be. I hope not very much, but I can't assure you that it would not be. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Marsh seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Marsh moved to suspend the rules and go to the third and final reading. Council Member Kinion seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Smith spoke about doing the right thing. He stated the right thing is all they have been asking for from the state government and failing to provide for the city. He spoke about willful neglect. He stated this isn't choosing to go it alone for Fayetteville. He stated Fayetteville has been left alone in Northwest Arkansas to fend for ourselves. He spoke about Fayetteville being a leader. He stated he supports the ordinance for the health and safety of the citizens of Fayetteville and hopes other cities will join in passing their own ordinance. Mayor Jordan stated some excellent points have been made. He stated he has been on the front lines of this thing, as have others since March. He stated it has been a grind every day and that includes weekends. He stated he has tried to work within the confines of the state government. He spoke about being concerned three weeks ago when he saw the numbers increasing. He stated he felt for a while we had not hit our first wave and is afraid we have not hit our second wave yet. He stated the top priority is to keep citizens safe. He stated we were elected to make decisions and do what we think is right. He spoke about other ordinances that Fayetteville has passed and been challenged on. He stated City Attorney Kit Williams has always done a tremendous job in defending the city. He stated if the ordinance is passed, he will make it work and be enforced. He believes it will cost more than $100,000. He thanked the Council for being in unison. Mayor Jordan asked shall the ordinance pass. Upon roll cell the ordinance passed unanimously. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 12 of 28 Ordinance 6323 as Recorded in the office of the City Clerk Council Member Marsh made a motion to approve an Emergency Clause. Council Member Kinion seconded the motion. Upon roll call the motion passed unanimously. Emergency Clause Approved City Attorney Kit Williams stated he would withdraw his walk-on since the ordinance passed and there is no need for a resolution. Consent: Approval of the June 4, 2020 City Council meeting minutes. Approved 2020 Coronavirus Emergency Supplemental Funding Program Grant Award: A resolution to authorize the acceptance of a non -matching 2020 Coronavirus Emergency Supplemental Funding Program grant award in the amount of $117,051.00 for the Police Department to fund of overtime, equipment, personal protective equipment, and disinfectant supplies; and to approve a budget adjustment. Resolution 163-20 as recorded in the office of the City Clerk RFQ #20-01 FTN Associates, Ltd.: A resolution to approve a professional engineering services agreement with FTN Associates, Ltd., pursuant to RFQ #20-01, in the amount of $78,500.00 for the analysis of Hamestring Creek, Hamestring Creek Tributary 3, and the South Fork Hamestring Creek for potential improvements to help alleviate flooding. Resolution 164-20 as recorded in the office of the City Clerk Burns & McDonnell Engineering Company Inc. Supplement Agreement No. 1: A resolution to approve Supplement Agreement No.1 to the contract with Burns & McDonnell Engineering Company, Inc. in the amount of $52,967.00 for additional water and sewer design services associated with the Highway 112 Project, and to approve a budget adjustment. Resolution 165-20 as recorded in the office of the City Clerk Emery Sapp and Sons, Inc.: A resolution to award Bid #20-41 and authorize a contract with Emery Sapp and Sons, Inc. in the amount of $440,907.46 for construction of the Old Wire Road and Old Missouri Road Intersection Improvements Project, to approve a project contingency in the amount of $66,136.00, and to approve a budget adjustment. Resolution 166-20 as recorded in the office of the City Clerk 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 13 of 28 Sweetser Construction, Inc.: A resolution to approve a contract with Sweetser Construction, Inc. in the amount of $325,885.00 for the construction of the Steamboat Drive and Dorothy Jeanne Street Connection, to approve a project contingency in the amount of $48,880.00, and to approve a budget adjustment - 2019 Transportation Bond Project. Resolution 167-20 as recorded in the office of the City Clerk Casco Industries, Inc.: A resolution to authorize the purchase of bunker gear from Casco Industries, Inc., pursuant to a regional cooperative purchasing contract, in an amount not to exceed $107,000.00. Resolution 168-20 as recorded in the office of the City Clerk United States Department of Agriculture Community Compost and Food Waste Reduction Program: A resolution to authorize an application for a matching grant from the United States Department of Agriculture Community Compost and Food Waste Reduction Program in the amount of $90,000.00. Resolution 169-20 as recorded in the office of the City Clerk Council Member Smith moved to accept the Consent Agenda as read. Council Member Marsh seconded the motion. Upon roll call the motion passed unanimously. Unfinished Business: Amend Rules of Order and Procedure: A resolution to amend The Rules of Order and Procedure of the Fayetteville City Council to require the public to sign in to speak, to limit city staff and applicants' presentation time to ten minutes each, to only allow public comment for amendments by City Council approval, and to make other changes. At the March 3, 2020 City Council Meeting this item was tabled to the April 7, 2020 City Council Meeting. At the April 7, 2020 City Council Meeting this item was tabled until the 061212020 City Council Meeting. Note: The Sponsors of this item will request to have it tabled at the 061212020 City Council Meeting. At the June 4, 2020 City Council meeting this item was tabled for two weeks. This item will be placed on the June 16, 2020 City Council meeting. City Attorney Kit Williams: The first item on New Business is not actually there yet. It should have been there. In order to assist the City Council, instead of saying we should have tabled it for 12 days instead of 2 weeks, I suggested it to be tabled until July 7, 2020, which was not the intent of the City Council, but they went ahead and did that. If they want to discuss the Rules of Order and Procedure, they need to move to remove this resolution from the table so it can be before the City Council. Council Member Gutierrez moved to remove the resolution from the table. Council Member Smith seconded the motion. Upon roll call the motion passed unanimously. Council Member Smith gave a brief description of the resolution. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 14 of 28 Council Member Petty stated his appreciation for how the resolution evolved. He spoke about the practicalities of implementing the resolution. He stated the Communications Director and City Clerk have attended more meetings virtually than they have attended meetings in person. He stated for those reasons he's advocating they vote on this so they can have a clear set of rules to be implemented when in -person meetings are resumed and not have to train staff on two sets of rules. He spoke about the way Council votes in meetings. He stated they conduct verbal votes, but they have the technology to click a button. He stated there is a lot of work happening behind the scenes that is being done by a lot of the staff, especially our City Clerk in these meetings. He stated there is a lot of paper pushing, clicking, and manipulating of data to conduct a vote. He stated he's impressed the past Clerk and current Clerk have been able to manage it so well. Council Member Kinion stated he doesn't believe anything is being made easier. He stated what they currently have is easy and allows people to voice their opinion. He stated a lot of people can't get through every one of their points in three minutes. He stated an action would have to be made to make it for five minutes, which will add more work, not less. He stated if Council had been to a state hearing, there's a whole new game in how you sign up to get the priority to get where you are. He stated it will be more complicated rather than easier as the meeting moves along. He spoke about the late Council Meetings in the past. He stated when they changed the 10-minute limit, it improved the flow of the meetings. He spoke about Fayetteville being an engaged community. He stated making it easier for citizens to speak out regarding any issue, is valid and valuable. He stated he doesn't see how this is allowing the community to have the opportunity to express how they feel on different issues. Council Member Smith spoke about there being no additional action required after three minutes. Council Member Turk: I am concerned about the sign-up process because of my previous experience at various state and federal meetings. It doesn't allow last minute folks to come in and sign up. It's not an easy situation. I question our timing if we choose to vote on this tonight. We've had very little public comment since we have done our Zoom meetings. I would like to hear from the public about these changes. We have so many passionate and engaged people in our community. I do not want to do anything to limit their ability to provide us with their information, perspective, and recommendations. Especially now, since we are not having very much public dialogue. I know our intentions have been good and I commend the work that's been put into this, but the timing is terrible. We should hold off on this item. Council Member Petty stated another two weeks doesn't feel like it is a mistake and could support that. He stated he doesn't feel strongly that these rules need to be adopted tonight. He stated he feels it's important they adopt them before they resume public meetings if they are going to adopt them at all. He requested for Keith Macedo to speak about a sign-up process. Keith Macedo, Information Technologies Director: We created a draft Laserfiche form. The IT staff, working along with Kara in the City Clerk's office, to address public comment issues. When COVID started ramping up in the area, we were looking for an additional method for the citizens to request comments to meetings. It's kind of in draft form and we didn't continue with that, but we did create one that would be a good starting point for this process. We would have to make some tweaks to that. One of them would be adding a drop -down list for what item, whether it was 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes June 16, 2020 Page 15 of 28 Consent, New Business or Old Business and then we would have some free form texts on what exactly you would want to comment on. We could have a standard template that we could use for City Council meetings where people could request to speak. It could be published prior to the meeting and published during the meeting. We could have an iPad or some type of device at the City Council Chambers, where someone takes care of sanitizing the device during our current situation, but be able to have people enter their information. We would have a staff member be able to monitor it and see who was requesting to speak. We have technology that can be used to allow our citizens and the public to request to speak if needed. Council Member Petty: The process and technology you described, would this form be accessible to members of the public from their own devices? Keith Macedo: That is correct. It would be publicly accessible. Other than staff time, there is no additional cost to the tool. Council Member Petty: Thank you. That is meaningful for the Council. I am sensitive to the concern. If the Council implements a sign-up procedure and it doesn't work, I hope staff will bring us that feedback so we can react to it. Kara Paxton, City Clerk Treasurer: Thank you so much, Keith for bringing up the Laserfiche form that our IT Department worked directly with me on completing and creating. That has been published to our site. If you go to the City of Fayetteville home page and click on Government, click on City Clerk Treasurer, click on Submit a Comment, and it takes you directly to, Submit Public Comment. I believe this has been live since the end of March. I can get that specific date. Susan Norton, Chief of Staff. The reason we brought it live is to remind everyone we needed a registration process to preclude the Zoom bombing that happened when we first started Zooming. This process allowed people to have a way to say they wanted to go ahead and sign up. That's how people get in right now in order to be able to raise their hands to speak via Zoom. Council Member Gutierrez: Thank you to Keith and Kara for helping us get this technology going. There is a lot going on, but this is a good time to start working on this because of the situation. We are not in -person, so it gives time for people to interact digitally. Hopefully, there are ways that people can get help if they need it and time to help us get a new sign -in sheet. Being able to record the people who are coming to speak would be nice to have as part of the record. Susan Norton: It seems like you could have a hybrid approach. You could do as much sign up as you can, digitally. After the Mayor has invited all those who have digitally signed up, then the people who are here and didn't do that, could ask to speak as well. Council Member Smith stated that was the intent and they discussed that at the committee. Council Member Petty: I heard what Council Member Turk said about tabling. If we were to table this for another two weeks and the ordinance were to return to our next meeting under the same conditions, could you see yourself supporting the ordinance? 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteviIle-ar.gov City Council Meeting Minutes June 16, 2020 Page 16 of 28 Council Member Turk: My motion would be to table it until we have a public meeting again. We didn't have any public comment on this tonight. The public is intimidated with our process now and I have heard that from many people. Not just my age or older, but also younger people. There are significant obstacles to their participation. I would like to hear from them about these revisions to the procedures to the process. We have had very long meetings in the past, but that's what we signed up for. This is why we ran for office and with the understanding that Fayetteville is very vocal. Our citizens are engaged, and we aren't like other cities in Arkansas, which is a good thing, but it can be exhausting. Mayor Jordan spoke briefly about tabling the item. Council Member Scroggin: I am okay with tabling it, but not indefinitely or until people can come back. I would like this in place when people come back. People have been discussing this. I don't see the purpose of waiting indefinitely. Council Member Turk made a motion to table the resolution until City Hall opens. Council Member Kinion seconded the motion. Upon roll call the motion failed 2-6. Council Members Turk and Kinion voting yes. Council Members Scroggin, Bunch, Smith, Gutierrez, Marsh, and Petty voting no. Council Member Smith: This is something that gets reviewed at the first meeting of January every year. Giving it a trial now gives us a chance to know if it will work before our next review. If we don't like how it goes, we can change it again. Council Member Petty moved to approve the resolution. Council Member Marsh seconded the motion. Upon roll call the resolution passed 6-2. Council Members Scroggin, Bunch, Smith, Gutierrez, Marsh, and Petty voting yes. Council Members Turk and Kinion voting no. Resolution 170-20 as recorded in the office of the City Clerk RZN 20-6996 (Hughmount Rd. North of Mt. Comfort/Hughmount Rezone) Appeal: An ordinance to rezone that property described in rezoning petition RZN 20-6996 for approximately 152.00 acres located at Hughmount Road North of Mount Comfort Road to R-A, Residential Agricultural; RSF-I, Residential Single Family, 1 unit per acre; RSF-8, Residential Single Family, 8 units per acre; NC, Neighborhood Conservation; and NS-G, Neighborhood Services -General. At the 0511912020 City Council meeting this item was left on the first reading. At the June 4, 2020 City Council meeting this item was tabled for two weeks. This item will be placed on the June 16, 2020 City Council meeting. City Attorney Kit Williams: The original thoughts from City Council was to table it for a couple of weeks. However, it was tabled to July 7, 2020. Robert Rhoads is representing the applicant and is getting a Bill of Assurance. He would like to leave it tabled until July 7, 2020. There was a brief discussion about hearing the item on July 7, 2020. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 17 of 28 Garner Stoll, Development Services Director: I got an email from Robert Rhoads requesting that it be tabled until July 7, 2020. City Attorney Kit Williams: The City Council doesn't need to do anything. It will be tabled until July 7, 2020 as was done two weeks ago. The ordinance will be heard at the July 7, 2020 City Council meeting. RZN 20-7076 (3010 W. Old Farmington Rd./Stricklin): An ordinance to rezone that property described in rezoning petition RZN 20-7076 for approximately 4.84 acres located at 3010 West Old Farmington Road from RSF-8, Residential Single Family, 8 units per acre to NC, Neighborhood Conservation. At the June 4, 2020 City Council meeting this ordinance was left on the second reading. City Attorney Kit Williams read the ordinance. Garner Stoll, Development Services Director stated he didn't have anything to add to the presentation from two weeks ago. Brian Teague, Applicant's Representative stated he was available for questions. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6324 as Recorded in the office of the City Clerk New Business: Amend Ordinance No. 6250: An ordinance to amend Ordinance No. 6250 by amending its Section 2 to delay its effective date until December 15, 2020. Mayor Jordan: Council Member Turk, you would like to not table this and you would like to make it effective on July I". Is that correct? Council Member Turk: That is correct. Last night we had an Environmental Action Committee meeting. They unanimously voted to go ahead and enact the polystyrene ban effectively July I". It made me rethink and reconsider delaying that. They made some very good points about why we should go ahead and enact it now. We have already delayed it two months. Maybe this would be unfair to some of the other businesses that have already made the switch. I would like to withdraw this. City Attorney Kit Williams: You just need to move to table this indefinitely. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 18 of 28 Council Member Smith: Mayor, has your office received numerous comments about this? We got an email from one business owner. Mayor Jordan: I've gotten three businesses. They said they had already ordered their material and would have to scrap everything they had bought and change. Susan Norton, Chief of Staff. They were not able to satisfy the orders because of a delay with the supply chain. City Attorney Kit Williams: Mayor, you would have the power when you are administering this ordinance because of the COVID pandemic problems. If someone has legitimately attempted to get supplies, we don't have a willful neglect for a standard. If it's impossible for a franchiser to get, the franchiser should use the non -Styrofoam materials they have, but be able to continue to use their others until at least they can get the replacement for the Styrofoam. Mayor Jordan: So, they would use up their stock of Styrofoam and then change over when they do an order? City Attorney Kit Williams: You are granted some discretion if it is impossible for the franchisee to get the proper materials. Council Member Smith: My concern was the notice that we had might be the tip of the iceberg for a much bigger problem. I've only had three companies complain. I suspect it's not as bad as imagined. I've been eating out a lot since the pandemic started. I'm amazed at how many restaurants have managed to switch over and meet the requirements. Council Member Turk: One of the issues we discussed last night was that if their supply chain does not provide for that particular size of beverage container, they receive the order for two other sizes. As long as they are making a good faith effort to try and comply, we should go ahead and have this implemented July 1 St and not penalize other businesses that have made the changeover. There was a brief discussion about good faith efforts. Mayor Jordan: If it's alright with everybody, I will make a judgement call on this thing. Council Member Gutierrez: That's great. Council Member Turk made a motion to table the ordinance indefinitely. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. This ordinance was tabled indefiniteh% Nabholz Construction Corporation Change Order No. 2: A resolution to approve Change Order No. 2 to the contract with Nabholz Construction Corporation for pre -construction services 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 19 of 28 related to the replacement parking deck for the Cultural Arts Corridor Project at no additional cost to the city. Wade Abernathy, Bond Projects & Construction Manager gave a brief description of the resolution. Council Member Gutierrez thanked Nabholz for the opportunity and generosity. Mayor Jordan: Thank you. Council Member Gutierrez moved to approve the resolution. Council Member Smith seconded the motion. Upon roll call the resolution passed 7-0. Council Members Scroggin, Bunch, Turk, Smith, Gutierrez, Marsh, and Kinion voting yes. Council Member Petty was absent during the vote. Resolution 171-20 as recorded in the office of the City Clerk Vacation (SW of N. Gregg Ave. & W. Lawson St./Hog Trough): A resolution to approve the vacation of a 154.22 square foot portion of a tree preservation easement located Southwest of North Gregg Avenue and West Lawson Street in exchange for the owner's offer to dedicate an additional 443.34 square feet of tree preservation easement. Melissa Evans, Urban Forester gave a brief description of the resolution. She stated staff recommends approval. Council Member Gutierrez moved to approve the resolution. Council Member Smith seconded the motion. Upon roll call the resolution passed 7-0. Council Members Scroggin, Bunch, Turk, Smith, Gutierrez, Marsh, and Kinion voting yes. Council Member Petty was absent during the vote. Resolution 172-20 as recorded in the office of the City Clerk RZN 20-7100 (514 E. Johnson St./Gold-Walsh): An ordinance to rezone that property described in rezoning petition RZN 20-7100 for approximately 0.16 acres located at 514 East Johnson Street from RSF-4, Residential Single Family, 4 units per acre to RSF-8, Residential Single Family, 8 units per acre. City Attorney Kit Williams read the ordinance. Garner Stoll, Development Services Director gave a brief description of the ordinance. He stated the Planning Commission and staff recommend approval. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 20 of 28 Kristin Knight, Applicant's Representative gave a brief history of the neighborhood. She spoke about the development patterns of the neighborhood, lot sizes and the neighboring parcels. She spoke about infill development and accessory dwelling units. Council Member Turk: Could you please explain how the tree factors into the RSF-8 request. Kristin Knight: Most of this neighborhood has some really large established trees. We have a 24- inch maple and 22-inch pine we are trying our best to work around, as well as an existing 1,000 square foot house and a carport from the early 60's. This change in zoning changes the back setback. This is allowing us to use an area that doesn't have any significant trees and work with the natural amenities on the site, which is what the accessory dwelling unit code encourages. Garner Stoll: The RSF-4 and RSF-8 setbacks are very similar with the exception of the rear setback. The RSF-8 has a 5-foot rear setback. RSF-4 has a 15-foot rear setback. So, by putting the accessory dwelling unit further to the rear, they can save some trees between the main house and the back of the lot. Council Member Turk: Thank you both for that explanation. That helps me out quite a bit. Council Member Gutierrez: Did the Council Members of this ward hear from anyone? I didn't hear from anybody. Council Member Kinion: I didn't hear anything from anyone. Council Member Gutierrez: Do you think enough time has been given for them to get their letters and give feedback? Council Member Kinion: I would rather give more time. People are not figuring out how to be interactive these days. Council Member Gutierrez: I'm for holding it here to give people more time. This ordinance was left on the First Reading. Appeal: RZN 20-7080 (360 N. Arkansas Ave./Sigma Phi Epsilon): An ordinance to rezone that property described in rezoning petition RZN 20-7080 for approximately 0.20 acres located at 360 North Arkansas Avenue from RMF-40, Residential Multi -Family, 40 units per acre to DG, Downtown General. City Attorney Kit Williams read the ordinance. Garner Stoll, Development Services Director gave a brief description of the ordinance. He stated the Planning Commission recommended denial of the request and if approved Planning Commission suggested additional design controls. He stated staff recommends approval because they think the use is appropriate on the lot. He stated there are citizen concerns about the setback. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 21 of 28 Council Member Smith: Do you have any information or insight into the rationale for some of the zoning requirements that are very specific to Greek houses? Why the 500 square feet in the one acre minimum? Garner Stoll: I have those very same questions. That's why we pulled the staff reports on a number of the variances that went through Board of Adjustment. Staff in 2018 took the position their requirement was invalid and recommended approval of the variance. They took the position that fraternity and sorority's in the zoning code are multi -family housing and it created a hardship and they recommended approval. Typically, staff is reluctant to find it a hardship. Council Member Petty thanked Jonathan Curth for his report. He stated he wants to know if there are other cities who have targeted signature streets themselves with design standards or requirements. He spoke about Arkansas Avenue being a signature street. He stated he does not have any problems with what the proposed zoning would allow in general, but Arkansas Avenue is special. He stated he is not going to oppose this over the uses or density, but the form in the way the buildings meet the street on Arkansas Avenue is something he thinks is important to preserve. He stated he doesn't have the same concerns about side streets to the extent as he does about Arkansas Avenue. He stated if it stays on the agenda past tonight and staff is able to extend the research that's already taken place with some examples of other cities and what they've done on a street base program, he'd like to see it. Garner Stoll spoke about a program that Austin Texas has, which has mandatory provisions and incentive base provisions. Council Member Turk spoke about biking down Arkansas Avenue. She spoke about the historical nature of the street. She requested to have the Historic District Commission along with Developmental staff to investigate how to make Arkansas Avenue a historic street and provide specific protections. She spoke about public concern about the building and the fronting of the fraternity house. Council Member Scroggin: If this property was owned by the U of A, would we have to grant them the rezone? Garner Stoll: They would not be under our zoning requirements. Council Member Petty: The applicant missed the call earlier for introduction and had their hand raised. Blake Jorgensen, Applicant's Representative: We issued a Bill of Assurance that addresses the setbacks and Kit has a copy of that. Kit, have you had the opportunity to show the Bill of Assurance? City Attorney Kit Williams: Unfortunately, I have not. We were working on Council Member Petty's ordinance all afternoon. The ordinance will have to be slightly changed to reflect that you are submitting a Bill of Assurance. I don't think we should have a final vote today. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes June 16, 2020 Page 22 of 28 Blake Jorgensen stated a PowerPoint presentation from the architect would help exemplify what they are trying to achieve. He stated his company has been in business for 35 years. He stated typically they come to City Council with a very concise direction from the Planning Commission, but given the nature of things currently, he didn't have an opportunity to get any feedback. He spoke about Zoom problems. He spoke about the historical aspect and development rights. He stated he wants to encourage a dialogue and feedback with City Council because that didn't occur at the Planning Commission. He stated the Bill of Assurance will ensure there will be a 15-foot front setback, a 15-foot rear, and 7-foot sides. He stated that meets or exceeds the current zoning standards. Melissa Skopek, Architect for Sigma Phi Epsilon gave a brief description of the project. She spoke about the design goal creating a meaningful contribution to the neighborhood. She stated throughout the design process she has worked with Sig Ep to create a simple and balance design that stays within the zoning requirements as much as possible and adds to the rich history and diversity of Arkansas Avenue. She stated most of the response in opposition of the rezoning is misunderstood information on the design of the proposed building. She stated the property has been functioning as a fraternity for 35 years with 12 of those years being under Sigma Phi Epsilon. She spoke about rezoning requirements and other fraternity houses in the area. She spoke about setbacks. She spoke about parking. She spoke about a sense of belonging. Mayor Jordan: Blake, how much more of a presentation do you have? Blake Jorgensen: Phillip McKnight wants to speak. Hopefully, seeing the illustration will allow a conversation to begin. Mayor Jordan: I think this is going to be back to the Council in two weeks. Phillip McKnight, 1969 West Archer stated he is on the Sig Ep Alumni Board Association. He stated it is his hope that Council will allow Sig Ep to rebuild the fraternity house that is on the same site. He gave a brief historical presentation of the fraternity house. He spoke about setbacks. He spoke about parking. He stated the new building was designed to enhance Arkansas Avenue. He stated he's requesting for Council to allow the rebuilding of the fraternity house, which he believes was previously approved by city leadership. Maureen Hogan Block thanked Council for reading all the letters from the neighbors that are opposed to the rezoning. She stated it is not compatible with the area. She spoke in opposition of the ordinance. Jack Otten, 4190 East Canvas stated he has been a member of Sigma Phi Epsilon for over 30 years. He stated all Greek organizations have their challenges and spoke about the great young men in Sig Ep. He spoke about it being compatible with the area. He spoke in favor of the ordinance. Evelyn Stilwell, 358 Arkansas Avenue stated she appreciates the design elements, but the bulk of the building planning to be built still stands out. She spoke about parking and setback concerns. She spoke in opposition of the ordinance. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 23 of 28 Jeffrey Block, 370 Arkansas Avenue thanked Council for reviewing all letters written. He stated he would like to get updated copies of the setbacks proposed. He spoke about the rezoning request not being compatible. He spoke about parking and utility concerns. He spoke in opposition of the ordinance. Paula Marinoni, 617 Lafayette Street spoke about restoration efforts and the historical area. She stated they don't need to look at what other cities are doing because the people of Fayetteville know what they have here and are knowledgeable about what needs to be done. She spoke in opposition of the ordinance. Rachel Gurner, 383 North Fletcher spoke about parking concerns. She spoke about the rezoning not being compatible with the area. She spoke about tree preservation. She requested for Council to consider the past behavior of the fraternity. She spoke in opposition of the ordinance. Diane Block, Co-owner of 370 North Arkansas Avenue. She stated she lives in Santa Fe, New Mexico. She spoke about speaking to the Planning Commission and the letters she sent to Council. She spoke about the fraternity not being good neighbors and listed the reasons why. She spoke about the rezoning not being compatible. She spoke in opposition of the ordinance. Council Member Petty: Blake, it seems you were lamenting you didn't get a chance to present some information to the Planning Commission. You speculated they may have considered your application differently had you been able to do that. Would you prefer to have another chance at the Planning Commission with your new information? Blake Jorgensen: Whether it's the Planning Commission or City Council, a lot of things that have been presented tonight were out of context of something that was to the neighbors 7 years ago. We have a Bill of Assurance that is presented to you all. We have a new architectural standard we try to present. I'm not saying I want to go back to Planning Commission. I would like to have a dialogue. Rezonings are about context and compatibility of the neighborhood and we never talk about what is being presented. Tonight, we are offering a Bill of Assurance saying we are presenting a fraternity and opening ourselves up to exposure. It's fine to be left on this first reading so the new information can get out to everyone and conversation occur. Council Member Petty: I hear you say, you prefer we not send it back to the Planning Commission. This ordinance was left on the First Reading. RZN 20-7086 (1278 W. Hendrix St./Oak Equity Partners): An ordinance to rezone that property described in rezoning petition RZN 20-7086 for approximately 0.51 acres located at 1278 West Hendrix Street from RSF-8, Residential Single Family, 8 units per acre to RI-U, Residential Intermediate -Urban. City Attorney Kit Williams read the ordinance. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 24 of 28 Garner Stoll, Development Services Director gave a brief description of the ordinance. He stated Planning Commission recommended approval 5-3. He stated staff recommends denial. Bill Fugitt, 1275 East Oaks Manor Applicant stated his intention is to increase density and have single-family homes that are affordable. He spoke about walkability in the area. Council Member Petty spoke about the spectrum of variety, comprehensive plan, and future land use designations. He stated he does not agree with the characterization that was given earlier. He stated it is a mischaracterization to say single-family houses with the potential for accessory dwelling units meet the standard called for in the future land use designation. He stated this location has a different future land use designation that calls for a higher level of variety and the kind of variety that is already allowed everywhere. He spoke about single-family exclusive zoning being a high barrier to entry. He stated it feels like we aren't following what has been set forward in the comp plan and worries it's because the Planning Department has taken it upon themselves to navigate the politics of the decisions, rather than to make a simple technical recommendation about the outcomes as they relate to our expressed goals. He spoke in favor of the rezoning. Council Member Turk: We saw this last year and we talked about how that initial mistake compounded and changed the neighborhood. We heard a lot of comments from neighbors at that time. We are not hearing a lot of public comment right now. This has been a stable neighborhood. The neighbors do not want to change. We need to keep compatibility in mind. The recent COVID situation is going to affect us economically in the long term. I am glad we passed this masks ordinance. We don't know if students are going to come back in the numbers this Fall or if we will have Razorback football. There are a lot of unknowns here and we should not make dramatic changes to a modest neighborhood. I will not be supporting this. Council Member Kinion: I support the neighbors that have fought so hard to protect the heritage of their neighborhood. There is a building opportunity the way it is zoned that can meet the goals of the builder. We know there was an error made on this street that started a domino effect and is used as an anchor to make an excuse for rezoning. When we do these zonings, infills, and talk about affordable housing, it just hasn't happened. I know it is a supply and demand thing. Affordable housing is already in this neighborhood. We can preserve the neighborhood and respect the wishes of the people who live here. Maybe what we need to do more is not spot zone, but do rezonings of larger areas where there is a lot of input. I will not be supporting this. Council Member Gutierrez spoke about being on a tour at the location. She stated it was clear the neighbors were opposed to the upzoning. She stated she will stand with the neighbors in the preserving of their neighborhood. She spoke in opposition of the rezoning. Council Member Smith suggested leaving the item on the first reading. This ordinance was left on the First Reading. RZN 20-7089 (1139,1213,1237,1251, & 1283 W. Hendrix St./Marks): An ordinance to rezone that property described in rezoning petition RZN 20-7089 for approximately 2.00 acres located at 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 25 of 28 1139, 1213, 1237, 1251 and 1283 West Hendrix Street from RSF-4, Residential Single Family, 4 units per acre to RI-U, Residential Intermediate -Urban. City Attorney Kit Williams read the ordinance. Garner Stoll, Development Services Director gave a brief description of the ordinance. He stated the rezoning request is right across the street from the previous item discussed. He stated the applicant submitted a Bill of Assurance that would limit it to single-family dwellings. He stated staff feels that RSF-8 is a better option. He stated Planning Commission recommends in favor of the rezoning with a 5-3 vote. He stated staff recommends denial. Mr. Marks, Applicant stated in keeping with the neighborhood, he submitted a Bill of Assurance for single-family residential use. He stated he has support of the neighborhood. He spoke about other property in the area that Council has approved with no restriction. Council Member Petty stated there has been a presumption that his decisions in the past have not been well understood. He stated the clerking error that led to the zoning designation of the property they just talked about was not something he considered when they took the recent rezoning action on it or the rezoning a few weeks ago, nor will he consider it for this rezoning action. He spoke about the proximity of the property to the U of A and its alignment on the corridor. He spoke about the property being close to services, schools, and parks. He stated he only considers those things with respect to the goals of the city's comp plan whenever property is rezoned. He stated to the extent that someone might characterize this only happened because of a clerking error, he doesn't think is correct. He stated these kinds of actions have been called for in the city's comp plan for a great number of years. Council Member Smith stated he was going to take a similar approach to talking about past votes, but that's mainly because of the discussion about the through lot from Mount Comfort to Hendricks that Council voted on a couple of meetings back. He stated on the first reading of that one, he was harsh on the developer and on the third reading he ended up voting for it without saying anything. He stated it came down to the public comment on that item. He stated they haven't heard any public comment here, but he suspects the comments Council has heard on the last two issues in the neighborhood are all still relevant. He spoke about the neighborhood maintaining its character as a modest neighborhood. He believes what they are asking for is self-defeating. He stated in this instance with the Bill of Assurance for single-family, he is concerned they are going to end up with something that's not either modest or in the character of the neighborhood. He stated the previous lot with no restrictions as an RI-U allows small houses to be built to hopefully make an effort towards affordability. He stated here they have a Bill of Assurance that would limit them to single-family houses in a zone that lifts the cap on occupancy. He stated these are going to be large expensive houses and rent by the room to college students, which is the only thing he can imagine for this arrangement and that's not the character the neighborhood is looking to preserve. He stated the current city-wide zoning is not going to produce variety. He stated the city's number one largest zone by land mass is RSF-4 with 29.4% of this city's land area in the one zone. He stated the next one is Residential Agriculture at 27% and then the city drops down to RMF-24 at 5%. He stated people talk about affordability, but this is a supply and demand problem. He spoke about developers coming in with Bills of Assurances to meet the politics of one neighborhood without 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 26 of 28 the consideration of the whole system. He stated he will not support the Bill of Assurance. He isn't sure how he will vote on the RI-U zoning. Mayor Jordan: Garner, thank you to you and your Planning staff for your work, integrity, honesty, and service to this city. Garner Stoll: Thank you, Mayor. I will pass that on to the staff. This ordinance was left on the First Reading. Amend §172.04 Parking Lot Design Standards: An ordinance to amend §172.04 Parking Lot Design Standards to allow restaurants and cafes to expand operations into private parking lots, and to declare an emergency. City Attorney Kit Williams read the ordinance. Council Member Petty gave a brief description of the ordinance. He stated the outcome was recommended by the Transportation Committee. He stated he regrets he did not request a strike through and replace version of the ordinance to see how simple the changes are. He stated this will let people expand their dine in seating out into their private parking lots. Council Member Smith moved to suspend the rules and go to the second reading. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Smith moved to suspend the rules and go to the third and final reading. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Petty thanked the Council for considering the ordinance and the Emergency Clause. Council Member Gutierrez: Are they clear in terms of alcohol in that space? Are they already educated and know how to do that? Devin Howland, Director of Economic Vitality: The ABC has issued a statewide rule change and it is called an Outdoor Service Area rule change, where the city is okay if they go into those areas. They can apply with ABC to service alcohol and it does something that ACT 812 can't do. It extends the liquor license boundary and is an easy process. Flagging tape or rope could be used to define the barrier. We will get communication out on that tomorrow and we have some up on our website right now under the Outdoor Refreshment area page. 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 27 of 28 Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6325 as Recorded in the office of the City Clerk Council Member Gutierrez made a motion to approve an Emergency Clause. Council Member Marsh seconded the motion. Upon roll call the motion passed unanimously. Emergency Clause Approved Announcements: Susan Norton, Chief of Staff spoke briefly about City of Fayetteville news. Information can be viewed on the City of Fayetteville website. City Attorney Kit Williams: I am happy to say the United States Supreme Court ruled in support of equality and against discrimination inflicted on our gay, lesbian and transgender citizens. This is exactly what Fayetteville's own Uniform Civil Rights Protection ordinance did after our citizens voted to support and enact that ordinance almost five years ago. The decision by the United States Supreme Court shows that Mayor Jordan, City Council, and Fayetteville citizens had it right when they sought to protect our gay, lesbian and transgender citizens from discrimination. The Arkansas Legislature brought shame to our state when it passed its right to discriminate act, misleadingly entitled, The Intrastate Commerce Improvement Act. Arkansas Attorney General Rutledge sued Fayetteville and fought for over three years to nullify our citizens efforts to support equality. The wisdom of Circuit Judge Doug Martin's ruling upholding our Uniform Civil Rights Protection ordinance has also been vindicated by the United State Supreme Court decision yesterday. Sadly, the Arkansas Supreme Court reversed Judge Martin's ruling and held that the legislature's right to discriminate act legally voided our citizens passed Uniform Civil Rights protection ordinance. It is too late now to attempt a further appeal to the Federal Courts. This United States Supreme Court landmark ruling proves the Fayetteville City Council and our Fayetteville citizens were absolutely correct to support equality for all of our citizens. Mayor Jordan: Thank you, Kit and very well said. Council Member Turk thanked Kit and Mayor Jordan for all of their efforts. She stated she is proud to live in the City of Fayetteville. Mayor Jordan: Thank you to the City Council for voting the ordinance in. It ended up to the vote of the people twice and we were tenacious enough to get it passed the second time. We were right then, and we are right now. It is wonderful to see the United States Supreme Court back us. As we go forward, the pandemic is not over. Everybody needs to continue to wear their mask, stay 6 feet apart and wash your hands frequently. Thank you, Council, for your service and I love serving with you. Council Members Gutierrez and Bunch thanked Mayor Jordan for his leadership. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes June 16, 2020 Page 28 of 28 City Council Agenda Session Presentations: Agenda Session Presentation on Cultural Arts Corridor Project by Nelson, Byrd, Woltz Consulting, and Parking Deck presentation by Miller, Bakus, Lack Architects. City Council Tour: None Kara Paxton, City —Clerk Treasurer 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteviIle-ar.gov