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HomeMy WebLinkAbout2021-02-18-MinutesCouncil Member Sonia Gutierrez Ward I Position 1 Council Member D'Andre Jones Ward 1 Position 2 Council Member Mark Kinion Ward 2 Position 1 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 February 18, 2021 City Council Meeting Minutes February 18, 2021 Page 1 of 41 Council Member Sloan Scroggin Ward 3 Position I Council Member Sarah Bunch Ward 3 Position 2 Council Member Teresa Turk Ward 4 Position I Council Member Holly Hertzberg Ward 4 Position 2 A meeting of the Fayetteville City Council was held on February 18, 2021 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, D'Andre Jones, Mark Kinion, Matthew Petty, Sloan Scroggin, Sarah Bunch, Teresa Turk, and Holly Hertzberg joined the meeting via online using a video conferencing service called Zoom. Council Member Petty was absent during Roll Call. Mayor Lioneld Jordan, City Attorney Kit Williams, City Clerk Treasurer Kara Paxton, Chief of Staff Susan Norton, Chief Financial Officer Paul Becker, and 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 limited number of essential support staff. City Council Members, city staff, and the public are participating online or by phone. Other than those of us you see before you, the 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 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 2 of 41 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, and joining the Zoom conference by smartphone, tablet or computer. To request to speak during the public comment period, you must raise your virtual hand to be recognized. If you are accessing the meeting through a smartphone, tablet or computer, please click the raised hand option to request to speak during the public comment period. If you are calling into the meeting by phone, please press, *9 to raise your virtual hand for public comment. When it is your turn to speak, please unmute your microphone. For instructions on how to use Zoom, please go to the City of Fayetteville website and type, Zoom Instructions, in the search bar. I will provide a longer than usual period of time for you to raise your virtual hand, so as to ensure time to be recognized. Fayetteville residents will be allowed to speak first. When recognized, please state your name and address for the record. Public comment shall be allowed for all members of the audience who have signed up prior to the beginning of the agenda item they wish to address being opened for public comment. Each speaker has one turn to speak. Each speaker is allowed five minutes to be broken into segments of three and two minutes, which staff will monitor. Amendments may receive public comments only if approved by the City Council by unanimous consent or majority vote. If public comment is allowed for an amendment, speakers will only be allowed to speak for three minutes. The City Council may allow both a speaker additional time and an unsigned -up person to speak by unanimous consent or majority vote. City Council Meetiny- Presentations, Reports, and Discussion Items: Ap-enda Additions: Support Hate Crimes Enactment: A resolution to support the enactment of sentence enhancement for hate crimes as set out in Senate Bill 3 and House Bill 1020 to better protect a victim who was purposely selected for criminal harm because of race, religion, sex, sexual orientation, gender identity, disability, or other personal attribute. Council Member Scroggin moved to add Support Hate Crimes Enactment to the agenda. Council Member Gutierrez seconded the motion. Upon roll call the motion passed 7-0. Council Members Gutierrez, Jones, Kinion, Scroggin, Bunch, Turk, and Hertzberg voting yes. Council Member Petty was absent during the vote. Council Member Turk gave a brief description of the resolution. City Attorney Kit Williams read the resolution. Council Member Gutierrez thanked Council Member Turk and Kit Williams for their work on the resolution and for bringing it forward. Mayor Jordan: Thank you Teresa and Kit for your work on this. 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 3 of 41 Council Member Gutierrez moved to approve the resolution. Council Member Scroggin seconded the motion. Upon roll call the resolution passed unanimously. Resolution 55-21 as recorded in the office of the City Clerk Consent: Council Member Scroggin: I had somebody ask that A.6, Court Automation Fund Upgrades be pulled from the Consent Agenda. City Attorney Kit Williams: Council Member Scroggin, you wish to discuss this? Council Member Scroggin: The person that contacted me would. I am just doing what they asked. Mayor Jordan: We will pull A.6 and I will read the rest of Consent. Approval of the January 19, 2021 City Council Meeting minutes. APPROVED MSI Consulting Group, LLC: A resolution to authorize the purchase of annual software maintenance from MSI Consulting Group, LLC for Virtual Justice software used by the District Court, Police Department, and City Prosecutor Division in the amount of $21,600.00 plus applicable taxes, for an initial term of 1 year with the option to renew for four additional one year terms, and to approve a 10% annual project contingency in the event additional licenses are needed. Resolution 56-21 as recorded in the office of the City Clerk ESRI, Inc.: A resolution to authorize Mayor Jordan to sign a three-year enterprise license agreement with ESRI, Inc. in the amount of $55,000.00 per year for the continued use of Geographic Information System software, and to approve a project contingency in the amount of $5,500.00 per year. Resolution 57-21 as recorded in the office of the City Clerk CivicPlus, LLC: A resolution to approve a one-year Master Services Agreement with CivicPlus, LLC for website content management system services in the amount of $23,268.54 for the first year and automatic renewals for four additional one year terms with an annual price increase of five percent (5%), and to approve a project contingency of $5,000.00 each year the contract is in effect. Resolution 58-21 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 February 18, 2021 Page 4 of 41 Surdex Corporation: A resolution to approve a contract with Surdex Corporation in the amount of $28,000.00, pursuant to a federal GSA Advantage cooperative purchasing contract, for aerial photography services. Resolution 59-21 as recorded in the office of the City Clerk Court Automation Fund Upgrades: A resolution to approve a budget adjustment in the amount of $20,000.00 recognizing revenue from the court automation fund for upgrades to the servers, software, computers, and related technology equipment used by the Fayetteville District Court. This resolution was pulled from the Consent Agenda for discussion. RFQ 20-01 Crafton, Tull & Associates, Inc. - 2019 Drainage Bonds Project: A resolution to approve a professional engineering services agreement with Crafton, Tull & Associates, Inc., pursuant to RFQ 20-01, in the total amount of $72,390.00 for engineering design services associated with the flooding within the Stonebridge Meadows Subdivision, and to approve a budget adjustment — 2019 Drainage Bonds Project. Resolution 60-21 as recorded in the office of the City Clerk Ozarks Electric Cooperative Corporation: A resolution to approve the conveyance of a General Underground Utility Easement to Ozarks Electric Cooperative Corporation across a portion of Kessler Mountain Regional Park. Resolution 61-21 as recorded in the office of the City Clerk Park Land License Agreement for Underwood Park: A resolution to approve the attached Park Land License Agreement with KTB Limited Partnership for approximately 17.26 acres adjoining Underwood Park west of Dean Solomon Road to be used by the public for recreational purposes. Resolution 62-21 as recorded in the office of the City Clerk Clabber Creek Phase III Donation: A resolution to approve a budget adjustment in the amount of $13,000.00 recognizing and allocating revenue from the Clabber Creek Phase III Property Owners Association for the material costs of a trail connecting Firefly Catch Drive to the Clabber Creek Trail. Resolution 63-21 as recorded in the office of the City Clerk RFQ 20-06 Johnson Controls Inc.: A resolution to authorize Mayor Jordan to sign a Project Development Agreement with Johnson Controls Inc., pursuant to RFQ 20-06, in the amount of $70,450.00 to conduct an energy audit and identify potential energy and cost saving measures for city facilities. Resolution 64-21 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 February 18, 2021 Page 5 of 41 Council Member Gutierrez moved to accept the Consent Agenda as read. Council Member Turk seconded the motion. Upon roll call the motion passed unanimously. Court Automation Fund Upgrades: A resolution to approve a budget adjustment in the amount of $20,000.00 recognizing revenue from the court automation fund for upgrades to the servers, software, computers, and related technology equipment used by the Fayetteville District Court. Mayor Jordan: Council Member Scroggin, you have asked for this item to be pulled for discussion. Council Member Scroggin: A citizen asked me to pull this item. They have questions. Keith Macedo, Information Technologies Director gave a brief description of the resolution. Sarah Moore, Ward 2 spoke briefly about the item. She requested to know how much will be available for the Court Automation Fund for this current calendar year and wanted to know if the $20,000 was the entire budget. She spoke about a system reminding citizens to show up for their court dates called Court Connect. Council Member Turk stated anything we can do to remind citizens to show up to their court dates would be helpful. Keith Macedo stated he is not familiar with the Court Connect System and would have to reach out to the court staff to get more information. He stated we have purchased through this Court Automation Fund, which improves communication with customers, a digital live scan or fingerprint system. He stated it will help reduce failure to appear. He spoke briefly how the process works. He spoke about working with the court to use some of the other systems the city utilizes in order to help. He stated we currently have a balance of $5,077 in our expense account and we are wanting to add this money to have an end balance of $25,077. He spoke about having a back log for technology purchases from last year, which are mainly PC's. He stated this was due to COVID and he didn't have time to get to them. He stated a good portion of these funds will be to purchase PC's from 2020-2021. He stated the Court Automation Fund allows flexibility in having a funding source to improve customer service. Council Member Turk: Keith, can you advocate for these items that Ms. Moore suggested or should we have somebody from the court come before the City Council to discuss it further? Keith Macedo stated he would be happy to bring the suggestions to the court staff and discuss it. Council Member Turk: If you could come back and bring us an update on what you found, that would be helpful. I don't want to hold up the allocations of these funds tonight, but it would nice to find out what you discovered and if you were able to implement something like this. Mayor Jordan: There seems to be questions for the court staff. They probably need to answer some of these questions. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 6 of 41 Keith Macedo stated he would meet with court staff. Council Member Gutierrez spoke about visibility of court representatives to help when someone is dealing with their health. Keith Macedo stated he would talk to court staff about that. He stated a court representative will be co -presenting when information has been obtained. Council Member Scroggin moved to approve the resolution. Council Member Turk seconded the motion. Upon roll call the resolution passed unanimously. Resolution 65-21 as recorded in the office of the City Clerk Unfinished Business: Short -Term Rental Regulations: An ordinance to Amend § 118.01 Applicability of Chapter 118 Business Registry and Licenses, Chapter 151 Definitions, Chapter 161 Zoning Regulations, § 162.01 Establishment/Listing of Chapter 162 Use Units, and Chapter 163 Use Conditions of the Unified Development Code to classify the types of short-term rentals and create regulations to permit and inspect the rentals. At the December 1, 2020 City Council meeting this item was tabled until the January 5, 2021 City Council meeting. At the January 5, 2021 City Council meeting this item was left on the second reading and tabled until the February 16, 2021 City Council meeting. Mayor Jordan: This was left on the second reading, tabled and sent to the Ordinance Review Committee. City Attorney Kit Williams: Ordinance Review realized there were still some complex issues on this, but they wanted the public to be able to weigh in. Mary McGetrick, Long Range Planning and Special Projects Manager gave a brief description of the ordinance. She stated staff originally presented this item to Council and then it was sent to the Ordinance Review Committee. She stated the committee voted to forward the amendment to the full Council for discussion, while acknowledging that it may need it to be sent back to the committee for further review. She spoke briefly about the amendments that were approved at the Ordinance Review Committee and recommended to forward to Council. She spoke about the A&P having an agreement with Airbnb. Council Member Bunch: Where is this at in our Council packet? I want to make sure I have it in a written form that I can look at. Mary McGetrick: The changes I discussed should be highlighted in the staff report. The research we've done is not necessarily in your packet, but I can go into more detail or can provide that as needed. Council Member Bunch: Is everything highlighted in yellow in the staff report? 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www Fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 7 of 41 Mary McGetrick: Yes. Council Member Turk: Mary, you were talking about the A&P having an agreement with Airbnb. Could you discuss that more? Mary McGetrick: We have the single agreement with Airbnb to calculate and remit our HMR taxes. Across these platforms will collect our state taxes. Our Arkansas state gross receipts tax, local sales and use tax, and Arkansas state tourism tax. However, with the other platforms and with the individual STR operators, there is no agreement. There is no way to track whether or not those taxes are being paid. While we do have the agreement with Airbnb, it is plausible that we are missing out on some of this HMR tax that's coming in because we only have that singular agreement. Council Member Turk: Has anybody reached out to the other platforms? I'm wondering why it's only Airbnb and that model hasn't been followed for some of the other platforms. Mary McGetrick: I have tried to reach out to a couple of other platforms. I haven't been able to clarify this, but Airbnb kind of did these types of agreements nationally in response to some pushback with similar issues and other municipalities. I can't find much evidence of other platforms doing it and it may be because they're the biggest national platform. I'd be happy to continue to work on reaching out and trying to figure out how that works with other platforms. City Attorney Kit Williams: We can reach out to other platforms. It's pretty easy to figure out whether or not someone is doing Short Term Rentals in the city, since they do it on the internet. We didn't make an effort to do that and decided we would initially just go with Airbnb and see how that worked out. We knew that a Short Term Rental Ordinance was being prepared by Planning and Planning Commission and we waited for that. It's possible for us to get multiple agreements for the HMR taxes. We are not responsible to collect state taxes. That's up to the Department of Finance and Administration. We collect on all restaurants and hotels in Fayetteville and we could pretty much cover all of the platforms that do business in Fayetteville. We could try to get the same agreeing with them, especially if we had the understanding that if they didn't do that, then we would consider that a violation of our zoning code and take actions against their clients for not paying taxes. Council Member Turk: Right now, they are illegal. They're not technically zoned. Do we have leverage to ask for that HMR tax with new platforms? City Attorney Kit Williams: The platforms themselves would have to do this in agreement, but we could put pressure on the illegally operating Short Term Rentals. If they're not paying the taxes, then that's another issue, but they are already illegal. If we can't get voluntary cooperation by the platforms, then we can begin moving to terminate the operation of any Short Term Rentals that was not going to be in compliance with our taxes. Even though there are a number of them, I'm not going to say it's too easy because of the number, but it's something that is pretty straightforward that they're acting illegally at this point in time. It is not difficult to file a charge against them like we do with other entities that should be paying HMR taxes. The City Prosecutor's Office has 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 8 of 41 collected over $1.1 million in the last 19 years from restaurants and hotels that haven't paid properly. We can extend that to the Short Term Rentals if we do not have an agreement. Council Member Bunch: If someone is wanting to start a Short Term Rental or someone has something they rent monthly, which does not qualify under this and they're considering bouncing back and forth between a longer term furnished rental and a Short Term Rental, do we have any special requirements for that? Mary McGetrick: The way it's operating in other municipalities is that the Short Term Rental requirements and regulations apply when it's being operated as a Short Term Rental. If they were going to operate as a Short Term Rental, they would have whatever permit would be associated with that. If they had to go through the Conditional Use Permit process for a Type 2, they would have to do that. They would have to have a business license for whichever unit they were wanting to rent out. Whether or not they rented it out all the time as a Short Term Rental, they would still have to meet the rules and regulations of the Short Term Rental, while they were operating as a Short Term Rental. City Attorney Kit Williams: The bottom line is that they could do both. Council Member Bunch: If they're just starting, that's the same process with what you just described? Mary McGetrick: Yes. City Attorney Kit Williams: It depends on how we approach this, but if somebody wants to operate both as a Short Term Rental sometimes and a Long Term Rental other times, they should be able to do that. Council Member Bunch: Thank you. What if someone has a couple of duplexes. Is that considered multi -family or is that considered each duplex unit is considered its own unit? Mary McGetrick: It's not considered multi -family. Jonathan Curth has had a little more experience with this. It's a little difficult to navigate in our code. As far as I understand, those types of setups would not be considered multi -family. Jonathan Curth, Development Services Director: Our zoning code breaks units down based on the number of units that are attached to each other. If it's two units attached to each other, that would be a duplex regardless of whether there's two duplexes on a property or three duplexes on a property. Those are ultimately duplexes. Council Member Bunch: Each one is its own unit. If someone were wanting to do an Airbnb there, they could have one unit in each duplex that they could do a Short Term Rental? Mary McGetrick: Yes. Council Member Bunch: And following the Conditional Use Permit and the business license? 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 9 of 41 Mary McGetrick: Correct. Council Member Jones: What are the different types of short rentals? What did you describe them to be? Mary McGetrick: Right now, what we're proposing is two different types of Short Term Rentals. It'll be a Short Term Rental of one or more bedrooms and an owner occupied dwelling, while the owner is occupying the same dwelling unit. The other would be a Short Term Rental that is not owner occupied at any time. It's a unit that is strictly used as a Short Term Rental. There are other possible types that other municipalities have instituted. I've condensed those into four different possible Type 3's. Council Member Jones: What about safety? I've had some residents reach out to me. They were concerned about the safety standards. One of those concerns is that people should not be sleeping in areas of the house with inadequate means of exiting, such as basements with no visible windows or doors to the outside. Also mentioned are cots in a laundry room without suitable windows for exiting outdoors. Another concern is the impact on our depleting supply of affordable homes. Mary McGetrick: Life safety are valid concerns. We require with the ordinance we're proposing, that there'd be a life safety inspection at the time of permitting for the unit when they apply for a business license. The sleeping areas would have to meet our code and our building code. There would be an inspection in terms of safety. If for whatever reason those terms weren't being met, we would have some enforcement mechanisms we could use if needed. Affordable housing is definitely a concern. What we've tried to do is limit the percentage of possible multi -family dwellings within the same building. We have that 10% cap, and we also have an overall cap on the Type 2's, which it's fairly high, but it's meant for flexibility. We've tried to put some safety mechanisms in there to protect our affordable housing. Council Member Hertzberg: Is there a maximum number of rentals allowed at any particular neighborhood? Mary McGetrick: There's not, right now. We have our density cap, but that's something other municipalities have done. In our possible Type 3's, some municipalities have limited in various neighborhoods and instituted a cap for Short Term Rentals in their wards or neighborhoods. Some instituted caps specific to historic districts and within their neighborhoods they instituted individual caps versus an overall city cap. Council Member Hertzberg: Would there be any reason that the Planning Commission could deny a Conditional Use Permit? Mary McGetrick: There are. If they don't meet the terms of the regulations. Jonathan Curth: A Planning Commission reviewing a Conditional Use Permit is typically looking at compatibility with adjacent land uses and the city's long range plans. There are a lot of other uses in the cities that have specific use conditions applied to them. A daycare is only allowed so many children per building. A wireless tower can only be so tall. Similarly, something like that 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 10 of 41 can be programmed into the Short Term Rental Ordinance if necessary, to help us share that compatibility. Council Member Bunch: A Conditional Use Permit, can that be applied for online and paid for online? What is the cost and how long does it take? Jonathan Curth: The Conditional Use Permit can be applied for online, as of July this year. With the motivation of COVID, we have been able to move everything to electronic submittals now. In coordination with IT, we are able to accept electronic payments as well. As far as the timeline goes, a typical Conditional Use Permit takes about six weeks from the time it is submitted till the Planning Commission meeting at which it is heard. It's $100 for the permit and there's a $5 public notification sign crafting fee. Council Member Bunch: Do we have an outline, step by step of what that inspection is going to include? We're looking at ingress and egress, getting out of a window and smoke detectors, but what else would be included in that? Mary McGetrick: We have a standard life safety inspection that's based on our building code and the requirements of our building code. The broad specifics are ingress and egress, major mechanical systems, windows, doors and the fire detectors. There may be some additional detail, which I can pull that for you and send it to you. There was a brief discussion about safety measures, inspections, and cost of the inspection. Council Member Bunch: One of the complaints I read was that our staff would not be able to handle all these inspections. I have not heard anyone from staff say they didn't have the ability to handle this. Mary McGetrick: I don't think it would be a huge burden on staff. Jonathan Curth: That is a concern from top to bottom, with this process. All the way from talking about Conditional Use Permits and the amount of those items that would go to the Planning Commission and the inspections. We are currently working on additional capacity in our building safety group, which recently had our Code Compliance Officers incorporated into it. Our goal is to be able to cross train between our Code Compliance Officers and our Building Inspectors to allow a lot wider ability to inspect some of these lower technical difficulty inspections. It's not as complicated as looking at a building footer or framing of a structure. It's more basic items that Mary outlined. Council Member Turk: I want to make sure we know our purpose of regulating the Short Term Rentals. Is it tax revenue? Is it to get them to be legal? Is it to have code compliance abilities, such as the safety and health of the folks staying in Short Term Rentals? Is it concerns about housing stock limits? I would appreciate us understanding what our purpose is. That should drive all of our regulation. From reading the literature, it's not spelled out real clearly. If it's all four of those things, that would be helpful to know. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page I 1 of 41 Mary McGetrick: It is a little bit of all four of those things, but I definitely think at its base, it's that technically, we have a number of citizens right now that are operating Airbnb and Short Term Rentals illegally. At its base, it's bringing them into legality and compliance. That's our main goal. From that foundation we can make sure they're safe, meeting our code compliance requirements and we can effectively handle any enforcement that needs to be done. Throughout our process of speaking with property owners and with Short Term Rental operators, there's definitely a need for a closer eye. We do that by legalization and then moving through all of these other items that are pertinent to these types of uses. Council Member Turk: If it is about legalizing them, I am in support of that. If it's not so much about housing stock, then some of these restrictions, unless they're due to safety concerns might be reconsidered or relaxed. It sounds like you have relaxed some of them. If that's not really a high priority, we might think about relaxing some of the restrictions in that arena. Safety inspections are important. Council Member Bunch: If you're wanting to relax some of the restrictions, would you please outline which ones you would like to relax? Council Member Turk: We've got more information tonight that's not in our packet. I'd like to think about some of the other options Mary's pointed out, such as the possible third type of STR's. I'm interested with the 600 foot radius. I'd like to understand more how the Accessory Dwelling Units fit into this. Maybe relax the 10% cap on the multifamily units. I am aware of certain properties that have way more than 10% right now. They seem to do a great job as being a Short Term Rental. They're probably too expensive for most people to afford if they were going to do a Long Term Rental. I'd like to review more of the details. This is a complicated and important ordinance before us. Council Member Bunch: It is kind of hard to figure out. Some of the units you're talking about that might be well suited for the Short Term Rentals might be in areas of Fayetteville where it's already zoned to allow that. Council Member Turk: Yes, it really depends on how it's zoned. There are a lot of units on Dickson Street that are great for Short Term Rentals and they're not in an RSF-4. There may be some concerns from neighbors about an RSF-4. I want to make sure we flush this out and have plenty of time to get it right for all of our citizens and our businesses. Council Member Scroggin: I hope we can send this back to Ordinance Review before we even get to public comment. We're going to have a lot of people reiterate they need more time. I agree we need more time. Ordinance Review needs to look at this again and then it needs to come back. The questions tonight show we are not ready to vote on this. Can I make a motion that we send this to Ordinance Review and table it preemptively before we have public comment? I want to hear what people have to say, and hopefully incorporate that in when we take it to Ordinance Review. City Attorney Kit Williams: Yes, that would be appropriate. It is within the Parliamentary Procedure that we have. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www Fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 12 of 41 There was a brief discussion about how Ordinance Review Committee meetings are scheduled and for how long to table the ordinance. Council Member Scroggin: We don't know what the current iteration of this looks like. It's kind of hard for people to make critiques if they can't see it. Council Member Bunch: That's a good point. Mayor Jordan: From the discussion we've had, this is not quite ready yet. It is great wisdom to send it back to Ordinance Review. For those of you in the public that's about to comment, they're not voting on this tonight. They are going to make a motion to table this for a month and send it back to Ordinance Review. The City Council received six public comments regarding this ordinance. Council Member Scroggin moved to send the ordinance to the Ordinance Review Committee and table it until the March 16, 2021 City Council meeting. Council Member Bunch seconded the motion. Upon roll call the motion passed 7-0. Council Members Gutierrez, Kinion, Petty, Scroggin, Bunch, Turk and Hertzberg voting yes. Council Member Jones was absent during the vote. This ordinance was sent back to the Ordinance Review Committee and tabled to the March 16, 2021 City Council meeting. Bank of Fayetteville/Depot Lot Site: An ordinance to approve a contract with the Bank of Fayetteville, Greg House, Fayetteville Depot, LLC (and possibly Ted Belden) to purchase about one half acre in the Depot/Bank Lot for $350,000.00, to approve a lease -to -own arrangement with Greg House for the .2 acre lot on the north end of the Civic Plaza, to agree to convey to Greg House the ownership of about 14,000 square feet of the bottom floor of the city's public parking deck and other items, and to pass an Emergency Clause. At the December 1, 2020 City Council meeting this item was left on the First Reading. At the December 15, 2020 City Council meeting this item was left on the second reading. At the January 5, 2021 City Council meeting this item was left on the second reading and tabled until the February 16, 2021 City Council meeting. City Attorney Kit Williams: Because of the fact there are now three contracts to be approved, rather than one and due to having different parties now, I had to redraft the whole ordinance and title. After you approved it at our pre Council meeting, I was going to send it to the City Council, and I've neglected to do that because I was busy with other stuff. I will need to read it to them. City Attorney Kit Williams read the proposed ordinance. City Attorney Kit Williams: That would be my proposed amendment so we can adopt all three contracts and have the names of the other parties we are contracting with, correctly done. Mayor Jordan: The Council is not approving the overall amended ordinance? 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 13 of 41 City Attorney Kit Williams: This is just to amend this ordinance. Susan Norton, Chief of Staff. Before we ask for that amendment to be passed, we need to clear up the matter of the date that all contracts are signed by February 18, 2021. We've asked Vicki Bronson to comment about the status of the bank's signature. We are waiting for that right this moment. Vicki Bronson, Conner & Winters: I was hoping to hear back from the bank's attorney today, but he had a hearing today and I didn't hear back from him. Maybe by tomorrow we will have the bank's signature, but I don't know for sure. Susan Norton: Thank you. Kit, could you revise that one section in this proposed ordinance amendment because we don't have all three contracts signed as today's date? City Attorney Kit Williams: Why don't we change that so this contract must be approved and signed by the date this ordinance is approved. Council Member Gutierrez moved to amend the ordinance as read by City Attorney Kit Williams. Council Member Jones seconded the motion. Upon roll call the motion passed unanimously. Mayor Jordan: We do not have a signature of the bank, so we cannot pass it tonight. City Attorney Kit Williams: Wade can still describe it. Thank you to Vicki for her hard work on these three contracts. Hopefully we can get the bank's signature very quickly. Mayor Jordan: We have a Special City Council meeting on February 23, 2021. I will probably put this on that agenda. Wade Abernathy, Bvnd Projects and Construction Manager gave a brief description of the ordinance. He stated these final agreed contracts includes many of Councils original requested terms and incorporates City Attorney's input as well. He spoke briefly about the contents of the contract. Ted Belden: What did you say about the time restrictions? I didn't think there was a time restriction on the building above the sixth and seventh floor if we choose to go forward with the enhancements. Wade Abernathy: There's verbiage in there for good faith efforts. Ted Belden: For sure. That's what I wanted to clarify and make sure we are all on the same page. Our intent will be to pay for the extra money for the infrastructure enhancements that we would need to do. Pay 100% of that. My hope is during the construction, we can get the pricing and feel good about adding that sixth floor parking to enhance the parking deck and adding about 30 more spaces. That's our goal. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 14 of 41 Council Member Turk: I looked at the contract we had three or four weeks ago and compared it to the new contract. There are a few differences. I thought the developer only had 15 years to build the sixth and seventh floor parking deck. Is my understanding incorrect? Wade Abernathy: The verbiage in there now is for them to have a good faith effort to finish out the sixth and seventh floor within 15 years. Council Member Turk: In the previous version, wasn't it 10? Wade Abernathy: No. At one time it was 20. Council Member Turk: Could you highlight any other differences you can recall between the one we saw a month ago and this new version? I want to make sure I don't miss anything or misunderstand. Wade Abernathy: We've shortened the term on the option to purchase the mobility hub. Originally that was seven and a half years and we made that four. Council Member Bunch: Under normal circumstances, what would you consider would be making a good faith effort? Vicki Bronson: The requirement is for the developer to use commercially reasonable efforts to finish it out. Obviously, they're making that investment up front. They've done whatever their market research is. They feel comfortable they're going to be able to do that, but if the economy tanks or the real estate market tanks like it did in 2008, which nobody can predict. It wouldn't be reasonable perhaps to finish out a sixth and seventh floor if the entire Dickson Street is vacant. It's based on what's commercially reasonable at the time. Wade Abernathy: They have got a substantial investment to enhance the structure. I can't see them just letting that go. Vicki Bronson: Right. It is to their benefit to finish it out, because then they'll have the revenue to help reimburse them for the investment they made up front in the structure. Council Member Bunch: Thank you for clarifying that. Council Member Petty: What are we doing now to prepare for the mobility hub purchase for exercising that option within the four year timeframe? Wade Abernathy: When it comes to money, we get Paul involved. He seemed to think we could look towards some of the other bond funding for the procurement of this. We've got the Phase 2 bonds coming out, hopefully within a year or so. Council Member Petty stated that is encouraging. He stated this Council in four years is likely to be the same Council, with maybe a couple of changes, but unless this Council is intending to exercise that purchase option and to support the purchase with other transit planning efforts for 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 15 of 41 that area, then that purchase option isn't worth anything to us. He stated it is really important to him and it's something he intends to support in the future. He stated if Council doesn't intend to support the purchase option in the future, he wants them to make that plain and consider that your vote on this item today is probably indicative of your support for the future. He stated this agreement has come a long way and we've got staff vouching for it. He stated it seems like we're getting the things we set out to get. He spoke about when things go wrong in contracts. He spoke about paragraph 2 and paragraph 30 of the contract. He stated in paragraph 2, the purchase price gets waived if the building described in paragraph 30 is constructed on a certain timeline. He stated the buyer has the right to purchase the property outright for cash and if the buyer executes that right, then all of the other requirements that are in the contract go away. He requested to know if he understands that portion of the contract correctly. Vicki Bronson: I'm looking at the language. I think you are reading that correctly. Council Member Petty thanked Ms. Bronson for confirming that. He stated he finds himself in a position of relative trust due to all the conversations that have led them up to this point but feels obligated to consider the worst case scenarios. He described a worst case scenario, such as lumber prices and other material prices continuing to escalate in a volatile manner. He stated what if in a reasonable decision making process, the team decides not to build that building on the timeline in the contract and they still want to maintain the opportunities, so they pay the purchase price. He stated all the requirements go away and at that point we're not guaranteed the building like what we've seen. He stated it could be taller according to the zoning. He stated right now the contract doesn't require that it be a food hall, but there seems to be some verbal agreement that's what it is going to be for the record. He stated if the purchase price gets executed, then all those requirements and obligations evaporate. He stated he has trust in this process and doesn't think the team is going to decide to execute the purchase price just because. He stated he worries about this scenario where costs prevent the delivery of the building and the purchase price gets executed and then all of these other obligations just go away. He stated the worst case scenario is that part of the Civic Plaza, where it either never gets built or it gets built to be something completely different than what we planned and what we designed in all of our public processes. He stated this is one thing the contract isn't addressing right now. He stated all the things that are good about this contract notwithstanding, how can we move forward with addressing this worst case scenario gap in the contract language. Susan Norton: I would like to hear from Ted Belden and Greg House on that. Ted Belden: I appreciate the trust that the process has generated. I don't know how we can satisfy the concern in that gap. It's certainly not the intent, not to build the building. The food hall concept has been talked about, but we've tried to change that verbiage to say, a Civic Plaza building. We see a three story structure being built that's going to be more than just a food hall. I don't know what could be added to that language to satisfy your concerns, but I'm open to suggestions. Greg House: This has been an issue for us, from the very beginning. We don't know what the economy is going to be and so that's the hard part. In our early renditions we had language that we can build the building as we described, as long as there's not a recession or as long as we can get standard financing. To say that we're going to be able to build it, no matter what, but things happen. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 16 of 41 We all went through 2008. Part of this whole bargain is for us to be able to work on that site, but under normal and reasonably standard process, not just to force us to do something, no matter what's going on. The hard part for us is that we are going to commit $3 or $4 million dollars that may not work in two years. Look at COVID. We had no idea that what was going to happen. Part of the trade is you are getting some of my ground and we're getting some of your ground. I don't want to have to pay the incentive for us to build the building according to the terms we've discussed. Susan Norton: The incentive we talked about for the developer, is that they want to help activate this vibrant Civic Plaza. Our partnership in this is that we're going to be bringing foot traffic and people to activate the Plaza. They're going to expect what they need in order to be down there and engaged with the new Civic place. Council Member Petty, you do raise good points, but I'm going to believe that because we have the bond money and we have the investment capability to go ahead and move forward if we can move that parking and get parking built, activate our Civic Plaza. I think that's a catalyst that has a whole lot of opportunities for this development team to be able to move ahead. I don't know how to make the contract say that. City Attorney Kit Williams: If I may suggest, if the same language that Vicki had chosen for another part of this, the substantial good faith efforts to build the building, could be inserted such that we would have a much more reasonable chance to see something like the food court building, which was presented by Greg House's own architect and has been previously included as something that was going to be required at some time. I think the City Council did like and accept the food hall building concept within the building. Maybe Vicki could insert some language in there, similar to the other language you use, that might give us a little bit more comfort that it's actually going to happen. Council Member Petty reiterated his concerns and spoke about being transparent. He stated his primary concern is not that nothing gets built. He stated whether or not Greg and Ted have to deal with some kind of new anomaly in the economy and it makes you wait, I still trust that you're going to build it eventually, even if you have to wait and you have to purchase the property outright. He stated his concern in so doing, you might feel that the only way to build something on that property would be to substantially change the program that we've already worked out together, and especially that we've already worked out with the public. He requested to know if there was a way that we can make sure we've got the design and the ground floor interaction with the rest of the Plaza. He wants some kind of commitment that the design is going to remain, even if it has to be delayed. He spoke about delays being understandable but wants the public to not feel like their trust has been broken. He stated he wants to make sure the design is still first and foremost for this Plaza project, just like it has been from the very beginning. Susan Norton: That's a really good way to put it, Council Member Petty. We will reconvene our team to address that and hope to get some new language. Ted, are you and Greg amenable? Ted Belden: I agree. That sounds reasonable and we'd certainly like to keep the intent of what the public is envisioned to satisfy that requirement. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 17 of 41 Mayor Jordan: We cannot vote on this tonight, but I'm going to put it on the Special City Council meeting for Tuesday. When we started this process, we had a deck we were going to build, voted on by the people. The easy thing all along for me, is to put the deck on School Street and it wouldn't be something very particularly special, but what I wanted was something that would enhance the experience for the people in the city. I wanted it to be a gathering place. It seems like everything is focused on this deck. This project is a lot bigger thing than just the deck. I'm sure we will name it something wonderful, but right now it's the Arts Corridor. If you just want to build a deck, we can always build deck on School Street. Council Member Petty, there's always risk involved when you take a step like this, but I believe this gets us something more than just a parking deck. It gets us more of a gathering place for people. Hopefully, it'll work itself out and we've taken a risk before. I do have a Plan B if things don't work out. Susan Norton: We're really hoping on Plan A because we believe we're going to generate additional sales tax revenue with the facility over there with the commercial space in the bottom. We're going to have a much better pedestrian experience, along with West Avenue. We are getting a whole lot more bang for our buck because of the developer's investment. This helps us with honing our skills for the public/private partnership model that we would like to see go beyond this particular project and into several others. Mayor Jordan stated we took it to the ULI folks, and they felt it was a good plan. Council Member Kinion: We've talked a lot about good faith, what we envision and all the sales tax revenue this is going to generate. It reminds me of another public/private situation and that's the TIF District. Where's the things we were promised? Where's the sales tax that was going to pay for the TIF debt? It is very critical as we move forward, we do think about the worst case scenario, because we've seen the worst case scenario. People voted to build a deck and we already had the property on School Street, and I supported building it there. I love the vision to have something really top notch at the corner of West and Dickson. I find it hard to take the risk because of the experience we had back with the TIF District. As much as I want this beautiful visionary ideal, I don't know if it's the city's or public's money that should be spent on something that could be pie in the sky. There is an alternative vision that has to be considered. Mayor Jordan: I was here when we did the TIF District, and it did not work out. I can assure you that thought has crossed my mind, but that's why I bring it to Council. Either we do this, or we do Plan B. Susan Norton: What might be different this time than the last negotiation is that we have built into the contractual terms that there's only a period of time when the developers have to perform their obligation. Otherwise, we move forward. The worst case scenario is we end up with a deck in the location that we want with the West Avenue enhancements that we want. We might not have commercial space activated as quickly as we want, but we will have our Police Headquarters. The developer might not be able to build the additional floors, but they will have built the enhanced substructure and we will still end up with a deck with enhanced substructure in the end. We have built in lots of safeguards in this particular contract, keeping in mind the failure that we had with the TIF. Nobody plunged into this without having that, first and foremost in their mind. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 18 of 41 Council Member Kinion: Your vision is admirable, but I'm not there yet. Council Member Turk: I'm not either. Council Member Kinion: I love the passion behind it, the vision, and the opportunity that is being visualized. All of that is good and I might vote for it in the end. We voted for a parking deck and now we're building the Taj Mahal. Council Member Turk: That's exactly what I think. Susan Norton: It's a six -story deck and I don't know how that turned into the Taj Mahal. We will look at a stronger contractual language. I would ask you all to look at the contract closely to find the safeguards I mentioned that I thought we had embedded in the language. Council Member Kinion: I have read it, and I see where you're going with it. Council Member Gutierrez moved to table the ordinance to the February 23, 2021 Special City Council meeting. Council Member Bunch seconded the motion. Upon roll call the motion passed unanimously. There was a brief conversation at the end of the meeting about tabling to the March 2, 2021 City Council meeting. Council Member Gutierrez moved to table items B.2, Bank of Fayetteville Depot Lot Site and B.3, RFQ-19-01 Olsson, Inc. Amendment #2 to the March 2, 2021 City Council meeting. Council Member Turk seconded the motion. Upon roll call the motion passed unanimously. This ordinance was tabled to the March 2, 2021 City Council meeting. RFQ-19-01 Olsson, Inc. Amendment #2: A resolution to approve Amendment No. 2 to the professional engineering services agreement with Olsson, Inc., pursuant to RFQ #19-01, in the amount of $154,900.00 for the remaining architectural services related to the replacement parking deck for the Cultural Arts Corridor Project, and to approve a budget adjustment — 2019 Cultural Arts Corridor Bond Project. At the November 17, 2020 City Council meeting this item was tabled for two weeks. At the December 1, 2020 City Council meeting this item was tabled until the December 15, 2020 City Council meeting. At the December 15, 2020 City Council meeting this item was tabled until the January S, 2021 City Council meeting. At the January S, 2021 City Council meeting this item was tabled until the February 16, 2021 City Council meeting. Mayor Jordan: I'm sure we are going to table this one as well. Council Member Gutierrez moved to table the ordinance to the February 23, 2021 Special City Council meeting. Council Member Bunch seconded the motion. Upon roll call the motion passed unanimously. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 19 of 41 There was a brief conversation at the end of the meeting about tabling to the March 2, 2021 City Council meeting. Council Member Gutierrez moved to table items B.2, Bank of Fayetteville Depot Lot Site and B.3, RFQ-19-01 Olsson, Inc. Amendment #2 to the March 2, 2021 City Council meeting. Council Member Turk seconded the motion. Upon roll call the motion passed unanimously. This resolution was tabled to the March 2, 2021 City Council meeting. ANX 2020-0001(3435 E. Zion Rd./Burge): An ordinance to approve the annexation petition of Patricia Lynne Severino, as Trustee of the Robert Eugene Burge Irrevocable Trust, and annex 59.00 acres of land located at 3435 East Zion Road. At the January 7, 2021 City Council meeting this item was left on the first reading. At the January 19, 2021 City Council meeting this item was left on the Second Reading. At the February 2, 2021 City Council meeting this item was left on the Second Reading and Tabled for two weeks. Mayor Jordan: I understand that the staff development team wants to table this for a couple of weeks. Is that correct? Jonathan Curth, Development Services Director: That is correct. Robert Rhoades, Applicant's Representative: That is correct. We have no presentation tonight and we would like to be tabled to the next regularly scheduled City Council meeting. Council Member Gutierrez moved to table the ordinance to the March 2, 2021 City Council meeting. Council Member Bunch seconded the motion. Upon roll call the motion passed unanimously. This ordinance was tabled to the March 2, 2021 City Council meeting. PZD-2020-002 (3435 E. Zion Rd./Chandler Crossing SD): An ordinance to approve a Residential Planned Zoning District entitled R-PZD 2020-0002 for approximately 81.89 acres located at 3435 East Zion Road. At the January 7, 2021 City Council meeting this item was left on the first reading. At the January 19, 2021 City Council meeting this item was amended and left on the First Reading. At the February 2, 2021 City Council meeting this item was left on the First Reading and Tabled for two weeks. Mayor Jordan: I assume we are going to table this until the next regularly scheduled City Council meeting. Robert Rhoades, Applicant Representative: That's correct, Mayor. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 20 of 41 Council Member Scroggin moved to table the ordinance to the March 2, 2021 City Council meeting. Council Member Bunch seconded the motion. Upon roll call the motion passed unanimously. This ordinance was tabled to the March 2, 2021 City Council meeting. RZN 2020-025 (318 S. Combs Ave./Lamb Development): An ordinance to rezone that property described in rezoning petition RZN 20-025 located at 318 South Combs Avenue for approximately 0.20 acres from NC, Neighborhood Conservation to DG, Downtown General. At the February 2, 2021 this item was left on the First Reading. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director: I don't have any new information or updates for the Council. Richie Lamb, Applicant stated there are guiding documents, such as City Plan 2040, Future Land Use Plan and the Walker Park Master Plan that are in place to help make these decisions. He stated when you study these documents, you find a common thing among them that as cities grow, it is natural to fill in existing neighborhoods. He stated when completing an existing neighborhood, it's important to keep the entire neighborhood unit in mind. He stated you don't create a single use neighborhood, but you create a place which has more of the things that people need every day. He stated a complete neighborhood contains not just houses, but a variety of housing types and a mix of uses that are adaptable for change over time. He stated this is exactly what the Downtown General District provides, along with measures that allow it to be compatible with the surrounding mix of uses that exist in the neighborhood now. He spoke about a couple of the neighboring property owners who have adjacent properties that have DG zoning. He stated while he's empathetic for the neighbors' concerns that they might see development in their neighborhood, it is unrealistic to believe that property won't be developed. Council Member Scroggin moved to suspend the rules and go to the third and final reading. Council Member Hertzberg seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Gutierrez: We did receive some public comment. One resident was a resident for over 30 years and another for over 50 years. The people that live in the neighborhood have lived there for quite a while and may not have access to the technology, even though they don't necessarily support this. It's an incredibly established neighborhood. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 21 of 41 Council Member Turk: Two weeks ago, two people did speak. Our agenda tonight looked really full. They may have anticipated this issue coming up more around 9 pm or 10 pm. I don't think anybody anticipated that Chandler Crossing would be tabled or that we would table the parking deck issue. They may have been planning a different timing. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 6-2. Council Members Jones, Kinion, Petty, Scroggin, Bunch, and Hertzberg voting yes. Council Members Gutierrez and Turk voting no. Ordinance 6413 as Recorded in the office of the City Clerk Amend §161.22 Community Services: An ordinance to amend § 161.22 Community Services to move Use Unit 8, Single-family dwellings and Use Unit 9, Two-family dwellings from Permitted Uses to Conditional Uses. At the February 2, 2021 City Council meeting this item was left on the First Reading. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director stated he was available for questions. Council Member Scroggin: I only had one email or call on this. It happens to be the owner that owns a lot of Community Service along Rupple. What is our fear of litigation on this? City Attorney Kit Williams: We've got a delay clause in there, just like we did for the gas stations. Hopefully that will protect us. Nothing is ever totally written in stone that you can never get sued or never lose. We've done reasonable efforts in Section 2 to prevent successful litigation against the city on this. Council Member Scroggin: They could still build there. They have to go through the Conditional Use process. Correct? City Attorney Kit Williams: They can build without getting a Conditional Use Permit for six months. There is a big window for someone that wants to develop their Community Services into either a single family home or duplex. After that period of time, if they haven't gotten something underway, they might have to get a Conditional Use. This is not totally excluding them from being able to build, even three or four years from now. Council Member Gutierrez stated we've looked at this and it's designed so we can come back and ask ourselves if things are working in the right direction and the way we want. She stated this is a good opportunity for us to encourage the kind of development we want. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 22 of 41 Council Member Kinion: I don't think we need this change. The reason we had the development that's already there is because that's what the demand was in the market. At the time that we passed this, it was to allow the broadest range of development as we moved forward. This is restrictive. We've already got this established and it's already in our code. It was established for a reason. We move forward and allow the development to move forward, as I see that it was intended when this was passed. Council Member Bunch: I agree with Council Member Kinion. Taking something through the Conditional Use Permit process on some of the items that are in here, a developer could come through with a perfectly fine development and if we have a Planning Commission that has the mindset that we've had in the past, they may not approve anything, no matter how exceptional it is if it doesn't adhere to this set of rules they have for everything. That's happened in the past, and we're adding a layer of difficulty for someone to develop. Council Member Turk: I was strongly in favor of making gas stations and the drive throughs a CUP because we had a lot of public comment that this was a serious problem and concern. We haven't had that really, with this proposed restriction. If we don't have to regulate and if there's not a problem, I don't want to put a rule there. We haven't had any public comment tonight about it. We really didn't have any public comment two weeks ago. I'd rather hold off rules, unless they're really needed. Council Member Gutierrez reminded Council that two citizens spoke about it previously. She stated she's continuing to go in the direction of density and less sprawl with the opportunity for the use of land. She stated we're not saying you can't do it; we're just saying we want you to focus on a little bit denser project. She stated it is more restrictive and maybe an incentive is needed. Council Member Bunch: Is it not possible to add higher density or this mixed use that you're talking about, without the Conditional Use process? Council Member Gutierrez: I think they can do that, but that's what we're saying. That's why we're amending it, so it doesn't make it something open there, just to do, when we are saying we have a housing crisis. We're trying to improve the density. Council Member Bunch: I was on the Planning Commission when we established this type of zoning. I don't agree that we need a Conditional Use process on this. It's coming down too hard. You have to have housing there before you need Community Services. I have a real problem with making it harder for people to build something like that. We have a lot of houses that are close together and small that can be built without a Conditional Use process that fills a need, unless all you're wanting are apartment buildings or much higher density than just closely set small houses. Council Member Petty stated he loved the discussion and wishes they could have more of these at this level of detail among the Council. He stated what's most important to him is to talk about what he sees this ordinance as actually doing. He stated the conditions the Planning Commission could impose if this law was passed, are what makes this ordinance valuable. He stated he can't see voting for a version of this that eliminated the ability to construct these units. He spoke about those conditions being valuable for the public and for the city. He stated these neighborhoods could 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 23 of 41 be built in slightly different ways that would have big impacts and we have no mechanism right now to review some of those things in locations where reviewing would be very important. He stated it feels like we're subscribing to a fantasy that if we change what's allowed, that the market is going to respond. He stated what's built out there on the ground proves the opposite. He stated merely changing what's allowed, doesn't really change much of what gets built. He stated we have to change what is relatively convenient for different building types. He stated right now there's a huge gap and spoke about the reasons that we only see big apartment complexes or subdivisions. He stated the only way we're going to meet the goals we've memorialized in our plans is to change what is convenient for the market to deliver, so they deliver the kinds of housing we know that we need. He stated this is a step in the right direction but is concerned that we're getting caught up in absolutes. He stated it seems like when the public doesn't show up to comment, we can use it to justify whatever we already wanted to vote. He stated if nobody's here, maybe it's because they're not in great opposition to it. He stated we've heard from the public quite a bit and he spoke about public comment topics. He stated to advance the publics goals, we're going to have to make changes to what is more convenient and what is less convenient and try to level the playing field. Council Member Bunch: Adding this extra step makes it more level for buyers or people looking for housing? Is that what we're looking at? It takes both sides of the coin on this. I want to see housing built that fits the needs of our Community, but I also don't want it to be made so difficult that people can't develop their property or can't do what they would like to because we've added this extra step on. We have seen projects go through that get kicked around between Planning. They get sent back to City Council and get sent back to Planning again. People are frustrated when they're trying to get a proposal put through. It's challenging and it is part of growth in any city, but I don't want to add too much difficulty. Council Member Petty stated that's a fair position. He stated for the citizens, it does help level the playing field of the kinds of housing projects that get delivered. He stated one of the primary issues is that developers do what they know best, already. He stated how do we build capacity among the developers who want to work in our city to do the kinds of projects that the science says we need. He stated we have a lot of people who are competent at building subdivisions and we have some people that are competent in building apartment complexes, but how do we make sure in the future we have people who are competent at doing all the middle stuff too. He stated we need a portfolio of developers, who are capable of delivering the different kinds of projects. He spoke about the financing environment and regulatory environment. He stated he doesn't think the Planning Commission is ever going to act in an arbitrary and capricious manner to just deny with prejudice of builders' proposals. He stated the city permits as many or more as any of the municipalities in Northwest Arkansas. He spoke about the trust he places in the Planning Commission. Council Member Jones: As far as keeping the playing field level, as the Council, we choose the Planning Commission. The Council can and does appeal the Conditional Use Permit. I agree with what Council Member Petty said. It's about long range planning and building neighborhoods for at least the next 50 years. Council Member Scroggin moved to suspend the rules and go to the third and final reading. Council Member Gutierrez seconded the motion. Upon roll call the motion failed 4-4. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 24 of 41 Council Members Gutierrez, Jones, Petty, and Scroggin voting yes. Council Members Kinion, Bunch, Turk, and Hertzberg voting no. Council Member Hertzberg: Mr Lamb has had his hand raised. Can we give him a minute to speak? City Attorney Kit Williams: The Council can suspend the rules and allow someone to speak on this topic. Council Member Hertzberg moved to suspend the rules to allow a citizen to speak for 5 minutes. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. Richie Lamb, Citizen stated one of the challenges with building some of these incremental developments that have been talked about is finding locations that have existing infrastructure suitable for that type of development. He spoke about infrastructure disappointments. He stated having this in place would allow the city to make more investment in infrastructure in places we don't have it right now and have some type of certainty there's going to be an opportunity to generate revenue to help recoup some of those costs. This ordinance was left on the Second Reading. Amend §161.24 Urban Thoroughfare: An ordinance to amend §161.24 Urban Thoroughfare to move Use Unit 8, Single-family dwellings and Use Unit 9, Two-family dwellings from Permitted Uses to Conditional Uses. At the February 2, 2021 City Council meeting this item was left on the First Reading. Council Member Turk 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. Jonathan Curth, Development Services Director stated he was available for questions. Council Member Kinion stated the same arguments go with this, as did the previous one. He stated the more restrictive that we're making it to develop, especially in the form based ordinance codes, it's defeating the purpose. He spoke about understanding the topic from his own perspective. He stated instead of restricting people, we need to educate them. He stated if there is a really good reason that a reasonable person can build in some specific way, then why aren't they given the opportunity to become educated. He spoke about outreach to get the consumer to understand this. He stated builders are just trying to sell the homes they are building. He stated he can't support more restrictions in this way. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 25 of 41 Council Member Gutierrez stated this is an opportunity to be proactive and think about the future. She stated she is for education, but people and the Planning Commission need to know what direction that means and where we want to be in 100 years. Council Member Bunch: There's been a lot of comments made about trusting the Planning Commission and we're talking about narrowing the direction, and if we have these guidelines in place, it will make it easier on developers. We have the guidelines in place right now. When we talk about changing this, adding this additional step and when we use words, we're going to narrow the direction down, it's saying to me that we're tightening it up enough that we won't allow single family. We won't allow duplexes, no matter how well it's designed. The only type of single family homes that we as a Council can imagine, are the ones that are already built. There are all sorts of single family homes that could meet a great deal of demand that we might have. Adding this additional step has the hint that we're not going to have single family homes or we're going to make it so hard that people can't build them. In West Fayetteville, there are single family homes that could meet the idea and the spirit of the code that we have in place now. Council Member Petty stated it seems whenever we have a modest regulation for single family homes proposed, there's a sense they're being targeted. He spoke about blind spots with single family homes. Council Member Bunch stated she doesn't have a blind spot to single family homes. She spoke about attending the Council of New Urbanism conference with Council Member Petty and understands his point of view. She stated it may seem like a modest change in the ordinance, but she feels like the ordinance is okay the way that it is. She stated it allows for a lot of things to be built without having the Conditional Use process. Council Member Gutierrez: Urban Thoroughfare is designed for greater density and that's the whole idea of it. I understand creating this barrier, but the idea is to help guide where we want things to go. Council Member Jones: What percentage of the city is zoned UT and what percentage is zoned single family? Jonathan Curth: I think Community Services is just over one and a half percent. I believe Urban Thoroughfare is just under one and a half percent. Combined, they were just under 4% citywide. The City Council received one public comment regarding this ordinance. Mayor Jordan: Do you want to leave this on the second reading? Council Member Turk 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 6-3. Council Members Gutierrez, Jones, Petty, Scroggin, and Turk voting yes. Mayor Jordan voting yes. Council Members Kinion, Bunch, and Hertzberg voting no. City Attorney Kit Williams read the ordinance. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 26 of 41 There was a brief clarification on what a yes or no vote would mean. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance failed 4-4. Council Members Gutierrez, Jones, Petty, and Scroggin voting yes. Council Members Kinion, Bunch, Turk and Hertzberg voting no. Mayor Jordan chose to not vote. This ordinance failed. New Business: Aptitude Arkansas, LLC: An ordinance to waive formal competitive bidding and approve a cost share agreement with Aptitude Arkansas, LLC for the installation of a pedestrian hybrid beacon for the Tsa La Gi Trail crossing on Razorback Road with a refund in an amount not to exceed $98,129.00 to be paid by the City of Fayetteville, to approve a project contingency in the amount of $9,813.00, and to approve a budget adjustment - 2019 Trail Improvements Bond Project. City Attorney Kit Williams read the ordinance. Chris Brown, Public Works Director gave a brief description of the ordinance. Council Member Turk: Is there a crosswalk there? Is that going to happen and if so, is the bike in sync with the pedestrian crosswalk? Chris Brown: There's not really an existing crossing there. What we're doing is moving the crossing to the south a little bit. We're relocating the trail that now comes out to Razorback at Indian Trails. That will be moved to the south and will be the crossing. The signal will be there. It will be for all users of the trail in one spot. Council Member Turk: On Old Wire, I've seen where the bike and the walk signal is not synced, but I see that now. Chris Brown: This is a little bit different function in that it'll be a red light for vehicular traffic and all of those crossing on the trail will get a walk signal. Even though bicycles are maybe there, they still will function like a pedestrian at this location. Council Member Turk: Excellent Thank you. This will improve safety substantially. Council Member Gutierrez: This is a really needed and exciting addition in Ward 1. It will benefit quite a few people and visitors. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Turk seconded the motion. Upon roll call the motion passed 7-0. Council Members Gutierrez, Jones, Kinion, Petty, Scroggin, Turk, and Hertzberg voting yes. Council Member Bunch was absent during the vote. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 27 of 41 City Attorney Kit Williams read the ordinance. Council Member Gutierrez moved to suspend the rules and go to the third and final reading. Council Member Turk seconded the motion. Upon roll call the motion passed 7-0. Council Members Gutierrez, Jones, Kinion, Petty, Scroggin, Turk, and Hertzberg voting yes. Council Member Bunch was absent during the vote. City Attorney Kit Williams read the ordinance. Council Member Gutierrez thanked everyone for their work on the ordinance. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6414 as Recorded in the office of the City Clerk Bid 420-86 Crossland Heavy Contractors, Inc. - 2019 Park Improvement Bond Project: A resolution to award Bid #20-86 and authorize a contract with Crossland Heavy Contractors, Inc. in the amount of $6,387,494.47 for the construction of Phase Two of Kessler Mountain Regional Park including a four -field baseball complex, to approve a project contingency in the amount of $487,505.53, and to approve a budget adjustment - 2019 Park Improvement Bond Project. Ted Jack, Park Planning Superintendent gave a brief description of the resolution. Council Member Petty spoke about his time on the A&P Commission and having many tourism conversations and conversations about tourism impact. He stated there are a lot of good reasons to build these ball fields and to build out the Master Plan at Kessler Park, but one of the things we've said in the past has been that we're going to get the money back because of the tournaments. He stated tournaments can be a good thing, but it's unlikely we're ever going to get our money back from tournaments. He stated it's okay to subsidize the ball fields, but we're subsidizing them with other sources of revenue. He stated a $6 million dollar ball field requires somewhere between $100 million and $300 million dollars' worth of taxable spending to occur within the city limits to recoup that money. He spoke about maintenance of the park. He stated this a subsidized program and whenever we consider programs like this in the future, maybe we'll do the math on it and have an honest conversation about how much of a subsidy to put in or why a subsidy is justified. Council Member Gutierrez moved to approve the resolution. Council Member Turk seconded the motion. Upon roll call the resolution passed unanimously. Resolution 66-21 as recorded in the office of the City Clerk Prairie Street Live Appeal: A resolution to grant the appeal of Council Members Sarah Bunch, Teresa Turk, and Mark Kinion and deny an extension to Prairie Street Live's Conditional Use Permit, CUP 2019-6721 for outdoor music at 509 West Prairie Street. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 28 of 41 Jonathan Curth, Development Services Director gave a brief description of the resolution. He stated the permit was approved to allow outdoor music for indefinitely with reconsideration of later hours this coming year in 2022 and no additional shows. He stated the applicant had hoped for additional shows and indefinite approval of the permit across the board. He stated one of the Council Members brought up whether the venue could continue operating if this item was not decided upon tonight. He stated there is a specific clause in the appeals section of code that notes activities that are under appeal must cease until the appeal has been resolved, unless it's a matter of life or injury. Council Member Turk: Could you point out about how the different directions have a different noise limitation? Jonathan Curth: If you've had a chance to read the police reports, you may have noticed instances where they took different measurements from different property lines. This property straddles two different zoning areas in the city. The Mill District, and this property are both zoned Main Street Center, which is close to our most intense Downtown zoning district. The areas to the north and west are either Downtown General or Residential Office and both of those are lower intensity and activity. Our noise ordinance breaks down all our zoning districts into three categories. You're either residential, commercial or industrial. There are different standards based on those classifications. With residential zoning districts in this case to the north and west having a lower decibel allowance, compared to the commercial zoning districts, on which this property sits and those to the east and south, which allows for a higher decibel level. The noise allowance to the north and west of this property is lower than the noise allowance to the east and south. The east and south being 75 decibels until 11:00 pm and the north and west being 60 decibels until 11:00 pm. April Lee, Applicant requested to Council to support and uphold the Conditional Use Permit that Planning Commission approved last month. She stated it gave them one additional hour on Friday and Saturday night and extended the CUP indefinitely. She stated from November of 2019 to November 2020 they had over 25 events during COVID and did not have one noise ordinance violation. She spoke briefly about the police incident reports over a12 month period. She spoke about sound barriers. She stated she has been following the rules and regulations set forth by the city. She stated the Planning Commission affirmed that Prairie Street Live is compatible with the adjacent properties. She stated on a day to day basis, the public is not adversely affected and might be negatively affected at most, two times a week for a few hours a day. She spoke about the current restrictions set forth by the city. She spoke about revenue and tax dollars generated. She stated if people choose to live in a Downtown area that's growing, there's going to be a trade with some noise. She spoke about noise decibel readings. She stated we need your help to survive and thrive. She requested for City Council to support Prairie Street Live of the growth of the southern entrance to the Cultural Arts Corridor and allow them to operate with a Conditional Use Permit the Planning Commission granted. She stated she feels like the public has had plenty of time to comment on this since August of 2019 and if tabled, it will negatively affect the business and employees during an already terrible time. The City Council received 28 public comment regarding this ordinance. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 29 of 41 City Attorney Kit Williams: Council, you have options. First option is that you can pass the resolution as worded and stated that's provided in your agenda packet. It takes five affirmative votes do that. If the resolution passes, as it stands right now, that would end the Conditional Use Permit and there would be no more outdoor amplified music allowed at the facility. Second option is that if you believe the Planning Commission was exactly right and chose the right conditions and were correct in approving the extension of Prairie Street Lives Conditional Use Permit, then you vote against the resolution. If the resolution doesn't garner at least five affirmative votes, it will fail, and the Planning Commission's decision will be affirmed. If you wanted to grant more time or more days, you would have to amend Section 1 of the resolution and grant the appeal, but instead of saying denies the extension, it would be granting the extension of Prairie Street Lives Conditional Use Permit for outdoor music at 509 West Prairie Street under the following conditions. You could choose the conditions as requested by the applicant or the conditions as recommended by Planning staff or you can invent your own conditions. Once the appeal is granted, you're sitting, like you are the Planning Commission with the discretion the Planning Commission has. If you want either one of the last two options, you must amend the resolution before you vote on it. Once you vote on the resolution, they're either going to deny the Conditional Use Permit by granting the appeal and denying it or you're going to affirm the Planning Commission and all of its conditions that are used. If anybody wants to grant more hours or more time, that would have to be done before the final vote on the resolution itself. Council Member Scroggin stated he lives next to an outdoor music venue and even 500 yards away following city regulations, he can hear the music in his house. He stated when a resident says they can hear it clearly in their house and you can't sleep, he believes that. He stated this location is a little closer to where music should be, which is next to the end of the Arts Corridor. He spoke about generating revenue and not disturbing the peace of the residents. He spoke about the financial interest for a lot of the people who are in favor of the resolution. Council Member Hertzberg: If Prairie Street Live receives three complaints, would their Conditional Use Permit be revoked? Jonathan Curth: That's a typical condition staff has placed on outdoor music venues over the years as a means of having that trigger mechanism that would take it back to the Commission. We've acknowledged that almost every one of these venues has at least one violation, as they try to calibrate how it operates. That gives them a couple more opportunities to make sure they're operating within their allowances. Council Member Hertzberg: It would be very easy for us to revoke this permit if they were to get three complaints. I think they deserve a chance to see if it works. Council Member Jones: Last Friday I had the opportunity, with three other Council Members to go by there. I enjoyed the tour and it gave me really good insight. It supports what's dear to Fayetteville, which is the arts. It also helps the community financially in supporting small businesses. They've done what they needed to do, as it relates to being in compliance with the noise ordinance. We should definitely give them a chance. We don't have the time to waste because they have booked some shows for March. I'm open to making sure that if they're wanting to extend the hours and can do that without violating the ordinance, I support that. 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 30 of 41 Council Member Bunch: A lot of the people in favor of extending this one hour, were people who were on the payroll. Several people made the comment that the owners cannot invest in sound muffling or planting trees, unless they get this extra hour. If we give them this extra hour, how do we ensure they make some improvements to the property and possibly put in these sound deadening measures? City Attorney Kit Williams: You would include that as a condition of approval. You would place these additional conditions of approval of doing a sound barrier. You could be explicit about trees or whatever else you think would be there. You could be more general and say a vegetative barrier. If you grant the appeal, it's like you're sitting as a Planning Commission considering what conditions you should place on the granting for extension of this Conditional Use Permit. Jonathan could guide you on that since he works with these things all the time. Council Member Bunch spoke about trying to get some type of sound barriers if possible. Council Member Kinion: It wasn't mentioned by the owner. It was mentioned by other people. The venue is a new business. What I got out of that tour and talking to the owners and the employees, is they are committed to do the right thing. They were given a decision by the Planning Commission that was already a compromise from what they asked for, initially. It is relatively easy at this point, because it's one hour. They have made a commitment to grow and nurture this business within the guidelines that was approved by the Planning Commission. I sponsored the appeal because I wanted to hear everyone's point of view. We really didn't hear a lot of complaints about the noise. If you live by a venue like this, you're going to be disturbed. If there is noise in the area, eventually you develop the capacity to live with it. I live by the railroad tracks. When I first moved here, I thought I was never going to sleep again. Now, I don't even notice it because it's part of the routine. Jonathan did you mention that on the tour or was it someone else? Jonathan Curth: That was the sound engineer for the applicant. Council Member Kinion: It makes sense. I think it's fair that we take the compromise that was offered by the Planning Commission and it was accepted by the owner of the operation. Council Member Bunch: I co -sponsored this. I reserve the right to make my own decision based on what I hear and what I experience. I do understand the Mill District had been condos. I don't know when that was built. That was put in long before any of this was built out in this fashion. Council Member Turk thanked the owners of Prairie Street Live for the tour. She stated the weather precluded them from having the sound turned on so they could experience a little bit about what the neighbors were hearing. She stated she is concerned the way Prairie Street Live is straight toward the Mill District and is a challenge. She stated the Mill building was there before Prairie Street Live and the extension of the Arts Corridor. She spoke about the older houses that have been there a long time and is concerned about neighbors. She spoke about a possible motion to include sound barriers. She stated next year we can check in with the neighbors to see how well those sound barriers are working and hopefully we could extend them another hour and maybe another day. She stated she would like for them to stay in business and they've done all the right COVID procedures. She stated we need a small musical venue but believes there are still some challenges. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 31 of 41 She stated she would motion to continue as they have been for the last year and extend them for another year and encourage them to find some sound mitigation or barriers. She stated when they come back next year, we could consider granting the extension to 11:00 pm and another day of the week. Council Member Scroggin: As somebody who has lived next to a railroad and a music venue, the railroad comes at the same time and it sounds the same, day in and day out. Music from a music venue does not. A music venue keeps you up and you can't go to sleep when it's on. I'll second Council Member Turk. City Attorney Kit Williams: What I have written down to try and reflect what Council Member Turk said, is that it grants the appeal of the Council Members and extends the Conditional Use Permit under the same conditions as a previous year, with the encouragement to establish a sound barrier. Council Member Turk: Thank you, Kit. Council Member Turk made a motion to amend the resolution to grant the appeal of the Council Members and extend the Conditional Use Permit under the same conditions as a previous year, with the encouragement to establish a sound barrier. Council Member Scroggin seconded the motion. There was no vote taken at this time and a discussion pursued. Council Member Turk: Regarding a mitigation device, I will leave it open to what Prairie Street Live can accomplish. I don't want to restrict them to anything they think they can do to mitigate the sound challenges there. Council Member Kinion: I see the practical offer with that, but one hour would not be that much different than what it is. It would be one hour that certainly is very meaningful for the income stream for this new business. I don't want to put them out of business. Everyone in the hospitality sector is already persecuted enough by the year we've had with COVID. I want to give them the opportunity with one hour and offer them the deal that was made by the Planning Commission. Council Member Bunch: I'm leaning towards giving them that hour as well. I feel like we've been brutalized this past year. I believe the neighbors feel that way too because they can't enjoy the outdoor areas of their home. It is just one hour, two nights a week and it's on the nights you typically would think a music venue might be open a little bit later. I don't think I'm going to support this amendment. City Attorney Kit Williams: The other option for you is to either ask the motioner and seconder whether they'd accept that as a friendly amendment to their amendment. If not, you can make an amendment to their amendments to see if you can get the votes to change the amendment to add that extra hour. Council Member Kinion: I think what we're saying is, if the amendment doesn't pass, we're going back and talking about the initial motion. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 32 of 41 Council Member Bunch: I'm leaning toward giving them the extra hour without amending anything. Council Member Scroggin: I'm okay with the extra hour, but I want the year to review this. We're going to be in a totally different world, hopefully in a year, because we will be without COVID. At that point, they'll have a better idea of their finances and could discuss mitigating. City Attorney Kit Williams: Council Member Scroggin, under what you had said, it is going to be reviewed in a year because that's what the previous one was. If you wanted to add an extra hour, we know it would be reviewed within a year. The last one that was issued by the Planning Commission is how it is read. Is that correct, Jonathan? Jonathan Curth: What I'm hearing, is something between what the Planning Commission approved and what staff recommended, which is, instead of extending the Conditional Use Permit, as it is today indefinitely as the Planning Commission proposed, Council Member Scroggin is talking about bringing the whole thing back, including that one hour of additional time. City Attorney Kit Williams: The one they've been operating on the last year required a review after one year. Is that right that? Jonathan Curth: That is not correct. The Commission approved the permit indefinitely but did want to look at that one additional hour of music in one year. City Attorney Kit Williams: I'm not talking about what's on appeal right now. I'm talking about what was their Conditional Use before the Planning Commission just reviewed it and granted a new one? Jonathan Curth: It did not include going until 11:00 pm on Fridays and Saturdays. City Attorney Kit Williams: It did require review in one year. Right? Jonathan Curth: Yes. City Attorney Kit Williams: If this would be extended under the same terms as the older Conditional Use, with the exception of adding an hour and encouraging the establishment of a sound barrier, then that would be what some of the Council Members have asked for. Council Member Turk: I'm very concerned about the neighbors. I could see going and adding another hour if Prairie Street Live would pledge to purchase and install the sound barriers. City Attorney Kit Williams: No, it's not their pledge. You would make those conditions of the Conditional Use as a requirement. Council Member Turk: It would be a requirement that they install sound barriers, particularly because the orientation is right toward the Mill building. That would be my amendment to my amendment, if that is agreeable. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www Fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 33 of 41 Council Member Bunch: The owner of the business did not agree to do that. I have no idea when we're talking about sound barriers if we're talking about three trees or we're talking about something more substantial. I have no idea how expensive it is. I'm concerned about that. If we're talking about three or four trees, these people sound like they are agreeable enough to do something like that. If we're talking about tens of thousands in a wall, that might be prohibitive. I don't want to give them this extra hour but have them spend $20,000 on wall. Council Member Turk: I don't know what the cost is either, but if I were living down there and I had to listen to music I might not care for and now you're going to extend it another hour. I want a small business to thrive, but we also want those long term neighbors to still enjoy their neighborhood and living down there. City Attorney Kit Williams: If you want to be more specific about that, then you could say that they would need to install six trees, as recommended by the Urban Forester for sound barrier purposes. Council Member Kinion: The utilities came in and cut out trees, which was their sound barrier. They didn't have anything to do with it and they put an end to it after they realized what was going on. The trees were there once upon a time. Council Member Bunch: Were the trees in the utility right of way to begin with, so they can't plant it back? Council Member Kinion: I don't know. Council Member Turk: I think it was in the utility right of way. SWEPCO did it. Jonathan Curth: There were two sound barriers on the south property line. There was a row of trees that was a buffer between Prairie Street Live and the property to the south, which fronts MLK. There was a tree line to the east, between the Razorback Greenway. The trees on the south end of the property were removed by that property owner, but while SWEPCO was on site, they were looking at some overhead lines that exists between this property and the Razorback Greenway and that's what SWEPCO cleared out. On the south property line, the applicant has planted quite a few trees and shrubs but are still quite young at this point. City Attorney Kit Williams: Is there room between the Mill District and this property for more trees to be planted outside the utility easement? They aren't going to last there. Jonathan Curth: There's a fair amount of green space there, but they have some non -concert programming that happens on the property. I don't know if that would start to impact that adversely. I would have to defer to the applicant. April Lee stated it's not the extra hour that we need to build the sound barrier. She stated we need to know that we're going to be able to operate indefinitely or at least beyond a year because the sound barriers we are talking about having to put up are going to be thousands of dollars. She doesn't believe six trees are going to mitigate the sound the way it needs to be mitigated. She stated 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 34 of 41 on the south side, she planted those shrubs two years ago. She stated they eliminated 90% of the trees that were there, and the sound is now bouncing from the south, over to the east, which created an issue. She stated we would rather have two days a week and stop at 10:00 pm, verses one day a week and stop at 11:00 pm. Council Member Kinion: I understand. If you're going to invest in your property, you need to be sure you're there long enough that the investment is going to be a good investment. April Lee: Correct. Council Member Kinion: If you think you don't have that guarantee, it's hard to make the investment. April Lee: True statement. Council Member Scroggin: I don't think we should require the buffer at this point. We should give them another year that works. I'm good with the extra hour, but I want to be able to review it in a year and see that it is working. Maybe at that point, if they're still operating and COVID is over, then they have a better idea of how much it would cost to put in a buffer and how much money they have for that. City Attorney Kit Williams: Are you saying an extra hour and extra day? Council Member Scroggin: I believe that's what the Planning Commission recommended, but they allowed it to go on indefinitely without any review at any point, unless we brought it back. City Attorney Kit Williams: The only change you would request from the Planning Commission's approval would be that it's reviewable in one year? Council Member Scroggin: Yes, that's what I would like. Council Member Turk: I had a motion on the floor and we never voted on it and now we're amending it substantially. City Attorney Kit Williams: A secondary amendment has priority over the first amendment, but it looks like your seconder is beginning to waffle on the original amendment. If Council Member Scroggin withdraws his second, then at the point we won't have an amendment. Council Member Scroggin withdrew his second. Council Member Turk: I can't support an extra day. It's a fine balance here. Reviewing it in a year is great, but certainly not an extra day. City Attorney Kit Williams: Any change is going to eventually require five affirmative votes for the amended resolution or else it'll just be an affirmance of what the Planning Commission did 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 35 of 41 with no change. Jonathan, please put the slide up and show us what the applicant requested, what the Planning Commission did and what the staff had recommend. Jonathan Curth: The applicants request, which was indefinite permit approval, an additional show a week and for Friday and Saturday nights to go an additional hour to 11:00 pm. Staff recommended a one year extension without additional music or hours and the Planning Commission approved indefinite permit approval, with the one hour allowed on Fridays and Saturdays with that one hour, subject to review in 2022. City Attorney Kit Williams: City Council can choose among those if they want. You can put as a condition if you want to go ahead and extend the Conditional Use Permit under the conditions you decide are the appropriate ones. Council Member Turk stated she would like to approve the staff recommendation. City Attorney Kit Williams: Is anyone else in favor of what the staff recommended? Council Member Turk made a motion to approve the staff recommendation. The motion died due to the lack of a second. Council Member Gutierrez: When you say the same hours of operation, what is that? Mayor Jordan: It means it's just like it is right now. We extended it a year. Correct? Council Member Kinion: Right. Jonathan Curth: Correct. These hours are what they were approved for through the end of 2019 and 2020. Council Member Gutierrez: One show a week. Two shows during citywide. City Attorney Kit Williams: Council Member Scroggin, you said you wanted to give them an additional hour, which would have been what the Planning Commission approved, but he wanted to have the whole thing reviewed in 2022. Council Member Scroggin: Yes. Council Member Kinion: If it was amended to offer a one year review, instead of indefinite, is that what you think you could support? Council Member Scroggin: Yes. Council Member Kinion: The only change is the one year? Council Member Scroggin: Correct. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 36 of 41 Council Member Gutierrez stated she could support that, as well as the Planning Commission's approval with a one year check in. She stated hopefully we can add some extra days at that point. She spoke about being fine with hearing from people on the payroll because that means the creative economy is employed. She stated the creative economy needs to work with the neighborhood, because otherwise we will lose our opportunities. She stated it is critical that we continue to make our best effort and to connect with the neighbors. Council Member Scroggin moved to amend the resolution to accept the Planning Commission's approval and remove the indefinite permit approval and review it one year. Council Member Gutierrez seconded the motion. The proposed amendment was discussed and voted on later in the evening. Council Member Kinion: I'm supportive of what the Planning Commission offered. It is a young business and is supporting the creative economy. Council Member Gutierrez: You don't want to check back in a year? Council Member Kinion: I understand the financing part of it. If you're financing a business, but you don't have a guarantee that there's at least an opportunity to continue the operation, the risk is just so high. It would be hard to make that capital investment at that high of a risk. Council Member Gutierrez: With this one, we're not asking them to put any barriers. Council Member Kinion: They will put in barriers more likely if they can afford it and they can afford to finance it out over five years. Council Member Gutierrez: We're just saying to check back in. It's fair for the neighbors as well. It's sort of a compromise. Council Member Jones: Can we say indefinitely and then at our discretion still bring it back if it needs to be revisited? City Attorney Kit Williams: They have to violate a condition on their Conditional Use Permit before it can be brought in, if it's granted indefinitely. Even if there were problems with the neighborhood that they couldn't go to sleep at night, but it wasn't actually violating the noise ordinance, that would not be a right for the Planning Commission to go back and look at it in a year or whenever. Council Member Jones: Okay. Council Member Gutierrez: Council Member Scroggin, there's an incentive to not have to come back for a year. If they have a perfect record, they can just keep on rolling right along, but if they do have complaints, then they're going to have to check back in anyways. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www Fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 37 of 41 City Attorney Kit Williams: I don't think complaints is enough. They have to violate one of the conditions of the Conditional Use Permit, which is like a violation of the noise ordinance. Is that correct, Jonathan? Jonathan Curth: That is correct. Additionally, any changes to the permit or when it goes back, it's going to go to the Planning Commission. It will not be coming back to the City Council, unless appealed again. City Attorney Kit Williams: Basically, what I'm hearing from some of the Council Members is they just want to approve what the Planning Commission approved. Council Member Turk: I can't support an indefinite permit approval. There's less shows than there would have been. They had 25. A lot of those were movie nights, which is great, but this year hasn't been typical. We don't have good information to go on once Prairie Street Live is to full capacity and what that's going to look like. We need to have them come back in a year so we can see how things are working out. City Attorney Kit Williams: At one point, that's what Council Member Scroggin moved. Kara, was there a second? Kara Paxton, City Clerk Treasurer gave a brief outline of what had occurred. She stated Council Member Gutierrez was the second to Council Member Scroggin's motion. Mayor Jordan: They will look at it on one year. Correct, Council Member Scroggin? Council Member Scroggin: Correct. Council Member Kinion requested clarification on the vote. City Attorney Kit Williams: You'd be amending the resolution that would grant the appeal but extend the Conditional Use pursuant to the Planning Commission's terms, except it will be reviewed in one year. It'll be a one year Conditional Use Permit. Council Member Petty: I will be recusing. I have an ownership interest in a nearby property. Council Member Scroggin moved to amend the resolution to accept the Planning Commission's approval and remove the indefinite permit approval and review it one year. Council Member Gutierrez seconded the motion. Upon roll call the motion passed 5-3. Council Member Gutierrez, Scroggin, Turk, and Hertzberg voting yes. Mayor Jordan voting yes. Council Member Jones, Kinion, and Bunch voting no. Council Member Petty recused. City Attorney Kit Williams: The amendment passed and now we have the amended resolution for the Council Members consideration. If you want to affirm exactly what the Planning Commission did, you will vote against this resolution if you want to approve what the Planning Commission did, except to not have an indefinite Conditional Use granted, but only a one year Condition Use granted, then you will vote for the resolution. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes February 18, 2021 Page 38 of 41 Kara Paxton, City Clerk Treasurer: We amended and we're going with the Planning Commission's approval, with a one year check in and we haven't had any other motions, since then, for an approval? Mayor Jordan: Right. City Attorney Kit Williams: That's it. Council Member Gutierrez moved to approve the resolution. Council Member Turk seconded the motion. Upon roll call the resolution passed 6-1. Council Members Gutierrez, Jones, Scroggin, Bunch, Turk, and Hertzberg voting yes. Council Member Kinion voting no. Council Member Petty recused. Resolution 67-21 as recorded in the office of the City Clerk RZN-2020-027 (1673 & 1675 N. Florene St./Hermez-Hernandez): An ordinance to rezone that property described in rezoning petition RZN 20-027 located at 1673 and 1675 North Florene Street for approximately 0.30 acres from R-A, Residential Agricultural to RI-12, Residential Intermediate, 12 units per acre. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director gave a brief description of the ordinance. He stated staff did find the request to be compatible and consistent with our existing land uses and our long range plans. He stated the Planning Commission agreed with a vote of 6 to 2. He stated he received an email very shortly ago from the applicant, saying they may have had to drop off the meeting. He stated he has not seen the applicant rejoin the meeting but he's available to answer questions. Kara Paxton, City Clerk Treasurer: If you drop off the meeting and then try to rejoin with another device, it will not let you join. I've had that happen to me several times since we've been dealing with Zoom. That may be why the person is not on the call again. Council Member Gutierrez: It's late and we have lost our applicant. Maybe we should just go ahead and hold it here. Council Member Petty: I suggest we hold all of the remaining agenda items. The last two items are internal. We have a special meeting on Tuesday, if we need to cover internal items with any urgency. Council Member Gutierrez: I totally agree with that. Jonathan Curth: There is at least one member of the public who's been waiting to comment on this item. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 39 of 41 The City Council received one public comment regarding this ordinance. This ordinance was left on the First Reading. Amend §97.068 Camping Prohibited: An ordinance to amend §97.068 Camping Prohibited in Chapter 97: Parks and Recreation of the Fayetteville Code to allow camping in the Fayetteville parks system in designated areas during special events, races, and tournaments with an approved camping permit. City Attorney Kit Williams read the ordinance. There was a brief discussion about continuing on with the meeting. Lee Farmer, Recreation Superintendent gave a brief description of the ordinance. He stated the Parks & Recreation Advisory Board approved this. Council Member Turk: Do you authorize them to camp and give them a permit or is that not allowed right now? Lee Farmer: The current ordinance does allow for some camping for various volunteer groups, such as the Boys Scouts and Tournament Site Directors. Council Member Turk: What is the difference with what we have currently, versus what this amendment does? Lee Farmer: It keeps the components for those volunteer groups and the tournament directors. It adds the ability for special events to camp in campsites. We have had several requests over the last couple years for running and cycling events. Those type of participants come to these events with an anticipation that they would like to camp. This would allow them to do so. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Gutierrez moved to suspend the rules and go to the third and final reading. Council Member Turk seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6415 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 February 18, 2021 Page 40 of 41 Amend §157.03 Annexation and Zoning Map Amendments: An ordinance to amend § 157.03 Annexation and Zoning Map Amendments in Chapter 157 Notification and Public Hearings to clarify that hearings before the Planning Commission are only required for private party petitions for annexations and amendments to the zoning map. City Attorney Kit Williams read the ordinance. City Attorney Kit Williams: I proposed this because I am trying to protect the City Council statutory rights to be able to do a rezoning without have to send it to the Planning Commission for a public hearing. This has been our practice in the past. It doesn't happen very often, but sometimes the City Council wants to amend a rezoning that has been presented to them or else do a rezoning themselves, without having to go through the process of having a public hearing. The Planning Commission could waste a lot of time when the City Council has already decided what they want to do. You all are the policymakers to defend your rights and ensure that you have the right to continue to do that. I drafted this ordinance to clarify that you do have the right, just by majority vote to rezone property. Council Member Turk: I would like to hold this one. It sounds like we're already doing this and you're just trying to clarify this procedure. Has this been done before, where the Council wanted to rezone something and then it was sent to the Planning Commission? City Attorney Kit Williams: That's one of the options. The City Council can send it to the Planning Commission, but you can rezone the land yourself. I made sure the Unified Development Code continued to say that during its recodification a couple of times. I'm trying to defend your power that is granted to you by state statutes to rezone property without following all the normal procedures. Council Member Turk: It's so late. I would like to think about that some more and hold it on the first reading. Council Member Gutierrez: I'm fine to hold it. This ordinance was left on the First Reading Announcements: Susan Norton, Chief of Staff: The Special City Council Meeting we have next Tuesday is specifically designed for the CDBG item that Yolanda Fields has brought forward about the $50,000. City Attorney Kit Williams: Did you notify them that we got information that we don't have the contracts? Susan Norton: I did not. I didn't know what you wanted me to do about that. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes February 18, 2021 Page 41 of 41 City Attorney Kit Williams: The City Council needs to change the tabling. Susan Norton: Right. While we were talking on other items, I heard from Vicki Bronson that the bank will need their Board of Trustees together. That won't happen until Thursday. City Attorney Kit Williams: We need to ask Council to amend the tabling motion you had, to the next regularly scheduled March 2, 2021 meeting, instead of the special meeting. Kara Paxton, City Clerk Treasurer: So, that's going to be for B.2, the Bank of Fayetteville Depot Lot Site and for B.3, the RFQ 19-01 Olsson Incorporated Amendment #2. City Attorney Kit Williams: Yes. Both of them need to be done like that. Mayor Jordan: You are right. Council Member Gutierrez moved to table items B.2 and B.3 to the March 2, 2021 City Council meeting. Council Member Turk seconded the motion. Upon roll call the motion passed unanimously. Council Member Turk: At our special meeting on Tuesday, are we also doing the Agenda Session as well? Susan Norton: Yes. We were going to start at 4:30 pm with the CDBG item and then move into the agenda setting session. City Council Agenda Session Presentations: Agenda Session Presentation: Drainage & Stormwater Standards ,4,1111111 tiff,,/ �•, ' C I T'y Kara Paxton, City Clerk reasurer ? 0IC,G� • F� . '�,%,� gNSAS • •' ��. %ON ;o ` O,``��� 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteviIle-ar.gov