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113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 6426
File Number: 2021-0252
AMEND §166.04(B)(2)(a) DEDICATION OF RIGHT-OF-WAY OF THE UNIFIED
DEVELOPMENT CODE:
AN ORDINANCE TO AMEND §166.04(B)(2)(a) DEDICATION OFRIGHT-OF-WAYOF THE
UNIFIED DEVELOPMENT CODE BY ADDING THE POWER OF THE CITY COUNCIL TO
GRANT A LESSER DEDICATION OF THE MASTER STREET PLAN RIGHT-OF-WAY
REQUIREMENT FOR A LOT SPLIT
WHEREAS, § I 66.04(B)(2)(a) requires that the Subdivision Committee or Planning Commission
must make a recommendation to approve a lesser dedication of Master Street Plan right-of-way for a
lot split before such lesser dedication can be granted by the City Council; and
WHEREAS, the City Council should retain the right to grant such lesser dedication of street
right-of-way for a lot split on its own initiative especially when such lesser dedication may be necessary
to avoid an unconstitutional exaction or taking of private property.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § I66.04(B)(2)
(a) by enacting a final sentence as follows:
"The City Council retains the right to grant a lesser dedication of the right-of-way than is normally
required by the Master Street Plan without the Subdivision Committee's or Planning Commission's
recommendation."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby grants the lesser
dedication of Master Street Plan right-of-way requested by Zara Niederman to match his previous
Page 1 Printed on U7121
Ordinance: 6426
File Number: 2021-0252
dedication of street right-of-way required t'Or this same lot split development.
PASSED and APPROVED on 4/6/2021
Attest:
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GJYO'�9��'�
Kara Paxton, City Clerk Treasurer: FAYE7?EvItLE
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Page 2 Printed on 417121
City of Fayetteville, Arkansas 113 West Mountain Street
_ \ Fayetteville, AR 72701
(479) 575-8323
- i
Text File
File Number: 2021-0252
Agenda Date: 4/6/2021 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Ordinance
Agenda Number: C.8
AMEND §166.04(B)(2)(a) DEDICATION OF RIGHT-OF-WAY OF THE UNIFIED
DEVELOPMENT CODE:
AN ORDINANCE TO AMEND § 166.04(B)(2)(a) DEDICATION OF RIGHT-OF-WAY OF THE
UNIFIED DEVELOPMENT CODE BY ADDING THE POWER OF THE CITY COUNCIL TO GRANT
A LESSER DEDICATION OF THE MASTER STREET PLAN RIGHT-OF-WAY REQUIREMENT FOR
A LOT SPLIT
WHEREAS, § 166.04(B)(2)(a) requires that the Subdivision Committee or Planning Commission must make a
recommendation to approve a lesser dedication of Master Street Plan right-of-way for a lot split before such
lesser dedication can be granted by the City Council; and
WHEREAS, the City Council should retain the right to grant such lesser dedication of street right-of-way for a
lot split on its own initiative especially when such lesser dedication may be necessary to avoid an
unconstitutional exaction or taking of private property.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 166.04(B)(2)(a) by
enacting a final sentence as follows:
"The City Council retains the right to grant a lesser dedication of the right-of-way than is normally required by
the Master Street Plan without the Subdivision Committee's or Planning Commission's recommendation."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby grants the lesser dedication of
Master Street Plan right-of-way requested by Zara Niederman to match his previous dedication of street
right-of-way required for this same lot split development.
City of Fayetteville, Arkansas Page 1 Printed on 4/7/2021
Legistar ID No.: 2020- OZy Z
AGENDA REQUEST FORM
FOR: Council Meeting of April 6, 2021
FROM: Council Member Sonia Gutierrez
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
AN ORDINANCE TO AMEND § 166.04(B)(2)(a) DEDICATION OF RIGHT-OF-WAY OF
THE UNIFIED DEVELOPMENT CODE BY ADDING THE POWER OF THE CITY
COUNCIL TO GRANT A LESSER DEDICATION OF THE MASTER STREET PLAN
RIGHT-OF-WAY REQUIREMENT FOR A LOT SPLIT
APPROVED FOR AGENDA:
3/16/21
Council Member So ' Gutierrez Date
City Attorney Ki Williams Date {
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DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
C I T Y ArTORN F Y
TO: Mayor Jordan
City Council
Kit Williams
(1h Attorlh"P
(lake Pennington
CC: Susan Norton, Chief of Staff Jodi Barker
I'crr-r1••�>rl
Jonathan Curth, Development Manager
FROM: Kit Williams, City Attorney
DATE: March 18, 2021
RE: Lot Split Dedication Requirements Are Constitutionally Suspect
The two appeals from the Unified Development Code's requirement that an
owner who desires a lot split must dedicate street right-of-way even if not needed
to serve the new lot are examples of why such required dedication for a lot split
can be unfair, unreasonable and probably unconstitutional. Requiring dedications
for a building permit for a non -assessed lot would be constitutional and would be
more accurate in determining the amount of dedication that the City could require.
I am attaching my memo to the Mayor and City Council dated June 3, 2003
about constitutional problems for lot split dedication requirements. This eighteen
year old analysis of lot split constitutional issues regarding required dedications
is still good law. The two problem lot splits that the current Council must consider
on April 6th highlight why the Unified Development Code's reliance on lot splits
for required dedication of street right-of-way is problematic at best.
1-44 AA "rri;,A "i 1 JI a
THE CITY OF FAYETTEVIILE. ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE
TO: Dan Coody, Mayor
City Council
FROM: Kit Williams, City Attorney
DATE: June 3, 2003
RE: Lot Split and the "Rough Proportionality" test
for requiring dedication of land to the City
Within the Unified Development Ordinance are requirements in
which developers are required to spend money or dedicate land that
becomes public property. A new residential subdivision builder is
required to build the internal streets and sidewalks, install drainage,
water and sewer mains, landscaping and parkland (or pay a monetary
fee in lieu thereof). Then all of this infrastructure is dedicated free to
the City for use of the public.
This is constitutional because all of these dedications and
exactions are only needed because the new subdivision was built on
undeveloped land and so what the City has required is "roughly
proportionate" to the impact of the new subdivision on the City's
existing infrastructure and the need to serve the citizens within the new
subdivision.
According to the controlling Supreme Court decisions, the City
can only require an owner to dedicate land or pay money in "rough
proportionality" to the impact that construction of his project causes
the City. Dolan v. City of Tigard, 512 U.S. 374,114 S.Ct. 2309, 2320.
"We think a term such as "rough proportionality"
best encapsulates what we hold to be the
requirement of the Fifth Amendment. No precise
mathematical calculation is required, but he city
must make some sort of individualized
determination that the required dedication is related
both in nature and extent to the impact of the
proposed development." Id.
As some Alderman may remember, I have long expressed
concern over requiring land dedications (for widening street right-of-
way, etc.) for simple lot splits. In my February 19, 2002 memo to you, I
wrote:
"When someone actually constructs a building, at least
some impact upon our infrastructure needs has occurred. The
argument then becomes roughly how much is the cost of the impact to
the City. When only a lot split is approved, there is a real argument
whether any impact at all has occurred. That is why I would
recommend that lot splits only trigger necessary easements (water,
sewer, utility, road) to serve the newly created lot." (emphasis
added).
The whole rationale restricting the City's right to demand
dedications of land or exactions is derived from the Fifth Amendment
requirement that "just compensation" be paid for private land taken for
public purposes.
"In addition to the requisite nexus, the (Supreme)
Court went on to require that the city demonstrate
that the degree of the exactions demanded in the
condition bears "rough proportionality" to the
projected impact of the applicant's request. This
requirement ensures that the conditioning of a
discretionary benefit does not force 'some people
alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a
whole' in violation of the Just Compensation
Clause." Pennell v. City of San lose, 485 U.S.1,9
(1998) (citations omitted); Goss v. City of Little
Rock, 90 F.3rd 306, 309 (8th Cir.1996).
In conclusion, I again request that lot splits not be used to
demand more than the necessary easements to serve the newly created
lots. Building permits which will cause some impact upon our
infrastructure needs could justify right-of-way dedications as desired in
our Master Street Plan.
4
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
CC: Jonathan Curth, Development Services Director
Kara Paxton City Clerk/Treasurer
FROM: Kit Williams, City Attorney �C �--
DATE: March 25, 2021
RE: Zara Niederman's second lot split dedication
Kit williams
Cit y : t ttorney,
Blake Pennington
.Assistant City Attorney
JoKii Batker
Paralegal
Council Member Sonia Gutierrez contacted me to see if she could help Zara
Niederman who was being asked to dedicate additional street right-of-way for his
lot split development even though he had already dedicated street right-of-way
earlier for this same development. His townhouses are now substantially
constructed. The only reason for this second lot split is so the town houses can
be sold separately.
However, since the Master Street Plan right-of-way has increased since his
first dedication, the Unified Development Code apparently requires a second right-
of-way dedication for a lot split even if that second lot split has ZERO impact on
our City's street infrastructure needs. This is not constitutionally allowed.
"The Supreme Court went on to require that the city demonstrate that the
degree of the exactions (such as right-of-way dedications) demanded in the
condition bears 'rough proportionality' to the projected impact of the
applicant's request. This requirement ensures that the conditioning of a
discretionary benefit (lot split, building permit, etc.) does not force 'some
people alone to bear public burdens which, in all fairness and justice should
be borne by the public as a whole in violation of the Just Compensation
Clause." Goss v. City of Little Rock, 90 F. 3d 306, 309 (8th Cir. 1996) quoting
Pennell v. City of San Jose, 485 U.S.1, 9 (1988).
Unfortunately, to prevent further unwarranted delay by having to present
a request to the Planning Commission to not be required to dedicate additional
street right-of-way before the City Council could approve a recommendation of
the Planning Commission, the UDC would need to be amended so that the City
Council could act on its own when such a lot split dedication requirement would
be clearly unconstitutional.
This proposed amendment would simply add the following sentence to the
end of §166.04 (B) (2) Lot Split:
"The City Council retains the right to grant a lesser dedication of the right-
of-way than is normally required by the Master Street Plan without the
Subdivision Committee's or Planning Commission's recommendation."
This amendment would allow the City Council to immediately act upon Z.
Niederman s request so you can prevent an unconstitutional exaction demand. I
would like to thank Council Member Sonia Gutierrez for bringing this improper
demand for a second right-of-way dedication for the same street for a single
project to my attention. I have long been concerned that lot splits are not the
proper justification for dedication requirements in almost all circumstances.
I have been discussing this recently with Development Services Director
Jonathan Curth. I have long believed that a building permit is a much more
constitutional reason to apply dedication requirements for lots not within already
exaction assessed developments such as Large Scale Developments, Preliminary
Plats, Large or Small Site Improvements, etc. Additionally, such building permits
would more accurately describe the actual impacts upon the City's infrastructure
needs that would justify the exactions.
I have attached Zara Niederman's letter to Development Services explaining
his situation. I have also attached the first page of an email I sent to Sonia and
Development Services explaining how I thought the City Council could most
quickly resolve this situation.
1/26/2021
3V Development LLC
223 E 71' St.
Fayetteville, AR 72701
Development Services
City of Fayetteville
Re: MLK PLA/SPLIT
To Whom It May Concern:
I am writing in regards to the lot split request for 308-310 and 316-318 E Martin Luther King
Blvd. We submitted several permits for this project in October of 2019 and began construction in
January of 2020. At that time, we did not do individual lot splits for each townhouse because we were
not sure exactly how the parking would line up and if there would be anything else we might want to
alter on the site. We did build these with 2-hour firewalls so that we could split them upon completion.
As a part of the original lot split and property line adjustment, we dedicated right of way up to the
existing Master Street Plan Right of Way (MSP ROW) that existed at the time.
We are now at the stage where we are nearing completion and ready to do the remaining splits.
It has come to my attention that recently the new MSP has been adopted and the ROW's have increased
for this street. The new MSP ROW would require additional dedication that would mean we have an
encroachment of our building and the right of way. Because we started this project prior to the adoption
of the new Master Street Plan, we are hoping that the City can administratively waive the added
dedication typically required during a lot split request.
Thank you for your consideration,
7-4Lro, Ni, fizf-wuu�
Zara Niederman
3VDevelopment@gmail.com
479-387-2123
Williams, Kit z
From: Williams, Kit
Sent: Friday, March 12, 2021 4:53 PM
To: Gutierrez, Sonia; Z Niederman
Cr Benson, Willie; Masters, Jessica; Curth, Jonathan; Bunch, Sarah; Pennington, Blake
Subject: RE: MLK Lot Split request follow up
Attachments: Ord to allow council to reduce street right-of-way §166.04(B)(2)(a).docx
Sonia,
The Unified Development Code currently only gives the City Council the right to approve an existing
recommendation of the Planning Commission for a lesser dedication of Master Street Plan requirements. This rule is not
required by state law, but by the City Council when it enacted this provision. The Supreme Court has held that such
rules enacted by a city council must be obeyed by that city council until the rule is changed or repealed.
Initial consideration by the Planning Commission is usually wise especially for significant
developments. However, the case you are now faced with is of a lot split that does not impact our street infrastructure
needs at all. It would be unconstitutional for the city to require any dedication when the lot split only changes
ownership of houses already being constructed and for which a street right-of-way has already been dedicated.
I think this rule which always requires a submission to the Planning Commission and its recommendation
before the City Council can decide whether the dedication is appropriate is a mistake. I believe that the City Council, as
the elected policy makers of our City, should have the right to grant such a lesser dedication of street right-of-way on
your own without having to first get a recommendation from the Planning Commission. This would be similar to your
power to rezone property without always having such rezoning first be heard by the Planning Commission.
For the City Council to have this necessary and proper power, you will need to slightly amend the Lot split
subsection to return this inherent power back to you. Attached is my proposed ordinance to amend that section by
adding a final sentence: "The City Council retains the right to grant a lesser dedication of the right-of-way than is
normally required by the Master Street Plan without the Subdivision Committee's or Planning Commission's
recommendation."
I have discussed this with Development Services Director Jonathan Curth who agrees such change is necessary
to get this lesser dedication of right-of-way to the City Council without having to first go through the Planning
Commission. The second section of the ordinance would grant Z's request not to have to dedicate further street right-
of-way which is the proper, constitutionally required decision.
Please read this fairly short ordinance over the weekend and let me know if it is satisfactory. If it is okay, I will
send you an Agenda request form and we will get it on the April 6'' Council Meeting agenda. Have a nice weekend.
Kit
From: Gutierrez, Sonia
Sent: Thursday, March 11, 2021 1:01 PM
To: Williams, Kit <kwilliams@fayetteville-ar.gov>; Z Niederman <zniederman@gmail.com>
Cc: Benson, Willie <wbenson@fayetteville-ar.gov>; Masters, Jessica <jmasters@fayetteville-ar.gov>; Curth, Jonathan
<jcurth@fayetteville-ar.gov>; Bunch, Sarah <sarah.bunch@fayetteville-ar.gov>; Pennington, Blake
<bpennington@fayetteville-ar.gov>
Subject: Re: MLK Lot Split request follow up
Ok. Thank you. I'm flexible to hold it for April 6. Z expressed flexibility as well.
Sonia Gutierrez
Fayetteville City Council Member
Ward 1, Position 1
(479)409-5064
Demomt azeite
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AFFIDAVIT OF PUBLICATION
I, Brittany Smith, do solemnly swear that I am the Accounting Legal Clerk of the
Northwest Arkansas Democrat -Gazette, a daily newspaper printed and
published in said County, State of Arkansas; that I was so related to this
publication at and during the publication of the annexed legal advertisement
the matter of: Notice pending in the Court, in said County, and at the dates of
the several publications of said advertisement stated below, and that during said
periods and at said dates, said newspaper was printed and had a bona fide
circulation in said County; that said newspaper had been regularly printed and
published in said County, and had a bona fide circulation therein for the period of
one month before the date of the first publication of said advertisement; and that
said advertisement was published in the regular daily issues of said newspaper
as stated below.
City of Fayetteville
Ord 6426
Was inserted in the Regular Edition on:
April 11, 2021
Publication Charges: $135.28
&?% s�
Brittany 9mith
Subscribed and sworn to before me
This 12 day of a?A , 2021.
— a& ail%& Cathy Wiles
Notary Public Benton COUNTY
My Commission Expires: Z�?-o�Zc,G NOTARY PUBLIC — AR►(ANSAS
My Commission Expires 02.20-2024
Commission No, 12397118
**NOTE**
Please do not pay from Affidavit.
Invoice will be sent.
Ordinance: 6426
File Number: 2021-0252
AMEND §166.04(B)(2)(a)
DEDICATION OF RIGHT-OF-WAY
OF THE UNIFIED DEVELOPMENT
CODE:
AN ORDINANCE TO AMEND
§ 166.04(B)(2)(a) DEDICATION OF
RIGHT-OF-WAY OF THE UNIFIED
DEVELOPMENT CODE BY ADDING
THE POWER OF THE CITY
COUNCIL TO GRANT A LESSER
DEDICATION OF THE MASTER
STREET PLAN RIGHT-OF-WAY
REQUIREMENT FOR A LOT SPLIT
WHEREAS, §166.04(B)(2)(a) requires
that the Subdivision Committee or
Planning Commission must make a
recommendation to approve a lesser
dedication of Master Street Plan right-
of-way for a lot split before such lesser
dedication can be granted by the City
Council; and
WHEREAS, the City Council should
retain the right to grant such lesser
dedication of street right-of-way for a lot
split on its own initiative especially
when such lesser dedication may be
necessary to avoid an unconstitutional
exaction or taking of private property.
NOW, THEREFORE, BE IT
ORDAINED BY THE CITY COUNCIL
OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the
City of Fayetteville, Arkansas hereby
amends §166.04(B)(2)
(a) by enacting a final sentence as
follows:
-The City Council retains the right to
grant a lesser dedication of the fight -of -
way than is normally required by the
Master Street Plan without the
Subdivision Committee's or Planning
Commission's recommendation."
Section 2: That the City Council of the
City of Fayetteville, Arkansas hereby
grants the lesser dedication of Master
Street Plan right-of-way requested by
Zara Niederrnan to match his previous
Ordinance: 6426
File Number: 2021-0252
dedication of street right-of-way
required for this same lot split
development.
PASSED and APPROVED on 4/6/2021
Approved:
Lioneld Jordan, Mayor
Attest:
Kara Paxton, City Clerk Treasurer
75403064 Apr 11, 2021