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HomeMy WebLinkAbout2021-05-18 - Minutes -Council Member Sonia Gutierrez Ward 1 Position 1 Council Member D'Andre Jones Ward 1 Position 2 Council Member Mark Kinion Ward 2 Position I Council Member Matthew Petty Ward 2 Position 2 Mayor Lioneld Jordan City Attorney Kit Williams City Clerk Kara Paxton City of Fayetteville Arkansas City Council Meeting May 18, 2021 City Council Meeting Minutes May 18, 2021 Page 1 of 30 Council Member Sloan Scroggin Ward 3 Position I Council Member Sarah Bunch Ward 3 Position 2 Council Member Teresa Turk Ward 4 Position 1 Council Member Holly Hertzberg Ward 4 Position 2 A meeting of the Fayetteville City Council was held on May 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, and Teresa Turk joined the meeting via online using a video conferencing service called Zoom. Mayor Lioneld Jordan, Council Member. Sarah Bunch, Council Member Sloan Scroggin, Council Member Holly Hertzberg, City Attorney Kit Williams, City Clerk Treasurer Kara Paxton, Chief of Staff Susan Norton, Chief Financial Officer Paul Becker, Chief of Police Mike Reynolds, Fire Chief Brad Hardin, staff members from the IT Department, and members of the press were present in City Council Chambers while demonstrating recommended social distancing. Council Member Scroggin arrived after Roll Call. Pledge of Allegiance Mayor's Announcements, Proclamations and Recognitions: Mayor Jordan: We have Council Members, city staff, and the public participating in this meeting, virtually and in -person. Participation remains of the upmost importance to the City of Fayetteville. We have provided many ways to participate in the meeting, which includes joining in -person at City Hall, joining virtually through Zoom, viewing through Fayetteville's government channel online or the city's YouTube channel. If you are joining through Zoom, you must raise your virtual 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 2 of 30 hand to request to speak during the public comment period. You can do this by clicking the raised hand option in Zoom online or by pressing *9 on your phone. When it's 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. If you're attending the meeting in -person, you must sign up to speak by completing a public comment form. Forms can be found on the table outside of Chambers. I will take public comments from virtual attendees first, in order to give in -person attendees enough time to line up to speak. Public comments will be allowed for all members of the audience who have signed up prior to the beginning of the agenda item they may wish to address being open 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 Meeting Presentations, Reports, and Discussion Items: Recognition Awards Presentation for Fire Department personnel for bravery and meritorious service to the citizens of Fayetteville Brad Hardin, Fire Chief spoke about the stress firefighting has on the human body. He recognized the Engine 1 Company and spoke about their heroic measures in dragging a victim to safety during a fire. He recognized their efforts and willingness to risk their own safety and lives. He spoke about firefighting being a team effort and everyone having a role. Bryce Skordal, Jose Hatten and Travis Dover were awarded the Fayetteville Fire Department Medal of Bravery. Agenda Additions: None Consent: Approval of the May 4, 2021 City Council meeting; minutes. APPROVED Walton Family Foundation Grant: A resolution to authorize Mayor Jordan to accept a grant from the Walton Family Foundation in the amount of $385,000.00 to fund the construction of bicycle and pedestrian improvements along Prospect Street, Park Avenue, Trenton Boulevard, and Rebecca Street to create the Mission -Razorback Connector, and to approve a budget adjustment. Resolution 136-21 as recorded in the office of the City Clerk Arkansas Department of Transportation: A resolution to approve a payment of $199,940.00 to the Arkansas Department of Transportation for the construction of a side path along Wedington 1 13 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayeffeville-ar.gov City Council Meeting Minutes May 18, 2021 Page 3 of 30 Drive at the intersection of Interstate 49, to approve a project contingency in the amount of $40,000.00, and to approve a budget adjustment - 2019 Trail Improvements Bond Project. Resolution 137-21 as recorded in the office of the City Clerk U.S. Department of Transportation Grant - 2019 Trail Improvements Bond Project: A resolution to approve a payment of $46,000.00 to the University of Arkansas for the preparation of a benefit -cost analysis by Olsson Associates, Inc. for a Rebuilding American Infrastructure with Sustainability and Equity grant through the U.S. Department of Transportation for improvements to Maple Street, and to approve a budget adjustment - 2019 Trail Improvements Bond Project. Resolution 138-21 as recorded in the office of the City Clerk Washington County Radio System MOU: A resolution to approve a Memorandum of Understanding with Washington County and the City of Springdale to improve public safety radio communications by establishing a county -wide system. Resolution 139-21 as recorded in the office of the City Clerk HFI Fletcher, LLC: A resolution to approve a budget adjustment in the amount of $19,824.38 recognizing revenue from a cost share agreement with HFI Fletcher, LLC for a sewer main extension along a portion of North Fletcher Avenue. Resolution 140-21 as recorded in the office of the City Clerk Mount Olive Water Association: A resolution to approve a fifteen year Water Purchase Agreement with Mount Olive Water Association. Resolution 141-21 as recorded in the office of the City Clerk Badger Meter, Inc.: A resolution to approve a one year Master Service Agreement with Badger Meters, Inc. with up to 9 automatic annual renewals to operate the current and future advanced metering infrastructure water meters installed by the Utilities Department. Resolution 142-21 as recorded in the office of the City Clerk University of Arkansas Memorandum of Agreement: A resolution to approve an amendment to the Memorandum of Agreement with the University of Arkansas for the installation and maintenance of street signs on certain roadways on or near the university campus. Resolution 143-21 as recorded in the office of the City Clerk Boston Mountain Solid Waste District MOU: A resolution to approve a Memorandum of Understanding with Boston Mountain Solid Waste District in the amount of $15,000.00 for the collection of household hazardous waste in Fayetteville. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www Fayetteville-ar gov City Council Meeting Minutes May 18, 2021 Page 4 of 30 Resolution 144-21 as recorded in the office of the City Clerk Fire Station 9 Access Easement: A resolution to approve the conveyance of a Permanent Public Cross -Access Easement to Robert and Vickie Parker for the purpose of providing public cross - access at Fire Station No. 9. Resolution 145-21 as recorded in the office of the City Clerk Flintco, LLC Change Order No. 3 - 2019 Police Headquarters Bond Project: A resolution to approve Change Order No. 3 to the Construction Manager at Risk Contract with Flintco, LLC for the Police Headquarters project in the amount of $12,536,023.00, and to approve a budget adjustment - 2019 Police Headquarters Bond Project. Resolution 146-21 as recorded in the office of the City Clerk Council Member Bunch moved to accept the Consent Agenda as read. Council Member Jones seconded the motion. Upon roll call the motion passed unanimously. Unfinished Business: RPZD-2021-003: (2390 S. Dead Horse Mtn. Rd./Meadows at Stonebridge Sd): An ordinance to approve a Residential Planned Zoning District entitled R-PZD 21-003 for approximately 51.33 acres located at 2390 South Dead Horse Mountain Road to allow the development of 168 residential lots and 1 mixed use lot. At the April 20, 2021 City Council meeting this item was left on the First Reading. At the May 4, 2021 City Council meeting this item was left on the Second Reading. 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 passed unanimously. City Attorney Kit Williams reed the ordinance. Jonathan Curth, Development Services Director stated the applicant had planned a meeting last week with some of the neighboring property owners. He stated he wasn't aware of the results. Bob Honea, Applicant's Representative stated the Bill of Insurance specifies a density of 2.5 lots per acre. He stated the problem is that the Bill of Assurance says it shall be filed for record, but it was not. He stated it's not in the deed records. He stated anyone acquiring an interest in this property, from examining the deed records would never know this Bill of Assurance existed. He stated the same applies to the generally publicly available records of the City of Fayetteville. He stated if you look up, in the place you normally would look up the zoning classification of this property as you're considering a purchase, you would find that it's zoned Residential Single Family Four. He stated his client looked at this property and thought he was buying a piece of property that was zoned RSF-4. He had no notice, knowledge or reasonable means of knowing about this 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes May 18, 2021 Page 5 of 30 Bill of Assurance and didn't learn about it until after this process was initiated. He stated Mr. Rhoads, who was involved in the original application that resulted in the creation of the Bill of Assurance, brought it to the attention of the Planning Commission and the parties that this Bill of Assurance existed and had been part of the zoning application that occurred five years ago. He stated this is a concept of fundamental fairness. He stated his client purchased this property and relies upon the information that was available upon a reasonable inspection of the public records. He stated now he's being punished that this Bill of Assurance that the City of Fayetteville and Mr. Rhoads client agreed five years ago would be recorded, but it was not recorded. He stated his client is in a position that he shouldn't ever have been in, through no fault of his own. He spoke about compromise. He stated his client has made a couple of proposals to Mr. Rhoads and they have been stonewalled in response. He stated there has not been any effort to make any kind of counteroffer to his client or seek a middle ground. Tom Hennelly, Crafton Tull stated we brought an RSF-4 development forward, got it approved, and there was no mention of the Bill of Assurance. He spoke briefly about the history of the project. He stated the density was staff's idea to be able to come up with some creative ways to have a variety of socio-economic viability in this project. He spoke about the amount of homes in the area. He stated he does not consider this project sprawl. He stated this is a development that complies with the adjacent zoning and feels like it is a good fit with that part of town. He spoke about the low lot inventory in Fayetteville and that people will go to other towns close to Fayetteville to purchase a home. He spoke about utilities and property tax base. He stated what is before Council today is a culmination of a collaborative effort between us, our client, city staff and Planning Commission. He stated this is a great development. Council Member Scroggin: I would like for the City Attorney to talk about the difference between, shall have filed the Bill of Assurance. Is that new information to us that it hasn't been filed? Was the lawyer misunderstanding? City Attorney Kit Williams: No, that's not new information and that was some sort of slip up, I guess. I don't understand how that happened. When an ordinance is passed like this, I think there's notification in the paper, as well as having the ordinance filed in the county courthouse. The City Clerk keeps a copy of the ordinance, along with the Bill of Assurance in their office and it's available to the public. However, it is unfortunate that it did not get filed in the Circuit Court as it was supposed too, so that it would hopefully have shown up in any title search. The issue is whether this zoning is something the City Council wants, not what the previous zoning was. You could consider what the previous zoning is, but your issue is if this is a good zoning for the City of Fayetteville and if you think this is in the best interest of the citizens to do this zoning or not. That's really the issue before you, rather than whatever the other history is. Jonathan Curth: While Mr. Williams was answering, I had the opportunity to pull the ordinance that rezoned this property. It does appear that it was filed correctly in January of 2016. It's not a short ordinance and is about 44 pages long, but the Bill of Assurance is filed on page 39 of the 44 page document. I can't speak to the level of due diligence that was done in the property sale, but this is available with the county and was filed with the ordinance. Mayor Jordan: It was in there? 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 6 of 30 Jonathan Curth: Correct. I'm looking at it right now. The City Council received 4 public comments regarding this ordinance. Roberts Rhoads, Attorney Representing the Neighbors and Golf Course stated in regard to the efforts to settle, we were at the meeting and met with the developer. He stated we got an offer to help them, by paying them a lump sum and subsidizing or we could buy them out for three times what they paid for it. He stated it wasn't much of a settlement offer. He stated what this is really about is what does the City Council want to do, as far as rezoning this. He stated it is currently RSF-4, with a Bill of Assurance and is zoned appropriately. He spoke briefly about the two letters he sent to City Council. He spoke about the city's integrity and people being aware of the Bill of Assurance. He spoke about the density. He spoke about the 2040 Future Land Use Map. He stated a Bill of Assurance limiting it to 2.5, is a whole lot closer to meeting the definition of rural residential, then the 3.5 or what this developer wants to do with it, if his rezoning is passed. He spoke about city staff s report. He spoke about the easement being off. He requested for Council to leave the zoning as is. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance failed 1-7. Council Member Petty voting yes. Council Members Hertzberg, Gutierrez, Jones, Kinion, Scroggin, Bunch and Turk voting no. This ordinance failed. RZN 2021-035: (S.E. of Morningside Dr. & Huntsville Rd./Park Meadows, Ph. V): An ordinance to rezone that property described in rezoning petition RZN 21-035 located southeast of Morningside Drive and Huntsville Road for approximately 0.66 acres from NC, Neighborhood Conservation to CS, Community Services. At the May 4, 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 Hertzberg seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director stated he had no new updates. Council Member Petty: Jonathan, at the Agenda Session, you followed up on a question I had at the prior meeting about a trail requirement, which was proposed, but not ultimately required as part of the Phase 5 Park Meadows. If the applicant were to modify their entitlement to take greater advantage of the Community Services zoning on this parcel and the adjacent parcel to the north, at that time, would Planning staff and the Planning Commission reconsider the offsite improvements that may be required, such as the trail? Jonathan Curth: Certainly, a possibility. If any of the trail were to be considered, it would likely be the portion along Huntsville Road. I don't know that based on what's being proposed, with the 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteviIle-ar.gov City Council Meeting Minutes May 18, 2021 Page 7 of 30 scope, if it would be appropriate to revisit the trail running north south through the site. There would also be a potential for a larger assessment for the traffic signal being considered for Morningside and Huntsville. Council Member Gutierrez moved to suspend the rules and go to the third and final reading. Council Member Jones 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 6431 as Recorded in the office of the City Clerk RZN 2021-036: (216 & 224 N. Fletcher Ave. and 227 N. Summit Ave./Admiral East, LLC.): An ordinance to rezone that property described in rezoning petition RZN 21-036 located at 216 and 224 North Fletcher Avenue and 227 North Summit Avenue for approximately 0.58 acres from RSF-4, Residential Single Family, 4 units per acre to RSF-18, Residential Single Family, 18 units per acre. At the May 4, 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 Jones seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director stated he did not have any updates on the request itself. He gave a brief summary of the City Council tour. He spoke about drainage. He stated currently there is not any parking allowed on Fletcher. He stated if parking were to be proposed on the street, it would have to be widened somewhat. He stated there was a similar concern on Summit Avenue, which is narrower than Fletcher and has no sidewalks. He spoke about proposed house placements and driveway locations. Michael Mahler stated he was representing the applicant, Max Mahler, and was available for questions. The City Council received 4 public comments regarding this ordinance. Council Member Gutierrez thanked Mr. Curth for setting up the tour and for the neighbors who came by. She spoke about the water situation being one of the worst she has ever seen, and the water is going to have to be dealt with and updated. She spoke about it being a unique property because it has two frontages. She stated the entire second level that was on Fletcher, there's a driveway and it was completely wet. She stated the two properties didn't look very livable. She spoke about trees being added where that viral swell is, between the two streets. She stated it's very steep and the water will go down a level. She stated it's going to be an improvement to deal with the water situation. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayettevilie-ar.gov City Council Meeting Minutes May 18, 2021 Page 8 of 30 Council Member Petty: The current zoning is four units per acre, but the use of the property has been non -conforming with six units on it, arranged in three duplexes. Is that correct? Jonathan Curth: That is correct. The duplex facing Summit was demolished earlier this year. Council Member Petty: Do they have the rights to rebuild that duplex and maintain the six unit count on the property? Jonathan Curth: They do not maintain the right to redevelop the property with a duplex under RSF-4 if a building is voluntarily removed. If it's non -conforming, you lose that inherent non- conforming status that's protected. I don't think you could create two lots facing Summit with a single family on each one, but the potential could be there. I think the lot is too small to do that. Council Member Petty: If that duplex had been condemned and the demolition of the duplex had been forced by the city, would they be allowed to rebuild it? Jonathan Curth: Our non -conforming chapter does not account for that. It's explicit about natural acts of God. I don't think Planning staff would be able to interpret it to allow it to be rebuilt without a Conditional Use Permit. Council Member Petty: I have observed the property over the years and most everything that's been relayed to us is fair, in terms of the historical assessment of the property. To what extent can or should we consider the past management history of an applicant? City Attorney Kit Williams: I'm not sure what history you are talking about, unless you're talking about not being able to maintain the house. I don't know if that should be much of a factor at all. You are looking at the basic question is if the zoning being requested, is that going to be reasonably compatible with what's there. Is it something that meets the long range plans of the city and all the other zoning requirements? The history of the owner is probably not something I have seen in the law that the courts have said is something the City Council can consider. Council Member Petty: I appreciate that clarification. If they are to redevelop the property under the current entitlement, would they be required at that time to improve the stormwater facilities on the property and to install pedestrian facilities? Jonathan Curth: Likely not. There are some unique considerations, because this is in the Hillside Hilltop Overlay District. There are some pipe grading entry preservation requirements that you would not normally find with a single family home being built on an administratively approved lot. I don't know that the city could require sidewalk improvements. Generally, those come with an increase in intensity of taking a lot that has a home on it. If that home gets torn down and there's not a sidewalk and the next property owner builds another home, typically, we don't have that rough proportionality to assert they have an increased impact over what was there before. To build eight homes would very likely have a standard for having to address drainage that would require a platting of the property to create eight lots with eight houses on it. That triggers those heightened considerations for stormwater quality. Potential street improvements are much more thoroughly vetted, or we have more legal capacity for higher standards of street improvements. 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 9 of 30 Council Member Petty: In the past, the city had installed a culvert to collect stormwater and the culvert emptied into this property. I didn't recall reading about a drainage easement or a stormwater easement that's held by the city in this property. Did I overlook that or is this a case where we've put a problem onto this parcel, without really a plan for it? Jonathan Curth: That's what I've heard from the applicant and because it's in the right of way, it does appear to have been a city project, potentially in the 1970's. I was not able to verify that the city did that work or caused those negative impacts on the property owner. That is difficult to say whether the city did that, but it certainly seems like they have. Council Member Petty: Did I overlook a drainage easement? Jonathan Curth: I've not been able to identify one on record. I have looked back at what easements are filed in the area and I don't see anything along Summit. There's certainly not anything on the applicant's property that conveys that water from the right of way to Fletcher. Council Member Jones: Neighbors want sidewalks and street improvements. What kind of infrastructure improvements will be required at the time of the development? Jonathan Curth: This gets back to the challenge we often have when the vetting rezoning is without a specific site plan or a specific unit count or how those units are going to be arranged. It is always difficult to assess what may be required where. There is a requirement in our Unified Development Code that a project should only bear an amount of improvements that are relative to the size of the project. There are life safety priorities that take priority, such as whether the drainage issue has the potential to cause property damage or what we heard from some residents downhill where that water is running across the sidewalk on Fletcher and creating a significant slip hazard due to algae and other things growing there. It's likely if the developer were to develop the property like they've said, with eight units, some manner of sidewalk or at least curb and gutter on Summit would be necessary. It's possible that nothing would be required on Fletcher, but we would have to take a closer look at that when we got a site plan to consider. Council Member Petty moved to suspend the rules and go to the third and final reading. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Petty: I haven't heard anything said tonight that was unfair. I visited the property many times on both sides of the street and at different times of day, during different weather over the past few years. Both the criticisms and the expressions of hope and opportunity we've heard tonight are fair. Do we do plans before zoning or do we do zoning before plans? That's a struggle for most Council Members, especially when we're looking at rezonings that are similar to this, where it's obvious the density is not the fundamental issue. It's the design and how the project is designed and subsequently managed. Arkansas requires us to do zoning before plans. We incur potential liabilities if we try to discuss plans before the zoning is in place. The project is under new management. The drainage issue was co -created by the city and the property owner, at 113 West Mountain Fayetteville.. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 10 of 30 a time in our history when we didn't do much stormwater planning at all. When do we get to require the development to help pay for the infrastructure we need on these two streets, especially stormwater and sidewalks? What I heard tonight was that if the zoning remains in place, and the property is simply redeveloped under the existing entitlement, our current rules wouldn't allow us to require those infrastructure improvements of the developer. That helps to make the decision against the past and having three duplexes on the site and a total of six units and the future by having eight units. The increase feels modest, but I have more confidence in the developer based on what was communicated about the concept planning that is taking place so far. The notion of the bioswale and the double frontage appears to be taken seriously. I'm going to choose to support this rezoning. Council Member Gutierrez thanked the neighbors for being involved. She stated leaving the property as it is, is not going to be a good option going forward. She stated we have a lot to trust that these properties will be better and more maintained. She stated unfortunately that's not part of how we can make our decision. She stated we're looking at bringing some families to the neighborhood and more people to Fayetteville with smaller homes that could bring the price down. She spoke about it being an excellent neighborhood. She spoke about parking concerns on Fletcher and possible solutions. She stated the zoning is appropriate to bring neighbors to the beautiful neighborhood to enjoy the lifestyle. Council Member Turk: Could you discuss if the proposed zoning was RSF-8 versus RSF-18 and what would be potentially required? How many houses would be able to be built there? Jonathan Curth: I don't know that I've vetted the property in terms of RSF-8, but it looks like it would be about half the density. They can either put two or three houses facing one street and one facing the other street or two facing each street. The property is just over half an acre. It's possible they could have a fifth unit in there. It would be cozy. Under RSF-18, the eight units could be achieved. There's a slim possibility that you could fit a ninth unit in there. Where there were six units and three duplexes under RSF-8, they could potentially have four single family homes or under RSF-18, it could be eight single family homes. Council Member Turk: Under the RSF-8 scenario, they have to go through grading permits and all of those other kinds of requirements or the lot splitting. How would that work? Jonathan Curth: A lot of it depends on the timing of how the applicant develops the property. If they want to develop it with eight units and eight lots, it would almost certainly go through our platting process, which is the highest level of requirement. It's in the Hillside Hilltop Overlay District, which that includes full tree preservation, additional canopy, stormwater and water quality requirements. If the remaining two duplexes were removed, and four lots are created with four single family homes, it would not be subject to our platting requirements, but there would be the Hillside Hilltop standards. A grading plan would have to be submitted and there would be a heightened tree preservation standard. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayettevilie-ar.gov City Council Meeting Minutes May 18, 2021 Page i l of 30 Ordinance 6432 as Recorded in the office of the City Clerk New Business: 1155 Properties, LLC: An ordinance to waive formal competitive bidding and approve a cost share agreement with 1155 Properties, LLC for the upsizing of a water line along Drake Street with a refund in an amount not to exceed $47,752.10 to be paid by the City of Fayetteville, and to approve a project contingency in the amount of $4,775.21. City Attorney Kit Williams read the ordinance. Tim Nyander, Utilities Director gave a brief description of the ordinance. He stated 1155 Properties, LLC is required to move approximately 500 feet of an eight inch line at the northwest corner of Gregg Avenue and Drake Street. He stated the master plan identifies a 12 inch waterline grid every half mile, whenever possible for water service. He stated this location provides an opportunity to cost share for a portion of the 12 inch line instead of the eight inches. He stated it gives the city another line segment towards a complete 12 inch waterline grid. He stated staff recommends approval of a 100% of the upgrade cost. He stated the Water & Sewer Committee voted 4-0 to forward it to the Council with a recommendation for approval. Erin Adkins-Oury, High Street Real Estate Development. She stated she is representing the ownership and is available to answer any questions. Council Member Turk 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 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 unanimously. City Attorney Kit Williams read the ordinance. Council Member Petty stated he is going to support the cost share. He stated he is reminded of the Equipment Committee where Fleet has a point system to help decide when Fleet vehicles are replaced. He requested to know if we have considered or already have an internal process, similar to a point system to judge these cost share applications? Tim Nyander: No, we do not use a point system. We go by the ordinances that require several factors, whether it benefits further usage of the system by additional users. If it is a cost savings, such in this case, where the developer already has a contractor in place, it is cheaper to go ahead and upsize the line rather than to write a new contract and have somebody else come in. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 12 of 30 Council Member Petty suggested that while we may not have one, he wonders if there might be a standard, bulleted list we might include on future memos to make these recommendations clear. He spoke about efficiency when Council discusses cost shares. Tim Nyander: Certainly. We will add bullet points on what the advantages are to the cost share. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6433 as Recorded in the office of the City Clerk RC Park Meadows LLC Cost Share: An ordinance to waive formal competitive bidding and approve a cost share agreement with RC Park Meadows, LLC for the overlaying of the West Side of Morningside Drive with a refund in an amount not to exceed $75,155.88 to be paid by the City of Fayetteville. City Attorney Kit Williams read the ordinance. Chris Brown, Public Works Director gave a brief description of the ordinance. He stated this is a cost share for paving and is part of the Park Meadows Development. He stated development was required to widen and provide parking along Morningside Drive, curb and gutter and pave the east half of the road. He stated the cross section was found to be irregular and it was going to be difficult to get a smooth pavement there. He stated looking at the west side of the road, there were some patches and other deterioration on that section of roadway. He stated staff made the decision to request the developer to provide a cost to do the paving. He stated we typically look at what is required of the development based on their impact on our infrastructure. He stated if there is a situation where we feel like there are more infrastructure needs, adjacent to a project like this, the developer would not typically be required to complete. He stated we make a judgement call as to whether it is an appropriate time to make those improvements and cost share with the developer. Council Member Gutierrez stated it looks like the $75,000 is for one side of the street and the other side is what they will take care of, but it's not showing the cost of what they are contributing. She requested to know if it is another $75,000. Chris Brown stated it would be a little bit more than that because they did widen the road and they are adding some additional paving. He stated we didn't have that information because in this instance, what they are paying is not relevant to our discussion here. He stated they were required at their cost to do the widening and pave the east half of the road. He stated we requested the price for the west half, which is the city's portion. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Jones seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov n06,e-9111^aIIGAe; nnnW £Z£8-9Z9 (6Lb) lOLZL 8V alllnauaAe=j uielunow isaM £l L jo iaaat,d aRjul t, ui ;saaa;ui ;umidolan,ap t, ant,ti op I asnux q Suisnaaa tu,I `uoi;nt,a jo amupunqu ut,jo;no `aan,annoH •Suiuoz;Dj ao kpadoad stgl ui;saja;ui;awip ou iAuq I :4;ad .iagmaW iiaunoj w7unu?pro ayl peas srunr11tM Jim daut0mv l?J •pasnaaa Soad aagmaN iiaunoj -sa,C 2ui;on Mans, pun gaung lui88oaaS luoluix Isauop Izaaaapnf) '8aagz;aaH siagmaw iiaunoj •p-L passed uoi;om aq; Ilea iloi uodn •uoi;om aq; papuoaas gaung aagmaw iiaunoj Impeaa leull pun paiq; aq; o; o2 pun salm aq; puadsns o; panom zaaaapnq aagmaW ilaunoj •aaunu?pio ayl peas swVyllm l?x dawonv 4!,3 •pasnaaa mad aagmaN iiaunoj •sa,( Sui;on, 31an1, pun gaung lui2Bo iaS'uoiui}I'sauop'zaaaaip!)12aagzp3H saagmaN Iiaunoj •p-L passed uoi;om aq; Ilea Ilo i uodn •uoi;otu aq; papuoaas gaung iagmaly liaunoj luipea i puoaas aq; o; o2l pun salm aq; puadsns o; pan,om zaaaai;nq iagmaw Iiaunoj •suaaauoa Sunitt,d aq; in,oadwi pinom lol aril iluisodandaa put, 8uidol3nap;t,u; nnou31 o; siogg2iau au; ;uum I •ssaudaa;s put, sugnd ;nog, sutaauoa passa.idxa saoggSiau onnZ •a5t,sn pre,(313t,g aatu o; an,tanpuoo sou si ;ol aqZ •uado put, pasodxi ;ol atl; 3o 3l3t,q ati; sint,al put, aliins;unH put, UOUX-I o; 3lat,q;as asola t, seq ;I •;ut,at,n st ;ol atl; jo .tt,at atiZ :;ut,aiiddd InamaiS peauom '0-8 Jo a;on, t, Xq Lua;t aril p Auo3 o; paunauoa uoissttuutoD 8uiuut,ld aril put, Isanbaa aqj Jo It,notddu spuauiutoaaa JJUIS pa;t,;s aH 'sit,o$ OtbOZ uuid ,4!D u;inn Xjujuatuildwoa aq o; put, suuld aSm-Suol s,,i4i3;Dgj u;inn;ua;sisuoa `som put,l Ouipunotms u;inn algt;t,duzoa aq o;;sanbaa aril spug jjt,;s past,;s aH -aatreuipio otp 3o uoi;dumap 3auq t, ant,8 io;aaaiCl saatntaS ;uamdolan,aQ 'q;anj ueq;nuop •aaunu?p.io ayl pvaa stuv?Jl?M Iff dauaolly dl!j •ut,gan-a;t,ipauua;ul it,i;u3pis3-H `fl-RI o; wou aid s;tun 8 `,Klnut,3 aliluiS lt,i;uaptsaZl `8-dS-8 tuoij saaat, OZ'0 ,Cla;t,tutxotddt,.toj pt,o-I aiiins;unH Isug 999In pa;t,aoi 8£0-1Z NZ?I uot;t;ad Ruiuozaa ul pagiaasap f,,tadoad ;t,ui auozaa o; aaut,utpto ud :(suTjMVH/•PH alllns;unH 'd 9s9) 8£0-iZOZ-NZH yaalj O!j ayl fo aarffo ayl ut paptoaay sv 6fb9 aaunu?p O •,tlsnomiunun pistitcd a:)ui uipao atl; lira lloa uodjI •ssed aaunuipao aq; pegs pa3isu uepiop aoSvW •aaunu?pao oyl peas stun1111AI l?X f'aurolivdl?a •,(isnomlunun passed uoi;om aq; Ilea lion uodn -uoi;om aq; papuoaas sauop iagtuaw Iiaunoj •8ulpeaa leui3 pun p qq; aq; o; o8 pun salmi aq; puadsns o; pan,om zaaaai;n!) aagmaW Iiaunoj 0£ 30 £ t abed l zoz `8l (uw sainuiW iluijaaW 1i3uno:) ,(I!D City Council Meeting Minutes May 18, 2021 Page 14 of 30 land nearby to the east. We intend to use this rezoning as a precedent for a future rezoning application. I want to avoid all appearances of any undue influence. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 7-0. Council Members Hertzberg, Gutierrez, Jones, Kinion, Scroggin, Bunch and Turk voting yes. Council Member Petty recused. Ordinance 6435 as Recorded in the office of the City Clerk RZN-2021-039 (4300 Block of MLK Blvd./Hoskins): An ordinance to rezone that property described in rezoning petition RZN 21-039 located at the 4300 block of Martin Luther King Boulevard for approximately 1.38 acres from R-A, Residential Agricultural to CS, Community Services. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director gave a brief description of the ordinance. He stated this item meets compatibility in terms of land use with the surrounding properties to the northeast. He stated it could benefit from a transitional zoning going further to the south and is much more in line with the long-range plans for the corridor. He stated staff found the request to be compatible to surrounding land uses, but certainly more so with future land use plans. He stated the applicant originally approached the Planning Commission with a request for Urban Thoroughfare, but staff was not supportive of the request and felt it was too much for this property. He stated the Planning Commission agreed and felt Community Services was a more appropriate zoning district and forwarded the request accordingly and unanimously. He stated staff supports the request. He stated the main concerns came from property owners to the south and southeast on the other side of Ozark Trail that had concerns about the narrowness of the street and losing its rural character. Tracy Hoskins, Applicant stated this started out as UT zoning and the primary reason for requesting the zoning is because of drive thru restaurants, which is our intent for the property. He stated we still believe that is an appropriate zoning for the property, however city staff disagrees with that. He stated the concerns city staff had for the site is that it is too small, too compact and not appropriate for anything that would be of large scale that could be done in UT zoning. He stated the Planning Commission was very public that if this was approved by the City Council as Community Services, that they would be supportive of a Conditional Use Permit for the drive thru restaurant. He stated he is okay with that because that was the actual intent to begin with. He stated as far as the folks to the south of the infrastructure along Ozark Trail, that is addressed at the time of development. He stated he doesn't know if that is an issue for a rezoning, but we will address that at the time of the development. He stated the neighbors biggest desire is having a buffer between what we are doing and their home to the south. He stated the best use of these properties along MLK is commercial. Council Member Gutierrez stated she would like to go with the recommendation of the staff and Planning Commission. She stated recently we talked about that we were not going to rezone here 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 15 of 30 at City Council, but back at Planning Commission. She stated she wants to make sure when it is coming from Planning Commission with that recommendation, that we are not changing the zoning. Didn't we have this conversation? Jonathan Curth: I think it was in the context of the applicants getting denied or appealing requests and then trying to bring in an amended request to the Council without having staff or the Planning Commission vetting those. In this instance, the Planning Commission amended the request and the ordinance before you tonight reflects what the Planning Commission recommends. Staff agrees with that. Mayor Jordan: We changed that up. Whatever the Planning Commission recommends, that is what the staff is bringing. Once the Planning Commission decides on something, that is what you are going to hear at Council Council Member Gutierrez: Would it be appropriate to amend to Community Services because the applicant is amenable to that? City Attorney Kit Williams: We already did that. We understood that the City Council wanted to have a rezoning as recommended by the Planning Commission, even if the applicant was recommending something else. That is how it is drafted now. Council Member Gutierrez: Ok. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Jones 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 Jones seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williainv read the ordinance. Council Member Gutierrez thanked Mr. Hoskins for working with the neighbors on the south about a potential barrier. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6436 as Recorded in the office of the City Clerk VAC-2021-016 (1000 W. Bulldog Blvd./Delaware Ave. R-O-W): An ordinance to approve VAC 21-016 for property located at 1000 West Bulldog Boulevard to vacate a portion of public right- of-way. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 16 of 30 City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director gave a brief description of the ordinance. He stated we are always reluctant to recommend in favor of losing street right of way, whether it is improved or not, but in this instance we feel it does not have any connectivity potential at this point He stated it is boxed in on four sides by large intuitional users, who likely will not have any need or use for a public street for accessing these lands. He stated staff is recommending in favor of the request. He stated the Planning Commission agreed and it was forwarded by a vote of 9-0. He stated there were two conditions, which is that any damage or relocation of utilities in that right of way is done at the developer's expense and that it be replaced by at 20-foot right of way along its length. Zach Hixson, Applicant stated he was available for any questions. Council Member Scroggin moved to suspend the rules and go to the second reading. Council Member Jones 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. Council Member Gutierrez: If we approve this, do you get your two conditions, or do we need to amend that? Jonathan Curth: I believe the way Mr. Williams office drafted the ordinance; it includes the two, but as recommended by staff is how this ordinance is written. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6437 as Recorded in the office of the City Clerk VAC-2021-018 (1000 W. Bulldog Blvd./FHS Properties): An ordinance to approve VAC 21- 0018 for property located at 1000 West Bulldog Boulevard to vacate a portion of a general utility easement. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director gave a brief description of the ordinance. He stated this is immediately north of the last item discussed by Council. He stated this is a public easement and did not go to the Planning Commission under our new ordinance adopted in 2020. He stated all utilities have been signed off on the request. He stated this would be simple except 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 17 of 30 for an error that staff made, which Council was emailed before the meeting. He stated we submit for your consideration the corrected Exhibit A, which modifies what you have in your packet. He stated it accidently picked up on a piece of east -west right of way that is in the property. He requested to use the new Exhibit, which will cut out that piece of right of way. He stated we are recommending approval of the easement, with the one condition that any damage or relocation of utilities be done at the developer's expense. Council Member Hertzberg moved to amend the ordinance to the new Exhibit A as described by Mr. Curth. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. Zach Hixson, Applicant stated he wanted to clarify that the request comes in conjunction with a utility main extension permit, that's currently in the third review with the Engineering Department. He stated we are relocating a sewer main that runs through the property to make way for future improvements of the Fayetteville High School academic and athletic complex. He stated upon a successful vacation of this general utility easement on the heels of completing the utility main extension work, we will immediately be rededicating new general utility easement that will realign and match the alignment of the relocated sanitary sewer. 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 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 6438 as Recorded in the office of the City Clerk Amend §120.02 Landlord's Representative Registry: An ordinance to amend §120.02 Landlord's Representative Registry of the City Code to require registration of properties utilized as Short -Term Rentals. City Attorney Kit Williams read the ordinance. Jonathan Curth, Development Services Director gave a brief description of the ordinance. He stated the final sentence of the ordinance says, Short Term Rentals shall not be required to designate or register a representative at this time. He stated staff proposal is simple, which is to strike a few words and replace it with a statement that they are required to designate a representative. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 18 of 30 Council Member Hertzberg: Can someone give an example of when a Short Term Rental owner would need to be contacted by someone other than the city, Police or Fire? Jonathan Curth stated other than Fire, that is the most prominent example that people think about in Fayetteville, after the fire on the west side earlier this year when a Short Term Rental burned to the ground. He stated there was difficulty in reaching the owner or representative. He stated similar to other rental properties in town, there is some concern given the potential to have people that are living further from Fayetteville, they might feel a lower level of responsibility or awareness of what is happening on their property. He stated this would afford not only users of the property, but neighbors of the property, to be able to contact somebody to address issues or for staff to contact them to have some of the issues addressed. Council Member Hertzberg: My only concern is that on the Short Term Rental ordinance, we have a designated person. I didn't know if this was just a second option that we have to contact people or if this is to specifically make it available to the public. Jonathan Curth: It is mostly about making it available to the public. There is a licensing requirement for the Short Term Rental process when the ordinance is enacted. There are opportunities to cross reference those, but it's not always a perfect one for one comparison. Sometimes a property owner could be the one holding the license for the Short Term Rental, but they might not be in state while they hold that property. It is important to have the representative delegated. Mary McGetrick: We have a designated representative or agent that will be required to be noted on the business license. That information will be provided a phone number, email address and name. The landlord registry would make that information available to the public. Council Member Bunch stated if you live next to a property, you might need to contact a representative or the owner of the property in case a limb falls down on your fence and it's from the neighbor's yard, which it is their responsibility to remove it. She stated it's nice to know who the person is that you contact. She stated that has nothing to do with whether it is a Short Term Rental or not, but it could be simple neighborly things that you have to deal with and need someone to contact. 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 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. Council Member Hertzberg stated she was contacted by someone that was very upset about the Landlord Registry and the fact that she had to field calls from the public. She stated her concern 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar gov City Council Meeting Minutes May 18, 2021 Page 19 of 30 was why do I have to be contacted by people other than the city if the city is going to be the one to deal with these concerns. She stated because of that she will not be able to support this. Council Member Bunch stated she looked at this as things you would normally contact a neighbor over, not necessarily the city. She stated if trash cans blow out in the street and it is a Short Term Rental, she would contact the owner or the representative of the Short Term Rental. She stated she wouldn't contact the Police or Fire Department. She stated the more dramatic things you would contact the Fire Department, Police Department or Code Compliance. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed 6-2. Council Members Gutierrez, Jones, Petty, Scroggin, Bunch and Turk voting yes. Council Members Hertzberg and Kinion voting no. Ordinance 6439 as Recorded in the office of the City Clerk Amend §151.01 Definitions and Enact §164.24 Registered Child Care Family Homes: An ordinance to amend § 151.01 Definitions and enact §164.24 Registered Child Care Family Homes of the Fayetteville Unified Development Code to allow the operation of small in -home childcare facilities by right throughout the city under certain conditions. City Attorney Kit Williams: There is an amendment to add a Section 3. One provision was left out inadvertently and if it is amended, Section 3 would read, "That the City Council of the City of Fayetteville, Arkansas hereby amends the introductory sentence of §163.05 Child Care; Nursery School so that it reads: "All such establishments, other than Registered Child Care Family Homes authorized pursuant to §164.24 of the Unified Development Code, shall be located on lots which: " That is needed to make this all work together. This was sent to you by Assistant City Attorney Blake Pennington. I ask that there be an amendment to add Section 3. Council Member Turk moved to amend the ordinance to include Section 3 as read by City Attorney Kit Williams. Council Member Gutierrez seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Mary McGetrick, Long Range Planning & Special Projects Manager gave a brief description of the ordinance. She stated the focus of this amendment is to make it easier for small homebased childcare facilities to operate in a safe and responsible way and to align the city ordinance with the State of Arkansas standards. She stated current regulatory requirements have had a negative impact, putting permitting obstacles between individuals that may be considering opening an in - home facility and the resources they need to be successful. She proposed a small amendment to the ordinance. She stated in the state licensing requirements, a Registered Child Care Family Home and a Licensed Family Home are two different things. She stated a Registered Family Home is fewer than 5 children and a Licensed Home is 6 to 16 children. She stated staff recommends the definition of a Registered Child Care Family home which currently states "A child care facility licensed by the Arkansas Department of Human Services in which five or fewer children are cared 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 20 of 30 for in the caregiver's own residence. " be changed to "A Child Care Facility Registered by the Arkansas Department of Human Services in which S or fewer children are cared for in the caregivers own residence. " She stated this allows our language to be in line with state language. She stated additionally in 164.24 (D) Registration with the State of Arkansas currently states "A caregiver operating a Registered Child Care Family Home shall ensure a current copy of his or her license issued by the Arkansas Department of Human Services is on file with the City of Fayetteville. ", but should read to be in line with state language, "A Caregiver Operating a Registered Child Care Family Home shall ensure a current copy of his or her registration issued by the Arkansas Department of Human Services is on file with the City of Fayetteville. " Council Member Gutierrez moved to amend the ordinance language as read by Mary McGetrick. Council Member Jones seconded the motion. Upon roll call the motion passed unanimously. The City Council received one public comment regarding this ordinance. Council Member Gutierrez moved to suspend the rules and go to the second reading. Council Member Jones 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 Bunch seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Council Member Turk thanked folks for bringing this forward and getting the city in compliance with state code and encourage the small childcare providers to come in under compliance and register. Mayor Jordan: In a letter received from Mary, she said the national average is 7% of your income and here in the City of Fayetteville it is 26%. Is that correct? Mary McGetrick: Yes. As a parent, childcare is so prohibitively expensive. Post pandemic with a lot of people having trouble with the work force in general, it is really important we work through this. Mayor Jordan: When I saw those numbers, I was a little bit stunned at the cost. If you had three children, it could cost as much as 65% of your income. Is that correct? Mary McGetrick: Yes, and it depends on the child's age. A lot of the in -home facilities will have the younger children and if you are in a larger facility, the younger children could be $200 to $300 more a week, depending on their age. Mayor Jordan: He stated this is a really important issue. Thank you to everyone that has worked on this. 1 13 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 21 of 30 City Attorney Kit Williams: Commissioner Paxton was the motivating sponsor on this. Thank you. Mayor Jordan: Kris, thank you very much. I appreciate that. Council Member Bunch: We heard that it adds an additional source of income for people too and it is usually women that provide the childcare. It is helpful with providing income for people. There was a childcare facility that was operating illegally, and they did not know they were doing anything wrong. They had been in operation for several years, with no complaints, except one of the neighbors complained because at certain times of the day there were people parking on the street to pick up and drop off kids. When I was on Planning Commission and trying to get that into compliance, they had to put in a fence around the front part of the yard. They had to have parking, a sign, and etc. We were trying to figure out how we could get this to work for this person. It was difficult because we knew we might be driving her out of her business and putting all those kids out trying to find another childcare. This is really important and I'm glad this has been brought forward. Mayor Jordan thanked Kris Paxton, Mary McGetrick and everyone that has worked on this ordinance. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. Ordinance 6440 as Recorded in the office of the City Clerk Amend Chapter 167 Tree Preservation and Protection, Chapter 177 Landscape Regulations and Chapter 151 Definitions: An ordinance to amend Chapter 167 Tree Preservation and Protection, Chapter 177 Landscape Regulations, and Chapter 151 Definitions of the Unified Development Code to offer clarification, efficiencies, and additional options to both tree preservation and landscaping codes. City Attorney Kit Williams stated Assistant City Attorney and the Clerk's office looked at the enacting ordinance that was submitted to the Council and even though all the sections are correct, they thought it should be in a different order because it is more logical. He stated Blake Pennington sent his proposal out that he had worked on with Kim in the Clerk's office to try to make it a little bit easier to understand. He asked City Council to amend what was sent to them. He stated it is the same sections, just in a different order. Council Member Gutierrez moved to amend the ordinance to change the order of the sections. Council Member Scroggin seconded the motion. Upon roll call the motion passed unanimously. City Attorney Kit Williams read the ordinance. Melissa Evans, Urban Forester provided a presentation and gave a brief description of the ordinance. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 22 of 30 City Attorney Kit Williams: I was told by Blake Pennington that staff had proposed a slightly different Exhibit A and Exhibit C that didn't completely agree with the Planning Commission. Melissa Evans: There was a question from Planning Commission about wording. That was in the definitions, as far as tree felling and removal of trees. That has been redefined and there was a question about the two tree industries at Planning Commission. It was brought up that maybe the tree industry of the Tree Care Industry Association was not equivalent to ISA in their testing and certification. John Scott did research on that and found that it is very similar. City Attorney Kit Williams: Blake gave me one minor change on Exhibit A, talking about priority trees, where the staff had recommended low priority trees are invasive species or unhealthy. The Planning Commission thought it should read, low priority trees are dead, invasive species are unhealthy. They wanted to add dead in there as a low priority tree. The other change was that they expand the number of societies that could certify arborist. It was not only certified arborist, but also municipal arborist, master arborist and tree worker. I didn't know what the staff position was and if you wanted to pursue that or not. Melissa Evans stated she remembered the discussion at Planning Commission and the question of why anybody would have to mitigate for a tree that is dead. She stated she thought we were removing dead trees from the language. She stated if it is dead, why are they having to plant new trees for a dead tree. She stated she would need to go back and look at that. She stated with certifying associations, she hasn't looked at that language and would need to look at that some more and get back with Council. City Attorney Kit Williams: The discussion about dead trees was that the Planning Commission said someone could go and cut a tree down that was live, then it would be a dead tree. However, we have provisions within the tree preservation and protection ordinance that you can't cut down trees like that. If you go and start clearing trees, there are built in penalties for that. I think that is why the Planning Commission thought that a dead tree should be listed as a low priority tree. Melissa Evans: It makes sense. The way I have applied code in the past few years is to go ahead and keep the dead tree in there. It was a tree that was providing shade at one point and sometimes it is hard to pinpoint when it died. We do go back and look at aerial photography for the past five years to see if there has been tree removal that should not have occurred and there are penalties for that. I do a lot of site development reviews and this does not come up very often. One out of every 10 projects I might have a dead tree that is questionable, and usually mitigate it as a low priority. City Attorney Kit Williams: My office doesn't have a position. This is just staff, as opposed to Planning Commission. Susan Norton, Chief of Staff. Which language is before the Council tonight? City Attorney Kit Williams: It is almost identical. There are two very small changes that staff didn't agree and one is, are you going to put dead in there, as well as invasive species and unhealthy trees or are you going to not count a dead tree at all. 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes May 18, 2021 Page 23 of 30 Susan Norton: I'm asking, what is before City Council tonight? Are you proposing an amendment? City Attorney Kit Williams: What the Planning Commission recommended is what the Exhibits say. Council Member Bunch: I am looking at Exhibit A, which uses the word dead. I have Exhibit A 1, which removes the word dead. City Attorney Kit Williams: That is correct. Council Member Bunch: Are we supposed to look at these and weigh them out? City Attorney Kit Williams: Yes. If you don't amend to A1, then A is what you are going to have because that is what the Planning Commission recommended. My belief is staff recommended not to include dead. Mayor Jordan: I don't want to try, and wordsmith this whole document tonight. City Attorney Kit Williams: This is the only question between staffs recommendation and the Planning Commission. Jonathan Curth: The Exhibits in the packet, all those labeled by the alphabet, that is what the Planning Commission forwarded. There are two Exhibits that are alphanumeric, Al and C1 and those represent the alternative language proposals that staff has included. Al is removing dead trees and C 1 is addressing the assertion that staff has that the additional accreditation group is adequate. Council Member Gutierrez: If we want to do Al and C1, then we need to amend? City Attorney Kit Williams: Yes. You would have to amend. If you don't amend, it's going to be A and C as recommended by Planning Commission. Council Member Gutierrez moved to amend the ordinance to adopt Al and C1 language. Council Member Scroggin seconded the motion. Council Member Turk: These two changes may be substantial. I'm not going to support the amendment. I would like to think about it a lot more and how that might play out. Council Member Hertzberg: Where did Al and C1 come from and where did the other Exhibits come from? City Attorney Kit Williams: They would probably be in your additional information, not the text. It's part of the memo from staff. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 24 of 30 Council Member Scroggin: I'm sure there is very little chance we will vote on this tonight, but it seems like we need some more time. Mayor Jordan: I agree with that. Council Member Gutierrez withdrew her amendment to allow Council more time to review the ordinance. Susan Norton: What exactly does staff need to do to create a clean copy of something for the Council? City Attorney Kit Williams: They need to have some explanation as to why they disagree with the Planning Commission. Just on those two items and nothing else. Susan Norton: Melissa, next time when we discuss this, we will have further explanation of why Urban Forestry and Development Services had a different interpretation or agreement than the Planning Commission recommendation. Council Member Petty stated he carefully read through the memo and the proposed changes. He stated as far as the intention and the draft, the changes seem justified and straightforward. He stated we've been talking about revising this for close to 24 months or even longer. He stated staff has been iterating on these changes over that time. He stated he has a lot of respect for what has been produced and the decisions that may have been made about what to include or what not to include. He stated he didn't see that this proposal closes the lot split, single family and duplex loopholes, with respect to tree preservation or any required trees. He asked if he overlooked it. Melissa Evans: No, you did not overlook it. It does not do that; however, the other stormwater drainage changes that are coming through with code that Alan Pugh has been working on, addresses some of that. It's up some requirements for single family for tree preservation. That's one of the menu of options they can do to address stormwater and tree preservation. Council Member Petty: I'll have to inquire with Alan, so I can better understand that over the next two weeks. I suggest in infill situations that street trees should count and that we should give developers the option to plant street trees if they have limited space on the site, in addition to the mitigation alternative of the green roofs or living walls. I read in the memo we had elected not to do that because utilities might come in at a later date. Did I misread that or was that the determination? Melissa Evans: I don't know of that memo and I haven't read it myself. I can't answer on that entirely, but it does make sense. A lot of utilities run along the streets and roadways and there are easements there. Anything in a utility easement is subject to removal at any time. We do have street tree requirements in addition to tree preservation and mitigation requirements. It says in code that they cannot double as mitigation trees. They have to be separate. I'll have to check into the rest of that. 113 West Mountain Fayetteville AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 25 of 30 Council Member Petty stated this ordinance is worth passing, just on the basis it's going to make things more efficient and it is more straightforward. He stated this ordinance does not address some of our biggest problems with maintaining our tree canopy for the long haul. He stated with the ordinance we've had in place and with this new one, we will continue to see our overall tree canopy decline. He stated if we want to reverse the end of a decline in our tree canopy, we will have to do more than what we have on the books now and what is proposed today. He stated we have to close the lot split loophole for tree requirements, and we must require new tree plantings for the lot split loophole if we want to address our canopy concerns. He stated whether we do that as a part of this proposal, or as part of a subsequent proposal, he hopes to do it in haste. He suggested for infill properties that applicants should be able to plant additional street trees above that which is required, and those should count as mitigation. He stated applicants should be able to plant street trees on nearby streets, but in front of other properties, where they are appropriate and those should count as mitigation trees. He stated street trees provide a lot more benefits than green roofs and walls. He stated we can and have justified green roofs and walls as mitigation, but they don't do shading and don't improve walkability. He stated they perhaps improve some stormwater functions, but that's only a part of the ecosystem services that we get out of trees. He stated this is extremely important and appropriate, given all of our other goals for economic development and comprehensive planning, as well as canopy. He is optimistic that if we could be assertive on these two points, we might be able to maintain the current canopy that we have in the city on a long term basis. He stated if we want to improve our canopy coverage, we will probably have to engage in an aggressive tree planting campaign. Mayor Jordan: I agree. Council Member Petty stated the lot split loophole needs to be addressed sooner, rather than later. He stated it's not his intention to hold up the passage of this ordinance and will defer to staff's decision if we say let's pass this, instead of opening up the hood a little bit more and working on it now, but we either do it now or we come back soon to do it. Melissa Evans: We do allow mitigation trees to be street trees, as additional street trees beyond the required street trees. Sometimes they get pretty close to easements, so staff is trying to get as many street trees out there as we can. Council Member Petty: I think I read in the memo about how a street tree amendment had been rejected by staff. I'm going to double check that between now and the next meeting. Mayor Jordan: I'm not in a rush to pass anything. I want it done correctly. City Attorney Kit Williams: I think a lot of those issues are going to be coming to the Council very quickly with the stormwater, grading and drainage. It might be at the next meeting, so that's another giant change to our code that you all will look at. Susan Norton: To Council Member Petty's point about aggressive tree planting programs, staff has been working on some plans for that to bring during budget discussion. The City Council received two public comments regarding this ordinance. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www fayettev i I le -a r gov City Council Meeting Minutes May 18, 2021 Page 26 of 30 Council Member Turk requested to leave the ordinance on the first reading. Mayor Jordan and Council Member Gutierrez agreed to leave it on the First Reading. This ordinance was left on the First Reading. Amend §155.04 Council Member Appeal on Behalf of Resident: An ordinance to amend § 155.04 Council Member Appeal on Behalf of Resident to provide for an appeal of every Planning Commission determination or decision involving development or other provision within the Unified Development Code. City Attorney Kit Williams read the ordinance. Council Member Turk gave a brief description of the ordinance. She stated she brought this forward because she discovered that parkland dedication and money in lieu of decisions were not appealable from the Planning Commission to the City Council. She wonders if there were other items that were overlooked, but that they also were not appealable to the City Council. She stated every important decision by Planning Commission should be appealable by City Council Members, on behalf of a resident of our city. She spoke briefly about what is currently appealable. She stated that Council Member Petty requested that Developmental Services offer an opinion and therefore politicized their position in some ways and was an unfortunate consequence of his request. She stated most of the appeals seen at City Council in the last year have been by developers and not by citizens or Council Members on behalf of residents. She stated this proposal is being able to balance developers appeal ability and those of the citizens Council Member Petty: The idea that soliciting research from staff is inappropriate is a double standard. We've seen well researched ordinances before this Council that have received a negative vote, just on a hunch that enough research hasn't been done. Here we have a significant change to the development review process that's proposed without even inquiring with the staff that we hire and treat as experts in the process. It strikes me as a double standard saying that asking for a staff perspective is politicizing the issue, is just trying to avoid the issue itself being called political. What would happen if John LaTour was still on the Council and he had this ordinance in place, and he could use it. Council Member Bunch: Council Member Turk, you pointed out that this is a relatively small change and you're stating that a lot of the appeals have been made on behalf of developers and not citizens. Are you anticipating that this so called small change is suddenly going to open a floodgate of appeals by citizens? Citizens within reason have the right to appeal a lot of things as well. You want this to balance out, but if citizens aren't appealing certain things, I don't understand how this is suddenly going to create a lot of citizen appeals. Council Member Turk: I don't anticipate a floodgate of citizen appeals. Development staffs concern is that this would clog up the system, slow things down and developers need a predictable cycle. That kind of language was used. There haven't been very many citizen appeals, so this is simply balancing the process and the opportunity for citizens to allow a City Council Member to 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayettevilfe-ar.gov City Council Meeting Minutes May 18, 2021 Page 27 of 30 appeal a decision. The parkland dedication in lieu of fee was the primary one. I thought there may be a whole lot of others I wasn't aware of. It sounds like the concern that's being raised by Council Member Petty is that maybe there are other ones that I'm just not aware of. It's fairly comprehensive right now. Council Member Bunch stated she wasn't sure how long we have had a Planning Commission, but it's been a long time. She stated the role of Planning Commission is straightforward and they provide a vital role. She stated they're supposed to be unbiased in their decisions. She stated she and Council Member Turk are on the Nominating Committee together and have butted heads about people that go on the Planning Commission. She stated when you get on the Planning Commission you have a lot to learn. She stated addressed in the comments from staff, that they hit a lot of the marks that are extremely important about our Planning Commission. She spoke about the skills that a Planning Commissioner needs to be on that committee. She stated she doesn't always agree with the Planning Commissions decisions but agrees with their ability to make these decisions. She stated Council cannot make decisions on everything. She stated if we're not going to let them have any authority, then she doesn't understand their purpose. She stated things get tabled at Planning Commission and there is a great deal of discussion with a deep dive into elements of development, planning and tree ordinances. She stated there is the ability to modify anything that comes through Planning Commission. She spoke about the amendment process. She stated she has concerns about changing this. She stated asking for staff s recommendation and saying their recommendation politicizes their position, is a real unfortunate choice of words and disrespectful to staff. She stated we have to trust people to provide us with the best information possible and that's what staff did. Council Member Turk: I appreciate your perspective and agree with the role of the Planning Commission. They make some important decisions and good recommendations to us. My proposal is to provide the opportunity equally for developers or citizens. I would appreciate hearing some items you think could clog the system up. Some specifics that a City Council Member, on behalf of a citizen could throw the Planning Commission process for a loop or a problem, because I'm not seeing it. Council Member Scroggin: Most of the things that are appealable right now, take two Council Members to appeal. Is that correct? City Attorney Kit Williams: No. It only takes a single Council Member to appeal, unless it is a Conditional Use and then that takes three. Everything else is just a single Council Member appeal, just like a single Council Member may bring an agenda item to the to the rest of the Council. It doesn't require a second person. Council Member Scroggin: Ok. Thank you. Council Member Jones: I've had several citizens reach out to me. They believe that this is about slowing down construction projects and politicizing technical decisions the Planning Commission is charged to do. It's an insult to past and current members of the Planning Commission. We have a housing crisis. Delaying projects does nothing but add cost to the purchaser. This is an attempt to give people who have the unrealistic belief that if we fight development, it will stop. This will 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 28 of 30 add cost of the construction process and housing. Housing prices, since 2010 have increased by 43% in Fayetteville. This is a full blown crisis and we should be doing everything we can to aid in the development of appropriate housing, not hurt it. The city has operated for a long time without this measure. Council Member Turk: Council Member Jones, which specific part will change? Right now, all of those large scale developments, subdivision, and all variances can be appealable under the current ordinance we have in place. The City Council received 4 public comments regarding this ordinance. 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 7-0. Council Members Hertzberg, Gutierrez, Jones, Petty, Scroggin, Bunch, and Turk voting yes. Council Member Kinion was absent during the vote. 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 Jones seconded the motion. Upon roll call the motion passed 7-0. Council Members Hertzberg, Gutierrez, Jones, Petty, Scroggin, Bunch, and Turk voting yes. Council Member Kinion was absent during the vote. City Attorney Kit Williams read the ordinance. Council Member Petty stated he believes strongly the burden of proof is on the ordinance sponsor to show that the ordinance is necessary and not on other Council Members to prove their negative vote is the right thing. He stated there is a presumption the Planning Commission is unfair, because they sometimes make votes that go against the public comments that have been received. He stated the Planning Commission is generally what you get when you remove politics from the process. He stated how many times have each of us, when looking at a vote because it's our job and it's the right thing to do, considered what people feel is the right thing to do, even if it goes against the plan or the policy and oftentimes make that decision on the basis of the timing isn't right. He stated the Planning Commission is appointed, so they are not burdened by those considerations, which is an important part of our process, so we can be fair to future generations that don't have a voice. He spoke about the Planning Commission applying City Council policies. He stated it is their job to follow the policy on the book. He stated in his early years he didn't know that it was important for him to reach out to Council Members and establish relationships, when he was new. He stated he feels like he does a diligent job of reaching out to establish relationships or even friendships with other Council Members and feels that has been missing in some instances among the Council we have today. He stated he is having a hard time that his suggestion of doing research with our hired staff is politicizing the process. Council Member Turk stated her proposed ordinance has been misunderstood. She stated maybe she did not use the best choice of words. She continued to assert that this is a very minor change and not an attack on the Planning Commission. She stated this was merely if a citizen did not agree 113 West Mountain Fayetteville. AR 72701 (479) 575-8323 www fayetteville-ar gov City Council Meeting Minutes May 18, 2021 Page 29 of 30 with the decisions the Planning Commission had made and they would still have to ask a Council Member to sponsor their appeal. She stated this has been a real mischaracterization of her intent and what thisproposal would do, if passed. Council Member Bunch: Council Member Turk, I appreciate that clarification. I know this is something you.feel very strongly about. I still don't agree with it. Mayor Jordan asked shall the ordinance pass. Upon roll call the ordinance failed 1-6. Council Member Turk voting yes. Council Members Hertzberg, Gutierrez, Jones, Petty, Scroggin, and Bunch voting no. Council Member Kinion was absent during the vote. This ordinance failed. Announcements: Susan Norton, Chief of Staff: Last weekend our Walker Park Splash Pad opened. The Wilson Park swimming pool will open on May 29, 2021. The Gulley Park Concert Series commences on June 24, 2021. Council Member Petty: I have an Agenda Session request for the City Attorney. I recused tonight out of an abundance of caution. That has always been my practice anytime there may be an interpretation I might exert undue influence, even when a rezoning was occurring down the street. It's come to my attention there may have been a property transaction being negotiated, to be operated as a Short Term Rental during the discussions of the Short Term Rental. I don't really have evidence for that, but it would be appropriate for us to have an overview orientation presentation at the next Agenda Session on when recusing or abstention is appropriate or necessary for Council Members. Would you be willing to give us that presentation? City Attorney Kit Williams: I would be happy to do that. Anytime there is a regulation that you would be passing or looking at that affects you, but also everybody as a general rule, for example, when we had the no smoking ordinance. We had one of our Members who owned a bar. He was not precluded from voting on whether or not to ban smoking just because it would affect his bar or business. It was a general ordinance. If you didn't have that rule, you could never vote for the budget, because you get paid out of the budget. I will be happy to go into much more detail. I appreciate what you did tonight to remove any chance of anybody making any kind of misunderstanding about whether you had a conflict of interest. If you had asked me, I would have said you did not have a conflict of interest. Council Member Petty: A 10 minute or so presentation would be sufficient. Thank you. City Council Agenda Session Presentations: Agenda Session Presentation - Partners for Better Housing update. 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov City Council Meeting Minutes May 18, 2021 Page 30 of 30 �Jj11f11fill, •c^ Z �— , EVILLE : Kara Paxton, ity tfirk treesueer ; NGTON`� 113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov