LIVE UPDATES: Fayetteville City Council recap: Oct. 5, 2021

Fayetteville Government Channel

On the agenda…

  • Authorizing a recycling company to legally expand.
  • Approving the 2021 millage levy.
  • Reducing residential speed limits to 20 mph.
  • Rezoning 3.58 acres on Crossover Road.
  • Rezoning 0.55 acres on Kelley Street.
  • Allowing TheatreSquared to use its apartments as short term rentals when not needed for performances.
  • Approving rock sculptures for a stream restoration project at Wilson Park.

» Download the full agenda

Meeting Info

A meeting of the Fayetteville City Council began at 5:30 p.m. Tuesday, Oct. 5, 2021. It is lived streamed on the city’s YouTube channel, and held at City Hall in Room 219, or virtually on Zoom.

Listed below are the items up for approval and links to PDF documents with detailed information on each item of business.


Roll Call

Present: D’Andre Jones, Mark Kinion, Matthew Petty, Mayor Lioneld Jordan, Sloan Scroggin, Sarah Bunch, Teresa Turk, Holly Hertzberg
Absent: Sonia Harvey

» View current attendance records


City Council Meeting Presentations, Reports and Discussion Items

1. Nominating Committee Report (Details) – Chair Sarah Bunch
Pass 7-0

The Mayor recommends the following candidates for appointment:

HISTORIC DISTRICT COMMISSION
Joann Goodley – One unexpired term ending 06/30/24
Tommie Flowers Davis – One unexpired term ending 06/30/24

The Nominating Committee recommends the following candidates for appointment:

ENERGY IMPROVEMENT DISTRICT NO. 1
Matthew Kelly – One unexpired term ending 12/31/21

FAYETTEVILLE ARTS COUNCIL
Dwain Cromwell – One unexpired Working Artist term ending 06/30/23

PLANNING COMMISSION
Mary Madden – One unexpired term ending 03/31/22

PUBLIC FACILITIES BOARD
Vacant – One term ending 12/31/26

TOWN AND GOWN ADVISORY COMMITTEE
Zane Colvin – One University of Arkansas Student Living off Campus Appointed by the Mayor term ending 09/30/23
Annie Dowling – One Community Citizen at Large term ending 09/30/23 – Representing Ward 2, 3 or 4

URBAN FORESTRY ADVISORY BOARD
Vacant – One unexpired Tree Service Community term ending 12/31/22


2. Monthly Financial Report – Paul Becker


Agenda Additions

1. City Council Meeting Rules Change (Details)

A resolution to amend Rule A. 10. Special Procedures During Pandemic Emergency of the rules of order and procedure of the Fayetteville City Council to authorize City Council members to attend, speak and vote during City Council Meetings by electronic means without being physically present.
Pass 7-0


2. Amend Mask Ordinance Sunset Clause (Details)

An ordinance to amend the sunset clause of Ordinance 6465 to extend the mask mandate.
Pass 6-1

Background:
This item was brought forward by Council Member Petty. He said eliminating the sunset clause removes the link to the governor’s expired emergency order and instead relies on guidance from the Board of Health to decide when the city’s mask mandate should be removed.

Discussion:
Council Member Scroggin said he doesn’t want to remove the sunset clause without adding a new termination date. Council Member Hertzberg agreed, and suggested adding a review date. Turk suggested reviewing the issue at the first of every month.

Mayor Jordan said the board reviews the situation weekly, so they could provide guidance more often than that.

Scroggin said he’d like to extend the mandate date to about six months to ensure it won’t expire before the appropriate time. He said the council can always remove the mandate before that if the board recommends it.

Petty said he likes the idea of checking in with the board, but he’s reluctant to keep this particular item on the agenda with a new date. He said it could help remove politics from the situation by relying strictly on science-based recommendations. Kinion agreed, and said adding yet another date could escalate emotions, especially if an arbitrary end date is introduced.

Turk said she might be on board if someone from the Board of Health could update the council regularly at agenda sessions so council members would know when the time is right to remove the mandate. Scroggin agreed.

Hertzberg said she wants to the hold the item on the first reading to allow more time for public comment.

City Attorney Kit Williams said the ordinance will expire if a decision isn’t made by Tuesday, Oct. 12.

Hertzberg suggested tabling the item and scheduling a special meeting for Friday, Oct. 8. Jordan said he’d be out of town this Friday to take a brief break from work, so Hertzberg moved to table the item and schedule a special meeting on Monday, Oct. 11. There was no second, so that motion failed.

Kinion said he’s now thinking maybe there should a special meeting as previously suggested by Hertzberg. He moved to table the item and call a meeting for Monday, Oct. 11 and Hertzberg seconded. Some council members said they would not be available for a special meeting that soon. Jordan said he could change his plans to be in town on Friday if that’s really what the council wants. Kinion changed his motion for a special meeting on Friday, Oct. 8.

Petty said at this point in the pandemic, he can’t imagine hearing a new argument that compels him to change his mind about the need for masks, other than receiving a call from the Board of Health that indicates it’s finally safe to stop masking. Scroggin agreed.

Kinion said he thinks he should always have an open mind, and would rather have input from residents before making decisions.

Jones said he understands Kinion’s feeling, but for the sake of public safety – considering there’s a chance of not having a quorum on Friday which would endanger the possibility of even having a vote – he’s comfortable making a decision tonight.

Turk said she is also concerned about not getting a few more days of public comment, but since there are logistical issues that might hinder a vote, she would rather err on the side of caution and make a decision tonight.

Kinion’s motion to table and call a special meeting failed with only Kinion and Hertzberg voting in favor.

Decision:
The council voted 6-1 to approve the ordinance. Hertzberg voted against. Kinion voted in favor and said he still believes there should be more public comment, but he wanted to make a decision since the opportunity is now available since the motion to table failed.


Consent

Consent items are approved in a single, all-inclusive vote unless an item is pulled by a council member at the beginning of the meeting.

1. Approval of the Sept. 14, 2021 Special City Council meeting and Sept. 21 City Council meeting minutes
Pass 7-0

2. RFQ #20-01 Olsson Inc. Amendment (Details): A resolution to approve Amendment No. 1 to the professional engineering services contract with Olsson, Inc. in the amount of $5,519.00 for additional materials testing related to the construction of the new Police Headquarters.
Pass 7-0

3. Flintco, LLC Change Order No. 5 (Details): A resolution to approve Change Order No. 5 to the construction manager at risk contract with Flintco, LLC for the Police Headquarters project in the amount of $3,320,439.00, and to approve a budget adjustment – 2019 Police Headquarters Bond Project.
Pass 7-0

4. Nabholz Construction Corporation Change Order No. 7 (Details): A resolution to approve Change Order No. 7 to the contract with Nabholz Construction Corporation in the amount of $109,156.32 for water and sewer relocations along Gregg Avenue and in the Fay Jones Woods, and to approve a budget adjustment – 2019 Cultural Arts Corridor Bond Project.
Pass 7-0

5. RFQ #21-01 Selection #8, McClelland Consulting Engineers, Inc. (Details): A resolution to approve a professional engineering services agreement with McClelland Consulting Engineers, Inc., pursuant to RFQ #21-01 Selection 8, in an amount not to exceed $85,160.00 for the design of a waterline upgrade along South School Avenue.
Pass 7-0

6. RFQ #21-01 Selection #7, Olsson, Inc. (Details): A resolution to approve a professional engineering services agreement with Olsson, Inc., pursuant to RFQ #21-01 Selection #7, in an amount not to exceed $31,420.00 for the design of water service line replacements in Skyler Place Subdivision.
Pass 7-0

7. Bid #21-63 Jack Tyler Engineering, Inc. (Details): A resolution to award Bid #21-63 and authorize the purchase of six (6) submersible mixers from Jack Tyler Engineering, Inc. in the total amount of $220,384.02, plus applicable taxes and freight charges, for use at the Noland Water Resource Recovery Facility.
Pass 7-0

8. Bid #21-69 Williams Tractor (Details): A resolution to award Bid # 21-69 and authorize the purchase of an auto-loading hay trailer from Williams Tractor in the amount of $66,980.00 plus applicable taxes.
Pass 7-0

9. Selective Traffic Enforcement Program Grant (Details): A resolution to authorize acceptance of a 2022 Selective Traffic Enforcement Program grant in the amount of $131,000.00, and to approve a budget adjustment.
Pass 7-0

10. Big Bear Shredding (Details): A resolution to authorize the destruction of certain records shown on the attached affidavits pursuant to relevant sections of the Arkansas Code related to maintenance and destruction of accounting and other city records.
Pass 7-0

11. Data Communications Products (Details): A resolution to authorize the purchase of data communications products and services through authorized resellers, pursuant to State of Arkansas and National Association of Procurement Officials cooperative purchasing agreements, on an as needed basis through May 31, 2024 and any future renewal periods.
Pass 7-0

12. TheatreSquared, Inc. Lease Agreement Amendment (Details): A resolution to approve an amendment to the lease agreement with TheatreSquared, Inc. to remove 91 square feet of property from the legal description, and to allow the residential facilities to be used as short term rentals when not needed for performances.
Pass 7-0

13. Stream Restoration Project at Wilson Park (Details): A resolution to approve a budget adjustment in the amount of $25,000.00 recognizing park land dedication fees from the southwest park quadrant to be used for the purchase of rock sculptures and surveying services associated with a stream restoration project at Wilson Park.
Pass 7-0

14. Crossland Heavy Contractors, Inc. Change Order No. 2 (Details): A resolution to approve Change Order No. 2 with Crossland Heavy Contractors, Inc. in the amount of $1,236,430.00 to repair slope failures and strengthen other slope areas at Kessler Mountain Regional Park, and to approve a budget adjustment.
Pass 7-0


Unfinished Business

1. Appeal ADM-2021-045 (1236 S. School Ave./Vaughn Recycling) (Details)

A resolution to grant the appeal of council members Sarah Bunch, Holly Hertzberg, and D’andre Jones and approve an amendment to Conditional Use Permit CUP 08-2908 to authorize Vaughn Recycling to legally expand its recycling activities to 1236 S. School Ave.
Pass 6-1

Background:
This item was tabled at the Sept. 7 and Sept. 21 meetings.

The property is on the site of a recycling facility, in which the paved parking area and backyard previously served as vehicle storage.

Earlier this year staff received a complaint that the recycling business was storing multiple trailers in front of the property and that the operation had expanded to 1236 S. School Ave. without a permit. A separate complaint was submitted to the Transportation Division due to dirt and mud being tracked onto South School Avenue. Multiple inspections confirmed the presence of the trailers and expanded footprint of the business. A violation letter was issued in April advising that the business is in violation of its conditional use permit.

The applicant requests to expand their permit to include the added property, stating that their business has grown in recent years due to rising metal prices and they have found it difficult to store their inventory and vehicles without overflowing onto the neighboring property.

Staff said the expansion would be inherently incompatible with the surrounding uses.

The Planning Commission voted 4-4 on the idea, so the request failed.

Location:

Sept. 7 Discussion:
Hertzberg said since the Planning Commission was tied, she wanted to hear the applicant’s side and possibly break the tie. She said the company has been overwhelmed with materials since the pandemic began, and she thinks it’s reasonable to ask for a change with that in mind.

Bunch and Jones said they also sponsored the appeal because they wanted to at least hear more from the applicants.

Scroggin said he hopes the council will table the resolution to allow time to take a closer look at the situation. He said he would like to visit the property before voting. Bunch agreed, and suggesting tabling for two weeks.

Petty said he thinks the council is being lied to and that there’s a history of violations with the applicant that have occurred before the pandemic began. He said the business needs to find a new location if it can’t operate at its current location. He made a motion to approve the appeal, but to revoke the overall permit at the end of the year to give the business time to find a new location. There was no second for the motion.

The council voted 7-1 to table the resolution for two weeks. Petty voted against. The discussion will continue on Sept. 21.

Sept. 21 Discussion:
The applicant asked that this item be held for two weeks.

Scroggin and Bunch said the area seems to be appropriate for the current use. Staff said they agree, but since the business had been operating outside of their allowable use for nearly a decade they couldn’t support the appeal.

The council voted 6-0 to table the ordinance until Oct. 5.

Oct. 5 Discussion:
Petty said the applicant claimed to not have expanded until the pandemic hit, but city staff have said the violations occurred years before, and there’s aerial photography to prove it. Petty said he thinks the applicant hasn’t been honest with the city about the situation, and he doesn’t think he can side with the applicant knowing that. “Maybe it’s a personal failing, but I can’t get over it,” said Petty.

Jones said speaking of the pandemic, he wants to know how COVID-19 has affected the business. The applicant’s representative said it’s been a struggle, especially when trying to find work. As for the previous issues, he said the business has taken steps to reconcile the violations since they were brought up. He said a mistake was made, but they’re trying to make things right.

Scroggin said he doesn’t like the idea of this type of business expanding at the current location, and said he doesn’t think the council would approve this use at this level today. He asked if the business would be alright if the council doesn’t approve the appeal. The representative said the business would not be able to operate at its current level without the exception, and it would have to move to a different location, possibly to another city.

Scroggin said he’s leaning toward voting against, or maybe giving the business six months to figure out what to do.

Bunch said she knows this is a local business and she has used the business herself for recycling, but she’s concerned about the violation history.

Kinion said there’s a vast difference in how much use the second parcel has had in the past year, according to the aerial photography. He said it appears as though there might’ve been a poor business decision made that got the company into its current dilemma. He said he likes the business and knows the Vaughn’s have been in Fayetteville for a long time, and while there’s an emotional side of him that wants to support the request, it seems like the owners have been irresponsible.

The applicant’s representative said he hopes the council will give the business an opportunity that it can be responsible moving forward.

City staff have suggested a list of 15 conditions of approval that the business would need to agree to meet before city planners could recommend an extension of the permit for a one-year period.

Kinion moved to amend to the resolution to add those conditions of approval and extend the permit for one year. That amendment passed 7-0.

Petty said he still can’t support it.

Mayor Jordan said he is offended by comments made that suggest the city hasn’t properly communicated with the applicant through the process, especially considering the applicant hasn’t complied with the agreement the city made in the first place. He said he’s watched closely how the scenario has played out and has heard several complaints about the business himself, but until now has not said much about it. He said if the council approves the resolution with the conditions of approval, he would be a little more comfortable with the situation, but the applicant will be on “a very short leash” moving forward.

Decision:
The council voted 6-1 to approve the amended resolution. Petty voted against.


2. 2021 Millage Levy (Details)

An ordinance levying a tax on the real and personal property within the City of Fayetteville, Arkansas, for the year 2021 fixing the rate thereof at 2.3 mills for General Fund operations, 0.4 mills for the Firemen’s Pension and Relief Fund, 0.4 mills for the Policemen’s Pension and Relief Fund, 2.5 mills for Fayetteville Public Library operations and 1.2 mills for the Fayetteville Public Library Expansion; and certifying the same to the County Clerk of Washington County, Arkansas.
Pass 7-0

Background:
This item was left on the first reading at the Sept. 21 meeting.

Each year the council must approve an ordinance to renew the levy of ad valorem taxes on real and personal property within the city. It’s the same amount that has been approved each year since 2016 when voters approved an increase for the library expansion project.

Sept. 21 Discussion:
Turk asked if the item could be held on the first reading to give the public more time to look it over. The council agreed. The discussion will continue on Oct. 5.

Oct. 5 Discussion:
There was no discussion.

Decision:
The council advanced the item to the third reading, and voted 7-0 to approve it.


3. Amend § 71.065 General Speed Restrictions (Details)

An ordinance to amend § 71.065 General Speed Restrictions of the Fayetteville City Code to establish a default speed limit of 20 miles per hour in residential and business districts.
Pass 7-0

Background:
This item was left on the first reading at the Sept. 21 meeting.

The city’s current ordinance sets the default speed limit at 20 miles per hour for business districts and 25 miles per hour for residential districts.

A 2019 pilot implementation of 20 mile per hour speed limits on sections of Prospect Street, Trenton Boulevard and Rebecca Street was made permanent based on support from the Active Transportation Advisory Committee.

Recommendations from the League of American Bicyclists, People for Bikes and the 2019 Fayetteville Mobility Plan all advise lowering speed limits to 20 miles per hour on minor residential streets.

The University of Arkansas plans to lower speed limits on and around the main campus in response to a resolution from the Associated Student Government following two fatal pedestrian crashes involving UA affiliates. University staff is awaiting an ordinance change from the city in order to lower the speed limits.

The ordinance change would immediately change the speed limit for streets without posted speed limits. Changing speed limit signs to 20 miles per hour limit on appropriate streets could be accomplished over time with this ordinance change.

In August, the council’s Transportation Committee voted unanimously to support a motion to bring this item to the full City Council for approval.

Sept. 21 Discussion:
There was no public comment.

Turk said she also wants to hold this item on the first reading, but Scroggin moved to advance the item to the second reading. That motion failed. The discussion will continue on Oct. 5

Oct. 5 Discussion:
Kinion said he’ll support a lower speed limit, but he’ll want to know what kind of matrix is used to determine which streets would have a 25mph sign removed and replaced with a 20mph sign. He said people will want to know which streets would be changed and possibly why.

Scroggin said he’s seen a big increase in people using bicycles, scooters and other alternative transportation methods around town in the past few years, so it’s important to start implementing lower speeds for vehicles in places where that’s occurring.

One person who spoke during public comment said studies have shown that 5 mph makes a big difference on the chances of survival for someone who’s struck by a vehicle and urged the council to approve the ordinance.

Decision:
The council advanced the ordinance to the third reading, and voted 7-0 to approve it.


New Business

1. 1776 North Fox Hunter Road Extension of the City’s Sewerage System (Details)

A resolution to approve an extension of the city’s sewerage system beyond the city limits to property located at 1776 N. Fox Hunter Road.
Tabled 7-0

Background:
Jesse Bishop has requested to connect to the city’s sewer main that currently runs across his property on Fox Hunter Road.

City staff recommend approval of the request, upon receiving payment of the necessary tapping fee and any other costs required to make the connection.

Discussion:
Mayor Jordan said he’d like the Water and Sewer Committee to make a recommendation about this item before a decision is made. The council voted 7-0 to table the resolution and send it to the committee.


2. Appeal RZN-2021-043: (2828 N. Crossover Road/Grace Church) (Details)

An ordinance to rezone that property described in rezoning petition RZN 21-043 located at 2828 N. Crossover Road for approximately 3.58 acres from R-A, Residential Agricultural to P-1, Institutional.
Pass 7-0

Background:
The property is located on the east side of North Crossover Road, about a half mile north of the intersection of Township Street. It is zoned R-A, Residential Agricultural and is the site of The Hill School. In 2000, the Planning Commission approved a large-scale development and conditional use request for the development of the 15,360-square-foot church and child care center. In June 2008 a subsequent conditional use permit was approved allowing the operation of a senior high charter school in the existing building with 150 students and 20 faculty members. In October 2009, the property and church were sold from the Lake Hills Baptist Church to Grace Church. Grace Church occupied the property until May 2021 when it was sold to the current tenants, The Hill School.

The request is to rezone the property to P-1, Institutional. The applicant stated the request would align the property’s zoning designation with its usage. The use of the property will continue to be for church and private school purposes, they said.

The riparian corridor of Flynn Creek is present roughly following the east property line. Approximately 28,000 square feet of the property is within a FEMA floodplain Zone A.

City staff are in favor of the request, but the Planning Commission voted 7-1 to recommend denial.

Commissioners opposed to the request found it unclear if the existing use of the property aligned with the approved conditional use permit, according to city documents. Apparent development activity occurring at the site and comments from the neighbors led to concerns about the compatibility of the use, they said. The applicant was not present at the meeting to offer clarification. Commissioner Sparkman, who opposed the denial, found the proposed zoning to be compatible with the adjoining land uses and consistent with the future land use plans for the area. Two members of the public spoke at the Planning Commission meeting; they identified issues with sound trespass, children’s unmitigated access to adjoining properties, and privacy, according to a staff memo.

Location:

Discussion:
Staff said there has been some public concern about programming that would occur in the undeveloped portion of the property east of the church if the rezoning is approved.

Scroggin asked if the property could be split zoned to allow the building to operate in one district while the remainder of the property stays R-A. City staff said that is possible.

Turk said after touring the area, she found that the undeveloped areas of the property are likely not buildable.

During public comment, one person spoke and said he was one of the people who’d made comments about concerns over uses in the undeveloped areas, but he is not against the current proposed rezoning and he didn’t want to give that impression.

Decision:
The council advanced the item to the third reading, and voted 7-0 to approve it.


3. RZN-2021-063 (820 W. Kelley St./Richland Creek Enterprises) (Details)

An ordinance to rezone that property described in rezoning petition RZN 21-063 located at 820 W. Kelley Street for approximately 0.55 acres from RSF-4, Residential Single Family, 4 units per acre to RI-U, Residential Intermediate-Urban.
Pass 7-0

Background:
The property is located about 200 feet north of the intersection of Sycamore Street and Leverett Avenue. It is currently developed with a single-family home. The applicant is requesting to rezone the property to RI-U, Residential Intermediate – Urban. The applicant stated that rezoning would allow for appropriate infill.

Staff said while the subject property is situated on the edge of a single-family residential subdivision, the surrounding area has a variety of lot sizes and land uses.

Both city staff and the Planning Commission recommend approval.

Location:

Discussion:
Turk said she wants to disclose that she owns a rental house about a block to the west from the subject property. She said she does think the ordinance would offer a transitional change from the established neighborhood to the areas east of the property.

Scroggin said the location makes sense for added density, and he thinks the rezoning is appropriate.

Decision:
The council advanced the item to the third reading, and voted 7-0 to approve it.


4. Bid Waiver for Fleet Vehicles (Details)

An ordinance to waive competitive bidding and authorize the purchase of new vehicles through various manufacturers’ authorized dealer networks, but to require informal quotes or bids for similar vehicles, and to authorize the mayor to execute any agreements necessary to participate in government fleet programs.
Pass 7-0

Background:
Staff said new vehicles are currently available at a discounted rate directly from the manufacturer’s authorized body of dealer networks utilizing various government fleet programs. Not all dealers are part of the network and the government fleet program pricing can only be guaranteed by ordering from an authorized dealer. Authorizing the purchases within approved budget would allow the city to place orders in short ordering windows, purchase existing inventory when available, and ensure staff has the equipment to maintain operations and continue to provide services to residents, staff said. Furthermore, competitive bidding is not feasible or practical because dealers do not have pricing prior to the ordering window, the window is often not open long enough for the city to complete its internal bidding process, and the pricing that would be submitted in a bid response is the same as through the government fleet programs, according to a staff memo.

Discussion:
There was no public comment.

Scroggin said he hopes the council can eventually undo this action and revert to the standard procedure, but for now during the pandemic, it’s a necessary action to take and he hopes the other council members agree.

Decision:
The council advanced the item to the third reading, and voted 7-0 to approve it.


Adjourned

This meeting was adjourned at 8:38 p.m.

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