Fayetteville City Council recap: June 7, 2022

Flyer file photo

On the agenda…

  • Changes to the city’s lease with TheatreSquared.
  • A water damage claim on Makeig Court.
  • Changes to some permit fees.
  • Several property vacation requests.
  • Rezoning 0.11 acres on Olive Avenue.
  • Annexing 41.53 acres in Ward 4.
  • Purchasing and displaying a rainbow pride flag and a Juneteenth celebration flag.

» Download the full agenda

Meeting Info

A meeting of the Fayetteville City Council began at 5:30 p.m. Tuesday, June 7, 2022 inside City Hall in Room 219. The meeting is also available on Zoom and is broadcast live on the city’s YouTube channel.

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


Roll Call

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

» View current attendance records


Proposed Agenda Additions

1. Rainbow Pride Flag and Juneteenth Flag (Details):

A resolution to purchase and display a rainbow pride flag and a Juneteenth celebration flag on the flagpole used for the city flag from June 14th through June 21st of 2022.
Pass 7-0

Background:
This proposal was brought forward by Council Member D’Andre Jones. It would appropriate up to $300 for the purchase of a rainbow pride flag and a Juneteenth celebration flag that would be flown at City Hall each year between June 14-21.

Examples of the two flags are below:

Discussion:
Jones read a list of individuals and organizations who are in support of the resolution.

Turk said it’s an appropriate move for the city, and thanked Jones for bringing the item to the council.

Jones said it’s important that the council show support for both Juneteenth to celebrate the end of slavery and for Pride Week to support equality and fairness for all LGBT residents.

“We have to be both intentional and we have to be bold,” said Jones.

The council amended the resolution to include the list of names that Jones read before the discussion.

Decision: The council voted 7-0 to approve the resolution. Bunch is running late and was not present during the vote.



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 May 17, 2022 City Council Meeting Minutes
Pass 7-0

2. Ecoverse Industries, Ltd. (Details): A resolution to approve the purchase of a screener from Ecoverse Industries, Ltd. in the amount of $398,937.64 plus any applicable taxes and shipping charges, pursuant to a Houston-Galveston Area Council cooperative purchasing contract, for use by the Recycling and Trash Collection Division.
Pass 7-0

3. Policy AOP-202 Wellness Program, Fire Department (Details): A resolution to approve policy AOP-202, Wellness Program, as part of the Fayetteville Fire Department administrative operating procedures.
Pass 7-0

4. 2022 Community Oriented Policing Services Hiring Program (Details): A resolution authorizing an application for a 2022 Community Oriented Policing Services Hiring Program matching grant in the amount of $625,000.00 to establish a violent crime response unit for a period of three (3) years, with matching funds in the amount of $341,555.00 and $292,054.00 in non-grant related project expenses to be paid by the city.
Pass 7-0

5. Fayetteville Area Community Foundation Giving Tree Grant (Details): A resolution to authorize acceptance of a grant from the Fayetteville Area Community Foundation in the amount of $1,224.00 to fund an afterschool program for junior high students at the Yvonne Richardson Community Center, and to approve a budget adjustment.
Pass 7-0

6. Watershed Conservation Resource Center Task Order No 9 (Details): A resolution to approve Task Order No. 9 with the Watershed Conservation Resource Center in the amount of $73,000.00 for continued native vegetation establishment efforts and minor adjustments within completed restoration project areas.
Pass 7-0

7. Apply for Federal-Aid Funds for Road and Bridge Improvements (Details): A resolution to express the willingness of the City of Fayetteville to apply for and utilize federal-aid funds for road improvement projects at North Hemlock Avenue and the Millsap Road/College Avenue intersection; and for a bridge improvement project for bridge #19976 on Armstrong Avenue over Town Branch.
Pass 7-0

8. Bid #22-33 DFI Technologies, Inc. (Details): A resolution to award Bid No. 22-33 and approve a one-year contract with DFI Technologies, Inc. for mailing services at an approximate cost of $368,115.60 with automatic renewals for up to four additional one-year terms.
Pass 7-0

9. N79TW, LLC Ground Lease Areement at 4240 S. School Ave.: (Details): A resolution to approve a thirty (30) year ground lease agreement with N79TW, LLC for airport property located immediately north of the Drake Field terminal building at 4240 S. School Ave. for the construction of a 75’ x 100’ hangar, with an option to extend the ground lease for an additional ten (10) year term.
Pass 7-0

10. N79TW, LLC Ground Lease East Side of Drake Field, Hangar One (Details): A resolution to approve a thirty (30) year ground lease agreement with N79TW, LLC for airport property located on the east side of Drake Field off of Taxiway G for the construction of a 130’ x 90’ hangar, known as Hangar One, with an option to extend the ground lease for an additional ten (10) year term.
Pass 7-0

11. N79TW, LLC Ground Lease East Side of Drake Field, Hangar Two (Details): A resolution to approve a thirty (30) year ground lease agreement with N79TW, LLC for airport property located on the east side of Drake Field off of Taxiway G for the construction of a 130’ x 90’ hangar, known as Hangar Two, with an option to extend the ground lease for an additional ten (10) year term.
Pass 7-0

12. FAA Grant for Aircraft Rescue & Fire Fighting Cart (Details): A resolution to authorize the acceptance of a Federal Aviation Administration grant in the amount of $33,333.00 to fund an aircraft rescue & fire fighting cart for Drake Field airport, and to approve a budget adjustment.
Pass 7-0


Unfinished Business

None


New Business

1. TheatreSquared, Inc. Amend 100 Hundred Year Lease (Details)

A resolution to amend the one hundred-year lease of the Spring and West Parking Lot to TheatreSquared, Inc. in order to shift the responsibility of TheatreSquared, Inc. to pay its utility bills, building insurance premiums, building and all its mechanical systems maintenance and repairs to the City of Fayetteville.
Tabled 8-0 indefinitely

Background:
TheatreSquared officials hope to convince the council to foot the bill for a portion of the nonprofit theater company’s annual operating expenses.

The proposal is for the city to pay for some of the performing arts center’s ongoing utility bills, insurance premiums and maintenance costs.

The proposal would change the city’s longterm land lease agreement with TheatreSquared, which was approved in June 2016. The 25-year lease can be renewed up to three times, and does not include any rental fees for use of the city-owned land where a 54-space public parking lot was once located.

Approving the rent-free lease was the first of two major commitments from the city in the run up to the construction of the facility. The council in 2017 voted 7-1 to give TheatreSquared $3.1 million to help build its new venue.

The lease change would shift some the costs of the arts center from the theatre company to the city, including maintenance and repair of the building’s structure, roof, envelope, finish and all of its mechanical, electrical, plumbing, drainage, lighting protection, fire suppression and elevator assembly. The city would also be responsible for building insurance and utility payments for electricity, water, gas, sewer and trash service.

» Read our May 31 story about this item here

Discussion:

TheatreSquared executive director Martin Miller said some of the company’s donors have said they would like to see the city support ongoing operations at the T2 facility in downtown Fayetteville.

Miller said it’s fairly common for local governments to provide funding for anchor arts institutions operating in city-owned facilities. He cited a case study commissioned by TheatreSquared that found similar organizations in peer cities receive between 5% and 15% of their total annual operating expenses from local municipalities.

Miller told the Flyer that tonight’s proposal amounts to about 2% of TheatreSquared’s annual budget, and reiterated a promise to use the freed up funds for additional educational programs and free or reduced-price tickets to Fayetteville citizens who couldn’t otherwise afford to attend. He also said T2 would commit to substantially increasing its minimum level of economic activity.

During public comment, Senator Greg Leding of Fayetteville said T2 is a key organization to appropriate funding toward because of its importance on the city’s creative economy. State Representative Denise Garner also spoke in support of the proposal, calling T2 “one of the community’s most distinctive cultural assets.”

Former Council Member Adella Gray said as TheatreSquared grows, so should the city’s support.

“Signing a lease with TheatreSquared was the beginning, not the end,” said Gray. “No relationship is fixed. We all need to change and adapt.”

Former Council Member Justin Tennant, who was the only dissenting vote on the council’s $3.1 million grant to T2, said he didn’t vote against the proposal because he’s against the arts. He said he was uncomfortable because there was no firm plan in place for how T2 would pay for itself moving forward. He urged the council to delay a vote until such a plan is presented for this proposal.

“It has nothing to do with the service they provide, which is tremendous,” Tennant said. “If we sign a blank check that the citizens of Fayetteville have to pay the bill, it’s similar to a time share agreement in that you have no idea what the costs are going to be in future years.”

Steve Clark, president of the Fayetteville Chamber of Commerce, said the idea has merit, but not everyone is in support of public dollars funding a nonprofit organization. He said the city attorney’s hesitation to support this idea is a red flag, and also urged the council to take pause before making a decision.

City Attorney Kit Williams, who last month issued a memo urging the council not to amend the lease, said he still has legal concerns about the proposal, specifically the shifting of major components of the original lease which could endanger the consideration for the lease. He said a small increase in programming by T2 is not enough new consideration to justify shifting 94 years worth of operating expenses to taxpayers with no knowledge of what future economies will bring.

Williams said he’s conflicted because he enjoys TheatreSquared, and he wants to see the organization succeed, but he believes the city could be sued if the council changes the lease and that could, in turn, jeopardize the original lease.

“Right now our lease is strong, but if we take out supports for our lease, it may be attacked,” said Williams.

Council Member D’Andre Jones said he wants to know for certain if the city is allowed to amend the lease as proposed, because he is in full support of the proposal.

Williams said only a judge can make that determination, which is not a situation the council should want to get into, especially considering that if the original lease is undermined, it’s possible the city’s $3.1 million gift to TheatreSquared could also be attacked.

“The thing that makes this so dangerous is that this is a 100-year lease with 94 years remaining,” said Williams. “We should not endanger that original lease and our investment by doing this, which is likely to at least result in litigation.”

Williams said in the past when he cautioned the council about potential legal issues, the council has listened and he hopes that will be the case tonight.

Williams said if the council wants to help TheatreSquared, there are other ways to support the organization besides amending the lease. City staff said they are working on ways in which the council can support the creative economy, and they plan to bring forward a proposal in the future.

Council Member Scroggin said he’s heard from a lot of constituents who are concerned about this proposal and how money is specifically spent, but none who are against funding the arts in general.

Scroggin said as a landlord, he has a lot of questions about how the city will handle disputes with T2 over repairs or replacements of infrastructure.

“We absolutely must have a cap on what we’re paying for,” Scroggin said. “I would feel a lot better if there was a price point in place.”

Scroggin said he’d be interested in hearing what city staff comes up with in regards to possible funding for T2 aside from a lease amendment.

Council Member Teresa Turk said she is a personal supporter of T2, but has concerns about the proposal. She said changing the lease could set a precedent for other organizations asking for help, such as the Walton Arts Center which also leases city property for its performing arts facility. She said she can’t support the lease amendment.

Council Member Mark Kinion said it’s a tough decision. It’s important to support T2, he said, but this might not be the way. He also said he shares Turk’s concerns about parity. He suggested tabling the resolution indefinitely to allow everyone to consider the concerns expressed tonight.

Council Member Sarah Bunch agreed with Kinion’s suggestion to table the proposal.

Council Member Sonia Harvey said tabling the resolution would give the Fayetteville Arts Council a chance to weigh in on the proposal.

Decision:
The council voted 8-0 to table the resolution indefinitely.


2. Patricia Knepp Water Damage Claim (Details)

A resolution pursuant to §39.10(c)(4) of the Fayetteville City Code to authorize the mayor to pay the amount of $40,000.00 to Patricia Knepp for water damage remediation at 3252 N. Makeig Court.
Tabled 8-0 until June 21.

Background:
The city last September experienced a 36-inch diameter water main break on North Makeig Court which caused substantial flooding and damage to the neighborhood and to Patricia Knepp’s home. Knepp’s insurance company denied her claim, so she immediately filed a damage claim with the city after the incident. The total reimbursement Knepp is requesting is $40,707.67, but city law has a maximum cap of $40,000 for damage claims.

Here’s a summary of the claim:

Discussion:
City staff said about 29 million gallons of water was lost during the break.

Scroggin said he visited the area shortly after the incident. He said it was devastating and he’s in full support of awarding the claim. Bunch asked if more money could be appropriated for the repair since the damage was so severe.

City Attorney Kit Williams said he could draft an amendment to the city’s ordinance that provides an increase to the maximum damage claim cap to account for inflation if the council is interested. He said he could draft it so that it would apply to past unpaid damages if the council holds off on a decision tonight.

Decision:
The council voted 8-0 to table the resolution for two weeks.


3. Sash Development, LLC (Details)

A resolution to approve a cost-share agreement with Sash Development, LLC for the installation of a fire hydrant and fittings for fire flow protection near East Spring Street and North Olive Avenue with a refund in an estimated amount of $9,900.00 to be paid by the City of Fayetteville, and to approve a project contingency in the amount of $1,980.00.
Pass 6-2

Background:
SASH Development LLC has requested that the city share in the cost of constructing a water main to facilitate their development of property at the southeast corner of East Spring Street and North Olive Avenue. City planners have approved the lot split for the development, and SASH Development has received estimates for engineering, construction, and tree removal.

Location:

Discussion:
There was no public comment.

The council amended the resolution to use the original amount recommended by city staff 6-2. Wiederkehr and Turk voted against.

Decision:
The amended resolution was approved 6-2. Wiederkehr and Turk voted against.


4. RZN-2022-019 (811 N. Olive Ave./Patton) (Details)

An ordinance to rezone that property described in rezoning petition RZN 22-019 located at 811 N. Olive Ave. in Ward 2 for approximately 0.11 acres from RSF-4, Residential Single Family, 4 units per acre to RSF-8, Residential Single Family, 8 units per acre.
Pass 8-0

Background:
The property is about 700 feet southwest of the intersection of Mission Boulevard and Prospect Street. It was originally platted as a part of the Gunter Addition, and includes a 2,500-square-foot single-family home. Staff said there are no apparent sensitive ecological or geographic features on the property, and it does not fall within any overlay districts.

Both city planners and the Planning Commission recommend approval.

Location:

Discussion:
City staff said the only entitlement change for this new zoning would be to the setback requirements which would allow for the construction of a shed.

There was no public comment.

Decision:
The council advanced the item to the third reading, and voted 8-0 to approve the ordinance.


5. ANX 2022-001, Annexation (Southeast of N. Hughmount Rd./Cullers) (Details)

An ordinance to annex that property described in annexation petition ANX 22-001 submitted by Windell Cullers for property located southeast of North Hughmount Road and northwest of Ward 4 containing approximately 41.53 acres.
Pass 8-0

Background:
The property is about a half of a mile north of the intersection of Mount Comfort Road and Hughmount Road. It includes five parcels, three of which are large lots that are currently developed with single-family homes and accessory agricultural structures. The other two smaller lots are undeveloped. The site is relatively flat, sloping gradually downward towards Clabber Creek riparian corridor to the south. The applicant has stated that the annexation would be for the benefit of themselves and three other property owners. No future development or rezoning is proposed with this request.

Both city planners and the Planning Commission recommend approval.

Location:

Discussion:
The applicant spoke in favor of the proposal.

Decision:
The council advanced the ordinance to the third reading, and voted 8-0 to approve it.


6. VAC-2022-013 (4180 N. College Ave./Chick-fil-A) (Details)

An ordinance to approve VAC 22-013 for property located at 4180 north college avenue in Ward 3 to vacate a portion of a water/sewer easement.
Pass 8-0

Background:
The property is the site of Chick-fil-A restaurant in north Fayetteville. The applicant proposes to vacate a portion of an existing access and utility easement.

City planners recommend approval. The Planning Commission does not hear simple property vacation requests.

Location:

Discussion:
There was no public comment.

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


7. VAC-2022-011 (1148 & 1156 N. Thoreau Ln./Hash) (Details)

An ordinance to approve VAC 22-011 for property located at 1148 and 1156 N. Thoreau Lane in Ward 3 to vacate a portion of a general utility easement.
Pass 8-0

Background:
The property is about one-tenth of a mile east of the intersection of Mission Boulevard and Emerson Lane. It is in the Mission Hills Subdivision and encompasses two undeveloped parcels. The applicant proposes to vacate a portion of an existing access and utility easement.

City planners recommend approval. The Planning Commission does not hear simple property vacation requests.

Location:

Discussion:
There was no public comment.

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


8. VAC-2022-012 (4391 N. Waterside Ct./Wheatley Dance Studio) (Details)

An ordinance to approve VAC 22-012 for property located at 4391 N. Waterside Court in Ward 3 to vacate a portion of a utility easement.
Pass 8-0

Background:
This property is part of the Timberlake office park northeast of the intersection of College Avenue and Zion Road, and southwest of Lake Fayetteville. It encompasses two separate parcels that the applicant intends to combine into one lot. The applicant is working on development entitlement to develop a dance studio at this location, according to a city staff memo. The applicant proposes to vacate an existing general utility easement to allow for the construction of a building that would straddle the existing easement that was originally platted with the office park.

City planners recommend approval. The Planning Commission does not hear simple property vacation requests.

Location:

Discussion:
There was no public comment.

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


9. VAC-2022-014 (5102 W. Wedington Drive/Roczen Duplexes) (Details)

An ordinance to approve vac 22-014 for property located at 5102 W. Wedington Drive in Ward 4 to vacate a portion of a water/sewer easement.
Pass 8-0

Background:
The property is in west Fayetteville about halfway between 54th Avenue and Broyles Avenue, and is associated with the Roczen Duplexes subdivision (formerly Wedington Place), which is in the process of obtaining a final plat. The applicant proposes to vacate and relocate a portion of an existing water/sewer easement.

City planners recommend approval. The Planning Commission does not hear simple property vacation requests.

Location:

Discussion:
There was no public comment.

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


10. Amend §174.02 Permit Application/Issuance (Details)

An ordinance to amend § 174.02 permit application/issuance of the Unified Development Code by deleting Subsection 8 from Subsection (a) Application.
Pass 8-0

Background:
City staff recently identified a sign permit issue which needs attention, according to a city staff memo. The issue is in regards to what is required to obtain a valid sign permit. Staff said the requirement should be repealed because it grants too much discretion to city officials in whether or not to approve a permit request.

The section in question states that “The applicant must show full compliance with all applicable code provisions, including necessary approvals by responsible bodies such as the Planning Commission.” City Attorney Kit Williams said design standards are many times at the discretion of both city planners and the Planning Commission. That type of governmental discretion is not allowed under state law when considering sign permits, Williams said, so that section must be repealed.

Discussion:
There was no public comment.

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


11. Amend §159.01 Fees/Schedule (Details)

An ordinance to amend §159.01 Fees/Schedule of the Unified Development Code to adopt increased variance request fees, eliminate an obsolete accessory dwelling unit fee, and create fees for services that are currently provided without any cost recovery.
Left on the second reading

Background:
The city charges certain fees to cover the cost of services provided, including a variety of permits, reviews, and inspections across departments. City staff said many services are codified with well-established procedures, meetings, and fees, but others arise organically, sometimes in response to an unanticipated need. In some instances, services that begin as a courtesy prove to be so useful that demand increases, which also increases the workload for city staff.

Staff have identified three prominent instances where the required workload has reached the point where fees should be applied, including:

  1. Zoning verification letters: The city sends letters to current and prospective property owners, real estate agencies, financial institutions, and title companies of zoning laws. This happens about 45 times per year and each instance takes between two and four hours to complete, staff said. The proposal is to charge $50 per letter to the respective applicant.
  2. Grading permits: The city creates a grading permit document to an entity for land disturbance and the installation of infrastructure. The proposal is to charge $75, $100 and $200 for each subsequent resubmittal request for a new permit after an initial permit is granted and changes are made to the development. The proposal also would charge $25 for each re-inspection after an initial inspection, with that fee doubling for each subsequent re-inspection up to a maximum of $200. Finally, the proposal calls for doubling the cost of a grading permit if a construction project was started without first obtaining a permit.
  3. Temporary closure permits: The city currently oversees review and permitting for all temporary closure permits on streets, sidewalks and trails. There are between 85-125 requests each year from contractors who need to close areas while working on projects. The proposal recommends a $50 application fee for those permits, plus additional daily fees for keeping areas closed. Residential Streets and busy areas like the Entertainment District would cost $25 per day to keep closed. Busier streets would be subject to an incremental use fee between $25-$150 per day to keep closed. Permit extension applications would cost $25 each.

Aside from the new proposed fees, there are two other fees this proposal would affect:

  1. ADU reviews: A current $100 fee associated with a zoning review of accessory dwellings is not needed, staff said, because the ADU ordinance no longer requires a zoning review.
  2. Variance requests: Staff are proposing to increase the fee required for zoning and development variance requests, depending on the circumstances, such as whether it’s in response to a violation.

» See the full proposal details here

Discussion:
Staff said they’ve reached out to a number of stakeholders and have only received positive feedback.

There was no public comment.

Council Member Holly Hertzberg said she supports the ordinance, but suggested holding the item until the next meeting to allow more time for the development community to consider the proposal. The council advanced the item to the second reading, and agreed to hold it there until the next meeting on June 14.


Adjourned

This meeting was adjourned at 9:53 p.m.

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