Board of Directors

MINUTES BOARD OF DIRECTORS MEETING OCTOBER 3, 2005, AT 7:00 P.M. The regular meeting of the Board of Directors was held on Monday, October 3, 2005, at 7:00 p.m., Board Chambers, City Hall, with Mayor Mike Bush presiding. The invocation was given by Mr. Richard Sadowski, and Pledge of Allegiance to the Flag was led by Mayor Bush. Mayor Bush called the meeting to order at 7:00 p.m. 1 Roll Call Roll call was as follows: Present: Directors Peggy Maruthur, Elaine Jones, Steve Smith, Carroll Weatherford, Bill Edwards, Tom Daniel, and Mike Bush, total 7. 2 Approval of Agenda A motion was made by Director Daniel, duly seconded by Director Edwards, that the agenda be approved. Upon discussion, City Manager Kent Myers advised that the agenda needs to be amended by adding a budget transfer for structural engineer and deleting Item No. 24 (Request for Prepayment of Water Main Upsizing) [Oakbrook Heights Subdivision]. Mayor Bush then called for a vote on the motion to approve the agenda, as amended; and upon voice vote, the motion unanimously carried. 3 Approval of Minutes of September 19, 2005 Board Meeting A motion was made by Director Smith, duly seconded by Director Edwards, that the minutes of the September 19, 2005 Board Meeting be approved; and upon voice vote, the motion unanimously carried. 4 Recognition of Guests Mayor Bush recognized Mr. Richard Sadowski, program chairman of the Prayer Breakfast Committee, who announced that the Garland County Prayer Breakfast will be held on October 18, 2005, at 6:20 a.m., Hot Springs Civic and Convention Center, Halls C and D. Governor Huckabee will be the keynote speaker. Tickets are $15 per person; and to host a table, the cost is $150. For tickets or to reserve a table, individuals may call 767-2366. CONSENT AGENDA The Consent Agenda consisted of the following: 5 Public Safety Report (September 21, 2005). (Removed from Consent Agenda for separate consideration). 6 Proposed Resolution No. R-05-288 Approving Certain Bid Awards (a) Manhole Rings/Lids - Public Works [annual supply contract awarded to Deeter Foundry]; (b) Compost Grinding - Utilities [annual supply contract awarded to GWG Wood]; (c) Fire Hydrant Painting - Utilities [awarded to K&R Services in the amount of $27.45 per hydrant]; and (d) Filters (Vehicle/Equipment - Fleet) [annual supply contract awarded to Vehicle Maintenance Program, Inc. and Quality Petroleum, Inc.]. 7 Proposed Resolution No. R-05-289 Authorizing the Mayor to Execute a Lease Agreement Between the City of Hot Springs, Arkansas, and Airborne Flying Service for Hangar A-4 at the Airport. 8 Proposed Resolution No. R-05-290 Approving the Extension of Hot Springs Municipal Water and Wastewater Service to 112 Catalina Circle (Phase I). 9 Proposed Resolution No. R-05-291 Appointing Gene Larson to the Hot Springs/Garland County Beautification Commission. 10 Proposed Resolution No. R-05-292 Adopting Drug-Free Workplace Policy. Board of Directors Meeting 2 October 3, 2005 at 7:00 P.M. 11 Proposed Resolution No. R-05-293 Authorizing the Filing of a Grant Application with the National Oceanic and Atmospheric Administration for a Flood Warning System. 12 Proposed Resolution No. R-05-294 Authorizing the Filing of a Grant Application with the United States Fire Administration for a Fire Safety Education Program. 13 Proposed Resolution No. R-05-295 Accepting a Grant from the State of Arkansas (D.W.I. and Other Drug Countermeasures and Occupant Protection Program) [Seat Belt/Child Restraint]. 14 Proposed Resolution No. R-05-296 Authorizing the Mayor to Execute a Participating Agency Addendum with U. S. Bank for Purchasing Cards. 15 Proposed Resolution No. R-05-297 Accepting a Grant from the Federal Transit Administration, United States Department of Transportation, for Federal Transportation Operating Assistance as Authorized by 49 U.S.C. Chapter 53, Title 23, United States Code, and Other Federal Statutes Administered by the Federal Transit Administration. 16 Proposed Resolution No. R-05-298 Fixing a Time and Date for a Hearing on a Request to Vacate, Abandon and Close a Portion of an Unnamed Alley Located in South Hot Springs Addition. A motion was made by Director Daniel, duly seconded by Director Maruthur, that the Consent Agenda be approved. Upon discussion, City Manager Kent Myers advised that a citizen has signed to address the Board on an item in the Public Safety Report; therefore, the report needs to be removed from the Consent Agenda for separate consideration. Director Maruthur pointed out that the Board will vote on Item No. 11 which is a resolution filing for a grant application to the National Oceanic and Atmospheric Administration for a flood warning system to protect the downtown area from flash floods. Board of Directors Meeting 3 October 3, 2005 at 7:00 P.M.  Mayor Bush then called for a vote on the motion to approve the Consent Agenda, as amended; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. NEW BUSINESS 5 Public Safety Report A motion was made by Director Edwards, duly seconded by Director Maruthur, that the Public Safety Report be approved. Mayor Bush recognized Mr. Daniel Brown, 707 Ward, who stated that he represents Gospel Light Baptist Church; and they have requested a four-way stop sign at the corner of Fourth and Garland. However, after meeting with Lieutenant Cooley, they were advised it does not meet the traffic nor the accident count to warrant a four-way stop. He noted the church uses the lot across the corner on the opposite side of Garland Avenue as their playground. He has done different studies on the average corner, and there would be 15 to 20 people that would cross. On their corner, in a normal week, they have 3,706 crossings of predominantly children and are concerned with the safety of the children. Director Edwards pointed out that he travels that area every day, and the teachers do an excellent job in getting the students across the street safely. He stated when the children are not crossing, it needs to be left open for the citizens to have one street going north and south to get their destination. Deputy City Manager Lance Hudnell explained that the Board adopted the Manual on Uniform Traffic Control Devices (MUTCD) as the standard for placing traffic control devices at any particular location. He pointed out a four-way stop is a precursor to a stop light and is to be placed at an intersection which has equal traffic on both legs of the intersection of certain volumes, etc. Those warrants can be dismissed for whatever reason, topography, etc., if there is a high accident rate at a particular intersection; but they are not to be used for speed-control devices. He stated crossing guards are the solution at this location, not necessarily a four-way stop. He pointed out that staff’s recommendation must be in accordance with the MUTCD because that is the engineering standard. However, the Board of Directors has the authority to override that standard. Director Smith questioned how well the crosswalks are striped, and Deputy City Manager Lance Hudnell stated they probably need to be repainted. Director Smith asked how fast the cars are Board of Directors Meeting 4 October 3, 2005 at 7:00 P.M. traveling in this area, and Mr. Brown replied that typically when students are present, they have not had a problem; but when students are not there, the cars travel 35 to 40 mph. City Manager Kent Myers pointed out that the motion is to approve the Public Safety Report which includes a recommendation to remove two disabled spaces on Fourth between Ward and Garland; remove yellow curb marking on west side of Fourth between Ward and Garland; remove yellow curb marking on north side of Garland between Fourth and Fifth; deny four-way stop at Fourth and Garland; restripe crosswalks; and install appropriate signage. Mayor Bush then called for a vote on the motion to approve the Public Safety Report; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. 17 Request from Mr. Terry Masot Regarding Hot Stand at Visitor’s Center Mr. Terry Masot, 61 Collado Way, Hot Springs Village, stated he owned a hot dog cart in California and wants to set up a stand at the Visitor’s Center. He said he has complied with the Health Department requirements in the State of Arkansas and has all of his permits. Director Daniel pointed out if the Board allows this, it is setting a precedent for anyone who wants to petition the Board for any of the City’s space and/or private space. Deputy City Manager Lance Hudnell explained that the City previously issued a Request for Proposals (RFP) for someone to place a similar business in the north end of Hill Wheatley Plaza. One proposal was received, and the Board granted that; however, that individual is no longer in business. At that time, the City did not issue a new RFP because there had been some concern with regard to the merchants downtown. Director Daniel suggested that the City issue an RFP and open it up to the public. City Manager Kent Myers stated if the Board is interested in pursuing this at the Visitor’s Center, then staff would proceed with an RFP process; and Mr. Masot would have the ability to respond, as well as any other interested party. Mr. Masot explained that he had his cart special-built which cost him $15,000. He added it is a self-contained cart, and he does not need any electricity or water. It is 4-1/2 feet wide by 8 feet long, with the table down. When it is compacted, it is 4-1/2 feet by 6 feet. Board of Directors Meeting 5 October 3, 2005 at 7:00 P.M.  Director Daniel questioned how he gets rid of his water from steaming the hot dogs, and Mr. Masot replied that he has a commissary on Park Avenue which was the old Cobra Café. He stated that is where the Health Department has passed his inspection and also his hot dog cart. He added that he had to get a special three-basin sink built for the cart, which cost $600; but he is legal for the State. Director Maruthur pointed out that Mr. Greg King, who had the concession at Hill Wheatley Park, did very well with his stand and later went to the Transportation Depot. However, there were no problems with him cutting into other people’s business. There were no objections from the Board for the City to issue an RFP and bring back a recommendation in 30 days. 18 Request from Mr. Bob Driggers Regarding Removal of Two-Lane Traffic on Central from Ouachita to Malvern or Spring Street Mr. Bob Driggers spoke of the traffic congestion on Central Avenue due to the removal of the traffic lanes. He said he has talked to the Sheriff’s Department, Police Department, Fire Department, both ambulance services, and the Arkansas State Highway and Transportation Department. Also, Mr. Steve Arrison, executive director of the Advertising and Promotion Commission, had written a letter in objection. He said that out of the seven or eight entities that he contacted, 100 percent of them were opposed to making this two-lane traffic on Central Avenue. He pointed out that during the Hog Rally, the ambulances were using Gorge Road because of this “bottleneck.” He recommended that the Board consider Mr. Arrison’s suggestion to remove the parking and widen the street immediately. Mayor Bush pointed out there is still some construction in that area, such as the sidewalks, and cannot return to four lanes at the present time. Mr. Driggers said it probably could not on the west side but could on the other side. Director Maruthur mentioned she was parked in traffic around three minutes at Ouachita at 12:15; but when she came to Spring Street, there was no traffic at all. She said she believes the concept is a good but expressed concern because there is not an alternative for emergency services, which could result in someone losing their life. She noted there will be a grading and repaving of Central Avenue, and they are trying to lower the paving in order to have curbs. She questioned when it is scheduled to begin, and City Manager Kent Myers replied that it is scheduled the first week in November. Director Maruthur said if this experiment does not work out or if somebody loses a life as a result of this, the City is going to be removing the concrete resulting in another patched, paving Board of Directors Meeting 6 October 3, 2005 at 7:00 P.M. area on Central. She stated she has received some calls from people who are involved in this, and they said until this is finished, the Board should not even consider it. She stressed that this is a safety issue, and safety is always her first concern. She commented that from the paper distributed by Mr. Driggers, it appears that all of the emergency responders are in agreement with this being a dangerous change in the downtown area. Director Edwards said he has received several phone calls, and none of them have been in favor of this. Director Smith stated he does not believe there has been a true test of this experiment on Central Avenue based on the fact that Bridge Street has been closed since the construction has begun. He added there has been construction from the beginning which has closed one or two lanes on either side. He stressed there has not been a true test and need to get Bridge Street opened and try it for 60 or 90 days. Mr. Rico Harris, 124 Bafanridge, stated there has not been a true test due to the construction in the area. He added that he works in the 800 block of Central and has noticed that the traffic is slower, which is what they have tried to accomplish. He explained that one of the goals with this project is to calm the traffic; and he has seen the traffic moving steadily but slower, resulting in more pedestrian safety, which is another primary goal. Regarding the people who are opposed to it, he said that he has the approval of the Highway Department for this project, including the parking. He has also talked with the EMT’s on Ouachita, who told him they had not noticed a significant change in their ability to get through; and even if this street were not here, they could go down Exchange, Ouachita, Broadway or Spring. Director Maruthur stated if an ambulance were to begin at Ouachita, thinking they could get through that one area by the Bathhouse Show but could not, they could not take an alternative. Mr. Harris explained if there is a wreck in that block and an ambulance cannot get through because of another wreck, they can radio another ambulance and send them down Exchange. He suggested that the City allow the project to finish before making a judgment. Mr. Davis Tillman, 118 Central Avenue, chairman of the CBID No. 3, advised that according to the State’s top highway studies, they have stated this would not affect the emergency services. He pointed out if it were opened up to four lanes, there have been pedestrians hit crossing the four lanes. He stressed that one of the reasons for this was a safety issue. He commented that this has not been a true test, and the study said this would be workable and would slow traffic to a certain degree. Also, by slowing down the trucks, it will cause less damage to the shale rock. Board of Directors Meeting 7 October 3, 2005 at 7:00 P.M.  Mr. David French said that he has two buildings at 825 and 827 Central Avenue, and this project has been ongoing since 2002. He reported they talked with the EMT service on Ouachita, and they said the only problem they have had is going in and out of the cones on Central Avenue. He stated if an ambulance needs to get by, motorists can turn into the parking lot next to the Malco, go up Bridge Street, or Chapel Street. If a motorist is attempting to parallel park and an ambulance is trying to get through, he pointed out that motorists would get out of the way. Mayor Bush asked how long the project will last, and City Manager Kent Myers advised that the project will be completed around November 1, 2005, as far as the street improvements; and then the paving will take a couple of weeks. He added the actual trial period will get underway around November 15. He said the Board had previously approved a six-month trial period, but he believes 90 days will be a good time frame in determining how the traffic will flow. He suggested reducing the trial period to 90 days and bring it back to the Board by the middle of February. Mr. David French said he believes that will work and suggested a meeting with the Fire Chief, Police Chief, and the EMT’s to discuss the plan and alternative routes. City Manager Kent Myers pointed out that it slows down traffic, but the goal is to make sure the traffic is not congested through that area; and there is a steady flow of traffic. According to Mr. Ernie Peters, who did the traffic study over a year ago, the City should be able to achieve that continuous traffic flow. Director Maruthur said she does not have a problem with a trial period, and she was in favor of the CBID No. 3 Improvement District. She stated that her concern is with the concrete and making it a permanent barrier. She mentioned if it does not work, the City will have to pay to remove them and do the repaving. Mr. French replied there is contingency money for that. He added that former Public Works Director Ron Kohler had discussed this issue where the Gallery Central is located. At the bend, there were problems with semi-trucks making that turn without going into the sidewalk, and they hit the pole every time they came around that corner. He said if they are in that outer lane, they are going to go upon the sidewalk. He commented they looked at this as a safety issue. Director Maruthur mentioned that passive security had been discussed where there would be spheres or planters to protect the pedestrians but did not know what happened to that idea. She emphasized that she has a lot of safety concerns. Board of Directors Meeting 8 October 3, 2005 at 7:00 P.M.  Mr. Eric Drenua, 829 and 831 Central, said he believes the City needs to give this plan a chance to work and is very concerned about the pedestrians’ safety. He commented that it is a good idea to keep the parking. It was the consensus of the Board to give this project a trial period for 90 days and receive some input from the emergency responders. 19 Proposed Resolution No. R-05-299 A resolution entitled, “A RESOLUTION AWARDING A CONTRACT TO MARTIN MARIETTA OF HOT SPRINGS FOR RUNWAY 5/23 OVERLAY AND LIGHTING REHABILITATION AT THE AIRPORT,” was taken from the agenda and read by title only. A motion was made by Director Edwards, duly seconded by Director Weatherford, that the resolution be adopted as read; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. Whereupon the resolution was declared adopted. 20 Proposed Ordinance No. O-05-89 An ordinance entitled, “AN ORDINANCE TO REZONE TO PD, PLANNED DEVELOPMENT, TO INCLUDE A PARCEL OF REAL PROPERTY LOCATED AT 187 PORT- AU-PRINCE ROAD, ZONED R-L, LAKE AREA RESIDENTIAL,” was taken from the agenda for consideration. A motion was made by Director Smith, duly seconded by Director Jones, that the rules be suspended and the ordinance be read for the first time by title only; and upon voice vote, the motion unanimously carried. The ordinance was then read for the first time by title only; and upon the question “Shall the ordinance be passed as read?” and upon motion of Director Jones, duly seconded by Director Edwards, that the ordinance be passed as read. Upon discussion, Mr. Jerry Raetz, Planning and Development Director, explained this is a rezoning that has been before the Board several times. At the last meeting, some questions arose that were new to the subject; and the Board referred it back to the Planning Commission for its consideration. Another hearing was held, and the questions that were presented to the Board were presented to the Planning Commission. The Commission voted 5 to 1 to recommend the rezoning of this parcel from R-L to PD. Board of Directors Meeting 9 October 3, 2005 at 7:00 P.M.  Mr. Mike Stout, 103 Seculed Cove, said he is one of the developers; and the adjacent property owners are in support of this project, which is a $4.5 million project. Mayor Bush said he looked at this property and questioned if he can get four condos on that piece of property, and Mr. Stout replied that B&F Engineering said he could. He added he has to follow the guidelines of the City; and if he has to go back with something smaller, then he will. Director Weatherford questioned the kind of coverage he has on this property as far as buildings. City Manager Kent Myers advised that the ordinance requires that 30 percent of the property be left as green area, and he is proposing to meet that requirement. Director Daniel said from the time this began, there has been a miscalculation of numbers, such as the size of the property. When he first approached the Planning Commission, it was 1.65 acres. Mr. Stout said that 1.3 acres was the acreage given to him on a very sketchy drawing, and he took that proposal to the Planning Commission. Since it was not done by an engineer and they did not have a complete plan, the Planning Commission could not hear it. By the time he formally went to the Commission, he had the complete plat, knew exactly what the legal description was, and how much land was involved. He said they never turned in for more than eight condos (four duplexes). He pointed out that the plan has never changed from the beginning. Director Maruthur stated there is to be a ten-foot easement between the sewer lines and asked if he is going to be able to do that. Mr. Stout replied that is an issue the engineering firm will have to work out for him. Director Maruthur asked if they can physically do that, and Mr. Stout said he believed they could. He added if he has to make an adjustment, then he will; but he cannot go forward without the rezoning request. Director Maruthur questioned why he did not submit some site plans and get everything signed off by the Developmental Review Committee. Mr. Stout replied that the initial proposal they had from B&F Engineering was to try to get it through to see if they could do the PD. He spoke of the cost involved as far as the engineering if they cannot get the rezoning. Director Weatherford commented they are to have all of that in line before they come to the Board for approval for a PD. He said according to the Zoning Code, they must have everything in order, must have all easements taken care of, a complete set of plans, etc. Mr. Jerry Raetz, Planning and Development Director, advised that the PD zoning requires a complete site plan as part of the application process. He added that several of these issues had not Board of Directors Meeting 10 October 3, 2005 at 7:00 P.M. been raised the first time it was presented to the Board, and these questions were discussed before the Planning Commission. In the PD section of the Zoning Code, it shows the authority the administrative official has for approving any amendments of this Code. The amendments relate to traffic, density, increase in retail space, change in traffic pattern, etc. He added that no building permits can be issued until every section of the ordinance has been met on the building proposal when it comes before them for permitting. Director Maruthur pointed out that according to the Code, PD is a zone that allows for the developer to propose a project that does not quite fit the regulations in the area that is proposed. She commented this area cannot be expanded because it is a peninsula bordered by water. She stated once the Planned Development is approved, it appears to fit city regulations; and there will have to be some considerations for variances. She noted that is not according to the City’s ordinance. She said she did not understand why a site plan was not submitted; and once it is rezoned, if it is rezoned, Mr. Stout can get a variance. Ms. Kathy Mowery, 216 Browning Drive, said she represents her family and ten people who live in the immediate neighborhood. To her knowledge, the fact that the site was actually 1.06 acres was not presented until she presented it to the Board the first time she appeared before the Board. She said it was on file in Mr. Raetz’s office, but he did not present that to the Board and said it was an oversight. She stated the site plan that was on file shows that the dwellings are located on the water’s edge, and she has requested many times from Mr. Raetz’s office that she be given any changes. As of last Monday, there were no changes. She returned today, and there was a stormwater pollution prevention plan. In the back of the folder, there was a sleeve with a watershed site plan, which she submitted for the Board’s review. She stated that was produced in June. She also stated she has another site plan for Salter Construction from B&F Engineering, which was done in June 2005; and it shows the dwellings moved. She added they are moved off the original site plan. In looking at any of the site plans, she said they still do not include the proposed dead-end that was a requirement from the Planning Commission. She mentioned the Zoning Code states an ingress and egress must be addressed before presenting it to the Planning Commission. Therefore, she is not sure how they were able to vote on it with an incomplete site plan. The Zoning Code states that part of the PD purpose is to develop vacant parcels. She pointed out that the parcel was not vacant at the time of the request, and a fill-in residential parcel requires 12-foot side setbacks according to the Zoning Code. The Planning Development only has five-foot side setbacks; and it also has a requirement of permanent open space area of 30 percent. The only green area that Mr. Raetz has put on that is what she considers to be common area. She stated there is no permanent green area. It is her understanding that the Horizontal Property Regime (HPR) would have control over that; and if they chose to vote and make a request to the Board, it could be changed, which makes it nonpermanent. She understood they were to provide a copy of the HPR covenants as a requirement prior to voting, but there were none in the files today or any of the other previous times she Board of Directors Meeting 11 October 3, 2005 at 7:00 P.M. reviewed it. She added there is a requirement to provide a preservation plan to the Commission, but there is not one in the file. The only mention is that a minimum of eight, 30-foot canopy trees that will be 30 feet at maturity. There is no mention of preserving any of the old oak trees on the property or anything else currently on the property. In further researching the file, she stated there does not appear to be a required traffic impact study. In looking at the current zoning map, she said there are no residential parcels or any other parcels with the exception of Lake Hamilton Resort on Lake Hamilton that are zoned PD. She commented this appears to be spot zoning. She said she was in Mr. Raetz’s office to ask him about the differences in the site plans today and the watershed plan, and he said he did not know anything about it. However, she asked Ms. Wise when it came in, and she said that she believed it was brought to them in August. She mentioned that she has made repeated requests for this information and has been denied. Mr. Raetz advised that Ms. Mowery has never been denied any information from his office at any time, and she has made very broad requests. He stated she has been in his office several times and has physically been through the file, and his office has offered to copy as much information as she wanted. He said at the time she was making this request, she was not only requesting for information on this particular property but all of the other properties this developer had worked on in that neighborhood. He noted she wanted every file, and his office can accomplish that. He offered this to her because this is information that was available. He reported she had been through their files on numerous times, and his office has spent a large amount of time filling her request. He stressed that he nor anyone on his staff has never denied Ms. Mowery access to the files or said she was not entitled to that information. Ms. Mowery commented they have selected what to give her out of that file, and only when she requested to look at the file have these things surfaced. As far as Mr. Stout’s other developments, she requested the one on Halteria because Mr. Raetz emphasized that it was similar. However, it did not have to be rezoned at all. Mr. Paul Mowery, 170 Joel Road, said his objection is to rezoning the area since there are other vacant areas in the neighborhood. Therefore, other contractors will be wanting to develop it; and this will be setting a precedent. Mr. Ron Looper, 182 Port-Au-Prince Road, stated he and his wife own the property that is adjacent on the northwest side of the proposed property, and they believe it will enhance the neighborhood. Director Weatherford asked if this is the approved site plan, and Mr. Don Cochran, Director of Utilities, advised that the Utilities Engineering office has not received a set of engineering drawings for the water and wastewater. He added when this was presented to the Board, the issue Board of Directors Meeting 12 October 3, 2005 at 7:00 P.M. arose regarding the sewer line easement; and he called B&F Engineering because the City had not received a set of plans at that time. They sent a preliminary set of plans but were not detailed engineering drawings for water and wastewater lines. He said that he made comments to them specifically about the size of the easement between the two buildings and was told at that time the developer has not hired them to do that level of engineering. The developer mentioned earlier that he is not to the point of doing the detailed engineering drawings and is waiting on the rezoning before going to that step. As of this time, Mr. Cochran said he has not received those detailed drawings. He said when he receives them, he will return to the Board with a request for water and wastewater extension. Director Weatherford commented that the Zoning Code says that all must be in order for the Board to vote on it prior to voting on the change to a PD. City Attorney David White questioned how this is relevant to the rezoning. Mr. Raetz replied that PD zoning requires a detailed site plan; and in the site plan, there can be no deviation from it. He stated that since the inception of the revised code in 2003, this would be the initial PD application coming before the Board. He added there is a considerable amount of new requirements in the new code concerning the PD. It requires expenditures by the developer in advance of knowing whether or not they can even proceed with such a project. He advised this has been looked at by the development community, and this is the first person who has gone to the expense of hiring an engineering firm to develop the drawings that are being considered by the Board tonight. Director Daniel asked if the developer had to downsize the size of the units, and Mr. Raetz explained that the plan has not changed from the beginning. He added the greenspace is still the same, and the paved area is still the same as it was originally. He commented that the miscommunication came initially before the developer had the survey completed, and it was estimated there was a little over 1.35 acres on this site. Mr. Raetz stated when he wrote the first staff report, it was based on the 1.35 acres. When he did the subsequent staff report, that was an area where he did not make that change when he presented it to the Planning Commission. It was brought to the Board’s attention that it was actually 1.06 acres rather than 1.35 acres as his staff report indicated. This was brought back to the Planning Commission with the 1.06 acres. He stressed that the dimensions on the site plan have not changed from the original engineered drawings that were submitted to him. Director Maruthur commented that it appears the requirements have not been met, and this area cannot be expanded because it is surrounded by water. She stated that she would like to see specific site plans and have the Developmental Review Committee sign off on this for the water and wastewater, etc. She commented if they met the requirements of the City’s ordinance, they probably would not need a PD and would likely have to downsize what they are proposing. She said that she Board of Directors Meeting 13 October 3, 2005 at 7:00 P.M. is in favor of seeing something happen there, but she is not going to support it without all requirements being met. Director Weatherford read from the Zoning Code quoting “As a review process, the Planning Commission shall review the proposed PD after proper submittal of all documents and review by the appropriate city staff. In reviewing any proposal, the Planning Commission shall determine that the PD will provide public benefits that would not be achievable through normal zoning regulations, not create undue or unmitigated negative traffic impacts, be compatible with surrounding developments.” He said that it does not meet some of those requirements, and all of the proper plans did not come to the Planning Commission as they should have. Director Jones questioned if all they are considering when this goes to the Planning Commission is the zoning part. Mr. Raetz replied they are looking at the zoning part, plus the Zoning Code. He noted as is included in his staff report to the Planning Commission, he continually references the Code and how this particular PD, in staff’s opinion, does meet the criteria of a PD Zone. Director Jones asked how the Planning Commission overlooked this, and Mr. Raetz stated he did not believe they did. He added at the original meeting where they reviewed it, they looked at the exact same site plan that is before the Board tonight. The miscommunication that he had in his staff report referenced the 1.35 acres; however, the site plan has not changed. It was actually a 1.06 acre site plan they were looking at upon which they made their decision. Director Jones pointed out that the Planning Commission voted on this issue again with a due pass, and Mr. Raetz stated that is correct. He mentioned the first time the Commission voted on it, the vote was 6-0, a unanimous decision. After the questions were brought up from Ms. Mowery and it was sent back to the Planning Commission for their reconsideration, they discussed those questions, plus the additional information concerning whether it meets the standards. At that meeting, it was a 5-1 majority vote to recommend the rezoning. Director Weatherford asked how many other PD’s are in the City, and Mr. Raetz said there are numerous ones throughout the community; but he would estimate there are at least 40 PD’s. Director Weatherford questioned how many are on the lake, and Mr. Raetz replied that he believes there is one other on the lake. Director Weatherford asked how many other PD’s are this small, and Mr. Raetz advised that prior to the adoption of the 2003 Code, it required a ten-acre minimum. Therefore, there would possibly be the one that was annexed, which is also on the lake and is small or smaller. Director Jones pointed out there are too many unanswered questions on this issue. Board of Directors Meeting 14 October 3, 2005 at 7:00 P.M.  Mr. Stout said he does not mind removing the request until they have everything the way it should be. Mayor Bush advised that is the responsibility of the Planning Commission to get everything together and present it to the Board. Mayor Bush then called for a vote on the motion to approve; and upon roll call, the following voted “no”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously failed. Whereupon the ordinance was declared failed. 21 Proposed Ordinance No. O-05-90 An ordinance entitled, “AN ORDINANCE APPROVING A SHORT-TERM FINANCING AGREEMENT WITH BANK OF AMERICA FOR THE PURCHASE OF ROLL-OUT WASTE CONTAINERS AND RELATED SERVICES AND EQUIPMENT FOR THE SANITATION DEPARTMENT; AND FOR OTHER PURPOSES,” was taken from the agenda for consideration. A motion was made by Director Weatherford, duly seconded by Director Edwards, that the rules be suspended and the ordinance be read for the first time by title only; and upon voice vote, the motion unanimously carried. The ordinance was then read for the first time by title only; and upon the question “Shall the ordinance be passed as read?” and upon motion of Director Jones, duly seconded by Director Maruthur, that the ordinance be passed as read; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. Whereupon the ordinance was declared passed. 22 Proposed Ordinance No. O-05-91 An ordinance entitled, “AN ORDINANCE AUTHORIZING EMINENT DOMAIN PROCEEDINGS FOR THE ACQUISITION OF A UTILITY EASEMENT ACROSS CERTAIN REAL PROPERTY (COUNTRY CLUB VILLAGE); DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES,” was taken from the agenda for consideration. A motion was made by Director Daniel, duly seconded by Director Maruthur, that the rules be suspended and the ordinance be read for the first time by title only; and upon voice vote, the motion unanimously carried. The ordinance was then read for the first time by title only; and upon the question “Shall the ordinance be passed as read?” and upon motion of Director Jones, duly seconded by Director Daniel, that the ordinance be passed as read. Upon discussion, Director Weatherford expressed concern with condemning this property. He said they knew where they had to get this water from when they bought this property; but now Board of Directors Meeting 15 October 3, 2005 at 7:00 P.M. they are asking the City to go across someone else’s property and start condemning it to get a right- of-way. Mr. Don Cochran, Director of Utilities, explained that the City has tried everything it could to negotiate with the property owner as far as getting an easement. He stated the developer has tried to negotiate getting an easement from the property owner, and he has made phone calls, sent e- mails, and sent letters justifying the need for the water line easement. He commented it will improve fire protection for the neighborhood; it will loop the water distribution system in that area to provide more consistent service in case there was a water main break. He said he provided every justification he could to the property owner which is a corporation in Oregon, but the corporation would not change. He said he believes this is the City’s only option at this time. Director Weatherford asked who installed the line at Country Club Village, and Mr. Cochran said he assumed it was the developer of Country Club Village. He added the water line is a city water line and is maintained and owned by the City. Director Weatherford questioned how far the developer had to take it in, and Mr. Cochran advised that it goes off Malvern and loops in the County Club Village. City Manager Kent Myers pointed out that the corporation is in Salem, Oregon; and they do not know what the local issues and concerns are. He commented they do not understand this will be a direct benefit to their manager at Country Club Village, and the benefit will far exceed any cost that the County Club Village will incur. He pointed out the real issue is that it is difficult to get the attention of a large corporation in Salem, Oregon; and that is the reason for bringing this to the Board as the last alternative. Deputy City Attorney Brian Albright explained that the area being discussed is property the City once owned. The City vacated a street in the 1980's in order to allow Country Club Village to put in their development, and the City has a sewer line that is currently within this area that it is asking to condemn. He stated the City has no easement to go in and work on its sewer line that is in this vacated street way. The fact that the City is putting in this waterway within this area, it is necessary to condemn the property; but it will also help the City directly by giving access to its sewer line. Director Maruthur said the question was asked at the agenda meeting if this will be a public safety improvement, and that is her concern because looping means if they cannot get water from one way, they can get it another. Mr. Cochran replied that it will be a safety improvement and will feed from another direction. Board of Directors Meeting 16 October 3, 2005 at 7:00 P.M.  Mayor Bush then called for a vote on the motion to adopt; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Edwards, Daniel, and Bush, total 6. Voting “no”: Director Weatherford; motion carried. Whereupon the ordinance was declared passed. The emergency clause was then read, and a motion was made by Director Jones, duly seconded by Director Smith, that the emergency clause be passed; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Edwards, Daniel, and Bush, total 6. Voting “no”: Director Weatherford; motion carried. Whereupon the emergency clause was declared passed. 23 Proposed Ordinance No. O-05-92 An ordinance entitled, “AN ORDINANCE WAIVING THE REQUIREMENTS OF COMPETITIVE BIDDING FOR THE PURCHASE OF PVC PIPE AND PVC SDR 26 SEWER PIPE,” was taken from the agenda for consideration. A motion was made by Director Edwards, duly seconded by Director Maruthur, that the rules be suspended and the ordinance be read for the first time by title only; and upon voice vote, the motion unanimously carried. The ordinance was then read for the first time by title only; and upon the question “Shall the ordinance be passed as read?” and upon motion of Director Weatherford, duly seconded by Director Maruthur, that the ordinance be passed as read; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. Whereupon the ordinance was declared passed. 24 Request for Prepayment of Water Main Upsizing (Oakbrook Heights Subdivision) (Removed from Agenda) 25 Budget Transfer to Conduct a Structural Analysis of the Woodman Building (National Baptist Hotel) A motion was made by Director Daniel, duly seconded by Director Smith, that the budget transfer be approved to conduct a structural analysis of the Woodman Building (National Baptist Hotel). Upon discussion, Director Weatherford questioned the time frame, and City Manager Kent Myers stated it will be done by the end of the year. He added that the Board’s direction is that it Board of Directors Meeting 17 October 3, 2005 at 7:00 P.M. wants to be in a position to approve condemnation action by the first meeting in January; and Mr. Bart Jones, Housing Administrator, will start the notification procedure to the property owner. Mayor Bush then called for a vote on the motion to approve the budget transfer; and upon roll call, the following voted “aye”: Directors Maruthur, Jones, Smith, Weatherford, Edwards, Daniel, and Bush, total 7; motion unanimously carried. OTHER BUSINESS 26 Board of Directors Items Director Jones expressed appreciation to everyone for the generosity and kindness shown to all of the evacuees in Hot Springs. She also announced that the last day to register to vote is October 10. Director Maruthur reported that if citizens have lights out, they may call 1-800-ENTERGY and give the metal tag number beginning with SL, plus four digits. Also, there is a public safety program if citizens are having a problem when driving and cannot see around a corner; and they may call 321-6861. She reported that she encountered a problem today at Ouachita and Orange with bushes obstructing the view around the corner. 27 City Manager’s Report City Manager Kent Myers gave the following report: 1. Last Saturday, the Board of Directors and Planning Commission held a joint meeting and discussed a number of issues relating to code enforcement, sexually oriented businesses and other issues that face the Planning Commission and the Board relating to the growth and development of the community. 2. The Board held its budget meeting at 5 p.m. today, prior to the Board Meeting. This will start the 2006 budget process, and the Board will be going through the process over the next 60 days. By December, the Board will have a final budget for consideration. 3. He stated that normally he would include in his Friday report to the Board updates on legal actions that are pending involving the City, but this item requires showing a map of the problem area involved. He explained there is a problem at the Lakeside Water Treatment Plant off Cedar Glades Road; and over the last 40 years, there has been an encroachment problem on that site. Board of Directors Meeting 18 October 3, 2005 at 7:00 P.M. The City identified the problem about six months ago, and there are a number of families who are “squatting” on the City’s property, thereby posing some environmental and security risks for the City. Deputy City Attorney Brian Albright has been working with Mr. Don Cochran, Director of Utilities on this matter. The City surveyed the area so it could be sure the people were living on the City’s property, and that was confirmed. He reported that within the next several days, the City will file legal action against the individuals involved; but before that happened, he wanted to give the Board an update. Deputy City Attorney Brian Albright noted that the aerial map shown is the area of Lake Ricks and the surrounding property. To the north of Lake Ricks are approximately two, twenty-acre tracts. That land, along with much of the land that formed Lake Ricks and the watershed for Lake Ricks, was condemned by the City in 1947. In December 1947, a Decree was entered by the Circuit Court of Garland County giving the property to the City of Hot Springs and requiring the occupants of the subject property, along with the other acreage, to be deeded over to the City and vacated by March 15, 1948. He noted from the aerial photos, there are driveways, structures of various nature, such as mobile homes and houses. He stated that the watershed gravitates to the south toward Lake Ricks, and they had some samples taken from that creek area and the upper portion of the lake and found it to be contaminated. Therefore, they hired B&F Engineering to do a survey of the area and give an as-built survey to show where the structures are situated on the survey. Director Edwards asked if they have built houses in that area, and Mr. Albright advised that they are mainly mobile homes, but there is an existing stick-built house that, according to the Garland County Tax Assessor’s Office, was built in approximately 1950. Mr. Albright explained there are two tracts. Tract 2 is an area of land that the City condemned and received a deed from Floyd and Liddie Graves in December 1947. The Court Order required them to vacate the property by March 1948. In June 1948, Floyd and Liddie Graves gave a deed to Floyd Graves’ brother, Bert Graves. He said he would like to believe that Bert Graves had no notice that any of this condemnation was happening and, therefore, was an innocent purchaser for value without notice. However, he was also a defendant in the condemnation proceedings of 1947 and was aware that the City had condemned the property. The Court had given the City an Order to that effect, and his brother had already deeded it to the City. From June 1947 to-date, there have been numerous deeds being passed back and forth regarding Tract 2, which is a 20-acre parcel. He advised there are approximately 26 individuals who will have to be named as part of this lawsuit because they are either occupying land that the City owns, or they have recorded a Deed purporting to give them title or interest in the property and/or they are contiguous to the City’s property. He said he has prepared and is ready to file with the Court in the morning a Complaint and 26 Summons to be served on those individuals for the purpose of establishing the Quiet Title and Ejectment of this property in favor of the City, establishing the boundaries, and Board of Directors Meeting 19 October 3, 2005 at 7:00 P.M. ejecting any parties that are wrongfully on the City’s property. He stated that one would be if they have accrued any rights to the City’s property by living on the property for such a long period of time. He said some of these individuals have been paying real estate taxes during all or a portion of this period of time. He commented that the Tax Collector has not raised this as an issue because the City does not pay real estate taxes on land unless it is land that the City leases out. The Tax Collector never had a double collection of taxes, and the fact that the records recorded in 1947 with no activity on part of the City since then, it has never been noticed by anyone. When the City started getting the aerial photography capability in its system, this became a concern; and when the testing of the water became a concern, the City came together to file this lawsuit. He advised there is a statute that deals specifically with adverse possession of City-owned property. Arkansas Code Annotated §22-1-204 states that “no title or right of possession to realty owned by an incorporated town, city of the second class, city of the first class, school district, county, or the state may be defeated in any action or proceeding because of adverse possession.” He explained they cannot accrue any rights against the City because of adverse possession. He pointed out that in Tract No. 1, which is a 20-acre tract, there are three mobile homes situated on that property with a driveway going through. There have been no deeds purporting to transfer that 20-acre tract from anyone. The last Deed of Record for that tract is to the City of Hot Springs. Director Maruthur questioned if there was any water or sewer in this area, and Mr. Albright advised there is no City sewer or water. He assumed they are on wells and hopefully sanitary septic tanks, but the testing of the water has proven to be contaminated. He added they have hogs, goats, and all types of things that produce wastewater. Director Maruthur asked if they have mail service, and Mr. Albright advised that they do, as well as County solid waste pickup. He stated that most of the families who reside on this property have the last name of Graves. Therefore, they are descendants of Floyd and Liddie Graves and/or Bert and Sylvania Graves. Director Edwards questioned how many miles it is from Highway 7 to the end of this property, and Mr. Albright stated he would estimate three or four miles. Director Jones asked if they have electricity, and Mr. Albright advised that they do. City Manager Kent Myers reported that the City is going to be relying on the County Sheriff to serve Notices, and no City staff members will go into this property. Also, he recommended that no Directors go into this area. Mr. Albright pointed out that on the survey there is a grayish area; and for the surveyors and all of the historical surveys of that area, it is a gray area for them as well. He explained that some Board of Directors Meeting 20 October 3, 2005 at 7:00 P.M. surveys would indicate it is the City’s; and some surveys would indicate that it belongs to others. He said his Petition asked that the City take the conservative approach and go with the area it knows is the City’s and can be proven. He stated that even with the gray area, the division line of that survey still goes through the middle of a shop and mobile home so those would have to be moved or torn down.. Mayor Bush asked if he has everyone identified in those tracts, and Mr. Albright replied that he has also included “and all occupants thereof” and has listed all of the people the City believes are there. They have described both 20-acre tracts and included all occupants thereof. He said if he needs to amend the Complaint at a later date when it is discovered that some of the individuals he has listed no longer reside there, he will do that. Director Weatherford asked how long it will take to get them off the property, and Mr. Albright stated that will depend on the Court. The individuals will have 20 days to respond to the Petition; and because there are so many, they may not get them all served tomorrow or this week. He stated that some of the owners have a mailing address on the tax assessment records of Louisiana. Director Jones asked how many people live in that area, and Mr. Albright advised there are 26; but there are four couples who are being included in this lawsuit because their property is contiguous to the City’s. He stated as long as the City is going in and making an issue of these two, twenty-acre tracts, it might as well make an issue of where the boundary lines are. There were no objections from the Board for Mr. Albright to proceed with filing the Complaint. 28 ADJOURNMENT There being no further business to come before the Board, the meeting adjourned at 8:50 p.m., to meet again on Monday, October 17, 2005, at 7:00 p.m. ATTEST: _____________________ APPROVED:__________________ Lance Hudnell, City Clerk Mike Bush, Mayor Board of Directors Meeting 21 October 3, 2005 at 7:00 P.M.