FAYETTEVILLE — City policymakers are nearing a decision on a new ordinance advocates say will protect waterways from pollution while critics argue it intrudes on property rights.
The ordinance, referred to as the streamside protection ordinance, is backed by Mayor Lioneld Jordan’s administration and will be read for a third and final time at Tuesday’s City Council meeting.
If enacted, the measure would be the first of its kind in Arkansas.
The measure is geared toward preventing harmful contaminants from entering waterways through runoff and erosion. The ordinance is part of the city’s Nutrient Reduction Plan, which seeks to reduce phosphorus in the West Fork of the White River and, ultimately, in Fayetteville’s drinking water.
To achieve those goals, the ordinance limits the activities of roughly 1,300 property owners on land within 50 feet of waterways. Parking lots, septic systems, animal feedlots, clearing non-invasive trees and in-ground swimming pools would be prohibited in those areas.
All existing, permitted uses would be allowed to continue and a variance procedure would be included to exempt some property owners from new regulation.
While the ordinance applies mainly to new development, it would restrict what some people can do on property they own.
Dozens of residents have come to City Council meetings during the past month to express support, voice concern and ask questions about the proposal.
Among those questions: Is it legal; what affect would it have on property values; and how would it be enforced?
Legality
Several property rights advocates have questioned the constitutionality of the ordinance.
Jim Laubler, a Fayetteville resident involved in the Washington County Tea Party, spoke against the ordinance at its first two readings Feb. 3 and Feb. 15. He said the ordinance borders on eminent domain without just compensation.
“There is a taking of 50 feet from the stream,” Laubler said Friday. “And they’re controlling it. They’re telling people what they can and can’t do with it.”
City Attorney Kit Williams has been clear in his opinion the council has legal authority to establish the controls in the ordinance. Williams said earlier this month he believes the ordinance will not qualify as a “constitutional taking” and would not open up the city to litigation through “inverse condemnation” claims.
Williams identified a three-pronged test for whether an action can be deemed a “constitutional taking”: Does it interfere with a property owner’s “reasonable expectation” of how to develop a property; Will it cause a “proven economic hardship” to the property owner; and how important is the property in achieving the government’s interests?
To the first and second points, Williams said the city’s variance procedure would protect many property owners who feel they are unduly impacted by the ordinance.
Without that mechanism, Williams said he would have been much less comfortable with the ordinance.
But Williams also advised council members in a Feb. 11 memorandum they “will need to closely analyze any proven economic hardship upon the landowner resulting from the streamside protection ordinance in your decision to grant or deny such variance.”
As for the third test, Williams said, “It would be hard to envision a stronger governmental interest than the preservation of a clean and pure water supply.”
Dale Evans, an attorney with Evans Law Firm in Fayetteville, said for the most part he agreed with Williams’ analysis.
“It sounds like they’ve covered the legal bases,” he said.
In cases where someone would be prevented from building a storage shed or an in-ground pool, “That’s when you get the competition between the governmental interest and the reasonable expectation of the property owners’ use of the property,” Evans said. “Frequently the courts will side with the government in a close competitive issue like that.”
Until a case comes up, it’s difficult to assess whether a rightful claim for compensation exists, he said.
Property Values
According to two real estate appraisers, the ordinance’s effect on property values is similarly difficult to judge.
“The impact, if any, on a property could vary from property to property depending upon the location and physical characteristics of that property,” said Tom Reed with Reed & Associates in Fayetteville.
Wendel Fleming with Fleming Appraisal agreed appraisals would have to be done on a case-by-case basis. Factors such as whether the property lies within a federal floodway would also need to be considered, he said.
For a small lot, where a 50-foot buffer is a significant portion of the property, the ordinance could affect whether a property is buildable or desirable, Fleming said.
For undeveloped property, though, “People are going to know what they’re going up against when they buy,” he said.
“I don’t think it’s something that people need to panic about,” he said.
Cynthia Haseloff, who runs an organic farm at 4618 N. College Ave., said Friday about 300 feet of her property lies along Clear Creek and would be subject to the ordinance.
Haseloff valued the land at more than $10 per square foot, based on an assessment of neighboring property. Without a 50-foot setback, the land could be worth as much as $155,678, Haseloff said.
“Land has financial value to its owners and to the community in tax dollars,” Haseloff said. “Every one of the 1,300 streamside owners has financial value in their property.”
She urged council members to educate landowners about the value of riparian buffers rather than “leaping to the draconian measure of taking of property.”
“No one is more aware that I am a steward of the land than I am,” Haseloff said. “No one cares more about that water, the wildlife, the birds and that land than I do.”
Nancy Varvil, a Fayetteville Natural Heritage Association member, owns rental property that backs up to Hamstring Creek. She said she believes having a natural area on the property enhances its value.
Varvil said water from upstream of the property can often leave foam containers and plastic bags in vegetation along the creek following heavy rain.
“Fluctuations in water flow have been increasing greatly since more properties have been developed,” she said. “If the streamside protection ordinance goes in, the stream would be more attractive, it would be safer and it would be less likely to have sediment wash into the stream.”
Enforcement
Jeremy Pate, development services director, said if the ordinance is enacted it would be enforced no differently than other city codes.
“It would be the same as other zoning, development or nuisance complaints,” Pate said.
For developed property, the process is mainly complaint driven, meaning a neighbor must bring a violation to the city’s attention.
“We do not enter private property without permission or invitation, so if we can’t see it from the public street or another property that we have been given permission to enter, we will have to rely on the neighbor’s information that they provide to us,” Pate said.
City officials have emphasized, however, the ordinance targets new development. So, if someone wants to build an addition to their home or a subdivision in the buffer zone, the construction would not receive a building permit until it complies with the ordinance.
In general, Pate said, code compliance officers are willing to work toward a resolution with property owners before an violation is referred to the city prosecutor for evaluation.
Potentially, violations could result in a $500 fine or as much as $250 per day for a continuing violation, Williams said.
Meeting Information
Fayetteville City Council
When: 6 p.m. Tuesday
Where: City Administration Building, 113 W. Mountain St.
On the Agenda: Third and final reading of the streamside protection ordinance
Source: Staff Report