Highlights of the Fort Smith Board of Directors Meeting 1/9/24

At the Fort Smith Board of Directors study session meeting held 1-9-24 with Director Christina Catsavis absent, the Board discussed making payments to 4 owners and 1 tenant of properties on Edinburgh Drive that had damages to personal property when the houses were flooded in the July 14, 2023 storm. 3 of the 5 properties involved have already been bought by the City through the flood buyout program.

City Attorney Canfield said prior to the meeting that the City is currently not liable for damages to the properties because the damages were not a result of negligence and that current policy does have not a provision to allow for the payments. But for the Board’s consideration, Canfield submitted an amended version to the Limited Torts Claim Policy that would allow for the City to take liability and make payments. The policy currently allows the City to take liability and make payments for damages due to water line breaks, sanitary sewer backups, manhole damages to vehicles, and fallen trees in City rights of way that are caused by negligence by the City. The change to the policy discussed at the meeting would add wording to include payments of $2500 per incident for damages caused by flash flooding caused by delay of drainage improvements by the City.

Prior to the meeting, Insurance Consultant Merry expressed agreement with Canfield that the City is not liable for damages and the damages on Edinburgh were not a result of negligence. Merry also provided the Board with information regarding flood insurance coverage that residents can purchase for themselves.

Director Morton said that he “liked the wording” suggested by Canfield but suggested adding language about “delayed maintenance of drainage systems”. He mentioned flood damage caused by a ditch filled with fallen trees. He expressed his view that “Anyone near a drainage area because of inadequate size or any other issue should be eligible for this”.

Director Settle asked where funding for the payments would come from. Administrator Geffken answered that it would come from the general fund. Director Settle asked if the change in policy might open the City up to legal claims from people who want more money than the $2500. Geffken and Deputy Administrator Dingman said that the way it is spelled out explicitly, like the existing policy regarding the sewer back ups and fallen trees in rights of way, it would not affect the City’s tort immunity and open them up to greater legal responsibility than the specified amount. Director Settle asked if the payments would be a one-time payment or if the same address could have multiple claims, like if there was flood damage and a property owner was paid and then there was another storm a couple of weeks later would they be eligible to be paid again. Dingman clarified that multiple claims would be allowed.

Director Martin asked if the policy would still apply to properties that are located in the 100 yr flood plain. Dingman clarified that it would. Morton said that people in the flood plain need to have flood insurance. Morton expressed that he thought that if damages were covered by flood insurance or homeowners insurance that the payments from the City would not apply. Dingman clarified that that wording is not included in the proposed policy change, payments would be made regardless of whether there is insurance coverage or not.

Director Settle suggested a cap per year on the total fund for the payments so that the City could budget for the cost and not end up with any surprise extremely high costs for the payments. Director Morton expressed support for a cap. Director Morton questioned the legal issues that might arise from denying claims after the cap had been reached and funds set aside for the payments had been depleted. Geffken said that it should be fine, but he would be sure to check with the City Attorney.

Dingman reminded that people are able to buy flood insurance, even renters can obtain coverage, and the property owners on Edinburgh chose not to. He said that purchasing flood insurance can make it so that flooding “doesn’t become a burden on the public.” Director Morton mentioned that information regarding flood insurance was included with recent utility bills. Geffken said that it was also shared via govdelivery. Director Morton said that if the communication efforts regarding flood insurance are successful that there may in the future be a need to go back and modify changes regarding payments for flood damage since they would be less needed. Dingman said that the City helping spread information regarding the availability of flood insurance is a “better service than budgeting for losses the City shouldn’t be responsible for.” Director Morton mentioned that even with property owners having flood insurance, they would still be liable for the deductibles, so the payments would be helpful. Several Directors wondered what the deductibles for typical flood insurance policies are. Geffken said that he would have Merry find out and provide the Board with that information.

The changes to the policy to allow the $2500 payments for flood damages due to City delay in drainage improvements and maintenance up to a total yearly budgeted amount of funds will be up for a vote at the 1-16-24 meeting.

The Board discussed the fee required to be paid by people whose building is within 300 feet of a sewer line without having to cross someone else’s property that opt to have a septic system instead of connecting to the sewer. Currently, there are 119 customers who pay that Sewer Availability Fee. The fee is 75% of the sewer rate the property would have paid had they been connected to the sewer and all the previous payments a property owner has already been made can be applied to the City fees for connecting to the sewer system if/when they do connect to it (and any fees already paid to the City by the property owner that are more than the total fees for connecting into the sewer will be repaid to the property owner). State Law requires buildings within 300 ft of a sewer line without crossing someone else’s property to be connected to that sewer, but the City offers paying the Sewer Availability Fee as an alternative to immediate compliance with that law. When a septic system fails, the building will then be required to hook up to the sewer. No new septic systems will be allowed.

The alternative to the fee would be discontinuing the fee and requiring everyone within 300 ft of the sewer line without having to cross someone else’s property to connect to the sewer line by the end of 2024. The charge the property owner pays to the City to hook up to the sewer on the same side of the road is $1100 and the charge to hook up if the road has to be crossed is $1800 plus an additional cost per square foot of asphalt involved. In addition to the City fees, the property owner is responsible for the whole cost of properly shutting down their septic system and paying a plumber to run a private service line from the house to the right of way.

Director Rego said that the State law requiring people to hook up to the sewer seems “pretty straight forward” and asked why those 119 residents are still allowed to be exceptions to following the law. Utilities Director McAvoy said that in the past Boards had used the Sewer Availability Fee system to make those residents “kind of grandfathered” so that the residents did not have to shoulder the burden of the expense to connect to the sewer right away.

Director Rego asked how much is generated from the fee. Director Morton said that the resident whom he spoke with who is currently paying the fee pays about $37 per month. Director Morton said the total out of pocket cost of hooking up to the sewer could be $10,000-$15,000 and that he guesses that the City elected to let those 119 people not immediately hook up because they did not have the $10,000-$15,000 to spend on the switch right away. Director Morton who originally called for the fee to be discussed at a study session meeting said that the property owners getting a credit back for what they paid in on the Sewer Availability Fee “removes this as an area of concern for me.” and that with the credit the City “couldn’t be any more fair than that.” and that he is “perfectly satisfied” with the current policy.

Director Settle requested to be provided with a map showing where the remaining septic systems are located. McAvoy said that some are on Waldron and some are on Texas Road, but agreed to provide the Board with a complete map.

The Board discussed parking issues on Fairway Hamlet Court. A resident of the neighborhood has requested No Parking signs to be installed there. Since March 2021, the Police Department has received 30 complaints about illegal parking there, all from one resident. All of those complaints were investigated and 5 of them were found to have merit and those 5 were all resolved using existing parking laws. There have been 3 accidents involving parked vehicles being hit there since 2005. The Police Department has canvassed the neighborhood and spoke with residents twice and reports that the overwhelming majority reported no issue with parking and did not want the signs to be installed. The Police report no safety issues there and that the traffic can move freely. They do not recommend the signs be installed.

The Streets Department does not see a safety concern there and does not recommend installing the signs. The Fire Department says that fire apparatus is not hindered by the parking situation there. The Solid Waste Department says that the slowing of garbage collection there due to parked vehicles is no different than any other residential street.

Director Morton said that he spoke to the resident who requested the signs and that she also showed him a petition on which she gathered 6 or 7 signatures (less than 20% of the neighborhood residents) requesting the signs. Director Morton urged her and the petitioners to come to the meeting and speak on their issues but she declined to attend or to ask her neighbors to come. Director Morton said that he drives by the area about once a week and does “not see a basis” for putting up signs “at this time or probably ever.”

Director Rego said he trusts the expertise of the department heads and the Police Chief. He called the issue a “spectacular misuse of time” and said that it is “very telling no one is here to talk about the alleged rampant issue.”

Director Martin said that he would want parking policies to be applied unilaterally and that prohibiting parking on all residential streets “doesn’t make sense.” He said that his main concern was parking on the street causing a safety issue but it “doesn’t appear there is one”.

Director Settle said that he once received a complaint from a resident of another neighborhood regarding a neighbor parking on the street in front of their mailbox on purpose.

Geffken said “If there was something here, we would absolutely do something about that, but there isn’t.” He expressed that it would be a “pandora’s box” and “would be truly disruptive” to apply a prohibition on street parking unilaterally.

During the Citizens Forum section of the meeting David Armbruster spoke to request sidewalks be built along 24th Street and Jenny Lind to Phoenix where students frequently walk to and from Ramsey and Fairview schools. He called the lack of connecting sidewalks in the area a “ticking timebomb” for student safety. He said that in a discussion with the Streets Department he had been told that lack of funding was the main reason for the lack of sidewalks there and that they encouraged him to speak to the Board about more appropriations for the sidewalks. Armbruster suggested that if the project could not be afforded all at once that 2 or 3 blocks of sidewalks might be added per year to complete the project gradually.

Geffken assured that an engineering project on the sidewalks for that area is currently already under way and “That’s moving forward.”

Dr. Rick Murphy spoke to suggest that the City establish a Department of Sustainability so that an employee could focus solely on environmental sustainability efforts and applying for grant funding for those projects. He also praised Joshua Roberston who is currently performing those duties in addition to his other duties as Deputy Director of Utility Business Administration. Murphy suggested that if that department were established that Robertson would be a perfect fit for Director of Sustainability.

Director Rego spoke in support of Murphy’s suggestion and recommendation and praised Robertson. Geffken also praised Robertson.