Highlights of the Fort Smith Board of Directors Meeting 9/5/23

At the Fort Smith Board of Directors meeting held 9-5-23, the Board voted to override the Planning Commission decision and not allow a 158 ft tall AT&T cellphone tower to be constructed at 3915 Newlon Road. The Planning Commission approved the request to build the tower on the site with 7 in favor and 1 opposed. But there was an appeal filed by Stephen Smith, attorney for SBA Communications that owns another cellphone tower less than half a mile away. SBA would prefer for AT&T to add height to and share the existing SBA tower instead of building a new tower. Multiple neighborhood residents also communicated their opposition to the tower. The issue was discussed at length at the 8-29-23 study session meeting.

Chris Cromley with AT&T answered the question raised at the study session regarding the cost of leasing to share the SBA tower versus building a new tower. He said that while they haven’t negotiated a price with SBA because sharing their tower would not provide what they need it to provide it was estimated that sharing would cost $12,000-$15,000 less than the new tower.

Greg Pharris with Tillman and AT&T spoke saying that the “appeal is false” and “Everything that SBA has told you is incorrect”. He said that AT& T had been in contact with SBA regarding co-location on their tower. He acknowledge that there are neighbors who oppose the new tower but reminded that no neighbors spoke at the Planning Commission meeting and no neighbors filed an appeal. Offering examples from other cities where expensive houses and nice developments were built near towers, he refuted the claim that towers nearby negatively impact property values or prevent development.

Dustin Crystal, design engineer for AT&T said that “location truly matters” for the service and that the SBA tower “simply did not work.”

Stephen Smith representing SBA said that communication did not take place before the Planning Commission application was filed. He also said that SBA tower has the capabilities to house AT&T and Firstnet facilities. He said that when Congress passed Firstnet, they said that co-location should be considered. He said that AT&T coverage maps from the AT&T website show that there is already strong AT&T 5G coverage in the area to be served by the tower already.

Director Morton asked what coverage gap the new tower was trying to fill. Crystal answered that it was to better serve the area near the river that is currently served by a Van Buren tower. He said that the new tower is “just as much a capacity site as a coverage site.” Director Good who lives in the area to be affected by the tower said “I don’t see how another tower just a bit closer is gonna give you the coverage you need.” He suggested that as technology moves forward the light post sized towers could meet the needs. Crystal said that the big tower is capable of putting out more power than the light pole size towers. Those small towers are good for high traffic areas but the big towers are better for areas where the traffic is more spread out.

Director Rego asked if it is accurate the “spirit behind the appeal” is motivated by lost business opportunity or if the the additional tower will have an “adverse effect” on the operation of the SBA tower. Smith said that the appeal was not financial motivated. He also mentioned the wording about “seek to reduce cell tower congestion” in the zoning code.

Mentioning children who struggle with internet access, Mayor McGill asked which would be better, co-location or the new tower, for service for residents in that area. Crystal said that the the new site would offer the “best and highest service” and fastest speeds.

Gayla Holland, resident of the neighborhood of the proposed tower, spoke in opposition to the tower. She asked the neighbors in the audience to raise their hands if they had any problems with cell coverage in that neighborhood. No one indicated that they had any problems. She reminded of the 65 people who signed the petition opposing the tower. She expressed concerns about the residents of the “beautiful” area, most who own large acreage properties, having to look at the tower. Director Morton asked about why no one from the neighborhood spoke against the tower at the Planning Commission meeting. Holland said she couldn’t attend because she was ill and that another member of the opposition who wanted to speak was out of town when it was held.

Director Rego asked where the closest residence would be to the tower. Planning Director Rice answered about 600 feet from it.

The Board voted to reject allowing building the tower with all but Director Rego voting to reject it and Director Settle not participating in the discussion or vote because his brother works for AT&T.

The Board voted unanimously to contract with Axon for police equipment and software licensing including body worn cameras, car dash cameras, interview systems, data storage, VR training systems, and tasers. The new agreement will include 12 new dash cameras, 30 new tasers, and additional software in addition to the equipment and services originally contracted for. The total cost of the contract will be $3,570,413.80 paid in annual installments through 2028.

Director George Catsavis asked how long the Police Department had been contracting with Axon. Police Chief Baker answered since 2018. Director Catsavis asked how good their customer support is. Baker said that he has “not had any concerns”.

The Board voted unanimously with no discussion to allow Amigos Bar & Grill to apply for a private club alcohol license to operate at the former R.Landry’s restaurant building at 613 Garrison.

The Board voted unanimously to accept and pay a settlement for penalties from the consent decree. The Department of Justice on behalf of the EPA originally demanded $2,521,350 in penalties be paid because of hundreds of sanitary sewer overflows between January 2015 and June 2021, a handful of treatment violations, and failure to meet the deadline for the 2015 Sanitary System Assessment remedial measures. The City believes that the 2019 flood, Covid, and supply chain issues should be considered a force majeure that should qualify for a reduction in penalties. The City and the federal government negotiated through the informal dispute resolution process rather than in-court litigation. The result of the negotiation was that the federal government has offered a settlement on the penalties for the City to pay $800,000 in full within 60 days. Outside legal counsel has recommended that the City accept and pay the settlement.

Directors Morton and Rego voiced their support for paying the penalty settlement. Director Settle asked if it would absolve the City of all penalties from 2015-2021. City Administrator Geffken said that it would.

Director Settle said that “$800,000 could fix a lot of lines.” Director Settle pointed out that the cost of the penalties averages out to a cost of $20-21 per household.

Director George Catsavis asked if the City is still subject to more penalties in the future. Utilities Director McAvoy answered that yes, until the end of the consent decree new penalties could still be incurred. Director George Catsavis asked if by paying the penalties now the City might get more favorable treatment from the DOJ and EPA in the future. Geffken did not make any promises for certain but gave the impression that it likely would contribute to more favorable treatment in the future. Director Christina Catsavis expressed her view that it is important to show the DOJ and EPA that “we’re willing to be good partners.” She also said that the City would be likely to spend that much money anyway to fight in court instead.

Director Martin said of paying the penalties that he was “not wild about it” and asked where the City is on the remaining consent decree milestones. McAvoy said that they are “so far beyond the milestones by now” that the federal government is already working on plans to help bring the City back into compliance with a new set of milestones. He said that the 2020-2023 milestones have already been missed and the federal government are “fully understanding of that” and “working with us.”

Director Martin requested that the Board be sent updates every 3-6 months about the number of sanitary sewer overflows. He said “We wanna do everything we can to prevent being fined again”.

Director Good acknowledged that “no one wants to swallow this pill” but expressed his view that “Being combative when we’ve made good ground is the last thing we need to do.” He said that with still having such a long way to go, having a favorable relationship with the DoJ is really important.

Director Morton said that if any projects that would prevent sanitary sewer overflows in the future are being held up by money issues that the Board wants to know.

The Board voted unanimously to move forward with the purchase of property at 4501 Burrough Road that was formerly the Whole Hog Cafe to use it for an additional police precinct. The existing building there will be modified to serve as a police station building. At the 8-22-23 meeting, the Board voted to allow up to $500,000 to be spent to purchase the property. However, the asking price of the property was $790,000, but a counter offer has been made that would make the property available for a price of $575,000. The Board voted to pay that higher $575,000 price.

Director Settle expressed his support for the purchase of the property but questioned the location’s access to roads. He expressed concern especially for how fast the police could get from Massard to Burrough Rd. He and Morton both expressed support for moving forward with the Planters Road extension soon as a possible solution to speed that up.

The Board voted unanimously to waive the fees for the required building permits and inspections for projects done by World Changers, a Christian student ministry that performs housing repairs for the needy (especially for senior citizens) including projects like roof repair, siding, painting, window replacement, and wheelchair ramps. The permits paid for by World Changers typically total about $200 per year. The issue was discussed at the 8-22-23 study session meeting.

The Board also requested that they be presented with an agenda item at a future meeting to change the policy to also waive the fees for other similar projects from other non-profit organizations.

The Board voted unanimously to contract with Burns and McDonnell to create a Streets and Traffic comprehensive safety action plan. The total project cost is to not exceed $348,975 and a grant from the US Department of Transportation will pay $280,000 of the total and the City will pay the remainder.

The Board voted unanimously without discussion to contract with Forsgren for a total of $2,176,463 for 1.7 miles of street overlays.

The Board voted unanimously to purchase a fleet maintenance and asset tracking software system for the Water and Sewer Department from Faster Asset Solutions for $93,297.50.

Director Morton questioned the efficiency of having multiple different fleet management systems for different departments rather than one system for all of them. McAvoy said that Streets and Utilities share one system and that they have looked at using the one that solid waste uses but that this one does more. Geffken said that Streets and Utilities are the “test bed” for everyone with this system and that they will look into possibly getting more departments using it in the future.

Director Christina Catsavis said there is a local company offering custom fleet management. She said “It’s always good to keep it local.”

The Board voted unanimously to contract with Garver for $145,000 to satisfy one part of the required corrective action plan that requires an independent engineering firm to determine the root cause of the inability of the Massard water treatment plant to treat ammonia nitrogen to within the limits.

Director Martin asked if the failure to treat to the limits is posing a health risk. McAvoy said that it is not.

Director Morton said that he does not want to pay for a patch to just get another year or 2 out of it. He expressed support for the study and fixing the problem saying “It’s gotta be done ASAP.”

The Board voted unanimously to purchase a prefab concrete restroom from CXT for Fort Smith Park for $253,678.12.

Director Settle asked if the plan was to demolish the current 3 existing restrooms and replace it with this one. Parks Director Deuster clarified that it was. Director Settle questioned if the park was used enough to even have a bathroom. Deuster and Geffken said that it is necessary especially because the park hosts a significant number of large events. Director Morton said that 43 acres is a lot for just one restroom.

Director Martin asked when it would be finished. Deuster said it would be open next spring.

The Board discussed whether or not to purchase a youth sized basketball court for Creekmore Park to be located where the toddler play area and sandbox are currently located. A new train themed toddler play area is coming soon. The court would cost $172,804.90.

Director Settle expressed concern for the look of the basketball court in that location. He said that having to look through an 8 ft chain link fence to see the train from the parking lot “doesn’t show inviting park to the public” and said “There are better places.”. Director George Catsavis asked where else it might be placed. Director Settle suggested near the putt putt course or tennis courts. Director Martin said there is “a lot of green space at this park that would be good” and voiced support for a different location. He also expressed his preference for a full size rather than youth size court. Director Rego mentioned the proposed location’s advantage of being observable by parents from different sight lines around the park. Director Morton said that Creekmore “won’t be a great park if we cram things together.” He suggested that the basketball court be put off until after things are more decided about the potential new Acme Brick Park and that part of that property might be a great place to put more than one court. Director Martin suggested that the court might be located near the shopping center on the side of the park near Sweetbay. Director Morton mentioned that near the Parks Department offices or near the fitness court might also be good options to consider.

Director Morton expressed his disapproval for the proposed cost of the court.

The Board voted to table the issue to allow for further consideration of alternate locations for the court with all but Director Christina Catsavis voting to table it. It will return to the Board for a vote at the October 24, 2023 meeting.

The Board voted unanimously without discussion to contract with Rent.Fun to rent kayaks via a self-serve app/cage system at Carol Ann Cross Park. The Board previously approved the kayak contract, but originally wanted the rental fee for the kayaks to be set at $5 per hour. The City was not able to negotiate the rental fee all the way to the desired $5, but they were able to negotiate a rate of $7 per hour and instead of the City keeping half of the revenue all of the rental revenue would go to Rent.Fun.

The Board voted unanimously to purchase sod to prevent erosion on a sloped area of the landfill. The only bid received for the sod was from Westark Sod of Fort Smith for $118,041.

Solid Waste Director Riley clarified that covering slopes with sod is always procedure when part of a landfill is closed. For a side slope like that one, it prevents erosion and keeps litter from coming up. She said that it is a routine item but that the larger than usual area is why it was being brought to the Board this time. Director George Catsavis asked if other ground cover had been considered. Riley said that only approved materials may be used including rock, clay, geosynthetics, and sod.

During the Officials Forum section of the meeting, Director Morton said that as a result of the two different opinions about the amount of money that Fort Smith Animal Haven owes the City from the overpayment found in the recent audit the shelter is being held up from receiving significant donations from some organizations. The organizations will not move forward with their donations until the audit issue is resolved. He said “We’ve stranded Animal Haven in a bad place.” He suggested that an outside firm be hired, not to re-audit but just to look at both parties’ statements and only the facts pertaining to the over-billing and issue one single decision on how much Animal Haven owes the City. The costs for the outside firm would be shared between the City and Animal Haven.

Director Settle supported hiring an outside firm calling it “normal business” to have a third party resolve that sort of dispute.

Director Christina Catsavis said that the Arkansas Attorney General has already come to the conclusion that Animal Haven owes the City money.

The issue of whether or not to hire an outside firm to resolve the amount that Animal Haven owes the City will be on the agenda for the next meeting.

Director Settle mentioned a recent incident where police were called to Hope Campus to deal with a gun situation He said that police calls to Hope Campus are “becoming the norm.” He suggested that the Board have a serious discussion about Hope Campus saying that it being a police hot spot is making it a “detriment to our city and people we’re trying to help.” He expressed concern for it creating an environment that puts police officers, staff, and residents at risk.

Director Rego asked to what extent the City subsidizes Hope Campus. Geffken says that they receive CDBG funding. Director Rego said that he would like to see more information on the number of police calls to the location. Director Morton said that he would like to hear from Hope Campus’s board about what they are doing to mitigate crime and violence.