The Bella Vista City Council voted 4-2 to allow the city to pursue legal action against the Bella Vista Property Owners Association to secure access to water for fire suppression inside a planned public safety building during a Tuesday, June 15, special meeting.
Council members Steve Bourke and Doug Fowler voted in opposition to the resolution.
The building, which will house the police, dispatch, and a court facility, is adjacent to the current street department building on Forest Hills Blvd. and will require sprinklers because it has detention spaces, staff attorney Jason Kelley stated previously.
The building is outside the Property Owners Association, or POA's, water service area.
This structure was planned with the understanding that Cooper Communities, which has authority to determine whether the Bella Vista POA water system may be extended outside its existing jurisdiction, would permit the POA to provide water for fire suppression, while day-to-day water would be supplied by an existing Centerton water line, Kelley explained.
The city is currently working to secure water from Cooper Communities via eminent domain, as approved by the city council during its May regular meeting.
While that will allow the city to secure the rights to use the water, the city still needs to ensure that water is actually supplied by the POA, Kelley said.
"I wanted that to be locked in," he said.
While city staff had drafted a memorandum of understanding and reached a consensus with POA staff to ensure this water supply, Kelley stated the POA's board of directors voted this down during a closed session on June 10.
"It does us no good to sue Cooper Communities if the POA will not commit," he said.
This potential litigation is to ensure that commitment, he explained.
Assuming eminent domain proceedings become necessary, state law would allow the city to immediately access the water supply and begin its construction on the new public safety building and legal proceedings would be focused on determining the value of that taking, he said.
The alternative, he said, is to alter the building's design to include a water storage tank that would supply adequate water for a sprinkler system, he said, noting this addition would likely cost at least $500,000, as well as incurring additional costs from a redesign and increasing construction costs from delays on the project.
It is possible, he said, the city could litigate afterward to recoup some of these increased costs.
"These are not good options, I think there is no glee in this," he said.
It's a frustrating situation, he said, because while everyone ultimately benefits from this facility, nobody will commit to providing water -- which the city will pay for.
"I'll allow myself an editorial comment -- this is stupid," he said.
Mayor Peter Christie said that while this situation is unfortunate, he believes litigation may be the city's best move. Further, he said, the city needs to consider that costs will rise.
"There are consequences if you don't go forward with this tonight," he said.
Further, he said, he believes the company has withheld authorization to use this water in order to force the city to rezone several of its properties -- an issue he stated the city will approach exactly the same as it would any other rezoning application.
Councilmember Jim Wozniak said that he doesn't expect any progress if the city doesn't go forward with this resolution. It may not go all the way into litigation, he said, but showing the city is serious could help earn concessions from the POA and from Cooper Communities.
"Somebody has to push the issue," he said.
Councilmember Steve Bourke, who voted in opposition to the resolution allowing legal action, said he doesn't believe legal action is the best option.
He was concerned, he said, that this could drag out the process and sour relations with two of the city's potential partners -- though he added that he believes refusing to supply water for the facility is a mistake.
"I still hold hope that they will reconsider that this is a bad decision," Bourke said. "I feel most uncomfortable now that the city has had to take this approach."
This building, which will house the police department, the dispatch center, and a court facility, is one of three major public safety projects approved by voters in a special election last year, totaling more than $24 million and covered by municipal bonds, to be paid for with an additional 1% sales tax.
The city had a verbal agreement with Cooper Communities prior to taking this issue to the voters, Kelley said.
Cooper Communities Inc. issued a response to the meeting's announcement.
According to the statement, the company believes the city has erroneously and unlawfully zoned several of its properties, has never stated it would deny water access and has offered to meet with city officials to resolve the issue.
"Litigation should be a last resort in such matters and it is incumbent upon the city and its officials to act to avoid such a waste of taxpayer's funds. Cooper remains open to meeting with the city officials to resolve such disputes," the statement's last paragraph reads.
The council also voted in favor of an agreement for a guaranteed maximum price amendment for the public safety facility.