7238RESOLUTION NO. 7,238 3
A RESOLUTION AUTHORIZING THE CITY ATTORNEY'S
OFFICE TO ENTER INTO A CONSENT JUDGMENT IN
BIRCHWOOD NEIGHBORHOOD, ET AL. V. BOARD OF
ZONING ADJUSTMENT, ET AL.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
LITTLE ROCK, ARKANSAS:
Section 1: The City Attorney's Office is hereby
authorized to enter into the attached consent judgment in
Birchwood Neighborhood Association, et al. v. Board of Zoning
Adjustment, et al.; No. 83 -7570.
ADOPTED: August 1, 1984
ATTEST: APPROVED:
CIFY CLERK-PANE CZECH MAYOR . W. BENAFIELD
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IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
SIXTH DIVISION
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BIRCHWOOD NEIGHBORHOOD ASSOCIATION;
BOB BOYD AND DONNIE BOYD, HIS WIFE;
TERANCE HARRIS AND SALLY HARRIS, HIS
WIFE; DONALD HENRY AND GEORGIANNA
HENRY, HIS WIFE; DAVID M. OBERSTE
AND BARBARA K. OBERSTE, HIS WIFE;
AND JOHN STRATTON AND DOROTHY
STRATTON, HIS WIFE
PLAINTIFFS
VS NO. 83 -7570
BOARD OF ZONING ADJUSTMENT OF THE
CITY OF LITTLE ROCK, ARKANSAS AND
FAUSETT DEVELOPMENT COMPANY
DEFENDANTS
VALARK CONSTRUCTION,COMPANY
INTERVENOR
C O N S E N T f U D G M E N T
Now on this day this cause comes on to be heard, Plaintiffs
appearing by and through their attorneys, Henry & Duckett; the Defen-
dant, Board of Zoning Adjustment of the City of Little Rock, Arkansas,
(hereinafter referred to as the "Board "), appearing by and through its
attorney, R. Jack Magruder III; the Defendant, Fausett Development
Company, (hereinafter referred to as "Fausett ") appearing by and
through its attorney, Hal Joseph Kemp, P.A.; and Intervenor, Valark
Construction Company (hereinafter referred to as "Valark ") appearing
by and through its attorneys, House, Wallace & Jewell, and the matter
was submitted to the Court upon the pleadings filed of record herein,
statements and arguments of counsel, stipulations of the parties, and
the provisions of a settlement agreement of the parties hereto, other
matters, proof and things, from all of which the Court doth find:
1. That the Court has jurisdiction of this cause of action and
of the parties hereto.
2. That Plaintiffs did timely file their Complaint in this
cause challenging the height vdriance granted by the Board on
September 28, 1983 to Fausett applicable to the hereinafter described
real property:
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P. 2 - Birchwood Consent Judgment
Part of Lots 21, 28 and 29, West Highland
Subdivision and part of Hardin Road (closed) in
Pulaski County, Arkansas, more particularly
described as follows, to -wit:
Beginning at the Southwest corner of Lot 16,
Cunningham's Replat; thence N 0 deg. 48' 22" W
along the West line of said Lot 16, 136.88 feet to
the Northwest corner thereof; thence S 89 deg. 42'
07" E along the North line of said Lot 16 153.64
feet to the Northeast corner thereof, said corner
being located on the West line of Lot 28, said
West highland Subdivision; the same being the
point of beginning of the real property described
herein; thence N 9 deg. 41' 07" W along the West
line of said Lot 28 and the West line of Lot 21,
said West Highland Subdivision, 500.23 feet to the
Northwest corner of said Lot 21; thence S 90 deg.
31' 29" E along the North line of said Lot
21,296.6 feet to a point on the West right -of -way
line of Hardin Road; thence S 0 deg.32' 14" E
along said west right -of -way line 235.13 feet to a
point; thence Southeasterly and continuing along
said West right -of -way line, being the arc of a
215.99 foot radius curve to the left, having a
chord bearing and distance of S 15 deg. 10' 14" E,
109.13 feet to a point; thence S 29 deg. 48' 14" E
and continuing along said West right -of -way
line, 96.14 feet to a point; thence S 60 deg. 11'
46" w and continuing along said West right -of -way
line, 10.0 feet to a point; thence S 29 deg. 48'
14" E and continuing along said West right -of -way
line 110.62 feet to a point; thence Southwesterly
and continuing along said West right -of -way line,
being the arc of a 25 foot radius curve to
the right, having a chord bearing and distance of
S 18 deg. 05' 11" W 37.09 feet to a point on the
North right -of -way line of Financial Centre
Parkway; thence Southwesterly along said North
right -of -way line, being the arc of a 768.51 foot
radius curve to the right, having a chord bearing
and distance of S. 75 deg. 37' 34" W, 258.76 feet
to a point on the East line of the W -1/2 of Lot
28, said West Highland Subdivision; thence S 0
deg. 36' 10" E along said East line, 18.38 feet to
the Southeast corner thereof; thence N 88 deg. 35'
21" W along the South line of said W 1/2 of Lot
28, 152.40 feet to the Southwest corner thereof;
thence N 0 deg. 41' 07" W along the West line of
said Lot 28, 5.0 feet to the Southeast corner of
Lot 16, said Cunningham's Replat; thence N 0 deg.
4' 07" W 136.82 feet to the Point of Beginning;
(said real property being hereinafter referred to,
for purposes of this Consent Judgment only, as
TRACT I.)
3. That the Plaintiff, Birchwood Property owners' Association,
is an unincorporated ,association representing all property owners in
the Birchwood Addition and Cunningham's Replat Addition to the City of
Little Rock, Arkansas and that pursuant to Rule 23.2 of the A.R.
p, the representative parties thereto do and have fairly
Civ.
and
A
P. 3 - Birchwood Consent Judgment:
adequately protected the interest of the association and its members
and that adequate notice of the compromise reflected herein has been
given to all members of.the association.
4. That the particulars of the settlement agreement reached by
and between all of the parties hereto are as hereinafter set forth:
(A) Fausett shall have the right to fully develop TRACT I
within the restrictions and requirements of the existing or
subsequently established and appliccable zoning classifications,
in which event Fausett shall not be required to comply with the
terms and conditions of paragraph 4 (B).
(B) In the event, however, Fausett desires to develop TRACT
I pursuant to, the height variance which is the subject of this
action, then and in that sole' event, Fausett and Plaintiffs agree
as follows:
(1) SETBACK. Any building, except parking lots
and /or parking decks, constructed pursuant to this
subparagraph shall be constructed and situated not less than
165 feet from the West property line of TRACT I.
(2) HEIGHT. The flat room line of any building,
except parking lots and /or parking decks, constructed
pursuant to this subparagraph shall not exceed 93 feet above
the ground elevation of TRACT I at 165 feet from the West
property line, which ground elevation the parties hereto
agree is 473 feet MSL; provided, however, the Plaintiffs
agree that the roof parapet and a penthouse to house
elevators and all other mechanical equipment for such
building may exceed the 93 foot maximum height, but Fausett
agrees that in no.event will any such building exceed eight
(8) floors of habitable floor space.
(3) PARKING DECK. Any subterranean parking decks
constructed pursuant to this subparagraph shall be construc-
ted and situated not less than sixty (60') feet from the
West property line of TRACT I so long as the top parking
deck does not exceed a ground elevation of 486 feet MSL.
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P. 4 - Birchwood Consent Judgment:
(4) BUFFER ZONE. The following described portion or
TRACT I shall be maintained as a buffer zone, to -wit:
Beginning at the Southwest corner of Lot 16,
Section B, Cunningham's Replat of Lots 22 and 27,
West Highland Subdivision to the City of Little
Rock, Arkansas; thence N 0 deg. 48' 22" w along
the West line of said Lot 16, 136.88 feet to the
Northwest corner thereof; thence S 89 deg. 42' 07"
E along the'North line of said Lot 16, 153.64 feet
to the Northeast corner thereof, said corner being
located on the West line of Lot 28, said West
Highland Subdivision, and being the point of
beginning of the Buffer Zone herein desribed;
thence S 0 deg. 04' 07" E 25 feet to a point;
thence East 25 feet; thence North parallel with
and 25 feet East of the West Line of Lot 28, West
Highland Subdivision, to a point of intersection
with the Centerline, as if extended to the East,
of Eric Lane; thence East along said centerline,
as if extended, 18 feet ; thence North parallel
with and 43' East of the West line of Lots 28 and
21, West Highland Subdivison to the North line of
said Lot 21, a distance of 43 feet; thence South
along the West line of said Lots 24 and 28, West
Highland Subdivision, to the Point of Beginning.
(5) BUFFER ZONE TREATMENT. Following consultation
with the Plaintiffs' Committee (the "COMMITTEE ") hereinafter
named by way of notice thereof to said Committee's Agent
(the "AGENT ") hereinafter named, all buffer zones herein
provided for shall be cleared, of any and all debris and
undergrowth, including all vines, tall grasses, dead timber
and trash and shall be maintained by Fausett free and clear
of all such debris and undergrowth. Prior to construction
of any building pursuant to paragraph 4(B), Fausett will
construct a wooden privacy fence six (6) feet in height on
or along the West line of TRACT I which abuts either
Cunningham's Replat or Birchwood Addition with the clean or
finished side of. said privacy fence to face Plaintiffs'
properties to the west. The Buffer Zone will be clearly
identified during construction period.
(6) PLANTING FUND. Fausett will deposit the sum
of $10,000.00 with an escrow company of its choice within
thirty (30) days of funding of a construction loan for the
development of TRACT I pursuant to paragraph 4(B), which
P. 5 - Birchwood Consent Judgment 8
fund shall be used by the Committee to pay for the planting
of trees 'and shrubs in the buffer zones herein provided.
The species and kinds of trees and shrubs to be so planted
must be native to the area, or be mutually agreed upon
between the Committee and Fausett, and all such planting
shall be completed within one year of completion of the
building. Fausett will notify the Agent in sufficient time
prior to the commencement of grading work on TRACT I to
enable the Committee to contract for removal of selected
existing trees for planting in the buffer zones. Any unused
funds not expended by Plaintiffs remaining in the escrow
fund at the end of one year after completion of the building
shall be refunded to Fausett.
(7) EXISTING TREES. Fausett hereby confirms its
intent to save a6d /or incorporate, as part and parcel of its
general landscaping treatment of TRACT I, any and all large
trees and /or, groupings of trees located outside of the
hereinabove described Buffer Zone; provided, however,
Fausett reserves the sole and exclusive right to determine
if, and how, any trees can be saved and /or incorporated.
Further, Fausett hereby covenants that it will take all
necessary steps to avoid injury to any and all trees and
groupings of trees located within TRACT I and TRACT II
Buffer Zones during the site preparation and construction
stages of the planned development, including the provision
of temporary barriers and /or fences.
(C) Plaintiffs agree to support Fausett's rezoning applica-
tion to 110 -3" zoning classification on Lot 16, Section B,
Cunningham's Replat of Lots 22 and 27, West Highland Sub-
division, Pulaski County, Arkansas, (said Lot 16 being herein-
after referred to as TRACT II for purposes of this Consent
Judgment only) on the following conditions:
(1) If TRACT II is rezoned 110 -3 ", Fausett will not
construct any building on TRACT II in excess of the 45 foot
height restriction provided under the 110 -3" zoning
classification; and,
P. 6 - Birchwood Consent Judgment
91
(2) Fausett will include in its application a
provision, and hereby convenants, that the North 25 feet of
TRACT II shall be treated as a buffer zone. If TRACT II is
rezoned "0 -3 ", and prior to the construction of any building
on TRACT II, Fausett will construct a wooden privacy fence
six (61 ) feet in height on and along the North line of said
TRACT II, with the finished side of said fence facing North.
Following consultation with the Committee, by way of the
Agent, 'Fausett will clear and maintain said 25' free and
clear of debris and undergrowth, and will, upon the
commencement of construction of said TRACT II, deposit
$2,000 in an Escrow Fund which may be,used by the Committee
for planting trees and shrubs, the type and species of which
must be native to the area, or be mutually agreed to by the
Committee and Fausett; said $2,000.00 shall be credited
against the $10,000.00 required to be deposited in
subparagraph 4(B)6. Further, any portion of the $2,000.00
not used on TRACT II Buffer Zone shall be available for use
by the Committee on the TRACT I Buffer Zone, if TRACT I is
developed pursuant to paragraph 4(B); otherwise, any portion
of the '$2,000.00 remaining unspent after one year from
completion of a building on TRACT II shall be refunded to
the depositor thereof.
(3) If TRACT II is rezoned "0 -3 ", Fausett will not
seek any height or setback variances on TRACT II; provided,
however, Fausett may consider the Buffer Zone on TRACT II as
comprising 25' of any setback requirement imposed by the
City of Little Rock.
(D) Those Plaintiffs who are natural persons shall comprise
the original Plaintiffs' Committee to serve in such capacity
until the election of their successors. This Committee is
charged with the responsibility to consult, through its Agent,
with Fausett and shall be entitled to exercise its discretion to
P. 7 - Birchwood Consent Judgment 10
the extent herein provided with respect to the buffer zones,
planting fund and any other authority granted herein. The
initial Agent shall be Bob Boyd, who shall serve in such capacity
until his successor 'is duly appointed. Any and all notices
required herein shall be in writing and shall be deemed to have
been duly given if mailed by registered or certified mail, return
receipt requested to the addressee shown below:
Mr. Bob Boyd
513 Springwood Drive
Little Rock, AR 72211
CM
Mr. Ed Willis
Fausett Development Company
2 Financial Centre
Financial'Centre Parkway
Little Rock, AR 72211
Provided, further, Plaintiffs agree to adopt appropriate
By -laws and Rules governing the Committee's actions, the filling
of vacancies thereon, and the appointment of an Agent thereof.
(E) The terms, provision, conditions and covenants
reflected herein shall be binding upon and inure to the benefit
of any and all successors, assigns, heirs and representatives of
the parties hereto and shall run with the land; which said terms,
and provisions shall be covenants, running with the land;
provided, however, any and all restrictions, covenants and
agreements contained herein shall become null and void on the
earlier of the 20th anniversary date hereof, or the change from
residential to commercial or business character of more than 508
of the real property comprising that portion of Birchwood
Addition and Cunningham's Replat within 200' of TRACT I and TRACT
II.
(F) The parties hereto acknowledge that each has authorized
its attorney to enter into this settlement agreement as evidenced
by said attorneys' signatures of approval at the conclusion
hereof. Further, the parties hereto acknowledge that Fausett has
a vested property interest in the height variance which is the
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P. 8 - Birchwood Consent Judgment
subject of this suit and, consequently, that each party hereto
will do any and all things and acts necessary to effectuate this
consent judgment and the settlement agreement reflected herein.
IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED AND
ADJUDGED, that the parties' Settlement Agreement as hereinabove set
forth, be and the same hereby is approved by the Court and made a part
of this Court's Order and Judgment, subject to enforcement by the
contempt powers of._ this Court and for damages for breach, and that the
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Plaintiffs' Complaint be and the same is hereby dismissed with
prejudice, each party to bear its own costs and attorneys' fees.
CIRCUIT JUDGE
I DATE:
APPROVED:
HENRY & DUCKETT
ATTORNEYS FOR PLAINTTIFFS // 'l
BY � L,J / /D
DAVID P. HENRY
HAL JOSEPH KEMP, P.A.
ATTORNEY FOR FAUSETT DEVELOPMENT COMPANY
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LITTLE ROCK CITY ATTORNEY'S OFFICE
ATTORNEY FOR BOARD OF ZONING ADJUSTMENT
OF THE CITY OF LITTLE ROCK
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BY
R. JACK MAGRUDER III
HOUSE, WALLACE & JEWELL
ATTORNEYS FOR INTERVENOR
BY , /^
OB ROBERTSON