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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 2- 7 a_i/ M • IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION i 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: i _s_____ 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. F 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 e r re r■ r■ �r r r r r� � ■■� r r■i r r 11 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 I , 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 M LITTLE ROCK CITY ATTORNEY'S OFFICE ATTORNEY FOR BOARD OF ZONING ADJUSTMENT OF THE CITY OF LITTLE ROCK i BY R. JACK MAGRUDER III HOUSE, WALLACE & JEWELL ATTORNEYS FOR INTERVENOR BY , /^ OB ROBERTSON