Bella Vista votes to litigate water issue

BELLA VISTA — The City Council voted to allow legal action against the Bella Vista Property Owners Association to secure access to water for fire suppression in a planned public safety building during a Tuesday special meeting.

Council members Steve Bourke and Doug Fowler voted against the proposal, while council members Jerry Snow, John Flynn, Jim Wozniak and Larry Wilms voted in favor.

The building, which will house the city’s police, dispatch and court facility, sits adjacent to the Street Department building on Forest Hills Boulevard and will require sprinklers because it has detention spaces, staff attorney Jason Kelley said previously.

The building is outside the Property Owners Association’s water service area.

This structure was planned with the understanding Cooper Communities, which has authority to determine whether the association water system may be extended outside its jurisdiction, would permit the POA to provide water for fire suppression, while day-to-day water would be supplied by a Centerton water line, Kelley said.

The city is working to secure water from Cooper Communities via eminent domain, as approved by the City Council during its May meeting.

While that will allow the city to secure the rights to use the water, the city still needs to ensure water is supplied by the association, Kelley said.

“I wanted that to be locked in,” he said.

While city staff drafted a memorandum of understanding and reached a consensus with association staff to ensure the water supply, Kelley said the POA’s board voted it down during a closed session Thursday.

“It does us no good to sue Cooper Communities if the POA will not commit,” he said.

The potential litigation is to ensure that commitment, he said.

Assuming eminent domain proceedings become necessary, state law would allow the city to immediately access the water supply and begin its construction of 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 the 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’s possible, he said, the city could litigate afterward to recoup some of the 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 the 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 the 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 said the city will approach exactly the same as it would any other rezoning application.

Wozniak said he doesn’t expect any progress if the city doesn’t go forward with the action. 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.

Bourke, who voted against legal action, said he doesn’t believe it’s the best option.

He was concerned, he said, it could drag out the process and sour relations with two of the city’s potential partners — although he added 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 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 before taking the issue to the voters, Kelley said.

Cooper Communities 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.