Sidewalks: Who is responsible?

Sidewalks consumed discussions of city planners at both a special tech review meeting Thursday, Feb. 25, and at the regular Planning Commission meeting Tuesday, March 1. It has long been a requirement in the city’s code for developers to either build sidewalks or place a bond in lieu of sidewalks anticipating builders to construct the sidewalks, but planners admit that requirement has not been adhered to.

“The way the ordinance currently reads, the developer has to install or give a bond,” Zachary Hoyt, chairman, told developer Kevin Felgenhauer, when he submitted the final plat of Summit Meadows, phase 3, Tuesday.

“The builder usually does the sidewalks,” Felgenhauer said. “That’s where I’m confused.”

Felgenhauer asked who is responsible when he has sold several lots and requires each builder to install a sidewalk. City attorney Howard Slinkard advised the developer require the sidewalk of the builder and “release that portion of the bond to the builder once that portion of the sidewalk goes in.” Slinkard said each builder should assume the responsibility for the sidewalk on their portion of the subdivision.

“Most builders aren’t going to go for this,” Felgenhauer said. “I want to cooperate.”

Developer Franklin Miller, who is currently building a subdivision on the south side of Slack Street, asked: “Is there a time limit on when sidewalk needs to be built?”

“The whole idea is to get the sidewalks built,” Slinkard said. “That’s a good question if you’ve

got a subdivision that doesn’t get built out for 10 years.”

Felgenhauer agreed to put up a bond for the sidewalks in his subdivision. The final plat for Summit Meadows, Phase 3, was approved contingent upon current zoning and receiving the bond or cashier’s check for sidewalks.

During a special tech review meeting on Thursday, Feb. 25, when planners met to review city planning ordinances, one issue discussed was who should build the sidewalks. If the developer builds them, there is a possibility of the sidewalks being damaged when houses, along with driveways, are constructed. If the builder installs sidewalks when a house is constructed, then there could be intermittent sidewalks in front of houses, but with no sidewalks on empty lots.

At the committee meeting, Hoyt said he usually hears of builders installing sidewalks, but he learned that Rogers and Bentonville have the developers put in the sidewalks.

“Why don’t you make the developer put in all the sidewalks?” Gary Tuszynski, street employee, said. “Then if they get broken during the building process, it’s the builder’s responsibility.”

“The developer in our ordinance is responsible for sidewalks,” Tony Townsend, building official, said. “We just haven’t been enforcing it. Actually, it says the developer will put up a bond.” Townsend recalled a particular subdivision for which the developer put up a bond, then both the developer and the bank issuing the letter of credit for the bond went bankrupt.

That particular subdivision, Creekside, became the subject of a request before the Planning Commission Tuesday. Four men who have built or are building houses there appeared before the council asking for a variance on the requirement to put in sidewalks.

Ross Allen, Marvin Binam, Keith Martin and Rick Neal asked city officials for a variance to not build sidewalks in Creekside. Each said their lots are larger than most lots in the city and a couple of them own multiple lots.

Slinkard said a variance would not be appropriate, but a waiver would. City planners are not allowed to consider financial considerations in either approving or denying a variance.

City code allows a waiver for conditions “where sidewalks are not deemed necessary for public safety or where topographical or other conditions make their installation and use impractical; and where no public benefit results from the installation of sidewalks” among other conditions. Planners said that typically a developer asks for the waiver, not the lot or home owner.

Allen told planners his lot has a 45-degree slope into a flood plane.

Creekside is 10 to 12 years old, Martin said. Townsend said it was developed in about 2006.

Neal said: “This is a subdivision with no sewer and no gas, so city utilities are very minimal in this situation.”

“This is not a developer, it’s homeowners,” Dr. Karen Sherman, planner, said. “So, it’s a different request than what we were dealing with before.”

“Based on the first and last of the criteria for a waiver, and on their testimony … it’s an unusual subdivision terrain and not comparable to the other subdivisions, I believer a waiver should be granted,” planner M.J. Hensley said in making a motion.

Miller requested a special Planning Commission meeting for 7 p.m. Thursday, March 17, to present the final plat for Elkhorn subdivision. Planners agreed.

In other business, planners:

• Approved a conditional use for beer and wine sales for private club/Victoria’s restaurant, Lee Town Road;

• Approved rezoning 2.6 acres at 744 E. Pickens Rd., from agricultural to residential;

• Tabled a home occupation request for 951 Bowen St., as there was no one present to submit the request; and

• Welcomed Chris Johnson as the newest member of the Planning Commission.