Lawsuit threat noted with sex biz zoning change

The Fort Smith Board of Directors appear unfazed by an $800,000 judgment against its restrictive zoning policies on sexually oriented businesses, which occurred in the late 1990's.

It was at that time, according to City Administrator Ray Gosack, that the now defunct Regina's House of Dolls sued the city for lost revenue as a result of zoning rules that were too restrictive.

At the board's Tuesday (May 8) study session, City Director Pam Weber made a motion that Fort Smith decrease its allowable area for sexually oriented businesses by moving the allowed distance to residential areas from 500 to 1,000 feet, matching current rules for the distance such businesses share between schools and churches.

Director Hutchings seconded the motion and was joined by Directors Merry and Good in support, though Good’s endorsement seemed shaky following a comment from Gosack that sexually oriented businesses did not have to go through the Planning Commission as long as they “met all the requirements of the ordinances that pertain to them.”

“In that case, I would have to agree (with Weber). But what I don’t want to get in to is the possibility of the city trying to police certain businesses and keep them out while opening ourselves up to lawsuits,” Good said.

Should the new motion succeed when it comes before the board on May 15, Fort Smith's allowed zoning for sexually oriented businesses would move from an already questionable 2% to 1.7%, a number Gosack admits could open the city up to further litigation, such as the kind experienced in the Regina's case.

A recent memorandum from Fort Smith Director of Development Services Wally Bailey submitted to the board verifies Gosack’s admission.

“When compared to decisions made by the courts it appears the current percentage of land available is not adequate. … With this analysis, it is apparent we need to address the issue of adequate available land so that the courts would favorably view our ordinance,” the memorandum reads.

One of Bailey’s suggestions is to “allow sexually oriented businesses in Commercial-4, Commercial-5, and Industrial Light Zoning districts,” he told board members on Tuesday. Doing so would move adequate available land to 16%.

Another option, Bailey noted, would be to allow such businesses Industrial Light Zoning only, moving adequate available land to 15%.

Director Steve Tyler was reluctant to support numbers that high, but he told board members, “We should get out in front of this thing and find some middle ground between 2% and 15% to avoid a lawsuit.”

And despite Gosack’s admission to The City Wire that “no one has shown interest in opening a (sexually oriented) business at this time,” the Administrator does note that legal precedent would not favor reducing the available land any further.

Along with the judgment leveled against Fort Smith in the Regina’s case, the lowest accepted number for adequate available land for sexually oriented businesses is at 5% (City of Renton vs. Playtime Theaters Inc.), making litigation an undesirable option should any future case be leveled against the city.

For Director Hutchings, however, there is a bigger issue.

“These institutions cause increased crime and decreased property values,” Hutchings said. “We’re hung up on this 5% number. But are we going to let one case dictate what we do with our city?”

Director Merry agreed: “I like the idea of going to 1,000 feet myself, and then dealing with anyone in the future as the case presents itself.”

PAPERLESS PUSH
Also Tuesday, the board voiced its approval of a city plan to abandon paperless packets at board meetings in favor of a new electronic distribution system.

According to City Clerk Sherri Gard, annual costs for preparing paper packets run $13,125. Additionally, Fort Smith Police Chief Kevin Lindsey’s department incurs $1,431 per year in personnel and fuel expenses associated with delivery of the documents for an overall total of $14,556 annually.

Under the new electronic distribution system, the city will issue the Apple iPad 3 to each elected official (at the $499 Wi-Fi only option) and “necessary administrative staff,” Gard said.

Paper packets will still be available through the July 3 board meeting as the city works to ensure “parallel adoption,” Gosack said, in order to address any issues that may arise with regard to training or technical difficulties.

Board members are allowed to opt out if they already own an iPad 3 or related device capable of accessing the PDF board packets from the city’s website.

The next regularly scheduled board meeting will take place May 15.