Fort Smith Board to hear appeal of split zoning vote

The city of Fort Smith's system of checks and balances will be put to work tomorrow night (Aug. 6) as the Board of Directors hear an appeal to the city's planning commission during their regularly scheduled meeting.

At issue is denial of a conditional use request for an auto and vehicle impoundment and holding yard located at 1302 S. Zero St. The planning commission had a tie vote of 4-4 on the request at its June 17 meeting, with commissioners Brandon Cox, Thomas Howard, Richard Spearman and Don Keesee voting no. (There is a vacant seat on the commission due to the recent resignation of John Huffman.) Voting for the conditional request were Robert Cooper Jr., Vicki Newton, Jennifer Parks, and Marshall Sharpe.

According to a memo from the city's planning department, the land is zoned as "commercial heavy (C-5)," which can consist of the following uses – general commercial, office, research and light industrial, mixed use residential and mixed use employment.

Josh Niles, the owner of Absolute Towing and Recovery, said his request was denied due to biases on the commission.

"It was for multiple reasons. But the whole deal is they just didn't want us there," he said.

The planning commission had said Niles would likely have been able to move his company from its location on Jenny Lind to the new location on Zero Street had he met the following conditions, according to a memo from Chairman Marshall Sharpe of the planning commission:
• All construction must be built in accordance with the submitted development plan and with any Planning Commission amendments;
• The proposed fence gate at the driveway entrance shall be offset from the street to avoid vehicles stopping/standing within the street right-of-way;
• Fences placed at or in proximity to the right-of-way line must not create a sight obstruction for vehicles exiting the site;
• The proposed fence shall be a six (6) foot privacy fence constructed out of cedar and maintained;
• All site lighting shall comply with the lighting requirements of the UDO (Unified Development Ordinance) – Section 27-602-5;
• All signage shall comply with the UDO General Sign Regulations and Permitted signs in open, commercial and industrial zones – Section 27-704-5 and Section 27-704-3;
• Landscaping shall be required and maintained in accordance with the UDO along the Zero Street frontage; and
• Removal of all broken plastic sign pieces.

Niles said some of the demands were beyond his control.

"They wanted me to take down a sign at 1304, which was on property not even associated with (what came before the commission). Why take down a sign at 1304 when it has nothing to do with 1302? And the whole landscaping thing, I said I didn't think it was necessary. I didn't say I wouldn't do it."

Wally Bailey, director of city planning, said the reason the signs were brought up is because Niles plans to run his business from the adjoining property. He said what was asked of Niles by the commission shouldn't be that difficult to comply with.

"Put in a little landscaping, (take care of) the old sign that is on the property where his office will be. I don't know why he wasn't willing to make any concession to meet them halfway."

Niles said the commission is simply trying to make it impossible for him to relocate his business from a residential area to an industrial area.

"They are just trying to make this harder and harder and harder. I was already putting in $10,000 for the fence, but they wanted to put up every obstacle so I couldn't get there. Every business that's there (near 1302 South Zero Street) has deep pockets and just because I don't have deep pockets, they don't want me there. The zoning lets a wrecker service be there. If it allows me to be there and it doesn't hurt the city, so why shouldn't I be there?"

City Administrator Ray Gosack said it was rare to have an appeal come before the Board, adding that it has been at least two years since the last appeal came before the city's directors.

"They're usually supportive of the planning commission, but not always," he said.

He said the Board would be looking for very specific causes to overturn the commission's decision.

"The things they'll look for is is this use consistent with other development in the area and what special conditions, if any, would need to be placed on this development to make it compatible (with the area)," Gosack said.

The city's planning department will have a chance to make their presentation affirming the commission's tied vote while Niles will also be given a chance to speak, Gosack said. Members the public will be able to speak, as well, before the Board discusses and votes on the appeal.

Bailey said he was confident the decision made by the commission on June 17 was the right one.

"There have been some things in the past that I've not felt comfortable with, but I feel comfortable with what the commission has done based on what I just told you. I've got a feeling it's a conditional use issue. It's up to them (the Board) if it's right for the location or not right for the location."

Niles said if the Board does not rule in his favor, he is ready to take it to the courts.

"If they do not rule in my favor, I have every intention to litigate. I will take it to court," he said. "I am confident we can win our case. Once again, the city state's that my business, they state that it can be there (based on current zoning). There's nothing that states I can't be there except four (commission) members who don't want me there. It's ridiculous."