Lawsuit dismissed related to ‘Historic Area’ land use at Chaffee Crossing

A lawsuit concerning land use changes in the historic district at Chaffee Crossing was dismissed Thursday (Nov. 14). A lawsuit was filed May 17 in Sebastian County Circuit Court concerning a land use change that plaintiffs said would harm the walk and shop concept of the historic area presented in the Fort Chaffee Redevelopment Authority’s master plan.

The FCRA and its board of trustees filed a motion to dismiss the lawsuit June 21.

On April 18, the FCRA board voted to change land use in part of the “historic warehouse district” to industrial/office. The vote came after weeks of sometimes heated discussion on how to rectify an issue of some properties used in non-conforming ways. The board voted to change the area bounded by Darby Avenue, Taylor Avenue, Roberts Boulevard and Terry Street from mixed use: historic use to industrial/office. This will change the area south of Darby Avenue in the historic area but leave the area north of Darby as mixed use: historic.

The lawsuit states the land use change should be deemed invalid because it was of a violation of due process, the land use change is not shown to be in the public interest but rather was “arbitrary and capricious,” and was for the benefit of specific land owners rather than the public as a whole; and “taking with no public purpose is invalid.” The lawsuit was filed by Randy and Tina DeCanter with Old Fort Furniture; John Coats with JKC Cellars LLC and KRIJO Investments; Tasha and Alan Taylor with Truckin Delicious; Quentin Willard with Fort Smith Brewing Co. and QB Ventures and Micah Spahn with Fort Smith Brewing Co.

The revisions to the land use were needed to accommodate property developed by CBC Construction & Development, Beam Properties and Blake Properties, all of which have industrial warehouses in the area. However, at the same meeting where FCRA approved the land use change, the board approved swapping property with CBC Construction & Development so their warehouse would no longer be in the area in contention. Prior to the land use change, industrial warehouses were of nonconforming use in the specified area. This meant those business could not get approval from the Fort Smith planning and zoning department for any changes or improvements to their property.

During several meetings on the proposed change in land use, property owners who operate with a conforming use in the affected area raised objections to the change. They said changing the land use would harm the historic integrity of the area and not allow it to be a walking, shopping, dining, tourist-drawing and business area. The business owners contend this was the concept they were sold in the area’s master plan and changing the land use will cause property values to fall and keep other businesses from locating to the area.

An order of dismissal issued by Sebastian County Circuit Judge James Cox Thursday stated that the lawsuit “does not allege facts from which the Court could conceivably determine that the FCRA’s land use enactment was arbitrary, capricious or wholly inequitable.”

“When the FCRA ‘takes action in zoning (or land use) classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom in do so,’” the dismissal said, quoting from City of Conway v. Hous. Auth. of Conway. “’There it follows, it follows that the power of the court to review the action of the (FCRA) is limited to determining whether or not such action was arbitrary, capricious, or wholly inequitable.’”

The dismissal said in reviewing FCRA’s land use change, it was presumed that FCRA acted in a reasonable manner, and it was up to the plaintiffs to prove otherwise. It further said the plaintiffs did not show that was the case.

“Plaintiffs’ primary contention is that the land use change was not in accordance with their vision that the area would be a ‘walk and shop — tourist destination.’ Yet the Amended Complaint is void of allegation that the land use change had any effect on Plaintiffs’ ability to use their land as before,” the dismissal said.

Nathan Mendenhall, attorney for the plaintiffs, said they would either refile the lawsuit, appeal it or file a motion to reconsider with the Sebastian County Circuit Court.

“The fight is not over,” Mendenhall said.

The FCRA conducted a marketing campaign advertising the historic district as a walkable community where people will shop, dine and live. That vision was formally adopted by the FCRA as a master plan, Mendenhall said.

“The Fort Chaffee Redevelopment Authority used salesmanship, escorting potential buyers through the Historic Area, filling them full of the future to be and persuading them to join in the development of the area into ‘walk and shop’ community and tourist destination,” Mendenhall said. “Fort Chaffee Redevelopment Authority made representations and commitments to my clients and my clients relied on those representations and commitments when they purchased and improved property in the Chaffee Crossing Historic Area — the right way — in conformity with the Master Plan.”

He said for reasons that have not been stated, FCRA also made contracts and sold property in that same historic area for non-conforming industrial warehouses, which were in violation of that master plan.

“Mistake or not, instead of dealing with their self-created issue regarding a couple of non-conforming properties, they changed an entire section of the Historic Area to Industrial,” Mendenhall said. “We do not agree with the decision of the Court and will exercise every legal avenue to right the wrong suffered by several small businesses just to correct a mistake to benefit two landowners who have other dealings with the Authority. The fight is far from over despite what some others have said.”

Mendenhall said he and his clients have “serious concerns certain landowners out at Chaffee Crossing are being given preferential treatment to the detriment of the public trust, and this lawsuit, which will continue, may just be the tip of the iceberg.”

A request for a Planned Zoning District (PZD) by Steve Dawson for a property in the historic warehouse district at Chaffee Crossing was tabled for 30 days at a Fort Smith planning and zoning meeting Tuesday (Nov. 12). Dawson, who owns a warehouse property on Fort Chaffee Boulevard with his wife Fort Smith City Director Robyn Dawson, was requesting the property be allowed to be used as an event center with parking, a contractor’s shop and a storage yard.

In an interview with Talk Business and Politics regarding alleged conflicts of interest in voting against PZDs requested by property owners in the historic district, Robyn Dawson said perhaps the board of directors should not approve any zoning changes in the area until there is a ruling on the lawsuit.

Robyn Dawson was the lone no vote for PZD requests in the historic district — one Sept. 3 and two Nov. 5 — that do not allow warehouse use for specific property. At the Nov. 5 meeting, Robyn Dawson pointed out to the board that in both requests that night for the change usage of the property in the PZD would not allow for the properties to be used as a warehouse.

“They have taken out the use of warehouse property although there is warehouse property right next to this property (the property at 7600 Fort Chaffee Boulevard),” she said, noting some property owners in the area purchased property with the specific purpose to be used as a warehouse.

“In my opinion the discussion of warehouse does not affect me because we don’t have a warehouse,” Robyn Dawson said, adding that her property is not zoned.

Robyn (Roberta) and Steve Dawson are listed as defendants in the dismissed lawsuit. She, however, said the lawsuit does not affect her, the company or the property at Chaffee Crossing.

“I never thought because I have a property there that I should recuse myself,” she said. “None of the changes voted on affect my property. But there are warehouses out there, and I wanted the board to realize that and to understand that the changes could affect other business.”