Fort Smith Board to change zoning wording in planned Casey’s deal with St. Scholastica

Fort Smith city directors on Tuesday (Jan. 14) opted to change the city’s Unified Development Ordinance rather than seek an appeal in response to a judges’ decision to block what has been a controversial rezoning effort on Rogers Avenue.

The board of directors passed an ordinance in late 2018 to change the zoning on a 1.6-acre parcel of land at 46th Street and Rogers Avenue from RSD-2 (residential single family duplex low/medium) to C-2 (commercial light). The change was needed in order for Casey’s General Store to purchase the land from St. Scholastica Monastery in order to locate their fifth store in Fort Smith.

Residents in the area and lawyer John Alford appealed the board decision of the zoning change in January 2019. They said the city did not give them adequate notice about meetings by the board and the planning commission regarding the change. On Dec. 27, Circuit Judge Gunner Delay agreed with the residents and blocked the zoning change.

“Petitioners asserted that the rezoning was arbitrary, capricious, or without a rational basis because: (1) the City failed to provide certain landowners with notice of the requested zoning change as required by the (Unified Development Order (UDO)); (2) the City failed to consider the pertinent factors set forth in the UDO prior to rezoning the subject property; and (3) the City failed to amended the Comprehensive Plan contemporaneous with the rezoning and amendment to the MLUP map,” stated a letter from Colby Rowe with Daily and Woods, the city’s legal counsel, that was included with meeting documents.

Delay ruled the city is required that because the 1.6 acres is part of a 17.8-acre tract owned by St. Scholastica that all residents within 300 feet of that entire tract had to be notified of the neighborhood meetings and the planning commission meeting prior to the zoning change. Delay also said the UDO requires a change to the city’s Master Use Plan whenever it changes the Comprehensive Plan.

The city has 30 days from Dec. 27 to appeal the decision. The board discussed the benefits of appealing the decision. Directors at Tuesday’ study session questioned whether not appealing the decision would open the door for all future zoning changes to be blocked.

“Do we want a judge to say this is what we have to do,” asked Director Kevin Settle (at large).

In the end, Director Keith Lau (Ward 1) moved that the board change wording in the UDO to specifically the area in question when it comes to notifying residents of zoning changes and to remove all references to the comprehensive plan. He also agreed with City Administrator Carl Geffken that wording should be added to the UDO that the city’s comprehensive plan is purely a planning document.

No one asked that the city appeal.

Because at least two board members requested the changes to the UDO, they will be drafted. The changed document will first go in front of the planning commission. If it passes there, it will go before the board of directors. If it passes there, the change will be official.

After that, the Sisters of St. Scholastica can request the zoning change so they can sell its property to Casey’s. The board was told Tuesday that Casey’s is still interested in purchasing the 1.6-acre tract of land.