Legal challenges continue related to Chaffee Crossing land use conflict

by Tina Alvey Dale ([email protected]) 1,470 views 

Land use changes in the Chaffee Crossing historic district are once again questioned as a lawsuit is refiled in Sebastian County Circuit Court.

An amended and substituted complaint was filed April 20 against the Fort Chaffee Redevelopment Authority concerning a land use change plaintiffs say will harm the walk and shop concept of the historic are presented in the FCRA’s master plan.

An original lawsuit was filed May 17 in Sebastian County Circuit Court by Quentin Willard with Fort Smith Brewing Co.; Randy and Tina DeCanter with Old Fort Furniture; John Coats with JKC Cellars LLC and KRIJO Investments; Tasha and Alan Taylor with Truckin Delicious; and Micah Spahn with Fort Smith Brewing Co.

On April 18, 2010, 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 changed the area south of Darby Avenue in the historic area but left the area north of Darby as mixed use: historic.

The lawsuit alleged that the land use change should be deemed invalid because it was of a violation of due process, the land use change was 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.”

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 Nov. 14 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.” 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.

Nathan Mendenhall, attorney for the plaintiff’s in the lawsuit, filed a notice of appeal in December. Mendenhall said at the time plaintiffs would either refile the lawsuit, appeal it or file a motion to reconsider with the Sebastian County Circuit Court. The plaintiffs did not complete their appeal after 120 days, and the appeal was deemed dismissed on March 17. One month later, they refiled the case in circuit court, which was allowed since the first case was dismissed without prejudice to its refiling.

This time around, the plaintiffs have changed. The amended and substituted complaint was filed by John and Christina Coats with JKC Cellars, Randy and Tina DeCanter with Old Fort Furniture, Paul Van Lare with GrowFresh, Kraig Koren with Premier Heating and Air and DeCanter Family Revocable Trust are listed as the plaintiffs with Keith Munro on behalf of a class of similar Arkansas taxpayers. Willard, Spahn and the Taylors with Truckin Delicious are no longer a part of the suit, while Lare, Koren and Munro have joined.

The amended complaint states that “between 2010 (when the Master Plan was adopted) and 2018, the FCRA had sold property in the Mixed Use: Historic area, and redevelopment of the Historic Area Node pursuant to the land use plan was well underway with renovation/remodeling/construction efforts for several buildings being already complete and having fully-functioning commercial businesses operating within them. And while the land use plan was seemingly moving forward as designed by the civil engineers, something lie in wait for those property owners who felt secure in the investments based on the Master Plan and conformed Master Use: Historic land use classification.”

The Historic Area Node is listed as the area of Chaffee Crossing Historic Area bound by Ellis Street, Ward Avenue, Taylor Avenue and Roberts Avenue and split in two portions by Darby Avenue. The complaint states according to the master plan, this area is to be made up with residential at 35%; office, 25%; institutional, 25%; and commercial, 15%. There is no allotment for industrial use, the complaint said.

The lawsuit notes, “Unbeknownst to the plaintiffs, while they and others not party to the lawsuit purchased and developed property for uses conforming to the Mixed Use: Historic land use classification, the FCRA approved sale of, and conveyance by deed for, Historic Area real property with the subject area” to Blake Properties, CBC Construction and Development and Beam Properties for nonconforming use.

The complaint says the plaintiffs’ rights were breached when the master plan was amended to change the land use classification south of Darby Avenue.

“FCRA is aware of the new complaint filed related to the Chaffee Crossing Historic District area. Because this is now a legal matter, we will not specifically address the claims. We will continue to rely on the court, respect the legal process, and are confident we will have the same outcome as with the initial lawsuit,” said Daniel Mann, FCRA executive director and CEO.

As for Blake Properties and Beam Properties, both are “not zoned” as are a lot of properties in the warehouse district of Chaffee Crossing, said Dalton Person, lawyer for FCRA. While FCRA has control over the land use guidelines in that area, the City of Fort Smith has control over zoning.

When both property owners went to the planning commission with Planned Zoning District (PZD) applications in order to get their properties zoned — which is required for constructing improvements thereon, the PZD applications were approved.

Then the Fort Smith Board of Directors on March 3 voted down both requests by a vote of four to two with detractors pointing to the legal battle surrounding zoning in the area as a reason to not approve changes at the time. At the time of the vote, two of the directors voting against the requests raised questions as to what would happen if the city approved the changes and then the court decided in favor of the plaintiffs in the lawsuit. City Attorney Jerry Canfield said one possibility could be that a lawsuit could be filed against the city in the matter.

After the board voted against their PZD applications, Beam and Blake appealed the decisions to Sebastian County Circuit Court, both filing separate appeals April 2.

“It is important to note that these two lawsuits do not involve the FCRA. While the FCRA spoke on behalf of Beam and Blake before the planning commission and City of Fort Smith, it is not responsible for the Board of Directors’ decision. Beam and Blake’s proposed land uses are in conformity with the FCRA’s guidelines. That is why their appeals to circuit court involve only the City of Fort Smith as the Defendant based on the City Board of Directors’ decision,” Person said.

Both appeals state that there is no ordinance or other authority granted to the city of Fort Smith Board of Directors that would permit the board to deny a “properly presented” application for rezoning and petition to amend zoning map that meets the Fort Smith Unified Development Ordinance (UDO). It also states that the vote was arbitrary, capricious and irrational and was not swayed by reason or the UDO but by a lawsuit that would not affect the city.