Fort Smith Board again tables military overlay district; attorney notes ‘due process’ concerns

A Fort Smith attorney suggests that a legal battle could result if the city continues down the path of adopting a military overlay district without addressing “due process” and property use concerns with property owners.

The Fort Smith Board of Directors on Tuesday (June 4) again tabled what has been a controversial military overlay district that city officials say is needed to support the foreign pilot training center at Ebbing Air National Guard Base. The board did, however, hear citizen comments. The issue was tabled a second time as a courtesy to Director Jarred Rego who was not able to attend Tuesday’s meeting.

The proposed “Military Compatibility Area Overlay District” was developed by the city to “protect public health, safety, and welfare of the community and preserve and maintain existing and future operational capabilities of the Fort Smith Regional Airport/Ebbing Air National Guard Base.”

“The MCAOD outer boundary is the entirety of the city limits and extraterritorial jurisdiction; however, only certain portions of the city have regulations. There are three military compatibility areas: Lighting MCA, Noise MCA and Security MCA,” noted a memo from Maggie Rice, director of development services for the city.

The Fort Smith Planning Commission voted four to three against creation of the district on May 14.

“I have major issues with several components of this,” Planning Commission Chair Don Keesee said before the May 14 vote. “I think the city is trying to do some right things, but I think they are struggling to maybe find the right things.”

Though neither the military nor the federal government has specifically requested the city do so, the city hired Matrix Design Group for $210,000 in 2022 to help to draft the document, which City Administrator Carl Geffken said was done in order to make the city more attractive to the Air Force for the Foreign Military Sales Program.

Ebbing, home to the 188th Wing in Fort Smith and co-located with the Fort Smith Regional Airport, was selected in March 2023 by the U.S. Air Force to be the long-term pilot training center supporting F-16 and F-35 fighter planes purchased by Singapore, Switzerland, Poland, Germany, Finland and other countries participating in the Foreign Military Sales (FMS) program. Initial estimates are that 1,500 military personnel and family members will be associated with the new center once it is fully operational.

DISTRICT DETAILS
In the proposed overlay district, the city set out a proposed set of guidelines dealing with lighting in areas near the airport, sound reduction requirements in new construction in the area included in the overlay and height restrictions on new construction on property connecting to airport property.

For property physically contiguous to the airport, there are more stringent guidelines proposed for new construction that include a maximum height of 35 feet above the established airfield elevation and a 30-foot buffer between buildings and the airport property.

Also, any property to be sold to a foreign entity, defined as any non-U.S. owned entity, would require approval by the Fort Smith Board of Directors.

Director Kevin Settle asked if the board would need to approve if the property were rented to a foreign entity. Maggie Rice, director of planning and zoning for the city, said she did not think the city would be able to determine the property were rented unless the renters needed a building permit of some type.

‘CONCERNING ISSUES’
Attorney John Alford, speaking Tuesday on behalf of property-owning clients, said the district as presented has “very concerning issues” that impact a lot of landowners and investors. He said property owners are not being granted due process, especially with respect to what can be significant property use restrictions applied in the proposed overlay district.

“This impacts a lot of business owners, land owners, investors in our city, and I don’t think they’re being taken into account with the adoption of these regulations,” Alford told the board.

Alford also said he submitted Freedom of Information Act (FOIA) requests to the city and military about the process “and basically got no communications with the city and the federal government” as to whether the district was even a requirement for the military base. Talk Business & Politics submitted similar requests and eventually learned that the military has not asked for any of the provisions in the proposed military overlay district.

“I’ve never received a good answer as to why the entire city of Fort Smith is in the overlay district. It concerns me, because it makes it easier, I think, for other regulations to be adopted,” Alford said, wrapping up his comments before the board.

Alford later told Talk Business & Politics that legal action is not out of the question.

“We’ve not gotten that far in those (conversations with clients), but some of my clients are strong enough to take them to court,” he said.