Developers: Ease up on Easements

Developers in Northwest Arkansas are having a difficult time finding the ease in easement.

Some developers claim they are having to fork over valuable land to their cities without just compensation, strictly prohibited in the Fifth Amendment to the United States Constitution.

City officials obviously claim otherwise.

The Fifth Amendment states “… nor shall private property be taken for public use, without just compensation.”

Fayetteville Mayor Dan Coody, a former developer himself, said his city doesn’t “just run around taking land without compensation” from anyone.

“If we have to take land, we have to have it appraised and get an appraised value for it,” Coody said. “Now, every situation is different. When I did my subdivision I had to dedicate two out of eight acres for private green space. I also had to pay a parks fee for every lot I developed. I felt like I was hit twice. But I got advantages from that, too.

“If people think we widen roads and take their land without paying for it, well, that’s just not the case at all.”

But some local developers say the only compensation they often receive is the promise of getting a large-scale development passed.

Arkansas state law authorizes cities to require developers to build improvements such as streets, curbs, sidewalks, street lights, water, storm and sewer mains, and landscaping.

Fayetteville City Attorney Kit Williams said the city’s infrastructure is protected by the Arkansas state law. But, Williams said he also proposed — and the Fayetteville City Council adopted — a procedure that allows developers to appeal to the planning commission if they feel [the city is demanding too much from the development].

Williams cited United States Supreme Court Justice Antonin Scalia’s view on easements and rights-of-way. Scalia, in the 1998 case of Pennell v. City of San Jose, wrote “The common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property would otherwise be the cause of excessive congestion.”

But a number of builders and investors told the Northwest Arkansas Business Journal that they are basically bribed into giving up easement land, saying cities allow their large-scale development plans to be passed through planning commissions only on the condition that they give up road frontage land.

In the case of Jones Insurance Trust v. City of Fort Smith in 1990, the Western Federal District Court of Arkansas reasoned “… that the condition which the city wishes to impose the granting of the building permit in this case would be constitutional if the condition at issue … is reasonably related to the public need or burden that [the plaintiff’s new construction] creates or to which it contributes.”

Patsy Christie, director of planning and community development with the Springdale Planning Commission, said her town adopted a master street plan and when a development occurs, the street adjacent to it must be brought up to that plan. The plan went through a public hearing process.

Christie said when the city initiates such a project, the city then determines which rights-of-way and easements are needed to be acquired and what fair market value for just compensation each property owner deserves.

“This is standard procedure,” Christie said. “All developers have to go that same route. It’s not an issue [in Springdale]. We all understand that’s how the procedure works.”

Springdale seems to have fewer conflicts with its developers and city officials than its Washington County neighbor Fayetteville and the Benton County cities of Lowell, Rogers, Bentonville and Siloam Springs.

Fayetteville’s Coody is still being labeled as an anti-business mayor after he defeated incumbent Fred Hanna, who was considered pro-business. Among those in Coody’s corner during the campaign were Mary Lightheart and friends of the Kohl’s tree-sitting saga during the summer of 2000.

“It’s been an interesting turn of events,” Coody said. “People are telling me that Fayetteville is the easiest town to develop in now. I think what’s happened is our sister cities to the north of us are experiencing the same pains we’ve had for a while. Basically, they’re catching up with where Fayetteville has been. They’ve started to understand what has made Fayetteville do what it had to do.”

Coody pointed to Target, the Olive Garden restaurant and other national chains that continue moving into Fayetteville and dismissed the notion that his city causes more hassle than many businesses care to deal with.

“Sure, we have a complicated process,” Coody said. “But you’re led through the process, and we’ve cut down on the turnaround time. The perception will eventually change. Fayetteville is not an unpleasant place to do business.”

Coody was once involved in a very visible debate with developer Ben Israel, but Israel’s Dixie Development has played a major role in the commercial development along East Joyce Boulevard and he and Coody have since ended their public bickering.

Nevertheless, Israel was less than thrilled when the city told him in order to get one of his Joyce Boulevard plans approved he would have to give 12-by- 450-foot strip of property to the city. He also had to give 55 feet deep in the back of the land for trees, which Israel said is a “whole different story.”

“They sure didn’t reimburse me a dime,” Israel said.