The Fort Smith Board of Directors on Tuesday (March 3) voted down zoning change requests in a controversial section of Chaffee Crossing. The area in question is part of legal action, which is what led directors voting against the change to cast their votes as they did.

Two requests for Planned Zoning Districts (PZD) on Ellis Avenue in the historic district of Chaffee Crossing that would have allowed for warehouses and contractor’s storage yards, requested by Rod Blake of Blake Properties and Steve Beam of Beam Properties, were defeated by a vote of four to two during the board’s regular meeting. Director Robyn Dawson abstained from the votes. Directors Kevin Settle and Keith Lau were in favor of the changes while directors Lavon Morton, George Catsavis, Neal Martin and André Good voted against.

“I am nowhere close to being an attorney. I do not feel close to being comfortable at all making a decision about this when there is legal action involved. I cannot move forward with this in good conscience until things are clarified or the lawsuit is settled,” Good said.

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 lawsuit was filed 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, 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. Dawson and her husband, Steve, are named as defendants in the lawsuit.

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 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 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.

The lawsuit was dismissed Nov. 14. Nathan Mendenhall, attorney for the plaintiff’s in the lawsuit, filed a notice of appeal in December. Mendenhall said Tuesday an appellant’s brief will be filed in “the coming days.” Mendenhall addressed the board against the requested PZDs asking the board to put a moratorium on approval of applications for industrial zoning in the subject area until the lawsuit plays out in the courts.

Morton and Good 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.

“I don’t want to leave that bad taste in the people’s mouth because the city is involved in litigation again,” Good said.

Directors Lau and Settle argued that the PZDs had been approved by the planning commission and are in compliance with the current land use of the area.

“We do it all time, change master land use plans… It can change at any time. Things are changing out at Chaffee Crossing,” Settle said.

Settle said the master land use plan in place at the time a former FCRA executive director (Ivy Owen) talked with the business owners is not necessarily the idea of what the FCRA wants for the area now.

Mendenhall said he and the business owners he represents are grateful the city directors took time to understand the underlying issues and used their discretion to protect the public interest.

“What we want the community to know is that the business owners involved were sold more than a vision for a walkable shopping area and tourist destination — they were given a detailed Master Plan and map, drafted at great expense to the citizens of this community. It was not just a former executive director’s pipe dream. They then had to present their development plan to the FCRA, so it could confirm their plan matched the master plan before a purchase was permitted,” he said.

The problem is three “bad real estate contracts” that were not the fault of the purchasers but rather the fault of the FCRA, its exclusive real estate agency or its attorneys that stated the buyer would follow the master plan while in the next paragraph stating the land would be used for something that did not conform with the master plan, Mendenhall said.

“So it was not some unexpected change in the character of the area or some other rational thing that would normally be a proper catalyst to explore a change to a comprehensive land use plan. It was either negligence or intentional acts on the part of the FCRA, its exclusive real estate agency or its counsel, which the FCRA now seeks to cover up instead of doing the right thing to protect those who business owners who relied on the master plan — a much higher public interest for a public trust in my opinion than to protect its own failures in contracting,” Mendenhall said. “The purchasers who received deficient contracts from the FCRA should turn to it for relief and not remain on a path which continues the negative impact on honest business owners who bought property for uses that conformed with the master plan.”