Some Fort Smith residents have filed an appeal with the Sebastian County Circuit Court to overturn the Board of Directors’ decision to allow development of a Casey’s General Store at South 46th Street and Rogers Avenue.

The appeal, obtained by the Times Record, was dated Jan. 2, 2019, and was submitted by John Alford, a local attorney representing property owners in the area. It’s being brought against the city of Fort Smith and St. Scholastica Monastery.

Points of appeal include, but are not limited to, the city not following policies by not seeking an amendment of the Fort Smith comprehensive plan, failing to hold a public meeting “in lieu of a neighborhood meeting which was not held by inviting the neighborhood most affected,” failing to notify all residents within 300 feet of the proposed rezoning. The rezoning should also be considered “spot zoning,” the appeal claims.

Spot zoning is when a small piece of land is zoned differently than the neighboring property. Aside from a spot zoning exception for a school or park, which are considered useful to residents, most instances are usually inconsistent with a city’s master plan and zoning requirements.

The property in question was approved to be rezoned to C-2, the lowest commercial zoning for a convenience store with gasoline sales, but the majority of the surrounding land is zoned for various residential purposes.

The petitioners believe their properties will suffer a substantial value decrease if ordinance 95-18 is approved, which it claims was not considered by the board as required by the city’s comprehensive plan and unified development ordinance (UDO).

According to the filing, the group wants the court to reverse the approval, declare the ordinance nullified due to the city not following proper procedure, declare the ordinance as spot zoning void under state law, declare a right to due process has “been infringe by the city of Fort Smith failing to adhere” to its procedure.

The group also wants a declaration their property values will decrease if the city is not required to follow the comprehensive plan and UDO requirements.

‘The location is inappropriate’

Bill Priakos, homeowner at Free Ferry Heights and petitioner, said the city has been notified of the appeal. A cover letter was presented to City Administrator Carl Geffken, Mayor George McGill, Director of Development and Planning Wally Bailey and building official Jimmie Deer.

“(Geffken) was very sympathetic, but he didn’t offer any solution to the situation,” Priakos said. “I think at this point, we’re at the mercy of the courts to see what the next steps are.”

When the ordinance was presented to the board in November, it passed 4-3. Without achieving the required five votes for suspension of the rules, the board had to read the ordinance two additional times.

A concern from directors in favor of the development was the rejection would be “sending a message” that the city wants to make it difficult for developers.

Former At-large Director Tracy Pennartz said she was pro-business during her term and there could be other reasons to vote against the ordinance.

“Most of the people who originally got together and opposed this are all businessmen,” Priakos said, sharing a similar sentiment. “To say we are anti-business is ludicrous. We just think the location is inappropriate.”

On the adjacent corner across South 46th Street is a Citgo gas station. Several homeowners discussed the traffic flow issues that already occur, though Morrison-Shipley Engineers stated this is not a significant concern. It looked at the peak morning hours and peak evening hours one time each for its traffic study.

Concerns were raised about the environmental impact of rerouting a drainage creek on the property, potentially displacing federally protected Canada geese and the chemical spill risk. Any runoff would lead to a small lake in front of apartments across South 46th Street and into other areas such as the Stonebridge Commons neighborhood and Arkansas River.

An environmentalist previously told Alford the developers may need a permit from the U.S. Army Corps of Engineers.

Caleb Osborne, associate director of the Office of Water Quality at the Arkansas Department of Environmental Quality, wrote Priakos at the beginning of the month that coverage from a short term activity authorization for any in-stream construction activity may need to be acquired. Osborne noted his office has not received any applications but said the information provided by Priakos would be helpful “if/when we do receive such an application.”

Priakos told the Times Record on Thursday the neighbors are not against Casey’s opening another store but believes the empty lot at South Waldron Road and Rogers Avenue would be a better location. The intersection has better ingress and egress, and the traffic would provide for more customers than the current location.

Many residents in the area have committed to helping St. Scholastica fundraise or look for financial opportunities to help the sisters, Priakos said.

“The monastery is an iconic landmark for this city and the grounds surrounding it are truly sacred,” Priakos said. “What better way to preserve this for all time than to keep this last bit of green at the center of Fort Smith?”

The Times Record reached out to Alford’s office for information on the next steps if a judge rules in favor of the petitioners. He did not return request for comment by 5 p.m. Thursday.