Williams: City must follow code
Posted on Saturday, September 27, 2008
Common sense is not the answer in the question of a decision on SouthPass, according to City Attorney Kit Williams.
Neither should "unsanctioned economic or past performance tests"be substituted for the approval / rejection criteria in the City Code, Williams wrote in a strongly-worded memo to the City Council and mayor.
"The Arkansas Supreme Court has repeatedly ruled such substitution illegal," Williams wrote.
He noted that there have been public calls for the council "to substitute common sense or new and unsanctioned economic or past performance tests for the criteria in the city's Unified Development Code.
SouthPass, an approximately 900-acre proposed customized zoning district that would bring a 200-acre regional park and about 4, 000 residences into Fayetteville over the next 25 years, has been the recent topic of council meetings, candidate debates, letters to the editor and editorials.
In his memo, Williams cited rulings against Little Rock, Fort Smith and the Little Rock Planning Com- mission.
According to the Little Rock ruling he cited, a city does not have to create zoning ordinances or districts, but once it has done so "it must follow the ordinance until it is repealed or altered," he stressed in bold lettering.
The Supreme Court also ruled against Fort Smith when it failed to follow its own ordinances, according to Williams'memo.
Again, in bold letters, Williams quoted the ruling to the council," A legislative body must substantially comply with its own procedural policies."
Williams'call to the council is to follow the Fayetteville City Code which has eight approval / rejection criteria for planned zoning districts.
These are • Compliance with the Unified Development Code and the comprehensive land use plan • Compliance with all statutory provisions • Impact on public facilities and services • Compatibility with surrounding land uses • Suitability for the intended use and surrounding land uses • Traffic congestion or placing a burden on the existing road network • Unified plan; and • Whether any other recognized zoning consideration would be violated in the PZD.
"These criteria do not include a consideration of the developer's previous projects nor any requirement that the developer prove the financial underpinning or anticipated profitability of a project," Williams wrote.
SouthPass developers John Nock and Richard Alexander are also the developers for the unfinished Renaissance Tower.
Williams'"public call"was multi-faceted.
"We have a hole down on College Avenue presented by Nock and his associates. I can't understand how the city would be willing to get into something with him again before the hole is taken care of," said city resident Marian Kunetka at a council meeting about SouthPass.
Mayoral candidates Walt Eilers said the relationship between Renaissance and SouthPass should be an object lesson for the city and "we should learn before we get burned a second time. "Counter to the advice Williams offered in his memo to the council, Eilers said in a debate before the Chamber of Commerce that it is reasonable to ask developers about their financing.
Candidate Steve Clark said in a debate that reputation and success should be part of the measurement in the decision about SouthPass.
An Arkansas Democrat-Gazette editorial also referred to the developer connection between the projects and urged the City Council to apply common sense to its decision.
Ron Bumpass of Fayetteville wrote in a letter to the editor of the Northwest Arkansas Times that he thought it would be a breach of fiduciary duties "as well as a total lack of common sense "not to consider what he called the failure of the Tax Improvement District related to the Renaissance Tower project.
Another letter writer voiced a similar concern. Judi Walker of Fayetteville wrote that she did not think the developers are ready for such a big project. "I think that the city has a right and a responsibility to consider the lack of progress on the current project, the Renaissance hotel, before allowing the new plan to advance," Walker wrote.
"If the City Council ignores its own ordinance and decides to reject a PZD because of what someone believes is just good old'common sense, ' the Arkansas Supreme Court would likely determine the City Council has acted arbitrarily and capriciously," Williams wrote in his memo.
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