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HomeMy WebLinkAboutmemo City Attorney to Bozynski processr OFFICE OF THE CITY ATTORNEY Little Rock, Arkansas MEMORANDUM TO: Tony Bozynski Director of Planning & Development FROM: Thomas M. Carpenter Ot� City Attorney Re: Rahling Road Land Use & Zoning Application (LU 08-10-02); Z8165 -A DATE: 05 March 2009 On 10 February 2009 counsel for Deltic Timber Company sent a letter of protest about the 05 February 2009 hearing before the Planning Commission. This letter was sent to Mayor Stodola, City Manager Bruce T. Moore, and myself. I was asked to review the matter and prepare a re- sponse to the letter. The response is attached to this memorandum. The gist of the response is that the Commission must hold a new hearing which clarifies hat the purpose is to consider only the proposed amendments to the original application. As noted in the write-up for the 05 February 2009 meeting, and the notice that was filed for that meeting, the action item was to consider the amendments to the application approved in October 2008. The Commission hearing went far beyond that limited review. This situation raises a significant issue for both the Board of Directors and the Commission. There is no doubt that the Board has the authority to send a matter back to the Commission for further review. However, if the reason is because of proposed amendments to the application, the Board should indicate whether the review is limited to the amendments, or if it is to be a com- plete review of the entire application as revised with the proposed amendments. The appeal pro- cedure grants an applicant the right to have an application heard by the Board of Directors. If the applicant chooses to go forward without any amendments, then that desire should be timely met. If not, the applicant needs to know the consequences of a return to the Commission — i.e., will it be a de novo review of the entire application, or merely a review of the proposed amendments. Without this knowledge, the applicant really cannot make a knowing and intelligent decision as to which course of action to take. Similarly, when the matter is sent back to the Commission, the Commission should specifi- cally note the scope of the direction that it has been given. If the scope is to consider only amendments, then the notice and the write-up (as in this situation) should notify the applicant and other interested parties of that fact. If the scope extends to the entire proposal, then the appli- cant and the other parties are entitled to know that fact. OiFFICE OF THE CITY ATTORNEY Memorandum to Tony Bozynski, Director of Planning & Development Re: Rahling Road Land Use & Zoning Applicatoin (LU 08-10-02); Z8165 -A 05 March 2009: Page 2 of 2 Please note that nothing in this memorandum limits the authority of the Board to send back a planning measure that does not contain amendments. For example, if there is a changed circum- stance from the application before the Board of Directors, the fact no proposed amendment to the application has been presented does not preclude the Board's authority to ask the Commission for further review. As an example, assume that the Department of Homeland Security, working with the Federal Aviation Administration, concludes that there should be a greater zone of non - development around the airport and intends to implement this new regulation at some point in the future. A zoning matter for consideration by the Board of Directors has approved a commer- cial development near the airport, but this new ruling from the federal government causes the Board of Directors to wonder about traffic and other issues. The Board is perfectly free to send the unamended application back to the Commission for its review. The attached letter provides a more detailed analysis of the situation here. So, such analysis will not be repeated. However, there are two important points to be made: 1. Absolutely nothing in this matter should be considered as a direction, indica- tion, or suggestion, about the Commission's ultimate decision after this re- view; and, 2. This situation is not to be considered as a precedent for any future action since any potential further review would require the same careful fact intensive analysis given to this one. Of course, if the procedural changes outlined at the beginning of this memorandum are imple- mented— i.e., the clarification of the reason for a return to the Commission of an application be- fore the Board of Directors — then virtually no future questions on this point should arise. TMC:ct cc. Mayor Stodola and Members of the Board of Directors Chair Taylor and Members of the Planning Commission Bruce T. Moore, City Manager William C. Mann, III, Chief Deputy City Attorney Cynthia S. Dawson, Deputy City Attorney Shayla Beebe, Operations Administrator Thomas M. Carpenter City Attorney OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Writer's Direct Dial: 371-6875 Writer's ernail: tcarpenter@_l1_t_tlerock aro March 5, 2009 John William Spivey, III, Esq. WRIGHT, LINDSEY & JENNINGS, LLP 200 West Capitol Avenue, Ste. 2300 Little Rock, Arkansas 72201-3699 Telephone (501) 371-4527 Telefacsimile (501) 371-4675 Re: Protest of conduct of proceedings before the Little Rock Planning Commission at its February 10, 2009 meeting/Your letter of 10 February 2009 Dear Mr. Spivey: I have been asked to respond to your letter, and the included materials, that were sent to me, Mayor Mark Stodola, and City Manager Bruce T. Moore, on February 10, 2009. I have completed the review of your complaint, and I have reviewed the file and the DVD of the Planning Commission meeting. It is clear that there was a major misunderstanding as to what specific actions were before the Planning Commission on that date. Unfortunately, there was some kind of misunderstanding in my office as to the conclusion as to what the Commission should consider. The Commission approved the basic zoning applications on October 2, 2008. The Little Rock Board of Directors was to consider this request during -its meeting of November 18, 2008. In light of an amendment offered as a result of consultation between your client and neighborhood residents; Director Michael Keck requested that the matter be returned to the Commission to consider the amendment. Between this directive, and the Commission meeting on February 5, 2009, there were additional discussions and proposed amendments. The crucial question is what issues were actually under consideration at the February 5, 2009, Commission meeting. Your client clearly indicated that only the amendments were un- der consideration. The Commission, with comments from my office,- decided to vote upon the entire application which included the previously approved application. From the materials that I have reviewed, this was inappropriate. Even the staff analysis of the issue for the February 5, 2009, Commission meeting notes that the "Board of Directors has sent the revised portion of the application back to the Planning Commission for reconsid- eration. econsideration. " 1 The public hearing notice for this meeting explained See ITEM NO.: F.1, .FILE NO.: Z -8165-A, STAFF ANALYSIS at 1 (unnumbered) (dated February 5, 2009) (.emphasis added). OFFICE OF THE CITY ATTORNEY Letter to John William Spivey, III, Esquire Re: Rabling Road Planning Commission hearing of February 5, 2009 March 5, 2009: Page 2 of 4 A Revision has been filed for a rezoning application approved by the Planning Commission on 10-02-08. The approval was for 68.93 acres. The revision is for 20.30 acres within the northern portion of the property, which was ap- proved for "MF -18" Multifamily District zoning. The applicant is not request- ing "0-3" General Office District for the 20.30 acres. (See attached sketch -area marked "change"). NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REVISED APPLICATION TO REZONE PROPERTY at EXPLANATION (dated January 15, 2009) (emphasis sup- plied): The question then turns upon whether there was an appropriate hearing on the zoning application in light of the language quoted above which limited the scope of review, and the vote that was taken by the Commission. A letter was sent by your office on January 28, 2009, to note that additional amendments had been made to the application as a result of conversations with nearby neighborhoods. The letter specifically mentioned conversations with the Chenal Ridge Property Owner's Associa- tion. However; the notice referenced above was never changed to suggest that more than the amendments were under consideration. In Arkansas, a planning commission is statutorily required to adopt rules and regulations for the internal fulfillment of its duties. Ark. Code Ann. § 14-56-408 (West 2004). The Com- mission here has adopted by-laws for its operations. Article I of the bylaws states as their pur- pose It is the intent of this BYLAWS to prescribe the organization of the Little Rock Planning Commission and to establish orderly, equitable and expeditious pro- cedures for the conduct of its affairs to the end that all may be informed and the public well served ARTICLE I, Little Rock. Planning Commission Bylaws (ed. August 7, 2008) (emphasis added). As noted above, the notice for the February 5, 2009 meeting, and the Staff Analysis of what was under consideration at that meeting, are not consistent with the action taken by the Conn - mission at the meeting. In short, the vote actually taken was neither orderly, nor equitable, as required by the Commiss'ion's bylaws. A hearing on a topic beyond the noticed issue of amendments to an application is not ap- propriate under the procedures that the City has adopted. The hearing was not advertised as consideration of the entire zoning request, but. only as. to the amendments. Of course, there is a right to appeal the action of the Planning Commission to the Board of Directors. A simple question is whether this right of appeal should suffice in this circum- stance, i.e., even if the action -of the Commission went beyond the notice and intent of the -ap- plicant, the Board of Directors is free to review the situation anew. The problem, though, is OFFICE OF THE CITY ATTORNEY Letter to John William Spivey, III, Esquire Re: Rahling Road Planning Commission hearing of February 5, 2009 March 5,2009: Page 3 of 4 that the Planning Staff recommended against approval of this application. So, the applicant has to appeal a matter with staff disapproval, and a negative vote from the Commission even though what the applicant believed would be the nature of the Commission's action, and what the Notice said would be the nature of the action, were different from what the Commission voted upon. In other words, the applicant believed that, consistent with the direction of the Board of Directors, the review was limited, yet the Commission voted upon an entire project including the approved portion from October, 2008. It is in this light that a mere appeal is in- equitable to the applicant, and to the public. It was clearly noted at the Commission that there was substantial interplay between the applicant and the. neighborhood. With such agreement in place, and the review apparently lim- ited to the amendments to the original application, there was really no reason for more per- sons to testify in favor of the application. Had it been known that the entire scope of the pro- ject under review, however, both the applicant and the public would have had the opportunity to determine just how many proponents and opponents should have been present. Because the February 5, 2009, hearing was contrary to the notice, and contrary to the ini- tial write-up of the Planning Staff, the decision cannot be supported under an standard of be- ing equitable. It is totally inappropriate for the Board of Directors to consider such an action from the Commission beyond what was referred to it by the Board, and beyond what was pro- vided for in the notice. Further, it is inherently unfair for the public in opposition to this ap- plication to have any weight of the opposition diminished because on appeal the Board will have to recognize that the actions of the Planning Commission were arbitrary and capricious. Therefore, this office is informing the Commission that the only thing to do is to rehear this application to consider only the amendments. Nothing in this conclusion is to be consid- ered an indication as to how the Commission should vote: Frankly, this office does not care how the ultimate vote comes out; the only concern is the equitable nature of the process. I apologize that this letter sounds like a legal opinion and not simply as a response to your letter, but I intend this conclusion to be communicated immediately to the Commission and the Planning Staff by my office so a new hearing date can be set, To that end, I do not wish to write a second letter of explanation, and will use this one for both purposes. Let me make one final point. This result is heavily influenced by the October 2008 action of the Board of Directors. There is no question that the Board of Directors has the authority to refer matters back to the Commission for further review. Ark. Code Ann. § 15-46-422 (West 20104). When such a referral occurs, then the Commission should only consider what has been returned for further review. The records noted above make it clear that the Commission was only to consider the amendments to this application since the approval of the October 2008 application. . OFFICE OF THE CITY ATTORNEY Letter to John William Spivey, III, Esquire Re: Rahling Road Planning Commission hearing of February 5, 2009 March 5,2009* Page 4 of 4 In other words, the conclusion here is a fact intensive one, and in no way should this con- clusion be considered precedent for any other issue that may arise. It is impossible to make any conclusion without a careful consideration of the totality of the circumstances. Sincerely, wk'a� A,( . Thomas M. Carpenter City Attorney cc; Mark Stodola, Mayor Bruce T. Moore, City Manager William C. Mann, III, Chief Deputy City Attorney Cynthia S. Dawson, Deputy City Attorney