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HomeMy WebLinkAboutZ-6219-A Application- r r� , / / e, -.,-12 --S �� -LAW At Land Use Case: Z -6219-A Location: Southwest Corner Cantrell Road & Bella Rosa Ward: 5 PD: I CT: 42.06 TRS: T2NR14W24 0 130260 520 Feet POPA"PqlAo TRsT2NR14W24 CT_L2.06 PD I WARD 5 LONG -FORM PCD Z -6219-A SOUTHWEST CORNER OF CANTRELL ROAD AND BELLA ROSA oI Affill, wo w TRST2NR14W24 CT 42.06 _ ;ED WARD 5 LONG -FORM PCD Z -6219-A SOUTHWEST CORNER OF CANTRELL ROAD AND BELLA ROSA I�ev , 4 0 OCCUPANT Z -3713-C 9024 TANYA DR LITTLE ROCK, AR 722b4 OCCUPANT Z -3713-C 9103 TANYA DR LITTLE ROCK, AR 72204 OCCUPANT Z -3713-C 9122 TANYA DR LITTLE ROCK, AR 72204 OCCUPANT Z -3713-C 9204 LYNDELLA CT LITTLE ROCK, AR 72204 OCCUPANT Z -3713-C 9206 RUTGERS DR LITTLE ROCK, AR 72204 OCCUPANT Z-3713-0 9208 MONIQUE DR . LITTLE ROCK, AR 7,2'204 OCCUP ' Z -3713-C 9210 RFGERS DR LITTL ROCK , AR 72204 OCCUPAN �; -3713-C 9214 RUTjERS DR r LITTLER CK, AFR 72204 OCCUPANT Z -6219-A 15924 CANTRELL RD LITTLE ROCK, AR 72223 OCCUPANT Z -6219-A 16008 CANTRELL RD LITTLE ROCK, AR 72223 OCCUPANT Z -3713-C 9025 TANYA DR LITTLE ROCK, AR 72204 OCCUPANT Z -3713-C 9108 TANYA DR LITTLE ROCK, AR 72204 2,62-17-4 OCCUPANT Z -3713-C 9102 TANYA DR LITTLE ROCK, V72204 �c ,%PANT Z -3713-C t09 TANYA DR ITTLE ROCK, AR 72204 OCCLV,ANT Z -3713-C OCCUPANT Z -3713-C 92013 LY%ELLA CT 9203 TANYA DR ;'0 LITTLE RO AR 722Q4 LITTLE ROCK, AR 72204 OCCUPAN Z-371�,Q OCCUPANT Z -3713-C 9204 MOW�'/IUIE DR 9205 LYNDELLA CT LITTLEAOCK, AR 72204 LITTLE ROCK, AR 72204 OCCUPANT Z -3713-C -\OCCUPANT Z -3713-C 9207 TANYA DR SZ08 LYNDELLA CT LITTLE ROCK, AR 72204 LINLE ROCK, AR 72204 OCCUPANT Z -3713-C OCCUPANT N\Z-3713-C 9208 TANYA DR 9209 MONIQUEqR LITTLE ROCK, AR 72204 LITTLE ROCK, AR"�?204 OCCUPANT Z -3713-C OCCUPANT Z -3713-C 9212 LYNDELLA CT 9213 TANYA DR LITTLE ROCK, AR 72204 LITTLE ROCK, AR 72204 OCCUPANT Z -6219-A OCCUPANT Z -6219-A 5101 BELLA ROSA DR 5125 BELLA ROSA DR LITTLE ROCK, AR 72223 LITTLE ROCK, AR 72223 OCCUPANT Z -6219-A OCCUPANT Z -6219-A 16000 CANTRELL RD 16004 CANTRELL RD LITTLE ROCK, AR 72223 LITTLE ROCK, AR 72223 OCCUPANT Z -6219-A OCCUPANT Z-621 9-A 16110 CANTRELL RD 16700 TAYLOR LOOP RD LITTLE ROCK, AR 72223 LITTLE ROCK, AR 72223 -7- - (o 2,4 1- 4 OCCUPANT Z -6219-A OCCUPANT/-, Z -6376-A OCC ANT Z -6376-A PA 16910 TAYLOR LOOP RD 112, GAM E RD 11:2 G% B,,L�6RD E E% LITTLE ROCK, AR 72223 LITTLE R�C AR 72211 LITTLE Q K, AR 72211 OCCUPANT Z -6376-A OCCUPANT Z -6376-A OCCUPANT Z -6376-A 125 FARRIS ST 125 FARRIS ST 125 GAMBLE RD LITTLE ROCK --,,AR 72211 LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72211 OCCUPANT Z-6376 OCCUPANT Z -6376-A OCCUPANT Z-6376-) 125 GAMBLE RD 215 GAMBLE RD 215 GAMBLE RD LITTLE ROCK, AR 7221, LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72/1 OCCUPANT Z -6376-A OCCUPANT Z -6376-A OCCUPANT / Z -6376-A 216 GAMBLE RD 216 GAMBLE RD 224 GAMBLE RD LITTLE ROCK, AR 72211 \",LITTLE ROCK, AR 72211 LITTLE ReCK, AR 72211 OCCUPANT Z -6376-A OCCUMNT Z -6376-A /OCCUPANT Z -6376-A 224 GAMBLE RD 300 GAM LE RD 300 GAMBLE RD LITTLE ROCK, AR 72211 LITTLE RO K, AR 72211 LITTLE ROCK, AR 72211 �OLE KR �A D R 72211 OCCUPANT Z -6376-A OCCUPANT Z- 376-A OCCUPANT Z -6376-A a' 301 FARRIS ST 301 FARRIS ST 301 GAMBLE RD LITTLE ROCK, AR 72211 LITTLE R40CK, AR 7 1 LITTLE ROCK, AR 72211 I OCCUPANT Z -6376-A OCCUPA Z -6376-A OCCUPANT , Z -6376-A 301 GAMBLE RD 312 GA LE RD 312 GAMBLE RD LITTLE ROCK, AR 72211 LITT ROCK, AR 72211 LITTLE ROCK, AR 72211 C C' L12 " I L OC OCCUPANT Z -6376-A OCCUPANT Z -6376-A OCCUPANT Z -6376-A 321 GAMBLE RD 321 GAMBLE RD 4 (GAMBLE RD LI L LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72211 LI LE ROCK, AR 72211 OCCUPANT Z -6376-A OCCUPANT Z -6376-A OCCUPA ' Z -6376-A 324 GAMBLE RD 12903 LORENA AVE 12903 LOIJAAVE LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72211 LITTLE ROCK, '�R 72211 OCCUPANT Z -6376-A OCCUPANT Z -6376-A OCCUPANT Z -6376-A 12903 LORENA AVE 12903 LORENA AVE 13001 STACY LN LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72211 LITTLE ROCK, AR 72211 Et City of Little Rock Department of Planning and Develop$ment 723 West Markham Street Uttle Rock, Arkansas 72201-1334 Phone: (501) 371-4790 ' Fax: (501) 399-3435 or 371-6863 March 15, 2004 Mr. Pat McGetrick McGetrick and McGetrick Engineers 319 President Clinton Avenue, Suite 202 Little Rock, AR 72201 Planning Zoning and Subdivision Re: Bella Rosa Drive Long -form PCD (Z -6219-A) – located on the Southwest comer of Cantrell Road and Bella Rosa Drive Dear Mr. McGetrick: This is to advise you that in connection with your application Case No. Z -6219-A the following action was taken by the Planning Commission at its meeting on March 11, 2004: Approved with conditions. Recommended approval with conditions. Recommended approval as submitted. Denied your request as submitted. Deferred to Meeting. Other: I This item will be forwarded to.the-Board of Directors for the finalapproval on-Ap 6. --The —meetag- —begins at 6:00 prn and is held in ____Yo_u or your representative will ne&F reserit. the Board of Directors Chambers – 500 West Markham Street. If you have any questions please do not hesitate to contact me at 371-6821. Respectfully, Donna James, AICP Subdivision Administrator City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Little Rock, Arkansas 72201-1334 Subdivision Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 July 18, 2005 James May Highway 107 Associates LLC 2226 Cottondale Lane Little Rock, AR 72202 Re: Bella Rosa Short -form POD (Z -6219-A), located on the Southwest comer of Cantrell Road and Bella Rosa Drive Dear Mr. May: This letter was previously sent to Mr. Pat McGetrick the applicant for the above referenced project and Mr. Pete Homiboork the real estate agent we have had contact with concerning the development. It has recently been brought to our attention you are the owner of the property and the letter and corrective action should be taken by your firm. Ordinance No. 19,072, adopted by the Little Rock Board of Directors on April 6, 2004, established the above referenced Planned Zoning District. Although, the site was approved as a Planned Zoning District, the Highway 10 Design Overlay District requirements continue to apply to the development unless otherwise reduced or waived by the Little Rock Planning Conin-lission and the Little Rock Board of Directors. The purpose and intent of the Highway 10 Design Overlay District states the intent is to create standards for parking lot lighting, which is in keeping with enhancing the aesthetic and visual character of the lands surrounding Highway 10. Section 36-346(h) states "Lighting. Parking lot lighting shall be designed and located in such manner so as not to disturb this scenic appearance preserved in this corridor. Lighting should be directed to the parking areas and not reflect into the adjacent neighborhoods." Staff has received a complaint concerning the lighting, which has been installed at the center. Based on a site visit, it is staff s opinion that the lighting has not been installed to protect the scenic corridor and there is an abundance of light spilling from the center to the adjoining properties. This is a direct violation of the Planned Zoning District approval and should be corrected immediately. Please allow this letter to serve as notice to correct the lighting problem and reduced the overspill to adjoining properties. If you have any questions, please do not hesitate to contact our office. Respectfully, T Oy ony Bo ski D Ir"I tor f I irector f Plannni g CC' Mr. Pete Hornibrook, RPM Mr. Gene Pheifer Mr. Pat McGetrick, McGetrick and McGetrick Engineers City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Little Rock, Arkansas 72201-1334 Subdivision Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 July 18, 2005 Mr. Pat McGetrick McGetrick and McGetrick Engineers 10 Otter Creek Court, Suite A Little Rock, AR 722 10 Re� Bella Rosa Short -form POD (Z -6219-A), located on the Southwest comer of Cantrell Road and Bella Rosa Drive Dear Mr. McGetrick: Ordinance No. 19,072, adopted by the Little Rock Board of Directors on April 6, 2004, established the above referenced Planned Zoning District. Although, the site was approved as a Planned Zoning District, the Highway 10 Design Overlay District'requirements continue to apply to the development unless otherwise reduced or waived by the Little Rock Planning Commission and the Little Rock Board of Directors. The purpose and intent of the Highway 10 Design Overlay District states the intent is to create standards for parking lot lighting, which is in keeping with enhancing the aesthetic and visual character of the lands surrounding Highway 10. Section 36-346(h) states "Lighting. Parking lot lighting shall be designed and located in such manner so as not to disturb this scenic appearance preserved in this corridor. Lighting should be directed to the parking areas and not reflect into the adjacent neighborhoods." Staff has received a complaint concerning the lighting, which has been installed at the center. Based on a site visit, it is staff s opinion that the lighting has not been installed to protect the scenic corridor and there is an abundance of light spilling from the center to the adjoining properties. This is a direct violation of the Planned Zoning District approval and should be corrected immediately. Please allow this letter to serve as notice to correct the lighting problem and reduced the overspill to adjoining properties. If you have any questions, please do not hesitate to contact our office. Respectfully, -1 [ Tony Bo2� ms.Tki Director o� � Planni gg cc: Pete Homibrook, RPM Gene Pheifer 0 OFFICE OF THE CITY ATTORNEY Little Rock, Ark2nsas MEMORANDUM TO: Donna James Subdivision Administrator FROM: Amy Beckman Field I Deputy City RE: KAC Limited, LLC d1bla Razorback Pizza v. City of Little Rock, et. al. Pulaski County Circuit No. CV -2006-6954 DATE: December 15,2006 Tom asked me to send yoii copies of the written closing arguments that were filed in this case. I have enclosed Razorback Pizza's closing argument, the City's closing argument, and Razorback Pizza's reply to the City's closing argument. At the end of the trial, Judge Gray asked the attorneys to contact her office after the closing arguments were submitted and she would schedule a conference call to give her decision. I have contacted her case coordinator and she is supposed to get back with us to schedule something. If you have any questions, please do not hesitate to contact me. ABF:dab Encl. IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FILED KAC LIMITED, LLC, d/b/a 12 TH DIVISION '2006 DEC -6 PM 4: 35 JIM'S RAZORBACK PIZZA PAT G'61"j-1-- I�CIRCWT_COU PL41NTIFF NT� CLERK VS. NO. 06-6954 CITY OF LITTLE ROCK, ARKANSAS, et at DEFENDANTS DEFENDANT CITY OF LITTLE ROCK'S CLOSING ARGUMENTS The plaintiff in this case (KAC) bases all of its claims on one inquiry, whether "the Defendants ... have the Authority to control the hours of operation of Jim's Razorback Pizza.", Throughout the pleadings in this case, the Plaintiff's Closing Argument, and the testimony at trial, KAC has steadfastly failed to realize that the Cityz is not controlling the hours of operation of a pizza res- taurant. KAC is allowed to operate a Jim's Razorback Pizza at any appropriate place in the City without a limitation on the hours of operation. The problem in this case is that a zoning restriction, requested by the owner of the property where KAC is located, does not permit operation of any office use, accessory or otherwise, beyond the hours of 7:00 AM and 8:00 pM.3 Nothing in the requested rezoning ordinance, nor in the plan referred to in Section 2 of the ordinance, and incorporated into the terms of the ordinance, limits the hours of operation for any particular type of business. Any limit is on office uses at his particu- lar location. Because KAC did not check the zoning on this property, other than to accept the word of the developer trying to lease the property to it, it did not realize the ordinance and plan existed, much less determine if there were limitations on the use of the property. Although the City granted building permits and a business license for the location, KAC never informed the City that it intended to operate an accessory office use past the limited hours set forth in the ordinance. When asked to produce any document to show that KAC's applicatons for a building permit or a Plaintiff's Closing Argument at 1, KAC Limited, LLC v. City of Little Rock, Arkansas, No. 06-6954 (Pulaski Cir- cuit [12 th ] November 29, 2006). 2 The named defendants are the City of Little Rock, Mayor Jim Dailey, Director Johnnie Pugh, Director WitLie Hinton, Director Genevieve Stewart, Direct Dean Kumpuris, Director Barbara Graves (no longer on the Board of Directors), Director Brenda Wyrick, Vice -Mayor Brad Cazort, Director Stacy Hurst, and Director Michael Keck. Throughout this argument these group will be referred to as "City" or "the City 3 Defendant's Hearing Exhibit No. 2 (Plan of planned development for Little Rock, Ark., Ordinance No. 19,072 [April 6, 2004]), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 th ] November 1, 2006). [Page I of 12] business license contained the hours of operation, Mr. Keith Hardin, a 50% owner of KAC, admitted that he could not do so.' Despite any effort on the part of KAC to exercise due diligence on use of the property before it executed a five-year lease, KAC asks this Court to amend a municipal ordinance to read the way that KAC desires. Since the City Board of Directors has rejected this request, KAC is asking this Court to substitute its judgment for that of elected municipal officials. In making this request, KAC not only failed to perform due diligence, it has not adhered to ordinance limitations since becom- ing aware of the provisions, even though it unsuccessfully attempted to amend the ordinance. Nei- ther the law, nor the facts of this case, support any of KAC's arguments. Therefore, this Court should deny all relief requested. The balance of this argument shall address the issues as they are delineated by KAC. 1. KAC IS SEEKING A DECLARATORY JUDGMENT THAT THE CITY DOES NOT HAVE THE AUTHORITY TO CONTROL THE HOURS OF OPERATION OF JIM'S RAZORBACK PIZZA. (a) CLAIM FOR RELIEF The City approved Little Rock, Ark., Ordinance No. 17,092 (April 6, 2004). As requested by the applicant, the hours of operation for the office portion of the planned development were limited to 7:00 AM to 8:00 PM. This restriction was on the use of this particular parcel of property. It is not a restriction on all of the kinds of businesses that could be located on this particular parcel. In other words, while a pizza restaurant at this location would be subject to the zoning regulation, all pizza restaurants in the City are not limited to such hours. This restriction on the hours of opera- tion is a legitimate and lawful exercise of the City's zoning authority. KAC is not entitled to a de- claratory judgment that this City lacks authority to set hours of activity within a particular zoning classification. (b) LEGAL FOUNDATION To support its content, KAC relies upon cases that address municipal attempts to impose re- strictions on a group of like businesses from operating during certain hours. For example, Noble v. Davis -5, an across-the-board regulation was imposed upon all barber shops within the community; 4 Trial Testimony of Keith Harold Hardin at 145-46 (11. 6-25; 1-15)), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 0] Novernber 1, 2006). 5 204 Ark. 156, 161 S.W.2d 189 (1942). [Page 2 of 12] in Dyess Y. WilliaMS,6 an across-the-board regulation was placed on all businesses within the City. Obviously, such a regulation is not in play in this lawsuit. Even KAC has claimed that one basis for relief is that pizza restaurants in other parts of the City are not required to follow the limitation on hours contained in this zoning ordinance. As an initial matter, then, the predicate KAC must meet to even rely upon Noble and Dyess is not even met. Further, KAC has failed to cite any case law that supports its position. The City has legislative power by virtue of Ark. Code Ann. S 14-43-602 (West 2004), and S 14- 55-102 (West 2004). The first statute, part of the Arkansas Home Rule Act, states Any city of the first class is authorized to perform any function and exercise full legis- lative power in any and all matters of whatsoever nature pertaining to its municipal affairs, including, but not limited to, the power to tax. (Emphasis added). The other statute provides Municipal corporations shall have the power to make and publish bylaws and ordi- nances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, and promote the prosperity, and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof. In addition, the zoning power of municipal governments permit a municipality to "adopt and en- force plans for the coordinated, adjusted, and harmonious development of the municipality and its environs." Ark. Code Ann. S 14-56-402 (West 2004). In its argument and during the proceedings before this Court, Plaintiff has argued repeatedly there is no direct relation between regulating its hours of operation and either health or safety concerns. Even if that was a correct statement of a general rule of law, when exercising its legisla- tive prerogative, a municipality may enact regulations that are not directly related only to public health and safety. While KAC has failed to understand this point, the Arkansas Supreme Court has expressly noted it. The power of regulation is not confined to the suppression of vice, or the promotion of health. In the language of McKenna, J., in Bacon v. Walker, 204 U.S. 311: "it extends to so dealing with the conditions which exist in the State as to bring out of them the greatest welfare of its people." Herring v. Stannus, 169 Ark. 244, 251, 275 S.W. 321 (1925). Additionally, cities have the author- ity to regulate business even though the activity regulated may have not been "offensive or injuri- ous" in the past. Phillips v. Town of Oak Grove, 333 Ark. 183, 192, 968 S.W.2d 600, 605 (1998). The "mere possibility of a public harm is sufficient basis for the municipality to regulate under its police power." 333 Ark. at 191, 968 S.W.2d at 604. 6 247 Ark. 15 5, 444 S. W. 2d 701 (1969). [Page 3 of 12] Courts are limited in their authority to review a municipal legislative enactment. "[T]he ques- tion before the Chancellor when a zoning action of the city is challenged is solely whether or not the City acted arbitrarily, capriciously or unreasonably." City of Little Rock v. Breeding, 273 Ark. 437, 442, 619 S.W.2d 664, 667 (1981). Because of the constitutional requirement of separation of powers, courts may not intrude on the legislative prerogative and cannot "take away the discre- tion vested in the city's legislative body." 273 Ark. at 444, 619 S.W.2d at 668. See also, City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994). An ordinance enacted by a municipal legislative body is presumed to be legal. Goldman and Co. v. City of North Little Rock, 220 Ark. 792, 797, 249 S.W.2d 961, 963-64 (1952). Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted to them. Id. at 797, 963, quoting Ex parte Foote, 70 Ark. 12, 65 S.W. 706 (1901). See also, Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998). While neither the Arkansas Supreme Court nor the Arkansas Court of Appeals has addressed the issue whether a city may enact zoning ordinances that restrict hours of operation pursuant to its police powers, other states that have addressed that issue have upheld such restrictions. See, e.g., Campion v. Board of Alderman of the City of New Haven, 278 Conn. 500, 899 A.2d 542 (2006); Laughter v. Board of County Com'rs for Sweetwater County, 110 P.3d 875 (Wyo. 2005); Lapp v. Village of Winnetka, 349 III.App.3d 152, 833 N.E.2d 983 (2005); Town Board of the Town of Southampton v. 1320 Entertainment, Inc., 653 N.Y.S.2d 364, 235 A.D.2d 387 (1997). In Quick Check Food Stores v. Township of Springfield, the New Jersey Supreme Court found that an ordi- nance restricting business hours of operation was a reasonable exercise of the township's police power. We have no hesitancy in finding that the trial court was justified in holding that limita- tions upon hours of service in commercial establishments located in a resident milieu is a regulation related to the health, peace and comfort of those surrounding homes. Doubtless such a regulation furthers the public health and welfare of the residential community ... a municipality may properly endeavor "to secure and maintain 'the blessings of quiet seclusion' and to make available to its inhabitants the refreshment of repose and the tranquility of solitude" ... It is not an appropriate judicial function for us to question the wisdom of the Township Committee in enacting this ordinance under its general police power authority; nor to determine whether its aim could have been accomplished in some other manner. 83 N.J. 438, 449-50, 416 A.2d 840, 846-47 (1980). [Page 4 of 12] (c) APPLICATION OF THE LAW TO THE FACTS When the law is applied to the facts as adduced by the testimony at the trial of this case, it is clear that the City acted within its authority in restricting the hours of operation of the location at which Plaintiff's business is located. Throughout the course of these proceedings, KAC has repeatedly referred to the restrictions placed on its business. As noted above, the City has not placed restrictions on KAC's business, but rather upon the use of the property on which Plaintiff's business is located. Plaintiff is free to op- erate a pizza restaurant past 8:00 p.m.; it is just not free to do so within the Bella Rosa Long -form PCD. The regulation of which KAC complains was in place long before a decision was made to lo- cate Jim's Razorback Pizza at this site. The City makes this point, because in evaluating whether the regulation is arbitrary and capricious, the Court must determine the nature of the regulation, viewing it in light of the circumstances that existed when the ordinance was enacted. Further, it must consider whether a municipal governing body acts arbitrarily and capriciously when it consid- ers hours of an office operation located next to a residential neighborhood. The Court should also remember that prior to the 2004 rezoning, this property was zoned single-family residential. MR. CARPENTER: Ms. James, do you know what the property was originally zoned where the Bella Rosa development is? ANSWER: R2 single-family. MR. CARPENTER: Single-family, does that mean it's suppose to be for residents? ANSWER: Single-family development.' Issues in addition to rezoning residential property to office uses, when that property abuts a residential development, Donna James' testimony establishes another basis for the restriction con- tained in this ordinance. KAC's business is located on Highway 10 and Bella Rosa Drive within the Highway 10 design overlay district. The intent of the overlay district is to not "strip out" the high- way frontage. Commercial nodes along the corridor exist so commercial businesses are concen- trated at the intersections of arterial streets, or the intersections of arterial streets and collector streets. By taking this step, the City created a transition from commercial development, to office development, to residential development.' KAC's business is not located within a commercial node, but is rather classified on the City's future land use plan as "transition," which allows for residential, multi -family and office develop - 7 Trial Testimoa of Donna James at 91-92 (R. 22-25; 1-3), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 t ] November 1, 2006). 8 th Trial Testimony of Donna James at 98, KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 ] November 1, 2006). [Page 5 of 12] ment.9. The property was originally zoned R-2 single family and was re -zoned as a Planned Office Development in 2004 pursuant to LRO 19,072. According to Ms. James, planned developments are site plan and use specific. A planned development is used when a straight zoning classification would not work. Restric- tions may be placed on the approved zoning that would allow the property to be developed in a way that is compatible and harmonious with the surrounding area. 10 The purpose for a planned de- velopment is so that the City can place restrictions on the development that will not interfere with the area around it." As noted, the area around the planned development is residential. When a re -zoning application is submitted, the applicant is asked for hours of operation for the development. The question of hours of operation typically arises at the subdivision committee meeting.12 In this case, the applicant's representative provided the hours of operation. 13 In dis- cussing the reason for using a planned development in this case, Ms. James testified that this area "is a unique area, and through the planned development process, the staff thought, with working with the applicant, that this type of element could fit into the neighborhood element with certain parameters and conditions placed on the approval, which would still make it neighborhood friendly and a harmonious type development and still protect those residential interests in the area. . . . 04 When the Board approved the planned development, the ordinance specifically provided that the preliminary site development plan/plat be approved as recommended by the Little Rock Plan- ning Commission. The site plan specifically restricts the hours of operation from 7:00 a.m. to 8:00 p.m. When the Planning Commission approved the site plan, it was approved "subject to the con- ditions as noted in the Planning Commission minute record dated March 11, 2004."". The minute record specifically provides for days and hours of operation from 7:00 AM to 8:00 PM seven days a week. 16 The City has an interest in harmonious and compatible development within its zoning jurisdic- tion. In this case, the property upon which Plaintiff's business is located is classified as "transi- 9 Trial Testimony of Donna James at 98-99 (11. 24-25; 1-9), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 th ] November 1, 2006). '0 1D. at 92. " 1D. at 96-76. 12 1D. at 58-59. 13 1D. at 86; 113. 14 ID. at 113. 15 1D. at 105. 16 1D. at 107. [Page 6 of 12] tional," and is adjacent to residential development. It was within the sound discretion of the Board to approve a planned development that limits the hours of operation of the businesses lo- cated within the development in order to further the City's legitimate purposes. In Breeding, the Court stated: It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other the- ory would be to substitute the judgment and discretion of the court for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power. 273 Ark. at 445, 619 S.W.2d at 668, quoting Little Rock Ry. Et Elec. Co v. Dowell, 101 Ark. 223, 227, 142 S.W. 165, 166 (1911). There has been no abuse of the Board's power in this case and Plaintiff is not entitled to a declaratory judgment that the City was without authority to restrict the hours of operation within the planned development. PERMANENT INJUNCTION (A) CLAIM FOR RELIEF KAC asks the Court to permanently enjoin the City from imposing any hours of operation limita- tion on Plaintiff's business absent a substantial showing of the need for such control to protect the health and safety of the public. Since the City has not imposed any limitation on the hours of op- eration of a pizza business, this request is totally without merit. KAC cites no legal basis upon which a permanent injunction can be granted. (B) LEGAL AUTHORITY As KAC stated in the first sentence of Part I of its closing argument, the inquiry of whether the City has the authority to control the hours of operation of a pizza restaurant is the underlying basis for all of the claims of relief before the Court. As has been demonstrated above, the City clearly had the authority to limit the hours of operation within the Bella Rosa PCD. KAC states that the injunction should be granted unless the City makes a substantial showing of the need for such control to protect the health and safety of the public. This statement is either a [Page 7 of 12] blatant misrepresentation of the law, or an indication that KAC does not understand the issues that it is trying to raise in this lawsuit. 17 As discussed at length in Part 1, Section (b) of the City's closing argument above, there is a pre- sumption that the Board acted in a reasonable manner and there is a presumption in favor of the legality of the regulation. It is KAC's burden to prove that the ordinance is arbitrary and unreason- able. The legislation is not arbitrary if there is any reasonable basis for its enactment. Phillips v. Town of Oak Grove, 333 Ark. 183, 190, 968 S.W.2d 600, 604 (1998). Nothing in Arkansas law even suggests that the City has to prove anything in order to avoid the imposition of injunctive relief. The burden of proof rests with the Plaintiff. Further, protecting the health and safety of the public are not the only legitimate goals for municipal legislation. In Herring v. Stannus, 169 Ark. 244, 251, 275 S.W. 321 (1925), cited in the previous section, the Court is clear that the legislative body is not so limited in the scope of its authority. (c) APPLICATION OF LAW TO FACTS The City has shown through the testimony of Donna James that there was a reasonable basis for limiting the hours of operation of businesses located next to a residential development that was part of the Bella Rosa PCD. The regulation is not an arbitrary abuse of the Board's power; it is not capricious; and, it is not unreasonable. Plaintiff has not sustained its burden of overcoming the presumption that the City's regulations were legitimately enacted. In seeking an injunction, Plaintiff is requesting equitable relief. It is a well-known maxim that he who seeks equity must do equity. 18 The regulations that KAC complains of pre -date the estab- lishment of Plaintiff's business by almost two years. The restrictions in the PCD were readily avail- able to Plaintiff if it had only checked. KAC argued at trial that it was difficult to find these restrictions because while the ordinance was on file in the public records, with a reference to the site plan which included a reference to the zoning records, it was not easy to follow this path" Of course, in addition to the process being fairly straightforward, KAC is really estopped from this argument since it never made any attempt U For an example of why it is difficult to determine exactly what KAC wishes the Court to do in this case, or the basis upon which KAC believes this Court has jurisdiction, please note the confusing and inconsistent comments o KAC's counsel contained in the Trial Transcript at 69-80. 'a Ouachita Trek & Development Co. Y. Rowe, 341 Ark. 450, 461, 17 S.W.3d 491, 498 (2000); see also, Cardiac Thoracic (t Vascular Surgergy, P.A. v. Bond, 310 Ark. 798, 840 S.W. 2d 188 (1992). While Ouachita Trek deal with a ctaim for specific performance of a contract by a party who breached the contract, the point is the same. Here, KAC failed to determine if there were any land use restrictions on this property, but now complains that it should get an amendment a zoning ordinance that the City refused to grant. 19 See, e.g., Trial Testimony of Donna James at 60-61 (U. 14-25; 1), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 th ] NoveMber 1, 2006). [Page 8 of 12] to review these records .20 However, according to the testimony one of KAC's owners, Keith Har- din, absolutely no steps to determine whether there were any restrictions on the use of the prop- erty. The ordinance that established the PCD provides that the preliminary site development plan/plat be approved as recommended by the Planning Commission and the site plan very clearly and specifically addresses the allowable hours of operation. KAC comes before this Court in the position of an aggrieved party when in reality the reason that KAC is unable to operate past 8:00 p.m. is because the owners chose to locate the business without conducting a due diligence in- spection as to possible zoning restrictions. KAC chose to locate in the Bella Rose PCD, the City did not tell it to do so, nor encourage it to do so. Any damage in terms of limited hours of operation are not the fault of the City, but rest with KAC and any misrepresentations that may have been made by Mr. Pete Hornibrook when he encouraged KAC's owners to lease the property. KAC comes before this Court with unclean hands for an additional reason. KAC has known since at least January of this year that there is a prohibition against operating its business past 8:00 p.m.� However, the owners continue to flaunt the City's regulations for almost a year and has continued to operate its business in violation of LRO 19,078. III. APPEAL (A) CLAIM FOR RELIEF KAC asks the court to reverse the decision of the City Board of Directors not to permit an ex- tension of hours of operation at this particular location. The prayer for relief asks this Court to en- ter an order directing the Board of Directors to allow KAC to operate its business under the hours of operation as set forth in Planning Commission File No. Z -6219-D, and to remand this case to the Board with instructions for the Board to amend the PCD as requested in File No. 6219-D. While KAC states that it is not asking this Court to substitute its judgment for that of the City Board of Directors, it never explains how a Court direction that an ordinance be amended, or a Court actu- ally amending an ordinance itself, are any different. In any event, the Court is without jurisdiction to grant relief pursuant to Ark. Code Ann. S 14-56-425. 20 See, e.g., Trial Testimony of Keith Harold Hardin at 144-45 (11. 21-25; 1-5), KAC Limited, LLC v. City of Little Rock, No. 06-6954 (Pulaski Circuit [12 1h ] November 1, 2006); see also, ID. at 161 (It. 12-16) (MR. CARPENTER: So did you bother to check if there was [sic] any similar restrictions on hours on that one on Stagecoack? ANSWER: No. We followed through with our representatives the same way we did on 10 and the other restaurants that I finished in the past." [emphasis added]). [Page 9 of 12] (B) LEGAL FOUNDATION State statute provides for de novo review by the circuit court of the final action of an agency action in an administrative or quasi -administrative mode. Ark. Code Ann. S 14-56-425 (West 2004). KAC has never been clear on whether it seeks review pursuant to S 14-425 of the City's 2006 ac- tion in refusing to amend the PCD, or of the City's 2004 approval of the original PCD ordinance. Either way, Plaintiff's argument must fail. The review provided for by S 14-56-425 is for administrative actions. In refusing to amend the PCD, the Board did not take any action. In Camden Comm. Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999), the Camden Planning Commission made a recommendation to the Camden City Board of Alderman that certain property be rezoned. The City Board did not adopt the recommen- dation, nor the amendment to rezone the property. The Arkansas Supreme Court held that ... the City Board's decision not to accept the Commission's administrative proposal was only a rejection of proposed administrative action and did not constitute any legis- lative action or administrative action by the City Board. Id. at 373 (emphasis added). The Court has reiterated this position and quoted the above passage with approval in Summit Mail Co., LLC v. Lemond, 355 Ark. 190, 200, 132 S.W.3d 725, 731 (2003). The law is clear that municipal legislative body's refusal to accept a planning commission's pro- posal is not an administrative action. The Board's decision on June 6, 2006, not to accept the Planning Commission's recommendation is not subject to de novo review pursuant to Ark. Code Ann. S 14-56-425. If KAC is attempting to challenge the original 2004 ordinance pursuant to 5 14-56-425, that claim clearly fails. The statute provides relief for administrative actions and the 2004 ordinance is without question a legislative action. Additionally, S 14-56-425 provides that the appeal shall be taken "according to the same procedure which applies to appeal in civil actions from decisions of inferior courts ..." The Arkansas District Court Rules apply to appeals taken pursuant to § 14-56- 425. Ark. Dist. Ct. R. 9 provides for an appeal to be taken within 30 days. Plaintiff is clearly out- side the 30 day time limit, as this action was filed more than two years after enactment of the original ordinance. IV. CONCLUSION As noted above, KAC should be denied all the relief that it seeks from the City. It is ironic that counsel for KAC asserts that a proposal which requested the limitation on hours for the Bella Rosa planned development is insignificant. (See Plaintiff's Closing Arguments at 4 [". . . the [City] only limited the hours because an engineer working for the former owner arbitrarily submitted the lim- (Page 10 of 12] ited hours as part of a drawing."; at 8 ("The fact that the City merely made a random or conven- ient choice in accepting the hours of operation submitted by an engineer and imposing a limitation based on this submission ...... ); at 9 ("The Defendants' main argument is that the hours of opera- tion limitation is lawful because an engineer for the former owner of the Bella Rosa development offered those restrictive hours as part of a drawing."). The irony is that KAC wants the City to ig- nore a requested zoning ordinance that it failed to even review before it decided to locate its res- taurant. Further, KAC fails to recognize that a plan design is not "a mere drawing." To hold for KAC means that this Court has to believe that the engineer for Bella Rosa development was not acting on behalf of the owner when these hour restrictions were proposed and accepted. Yet, there is no evidence in this record to support such a proposition. During one portion of Donna James examination, KAC suggests that if different hours had been proposed there would have been no problem. Yet, this case exists because the City Board of Direc- tors, when asked, refused to extend the hours. As noted by Mr. Hardin, one of the owners of KAC, this refusal was based upon complaints by residents in the area about an adverse impact upon their homes. There is no irreparable harm to KAC. Everything listed as a damage can be recompensed with money. Further, any harm to KAC has come from the representative who [eased property to them under the false pretense that there were no hour of operation restrictions, not from anything that the City did. KAC claims that the City granted building permits and a business license, but fails to understand that the City granted these documents upon KAC's representations. None of these rep- resentations included a limitation on the hours of operation because KAC did not know about the limitation until after they opened. For all of the reasons set forth above, KAC has failed to prove any entitlement to relief. This case should be dismissed with prejudice. In the final analysis, KAC's complaint is basically that it failed to conduct due diligence before it [eased a property for five years and would like the City to atone for their mistake. While KAC challenges the City's processes, it was perfectly willing to fol- low them when it thought it might get the requested relief. Only when it did not get the relief re- quested did KAC challenge the propriety of the City's actions. If the Court reviews the transcript and the exhibits in this case, it will find no record of a challenge to the City's ability to set hours of operation in a planned development until after KAC was denied an amendment to Bela Rosa planned development. The only way that this Court can rule for KAC is to substitute its judgment for that of the City Board of Directors. Since both the City and KAC agree that the Court does not have the authority to do so in this case, there is really no option that to deny all relief. Respectfully submitted, [Page 11 of 12] City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Uittle Rock, Arkansas 72201-1334 Subdivision Phone: (501)371-4790 Fax: (501)399-3435or371-6863 July 18, 2005 Mr. Pat McGetrick McGetrick and McGetrick Engineers 10 Otter Creek Court, Suite A Little Rock, AR 72210 Re: Bella Rosa Short -form POD (Z -6219-A), located on the Southwest comer of Cantrell Road and Bella Rosa Drive Dear Mr. McGetrick: Ordinance No. 19,072, adopted by the Little Rock Board of Directors on April 6, 2004, established the above referenced Planned Zoning District. Although, the site was approved as a Planned Zoning District, the Highway 10 Design Overlay District- requirements continue, to apply to the develbpment unless otherwise reduced or waived by the Little Rock Planning Commission and the Little Rock Board of Directors. The purpose and intent of the Highway 10 Design Overlay District states the intent is to create standards for parking lot lighting, which is in keeping with enhancing the aesthetic and visual character of the lands surrounding Highway 10. Section 36-346(h) states "Lighting. Parking lot lighting shall be designed and located in such manner so as not to disturb this scenic appearance preserved in this corridor. Lighting should be directed to the p�rking areas and not reflect into the adjacent neighborhoods." Staff has received a complaint concerning the lighting, which has been installed at the center. Based on a site visit, it is staff s opinion that the lighting has not been installed to protect the scenic coff idor and there is an abundance of light spilling from the center to the adjoining properties. This is a direct violation of the Planned Zoning District approval and should be corrected immediately. Please allow this letter to serve as notice to correct the lighting problem and reduced the overspill to adjoining properties. If you have any questions, please do not hesitate to contact our office. Respectfully, Tony Bozynski Director of Planning cc: Pete Homibrook, RPM Gene Pheifer %,uy of Little Rock Department of Planning and Development 723 West Markham Street Uttle Rock, Arkansas 72201-1334 Phone: (501) 371-4790 - Fax: (501) 399-3435 or 371-6863 DATE: February 3, 2004 M, ENTERGY (2) ARKLA Southwestern Bell Telephone (2) Central Arkansas Water Little Rock Wastewater Pulaski Cminiv Plnnn;-n Planning Zoning and Subdivision NAME: Bella Rosa Office Warehouse Long -form PCD TYPE OF ISSUE: Office Warehouse Development FILE NUMBER: Z -6219-A LOCATION: SWC Cantrell Road and Bella Rosa 5 Little Rock Fire Department Public Works: Engineering, Traffic (2) Parks and Recreation Department Planning and Development — Site Plan Review Planning and Development Graphics CATA TO WHO IT MAY CONCERN: On March 11, 2004 the Little Rock Planning Commission will consider the above referenced issue. NOTE: The Interdepartmental Meeting at which this issue will be discussed will be held on Februpa 13, 2004. NOTE: The Subdivision Committee Meeting at which this issue will be discussed will be held on February 19, 2004. A copy of the plan for the referenced issue is enclosed for your consideration, and your comments and/or recommendations will be appreciated. Sincerely, Dqon James Subdivision Administrator (371-6821) (Please respond below and return this letter with your comments for our records.) ���pproved as Submitted. I PLEASE RETURN COMMENTS BY FebruM 17,2004. Easernent (s) required (See attached plat or description.) *To all utilities: If an easement is requested which is in excess of 10feet in width, providejustif7cation for the easement or the request will not he included in the Planning Commission agenda. Comments: e 0 Of Little Rock DeDartmant ^# 723 West Markham Street S4151116111 cine -1 oeveloptnimt LitUe Rock, Arkansas 722D I � 133.4 Phone., (501) 371-4790 � Fax.o (50 1) 399,3435 or 371.6863 1ATE: February 3, 2004 Planning ZOning and Subdivi,slon 0 ENTERGY (2) TNyAPM1%F8ejUa Rosa Office Warehouse Long -form PCD I 0 ARKLA E ISSUE. Office Warehouse Development 0 Southwestern Bell Telephone (2) FILIE NUMBER: Z -6219-A 0 Central Arkansas Water LOCATION: SWC Cantrell Road and Bella Rosa 0 Little Rock Wastewater 4�Cl Pulaski County Planning Little Rock Fire Department C1 Public Works: Engineering, Traff 0 Parks and Recreation Department le (2) El Planning and Development — 0 Site Plan Review Planning and Development Graphics 0 CATA TO WHO IT MAY CONCERN: On Ma ch 11, 2004 the Little Rock Planning Commission will consider the above referenced issue. NOTE: The Interdepartmental Meeting at which this issue will be discussed will be held on FebruLjj 13, 2004. NOTE: The Subdivision Committee Meeting at which this issue will be discussed will be held on Febr� 19 2004. A copy of the plan for the referenced issue is enclosed for your recommendations will be appreciated. consideration, and your comments and/or Sincerely, Iq)On James Subdivision Administrator (371-6821) (Please respond below andreturn this letter with Your comments for our records.) PLEAS -----�Al?proved as Submitted. [��E RETURN COMMENTS BYFebrugj 17 1004. Ea,emellt (s) required (See attached p3lat or des Dtio, I all utilities.- If an easement is requested cription.) which is in excess o !f easement or the request will not he included in the 10feet in widthProvidejustocation for the Comments: Planning Commission agenda. 3Y. mckysure 4_ FEB -17-2004 TUE 06:26 PM RELIANT ENERGY ARKLA FAX NO. 5013774520 City of Little Rock k m VePrtmonl of Planning and Dave-lopm 1 7-13 WeW Markham Stretq @Fd L M,4 A0,7 k, Aftnsm 7220 1 - I nj Ptannft Wx P110eW1501)3714790 FCk&(500399-3435cr37j_WM Zoning and DATF: Pchruary.% 200,1 SUbdivision 1--NTERGY (2) ARKLA Southwegc,111 13ell Telephone (2) Cenlral Arkansaq Watcr U Oftle Rock %slewater ptll-lski Coupity P1,111nilIg lAttid Rock Vi, W �FCll knicilt WOrl": ffilgilWdrillg, TTaffile (2) U Parksand Recrcatioll Department 0 11111111illg alid Dcvclopzjjejjt_ Site plan Review 0 I'l.inning all(l J)evelopment Graphics M rATA P. 07/11 NAME: Shaddeford Commercial Long -form PCD TYPP� ()r, ISSUE : PCD/Rezonillg/prelinflikary Plot FILE . NUMBER.- Z -5703-A LOCATION: SEC Shaddeford'dind Colonel Glenn Road '1'() W110 ITMAY CONCTAIN: U,,�ftLfhe Litile Rock III innijIn C011)'niSsiOn. will consider dicaboVe referenced issile. t' NOTE: 71'lle Intordepartinenial Mectijig,,it Wilich thii issue. will be discussed will be held on NOTF: The Subdivi,31t)n C0jjjn1itj(:0 Mcet"19 " Which this iftue will be discussed will be held on I-Lebm4aj 9'�&. A COPY offlic Plan for the referunce(i iss,10 is C11closed for your reconinjol)j1plions will be aPPIcciatod. Considoration, and your c0niments and/or Sincerely, SlAbdivilloll ACIF111 Ws h'ator (371-692 1) (I'1041SO rcspojid below aiid return Illis lellor whil YOUr coninielits for our records,) — — ---------- _Ar)proved as Subtnitted. FI�LFAS , Aej-j�fjW COMMriNTS BY Lchl Mir (8) requirod (Seo .4L7.jQ04� Wtilchvd Plat or dewription.) .�710 all "With',V: if an easenicl;t jy e-yc9TS Of 10feel in ipidtliproi,idejustiffcationfo tj$ ea.veinelit ol, f1jir rCqjj0 ,sj '411 riot be inclodeil III the pj[zfjHj-j1g C0'r.#z1),4vsj011 t r e Igentla. CoI11111CAI(N; F.SOVI LITTLE ROCK ENGIDIEERIIIN:3 a' Or L 6 : 1�3/ST. 1 6 : 27, NO 1.86,005555 P LI"'y Of LJUIG Rock DOE ---- 1123 W-1 M-kh-" P�,hm--Rnts &U JDALT13, Mo 'J aN-43S or 371.15M ZOMng and Febru2rY 3,2004 SubdMSlon J caN UzRGY ( 2) OM'e W4rci]Omse Long*,,�aj pCD ARKLA TYPE OF ISqUE. Off]" IN'.41-chme Southwestem BeH T,bephone (2) Flu NEjrq1ja-, Z -621-9-A Cevltr8l Arkausn IV, LOCATIO_N:.S LiWe kxk Wast. WC C"13trth Road and Bella Rosa 0 PUIL'*d Coun: Mao 0 y ninz LiWe RIOck Fire Dqparrmm, 'Ub,"' M;'orks-,E,9jn0erjrg, rm Mc (2) 'Patk-S and Recredfi= Depam tr, e,% PlAnniag and De�,ejopmen, Review plamn'ng and Deve]OPMCW GYVj',, CATA TO WHO ITINJAY CONCERN: SW8T CC). OXI -MaL'—" 1 L 2LO4--the Little Rock Plami,,g Commigsion Will C0I,Id,, INOTE: The Interdepartmeyltal Meeting at Which th; - the above referenced issue. Is Lssi2e will be discussed will be held on Fe NOTE: The SubdiAsion CominitteeMeeting at 1,,Lch this ��b�rua A copy of the Plan for the referenced 'ssue Will be d�-Scussedwijj be held on F9�19 recommendations will be appre.,iat6d. isslie, is enclosed fox your Considerador, and your Sincerely, c0mmlents and/or gDk, janaes subdivision Administrator (371-6821) and J'et= ab Y' th your commont,, for our records.) ----Approvt-,d as Submitted. E RE PN COM-��7S 1�3y��� ----�S I J� PLE sE REIjp _N COM Ea"men! (4) requifed Mee attach d P�1,2t or descap ;Y0 all ;W716e'. ,94seme.11 op, Ile peg 1-9 excess IV fei I,, *idf h, PJa vide QMmerLj: "S' """ -ot h- fIW4r-"'I'i 4�1 'k, Pf",,ir C0MMrS,.,q, agendz atiOnforthe Y: ---- .1 ZI-sule FEB -17-2004 TUE 06:22 PH RELIANT ENERGY ARKLA %-ItY Of Liftle Rock DOMrtment 723 Wftl markt, O'f Pli""Infq and Do �am stmet lopm Lo '3c'k, Arkahsus 72201.1,434 Ll P�:: (501) 371,479a . F4r (SO 1) 39a-3408 0(371 .69,63 DATE: Febmary 3, 2004 r—� FAX NO. 5013774520 P. 05 Planning Zoning and Subdivision TYPIt, 0* rD, elift RD$:' Or"Cc W-It-chouse Long-forin -pCD �4AME- JS'5U-1�9' Office Warehouse Devolopznellt PHIL, NUNIBIq?. Z -6219-A 1'0CA"'0N- WC Cantrell Ro.,Id and Bell., RO&I 0 � U L Im P'ul)lic Works' En,000ed'19, Traffic (2) ,,.Irks and Recra',U012 DopIrtalmm 13 111JI31 i a I'lanrl Is and T)CVejop.")ejjt — Sitt; Plan P'c view U ing and 1)4�VQI%Ment Graphics CATA TO WHO IT rvrAV CONCERN: On 1110 Little Rock plan , ning Con""Iss"'I will Consider tho above rofereqced iss... Mecting at Wh,011 t1lis h3sue will bo discusscd will be lj,�,Jd o1z NOTH: 7110 Stibdiv!Nlon Comillittee Mo Eft—a�rjl 3.L0 QA, 'etin.0 at Whidi ftq i-qsue will be discussed will be held on E1�1-12'VY_l A COPY Of tha plan for U10 tQfVr-,1., A : Will be Sincoroly, 0 IN, '1211IC-3 8"WiViSlon Adi-41ill"stta(01- (371-6821) s,9110 is cnclo�cd fOr Your Colisideration, and your eornTrients alld/or WkIM M&I)ond b�,Jow azld retuin "�"er witll YOur comments fOr our records,) APPM�dggjs Stthmitted. FPLBAS—LRF-1— ' %-UMMF FTUkN COMM8NIT'S 13Y L11hrt UA1rXL_.77 20_04. —Lalietnejit (8) required (Sea g It -1c. hed p�lat or descripti.,,.) If an e4seltleylt It req,110Ste fit o q .vs 0 11011 f oet Me M r"Nemem Op 111L. request Ivill hot fie 11scirided pj,7'T1jj.jjg Collitnissioij agc Comments: 'pida. Y.. ENTERGY (2) AR KLA -Southwwayt, T1.1i 1,elepl, mic (2) '�3'Mtml "'CE18 ROr,L WaStawarer M 1)IIIaSk"i CIOLincy P1.1nji., 0 [Ame Rock Fil-0 j)r!m.*mm FAX NO. 5013774520 P. 05 Planning Zoning and Subdivision TYPIt, 0* rD, elift RD$:' Or"Cc W-It-chouse Long-forin -pCD �4AME- JS'5U-1�9' Office Warehouse Devolopznellt PHIL, NUNIBIq?. Z -6219-A 1'0CA"'0N- WC Cantrell Ro.,Id and Bell., RO&I 0 � U L Im P'ul)lic Works' En,000ed'19, Traffic (2) ,,.Irks and Recra',U012 DopIrtalmm 13 111JI31 i a I'lanrl Is and T)CVejop.")ejjt — Sitt; Plan P'c view U ing and 1)4�VQI%Ment Graphics CATA TO WHO IT rvrAV CONCERN: On 1110 Little Rock plan , ning Con""Iss"'I will Consider tho above rofereqced iss... Mecting at Wh,011 t1lis h3sue will bo discusscd will be lj,�,Jd o1z NOTH: 7110 Stibdiv!Nlon Comillittee Mo Eft—a�rjl 3.L0 QA, 'etin.0 at Whidi ftq i-qsue will be discussed will be held on E1�1-12'VY_l A COPY Of tha plan for U10 tQfVr-,1., A : Will be Sincoroly, 0 IN, '1211IC-3 8"WiViSlon Adi-41ill"stta(01- (371-6821) s,9110 is cnclo�cd fOr Your Colisideration, and your eornTrients alld/or WkIM M&I)ond b�,Jow azld retuin "�"er witll YOur comments fOr our records,) APPM�dggjs Stthmitted. FPLBAS—LRF-1— ' %-UMMF FTUkN COMM8NIT'S 13Y L11hrt UA1rXL_.77 20_04. —Lalietnejit (8) required (Sea g It -1c. hed p�lat or descripti.,,.) If an e4seltleylt It req,110Ste fit o q .vs 0 11011 f oet Me M r"Nemem Op 111L. request Ivill hot fie 11scirided pj,7'T1jj.jjg Collitnissioij agc Comments: 'pida. Y.. WOEMICK &-WOEMICK ,rNr3INFF-R6 - PLANNE96 - OURVEYOR5 February 2, 2004 Donna James Subdivision Administrator Department of Planning and Development 723 West Markham Street Little Rock, AR 72201 RE: PCD Application Bella Rosa Office Warehouse Dear Ms. James: We are herewith submitting the abovecaptioned project for review. The project consists of 7.5 Acres, located on Bella Rosa & Hwy. 10. The property is currently zoned R-2. The owner plans to develop office warehouse development. If you have any questions or comments regarding this submittal, please advise. Sincerely, McGetrick & McGetrick, Inc. Patrick M. McGetrick, P.E. President PM:rm 319 President Clinton Ave. (Market Row) #202 Little Rock, Arkansas 72201 501-223-9900 fax 501-223-9293 AFFEDAVIT I M, certify by my signanixe bolow that I hereby authorize to art as my agent regarding the 13H-alftNA :�Yrf the below described propertY. Property de3mbed as: 0&-Z" r,5p5ov ,va-fi, signatuic Ortkle�chwr— - - Date Subscribed and swom to me a Notary Public an tWs. - �nd day of 7i�ehmw. F ()O=F.F[CLALLS P EAL, Rachel -S. Menzies I ,YP S" NI bj'7re'r ka,-, a ta"YPub"c,SIOIeQfArkansas M MY,7 ",.'y of Gra-7 " C0092Y of Grant Y C �ss '2010 DMMISSIOn ap 0 - n Ex � 3/22,12010 My Commission Expires: qW ) ar) RIM ity-of Little Rock' epartment-ol''Plann * ing *.nd Development 23 West Maekham We Rock. Arkan.-- 72 -120t -Q34 TO: COMPANY: FAX"NO. PHONE NO FAX. COVER SHKE21T 1-00 FIROX:- A - DEPARTMENT: C� FAX NO.:- (50J) 3�1-6863 pH0j_qE. NO. TOTAL X076MER OF PAGES XNCLUDING COVER 15WEET:— J CO201ENTS OF F 0 C/ f"Lo S- u k c- 4, A/it A (d 4-) ro ro, Cf) Cf) rT4 44 F34 0\0 Pi C4 U) W W 0 [:L4 C)l C)l Ol 0') FZ4 fz� W JD� P� -rA Cf) C/) CO E—i u u u Ij 0 r4 f::� 0 F:� F:� 0 Cf) C) C) c) Cf) 124 pi .r -i 10 C) CD C:) CD C) OD (y) Cl) U) U-) 4;41 (1) CD CD %, *A6 moo %, Ln QO m 44 0 > 00 clli (N (N C) 0\0 r--1 CNWk. 8 r--1 co Ln r - Q0 N F:� U) Cf) 0 U) PQ 12L4 0 4-) U �4 (1) 0 1:4 o P� 00 4-) U) 5� 0 0 F1 FJ4 U) 0 z �D u F:� Z �D E-1 Cf) 12L4 H C-) U) �D F -q 0 F::� F:� Z U F34 �-q 0 12L4 0 W rT4 5� U H z F -q r4 �14 0 U Cf) H U) 12L4 F14 0 or� Q0 u 1 0 12W 5� 9 44 U) m 9 12L4 04 -�04 O> -I u >-A Cf) fz) U) F -q F -q Fq F F -q F F -q f:) z 0) PQ M PQ 0 �D 0 0 F -q PQ . q &A W4 R2 R2 R2 CO 10 R2 LU R2 R2 L R2 R2>- R2 -J,; R2 -J. F- T MAS PAR R2 R2 R2 R2 ts ED R2 R2 CAN-rReL R2 0 R2 R2 R2 cup POD UP 46 0 x 1 0 0 J < R& 06- :8:':) aD R 2 z 9 11 Wz R2 9M OD Os R2 Cf) PR 9 r AF-. R2 c. LU R2W 8 WOODALL R2 R2 �0- ! C2 0 CUP El R2 P R2 fg;�REST go AF 'ST R2 am <1 et� Ir UJ PR R2 Ego N, 1 45 R2 R2 CUP 40 R2 R2 '4� 01a GL 4& PR R2 w 0. nN11 Rj. R2 R2 M me Area Zoning Case: Z -6219-A Location: Southwest Comer Cantrell Road & Bella Rosa Ward: 5 PD: 1 CT: 42.06 TRS: T2NR14W24 0 145290 580 Feet Land Use Case: Z -6219-A Location: Southwest Corner Cantrell Road & Bella Rosa Ward: 5 PD: 1 CT: 42.06 TRS: T2NR14W24 0 130260 520 Feet ORDINANCE NO. 19,072 AN ORDINANCE APPROVING A PLANNED ZONING DEVELOPMENT AND ESTABLISHING A PLANNED OFFICE DISTRICT TITLED BELLA ROSA DRIVE LONG - FORM POD (Z -6219-A) LOCATED ON TTTE SOUTE[WEST CORNER OF CANTRELL ROAD AND BELLA ROSA DRIVE, IN TBF- CITY OF LI-17LE ROCK, PULASKI COUNTY, ARKANSAS, AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF LITTLE ROCK; AND FOR OTHER PURPOSES. BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS. SECTION 1. That the zoning classification of the following described property be changed from R-2 to POD: Part of the SE 1/4 Section 13, and Part of the NE '14 Section 24, T -2-N, R -14-W Pulaski County, Arkansas more particularly described as: To the point of beginning thence S 01'10'02" E, 706.72 feet; thence N 77-27'12" W, 119.18 feet; thence N 61041'17" W, 171.12 feet; thence N 42-20'02" W, 179.13 feet; thence N 27'15'51" W, 187.94 feet; thence N 00007'06" W, 36.55 feet; thence N 29'19'41" W, 89.33 feet; thence N 31-044'33" W, 103.05 feet; thence N 03'40'13" E, 201.42 feet; thence S 85-029'3 8" E, 253.88 feet; thence S 7415 1'28" E, 314.69 feet to the point of beginning containing 7.5 acres more or less. SECTION 2. That the preliminary site development plan/plat be approved as recommended by the Little Rock Planning Commission. SECTION 3, That the change in zoning classification contemplated for Bella Rosa Drive Long-forin POD is conditioned upon obtaining a final plan approval within the time specified by Chapter 36, Article VII, Section 36-454 (e) of the Code of Ordinances. SECTION 4. That the map referred to in Chapter 36 of the Code of Ordinances of the City of Little Rock, Arkansas, and designated dis-trict map be and is hereby amended to the extent and in the respects necessary to affect and designate the change provided for in Section I hereof. SECTION 5. That this Ordinance sball not take effect and be in full force until the final approval of the plan. SECTION 6. Severability, In the event any title, section, paragraph, item, sentence� clause, phrase, or word of this ordinance is declared or adjudged to be invalid or unconstitutionaL such declaration or adjudication shall not affect the remaining portions of the ordinance which shall remain in fall force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of the ordinance. SECTION 7. Repealer. All laws, ordinances, resolutions, or parts of the same that are inconsistent with the provisions of this ordinance are hereby repealed to the extent of such inconsistency. PASSED: APRIL 6,2004 ATTEST: tee r k Ci 2 APPROVED� Ma City of Little Rock Department of Planning and Develdpment Planning 723 West Markham Street Zoning and Uttle Rock, Arkansas 72.201-1334 Subdivision Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 April 25, 2004 Mr. Pat McGetrick McGetrick and McGetrick Engineers 3 19 President Clinton Avenue, Suite 202 Little Rock, AR 72201 Re: Belle Rosa Drive Long -form POD (Z -6219-A), located on the southwest comer of Cantrell Road and Bella Rosa Drive Dear Mr. McGetrick: Enclosed please find a copy of an Ordinance adopted by the Board of Directors at their April 6, 2004 Public Hearing approving the above referenced development. The Planning Commission made a recommendation of approval of the request at their March 11, 2004 Public Hearing. Please submit three copies of the approved preliminary plan to me as soon as possible so your file maybe closed out. If you have any questions concerning these ordinances, please feel free to call me at 3 71-682 1. Respectfully, &nnes, AICP Subdivision Administrator OFFICE OF THE CITY MANAGER LITTLE ROCK� ARKANSAS BOARD OF DIRECTORS COMMUNICATION APRIL 6,2004 AGENDA Subject Action Required Submitted By An Ordinance establishing 40rdinance a Planned Zoning District Resolution titled Bella Rosa Drive Approval Long -form POD (Z-6219- Information Report A), located on the Southwest comer of Cantrell Road and Bella Rosa Drive Bruce Moore City Mwiagei- SYNOPSIS The applicant proposes to rezone the site from R-2 to POD to allow the site to develop with an office/mini-warehouse development. FISCAL IMPACT None. RECOMMENDATION Staff recommends approval of the requested rezoning to POD. The Planning Conu-nission voted to recommend approval of the requested rezoning, as recommended by Staff, by a vote of 9 ayes, 0 noes and 2 absent. CITIZEN The Planning Commission reviewed the proposed POD PARTICIPATION request at its March 11, 2004 meeting. There were no objectors present. All property owners within 200 feet of the site, all residents within 300 feet, who could be identified, the Westchester/Heatherbrae Neighborhood Association, the Secluded Hills Property Owners Association and the Charleston Height/North Rahling Road Neighborhood Association were notified of the Public Hearing. BACKGROUND The Planning Conunission previously reviewed and denied a request to rezone the site from R-2, Single-family to POD to allow the site to develop with limited office space, conditioned storage and mini -storage. The proposal BACKGROUND CONTINUED included the placement of 102,775 square feet of improvements, containing approximately 18,000 square feet of office and office/warehouse space, including an on- site manager's office and apartment comprising approximately 1,600 square feet. The balance of the project was to be self -storage units. The applicant proposed the perimeter of the two buildings located adjacent to Cantrell Road to be constructed of "drivet"' wall system over a steel super structure mixed with glass office front. The roof system was to be a flat roof hidden behind a metal parapet. The self -storage units were proposed as metal system over a steel structure with access provided by overhead doors. The site contains 7.5 acres located on the southwest comer of Cantrell Road and Bella Rosa Drive. The applicant intends to develop the site with a total of 82,800 square feet of office/retail (0-3 uses with the allowable ten percent of the total square footage as the listed accessory uses) and mini -warehouse buildings. The site will contain a single building of office/retail (0-3 uses with the allowable ten percent of the total square footage as the listed accessory uses) containing a total of 29,000 square feet and an office/managers residence for the mini - warehouse development. A second building will contain 28,000 square feet of conditioned storage accessed from interior halls, There are three buildings of stand-alone mini -warehouse buildings containing a total of 25,800 square feet of space. The total building coverage proposed is 34.3 percent with 27 percent of the site designated as landscaped/green space area. The site contains 117 parking spaces with 19 spaces proposed for boat and RV storage. The applicant has indicated the days and hours of operation from 7 am to 8 pin seven days per week, The mini -warehouse will have 24-hour access. Otherwise, to Staffs knowledge, there are no outstanding issues associated with the proposed request. Please see the attached Planning Commission minute record and site plan for the applicant's specific development proposal and the staff analysis and recommendation. 2 ORDINANCE NO. AN ORDINANCE APPROVING A PLANNED ZONING DEVELOPMENT AND ESTABLISHING A PLANNED OFFICE DISTRICT TITLED BELLA ROSA DRIVE LONG - FORM POD (Z -6219-A) LOCATED ON THE SOUTHWEST CORNER OF CANTRELL ROAD AND BELLA ROSA DRIVE, IN THE CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS, AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF LITTLE ROCK; AND FOR OTHER PURPOSES. BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS. SECTION 1. That the zoning classification of the following described property be changed from R-2 to POD: Part of the SE 1/4 Section 13, and Part of the NE V4 Section 24, T -2-N, R- 1 4-W Pulaski County, Arkansas more particularly described as: To the point of beginning thence S 01010'02" E, 706.72 feet; thence N 77027'12" W, 119.18 feet; thence N 61"41'17" W, 171.12 feet; thence N 42020'02" W, 179.13 feet; thence N 27'15'51" W, 187.94 feet; thence N 00007'06" W, 36.55 feet; thence N 29'19'41" W, 89.33 feet; thence N 310044'33" W, 103.05 feet; thence N 03'40'13" E, 201.42 feet; thence S 850029'38" E, 253.88 feet; thence S 74051'28" E, 314.69 feet to the point of beginning containing 7.5 acres more or less. SECTION 2. That the preliminary site development plan/plat be approved as recommended by the Little Rock Planning Commission. SECTION 3. That the change in zoning classification contemplated for Bella Rosa Drive Long-forin POD is conditioned upon obtaining a final plan approval within the time specified by Chapter 36, Article VII, Section 36-454 (e) of the Code of Ordinances. SECTION 4. That the map referred to in Chapter 36 of the Code of Ordinances of the City of Little Rock, Arkansas, and designated district map be and is hereby amended to the extent and in the respects necessary to affect and designate the change provided for in Section I hereof. SECTION 5. That this Ordinance shall not take effect and be in fall force until the final approval of the plan. SECTION 6. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or word of this ordinance is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of the ordinance which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of the ordinance. SECTION 7. Repealer. All laws, ordinances, resolutions, or parts of the same that are inconsistent with the provisions of this ordinance are hereby repealed to the extent of such inconsistency. PASSED: ATTEST: City Clerk 2 APPROVED: Mayor /� , - ft I am . R2 R2 R2 co - a _j R2 LU R2 R2 Q R2 R.2>� R2 R2 =1 (b IN M i-- T OMAS PA R2 R2 R2 AA� PAR� R2 R2 via. Ito'. R2 R2 R2 :�AIVTF?ELL R2 9 R2 R2 M? K2 R2 �L T P CUP 0 POD LU ab ago Jlr� x 0 10 p �cl U Rb Of 9 �QD 0 R2 _j _fL EmJ ZI 11 TIE! M.— I Is 2 (0 OD OS PR IiR2 _j AF. LU ILA 11 WOODALL R2w D < - R2 cc.; R2 Is M i PR cup 710 R2 Of R2 WREST LU AF FDR ST R2 R2 6 f? PR R2 R2 Gf CUP C, R2 R2 4 0�a GL k 4�b PR R2 Lu R2 R2 Area Zoning Case: Z -6219-A Location: Southwest Comer Cantrell Road & Bella Rosa Ward: 5 PD: I CT: 42.06 TRS.: T2NTRt4W24 0 145290 580 Feet — me SF PKIOS SF T T T I�YCANTR PSir IO.OAP jig3 PKJOS SF SF PK/OS WOODALL jo SF SF PKIO P70REST M)REST iOri SF ?'SF 0 SF SF Ej 0 SF C> CDP L ly SF SF SF PKII 0 of Btu Land Use Case: Z -6219-A Location: Southwest Comer Cantrell Road & Bella Rosa Ward: 5 PD: 1 CT: 42.06 0 130260 520 Feet TRS: T2NR14W24 MMMMM=� TRST2NR14W24 LONG -FORM PCD ev� cT_�L2.06 Z -6219-A PD I - SOUTHWEST CORNER OF CANTRELL ROAD FNORTH WARD 5 AND BELLA ROSA 403 of the Little Rock code. Contact Traffic Engineering at (501) 379-1813 (Steve Philpott) for more information regarding street light requirements. Utilities and Fire Department/County Planning: Wastewater. Sewer available, not adversely affected. Entergy: No comment received. Center -Point Enerq : Approved as submitted. SBC: No comment received. Central Arkansas Water: All Central Arkansas Water requirements in effect at the time of request for water service must be met. The facilities on-site will be private. When meters are planned off private lines, private facilities shall be installed to Central Arkansas Water's material and construction specifications and installation will be inspected by an engineer, licensed to practice in the State of Arkansas. Execution of Customer Owned Line Agreement is required. A Capital Investment Charge based on the size of the connection(s) will apply to this project in addition to normal charges. This fee will apply to all meter connections including any metered connections off the private fire system. This development will have minor impact on the existing water distribution system. Proposed water facilities will be sized to provide adequate pressure and fire protection. The Little Rock Fire Department needs to evaluate this site to determine whether additional public and/or private fire hydrant(s) will be required. If additional fire hydrant(s) are required, they will be installed at the Developer's expense. Due to the nature of this facility, installation of an approved reduced pressure zone backflow preventer assembly (RPZA) is required on the domestic water service. This assembly must be installed- prior to the first point of use. Central Arkansas Water (CAW) requires that upon installation of the RPZA, successful tests of the assembly must be completed by a Certified Assembly Tester licensed by the State of Arkansas and approved by CAW. The test results must be sent to CAWs Cross Connection Section within ten days of installation and annually thereafter. Contact Carroll Keatts at 992-2431 if you would like to discuss backflow prevention requirements for this project. Contact Central Arkansas Water at 992-2438 for additional information. Fire Department: Maintain a 20 -foot access and a 20 -foot gate opening. Place fire hydrants per code. Contact the Little Rock Fire Department at 918-3752 for additional details concerning turning radius. County Planning: No comment received. CATA: No comment received. Planninq Division: This request is located in the Chenal Planning District. The Land Use Plan shows Transition for this property. The applicant has applied for a Planned Commercial Development for offices and mini -warehouses. The request does not require a change to the Land Use Plan. However, the development needs to occur at a small scale and intensity low enough to minimize the impact of development on neighboring properties. City Recognized Neighborhood Action Plan: The property under review is not located in an area covered by a City of Little Rock recognized neighborhood action plan. Landscape: If sufficient vegetation e�i�ts al�hg the floodway (western perimeter of the site) that would satisfy the year around screening requirement, additional evergreen plantings or a 6 -foot high wooden fence requirement may be wavered, should this area be shown to be preserved. However, a six (6) foot high opaque screen, either a wall, or wooden fence with its face side directed outward, or dense evergreen plantings, is required if insufficient vegetation exists in the floodway area. The proposed interior landscaping falls short of the 8 % landscaping requirement. This is a requirement of the landscape ordinance. Interior islands should be generally distributed throughout the vehicular use area. Landscape islands are to be a minimum of 150 square feet in area and a minimum width of seven and one-half feet. Building landscaping cannot count towards fulfilling interior landscaping requirements. An automatic irrigation system to water landscaped areas will be required. Prior to a building permit being issued, it will be necessary to provide an approved landscape plan stamped with the seal of a Registered Landscape Architect. The City Beautiful Commission re ' commends preserving as many existing trees as feasible on this tree -covered site. Credit toward fulfilling Landscape Ordinance requirements can be given when properly preserving trees of six (6) inch caliper or larger. Revised plat/plan: Submit four (4) copies of a revised preliminary plan (to include the additional information as noted above) to staff on Wednesday, February 25, 2004. ma;jej 2-j ( 9 to'f �? - CZ-) �-4 NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A REZONING THROUGH A PLANNED DEVELOPMENT TO ALL RESIDENTS IN THE VICINITY OF THE PROPERTY AT: GENERAL LOCATION OR ADDRESS: On the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY: Hwy 107 Associates, LLC REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) – A request to allow the placement of 29,000 square feet of commercial/office space and 53,000 square feet of mini -warehouse on the site. NOTICE IS HEREBY GIVEN THAT an application for Rezoning – (Planned Developmen!) of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L. R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 11, 2004 at 4:00 P.M. This notice is provided in order to assure that area residents are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning Staff (Donna James) at 371-4790. NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A REZONING THROUGH A PLANNED DEVELOPMENT TO ALL RESIDENTS IN THE VICINITY OF THE PROPERTY AT: GENERAL LOCATION OR ADDRESS: On the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY.-- —Hwy 107 Associates, LLC REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) –A request to allow the placement of 29,000 sguare feet of commercial/office space and 53,000 square feet of mini -warehouse on the site. NOTICE IS HEREBY GIVEN THAT an application for Rezoning – (rianned Developmen of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L. R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on Mai -ch I I � 2004 at 4:00 P.M. This notice is provided in order to assure that area residents are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning Staff (Donna James) at 371-4790. NOTICE OF PUBLIC HEARING BEFORE THE'LITT�E ROCK PLANNING COMMISSION ON A REQUEST FOR A REZONING THROUGH A PLANNED DEVELOPMENT TO ALL RESIDENTS IN TIHE VICINITY OF THE PROPERTY AT: GENERAL LOCATION OR ADDRESS: On the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY:— 107 Associates. LLC REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) — A request to allow the placem of 29,000 square feet of commercial/office space and 53,000 sguare feet of mini -warehouse on the site. NOTICE IS HEREBY GIVEN THAT an application for Rezoning — (Planned Developmela of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L. R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 112 2004 at 4:00 P.M. This notice is provided in order to assure that area residents are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning Staff (Donna James) at 371-4790. NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A REZONING THROUGH A PLANNED DEVELOPMENT TO ALL RESIDENTS IN THE VICINITY OF THE PROPERTY AT: GENERAL LOCATION OR ADDRESS: On the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY: 107 Associates, LLC REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) — A request to allow the placement of 29,000 square feet of conimercial/office space and 53,000 square feet of mini -warehouse on the site. NOTICE IS HEREBY GIVEN THAT an application for Rezoning — (Planned Development) of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L. R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 11, 2004 at 4:00 P.M. This notice is provided in order to assure that area residents are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning Staff (Donna James) at 371-4790. City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Uttle Rock, Arkansas 72201-1334 Phone: (501) 371-4790 ' Fax: (501) 399-3435 or 371-6863 Subdivision NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A PLANNED UNIT DEVELOPMENT TO: Charleston Heights/North Rahling Road Neighborhood Association ATTENTION: Mr. Roger Guinee ADDRESS: 110 Charleston Lane Little Rock, AR 72223 REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) — A request to allow the placement of 29,000 square feet of office space and 53,000 square feet of mini - warehouse space on the site. GENERAL LOCATION OR ADDRESS: located on the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY: HWY 107 Associates NOTICE IS HEREBY GIVEN THAT an application for a Planned Unit Developmen of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L.R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 11, 2004 at 4:00 P.M. This notice is provided in order to assure that neighborhood associations are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning staff at 371-4790. Steve Beck, Interim Director EtCity of Liftle Rock Department of Planning and Development 723 West Markham Street Little Rock, Arkansas 72201-1334 Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A PLANNED UNIT DEVELOPMENT TO:— Secluded Hills Property Owners Associatior ATTENTION: Ms. Bettv Creston ADDRESS: 14523 Shepard Drive Little Rock.. AR 72223 Planning Zoning and Subdivision REQUEST: Bella Rosa Drive Long -form PCD (Z -6219-A) — A request to allow the placement of 29,000 square feet of office space and 53,000 sguare feet of mini - warehouse space on the site. GENERAL LOCATION OR ADDRESS: located on the southwest comer of Cantrell Road and Bella Rosa Drive OWNED BY: HWY 107 Associates LLC NOTICE IS HEREBY GIVEN THAT an application for a Planned Unit Developmen of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L.R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 11, 2004 at 4:00 P.M. This notice is provided in order to assure that neighborhood associations are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning staff at 371-4790. Steve Beek, Interim Director City of Little Rock ILDepartment of Planning and Development Planning 723 West Markham Street Uttle Rock, Arkansas 72201-1334 Zoning and Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 Subdivision NOTICE OF PUBLIC HEARING BEFORE THE LITTLE ROCK PLANNING COMMISSION ON A REQUEST FOR A PLANNED UNIT DEVELOPMENT TO: WestchesterfHeatherbrac Neidborhood Association ATTENTION: Ms. Rose MM Robinson ADDRESS: # 6 Westchester Cove Little Rock, AR 72223 REQUEST: Bella Rosa Drive Lonjz-forrn PCD (Z -62197A) — A reauest to allow the placement of 29,000 square feet of office space and 53,000 square feet of mini - warehouse space on the site. GENERAL LOCATION OR ADDRESS: located on the southwest comer of Cantrell Road and Bella Ro.s.a Drive OWNED BY: HWY 107 Associates LLC NOTICE IS HEREBY GIVEN THAT an application for a Planned Unit Development of the above property has been filed with the Department of Planning and Development. A public hearing will be held by the L.R. Planning Commission in the Board of Directors Chamber, second floor, City Hall, on March 11, 2004 at 4:00 P.M. This notice is provided in order to assure that neighborhood associations are aware of issues that may affect their neighborhood. Information requests should be directed to the Planning staff at 371-4790. Steve Beck, Interim Director U -I -- R2 R2 R2 Co. F4i R2 R2 R2 lz� e R2 R2 >- R2 R2 -j -j F— THOMAS PAR R2 R2 R2 0 n R2 R2 R2 ��C�AN ...... ...... ...... R2 R2 R2 R2 P V) . @I CUP 0 POD W' Elf 0 0, U < Rb RODI 0 R2 R2 El (n OD OS 13 R2 _j PR -3 L-- AF 'R2 cz) LWU WOODALL in; R2W R2 R2 ED . ��T 0% � PR R2 Of R2 M EST MREST 00 fill AF R2 (�3 0 R2 19 A LLI PR R2 R2 4) 1& CUP 0 0 R2 R2: k 0- GL- Z�2 PR R2 Ej 120 cil CDC R2 SP R2 R EDO a Area Zoning Case: Z -6219-A Location: Southwest Corner Cantrell Road & Bella Rosa Ward: 5 PD: I CT: 42.06 TRS: T2NR14W24 0 145 290 580 Feet ommmrz::zm� OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 3 10 Little Rock, Arkansas 72201 (501) 371-4527 By:_,�:�I-- X4 Thomas M. Cairpen�e� Arkansas Identification No. 77024 By: ---< (A60"-kman Fields Arkansa-s—rdentification No. 89058 Certificate of Service 1, Thomas M. Carpenter, counsel for the City defendants, certify that a true and correct copy of the foregoing DEFENDANT CITY OF LITTLE ROCK'S CLOSING ARGUMENTS was served on opposing counsel by mailing a copy of same, first class postage prepaid, to Roger H. Fitzbiggon, Esq., and Kelly W. McNulty, Esq., GILL, ELDROD, RAGON, OWEN Et SHERMAN, P.A., 425 West Capitol Avenue, Ste. 3801, Little Rock, Arkansas 72201, on 06 December 2006 in accordance with Ark. R. Civ. Proc. 5(b). By: Thomas M. Carpenter Arkansas Identification No. 77024 [Page 12 of 121 11/2P/06 17:33 FAX 501 372 3359 GILL ELROD RAGON IN THE CIRCUIT COURT OF PULASKI COUNTY, A UC&NSAS 12"' DIVISION KAC LIMITED, LLC, d1b/a JIM'S RAZORBACK PIZZA V. CASE NO. 06-6954 CITY OF LITTLE ROCK, ARKANSAS, AND ITS MAYOR AND BOARD OF DIRECTORS: JIM DAILEY; JOHNNIE PUGH; WILLIE HINTON; GENEVIEVE STEWART; DEAN KUMPURIS; BARBARA GRAVES; JOAN ADCOCK; BRENDA WYRICK; BRAD CALORT; STACY HURST; AND NUCHAEL KECK PLAINTIFF'S CLOSING ARGILA�NTS Z002 Z006 HIGN 29 PM 3: 07 F1,14'r 01a0JJ'EWF 'IRCUI I - DEFENDANTS By previous Order, the Court has already rejected Defendants' arl ument that this Court does not have jurisdiction over these claims or the authority to enter the requ !sted relief. As requested, Plaintiff has attempted to put forth the remaining arguments and clail LS for relief in an orderly fashiorL I. K,4,C is Seeldng a Declaratox-Y Judgment that the Deferi [ants Do Not Have the Authori!y to Control the Hours of Operation of Jim"s -Razorb ick Pizza This inquiry is the underlying basis for all claims for relief before the Court in this case. Claim for Relief KAC Limited, LLC d/b/a Jim's Razorback Pizza ("KAC") se( �s a declaratory judgment finding that the Defendants do not have the power to control Jim's I azorback Pizza's hours of operation absent a substantial showing of the need for such control to I -otect the health and safety of the public. 11/29/06 17:33 FAX 501 372 3359 GILL ELROD-RAGON 003 (b) L�gal Fau—im—dAfiffll Arkansas law provides that a municipal government does not ha: e the right to control the hours of operation of a lawful business, unless, there is a clear and mea ingful showing that such control is necessary to protect the health, safety and general welfare Of tl 5 Public- Noble v. Davis, 204 Ark. 156, 161 S.W,2d 189 (1942). A naked statement to that affect m 11 not be adequate. A statute or ordinance which has no real, substantiaL or rational rt ation to the public sakty, health, moral, or general welfare is a palpable invasion o 'rights secured by fundamental law and cannot be sustained as a legitimate exe! -,ise Of the police power...a. constitutional right cannot be abridged by legislation inder the guise of police regulations. ne exercise of the power must have a st )stantial basis and cannot be made a mere pretext for legislation that does not f dl within it. The legislature has no power, under the guise of police regulations, �.-bitrarily to invade the personal rights and liberty of the individual citizen, to ini �zfere with private business or impose unusual and unnecessary restrictions upon laN ful occupations, or to invade property rights. Id. at 160,161 S.W.2d at 191. The Arkansas Supreme Court has unequivocally held that the go', ernment does not have the power to arbitrarily invade the personal rights and liberty of the indivic -ial citizen nor to interfere with private business or impose unusual and unn essary restrictions oi lawful occupations under the guise of police regulations. Id As the Court in Noble stated, '[hlow can ... the hour the [barber] shop opens or closes affect the public safety, health, we fare or prosperity? Such connect . i , on . is visionary and not real." Id Moreover, the use of such n P.tilation must not be more than is required to accomplish the stated goals. Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969). Such regulation is not appropriate when the public health, iafety and welfare can be protected, or is already protected, by other laws. Id KAC has never argued, and does not now contend, that the Dc --endants have no power to regulate businesses. Clearly, it is appropriate for a city to protect its cit zens. However, a city, like all government in the United States, is limited in how it may act with reE Ird to limiting the activities L'IWBSW,AC LaCM, LLMJ.di.P\P=-WW ftd.d- -2- 11/29/06 17:33 FAX 501 372 3359 GILL ELROD RAGON Z004 of its citizens. The Arkansas Supreme Court has long recognized that no: Idividual can be deprived of the right to engage in lawful business in any manner he or she sees P, Ter, so long as he or she does not use such right in a manner to injure others. Balesh v. ffot Spring , 173 Ark. 661, 293 S.W. 14 (1927). All zoning authority necessarily emanates from the Police Pc vers granted to the states. Euclid v. Ambler Realty Company, 272 U.S. 365 (1926). Withou clear authorization, the government has no right or power to act in any waY that tramples upon itE citizens - The Arkansas Supreme Court has also clearly stated that cities, si ch as Defendant, have the ability to place reasonable limits on conduct if it is necessM to pror -,ct the health, safety and welfare of the public. Springfield v. City of Little Rock, 226 Ark. 46: 290 S.W-2d 620 (1956). Since the Police Power of the state is founded in the public necessit) this necessity MUST be present in order justify the exercise of such power. Id (c) Application of Law Lo -thefacts The question before this Court is whether the operation of KAC' pizza shop past 8:00 P -m - presents a danger to the health, safety and welfare of the citizens such th I it is sufficient to serve as the basis for the limitation of KAC's hours of operation? Additior dly, was such an interest ACTUALLY the basis for the City placing the hours of operation lim tation on Jim's Razorback Pizza? The fact that the Ordinance is silent on the issue of hours of , peration. indicates that the Defendants did not have any health, safety, or welfare concerns when implementing the hours of operation limitation. There was no evidence whatsoever indicating tha the Defendants were ev= aware of such limitation at the time the Ordinance was enacted. Even i lore indicative is that there was no evidence presented at trial which would suggest that the Defend,, ats had any health or safety concerns with KAC's hours of operation when enacting the Ordina: ce. In fact, the evidence IAWBSTAC LpArM, LLM10dipT.9-T�W Bficf.dl. -3- 11/29/06 17:34 FAX 501 372 3359 GILL ELROD RAGON 9005 presented shows that the Defendants only limited the hours because an -ngineer working for the former owner arbitrarily submitted the limited hours as part of a drawing. (Transcript ("Tr.") at 58- 59, 86-91). Donna James, the City subdivision director, testified ii her deposition that the Defendants were unaware that KAC's hours were limited until it was brc ight to their attention at a public meeting by a disgruntled property owner. (James Dep. at 3 1). /loreover, Ms. James was adamant that neither the City nor the Planning Commission required this I mitation. (Tr. at 120). Both Tony Bozynski, Director of Planning and Development, e id Donna James, without exception, stated that they were unaware of any issues regarding the safet , health, or public welfare that would be protected by controlling the hours of operation of a pizz, shop. (Bozynski Dep. at 39-40; James Dep. at 40)(Tr. at 84). Not only is the Ordinance devoid ( F any explicit statement of purpose regarding Police Power interests, but Defendants' representati- es are not even aware of such a purpose. The protection of the health, safety and welfare oJ the public is the ONLY legitimate excuse that the City could use for limiting the freedom Of ICA. Z. However, as is shown by the Ordinance, deposition testimony and the evidence presented at t ial, even that excuse does not exist. The portion of the zoning Ordinance that has been interpreted )y the City to limit KAc,s hours of operation is completely and entirely without basis pursuant I ) the Police Power and is therefore arbitrary. There has been no showin of any harm that will fl( w from pizza be g served 9 and sports being watched past 8:00 p.m. In sum, the Court has before it Arkansas case law wWch deals firectly and unequivocally with the issue presented to this Court and it gives clear direction that cc istitutes binding precedent upon this Court. Defendants do not have the power to control Jim's I azorback Pizza's hours of operation absent a substantial showing of the need for such control to r otect the health and safety of the public and evidence that such control is the least intrusive me ins of accomplishing such L-NWEST�ACLWTM.LLLO.diWU,ost-TrWB,i.r.&C -4- 11/29/06 17:34 FAX 501 372 3359 GILL ELROD RAGON =F purposes. KAC has never argued that the City has no power to regulate L business, it just must do so within the confines of the law. The City has failed utterly in sl )wing such a substantial connection. Permanent tniunction (a) Claim for Rdie KAC seeks an Order granting a permanent injunction prohibitir x the City from imposing any hours of operation limitation on the Plaintiff s business absent a subs, intial showing of the need for such control to protect the health and safety of the public (b) Ltgal Loundation To establish sufficient grounds for a permanent injunction, KA , must show (1) that it is threatened with irreparable harm; (2) that this harm outweighs any njury which granting the injunction will inffict on other parties; and (3) that the public interest .1vors the injunction. See, e.g., Delancy v. State, 356 Ark. 259, 151 S.W.3d 301 (2004). This ourt, sitting as a court of equity, has the authority and jurisdiction to grant the injunctive relief 3ought. See, e.g., Summit Mall Co., LLC v. Lemond, 355 Ark. 190, 201-202, 132 S.W.3d 725, 732 (C) Applicatiop of Law to Facts __.F]1-st,_K_AC will facejqeparabie harm. Keith Hardin ("Mr. H, rdiW' co-owner of KAC, testified that Jim's Razorback Pizza is a dinner -oriented business, as op] osed to breakfast or lunch. (Tr. at 127). Mr. Hardin testified that if the restaurant is forced to shut [own at 8:00 p.m., the vast majority of its revenue will be eliminated and Jim's Razorback Pizza v ill be forced to shut down. (Tr. at 127). Mr. Hardin and Graham Cobb ("Mr. Cobb"), the Operati, ns Manager for KAC, also testified that in addition to lost profits, KAC will lose the time, mone, , and effort it has spent in starting a new business, as well as business opportunity. (Tr. at 23-24; 27-130). Moreover, KAC I IWBMAC LW=- LLCVJ=&-9-1-=-TnW ftcfd. -5- 11/29/06 17:35 FAX 501 372 3359 GILL ELROD RAGON Q007 will face irreparable harm in that the damage to KAC's reputation for rel- ibility and quality will be severely damaged. Jim's Razorback Pizza is a relatively new restaurant i i the Little Rock area. Its reputation as a quality restaurant is a major factor in its continued operE ion. Whether Plaintiff is forced to close at 8:00 p.m., shut down completely, or face harsh penaltit 3 from the City, KAC and Jim's Razorback Pizza will be irreparably harmed due to the damage to it reputation. The evidence presented at trail more than clearly shows that KAC will face irreparable' am. Second, the Defendants will not be harmed by the granting of t] is injunction. Rather, the City of Little Rock will lose tax revenues and a successful Little Rock bi siness if KAC is forced to shut down. Thus, the harm KAC will suffer greatly outweighs any inj- ry granting e j tion th in unc will inflict on other parties. Also, as set forth in detail in Section I of th, Closing Argument, KAC is likely to succeed on the merits of its case as the Defendants do not ha: e the authority to limit the hours of operation. Finally, KAC is entitled to a permanent injunction prohibi ng the Defendants from unlawfully imposing an hours of operation limitation on its business )ecause the public interest clearly favors allowing Jim's Razorback Pizza to remain open past 8:00 p.m. Testimony presented at trial showed that Jim's Razorback Pizza is a faMily-oriented restauran which serves the residents of -Little Rock in an uni ue manner. (Tr. at 14-15; 23-25�. No o y wil the citizens of Little q t nl Rock continue to have a restaurant, as stated above, the City will receive ad( itional tax revenues if this injunction is granted. KAC presented several witnesses which detailed t te harm that would result if the Court did not grant the injunction, while on the other hand the Defen [ants did not produce ANY evidence which would tend to show how the City would be harmed i L any way. Moreover, the public is clearly harmed when the City abuses its police powers as is demonstrated in Section I herein. 1AWESWAC UdrlM), 11/29/06 17:35 FAX 501 372 3359 GILL ELROD RAGON - Z008 Therefore, KAC presented ample evidence to establish sufficiea grounds for a permanent injunction. The evidence presented at trial proved that KAC will fac , irreparable harm if this injunction is not granted, that the harm KAC will suffer outweighs any injury which grantmg the injunction will inflict on other parties, and that that the public interest avors the injunction. For these reasons, KAC requests that this Court enter a permanent injuncti )n against the Defendants prohibiting them from imposing any hours of operation limitation on Jirr s Razorback Pizza, unless they can do so within the confines of the law. 1H. Appeal (a) Ll-aiq!-for Relief KAC petitions this Court to reverse the decision of the Little Rc -k Board of Directors (the "Board7), to enter an Order allowing KAC to operate its business under t ie hours of operation as set forth in Planning Commission File No. Z -6219-D, and to remand th s case to the Board with instructions for the Board to amend the Bella Rosa Revised Long-� 3rm Planned Commercial Development as requested in Planning Commission File No. Z -6219-D. (b) Lmal Foundation Arkansas Code Annotated § 14-56-425 provides for de novo re, iew of the Board's actions �ipoo the petition of an injured party. The power or au ority to be xer ised i a i s ative in its -----s-dmnitr ... -- . . ....... . nature if it simply Pursues a plan already adopted by the legislative boc �. See Gregg v. Hartwick, 292 Ark. 528, 731 S-W.2d 766 (1987). Alternatively, if the Board', refusal is deemed to be legislative action, the Court may review this decision and determine if : is arbitrary. Under either scenario, KAC should prevail. A party has standing to challenge a zon rig decision of a municipal government when that action has an adverse impact on the party. See e., ., Summit Mall Co., LLC V, Lemond, 355 Ark. 190, 204-205, 132 S-W.3d 725, 734 (2003) 1AWRSTLAC LMEM. UACTJ.KUS�ToM-TW Bdd.dm -7- 11/29/06 17:35 FAX 501 372 3359 _GILL ELROD RAGON [Moog (c) ARPlication of Law to -Facts On May 11, 2006, the Little Rock Planning Commission (the "Planning Commission7') voted to approve and support a request by Highway 107 Assoc., LLC, (1 ie "Developer") to amend the previously approved Bella Rosa Revised Long -form Planned ( Dminercial Development, Planning Commission File No. Z -6219-D, to allow a modification in :he hours of operation of Plaintiff's business. On June 6, 2006, the Board denied the recomr. endation of the Planning Commission to allow a modification in the hours of operation of Plainti f s business. On June 20, 2006, the Board failed to rescind its decision of June 6, 2006. Following these actions, KAC timely appealed to this Court. Section I of this Closing Argument, as well as the arguments and widence presented at trial, set forth in great detail why the Defendants have unlawfully restrictec KAC's right to operate a lawful business. The Defendants do not have the power to control Jim s Razorback Pizza's hours of operation absent a substantial showing of the. need for such contrc to protect the health and safety of the public and that such control is the least intrusive mez as of accomplishing such purposes. Noble v. Davis, 204 Ark. 15 6, 161 S.W.2d 18 9 (1942); Dyess v. Williams, 247 Ark. 15 5, 444 S.W.2d 701 (1969). No such showing has been made. Most im )ortantly, an abuse of the Police Power is per Ee arbitrary. City of Little Rock v. Breeding, 270 Ark. 752, 606 S.W.2d 120 (1980). The fact that the City merely made a random or convenient choi e in accepting the hours of operation submitted by an engineer and imposing a limitation based on f is submission is, according to the Arkansas Supreme Court, precisely what can be described as arbi rary. City ofLittle Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994); Smith v. City ofLittle Rc -,k, 279 Ark. 4, 648 S.W.2d 454 (1983); Martin v. City ofBryant, 18 Ark. App. 94, 710 S.W.2d 846 1986). Ms. James testified I:k%WT-AC UWM. .1 F,,: IM.U. -8- 11/29/06 17:36 FAX 501 372 3359 GILLELROD RAGON IM010 that if the original applicant has submitted 9:00 p.m., or another time wh Dh is later than 8:00 P -m-, there would not have been a problem with that and the planning Com nission Staff would have approved it. (Tr. at 88). In fact, the Planning Commission Staff recon mended a closing time of 10:00 p.m.. (Tr. at 89). Based on the evidence presented at trial, and tI -1 case law now before the Court, it is clear that the Defendants' imposition of an hours of operatic i linUitation was a random or convenient choice and therefore arbitrary and capricious. TV. Conclusion Throughout this entire case the Defendants have argued that it h s the authority and power to shut down Jim's Razorback Pizza at 8:00 p.m. The problem, howe er, is that the Defendants have not produced a shred of evidence, case law or statute which would require this Court to come to that conclusion. The Little Rock Municipal Zoning and Subdivi-,.on Code sections do not address or specifically deal with the hours of operation. (James Dep. at, 0). The zoning Ordinance is in derogation of common law and is therefore to be strictly construed n favor of the land owner. City of Little Rock v. Randres, 237 Ark. 658, 375 S.W.2d 370 (1964 ). The Defendants' main argument is that the hours of operation limitation is lawful because ; n engineer for the former owner of the Bella Rosa development offered those restrictive hours as )art of a drawing. Counsel for the Defendants araued that an 8:00 closing time was on the come of a drawing_ffiey call ail approved plat so, according to the Defendants, that must be the appro led hours. Nevermind the fact that the storage units in the approved plat have a different closi: g time. Additionally, the certified copy of the Ordinance on file with the Little Rock City Clerk di es not contain this drawing or even reference it, or any hours of operation limitation. The City Atto aey was quite insistent that the certified copy is the only acceptable copy of the Ordinance that cot d be relied upon by Court. (Tr. at 52-55, 57, 58; see also Ark. Code Ann. § 14-55-402 (requiring c -rdfied copies of municipal LAWBMAC LM=. uZM.�ffip\P.U--r6d Brid.dw -9- 11/29/06 17:36 FAX 501 372 3359 GILL-ELROD RAGON Oil ordinances)). Thus, the. only copy of the Ordinance that may be relied or in a court of law contains no hours of operation limitation. Accordingly, the court should question whether the alleged hours of operation limitation is even an actual part of the Ordinance - In sum, KAC requests that the Court find in favor of KAC becau e, first, there has been no showing by the City of any evidence that indicates whether they did or lid not have a substantial Police Power basis for imposing such limitation. The Defendants had I ie opportunity to produce such evidence and they failed. In fact, the City has now waived its c 3portunity to submit such evidence. The fact that no such evidence was produced begs the conclu ion that no such evidence exists. Second, KAC: seeks an Order granting a permanent injunction prohibiting the City from imposing any hours of operation limitation on the Plaintiff s business at ;ent a substantial showing of the need for such control to protect the health and safety of the publi KAC has provided this Court with ample evidence (1) that KAC will suffer irreparable harm, (' , that this harm outweighs any injury which granting the injunction will inflict on other parties, and (3) that the public interest favors the injunction. Finally, the imposition of an 8:00 p.m. closig time was arbitrary and capricious. The former engineer of the project submitted that time in a random and convenient manner. The City can not rest its entire authority on such an arbitrary I -ocess. More importantly, an abuse of the Police Power is per se arbitrar This Court has the authority, as a Court of equity, to enter a perm; nent injunction prohibiting the City from imposing any hours of operation limitation on the P] dntiffs business absent a substantial showing of the need for such control to protect the health a id safety of the public. In addition, this Court has the authority to review of the exercise of the police power by the Defendants. Finally, Arkansas Code Annotated § 14-56-425 provides for review of the Board's actions upon the petition of an injured party. i-wmT,Ac umrm, uw-h.- —Ed- —10— 11/29/06 17:37 FAX 501 372 3359 GILL ELROD RAGON IM012 Therefore, this Court has the authority and the legal basis to find i 1 favor of KAC and grant the requested relief Respectfully submitted, GELL ELROD RAGON OWEN & St ERMAN, PA. 425 West Capitol Avenue, Suite 38( 1 Little Rock, Arkansas 72201 (501)3 -3 0 501) 3 -3 0 By: Roger H. F1 n A4 1 K Ily W eHyW- - UltY (ABA 51 u) CF,RTIEFICATE OF SERVICE I hereby certify that I have served the foregoing by facsimile an t by placing a copy of the same in the United States Mail, postage pre -paid, on this the 29tb day of I *oYember, 2006, addressed to -, Tom Carpenter Amy Fields Little Rock City Attorney's Office 500 W. Markham St. Little Rock, AR 72201 IAWSMAC LRA=, U-CM-ffiB-�V' 't-1 -'r'� Bnd-d= - 11 - -1.2/0�106 16:23 FAX 501 372 3359 GILL ELROD RAGON 9003 IN TBE CIRCUIT COURT OF PULASKI COUNTY, A� XAN� 12" DINTSION 0[c 8 '712., 58 KAC LIMITE% LLC, d/b/a ulel'ct. - J1[M'S RAZORBACK PIZZA 'IRC V. CASE NO. 06-6954 CITY OF LITTLE ROCK, ARKANSAS, AND ITS MAYOR AND BOARD OF DIRECTORS: JIM DAILEY; JOIINNIE�PUGH; WILLIE 11UNTON; VENFVIIEVF, STEWART; DEAN KUMPURIS; BARBARA GRAVFS; JOAN ADCOC14 BRENDA WMCK; BRAD CAZORT; STACY HURST; AND MICHAEL KECK DEFENDANTS PLAINHEES REPLY TO DEFEDMA—NTSCLOSING A The Defendants attempt to dissect and distinguish between ma � facts and points of law in their closing argument. Their distinctions, however, are without mer .. Declaratory Judgment First, the DeFendants repeatedly state that the current hours of operation limitation was requested by a representative of the previous owner of the Bella Rosa I )evelopment and this fact should somehow preclude KAC from receiving its requested relief. I vidence presented to this Court clearly showed that this representative did not "request" a hou 3 of operation limitation, but rather suggested an arbitrary time period at the bequest of the De lendants. As pointed out previously, the Planning Commission Staff would have approved E later time period if the representative had suggested it� and in fact the Planning Commissi 3n Staff recommended a closing time of 10:00 p.m.. (Tr. at 88-89.) This sort of random and c( avenient decision making is precisely what can be described as arbitrary and unreasonable. See, e�g., City ofLittle Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994). 12/08/o6 16:23 FAX 501 372 3359 GILL ELROD RAGON U004 Secondly, the Defendants attempt to distinguish the Noble v Dav Y and Dyess v Williams cases by stating that those cases dealt with an across the board regulafioi (whether industry wide or city wide) and, therefore, because the limitation here is only apr !cable to one business location, KAC is precluded from relying on those cases. The Arkansas E apreme Court, however, obviously did not find that to be a notable distinction as it did not decid those cases on that fact (nor did the court even consider that issue). The City cites to no author y for what is essentially the proposition that the 1krdtations put on the exercise of Police I :)wers by the Arkansas Supreme Court in Noble and Dyess do not apply in individual zoning cases. To argue such a proposition is nonsensical. Next, the Defendants cite to the Home Rule Act (ARK. CoDE ANN. § 14-43-602) and ARY- CODF- ANN. § 14-55-102 as justification for its actions. The poir : that the Defendants are missing, however, is that the Defendants can only exercise its powers i i a lawful manner. Noble v. Davis, 204 Ark. 15 6, 160, 161 S.W.2d 189, 191 (1942). When the Ix �s or regulations of a city abridge the rights of a citizen, that city has unlawfully exercised itc powers, and neither the Home Rule Act or ARK. CoDF- ANN. § 14-55-102 canjustify such actio is. See generally, Balesh v. Hot Springs, 173 Ark 661, 293 S.W. 14 (1927). ARK. CoDF, ANN § 14-55-102 specifically limits a city's powers to that which is "not inconsistent with the laws )f the State." Clearly the U.S. Constitution and the Arkansas Constitution are included in those 1. ws. Under the City Attorney's interpretation of the Home Rule Ad a city can do anything it wants as long as it pertains to the affairs of that municipality. Can a ci- f pass a zoning ordinance which divides the city along racial or socioeconomic lities? If a city c n. exercise full legislative power in "any and all matters of whatsoever nature," then can it pass L zoning regulation which precludes the elderly from living outside of a designated area? (Defen lants' Closing Arguments 1:%WMWAC UMM. -2- 12 . /08/06 16:24 FAX 501 372 3359 GILL ELROD RAGON IA005 at 3)(emphasis provided by Defendants). Of course the answer to those luestions is no because those laws would violate the United States and Arkansas Constitutions a id the rights of citizens. In the sarne v the City can not restrict a lawful business in such a: :ianner as to violate the rights of that business owner, See Balesh v. Hot Springs, 173 � rk. 661, 293 S.W. 14 (I 927)(holding that no individual can be deprived of the right to engage n lawful business in any manner he or she sees proper, so long as he or she does not use such ri ht in a manner to injure others). Thus the Defendants glib citation and reliance on the Home I ule Act and ARK. CoDE ANN. § 14-55-102 as justification for its actions is grossly inaccurate E id this Court should not be misled by it. The Defendants also argue on page three (3) of their Closing Argument that they can enact ordinances for reasons other than those related to the public heE th and safety. This is a prime example of the Defendants' meaningless distinctions. Of coui e a city can pass a law which is not directly related to the health and safety of its citizens. W tat the City can not do is pass a zonin ordinance or regulation limiting the actions of a lawful )usiness unless there is a clear and meaningfal showing that such control is necessary to prot ct the health, safety and general welfare of the public. See Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942). All zo authority necessarily emanates from the Police Powers grante I to the states. Euclid v. Ambler Realty Company, 272 U.S. 365 (1926). For example, the Cit could pass an ordinance which declared July 22 as Jermain Taylor Day in the City of Littl . Rock without having a justification based on the public health and safety. This sort of ordinEa ce has nothing to do with zoning. But it is a zoning ordinance which is at issue in this case w I the City can not pass a zoning ordinance or regulation unless there is a clear and meaningful ;howing that such control is necessary to protect the health, safety and general welfare of the pub ic. 12/08/06 16:24 FAX 501 372 3359 GILL ELROD RAGON [a 006 The next problem with Defendmils' argument is how they attern t to prove that the City did in fact (although they also argue that they do not need one) 11- ve a health and safety justification for imposing a hour of operations limitation. On pag. s 5-7 of their Closing Argument, the Defendants cite to testimony of Donna James in which s le said that the property at issue here was originally residential, that it is a transition area and thE : the City only approved the planned development because the limited hours "would allow the pri perty to be developed in a way that is compatible and harmonious with the surrounding area." 0 )efendants' Closing Arg. at 6.) This argument is in direct opposition to the evidence presented at rial. First, Donna James testified that the Defendants were unawan that KACs hours were limited until it was brought to their allention at a public meeting by a d- gruntled property owner, and that neither the City nor the Planning Commission required this limitation- (See KACs- Closing Arg. at 4.) Second, the City Attorney made it quite clear that :he only acceptable copy of the Ordinance that could be relied upon was the certified copy of t] e Ordimmee on file with the Little Rock City Clerk. (Tr. at 52-55, 57, 58.) As previously poi ded out� that copy of the Ordinance does not contain any reference to a hours of operation lh iftation nor does it even mention a stated public health and safety purpose. Moreover, whil -, it may reference other documents, these documents were never certified as part of the Or(h iance by the City Clerk. According to the City Attorney and Arkansas law, this Court may no consider these collateral documents to be part of the Ordinance. What is good for the goose is ood for the gander. This Ordinance was passed without any thought of a relationship between I ie hours of operafion and the public health and safety. There is no evidence in the Ordinance o in the record that any of these issues were even considered by the City prior to this action I eing brought. An after- thought and hindsight do not constitute a substantial basis for regulatii n. The Defendants' have BWBSVwW LMM, UM%-_,L.Dn�� i =� 12/08/06 16:25 FAX 501 372 3359 GILL ELROD RAGON U007 latched onto blanket statements made by Ms. James at trial that because the area was previously zoned residential, certain restrictions were needed.' However, mere asse tions by the Defendants that (after having two years to think about it) there maybe could have - ossibly been health and safety reasons for imposing a hours of operation limitation, there has be n no e,,ridem" produced that the City in restricted the hours of operation because of sf me "obvious and real" connection between those restrictions and the health and safety of the p iblic. Noble at 160, 161 S.W.2d at 191. In fact it is highly questionable that the City even kne v there were restrictions until much later. U. Permanent Injunction An abuse of the Police Power is Mr se gd1kM. City of Lin s Rock v. Breeding, 270 Ark. 752, 606 S.W.2d 120 (1980). As set forth in great detail in Sect an I to this Reply and in Section I of KAC's Closing Argwnent, the Defendants do not have t] - power to control Jim's Razorback Pizza's, or any business's, hours of operation absent a subst- atial showing of the need for such control to protect the health and safety of the public and tha such control is the least intrusive means of accomplishing such purposes. Noble v. Davis, 204, ak. 156, 161 S.W.2d 189 (1942); Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969). Bu iuse the Defendants have unlawfully restricted KAC's hours of operation, their actions are per se arbift-ary—despite any presumption otherwise—and KAC is entitled to a permanent injunctior prohibiting the City from imposing any hours of operation limitation on the PlaintiX s busi iess absent a substantial showing of the need for such control to protect the health and safet of the public. The City utterly failed to make any showing that their was any contemporaneov ; contemplation regarding 1 It should be noted that while the Defendaiats' attempt to paint this area as a quiet re idential area, it is in fact located along Highway 10, a main arterW for the City of Little Rock- 12/08/06 16:25 FAX 501 372 3359 GILL ELROD RAGON - Q008 the hours of operation and such interests. The Defendants have merely nvented what it wished it had actually included in the Ordinance. The Defendants also somewhat amazingly argue that finding and understanding the hours of operation limitation is a "fairly straightforward" process. (Defench at's Closing Arg. at 8.) This assertion is in spite of the fact that (a) the "official" Ordinance do( 3 not mention any hours of operation limitation, (b) the Planning Commission file is a two-inch t ick pile of papers which could be interpreted differently by different persons (Th at 60-67), (c) - lat a person would need the assistance of the Planning Commission Staff to interpret the file Tr. at 60-67), (d) and— most glaringly—the fact that the Defendants themselves were not ev( a aware of the hours of operation limitation until it was brought to their attention by a third pa ty. (See KAC's Closing Arg. at 4.) Thus the argument that KAC should somehow be penalize . for not being aware the restriction is simply ludicrous. The Defendants next argue that both KAC comes into this -ase with unclean hands because it failed to perform due diligence and that any harm Kj C suffered was due to misrepresentations made to it by the leasing agent of the Property whei KAC inquired about the hours of operation. Which one is it? Did KAC fail to perform its di t diligence, or was KAC told there were no hours of operation limitation when it was entering im o the Lease. Counsel for KAC would argue that relying on the representations of a leasing , gent with regards to the aspects of the lease and any possible restrictions attached thereto is c -mmon business practice. KAC does come to this Court with clean hands. KAC has done e erything in its power to lawfidly opi�rate its business but has been hindered by the unlawfu restrictions of the City. Moreover, none of this has any bearing on, or excuses, an abuse of the lolice Powers. UWBMACUWM.UXT�na� TrWme_Rep�-dw -6- 12/08/06 16:25 FAX 501 372 3359 GILL ELROD RAGON FM 1) 0 e Finally, the Defendants attempt to prejudice KAC by saying that it is continuing to operate past 8:00 p.m. The truth is that KAC and the City Attorney'3 Office have agreed to postpone the enforcement of the citations KAC received until this current matter is fully resolved. How can KAC "flaunf 'the City's regulation if it has not been conclusively determined that it must in fact close at 8:00 p.m.? In addition, it should be ioted that no court has determined that KAC is in fact violating the City's regulations, or tf it the Ordinance in fact contains such a limitation. For these reasons, and those set forth in KAC's Closing Argv nents, this Court should grant KAC its requested relief. M. Appeal The argument that this Court does not have the authority to gra I the requested relief has already been rejected by this Court in its denial of the City's motion t, dismiss, and is simply a smokescreen tactic by the Defendants. while KAC will quickly poi it out the deficiencies in Defendants, argument, KAC does not want to waste this Court's time i reviewing an issue it has already decided. As Originally stated in KAC's Response to the motion to fismiss, the Defendants' reliance on Camden Comm. Dev. Corpo. V Sutton, 339 Ark. 368, 5 S-W.3d 439 (1999) is misplaced. The language quoted by the Defeadants is obiter dictum. ad upon a full reading of the passage it is clear that the court did not hold as the Defendants im )ly. See Sutton, 339 Ark. at 373, 5 S.W.3d at 442 (court specifically limited its holding to the f cts of that case); see also Summit Mall Co., LLC v. Lemond, 355 Ark. 190, 200, 132 S.W.: d 725, 731 (2003)(court recognized the limited holding of Sutton). Clearly, the Arkansas Sup eme Court did not intend the language quoted by the Defendants to be read as holding that Ab olutel-- no decisions by a -7- 12/08/06 16:26 FAX 501 372 3359 GILL ELROD RAGON Q010 municipal legislative board refusing to accept a plannffig commission'., proposal could ever be deemed administrative. The Defendants have failed to provide thi - Court with any legal authority for such a broad sweeping proposition because it is not supporl A by Arkansas law. The Defendants' discussion of whether KAC timely filed its app -al is also a diversionary tactic. In its Petition for Review, KAC states that it is appealing the J1 ne 6, 2006 and June 20, 2006 decisions of the Board of Directors. That appeal was timely filed �n accordance with ARK. CODE ANN. § 14-56-425 and Arkansas District Court Rule 9. Finally, the City argues in one paragraph that this Court would t I- violating the separation of powers by reviewing the decision of the Board of Directors, and ther argues that KAC did not properly appeal the dmision of the Board of Directors. It is implausi )le for the Defendanw to argue that this Court can not hear this appeal because it would violate he separation of powers, and then to argue that KAC did not file its appeal in a timely manner. . LRK. CODE ANN. § 14-56- 425 clearly gives this Court the authority to review the Board of Dire. tor's decision under a de novo standard. In sum, KAC timely appealed the administrative actions of he Little Rock Board of Directors on June 6 and June 20, 2006, and has presented ample evidet x for this Court to rule in its favor. The denial of the Planning Commission recommendation to amend the previously approved Bella Rosa Revised Long -form Planned Commercial Development, Planning Commission, File No. Z -6219-D and the Board's vote to refuse to res( ind its decision of June 6, 2006 were clearly incorrect and should be reversed. IV. Conclusion In its Closing Argument, KAC provided this Court overwhel- iingly evidence and legal authority to grant the requested relief KAC filed this Reply to poh t out the deficiencies and -8- 12/08/06 16:26 FAX 501 372 3359 GILL ELROD RAGON IM oil - diversionary smokescreen tactics in Defendants' Closing Argument. For all of the reasons presented to this Court, KAC respecdWly requests that this Court grant he requested relief, and for all other relief to which it may be entitled. Respectfully submitted, GILL ELROD RAGON OWEN & �QJERMAN, P.A. 425 West Capitol Avenue, Suite 3f I ' Arkansas 72201 01)376 800 Roger,A. Fitzgibh4 (ABrA -#9801 KCK W. MeNulty-��A #200! 14 1) CERTEFICATE OF SERVICE I hereby certify that I have served the foregoing by facsimile an- by placing a copy of the smne in the United States Mail, postage pre -paid, on this the e zy of December, 2006, addressed to: Tom Carpenter Amy Fields Little Rock City Attorney's Office 500 W. Markham St Little Rock AR 72201 IMMACM0M. --i: r-fKo, August 3, 2007, ATTN: Donna James Little Rock Planning Commission 723 West Markham Little Rock, AR 72201 RE: Zoning Verification Dear Donna: This letter is on behalf of Beltone / JB Solomon, Inc., 1100 Lexington, Fort Smith, AR 7290 1. We need zoning verification for the Bella Rosa Commerce Center at 16101 Cantrell, Little Rock, AR. The uses for this prospective tenant are: examining patients hearing and testing, fitting, and repairing hearing aids for the patients. We thank you.for your attention to this matter and we look forward to your response. We can then send this verification to the owner of the property to insert into the lease. Sincerely'/ Wes Lacewell Moses Tucker Real Estate, Inc. 501-376-6555 2-�j(q Et City of Little Rock Department of Planning and Development 723 West Markham Street Little Rock, Arkansas 72201-1334 Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 June 18, 2007 Ted Dickey Colliers Dickson Flake Partners 400 West Capitol Avenue, Suite 1200 Little Rock, AR 72201 Planning Zoning and Subdivision This letter is in response to your request for confirmation of the allowable uses in the Bella Rosa Commerce Center located at 16055 Cantrell Road. Ordinance No. 19,072 adopted by the Little Rock Board of Directors on April 6, 2004, established Bella Rosa Commerce Center Long-forin PCD. The approval allowed for 0- 3, General Office District uses. As authorized under Section 36-281(l), 0-3, General Office District a listed allowable use is Establishment of a religious, charitable or philanthropic organization. The definition section of the ordinance defines (Section 36-3. Same—Uses) a Establishment of a religious, charitable or philanthropic office means the offices and activities sponsored or operated by organizations established for religious or philanthropic purposes, including but not limited to homes for the aged, resident homes for the indigent or handicapped, training and educational facilities, and similar establishments. Staff will require documentation of the not-for-profit status prior to the business being given clearance for locating within the Bella Rosa Commerce Center. If there are any questions or if any additional information is required, please do not hesitate to contact me. 6 Since ely, I ony Bo ynsk )n Dilrector f Planin I and Development Amy Beckman Fields Deputy City Attorney OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 3 10 Little Rock, Arkansas 72201 January 26, 2007 Roger H. Fitzgibbon Gill Elrod Rago wen & Sherman, P.A. 425 West Q itol Avenue, Suite 3801 Little R. , AR 72201 Telephone (501) 3714527 Telecopier (501) 3714675 RE.- KA C Limited, LLC v. City ofLittle Rock, Arkansas, et. al. Pulaski County Circuit No. CV -06-6954 Dear Roger: Please find enclosed a copy of the file -marked order in the above -referenced matter. it was a pleasure working with you. If you have any questions, please do not hesitate to contact me. Sincerely, CZYBeields Amy Be Deputy City Attorney ABF:dab Enclosure cc/enc: Tony Bozynski 11'// IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 12TH DIVISION 07 JAN 23 PM 4: 16 FA 7 i:� KAC LIMITED, LLC d/b/a f -ERIK JIM'S RAZORBACK PIZZA PLAINTIFF VS. CASE NO. CV -06-6954 CITY OF LITTLE ROCK, ARKANSAS, et. al. DEFENDANTS ORDER On the 1 st day of November, 2006, came on for trial Plaintiff s Amended Petition for Review and for Permanent Injunctive Relief. Plaintiff appeared by its representative Keith Hardin and by and through its attorneys, Roger Fitzgibbon and Kelly McNulty, and Defendants appeared by their representative Donna James and by and through their attorneys, 'fhomas M. Carpenter and Amy Beckman Fields. The Court, having fully considered the testimony presented by the parties and witnesses on their behalf and the arguments of counsel, and being well and sufficiently advised as to all matters of fact and law herein, finds: 1. The Court finds that Plaintiff has challenged a zoning ordinance enacted by the legislative body of the City of Little Rock ("City"), specifically, Little Rock, Ark., Ordinance No. 17,092 (April 6, 2004) . The Court further finds that the ordinance is presumed to be legal and that the question before the Court is whether the City's legislative body acted arbitrarily, capriciously or unreasonably. 2. `Ihe Court finds that the City limited the hours of operation on the property which is the subject of this action at the request of the party that owned the property at the time the ordinance was enacted. 3. Even so, the Court has carefully weighed whether the ordinance is arbitrary, capricious and unreasonable. The Court finds that Plaintiff has not met its burden of Proving that the City acted arbitrarily, Capriciously or unreasonably. 4. The Court further finds that Plaintiff has failed to carry its burden of Proving that the Defendants' failure to adopt the recommendation of the City's Planning Commission to extend the hours of operation at the property on which Plaintiff's business is located was unconstitutional or otherwise unlawful. 5. On all other challenges made to the ordinance, the Court further finds that Plaintiff has failed to carry its burden of proof IT IS, THEREFORE, ORDERED, DECREED, and ADJUDGED that judgment is entered in favor of Defendants, City of Little Rock, Arkansas, and its Mayor and Board of Directors: Jim Dailey; Johnnie Pugh; Willie Hinton; Genevieve Stewart; Dean Kumpurus; Barbara Graves; Joan Adcock; Brenda Wyrick; Brad Cazort; Stacy Hurst; and Michael Keck, and that Plaintiffs Amended Petition for Review and for Permanent Injunctive Relief is denied and dismissed. IT IS SO ORDERED. 4k. t u� Circuit Judge JAN 2 3 2907, Date -2- Prepared By: Amy Beckm S(89058) Deputy City Attorney City Hall - Suite 3 10 500 West Markham Little Rock, AR 72201 (501) 371-4527 Approved as to Farm: Ro r H. Fitzgi boll ( 80, 0) - -Ii Fitzgi boll (98010, Kelly McNulty (2005141) Gill Elrod Ragon Owen 8c Sherman, P.A. 425 West Capitol Avenue, Suite 3801 Little Rock, AR 72201 (501) 376-3800 -3- ----------- mm� PK/OS 0 SF PK/OS PKtOS Co.. SF SF SF SF SF SF SF LU T T T PKtOS SF WA- SF r (71 >4 P 0 vz3 SF T 11 T MAS PAR 0 11 CAKWPr-I I SF S T CAIVTRS� PK/OS -74L EM P T LU 0 T r Lu! SF Sp tw, PKJO PKJOS qp SF LU PKJOS SF WOODALL LU SF FOREST 8�)REST go SF PKIO SF 0 a. . 'IS' t'; p . F all 0 m 0a 19 SF SF SF 0 SF 40 C> 0- L SF fy SF -VaInA y av Case: Z -6219-A Location: Southwest Corner Cantrell Road & Bella Rosa Ward: 5 PD: i CT: 42.06 TRS: T2NR14W24 0 1302,60 520 Feet mmmI-- Filed & Recorded in Official Records of CAROLYN STALEY PULASKI COUNTY ORDINANCE NO. 19,072 CIRCUI TIcouN ry CLERK Fees 420.80 AN ORDINANCE APPROVING A PLANNED ZONING DEVELOPMENT AND ESTABLISHING A PLANNED OFFICE DISTRICT TITLED BELLA ROSA DRIVE LONG - FORM POD (Z -6219-A) LOCATED ON THE SOUTHWEST CORNER OF CANTRELL ROAD AND BELLA ROSA DRIVE, IN THE CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS, AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF LITTLE ROCK; AND FOR OTHER PURPOSES. BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS. SECTION 1. That the zoning classification of the following described property be changed from R-2 to POD: Part of the SE '/4 Section 13, and Part of the NE '14 Section 24, T -2-N, R- I 4-W Pulaski County, Arkansas more pafticularly described as: To the point of beginning thence S 01'10'02" E, 706.72 feet; thence N 77027'12" W, 119-18 feet; thence N 61041'17" W, 171.12 feet; thence N 42020'02" W, 179.13) feet; thence N 27'15'51" W, 187.94 feet; thence N 00007'06" W, 36.55 feet; thence N 29019'41" W, 89.33 feet; thence N 310044'33" W, 103.05 feet; thence N 03040'13" E, 201.42 feet; thence S 85-029'-)8" E, 253.88 feet; thence S 74'5.1'28" E, 314.69 feet to the point of beginning containing 7.5 acres more or less. SECTION 2. That the preliminary site development plan/plat be approved as recommended by the Little Rock Planning Commission. SECTION 3. That the change in zoning classification contemplated for Bella Rosa Drive Long -form POD is conditioned upon obtaining a final plan approval within the time specified by Chapter 36, Article VII, Section 36-454 (e) of the Code of Ordinances. SECTION 4. That the map referred to in Chapter 36 of the Code of Ordinances Of the City of Little Rock, Arkansas, and designated district map be and is hereby amended to the extent and in the respects necessary to affect and designate the change provided for in Section I hereof "* a 4 A "t "� V At 4 4%, SECTION 5. That this Ordinance shall not take effect ;jrd,p,0J_R7 U I" or"C" Until the final approval of the plan. 0b SECTION 6. Severability. 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