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Board of Directors Chamber
Little Rock, Arkansas
May 12, 1993 - 1:35 P. M.
The Board of Directors of the City of Little Rock, Arkansas,
reconvened from the May 4, 1993 regular Board Meeting with Mayor
Jim Dailey presiding. City Clerk Robbie Hancock called the roll
with the following Directors present: Directors Priest, Sharp,
Lewellen, Mason and Adcock - total 5; Absent - Director Roy -
total 1.
With a quorum present, Mayor Dailey declared the Board of
Directors in session and announced the purpose of the reconvened
meeting was to discuss the appeal of the Chancery Court ruling on
Zoning Case Z -5646 - National Home Center PCD at Highway 10 and
Taylor Loop Road (16,515 Cantrell Road - see Ordinance No.
16,337, passed January 19, 1993).
(Director Roy enrolled at 1:40 o'clock P.M.)
Speaking in opposition to the appeal were Mr. Jim Lynch, Mr.
James W. Moore, Mr. Barry Haas, and Mr. Eugene Pfeifer. Speaking
in support of the appeal was Mr. Bill Spivey, attorney for
National Home Center.
Mr. Jim Lynch, 16 Lenon Drive, urged the Board of Directors
not to appeal the Chancery Court ruling. He disagreed with the
arguments for appeal set forth in City Attorney Tom Carpenter's
memorandum to the Board of Directors (April 28, 1993), and stated
the core issue is whether or not we want Highway 10 to retain its
status as a scenic corridor, and if that is the issue, open that
up to some sort of public process. He concluded by stating: "To
me, the issue is orderly development, balanced growth, and the
interest of the City at large. We should never put the interest
of any property owners who have dollar signs in their eyes above
the interest of the City as a whole."
Mr. James W. Moore, 4906 Katillus Road, a property owner in
the vicinity of the PCD at Highway 10 and Taylor Loop Road, spoke
in opposition to the appeal. He concluded his comments by
stating that if the City appealed the Chancery Court decision,
and the Supreme Court affirmed that decision, the City would be
constrained to follow that decision, not only in this case, but
in every other zoning case like it in the future, and that could
have far reaching effects on the power of the Board to rezone in
similar situations.
Mr. Barry Haas, 3900 Doral Drive, also spoke in opposition
to the appeal. He stated he was disturbed by some of the
arguments being used to encourage the Board to pursue an appeal
of the Chancery Court decision. He concluded by saying "If you
want to know the sentiment of the community, you have a clear
opportunity on July 27 when the special election for Lt. Governor
is held to add this policy question to the ballot, that is the
question whether or not the Highway 10 zoning plan should be
fundamentally and irrevocably altered."
Mr. Bill Spivey, attorney for National Home Centers, spoke
in support of the appeal, stating "I think the issue is whether
this Board, a majority of whom voted to approve the PCD for
National Home Centers, should follow the process to its logical
end." He urged the Board to appeal "what could be a very
precedential decision for how this Board makes this type of
decision in future cases."
Mr. Gene Pfeifer, 16300 Cantrell Road, spoke in opposition
to the appeal. He said when this issue was first considered in
January, the proposition was put to the Board that this was the
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only place National Home Centers could go. Since then major
competitors (Home Quarters and Lowe's) have acquired properly
zoned sites in a non - controversial manner and paid the price of
$5.00 to $6.00 per square foot. There are adequate locations
available. The whole issue is whether or not the Board is going
to allow National Home Centers to benefit by buying what was to
be residential land and paying $2.00 per square foot. "This
community is outraged over the subsidy that this action is giving
to one company and a small group of owners and what it will do to
Highway 10." He commended the property owners in Pankey with
frontage on Highway 10 for the decision to stay residential. Mr.
Pfeifer answered questions from Director Sharp and Director
Lewellen.
Board discussion opened with comments by Director Roy who
spoke in support of the appeal, stating the City Attorney had
given two valid reasons for the appeal: (1) it was ruled by the
Chancellor that the decision of the Board of Directors was
arbitrary and capricious, which would invite future litigation;
(2) it blurs the authority of the City to approve a PCD and the
only way to really clarify that is to have an appeal.
Director Sharp also spoke in support of the appeal.
Directors Lewellen and Priest expressed opposition to the
appeal. Director Priest distributed a written statement and
asked that it be entered into the record in its entirety.
BOARD OF DIRECTORS COMMUNICATION
"TO: MAYOR AND BOARD OF DIRECTORS
FROM: SHARON PRIEST, CITY DIRECTOR
SUBJECT: EUGENE PFEIFER, III, ET AL V. CITY OF LITTLE ROCK,
ET AL #93 -888, PULASKI CHANCERY (3RD)
DATE: MAY 3, 1993
This memorandum addresses whether the City should appeal
Chancellor Vann Smith's decision that the Board acted
arbitrarily and capriciously in adopting Little Rock
Ordinance 16,337, the National Home Center PCD. This is an
attempt to reflect an alternative opinion to that of Tom
Carpenter, City Attorney. I lay no claim to this being a
legal opinion; however, some advise I received early in my
political career, concerning reading law and opinions, was
to trust my own interpretations as well. Judge Smith
determined that the Board acted arbitrarily and capriciously
in passing Ordinance 16,337. I agree.
In Tom Carpenter's memorandum dated April 28, page 2,
paragraph 2 (attached) posed three questions:
1. "Did the Board have the authority to adopt a rezoning
for National Home Center at this site ?"
The answer is "yes" provided we follow our own process.
The law is clear that cities of the first and second
class have this authority (Ark Code Ann 314 -56 -402).
The law further reinforces zoning powers granted to
cities in ACA 14 -56 -416 as stated in Judge Smith's
decision 93 -888 April 13, 1993, page 6, section 9.
Simply, we did not follow our own process of amending
the Highway 10 Land Use Plan prior to granting the
rezoning.
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2. "Did this project qualify as a planned commercial
development (PCD) ?"
The answer is "no." Section 36- 452(3) (attached.)
3. "Is this project consistent with the objectives of the
City's planned unit development (PUD) ordinance ?"
The answer is "no." Section 36 -451 (attached.)
Mr. Carpenter suggests that we amend the land use plan
and amend the PCD and PUD ordinances "to try and comply
with Judge Smith's objections." In my opinion, Judge
Smith simply said we didn't follow our own rules. We
should have amended the land use plan. Amendments to
the PUD and PCD ordinances are unnecessary.
Judge Smith states that the Home Center amounts to
"spot zoning." I agree. Almost all our PCD's are
single purpose. The single purpose referred to in this
Decision 93 -888 is that there are no "harmonious" uses
in the areas adjacent of the Home Center PCD's as
required by our ordinance. Therefore, I must conclude
that this is spot zoning.
I have reminded this Board and past Boards concerning
improper uses of PCD's. Home Center is the best example I
can give. It is my opinion that we have not lost any of our
authority or flexibility as long as we follow our own rules.
If we don't like our rules as they are, we can change them,
but to be consistent and orderly we must follow them. Judge
Smith was reminding us of our own process. Therefore, I am
recommending that we not appeal Judge Smith's decision, and
I am recommending we pay more attention to process.
SP:mr
Attachments"
Attached to the above statement was a copy of Little Rock
City Code Sections 36 -451 and 36 -452 (Article VII. Planned Unit
Development), a copy of City Attorney Tom Carpenter's memorandum
(dated April 28, 1993) recommending the appeal, and a copy of
Order #93 -888 of Judge Vann Smith, Third Division, Pulaski County
Chancery Court.
Mayor Dailey stated he would support the appeal, even though
he voted against the PCD. He felt that City Attorney Tom
Carpenter raised some points that need to played out. Director
Mason also spoke in support of the appeal.
Following the lengthy discussion, Director Priest moved not
to appeal the Chancery Court ruling on Z -5656 - National Home
Center PCD at Highway 10 and Taylor Loop Road. The motion was
seconded by Director Lewellen. The roll call vote taken on the
motion is recorded as follows: Ayes - Directors Priest and
Lewellen - total 2; Noes - Directors Roy, Sharp, Mason, Mayor
Dailey and Director Adcock - total 5. Therefore, the motion
FAILED, and City Attorney Tom Carpenter was instructed to proceed
with the appeal.
There being no further business to be presented, the
reconvened meeting was adjourned at 2:15 o'clock P.M., with the
Board of Directors to meet again in regular session on Tuesday,
May 18, 1993, at 6:00 o'clock P.M.
ATTEST:
(:J, &444 �--, 9A*aJ,*.
City Clerk Robbie Hancock
APPROVED:
Ma r Jim "
Dailey