HomeMy WebLinkAboutOrdinance 4334 LED FOR RECORD
' 01 SEP 12 PM 2 08
ORDINANCE NO, 4334 WASHIi9u j vi4 r
B. STAMPS
AN ORDINANCE TO AMEND CHAPTER 155: APPEALS
TO ALLOW AN APPEAL BY THREE ALDERMEN OF
A DECISION BY THE PLANNING COMMISSION TO
APPROVE OR DENY A CONDITIONAL USE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1 . §155.05 A. Appeals To City Council is amended by adding
Subsection 4. Conditional Use:
"4. Conditional Use. Three aldermen, two of whom must reside in
the effected Ward, may in unison appeal a decision by the Planning Commission
approving or denying a Conditional Use request."
PASSED and APPROVED this the 4w day of September, 2001 .
n
G APPROVED:
f, h` • I V
r4. . , i
1{ By:
DAN COODY, Mor
ATTEST:
By: ;Zoog l /lz
Heath�druff, City Cler'�c
2001112570
I, Bette Stamps, Circuit Clerk and Ex-ofjcio P7"i
for Washington County, Arkansas, do hefety c - �y
that this instrument was filed for raccrd in my c-Ec as
indicated hereon and the same is nav data/ me ^.ed
with the acimoodedcement Vd r > ¢sn
in Record Book and Page v ind:a t:d it=rc'c^•_
IN WITNESS WHEREOF, I have hare..ntc snt my
hand and afi the seal of said Court on the Gain indi-
cated hereon.
Betty Stamps
Circuit lark and Ex-0fficio Recorder
by �—
0 0
NAME OF FILE: Ordinance No. 4334
CROSS REFERENCE:
09/04/01 Ordinance No. 4334
08/15/01 Response from the Attorney General of Arkansas Mark Pryor
09/13/01 Departmental Memo to Tim Conklin, Planning Division, from Heather
Woodruff, City Clerk
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NOTES :
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ATTORNEY GENERAL OF ARKANSAS
Mark Pryor
Opinion No. 2001 - 198
August 15 , 2001
The Honorable Janice A . Judy
State Representative
202 West Maple Street
Fayetteville, AR 72701 -4132
Dear Representative Judy :
I am writing in response to your request for an opinion on the following question:
Can the City of Fayetteville, by ordinance, provide for an appeal
of decisions by the city 's planning commission granting or
denying a conditional-use permit to the city ' s governing body?
RESPONSE
It is my opinion that the answer to this question is "yes."
You mention in your correspondence that you believe A .C.A . § 14-56-416 (b) (2)
(B) (i) (c) is the basis for the so-called "conditional-use permits" being issued
under municipal zoning ordinances . Section 14-56-416 (b) (2) (B) (i) (c) provides
that "[t]he board [of zoning adjustment] may impose conditions in the granting of
a variance to insure compliance and to protect adjacent property." You also state
that "[a]ccording to subdivision (b) (2) (B) (ii), the board of zoning adjustment
decision regarding a variance or a conditional-use permit is subject to appeal ` to a
court of record having jurisdiction."' You note, however, that several Arkansas
cities allow appeals to the governing body of decisions regarding conditional-use
permits. You apparently question this in light of § 14-56-416 (b) (2) (B) (ii).
Section 14-56-416 (b) (2) (B) (ii) provides in full that "[d]ecisions of the board [of
adjustment] in respect to the above shall be subject to appeal only to a court of
record having jurisdiction ." It seems clear that the "[d]ecisions of the board in
323 Center Street • Suiie 200 • Little Rock, Arkansas 72201
(501 ) 682-2007 • FAX (501 ) 682-8084
Internet Website • hitp://www.ag.state.ar.us/
The Honorable Janice Aedy
State Representative
Opinion No. 2001 - 198
Page 2
respect to the above" are those decisions pertaining to requests for variances in
accordance with § 14-56-416 (b) (2) (B), which pertains only to variances. This
would include conditional variances, which are authorized under § 14-56-416 (b)
(2) (B) (i) (c). The phrase "[d]ecisions of the board in respect to the above" does
not, however, in my opinion, encompass so-called "conditional uses." It is my
opinion that the legislature did not have such conditional uses in mind when it
authorized conditional variances under § 14-56-416 (b) (2) (B) (i) (c). In
accordance with A .C.A . § 14-56-416 (b) (2) (B) (i) (b), a board of adjustment
"shall not permit, as a variance, any use in a zone that is not permitted under the
[zoning] ordinance." As reflected by this provision, a variance involves a use that
is permitted in the particular zone. As a general matter, in the zoning process a
"conditional use" is not the same as a "variance" from a use that is permitted in a
particular zone. As noted by one authority on zoning matters, the "conditional
use permit situation" involves "certain uses which are not permitted as a matter of
right in particular use districts . . . ." See R. Wright, Zoning Law in Arkansas: A
Comparative Analysis, 3 UALR Law Journal 421 , 452. The use may be
"permitted conditionally when the end result will not adversely affect the
comprehensive plan for the area and is not incompatible with the permitted uses."
Id. See also Rolling Pines v. City of Little Rock, 73 Ark . App. 97, 100, _ S.W . 3d
_ (2001 ) (involving an application for a conditional use permit with regard to
manufactured homes under the City of Little Rock ' s zoning code which, as stated
by the court, "do[es] not allow manufactured homes to be placed in an R-2 district
as a matter of right[,]" but which "does allow them as a conditional use, provided
certain criteria are met.")
I must therefore conclude that you are incorrect in your belief that A.C.A. § 14-56-
416 (b) (2) (B) (i) (c), which authorizes conditional variances, is the basis for the
so-called "conditional-use pennits" being issued under municipal zoning
ordinances. The conditional use permit is a distinct device that has been
developed in the municipal zoning process. See generally Wright, Zoning Law in
Arkansas, supra. It thus follows that A.C.A. § 14-56-416 (b) (2) (B) (ii), requiring
appeals to courts of record of decisions in respect to variances, is inapplicable.
A review of the pertinent City of Fayetteville ordinances reflects this distinction
between a "variance" and a "conditional use." According to information
submitted to this office by the Fayetteville City Attorney, conditional uses in
Fayetteville are decided by the Planning Commission. It appears that the process
is similar to that under Little Rock' s zoning ordinances, as reflected in Rolling
Pines, supra. In Rolling Pines, the Little Rock Planning Commission denied the
manufactured home conditional use permit application. The applicant appealed
the Commission's decision to the Little Rock City Board of Directors pursuant to
The Honorable Janice A.&y
State Representative
Opinion No. 2001 - 198
Page 3
the zoning code. 73 Ark. App. at 101 . There is no indication in the reported
decision that this process was questioned or challenged.
It is my opinion that there is no prohibition against a city providing for an appeal
of its planning commission's decisions regarding conditional use permits to the
city' s governing body. The provisions of A .C.A . § 14-56-416 (b) (2) do not, in
my opinion, address the conditional use permit. In accordance with § 14-56-416
(a) (3) (C), the zoning ordinance may provide for "compatible uses" and for
"elimination of uses" and it may provide for "such other matters as are necessary
to the health, safety, and general welfare of the municipality." The ordinance shall
also "include provisions for administration and enforcement." Id. at subsection (a)
(3) (D). In my opinion, these provisions afford ample basis for such an appeal
process involving conditional use permits.
Assistant Attorney General Elisabeth A . Walker prepared the foregoing opinion,
which I hereby approve.
Sincerely,
MARK PRYOR
Attorney General
MP:EAW/cyh
FAYETTEVILLE
THE CITY OF FAYETTEVILLE. ARKANSAS
DEPARTMENTAL CORRESPONDENCE
To : Tim Conklin, Planning Division
From: Heather Woodruff, City Clerk
Date: September 13, 2001
Attached is a copy of Ordinance No. 4334 amending Chapter 155 : appeals to allow an appeal by
three aldermen of a decision by the Planning Commission to approve or deny a conditional use.
The original will be microfilmed and filed with the City Clerk.
cc: Kit Williams, City Attorney
Jim Beavers, Engineering
RECEIVED
ANg7 2001
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1'.O. Box 1607, 212 N. Last Avenue, Faycltcvillc, Arkansas 72701 , (501 )571 -6.467 _
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