HomeMy WebLinkAboutOrdinance 4874 Doc ID : 009992790005 Tvoe : REL
Recorded : 05/23/2006 at 11 : 28 : 37 AM
Fee Amt : $20 . 00 Pace 1 of 5
Washincton Countv . AR
Bette Stamps Circuit Clerk
File200640020805
ORDINANCE NO* 4874
AN ORDINANCE REZONING APPROXIMATELY 0.28
ACRES, LOCATED AT 1242 NORTH GARLAND AVENUE,
FROM C- 1 , NEIGHBORHOOD COMMERCIAL TO C-2,
THOROUGHFARE COMMERCIAL
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1 : That the zone classification of the following described property is hereby
changed as follows:
From C-1 , Neighborhood Commercial to C-2,
Thoroughfare Commercial, as shown on Exhibit
"A" attached hereto and made a part hereof.
Section 2: That the official zoning map of the City of Fayetteville, Arkansas is
hereby amended to reflect the zoning change provided in Section 1 above.
Section 3 : That this zoning change is made subject to the attached Bill of Assurance.
%FtYJTR�SG�
PASSED and APPROVED this 16w day of May, 2006. ;��:• \� Y pF .• pF;
; FAYETfEVILLE '
APPROVED: ATTEST: %9sy9RKANSPa `
°414 I s11 coy`
By: LBy:
DAN CO DY, May SONDRA SMITH, City Clerk
EXHIBIT "A"
A PART OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 9, TOWNSHIP 16 NORTH, RANGE 30 WEST, WASHINGTON COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS TO-WIT: BEGINNING
AT A POINT ON THE RIGHT OF WAY OF GARLAND AVENUE THAT IS SOUTH 585.00'
AND S89048' 54"E 25 .22' FROM THE NORTHWEST CORNER OF SAID FORTY ACRE
TRACT AND RUNNING THENCE S89048' 54"E 120.00' , THENCE SOUTH 100.001
,
THENCE N89048154"W 121 .02' TO THE RIGHT OF WAY OF GARLAND AVENUE,
THENCE N00°35 ' 14"E 100.00' TO THE POINT OF BEGINNING, CONTAINING 0.28
ACRES, MORE OR LESS . SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF
RECORD, IF ANY.
Bill of Assurance -
Page 7
BILL OF ASSURANCE
FOR THE CITY OF FAYETTEVILLE, ARKANSAS
In order to attempt to obtain approval of a request for a zoning
reclassification, the owner(sl developer, or buyer of this property, (hereinafter
" Petitioners") hereby voluntarily offer this Bill of
Assurance and nter into thiV binding agreement and contract with the City of
Fayetteville, Arkansas.
The Petitioners expressly grant to the City of Fayetteville the right to
enforce any and all of the terms of this Bill of Assurance in the Chancery/
Circuit Court of Washington County and agrees that if Petitioners or Petitioners'
heirs, assigns, or successors violate any term of this Bill of Assurance, substantial
irreparable damage justifying injunctive relief has been done to the citizens
and City of Fayetteville, Arkansas, The Petitioners acknowledge that the
Fayetteville Planning Commission and the Fayetteville City Council will
reasonably rely upon all of the terms and conditions within this Bill of
Assurance in considering whether to approve Petitioners' rezoning request.
Petitioners hereby voluntarily offer assurances that Petitioners and
Petitioners' property shall be restricted as follows IF Petitioners' rezoning is
approved by the Fayetteville City Council.
1 . The use of Petitioners' property described in Exhibit "A" attached
hereto shall be limited to those uses permitted by right and by conditional
use in the C-2 zoning district, with the exception of the following:
Permitted uses to be excluded:
Unit 33: Adult live entertainment club or bar
Conditional uses to be excluded:
Unit 32: Sexually oriented business
2. Petitioners specifically agree that all such restrictions and terms shall
run with the land and bind all future owners unless and until specifically
released by Resolution of the Fayetteville City Council. This Bill of
Assurance shall be filed for record in the Washington County Circuit
Clerk's Office after Petitioners' rezoning is effective and shall be noted on
any Final Plat or Large Scale Development which includes some or all of
Petitioners' property.
IN WITNESS WHEREOF anda eement ith all the terms and
conditions stated above, we, as the owners,
developers or buyers (Petitioners) Vjluntarily off r al such assurances and sign
our names below.
Bill of Assurance
Page 2
IN(
Date Pri ted Name
tiea Awo� 0
A ess
i ature / �
N �1 /G( It �oLl SQ7Aj
Date Printed Name
NIA
Address
Signature
NOTARY OATH
STATE OF ARKANSAS }
COUNTY OF WASHINGTON }
And�no� �w on this the day of 2006, appeared before
me, 'J91^tl l d lj - A/fi N� and after
being placed upon his/ her oath swore or affirmed that he agreed with the terms
of the above Bill of Assurance and signed his name above.
NOTARY PUBLIC
a-
M Commission Expires: ``�� W NnR�1�i
Y P o O d ()l vSP��Psiori �Z3q�J!,�
<° t10TAR
Y
EXHIBIT "A"
A PART OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 9, TOWNSHIP 16 NORTH, RANGE 30 WEST, WASHINGTON COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS TO-WIT: BEGINNING
AT A POINT ON THE RIGHT OF WAY OF GARLAND AVENUE THAT IS SOUTH 585 .007
AND S89048' 54"E 25.22 ' FROM THE NORTHWEST CORNER OF SAID FORTY ACRE
TRACT AND RUNNING THENCE S89048154"E 120.009, THENCE SOUTH 100.00' ,
THENCE N89048154"W 121 .02' TO THE RIGHT OF WAY OF GARLAND AVENUE,
THENCE NOO035' 14"E 100.00' TO THE POINT OF BEGINNING, CONTAINING 0.28
ACRES, MORE OR LESS. SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF
RECORD, IF ANY.
Washington County, AR
I certify this instrument was filed on
05/23/2008 11 :28:37 AM
� :and recorded in Real Estate
File Number 2008-00020 05
Bette stamps - Circuit CI
by
D� l�
ALDERMAN AGENDA REQUEST FORM
FOR: COUNCIL MEETING OF MAY 16, 2006
FROM: KYLE COOK
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
Spirits Shop Liquor Store - DonaId Johnston
AN ORDINANCE REZONING THAT PROPERTY DESCRIBED IN
REZONING PETITION RZN 06-2081 FOR APPROXIMATELY 0.28
ACRES, LOCATED AT 2242 NORTH GARLAND AVENUE, FROM C-1,
NEIGHBORHOOD COMMERCIAL TO C-2, THOROUGHFARE
COMMERCIAL.
APPROVED FOR AGENDA:
Alderman Date
os . o$_ t�Qc,
J em P t Date
ector f urrent Planning
T t
City Council Meeting of May 16, 2006
Agenda Item Number
CITY COUNCIL AGENDA MEMO
To: _ Mayor and City Council
Thru: Gary Dumas, Director of Operations {�
Prom: Jeremy C. Pate, Director of Current Planning0
Date: May 5, 2006
Subject: Rezoning for 1242 North Garland Avenue (Spirits Store Liquor Shop)
RECOMMENDATION
Planning Staff recommends approval of the rezoning from C-1 , Neighborhood
Commercial to C-2, Thoroughfare Commercial, in accordance with the decision of the
Circuit Court.
BACKGROUND
The subject property, contains approximately 0.28 acres. The property is located at 1242
North Garland Avenue and contains the Spirits Shop Liquor Store. The City's zoning
map designates the property as C-1 , Neighborhood Commercial. In 1979 the current
property owner, Donald Johnston, applied to have the property rezoned from C-I to C-2,
Thoroughfare Commercial (see attached minutes). The City Board of Directors at that
time denied the rezoning request and the decision was appealed to the State of Arkansas
Circuit Court. The 13a' Chancery Circuit Court found in favor of the property owner to
rezone the property to C-2, overturning the City's decision to deny the rezoning.
However, research into City records indicate that an ordinance was not approved to
rezone the property accordingly, and the City' s official zoning map still shows the
property as C-1 _ The written decision from the Circuit Court is attached. The applicant
is applying for a building permit to construct improvements on the property, which will
expand the existing business, as well as add improvements to circulation, parking and
landscaping. Based on the current zoning in place, the Planning Division may not issue a
building permit to expand a liquor store in the C-1 zoning district. The request is to
change the zoning onthe site from C-1 to C-2 in accordance with the decision of the
Circuit Court in an expeditious manner, to complete the action as directed in 1975.
BUDGET IMPACT
None.
r
ORDINANCE NO,
AN ORDINANCE REZONING THAT
PROPERTY DESCRIBED IN REZONING
PETITION RZN 06-2081 FOR
APPROXIMATELY 0.28 ACRES, LOCATED AT
1242 NORTH GARLAND AVENUE, FROM C-1 ,
NEIGHBORHOOD COMMERCIAL TO C-2,
THOROUGHFARE COMMERCIAL.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1 : That the zone classification of the following described property is hereby
changed as follows:
From C-1 , Neighborhood Commercial to C-2,
Thoroughfare Commercial, as shown on Exhibit
"A" attached hereto and made a part hereof.
Section 2: That the official zoning map of the City of Fayetteville, Arkansas is
hereby amended to reflect the zoning change provided in Section i above.
PASSED and APPROVED this day of J 2006.
APPROVED: ATTEST:
By: By:
DAN GOODY, Mayor SONDRA SMITH, City Clerk
EXHIBIT "A"
A PART OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 9, TOWNSHIP 16 NORTH, RANGE 30 WEST, WASHINGTON COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS TO-WIT: BEGINNING
AT A POINT ON THE RIGHT OF WAY OF GARLAND AVENUE THAT IS SOUTH 585.00'
AND S89048'54"E 25.22' FROM THE NORTHWEST CORNER OF SAID FORTY ACRE
TRACT AND RUNNING THENCE S89048254"E 120.001, THENCE SOUTH 100.00',
THENCE N89048'54"W 121 .02' TO THE RIGHT OF WAY OF GARLAND AVENUE,
THENCE N00035147E 100.00' TO THE POINT OF BEGINNING, CONTAINING 0.28
ACRES, MORE OR LESS. SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF
RECORD, IF ANY.
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STATE OF ARKANSAS
THIRTEENTH .CHANCERY CIRCUIT
THOMAS F. BUTT. CNAMCCLLo R. AND •RoeATC JUDGE
FAYETTEVILIE. ARKANSAS 72701
September 17 , 1975
Charles N . Williams , Esq .
Attorney at Law
112 S . East
Fayetteville , Ark , 72701
James N . McCord , Esq .
Attorney at Law
14 E . Center
Fayetteville , Ark . 72701
Re : Donald W . Johnston v .
City of Fayetteville
E- 75-492
Gentlemen :
I have reviewed the trial record in this case and by this .. .
informal, letter opinion inform you of my decision .
r
Plaintiff owns a 100 ' x 12 ' lot on the east side of Garland
Avenue ( State highway 112 ) in Fayetteville . The 100 ' dimension
fronts on Garland and has a single-family dwelling house thereon .
Since February , 1974 , the lot has been zoned C - 1 ( neighborhood
commercial ) , Plaintiff seeks rezoning from , C - 1 to C - 2
( thoroughfare commercial ). and hi4 application to re- zone recites
his intent . to lease the 'property for operation of a retail liquor
store .
The planning report ' ( plf . Ex . # 3 ) submitted by Larry Wood ,
contract consultant to defendant on city planning , recommended to
the City Planning Commission. the requested re-zoning to' C - 2 .
The. Planning Commission , at a hearing on April 8 , 1975 , by vote
of "aye " and . l - "abstain° , recommendedthe re-zoning .
On April 15 , 1975 , defendant ' s Board of Directors , after a
hearing , vot.ed, 7 -_ 0 against the re-zoning . Following that action ,
this suit was filed . on May 30 ; 1975 , to obtain reversal of the
Board ',s action on the grounds that the defendant ' s action was
arbitrary and capricious and deprived plaintiff his lawful use of
property without due process of law .
The evidential record reflects that plaintiff ' s lot is abutted
on the North by residential property ( also owned by plaintiff )
zoned R - 0 ( residential-office ) . This lot fronts on Garland
approximately 120 feet . North of this lot is Holly Street , and
Charles Williams:, . Esq : ._
James N . McCord, Esq . -2- September 17 , 1975
JUDGE THOMAS F. BUTT FAYETTEVILLE. ARKANSAS
North of Holly Street for at least a quarter mile or more , the
zoning is R - 2 (medium density residential ) .
East , South and West ( across Garland Avenue ) of plaintiff ' s
lot , adjoining properties are zoned C 1 . The most prominent
physical and zoning feature within the whole C - 1 area is the
Oak Plaza Shopping Center , located Southeast of plaintiff ' s lot
and .within the obtuse angle formed by Garland Avenue and East
Mt . Comfort Road .
In terms. of business use , the areas sequentially adjacent
to. plaintiff ' s lots are : To the South, a " convenience " grocery
store , a service station and part of the parking lot of Oak Plaza .
To the East , a- former residence now used by , an insurance agency .
To the Southeast , the .Oak Plaza . Center , containing a grocery
supermarket , a drug store , a Ben Franklin Store , a laundry , a
Bridal ( dress) . Shop . Further South and a bit East , across . East
Mt . Comfort Road , a : service station. and two restaurants ., West ,
across Garland Avenue are a flower shop , service .station and a
laundry . Southwest across Garland Avenue is a nearly completed
branch bank drive -in facility .
Larry Wood ,testif.ied for plaintiff , and in support of his
. . recommendation to Planning Commission , that plaintiff ' s lot is
. within an established business district that has -been such since
. 1966 , and that.. the present C - 1 area has become. auch since
-ear,.lier .years as an expanding commercial and business activity is
area . In his opinion , to re-zone plaintiff ' s lot would not
constitute " spot " zoning because projected and permissible uses
thereof would be compatible with adjacent areas of use ; that
the lot to North of .plaintiff , zoned R - O ; and Holly Street,
together , form an. adequate and recognized buffer zone between
plaintiff and the wholly residential area North of Holly , Street .
He concedes that to re-zone , plaintiff could lead to re-zoning ,
of . entire shopping center to C - 21 but that such would create
no adverse effects on surrounding areas . Permitted uses as
generally and specifically listed in . Ordinance 1747 , both in
C - L and. 0 - 2 , do not exclude .retail , liquor stores ; but the
small lot size would preclude some uses authorized for both C - 1
and C - 2 .
James . Vizzier. , consulting planner. for "defendant City testified
he thought C .- 2 for. plaintiff ' s lot would be incompatible with
C - 1 , and that such would be "spot " zoning.
Otherwitnesses , including experienced realtors and the
original developer of Oak Plaza , testified both for and against
plaintiff . Their testimonies , generally , support Wood ' s. opinions
i