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HomeMy WebLinkAbout1975-05-06 Minutes3e'a6f;01 MINUTES OF A REGULAR MEETING OF THE BOARD OF DIRECTORS May 6, 1975 The Board of Directors of the City of Fayetteville, Arkansas met in a regular session on May 6, 1975 at 7:00 p.m. in the Director's Room of the City Administra- tion Building. PRESENT: City Manager Donald L. Grimes; Administrative Assistant David McWethy; City Attorney Jim McCord; City Clerk Darlene Westbrook; and Directors Marion R. Orton (absent at roll call), Ernest Lancaster, John Todd, Paul Noland, Al Hughes, Russell Purdy, and Morris Collier. ABSENT: None OTHERS PRESENT: Members of the Planning Comm;ss;nn• Mr. Carl Yates, Consulting Engineer for West Growth Area; Mr. Ep McClelland, Consulting Engineer for East Growth Area; Mssrs. Lynn Wade and Rip Linsey, representing Warner Cable Company; members of the audience and representatives of the news media. CALL TO ORDER AND APPROVAL OF MINUTES In the temporary absence of the Mayor, Vice Mayor Ernest Lancaster called the 283.1 meeting to order. Following a brief moment of respectful silence and roll call, the Vice Mayor asked if there be any amendments to the minutes of the regular meeting held April 15, 1975. City Attorney Jim McCord requested an amendment to the second sentence of 283.2 paragraph 272.5 to cause it to read: "...that the shopping center near which the house is located is the only shopping center zoned C-1..." Director Todd said he felt some of the pertinent comments from the audience 283.3 concerning the Warner Cable request for a rate increase should be included in the minutes and requested that the City Clerk review notes of the meeting and include pertinent comments in the minutes. There being no further amendments, the Vice Mayor declared the minutes 283.4 approved as amended. JOINT MEETING BETWEEN PLANNING COMMISSION AND BOARD OF DIRECTORS REGARDING ZONING OF LIQUOR STORES The City Attorney gave a brief background of events leading to the joint meeting and the question of zoning for liquor stores. He explained that the meeting was called to discuss possible clarification of zoning regulations per- taining to liquor stores. Mr. Mort Gitelman, Chairman of the Planning Comthission, stated that the Planning Commission had always taken the position that a liquor store was "...no different from a flower shop as far as land use is concerned." He stated that the Planning Commission had followed the legal principal that the body could not make zoning decisions depending upon a particular use the owner would make of the property and that the Commission was not allowed to enter into • 283 283.5 283.6 284 agreements with property owners in -regard to uses of property. He said the Commission passed a concensus that the C-2 and C-3 zoning was suitable for liquor stores and that it did not believe special zoning districts would solve problems related with location of liquor stores. Mr. Gitelman stated .that he did not think that the Planning Commission was the proper body for determining liquor store locations and recommended that the City continue to operate as it has in the past in regard to zoning for liquor stores. Secretary of the Planning Commission, Ernest Jacks, stated that the commission had not regarded location of liquor stores as an emotional issue and that the Commission had not favored the creation of special zones. (Mayor Orton arrived.) 284.1 The City Attorney stated that he doubted whether a court would uphold zoning which made liquor stores a conditional use and that if special zones were created, the Commission would have to provide zones for those classi- fications. In order to provide more local control over the locations, the City Attorney advised that the City might propose an amendment to current state statutes. He also stated that he felt the zoning ordinance should be amended to specifically delineate zones whithin which retail liquor stores would be permitted. He reminded the'Board that the Arkansas Beverage Control had just recently begun notifying the Board of applications for liquor and beer permits. 284.2 Mr. Tom Keith, present in the audience representing Skelton Street Committee, stated that he disagreed that liquor stores should be considered on the same basis as other commercial businesses and that, in his opinion, the location of liquor stores directly affected development of surrounding land and the attitude of the residents living near a liquor store regarding the property. 284.3 Director Noland commented that it seemed the City had no choice but to remove liquor stores from the zoning ordinance and placing them in the alcoholic beverage ordinance. He motioned that the alcoholic beverage ordi- nance be amended to include the use of liquor stores and that guidelines be established so that the City would not be discriminatory in determining locations of liquor stores. The motion died for lack of a second. Director Noland stated that the Board should be aware of the impact that a liquor store has on the area surrounding it and believed that a liquor store would have more of an adverse affect upon residential areas than commercial areas. 284.4 Director Collier stated that he favored approving liquor store locations on a case-by-case basis; however, Director Purdy disagreed, stating if that basis were used there would never be another liquor store in Fayetteville because strong citizen opposition would still exist and the Board would feel obligated to concur with the citizens's wishes. Director Hughes motioned to instruct the City Attorney to draft a proposed amendment to the alcoholic beverage ordinance to approve liquor stores on a case-by-case basis. The motion died for lack of a second. 284.5 Planning Commission members were of the concensus that liquor stores needed to be in a zone as a use by right. Mr. Gitelman was of the opinion that a special zoning classification would not solve any problems and that the planning consultant would have to view rezoning requests from a planning and land use standpoint. 284.6 Following further discussion, Mayor Orton appointed a committee to meet with the City Attorney for the purpose of preparing a draft of an amendment to the alcoholic beverage ordinance to provide for the regulation of liquor store locations. Members of the committee are: Directors Noland, Collier, and Lancaster; and Mr. Gitelman. • 284 I ETrt ....,� <�; � FAYETTEVILLE, ARI ANS.A.S P. 0. DRAWER F OFFICE OF CITY PLANNING 72701 (501) 521.7700 April 17, 1975 TO: '_ty Planning Commission FROM: Planning Administrator Bobbie Jones SUBJECT: Joint meeting with City Board of Directors • • On April 15, 1975, the City Board of Directors requested that the Planning Commission meet jointly with the City Board at.7:00 P.M., Tuesday, May 6, 1975, to discuss how best to regulate the location of retail liquor outlets inside the City. Attached are: 1. Letter from City Attorney Jim McCord to City Manager Don Grimes dated April 3, 1975 regarding the authority of a municipality to enact ordinances restricting the location where intoxicants may be sold. 2. Letter from Arkansas State Assistant Attorney General Robert S. Moore, Jr., to City Attorney James N. McCord containing an "informal and unofficial expression of view" on the above subject. (4-2-75) 3. Letter from Attorney Tom,Keith to Mrs. Marion Orton, Mayor of the City of Fayetteville, concerning package liquor,stores, and dated April 4, 1975. 4. Letter from Attorney Tom Keith to City Manager Don Gri..;s (dated April 6, 1975) concerning the authority of the City to make retail liquor stores a conditional use in curtain zoning districts. 5. Letter from City Attorney Jim McCord to City Manager Don Grimes dated April 9, 1975, pertaining to an amendment to Zoning Ordinance prescribing package liquor stores as a conditional use. The City Board also requested that Larry Wood with the Northwest Arkansas Regional Planning Commission prepare some preliminary regulations for a proposed C -2L and C -3L zoning district and make recommendations as to what portions of the existing C-2 and C-3 Zoning Districts would be best suited for C -2L and C -3L. • • • • P. • tog' F.A.YETTEViLLE, ARKANSAS POSTAL DRAWER F April 3, 1975 OFFICE OF CITY ATTORNEY Mr. Don Grimes City Manager City Administration Building Fayetteville, A::kansas 72701 Dear Mr. Grimes: .r Pursuant to instructions by the Board of Directors, this office, on December 5, 1974, requested an opinion from the Office of the Attorney General on the following issue: In view of the provision of Ark. Stat. 48-301 that the Director of Alcoholic Beverage Control shall • give due regard to municipal ordinances in determining the location of permits issued by his office, and in view of the provisions of Ark. Stat. 48-517, would a municipal zoning ordinance providing that package liquor stores are a conditional use subject to approval by the Planning Commission in c.:ertain zoning dir.:icts, but a use by right in no zonicau districts, be cc.�.rary to the general laws of the state, and thus in violation of Article 12, Section 4, of the Arkansas Constitution. Enclosed is a copy of the response I received from Assistant Attorney General Robert S. Moore, Jr., regarding the above requested opinion. I respectfully, but earnestly, disagree with the unofficial view expressed by the Attorney General's Office on this issue. The case of Herring v. Stannus; 169 Ark. 244, 275 SW 321 (1925), cited by the Attorney General's Office is not in point with the issue raised. That case merely held that gasoline filling stations are a proper subject for exercise of the police power and that the grant by the City Council of Little Rock, under a zoning ordinance, of a permit for construction of a 72701 • (501) 521-7700 Re: Authority of Municipality to Enact Ordinances Restricting the Location Where Intoxicants May Be Sold • , • PAGE 2 gasoline filling station on a much travelled thoroughfare in a residential district was not an abuse of discretion. Ark. Stat. 48-301 provides in part that the Director of Alco- holic Beverage Control is given the discretion to determine the number of permits to be granted within the corporate limits of any municipality, to determine the location thereof, and the person or persons to whom they shall be issued; but that in exercising this discretionary power the Director shall give due regard to the ordinances and regulations of the municipa- lities of cne state. Ark. State 48-517, which is contained in a chapter of Title 48 regulating the business of manufacturing, handling, receiving, distributing or selling light wines and beer, provides that all incorporated cities are authorized to pass proper ordinances governing the issuance and revocation of licenses for the retail sale of liquors within the corporate limits and may impose ad- ditional restrictions, fixing zones and territories and pro- viding hours of opening and closing and such other rules and regulations as will promote public health, morals, and safety as they may by ordinance provide. Although the General Assembly has delegated to municipalities the authority to adopt ordinances to confine the sale of intoxicating liquors to specified areas within such municipa- lities, and has provided that the Director of Alcoholic Beverage Control shall give due regard to municipal ordinances when determining whether to issue a particular permit, the General Assembly has vested the discretion to determine the exact location for a liquor permit with the Director of Alcoholic Beverage Control, and not with municipalities. • • In Karp v. Zoni,lg Board of City of Stamford, '240, A. 2d 845 (Conn.. 1968), the Connecticut Supreme Cuurt stated: "There is a distinction between the functions an powers of the Liquor Control Commission and those of a zoning board. It is provided by statutes, for example, that the Liquor Control Commission shall refuse permits for the sale of ascoholic liquor where they are prohibited by the zoning ordinance of any city or town. . . the town has the power, through its zoning authority, to restrict the use of buildings for the sale of alcoholic liquor to certain zones or districts, but cannot, on the other hand, limit the number of liquor outlets in a town since this authority has been delegated to the Liquor Control Commission by the state." ir The sole power a municipality has to regulate the sale of alcoholic beverages is that conferred upon it by the state. • • page 3, 04 Heidenreich v. Ronske, 187 N.E.2d 261 (I11. 1963 Y. McClain, 422 P. ); 7-Eleven,rInc. of p to municipal corporations kla. 9to)regulate land vcontr control the sale of alcoholic beverages are strictly construed against such corporations. 7 -Eleven, Inc, v. McClain, supra. In Cannon v. City of Stiracuse City of Syracu a had ado ted an3ordi_Ync whichS. d 944 (1973), the restaurants and other establishments selling nodispensing alcoholic beverages for consumption on the premises sptosacg a special permit not required by other restaurants oroestabire lishments. Ruling that this zoning regulation conflicted with and was pre-empted by the general state law, the Court stated: ""_':,ere is a direct, explicit attempt by the city to regulate ate an rea that the state has pre-empted decided that pnanlae ingaccom ission, in its decision, 's propose restaurant would be incompat.ible1withethe location of other similar establishments; and that there was no need for another such establishment in that area. Clearly, these findings constitute an attempt to regulate the sale and distribution of alcoholic beverages contrary to the Alcoholic Beverage Control Law, and is therefore invalid." • In my opinion, an ordinance attempting to grant the city the right to approve or disapprove the location of package liquor r. stores on a case by case basis, rather than an ordinance re- stricting the location of package liquor stores to fixed zones within the city, would be contrary to the general laws Arkansas Constitution. of the state in violation of Article 12, Section 4 of the Sincerely, CIT}( ATTORNEY 1 APIA, dd' es N. McCord JNM/mr CC: Mr. Robert S. Moore, Jr. Assistant Attorney General Office of Attorney.General Justice Building Little Rock, Arkansas Mr. Tom Keith Croxton, Boyer & Keith Attorneys at Law 420.West Walnut Rogers, Arkansas 72756 • • • • • • • • es . w . ; _. JIM GUY TUCKER ATIONNCY CCN(RA, • • STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL JUSTICE BUILDING, LITTLE ROCK April 2, 1975 The Honorable James N. McCord Office of City AttJrney P. n. Lox 10u4 Fayetteville, Arkansas 72701 • Dear Mr. McCord: This letter is to response to your question concerning the legal propriety of a certain municipal ..oning ordinance applicable to package liquor stores. My research revealed no conflict between the import of the proposed ordinance and the general laws of Arkansas. Ark. Stat. Ann. $519-2805 and 19-2806 support the concept of conditional use zoning. From a judicial standpoint, the concern as to the different status of liquor stores in the various zoning districts would be whether or not such differing treatments would be reasonably supported by facts of the particular situation. Herring v. Stannus, 169 Ark. 244, 275 S.W.2d 321 (1925). Ark. Stat. Ann. $48-301 grants Authority to the Director of Alcoholic Beverage Control to determine (in light of "public convenience and advantage") the number of retail liquor permits to issue in the State and further provides that, in part, such determinations will be made in accordance with applicable regulatory ordinances passed by mun.cipalities.' &rk. Stat. Ann. §48-517 specified that incorporated cities and toms do -.have such regulatory authority. Hence, as discerned from your letter, the proposed.zoning procedure would appear to be a proper exercise of municipal power under the above quoted statutes. The Attorney General is authorized to render formal, and official opinions to officers and departments of the State government only. .Necessarily, therefore, the foregoing is not to be considered a formal opinion of the Attorney General but is an informal and unofficial expression of view given with the desire to be helpful to you. • RSM,Jr:lm cc: Mr. Tommy J. Keith Attorney at Law 420 West Walnut Rogers, Arkansas 72756 Yours very truly, GUY TUCKER ROhuRT S. MOORE, JR. Assistant Attorney General • t • 1 HARDY W. CROXTON RONALD L. BOYER TOMMY .1. KEITH • e 1 CROXTON, BOYER 8c KEITH ATTORNEYS AT LAW •SO WEST WALNUT STREET ROGERS, ARKANSAS 72756 April 4, 1975 • Mrs. Mari.: Orton Mayor, City of Fayetteville City Administration Bldg P. 0. Drawer 5 Fayetteville, Arkansas 72701.., RE: Package Liquor Stores TELEPHONE 801.635•.1565 As you probably know by now, the Attorney General's Office has issued an informal opinion stating, in effect, that it would be a proper exercise of municipal power to make pack- age liquor stores a conditional use. As you know, this was one of the issues discussed at length at the meeting of the Board on December 3, 1974, by the Directors, Mr. McCord and myself. Therefore, in view of the above opinion, I am requesting on behalf of my clients, i.e., the Skelton Street area residents, that the Board of Directors adopt an ordinance m '-i.ng the said liquor stores a conditional use. Since. my ..st meeting with the Board on behalf of my clients, I have had occasion to study in depth the administration of the Alcohol Beverage Control laws, the relationship between the said Alcohol Bever- age Control Board and applicants for permits, the historical responsiveness of the Alcohol Beverage Control Board to the concerns of property owners such as my clients, etc., and 1 am convinced that it is only through their locally elected officials that people such as my clients can have any voice in the process of the selection of sites for package liquor stores, taverns, etc. In my view, the city governing body has the primary responsibility for promoting orderly growth, preservation of property values, etc., and should exercise its judgment and make its views known on matters of this nature. a���l•. �� APR 7 1975 art or!.-, a on'ct . .. vr • • 1 • Mrs. Marion Orton Page Two April 4, 1975 Th: aaoption of this ordinance would not have a direct effect upon the existing lawsuit; however, this matter of site selection for liquor stores has been a recurring problem in Fayetteville for many years, and it would be in the best interests of the people of the City that the Board becomedirectly involved in this process by the adoption of the above -requested ordinance. If I can be of any assistance, I will be glad to do so. TOM KEITH co copies: Mr. Don Grimes Mr. Jim McCord • • • • • • page 3.07 HARDY W. CROXTON NONALD L. DOTER TOMMY J. KEIT. • CROXTON, BOYER & KEITH ATTORNEYS AT LAW 4)0 WEST WALNUT STREET ROGERS. ARKANSAS 72756 April 8, 1975 • • • • . Mr. Don Grimes City Manager City Administration Bldg. .. P. O. Drawer F Fayetteville, Arkansas 72701 page 3.08 4 TELEPHONE RE: Authority of City to Make Retail Liquor Stores a Conditional Use in Certain Zoning Districts 501.050.4585 1 cannot resist responding on behalf of my clients, the Skelton Street residents, to the April 3, 1975, letter of City Attorney James N. McCord, in which Mr. McCord disagrees with the informal opinion -of the Office of the Attorney General in regard to the'authority of the City to make package liquor stores a conditional use in certain zoning districts. Obviously, in view of the following comments and my previous statements to he Board of Directors, I disagree with Mr. McCord a co:. cur with the opinion of the Attorney General's Office. This whole matter rests upon statutory construction and interpretation, and,although the decisions of tho Courts of other states are helpful, they are not exactly on point because of the differences in the statutory language. So far as I know, the City of Fayetteville has not even con- templated attempting to limit the number of liquor outlets within its incorporated limits, and, for that reason, it is doubtful that the cases cited by the City Attorney in his April 3, 1975, letter are on point either. • 1 1 • 1 • . page 3. 09. Mr. Don Grimes Page Two April 8, 1975 As a czaatare of the state, the powers of the city are act limited to those expressly granted, but include those powers necessarily or fairly implied in or instant to its express powers, and the use of such powers are discretion- ary. City of Little Rock vs. Linn, 245 Ark. 260, 432 S.W. 2d 455 (1968), and City of Piggott vs. Eblen, 236 Ark. 390, 366 S.W. 2d 192 (1963). There is no question but that the city has the express power to zone and control the use of land within its incorporated limits. Ark. Stat. Ann. $19-2801 (Repl. 1968),,. et seq. The conditional use approach is a power incidental to the express power. Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925), cited with approval in City of Little Rock vs. Linn, supra. In this context, the implied and/or incidental power of a municipality is limited, and thus invalid, only inso- far as the exercise of such power is in direct conflict with a state statute on the same subject. See Section 2 of the Arkansas Home Rule Act, No. 266 of 1971 and codi- fied as A -k. Stat. Ann. §19-1043 (1973 Supp.), and City of Piggott vs. Eblen, supra. Therefore, the question is whether an ordinance making retail liquor stores a con- ditional use in certain zones conflicts with one or more state laws. In my opinion, such an ordinance does not conflict .IL one or mcre state laws. Ark. Stat. Ann. 548-301 (Repl. 1964) gives the director of the Alcoholic Beverage Con- trol Division the discretion to determine the location of liquor permits, but adds that the director "in exer- cising this discretionary power shall give due regard to the ordinances and regulations of the municipalities of this state." In addition to Ark. Stat. Ann. 548-517 (Repl. 1964) cited by the City Attorney, which authorizes the city to fix zones and territories for the sale of wines and beers, the Alcoholic Beverage Control Division is re- quired by Ark. Stat. Ann. 548-311 and 48-528 (1973 Supp.) to notify governing body of the city, the police chief, etc. • • • 1 • • • 1 • • Mr. Don Crimes Page Three April 8, 1975 • • page 3.10 whenever an application for a permit is made for premises s4tkiated within the city limits. When these statutes are considered in the -context of the city's land use powers, it is clear the Arkansas General Assembly intended that the discretion of the A.B.C. direc- tor in the dietermination of the location of liquor stores be limited by the "ordinances and regulations" of the cities and that there is no conflict between conditional use zoning for liquor stores and the state statutes. Conditional use zoning is an appropriate tool for land use control so long as the standards for such conditional uses are sufficiently definite so as to prevent arbitrary and capricious action by the city. It is our view that the legal problems visualized by the City Attorney can be resolved by redrafting the ordinance left on third reading at the November 19, 1974, meeting to allow liquor stores as a use by right in C-3 zoning districts and as a conditional use in C-2 zoning districts where most, if not all, of the problems in regard to the location of package liquor stores have arisen. The next best approach would be the C -2L or C -3L zoning classifications considered at the December 3, 1974, meeting, also, As I stated in my letter to Mayor Orton, any action by the City on this matter would not directly affect them lawsuit of my clients. However, it is our earnest and s ccr, be- lief that the best interests of the community would be served by the City becoming involved in the location of package liquor stores in accordance with the above -stated approach I would like to discuss this matter with the Board at its April 15, 1975, meeting. TOM KEITH co copies: Mayor Marion Orton • City Attorney James Robert S. Moore, Jr N. McCbrd ., Assistant Attorney General • 1 1 • 1 • page 3.11• FA-Srtault VSLLE, ARKANSAS OFFICE OF CITY ATTORNEY POSTAL DRAWER F 72701 April 9, 1975 • Mr. Don Grimes City Manager City Administration Building Fayetteville, Arkansas 72701 • • (501) 521-7700 Re: Amendment to Zoning ordinance Prescribing Package Liquor Stores as a Conditional Use Dear Mr. Grimes: I have receives: a copy of the letter sent you by Mr. Tom Keith, Attorney at Law, regarding the above referenced matter. In the absence of any Arkansas case law directly in point, I agree with Mr. Keith that the authority of a municipality to enact a zoning ordinance prescribing package liquor stores as a conditional use is a matter of statutory construction and interpretation. For the reasons stated in my previous memorandums to you re- garding this subject, I am of the opinion :that the City has the authority to enact an ordinance restricting the location of package liquor stores to fixed zones within the City, but that an ordinance attempting to grant the City the right to :'prove or disapprove the location of package liquor stores on c..._e by case basis by making package liquor stores a conditional use would be contrary to the general laws of the state in violation of Article 12, Section 4 of the Arkansas Constitution. I am of the opinion that the state has pre-empted the field, as far as the exact location of liquor stores within fixed zones is concerned. Mr. Keith's letter has not changed my opinion, al- though I do agree with the general principles he has stated regarding the powers of municipal corporations. • • • 4 • page 3. 12 The Board of Directors must now decide what action to take. I have discussed this matter with Mr. Mort Gitelman, Chairman of the Planning Commission, and Mr. Gitelman suggested that a joint meeting between the Board of Directors and the Planning Commission might be helpful in detes,uiuing whether the City's zoning ordinance should be amendedrelative to this matter, and if so, in what regard. I, too, believe such a meeting would be helpful. Sincerely, Cpy ATTORNEY 4:4210a2" /`2 es N. McCord JNM/mr CC: Mr. Tom Keith Croxton, Boyer & Attorneys at Law 420 West Walnut Rogers, Arkansas • • Keith 72756 W. • • • • • •