A zoning request for property off Lee Town Road be rezoned from agricultural to high-density residential failed to pass at the Tuesday, July 20, City Council meeting.
The request, presented by realtor Tim Salmonsen on behalf of property owners Kinley and Jerri Miller, was approved by the Planning Commission at the July 6 meeting. It had appeared before the Planning Commission in February.
The City Council vote was split with two against and two in favor of the rezone. Mayor Jackie Crabtree did not cast a deciding vote. When asked after the meeting why he didn't, he said he was not required to break the tie.
After the ordinance for the rezone was presented, alderman Merrill White told fellow council members he had been researching this issue in depth. He said city code prevents reapplication of a denied request for 12 months unless a "substantial change" exists in the application. White said he had conferred with city attorney Shane Perry (who was absent) and regional planner Jeff Hawkins, both of whom disagreed on the issue.
At the July 6 Planning Commission meeting, Perry reminded commission members of the city's statute about reapplication advising them to make a statement whether they believed there was a "substantial change" in order to reconsider the application. Five of seven commissioners were present and said there was a "substantial change" based on the fact that neighboring land had been rezoned from agricultural to residential (R2).
The vote to recommend the rezone from A1 to R3 was approved by four of the five members present with Tony Byars voting against it.
City building official Tony Townsend told Council members that the commissioners said there was a "substantial change" from the request that was denied in April.
"This is kind of an interesting twist for me," White said. "One of my goals as council member was to be sure we honored what the Planning Commission because they did all the research. Of course, we owe it to the citizens to do research ourselves... I've followed this all the way from February till now."
White said the city's rules allow an appeal of a denial within 15 days of the denial. "This particular property did not do that. This same 20 acres came up again and got presented with zero changes to the previous application," he said.
He said that although there had been a change in shrouding property there was not a change "in" the application. He said Hawkins concurred.
Perry, speaking via phone, said: "This is a procedural issue. In this discussion, "in" is the real distinction here. Our ordinance doesn't say 'in' it says 'from.' It's up for debate."
"Jeff's not a lawyer; I don't feel bound to take his legal opinion," Perry said. "It's my responsibility. I take that very seriously. I understand there can be a different opinion. But I gave the opinion I thought was best for this city."
"If were not following the ordinance, we can be subject to reprimand by the court," Perry said.
Salmonsen told the council the first time it was presented to the Planning Commission and got denied. He said one of the "no" votes was because the land adjacent was agricultural.
"Now we have (rezoned that land) and it's contiguous," Salmonsen said.
Council members White and Cody Keene voted against the rezone recommendation; Council members Ginger Larsen and Steve Guthrie voted in favor of it.
The ordinance amending the Pea Ridge zoning ordinance was pulled from the agenda at the request of Jeff Hawkins, the mayor said, adding that it would be presented in August.
"I think Al Fowler has done a yeoman's job on that zoning ordinance," Crabtree said. "And Dr. Sherman has done a big part of that; we appreciate your job over the past two years working on this. We appreciate what you've done on that."
In other business, the council:
• Approved the mayor's appointment of Jared Powell as fire chief;
• Approved the final plat on Arlington Subdivision Phase 1B by Winter Park Partners with the emergency clause; and
• Heard a favorable report on the Waterworks and Sewer system audit by Przybysz & Associates by David Eaton, CPA.