FAYETTEVILLE — Circuit Judge Chadd Mason, not a Washington County jury, will likely decide whether the City Council acted legally when it approved plans for a West Cleveland Street apartment complex earlier this year.
Mason on Thursday scheduled an Oct. 25 hearing to decide the matter.
The 122-unit, 450-bedroom complex referred to as “Project Cleveland” is planned across the street from Leverett Elementary School and University of Arkansas dormitories. Aldermen voted 6-2 in favor of a planned zoning district for the development June 20 after nearly five hours of public debate.
A planned zoning district combines zoning and project design in one step, unlike the conventional development review process.
Dozens of homeowners living near the project site signed petitions and spoke against the apartments, saying they didn’t belong next to an established single-family neighborhood and would cause traffic and drainage issues in the area.
Four residents filed a lawsuit against the city in July. The plaintiffs, Archie Schaffer III, Beverly Schaffer and Ken and Susan Gardner, claimed council members acted in an “arbitrary and capricious” way when they approved the planned zoning district.
The key issue Thursday was about who will decide the case.
Edwin McClure, plaintiff’s attorney, argued Thursday a jury should be impaneled to make a decision. City Attorney Kit Williams argued state law required the judge to determine the outcome.
That finding will rest on whether Mason considers the procedure for approving a planned zoning district to be administrative or legislative. If it’s the former, a jury will hear it. If it’s the latter, it’s left to the judge, according to state law.
Mason said he was inclined to agree with Williams’ interpretation, but he gave McClure and his legal team 14 days to find case law to indicate otherwise.
Vicki Bronson, an attorney representing Project Cleveland developer Seth Mims, said in an Aug. 15 court filing the residents who filed the lawsuit are using stall tactics to try to hold up the project.
“The plaintiffs have no motivation to move this case along,” Bronson wrote. “They would love to drag the case on as long as possible to hinder the construction of the development.”
Stephen Lisle, an attorney representing Fadil Bayyari, said Thursday that Bayyari is waiting until the lawsuit is settled to sell his family’s 60-unit apartment complex to Mims’ company.
Mims declined to comment Thursday afternoon.