FORT SMITH — FORT SMITH - Sexually oriented businesses will be allowed in more areas of Fort Smith if city directors pass recommended changes to the zones in which such businesses are allowed to operate.

Failure to provide adequate land for the businesses could make the city vulnerable to litigation if a sexually oriented business tries to move to Fort Smith but can’t find a location, director of Development Services Wally Bailey said Tuesday.

City directors decided at a study session Tuesday to vote next week on the changes, which would allow sexually oriented businesses in heavy commercial zones, also known as Commercial-5, and in two industrial zones, I-2 and I-3.

Fort Smith has just one sexually oriented business, X-Mart Supercenter, near the Fort Smith Regional Airport in south Fort Smith.

Without the changes, the businesses are allowed only in Commercial-2 through Commercial-6 zones andnot in industrial zones, Bailey said.

Because sexually oriented businesses are restricted from being located near homes, churches and some other sites, they have been confined to scattered slivers of land on the fringes of Fort Smith, according to a map distributed to directors Tuesday.

Bailey recommended the changes because amendments the directors made in May to the ordinance governing sexually oriented businesses decreased the amount of land available to 1.4 percent of the city’s total area. The changes would increase the space available to the businesses to 4 percent of the city’s total area.

Bailey said 4 percent is better than 1.4 percent but still less than the 5 percent judges have ruled in court cases as being a constitutionally sufficient amount of land.

“So, we’re sitting ducks,” Director George Catsavis said about the risk of losing a lawsuit.

Director Pam Weber saidshe thought 4 percent was a good compromise.

Director Kevin Settle asked Bailey if he could reconfigure the zones to attain the 5 percent level.

Bailey said restrictions the city has placed on the location of sexually oriented businesses make it difficult to find an additional 1 percent of land in Fort Smith where those businesses could locate.

The land area decreased when directors voted in May to double to 1,000 feet the distance a sexually oriented business must locate from homes, hospitals, churches, schools, day-care centers, parks, trails, playgrounds, libraries, other sexually oriented businesses and any entertainment businesses for children.

The courts have ruled that as little as 5 percent of a city’s land area is sufficient for such businesses, Assistant City Attorney Rick Wade wrote in a memorandum to directors in April.

Bailey said a land availability level of 4 percent has not been tested in the courts.

Northwest Arkansas, Pages 9 on 11/14/2012