On sewer plant, Little Rock board's vote is no; developer loses appeal on zoning

The Little Rock Board of Directors denied a zoning permit Tuesday night, halting plans for a 135-lot subdivision just west of Pinnacle Mountain State Park near Nowlin Creek and Arkansas 10.

R.B. Ferguson Custom Homes' zoning permit would have allowed for the construction of a large-scale sewage-treatment plant, which would discharge about 30,000 gallons of treated wastewater into Fletcher Creek. The creek cascades through many properties before it flows through Pinnacle Mountain State Park and into the Little Maumelle River.

Upon learning of the plans in 2015, residents organized and began forming what they now call the Concerned Citizens of West Pulaski County. The group members have been vocal about what they say are negative environmental effects the wastewater could have on the Little Maumelle River and its tributaries, as well as affecting properties of the sparsely populated countryside.

On Tuesday -- after three previous deferrals -- the city board sided with the neighborhood group in denying the developer's appeal. The board voted 9-1, with City Director Ken Richardson siding with the developer.

The matter had been scheduled to go before the city board at least three times in the past year. But each time, Rick Ferguson, who runs the company, requested more time on his appeal of a city planning commission decision denying his permit in July 2016, when city staff called the development a "classic case of urban sprawl."

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"The proposed development is located over 2 miles from the city limits ... essentially leapfrogging over 2 miles of rural development and undeveloped lands to construct an urban residential development," said Dana Carney, the city's zoning and subdivision manager.

Conversely, Ferguson's engineer, Joe White, argued that "leapfrogging" is a typical pattern for development, and that disrupting this pattern would stymie growth.

"That's how growth occurs: Something jumps out in front and the city fills in behind it," White told the planning commission last summer. "We could never have imagined a Wal-Mart at Chenal Parkway and [Arkansas] 10 when I was growing up, and yet there it is."

Last March, Ferguson asked for a 60-day deferral in order to explore alternative disposal options, including disposing of the sewage underground instead of in the creek. However, the results of soil tests rendered those options unfeasible, according to Ferguson's attorney.

On Tuesday, applicants argued that the proposed area "conforms in every respect" to the current residential zoning designation, and that a vote against the permit would be "the very definition of arbitrary and capricious," said attorney Philip Kaplan.

Similarly, just 5 miles to the south, developer Wayne Richie also has plans for a larger 265-lot subdivision along Kanis Road called The Trails -- a project that also would require its own sewage plant that would discharge 40,000 gallons of wastewater daily into Fletcher Creek.

After Tuesday's vote Richie would not disclose his final plans addressing wastewater disposal.

Kaplan said it was too soon to comment on Ferguson's next step.

The two treatment plants are the largest proposed in the extraterritorial jurisdiction, or the 3-mile area just outside the city limits where the city has zoning authority. State statute allows some Arkansas cities to exert zoning authority in areas contiguous with city limits that the city could annex in the future. The zoning law was created several decades ago in order to prevent a hodgepodge of developments as cities grow and expand.

Little Rock provides no city services to the 3-mile zone. While Central Arkansas Water and Entergy provide water and electrical services to homes and businesses in the extraterritorial jurisdiction, Little Rock Wastewater does not extend sewage lines to the area. Many of the area's residents use septic tanks that slowly percolate wastewater into the ground.

However, the A̶r̶k̶a̶n̶s̶a̶s̶ ̶D̶e̶p̶a̶r̶t̶m̶e̶n̶t̶ ̶o̶f̶ ̶E̶n̶v̶i̶r̶o̶n̶m̶e̶n̶t̶a̶l̶ ̶Q̶u̶a̶l̶i̶t̶y̶ Arkansas Department of Health allows this method of disposal only on properties l̶a̶r̶g̶e̶r̶ ̶t̶h̶a̶n̶ ̶3̶ ̶t̶o̶ ̶5̶ ̶a̶c̶r̶e̶s̶ larger than about 3 acres in the area of a planned subdivision west of Pinnacle Mountain State Park in Pulaski County*. The lots in both subdivisions would be smaller than the allowed minimum, thus necessitating a treatment plant.

In March, the city board asked for two studies that would examine how extending services to the extraterritorial jurisdiction would affect the city.

One study, sponsored by City Director Lance Hines, directs Little Rock Wastewater to conduct a $250,000 look into how the city would extend sewage services into the extraterritorial jurisdiction. Hines said that study likely would not begin until 2018, when the wastewater utility could figure the cost into its annual budget.

The second study, sponsored by City Director B.J. Wyrick, would examine how extending all city services -- including police, fire, code enforcement and public works -- would affect the city in the long term. The city staff currently is preparing a request for proposals for this study.

Hines also has been critical of how the Environmental Quality Department so far has refrained from making any permitting decision on Ferguson's wastewater-treatment plant.

"Really, the ADEQ should be making this decision and not us, because we don't really have the capacity to determine whether it's safe to discharge [effluent] into the stream," Hines said. "Really what you have is a state agency abdicating their responsibility to regulate an industry which they have purview over.

"They're the ultimate authority on that, not us."

According to an agency spokesman, the agency has maintained that a development must obtain zoning permission from the city before the department can proceed with any permitting decisions.

Metro on 05/03/2017

*CORRECTION: The Arkansas Department of Health limits the use of septic tanks to properties larger than about 3 acres in the area of a planned subdivision west of Pinnacle Mountain State Park in Pulaski County. A previous version of this article incorrectly identified the regulating agency and the area affected.

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