In the zone?

County considers property use ordinance

Property rights are at the foundation of American prosperity and liberty. James Madison, the primary author of the U.S. Constitution, recognized ownership isn’t the end of one’s property rights. Without a right of use, ownership would lack significant meaning.

Despite the value placed on such rights in the nation’s founding, the extent of one’s freedom to use property as the owner sees fit remains the subject of political and legal debate. Even as the Constitution values property rights, it also recognizes some governmental interest, through due process, in setting reasonable limitations.

Washington County Judge Patrick Deakins proposes to create a form of zoning beyond the borders of cities that he says will give property owners a path, if they choose to pursue it, to rezone land under light commercial, general commercial and industrial categories.

He’d just as soon eliminate any restrictions on property uses, Deakins said, but doubts the Quorum Court would ever approve that. So Washington County is left with what Deakins views as an onerous, bureaucratic approach that discourages investment in the county and limits the county’s capacity to plan for necessary infrastructure where businesses and residents want to be.

Deakins, in a recent Speaking of Arkansas podcast, said Washington County is going through a decades-long transition from a rural county to an urban one.

Why does that matter? The more dense the population gets and more land uses change, the potential for conflicts increase. Zoning has historically happened through municipal government and been resisted in county government. But what happens when lands outside cities start to be used more and more like lands inside cities?

Deakins said Washington County, in effect, currently has zoning, but through conditional use permits, or CUPs. That is, all land outside cities is considered agricultural. Any uses beyond that goes through a CUP approval process. The county planning board hears the proposal and neighbors of the project get a chance to detail their concerns or support. Then the planning board decides whether to issue the permit based on county ordinances and state law.

Those decisions can be, and often are, appealed to the elected Quorum Court. Deakins said the entire process starts all over. The Quorum Court can ignore the planning board’s decision entirely. And Quorum Court members use whatever subjective criteria they want to support or oppose the property owner’s plans, Deakins said.

It’s an unpredictable process that Deakins says discourages entrepreneurs and business owners from wanting to operate in unincorporated areas and creates a patchwork approach to how Washington County is developing.

Instead, Deakins says he’d like to see a process in which property owners can seek commercial or industrial zoning designations for their properties, making them more marketable because the defined activities within those categories would be considered uses by right, eliminating in many instances the need for a conditional use permit.

Nearby property owners would, according to Deakins, still have a voice as the Quorum Court determines whether to make the zoning change. But the unpredictable reliance on conditional use permits would be over. CUPs do exist in the proposed ordinance, but in a far more limited fashion.

Is zoning enough protection for nearby property owners? The complaint often heard about zoning is that it’s far more difficult for the public to comprehend what’s being proposed. Zoning is broad. Their objections might not form until they realize the details of what’s being proposed on a piece of land near theirs.

Deakins’ proposal is, to be sure, very much business friendly and favorable to those proposing new uses for their properties. It would, we think, diminish the public’s capacity to thwart a business or industry they dislike. But, as Deakins describes it, that capacity falls too much toward personal whims and biases today.

“This gives us a way to communicate where we would like businesses to go,” Deakins told a Quorum Court committee on Monday.

Is that zoning that’s traditionally been feared in rural areas? Or is it a needed mechanism that reflects the reality of Washington County’s current and future growth trends?

The ordinance would leave the decision to ask for a zoning change to each property owner. The county would not impose, under this ordinance as written, a zoning designation other than agricultural, which is what already exists. But by nature of creating commercial and industrial zoning, the ordinance would establish activities that could only exist within those zoning categories.

Whether this ordinance is the best solution remains to be seen as county officials debate it, and we hope they debate it honestly and thoroughly. Yet it is hard to suggest that the way county decision-making has long been done will be adequate as more and more development creeps into unincorporated areas.

Will zoning discussions under this ordinance, if it’s approved, be any less contentious or subjective? That’s hard to predict, but it seems once a new zoning is obtained, a property’s capacity to be used for commercial or industrial purposes will be more clearly defined. That has value for property owners.

It will be up to the Quorum Court to decide whether it has value for its constituents.