It hasn’t taken long for Sen. Bart Hester’s law to limit local control of housing to be put into use.
A news release from Julie Mullenix, a lobbyist for the real estate industry, announced opposition by the Northwest Arkansas Board of Realtors to a Fayetteville Planning Commission ordinance to limit the width of driveways in certain single-family zones.
According to the release, the rule would prevent homeowners from building front-oriented two-car garages. Said the release:
The new ordinance will apply to all property zoned as NC, even some properties currently under development. The Planning Commission has also expressed an interest in expanding the NC zone to additional properties in the future thereby expanding the application of this new ordinance.
“The Northwest Arkansas Board of REALTORS® has a long history of supporting private property rights,” said president, Jennifer Welch. “We will continue to advocate for every individual’s right to the use of their own property free from the overreach of local government by vigorously opposing overburdensome regulations such as the ordinance proposed by the City of Fayetteville Planning Commission.”
The Board of REALTORS® contends the proposed ordinance amounts to a local zoning regulation prohibited by state law because it dictates design elements of single-family housing on private property. Act 446 of 2019 prohibits local regulations that dictate residential building design elements including location, design, placement, or architectural styling of windows and doors, garage doors and garage structures. While on its face, the proposed ordinance dictates only the width of driveways; it effectively dictates the design size and placement of garage structures by precluding the property owner’s options, putting it in conflict with state law.
I’m not conversant with the debate underway in Fayetteville. But I know houses with fronts that consist more of garage than a place to live are considered unsightly by some and generally contribute to neighborhoods friendlier to cars than people. The Fayetteville Flyer has a good report on a well-attended City Council meeting on the proposal last week, which would apply to only a small percentage of residential property in the city.
(Confession: I live on a street with narrow lots and a bill of assurance that requires two-car garages. The only way to meet the requirement on a narrow lot for a house built on the side of the hill is a front-entry, two-car garage (with a driveway wide enough to access both sides).) Anyway:
This interpretation of Hester’s law isn’t likely to be the last of its kind. See those two words “effectively dictates.”
I’ve heard an argument on these lines within the last week after the Little Rock City Board adopted a tree ordinance for the Heights neighborhood. Backers say it promotes the preservation of a tree canopy in the leafy neighborhood. Opponents think it’s a backdoor way to limit the size of a house that may be built on a small lot. If you have to leave room for trees, you might not be able to build your McMansion out to the lot line.
Could a lawsuit come someday claiming that the tree ordinance “effectively dictates” house design, in contravention of Bart Hester’s local control pre-emption law? The Fayetteville debate is a harbinger.
Shortly after Hester’s law passed earlier this year, we reported a warning from Strong Towns, a website advocating wise city planning. Cities sometimes go too far, the article said, but wiping out local considerations at the state level is an even worse idea.
Local preemption happens to be a favorite ploy of lawmakers to hold liberal cities in line.
This is Hester’s second foray into dictating to local people what’s good for him — the first being a pre-emption of local ordinances providing civil rights protection to gay people. State law explicitly allows employment, housing and public services discrimination and that’s the way Hester likes it.
The legislature also passed a 2019 law that stripped localities of the ability to regulate tobacco and vaping sales and use. Local gun laws were outlawed years ago. You wonder what’s next for the liberty-loving Republicans.
The capping irony here will be a lawsuit seeking a broad judicial ruling — legislating from the bench, you might say — to get the law to say what the realtors want it to say.