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HomeMy WebLinkAbout1985-03-25 Minutes (2)• • • SPECIAI. MEETING OF THE PLANNING COMMISSION OF THE CITY OF FAYETTEVILLE A special meeting of the Fayetteville Planning Commission vas held Monday, March 25, 1985 at 3:00 p.m. in room 111 of the City Administration Building, 113 W. Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: Newton Hailey, Melanie Stockdell, Ernie Jacks, Barbara Crook, Fred Hanna, Sue Madison, Stan Green, Joe Tarvin and Trey Trumbo None Asst. City Manager McWethy, City Attorney McCord, Patrick McKeehan, Planning Consultant Larry Wood, Street Superintendent Clayton Powell, Ervan Wimberly, Planning Clerks Taylor and Brandeis, and others The special meeting of the Fayetteville Planning Commission was called to order by Chairman Hailey who announced that discussion would center around interpretation of "rational nexus" as requested by Commissioners. A definition of "rational nexus" (as per New Jersey Supreme Court in181 Incorporated, the Salem County Planning Board, 336 A. 2d 501 [N.J. 1975]) was presented by City Attorney McCord in a letter to Planning Administrator Jones on June 28, 1977 as follows: "an inner connection between two events, direct and substantial in nature and clearly and logically linked together. It signifies a connection more definitely and clearly established than a reasonable' connection. It cannot be used to portray an indirect, remote or vague relationship." In another letter to Commissioner Jacks on March 14, 1979, McCord suggested that the Planning Commission may wish to consider the following rules for off-site improvements which have been approved by the New Jersey Supreme Court: 1. If the off-site improvement benefits only the subdividers tract, the entire cost thereof may then be imposed on the subdivider. 2. When the required improvement not only benefits the subdividers tract, but other properties as well, the subdivider could be compelled only to bear that portion of the cost which bears a rational nexus to the needs created by and benefits conferred upon the subdivision. 3. The portion of the cost which the subdivider may be compelled to bear is not limited to the special or peculiar benefits which 86 • • • Planning Commission Special Meeting March 25,1985 Page 2 the subdivided property receives by reason of the improvement. Consideration may also be given to the fact that the need for the off-site improvement was created by the proposed subdivision. McCord advised that the City Board of Directors has made a policy decision that, under appropriate circumstances, the developer should be required to install off-site improvements. He said he had been concerned about the constitutionality of that decision but did find case authority upholding similar ordinances, provided the ordinance prescribes a standard to be adhered to. McCord said that standard "rational nexus" was defined by the New Jersey Supreme Court as stated. He said the practical application of this standard is self- explanatory as per Fayetteville Code of Ordinances Art.III, Sec.A(4): "In determining that portion of the cost of off-site improvements which the subdivider shall be required to bear the Planning Commission shall consider the acreage within the proposed subdivision as a percentage of all the acreage which, when fully developed, will benefit from the off-site improvements..." He added that each case must be considered on its own merits. Crook noted that the Commission has routinely assumed that a subdivider would make those off-site improvements which were adjacent to their property (such as streets) and developers have agreed. She said that Commissioner Green had questioned routinely requiring these improvements. McCord noted that if the adjacent street will be used by the residents of a development, it was valid to require the developer to improve that street. Crook agreed, noting that it may not necessarily be required if it were a street which the rest of the town residents were also using. She questioned how to assess rational nexus for such a street. McCord said total usage would have to be considered and if it were a high public use street, it would unreasonable to require the developer to bear 100% of the cost. Jacks said it was sometimes very difficult to attach a fair cost to a development. He said questions regarding the application of rational nexus first came up when developments began occurring on roads on the outskirts of town by owners selling off sections of land by metes and bounds, creating subdivisions without improvements. He said the off-site improvement ordinance was created to deal with this type of situation. Green said there have been many instances in which city representatives have made requirements stating that a request for waiver could be made, but Green said he thought that no requirement exists until the 8T • • • Planning Commission Special Meeting March 25,1985 Page 3 Subdivision Committee determines that there is one and he noted that the Committee could make the determination that zero improvements are required. McCord agreed that this was an option. He _said he thought the plat review committee could make recommendations as to improvements but the Subdivision Committee would make the final determination. Green expressed his concern regarding the difference between a requirement and a recommendation from City representatives. McCord said that in certain circumstances, improvements may be required in advance, such as a sub -standard street if that is the only access to a paved road from a sole subdivision. He said in this case, the developer would be responsible for contributing his proportionate share of bringing that sub -standard access up to existing City or County standards. Green reiterated that thatshare" could be zero. Jacks clarified that the code requires a sub -standard street to be improved when adjacent property is developed but that the proportionate share is the decision to be made by the Planning Commission. Green said he thought the ordinance was designed to address a developer entering an area that does not have streets improved to City standards. He said he felt the ordinance gets over -applied and sometimes seems arbitrarily applied. Tarvin noted the instance of University Baptist Church being required to spend approximately $100,000 to tear up Vandeventer and then widen and improve it with curb and gutters, drains and sidewalks, etc. which would represent 100% of the improvement cost because they owned the property on both sides of the street. He added that the church would only be emptying a parking lot twice a week. Powell said that that strict a requirement was not made and Tarvin said that it was presented to the Planning Commission in that way and eventually a Bill of Assurance was accepted to install improvements at such time as the west side of Vandeventer was developed. Powell advised that there had been a exchange for UBC involving improving the length of their property along Maple and he noted that their property surrounds Vandeventer. Crook added that Vandeventer is a substandard street and, if only that block is considered, it would amount to 100% of improvements. Stockdell said that UBC creates heavy use on Vandeventer two days a week and for the remainder of the week there is other identifiable local traffic. She said it seems that, in trying to find an equitable way of dealing with this situation, the traffic flow (and source) is very important and she wondered if updated traffic counts ,could gg • • • Planning Commission Special Meeting March 25,1985 Page 4 be available to Commissioners and used as part of a constant equation to apply to developments. Tarvin cited the case of a street improved to 26 feet with curbs and sidewalks, instead of the current standard of 31 feet. He questioned whether that (perfectly good) street should be torn up just to widen. Jacks referred to streets in town that are perhaps only 20 ft. wide without curb and gutter. He said he thought bringing these up to current City standards should be required. Green said that once someone makes a determination that some contribution to off-site improvements should be made, the subdivider may ask for a waiver from that requirement. He said the code lists some conditions that may apply for those waivers and he cited those conditions. He inquired of McCord whether the fact that a street is shown on the Master Street Plan as being wider than it presently is, meets the requirement that "the City has no plans for upgrading the sub -standard road " McCord said that being on the MSP does not qualify for "upgrading" the road in his judgements. Jacks said that a priority lists exists to improve these streets and Powell added that the fact that the City cannot afford to improve the 240 miles of sub -standard streets in any given year does not eliminate the fact that the streets need improving. He added that he thought when a developer builds multi -family dwellings on such a street, they are creating the need for that street to be widened at that time. McCord said that there may be some problems with the existing ordinance and its application and he thought recommendations from the planning Commission regarding possible amendments to assist in applying the ordinance may be the result of this conversation. Crook noted that the priority lists (for streets) are generally for five years. She inquired when an instance might exist that the City would not want to upgrade a street. Green said he saw a difference between a plan to do something and the recognition that something needs to be done. Jacks said he felt that if a Master Street Plan exists calling for certain streets to be collector streets, that plan represents the City's intention of having it done. Green said that is only part of the plan, stating what is desired and not how to do it. McCord said this difference in opinion may reflect a need to have the ordinance amended. 81 • • • Planning Commission Special Meeting March 25,1985 Page 5 Green asked if a street shown on the Master Street Plan reflecting its future width would make it defensible in court. He commented that although a street may be reflected on the MSP with its future width, a judge may not deem it legal if there were no concrete plan as to time on construction or source of funds. Jacks said he thought by its very existence sidewalk plans, etc. it would be very nice improvements without is not the case. that having a MSP represents a legal intention as does the City's land use plan, zoning and Consultant Wood agreed. Jacks commented that if the City could afford to make all required obligation on the developer's part, but that Crook said that it is fairly easy to assess a developers contribution when he is building on both sides of a street as in Chestnut Apartments,' but when that street runs into another, and more major street (Poplar) it becomes more difficult because, although the residents of the apartment complex are making a great impact to the area, that major street is also used by many people as a cross-town thoroughfare. She inquired just how far off site the requirements should apply. Hanna said he didn't think it was reasonable to require someone to improve a street that they didn't actually abut. McCord said if the need is being created, in part, by that development, they could be required to contribute. Green noted that if a gravel road in a suburban development is serviceable, perhaps the developer should not be required to improve it. Tarvin advised that some people don't mind using gravel roads. McCord advised that the ordinance addresses delayed improvements and provides for the possibility of a refund if the construction is not made within five years. In answer to discussion on substandard streets, Powell advised that the previous street standard in Fayetteville was 26 ft. wide back/back of curb with no on -street parking. He added that the 31 ft. width was adopted in order to provide two 12 ft. lanes and a six foot parallel parking space on one side in subdivisions. He also noted that there have been many instances where a developer has built along a 26 ft. wide street without being required to widen it. Powell said that problems occur when a developer builds on one end of a previously platted sub- division without making improvements and several years later wants to develop two or more lots at the other end of the same block with no improvements in between. He used Leverett as an example, noting that it is 26 ft. wide and, if no parking is allowed on it, it will serve adequately until some time in the future when all the apartment complexes along that street will impact the area. He said Leverett 40 • • • Planning Commission Special Meeting March 25,1985 Page 6 could not be widened at that time because it would mean condemning every lot on the street. Green said that with many streets shown on the MSP, a developer can see at a glance that he will need to make street improvements and can decide whether or not to proceed, but in some cases, the City has improved certain streets to a substandard condition and at the point at which a developer is proposing development requests that the street be improved to current standards. Green asked why improvements were required of Carpet Cabin on Whillock Street when its main entrance is on S. School. He noted that Whillock has been improved by the City's Community Development to a sub -standard condition. Powell said that he requested these improvements because the code specifically requires them whenever development takes place along an unimproved street. He added he also felt these improvements were necessary because he could see that, on north side of Whillock where the tire company is located, many problems have occured with regards to drainage and impeded vision which may have been avoided had off-site requirements been requested of that developer. He said the natural drainage ditch which runs diagonally across the lot into an underdrain on Whillock has been filled and the drainage forced to travel along their east property line and then turn down the north property line and out into the street. Powell added that if there are two commercial concerns at both corners of an intersection, he thought the safest place to turn would be the local street between them rather than the drives off the main highway. Powell added that the developer of Carpet Cabin was anxious to make improvements to his property and has called in with several suggestions for controlling drainage as he has already experienced problems. Powell said he did not demand said improvements, but made suggestions. Stockdell noted that several items have been discussed that might be included in some sort of equation to be used in applying rational nexus for developments: 1. Proximity to sub -standard street. 2. Acreage 3. Addition to the traffic load. 4. Distance from traffic centers/streets not abuting development. 5. Ingress/egress 6. Development design 7. Topography Tarvin added: the benefits to be derived versus their cost. ql • • • Planning Commission Special Meeting March 25,1985 Page 7 Taylor, Planning Clerk, said she small developer, perhaps a family, of units on less than an acre of improvements can be staggering to when the land equals less than an acre the code states that improvements must be installed. Taylor said she did not understand why the developer working with over an acre is eligible to request a waiver when the small developer is not. thought a problem existed when a wished to build a small number land. She said the cost of major the small builder and added that McCord advised that, even though it is not specifically stated, the small developer could appeal to the City Board for a waiver or variance. Crook noted that, in a recent case, the Planning Commission recommended granting a partial waiver for improvements in a development located on Wedington west of Garland which was completely revised by the City Board. She asked if the Commission needs to be more specific and whether the Board was bound by the same requirements for rational nexus as the Commission. McCord advised that Commissioners are bound to follow the ordinance and vote for what proportionate share of improving the street they think it should be. Crook said that it appeared that the Board disregarded the Commission's recommendation rather than addressing an appeal (none was made). She said she thought arriving at a set of criteria to be considered and a way of assessing them in determining rational nexus would take quite a bit of effort. Green said he thought it was a matter of a judgement call and could not be reduced to a formula. He said the basis on which it has been determined that off-site improvements are required should be documented in the minutes. Stockdell said that that would work to the disadvantage of the City and the application of the ordinance. Green interpreted this to mean that information to fairly administer the ordinance is unavailable. Stockdell said she felt the Committee needs to give developments their best consideration and that she did not think the ordinance could be equitably applied without quantifiable information. She said she thought differences of opinion occur in the Committee because members have different senses of quality. Green said he thought the ordinance was very aggressive in terms of taxing people individually and care must be taken. Hailey advised that Plat Review comments are passed on to the Subdivision Committee and then the Planning Commission approves a development 42 • • • Planning Commission Special Meeting March 25,1985 Page 8 upon the recommendation of the Subdivision Committee, but the Commission itself never (technically) addresses that the needs are there. McCord said it would be helpful in defending a lawsuit, if the reasons for determining the off-site requirements were reflected in the minutes, but he added that the fact that it is not reflected is not insurmountable in that he could call the chairman of the Commission to testify as to those reasons. Crook noted that the ordinance lists acreage as one means of determining percentage of improvements, although not necessarily the only one. McCord advised that the ordinance would not have to be amended to use some of the criteria suggested by Stockdell. Madison asked if inconsistency within the Subdivision Committee requests of developers made the Commission more vulnerable and judgements more suspect. McCord said he was comfortable with the constitutionality of the ordinance on its face. Madison if there is a set of guidelines as to when to accept a Bill of Assurance verses immediate construction of improvements. Stockdell said there are other cities with standards for determining off-site improvements and she requested McCord to research this report the results to this Commission. McCord said he would write Salem County in New Jersey and request their administrative policies that they may have adopted. Jacks said his own criteria for applying the ordinance is whether or not a developer is being required to install certain off-site improve- ments that, if not done, will likely have to be done at a later date by the City. He said the intent of the ordinance was to have the improvements done by the people who will be using them rather than having the City forced to do it by petition after the development is established. Green said he thought the ordinance gets over -applied. He added that he did not think it was a negative concept for the people who are creating (at least part of) a need to help pay for the cost of meeting their need but that it could get carried to extremes. Jacks said he thought the ordinance has been used to bring City streets into conformance with the Master Street Plan. Crook said this meeting had been helpful to her in understanding rational nexus and that she would look for more quantifiable evidence if it is available, one of which is a traffic count which she has been told is nearly impossible because of lack of per,aonnel. 43 • Planning Commission Special Meeting March 25,1985 Page 9 Powell listed a large amount of street and drainage improvements made by the City over the past years He said the City was 2 million dollars behind the improvements they desired when this ordinance went into affect (1970). He said the City approaches the situation by putting everything it has to the best use possible and addresses issues by priority based on observation and citizen input. Powell reiterated that he explains required improvements to developers in terms of his interpretation of the ordinance and what has been normally applied in similar circumstances although there is always provision for a variance. Tarvin asked under what circumstances improvements should be required and when the question first arises. Hanna said the questions arise at the Plat Review meeting as per City representatives and utility companies, and then progress to the Subdivision Committee where it is determined exactly which off-site improvements are necessary. He said he thought a policy statement may be needed for this determination. • There being no further questions or discussion, the meeting adjourned at 4:30 p.m. • 4N