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HomeMy WebLinkAbout1987-09-14 Minutes• • • MINUTES OF A MEETING OF THE FAYETTEVILLE PLANNING COMMISSION A meeting of the Fayetteville Planning Commission was held on Monday September 14, 1987 in the Board of Directors Room of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: Ernie Jacks, Stan Green, Butch Robertson, Gerald Seiff, Julie Nash, Frank Farrish, Fred Hanna, Sue Madison and B.J. Dow MEMBERS ABSENT: OTHERS PRESENT: NONE Larry Wood, Wade Bishop, Steve Gunderson, Lamar Pettus, Jim McCord, Robert Whitfield, Dave Jorgensen, Gordon Wilkins, E. Rex Thompson, Steve DeNoon, Everett Crouch, Jim & Janice Kelly, Sandra Carlisle, Tessi Franzmeier, members of the press and others PUBLIC HEARING - REZONING R87-22 WADE BISHOP - NORTHSIDE OF MILLSAP RD. ABOUT 500' EAST OF HWY 471 The first item on the agenda was consideration of rezoning petition R87-22 submitted by Wade Bishop. Request was to rezone a 1.5 acre (approximate) tract of land located on the,northside of Millsap Rd. about 500' east of Hwy 471 from R -O (Residential Office) District to C-1 (Neighborhood Commercial) District. Planning Consultant Wood's recommendation was; C-1 District was recommended with reservation for the following reasons: 1. The change to C-1 District is consistent with the General Plan recommendation of Commercial; and 2. The property is currently bordered on 2 sides with commercial or industrial zoning. 3. We are getting a number of high value uses on Millsap Rd. with inadequate public facilities. There is only one point of access, a 2-1/4 water line, no sewer and no fire plugs. It is time the people needing the facilities get together and decide how they will be provided. Jacks opened the public hearing and asked if anyone in the audience would like to speak in favor of the request. Carlisle advised the Commission that she had heard Mr. Bishop was in the hospital. • • Planning Commission September 14, 1987 Page 2 Jacks asked if anyone in the audience would like to speak against the petition as requested. There being no opposition Chairman Jacks closed the public hearing and returned discussion to the Planning commission. MOTION Hanna moved to recommend the rezoning as requested from R -O (Residential Office) to C-1 (Neighborhood Commercial), seconded by Robertson and followed by discussion. Nash asked how could the Commission encourage a neighborhood planning session. Hanna replied the acreage was 1.5 acres therefore it would have to go through the Large Scale Development process. Madison said that would apply only to that property owner to meet their specifications. Seiff said he was concerned about the public facilities not being there. Hanna said in regards to the public facilities they would be just as much in need if the property was developed as offices. Jacks asked Larry Wood if all of Millsap was expected to go into this sort of a usage. Wood replied "yes" baiscally all of Millsap would change to either commercial office, multi -family or church. He said the church that existed on Millsap wanted to build some houses for the elderly. He added most of Millsap would go other than single family and said there were 4 total single family homes on Millsap. Mr. Wood noted the Red Cross building was also located on Millsap. Jacks asked Carlisle if a light was expected at the intersection of Millsap and College. Carlisle replied "yes" and felt it would be installed sometime in 1988. Jacks added his only 2 reservations on this petition had to do with the existing homes on Millsap and certainly traffic control on Hwy 471. Dow asked Larry Wood what the General Plan showed for the house directly to the east of the property in question. Larry Wood replied "office" and Dow asked if that would provide the buffer and Larry Wood replied "yes". Mr. Wade Bishop arrived at this point. • Chairman Jacks asked Mr. Bishop if he would like to add anything to his request for rezoning petition. fa- • • Planning Commission September 14, 1987 Page 3 Mr. Bishop added there was existing C-2 to the north of Millsap as well as C-2 across the street. He said at one time in the old building there was a zoning map that showed C-1 zoning for Millsap. He said he applied for rezoning from R -O to C-1 at that time and to the best of his recollection the Planning Commission recommended the zoning change, but the City Board of Directors had turned it down. Farrish asked if this was the property with the house on it and used for an office at one time. Mr. Bishop replied "yes" the house was used as a real estate office. Madison said if there was a concern because the public facilities were not adequate, perhaps the Commission should not do this rezoning. She said at what point do they put the reigns on out there. She asked if it was fair to rezone the property and then say "we'll catch you later". Nash felt Commissioner Hanna had a good point, in that no matter what the zoning was the problem would still be there. Nash said the problem she was having was even though the C-1 zoning was consistent with the General Plan -there was only one point of access, 2-1/4" water line, no sewer and no fire plugs. Mr. Bishop said a 2-1/4" water line would serve possibly 32 one half inch openings. He said in all of the subdivisions there were only 2-1/4 water lines. He also said when he bought the property in question he ran a sewer line from the line on North College back up to his property. The question was called and the motion to recommend rezoning from R -O (Residential Office) to C-1 (Neighborhood Commercial) passed 9-0-0. WAIVER OFTHE SUBDIVISION REGULATIONS (LOT SPLIT) JERRY W. HENSON - WAGNER ROAD (OUTSIDE CITY LIMITS) The second item on the agenda was consideraiton of a waiver of the Subdivision Regulations (lot split) submitted by Jerry Henson. Property located on Wagner Road (outside Fayetteville City Limits). The request was for the second and third split. Mr. Henson felt the lot splits he had requested were compatible with the subdivision adjacent to the property in question. • Jacks asked if anyone in the audience would like to speak for or against the petition as requested. • • • Planning Commission September 14, 1987 Page 4 There being no opposition the public hearing was closed and discussion returned to the Planning Commission. MOTION Robertson moved to grant the lot splits as requested, seconded by Nash. The motion to grant the lot splits as requested passed 8-0-1, Seiff abstaining. APPEAL - LARGE SCALE DEVELOPMENT (POLARBER) WEST OF JAMES STREET & SOUTH OF MT. COMFORT - COLLEGE PARR The third item on the agenda was consideration of appeals from Jeremy Hess (Board of Director) and Steve Gunderson (attorney). Jacks advised at the last regular Planning Commission meeting the Subdivision Committee had approved the Large Scale Development. Jacks then added there were some questions raised by the Planning Commission, and by some people in the audience, who raised questions having to do with the length of time it had been public knowledge which Jacks said was published one day before the Subdivision Committee meeting. He said the Planning Commission undertook to table the LSD because they had pretty well understood that tableing could be done by the Planning Commission. Jacks also said the Commission had subsequently had a letter from the Planning Director, Sandra Carlisle, who had been in conversation with City Attorney Jim McCord. The letter advised that in her opinion and that of Jim McCord's the Polarbek Large Scale Development had been approved and permits may be issued, essentially saying the by-laws did not permit the Planning Commission to override any action of the Subdivision Committee. Jacks added since that time another letter had been received from Scott Linebaugh, acting City Manager to Sandra Carlisle saying Director Jeremy Hess called him on Saturday, August 29, 1987 to register a protest within a 10 -day period. Jacks said according to the by-laws a protest must be raised by a Planning Commission member, City Board member or an adjacent property owner in order for the Planning Commission to hear said subject on appeal. Jacks also advised of another letter from Attorney Steve Gunderson, who was protesting the approval as well, and representing people in that area. Jacks said one more letter had been received from Mr. Pettus who was representing Polarbek, saying that the developer met all the requirements. Jacks added he asked City Attorney Jim McCord to attend the Planning Commission meeting to give the Planning Commission his opinion about where they stand on this issue. Jim McCord stated the issue that he had been asked to address was whether the Planning Commission had jurisdiction to hear an appeal lodged by Director Hess through the former acting City • • Planning Commission September 14, 1987 Page 5 Manager Scott Linebaugh. He said the ordinance provides any member of the Board of Directors may appeal the decision of the Subdivision Committee to the Planning Commission by filing written notice of appeal with the Planning Administrator within 10 -days from the date of such decision. He said the notice of appeal shall specifically state the reason the appellant contends the committee's findings and decisions were in error. Mr. McCord said Mr. Linebaugh's letter dated August 31, 1987 was hand delivered and that date would be 11 -days after the Subdivision Committee's decision, but the 10th day was Sunday, so in his view the notice was timely filed. He felt it was not relevant or controlling that the notice was submitted on Director Hess' behalf by Mr. Linebaugh and felt that was permissible. He felt the issues for the Planning Commission to decide were whether to hear the appeal or not, whether the notice conformed with the ordinance requirement, that the notice specifically stated the reasons that the appellant contends the committee's findings and decisions were in error. Mr. McCord added if the Commission did find the decision in error then every person who wants to be heard on the matter should be heard. He said but again on deciding on whether to approve or disapprove the development, the Commission needed to keep in mind that the ordinance itself prescribes the reasons for which a development may be disapproved and they could not disapprove the development for other than the stated reasons. Commissioner Madison asked if the Commission decided to hear the appeal would they be limited in any way in their consideration of the development. She added must the Commission restrict their consideration to Jeremy Hess' points. McCord replied "no", and felt other property owners may have significant concerns, but his point was the ordinance sets forth the reasons for which a development may be disapproved. He said if a development meets all the requirements in the City's ordinances then it should be approved. Lamar Pettus representing Polarbek stated one of the purposes for allowing appeals was to allow people a chance to come in and state reasons they think the decision by the lower body was incorrect or improper. He said one purpose for establishing a cutoff time was that at some point in time there must be a finality to the decision of that board or that committee. He said the City had established a proceeding for Large Scale Developments to be presented and approved and in fact this LSD had in fact gone through that procedure. He said he was not arguing as to whether or not the filing of the appeal on the 31st • day of August 1987 was within the 10 -day period. He felt any attorney in town would say anytime you have a limitation period fall on a holiday or a weekend or non -court date the general rule d • • • Planning Commission September 14, 1987 Page 6 was it would be filed the following work day. Mr. Pettus said he was asking the Planning Commission that if they heard the appeal, the only appeal filed within time period was the appeal from Director Jeremy Hess. He thought the Planning Commission should hold Director Hess strictly and fully to the letter of the law as established by the City of Fayetteville. He said after all, the Board of Directors were the people who enacted these ordinances. Mr. Pettus said the ordinance did not say that a Board of Director may call the City Manager and say "I want you to appeal the ordinance and write a letter to the Planning Administrator". Mr. Pettus said the ordinance says the City Director, he or she and only he or she, had the right, along with the developer or the owners of adjacent property, to appeal the decision. Mr. Pettus also said Mr. Hess was on the Board that created that code and he should be required strictly to comply with that code. He said the other concern was that at some point the LSD petition had to end. People had the opportunity to speak and maybe they had seen a couple of problems with the code for submittal of a Large Scale Development. He added Mr. Hess indicated a letter had been sent out to adjacent property owners and that was not the notice required by code. The notice required by the code was published in the newspaper and was not sent out by certified mail. Mr. Pettus felt some agendas had been sent out as a matter of policy to adjoining property owners and that was what Mr. Hess was talking about. Mr. Pettus said he did not think Mr. Hess was in the audience tonight to clarify what his positions were. Mr. Pettus said Mr. Hess raised three points on the appeal; 1) timeliness of the notice, which was by city ordinance and by city code and was in compliance with city code; 2) parking requirements, and thought the Commission would find that was a zoning issue and that this Large Scale Development had been in full compliance with the code; and 3) the drainage issue, which would normally be handled by the administrators of the city and of course at Subdivision level. Mr. Pettus said he would encourage the Planning Commission on behalf of the property owners to take the position of requiring strict compliance with the appeal procedures, especially when the appeal was filed by a member of City Board of Directors and that the Commission find this petition was not properly filed. He added the appeal filed by Mr. Gunderson was not by an adjacent owner (and by adjacent he meant boundaries abutting land owners) and that Gunderson's appeal was filed outside the 10 -day limit. Mr. Pettus said he would ask the Commission's vote to deny the appeal and to stop proceedings at this stage. Chairman Jacks asked if anyone had a question for Mr. Pettus. Commissioner Madison asked Mr. Pettus if it was his contention that the code required Mr. Hess "personally" to write the letter. 1' • • • Planning Commission September 14, 1987 Page 7 Mr. Pettus replied the codes says "any member of the Board of Directors may appeal the decision of the Subdivision Committee to the Planning Commission by filing written notice of appeal with the Planning Administration within 10 -days from the date of decision". He added "yes" that means something other than calling the City Manager's Office and saying send down a memo to Sandra Carlisle that "I (Jeremy Hess) want to appeal this". Steve Gunderson stated he would like to run through the order of events that had lead him to be at this meeting tonight. Initially on August 13, 1987 the Plat Review Committee held its meeting and at that time there was no mention of the traffic volume as it would increase on the James Street as it exists today. He said per Appendix C, Subregulation Article 4, I, 2.(e), there was notification sent in the newspaper however if the Commission would read that particular ordinance, it requires notification of the proposed development to the owner of any property having a common boundary. He said the notice to at least one of the record owners of such property should state that a large scale development plan has been submitted to the Planning Administrator. Mr. Gunderson said the notice in the August 19, 1987 newspaper read "A Large Scale Development Plan for a proposed multi -family housing project to be:located at the west end of James street, east of Garner-Larimore addition, south of Mount Comfort Road and north of Wedington Drive will be presented to the Fayetteville Planning Commission". Mr. Gunderson stated that is not what the ordinance requires. Commissioner Seiff asked Mr. Gunderson to read the requirement again of the ordinance. Article 4, section I, 2.(e) "prior to a Subdivision Committee meeting at which the development plan is to be considered, the developer", in this case Polarbek, "shall give notice of the proposed development to the owners of any property having a common boundary with and a different zoning classification of the property proposed for development by", Mr. Gunderson said then after that there are three ways; 1) certified mail; 2) publication in the newspaper; and 3) or a signature of one or more adjacent land owners. Mr. Gunderson said number one indicated that the notice be mailed to at least one of the record owners of such property that a Large Scale Development plan had been submitted to the "Planning Administrator" not to the Commission. Mr. Gunderson said he was going to read and be ticklish on the spirit of the law and what the law stated. He said the notice should have been advertised as submitted to the Planning Administrator not to the Commission. He added the Subdivision Committee had not approved or disapproved or even referred this Large Scale Development to the Planning Commission, when in the paper on August 19, 1987 it said it was being submitted to the Planning Commission, which was not the case. J • • • Planning Commission September 14, 1987 Page 8 Chairman Jacks if anyone had questions for Mr. Gunderson. Farrish said he did not understand Mr. Gunderson's issue and asked Mr. Gunderson to explain his issue. Mr. Gunderson said the issue would be if Mr. Pettus' comments indicated that the Commission should abide by the strict interpretation or strict language of the law. He said if that was the case on Mr. Hess' and his appeal then there was a problem with this notification to the adjacent land owners in the legal ad that ran on August 19, 1987. Mr. Gunderson submitted to Administrator. had by -stepped said the August 19th ad said LSD was being the Planning Commission rather than the Planning He said, essentially by saying this, the request the Sub -committee. Commissioner Madison said a person reading that notice would be lead to believe that their first opportunity to express an opinion would have been at the Monday meeting. Mr. Gunderson said that was correct and at that meeting it was tabled and he was under the impression it would not be brought up again for discussion until September 14, 1987 as was -everybody in this room. Jacks asked if anyone from the audience or the Planning Commission had a question for Mr. Gunderson. Green asked Mr. Gunderson to read the notice in the newspaper one more time. Mr. Gunderson read "Notice to Adjoining property owners, a Large Scale Development plan for a proposed multi- family housing project to be located at the west end of James street, east of Garner-Larimore Addition, south of Mount Comfort Road and north of Wedington Drive will be presented to the Fayetteville Planning Commission at its regularly scheduled meeting on 24 August 1987". He said the ad was run in the Northwest Arkansas Times on September 19, 1987. Jacks asked if anyone else had a question for Mr. Gunderson. Green asked if Mr. Gunderson was telling the Commission that there was no requirement in the ordinance that a date or time of a meeting be included in the legal notice. Green added the developer could have run a notice that said a Large Scale Development plan had been submitted to the Planning Administrator "period" with no date or time indicated for a meeting. He also asked if Mr. Gunderson thought that would be a better notice than what had been run. Mr. Gunderson replied "yes" and also thought the notice should read instead of "the Planning Commission it • • • Planning Commission September 14, 1987 Page 9 should have been the Planning Administrator". Green then said Mr. Gunderson did not think a meeting date and time or at least a meeting date was better notice than the sentence that says it had been submitted to the Planning Administrator, period. Mr. Gunderson felt both requirements would be needed, not only that it had been submitted to the Administrator, but also a Subdivision Committee would be meeting as well. Carlisle advised the ordinance Mr. Gunderson was referring to was on page 945. Commissioner Madison said if the notice had said "a Large Scale Development had been filed with the Planning Administrator" a concerned property owners first course of action therefore would have been to call perhaps the Planning Administrator. Madison went on to say the property owners were misled to believe instead they had an option to appear at a public hearing. Mr. Gunderson added the public hearing was the only place that the property owners knew to go to. Commissioner Nash said what the Commission was talking about here was appealing the ruling. She said in:order to appeal the Commission needs some evidence that something went wrong, which was what Mr. Gunderson was bringing up. Commissioner Nash said she was buying what Mr. Gunderson was saying and thought he was correct, but her question was that at the last meeting the Planning Commission did not approve or disapprove the Large Scale Development, they tabled it. She was wondering why they were appealing it and asked why not just take it off the table. Mr. Gunderson advised Commissioner Nash, that tableing was modified by a memo received on 28th day of August from Sandra Carlisle. Jacks advised the question before the Planning Commission was "do they rehear this item". He felt a motion would be in order ultimately. He asked if there were any other questions for Mr. Gunderson. MOTION Commissioner Nash moved to hear the appeal, seconded by Commissioner Madison and followed by discussion. Commissioner Green asked Mr. Gunderson if he was representing an adjoining property owner. Mr. Gunderson replied he was representing an individual who owns property on James Street. Mr. Gunderson said the definition for adjoining and adjacent were Planning Commission September 14, 1987 Page 10 two different definitions. Green said he did not understand the difference between them himself and maybe Mr. Gunderson could explain them. Mr. Gunderson replied adjoining means contiguous and adjacent meant across the street. Green asked Mr. Gunderson if his client represented an adjacent property owner and Mr. Gunderson said he represented an adjacent property owner. Green asked if Mr. Gunderson's client complied with his definition of adjacent and Mr. Gunderson replied "yes". Dow said she was not sure it mattered who represented who, and felt the issue was if the ad in the newspaper was inappropriate. Commissioner Green said he did not think that was the issue. Jacks stated there was a motion on the floor and asked if anyone would like to speak to this appeal. Mr. Pettus felt it was important as to whether or not Mr. Gunderson's appeal was timely filed and Mr. Pettus said he felt there was no question that Mr. Gunderson's appeal was not timely filed. Mr. Pettus also said it was important whether or not the Planning Commission was going to allow someone down on James Street to have rights to appeal the decision of the Planning Commission. He said that was were he would take issue with Mr. Gunderson's appeal. He thought if the Commission would have read the publication of notices for hearings, they would have found if someone would have called the Planning Office for the date given they would have found out it was a Subdivision Committee meeting and they would have been given adequate notice of the hearing. Mr. Pettus felt again the position that the Planning Commission should take was the finality of the appeal process and that the Commission should not take up the appeal. Commissioner Nash advised that Jim McCord legal counsel for the City said he had accepted the fact that Mr. Hess' letter was within the 10 -day period based on the fact that Sunday was the 10th day. She said if she understood McCord correctly he thought it was permissible that Scott Linebaugh wrote the letter for Mr. Hess. She asked Mr. Pettus if he would disagree with that and Mr. Pettus said he would definitely disagree with that. Number one, he thought the City Board of Directors were the ones who wrote those ordinances. He said if they intended for an appeal to be submitted through the office of the City Manager then the Board of Directors should have written that in. And not only did Mr. Pettus think it was not a legal means of an appeal, not being a written notice from the Board of Director members, but felt it was improper for the acting City Manager to forward the appeal. He added there was already a letter from the Planning Administrator saying that everything had been done, and the •.4 4 Planning Commission September 14, 1987 Page 11 permits should be issued. Mr. Pettus said no one asked Jim McCord what he thought about that comment when he was still here. Mr. Pettus said at some point the developer had to be able to rely that the process had stopped. Commissioner Nash stated since the full Planning Commission was in attendance tonight and it would not be a question of wasting two more weeks, asked Mr. Pettus what reason did he have not to want to hear the appeal. Mr. Pettus said it was a question of wasting not two weeks, but it was a question of wasting possibily almost a month. He said if the Planning Commission took up the matter regardless of what they do, approve it or deny it, it made no difference. He said the City Directors had 10 days or the adjacent property owners, or the developer had 10 days to appeal the Planning Commissions decision to the City Board of Directors. He added if Jeremy Hess had problems with it and wanted to appeal this body Mr. Pettus felt they could almost bet that Mr. Hess would definitely appeal, so that he could vote on it. Mr. Pettus said the 10 -day appeal time would run on the September 24th, which was some 3 days after the agenda was published for the Board meeting. Therefore the Planning Commission was putting the finality of this decision late into October or early November. Commissioner Madison pointed out that the Board of Directors do not appeal this to the Board of Directors. She said the ordinance says they appeal it to the Planning Commission, and that was why it did not already go to the Board of Directors. She said the Planning Commission was the body who heard the appeals on Large Scale Developments and the Board of Directors heard appeals on subdivisions. Jacks advised Commissioner Madison that the Board of Directors could appeal to the Board of Directors if they wanted. Commissioner Seiff asked if there were any date constraints on the ordinance that required the publication. Carlisle stated the ordinance says" prior to Subdivision Committee meeting they will notify owners having a common boundary with, and a different zoning classification than the property". Seiff said he was trying to bring out that the ad was legal, therefore to put a notice in the newpaper one minute before the meeting, if you could, would be legal. Commissioner Seiff felt that was not in the spirit of the ordinance and was concerned that the City had an ordinance like that, which he would address at another time. Commissioner Farrish asked if the Planning Commission were to vote not to hear the appeal tonight, could it then be appealed to the City Board. Carlisle said she did not read the ordinance that way, but thought Mr. McCord would probably respond that it probably could be appealed to the Board of Directors. Green said • • • Planning Commission September 14, 1987 Page 12 the way the ordinance was designed to work was if someone disagreed with the Subdivision Committee they would appeal to the Planning Commission within 10 -days or if they disagreed with the Planning Commission decision on the Subdivision then they appeal that within 10 -days. Mr. Gunderson stated the Subdivision Committee did not refer the Large Scale Development to the Planning Commission and that it was approved or rubber stamped. Chairman Jacks advised a motion was on the floor and asked if there were further comments. Green said he wanted to comment on Mr. Gunderson's argument on the notice question. He said the Planning Commission had heard a lot of comments that the notice was run only 1 day before the Subdivision Committee, which was true. He added, it was 5 days before the Planning Commission meeting at which the notice indicated it would be heard at the Planning Commission on that day. Green said whether the notice said Planning Administrator or not it was heard on that day. He said the Planning Commission heard the Large Scale Development, took action on it and the property owners were aware of it and Mr. Gunderson was here at that meeting as well as another property owner. He said people were aware that the thing was being heard andanyone could have filed that written notice within 10 days and had plenty of time to do it, if they would of only showed up at the Planning Commission meeting on that Monday night. He said the newspaper ad told them it would be heard on that night. Chairman Jacks felt the Commission should follow that line of reasoning and that it was before the Commission and that the Commission had the development on the table. Madison said the Commissions table was ruled to be not a legal table and was told the Commission could take no action. Green said his point was that the ad had accomplished its purpose because the notice said it would be heard at the Planning Commission meeting. He said they may have not been technically correct, but Mr. Gunderson showed up, another property owner showed up and apparently people who were wanting to object to it showed up. Commissioner Madison said the people thought the thing was tabled and that they would have another chance to discuss it. She added they had no opportunity to be heard and have their opinion register a promise at that Planning Commission meeting and by the time the Planning Commission found out the table was void the 10 day time period was up. She said Mr. Gunderson thought that he was going to be able to come here today, as perhaps did some other people and register their concerns about this Large Scale Development. She said at the very edge of the 10 day period they discovered they were not going to have that option. She added • • • Planning Commission September 14, 1987 Page 13 the Planning Commission has a request for an appeal from a City Director, it was timely, and whether he used the City secretarial staff or another secretarial staff, she doubted seriously that Jeremy Hess would have hand written a letter under any circumstances. She said those people were not paid to be City Directors and she thought the Commission was virtually questioning the integrity of Mr. Hess and Mr. Linebaugh when the Commission wanted to require Mr. Hess himself, which the ordinance does not require, to write and deliver the message. She felt that was highly petty of the Commission to argue over such a small point. She said Mr. Hess felt there was a need for an appeal and would like to have people heard and she felt it was the Planning Commission's obligation to do that. Commissioner Green said he was not questioning Mr. Hess' integrity or Mr. Linebaughs integrity and if Commissioner Madison got that out of his statement she was completely off base. Commissioner Green said if Mr. McCord said Jeremy Hess complied with the ordinance he would have no reason to doubt that he complied with the ordinance. He said his point and the only point he was trying to make was that much had been made about the adequacy of the notice. He said the fact that people showed up in response to the notice was proof that the notice was adequate. Also he thought as far as the appeal went that Mr. Hess' appeal raised no new issues and that everyone of them had been addressed at the Subdivision Committee meeting and was addressed again at the Planning Commission meeting. Commissioner Madison advised that property owners may of had some different issues to raise and did not have the opportunity. Green added those property owners did not show up at the Planning Commission meeting either after the notice was raised. Green said there were other people that had rights too, which were the people who owned the property in question. He said the people either want to purchase the property if they have not already and develope it. He said everyone had rights in this situation, not just the people who happen to live around it. Farrish said the appeal process calls for specific things that were not addressed by the Subdivision or the Planning Commission. He said the appeal of Mr. Gunderson was the adequacy of the notice, and the appeal from Director Hess was the parking, James Street improvements and the drainage. Commissioner Farrish advised all of those issues were addressed and found to be in compliance with the regulations. He added at the last Planning Commission meeting he voted at that time not to table the item, but he felt the Subdivision Committee had spent an extraordinarily long amount of time and in great detail • • • Planning Commission September 14, 1987 Page 14 discussing each of those issues. He said they were in compliance with all the ordinances and he voted at that time that the proposed development be allowed to proceed. Commissioner Farrish felt there was absolutely nothing new to be heard in the appeal process, therefore he felt the Commission should allow the developer to proceed with his project. Commissioner Green asked if Jeremy Hess was in the audience and Chairman Jacks said he had not seen Director Hess. Commissioner Seiff felt he expressed his feelings with respect to the ordinance and also felt the citizens were entitled to have their hearing. He felt the notice did not allow that, but he also felt the law was the law. He felt the developers had complied so he would have to vote against hearing the appeal. The question was called and the motion to hear the appeal failed to pass 4-5-0, Dow, Madison, Jacks and Nash voting "yes" and Seiff, Hanna, Robertson, Farrish and Green voting "nay". Jacks advised the appeal had been rejected. APPROVAL OF FINAL PLAT - GARLAND TERRACES ROBERT WHITFIELD (P.R. GREEN TRUST) - SYCAMORE & GARLAND The fourth submitted Whitfield. District. item on the agenda was consideration of a final plat by P.R. Green Trust and represented by Robert Property zoned R-2, Medium Density Residential Carlisle advised this was consideration of a final plat and did not require Subdivision approval or recommendation. MOTION Hanna moved to approve the final plat as submitted subject to plat review comments, seconded by Nash. The motion to approve passed 9-0-0. APPROVAL OF A PRELIMINARY PLAT - SPRING HOLLOW ESTATES - GORDON WILKINS - E OF HAROLD, W OF OLD MISSOURI & S OF STUBBLEFIELD The fifth item on the agenda was consideration of a preliminary plat submitted by Gordon Wilkins and represented by Dave Jorgensen. Property located east of Harold Street, west of Old Missouri and South of Stubblefield. Property zoned R-1, Low Density Residential District, containing 11.49 acres with a total of 25 proposed lots. 'Y Planning Commission September 14, 1987 Page 15 Commissioner Farrish advised the Subdivision Committee had heard this item on Thursday, September 10, 1987. He added there were several issues that could not be resolved at the Subdivision Committee meeting. Farrish advised the Subdivision Committee referred this preliminary plat to the full Planning Commission with no action by the Subdivision Committee. Farrish noted the Spring Brook Court cul-de-sac was dimensioned at a 40' radius which was insuffienct. He said the radius needed to be changed to 50' which would change all the dimensions of the lots around Spring Brook Court. Farrish advised a 40' radius was required for paving and a 50' radius for ROW. Farrish also advised the second point of access for Yorktown square was somewhere in the vicinity of where Harold Street looped out and would intersect with Stubblefield Road. He said the Subdivision Committee had asked Mr. Jorgensen to visit with Mr. Bishop about the alignment of those two streets and find out if there would be some coordination of the two. Commissioner Dow added there was a problem at the Subdivision Committee on the deciding of the off-site improvements. Jacks asked was the recommendation from the_Subdivision Committee to table this until the details could be solved. Farrish noted the Subdivision Committee took no action on the plat and added perhaps Mr. Jorgensen or Mr. Wilkins could explain the situation and possibly make a recommendation. Mr. Jorgensen stated some of the items could be solved at this meeting. He said the Spring Court cul-de-sac would be changed to a 50' ROW with a 40' radius on the hard surface. Mr. Jorgensen said that had been accomplished on Autumn Court and would also agree to do that on Spring Brook Court. Jorgensen said in addition to that the sidewalk that had been requested for the north side of Harold street would be installed all the way around and to wrap around the cul-de-sac. He said the developer was also requested to install a sidewalk on the west side of Old Missouri, but the developer would like to request a Bill of Assurance for that sidewalk until Old Missouri road was improved. Jorgensen said he spoke with Mel Milholland on the road alignment of Stubblefield. He said it appeared after measurements that the center line of the proposed route would be impossible to align with the center line of what would be the second access for Yorktown Square to the north. Jorgensen said the off set or jog distance would be approximately 150'. Carlisle advised the 150' off set would meet the distance of the jog distance ordinance which would allow up to 150' of distance. • • • Planning Commission September 14, 1987 Page 16 Mr. Jorgensen advised the developer was seeking approval of the preliminary plat subject to: 1) Bill of Assurance on the sidewalk on the west side of Old Missouri; 2) Bill of Assurance for the sidewalk on the south side of Stubblefield leading from northwest corner of the property over to their intersection. He noted from that intersection to Old Missouri the sidewalk would be installed. Farrish advised there had been a lot of discussion at the Subdivision Committee meeting for the off-site improvements to Stubblefield road. He said the discussion was, should the Stubblefield road improvements be made now or under a Bill of Assurance. Farrish noted the development of this property along with Yorktown Square would complete the the development of Stubblefield road. Dow advised there was another issue of the two bridges on Stubblefield and said the Subdivision Committee was not sure on City policy for bridges. Commissioner Seiff asked Mr. Bishop how many homes were planned for Yorktown Square. Mr. Bishop replied for both phases there would be approximately 115 homes. Seiff then said there would be approximately 140 homes on Stubblefield, Old Missouri and Harold. Farrish said the only improvements would be the frontage of Yortown Square and the frontage for Spring Hollow Estates. He said the question was, what would be done with the rest of Stubblefield and as he understood there were no City funds available to match the improvements. Commissioner Nash said if she remembered right the Yorktown Square plat had gone all the way to the Board of Directors with this very same question about sidewalks and improvements to Stubblefield. She said in other words the Board was aware of the situation and it seemed to her that was behind the Commission. Carlisle advised the Yorktown Square situation had never been settled as to whether Mr. Bishop should sign a Bill of Assurance or improve Stubblefield. Mr. Jorgensen stated the developer felt he would oliviate some of the traffic problems and possibly reduce the traffic on Stubblefield. He said Mr. Wilkins was carrying Harold over to Stubblefield. Commissioner Madison said that would just create another Winwood mess. Madison said if Stubblefield were a better street people would not travel down Harold. Mr. Wilkins said the same thing happened in East Oaks and • • • Planning Commission September 14, 1987 Page 17 Brookside East. He said when Township was finally built the pressure was taken back off. Mr. Wilkins said temporarily when he puts Harold street through with a 50' ROW and new concrete street that it would invite all the people from Sweetbriar and Elaine to travel up Harold Street and go to K -mart and Hwy 71. Chairman Jacks said if a drawing was available showing Yorktown Square and the new proposed Subdivision, asked if that would help. Farrish said a drawing like that was not available. Jacks then asked if the questions the Commission had raised had been settled. Green said the only question in his mind that had not been settled was exactly what should be required on off-site improvements. He said the bridges on Stubblefield would not be a minor item and they would probably cost more to fix than to widen Stubblefield road. Green said he felt people right now come off Hwy 71 and cut through on Harold street and wind around the residential neighborhood to get to Old Missouri. Green felt the developer was exactly right in that they would take traffic off the bad parts of Stubblefield and run it through that neighborhood, which would hit a lot closer to the intersection of Old Missouri. Seiff felt it would be totally inconceivable to him to allow a development of this nature in conjunction with Yorktown Square on a road that existed with an excuse that the City did not have the funds to fix Stubblefield. He said he would like to find out what could be done. Seiff felt the development should go in, but not on Stubblefield the way it existed. He said he would personally vote no if that was the only weapon he had. He said to rob that development with the road as it existed was ludicrous. Jorgensen said in response to that, the developer was not using the excuse that the City did not have the funds to improve the other half. He said the question was did the improvements need to be done now or later, if the improvements were done now it would be a piecemeal type project with no planning. He added as an example the Mormon church on Zion road was required to improve their half of Zion Road and as anyone could see it was a hodge- podge improvement. Mr. Jorgensen said he was agreeing that the improvements on Stubblefield definately need to be improved, but the question was, now or later. Seiff said he understood what Mr. was a little taken back because he problems, which he could unders improvements should not be done on Jorgensen was saying, but he kept hearing all the physicall tand. He also agreed the a piecemeal type basis. 317 • • • Planning Commission September 14, 1987 Page 18 Commissioner Madison stated she also shared Commissioner Seiffs' concern. She added Stubblefield simply could not handle that amount of traffic and that none of them want to see the road done on a piecemeal basis, but she did not want to see anymore traffic on Stubblefield at all. Madison also felt this was a good case for Yorktown and Spring Hollow to fund the entire improvement to Stubblefield because they had a large effect on the traffic on that road. Commissioner Dow said there was already a tremendous amount of traffic on Stubblefield and she could not see the developers bearing the entire cost. Farrish advised the developers were already going to bear the major portion of the improvements. He said those existing residences could form an improvement district along their portion with sidewalk and improve the street in front of their homes. Farrish added the only question in his mind was should they go ahead and make the improvements today or should they not make them until later. Chairman Jacks said it seemed to him the. Planning Commission would want a Bill of Assurance on the off-site improvements and obviously the City would have to get into the act sooner or later. Green said there were ways to do the improvements and fair ways of spreading the cost around over the entire town, but that was not done here. He also said this subject had been discussed at Subdivison Committee meetings on ways to accomplish that and make it better for everyone, but they had not followed up on it. Green said until something was done he thought it would be a waste of money to have the developers make improvements on Stubblefield road right now. He said at one point Mr. Bishop was planning to make his improvements along Stubblefield, and he thought at the time that would be a waste of money. Green added if Mr. Bishop wants a Bill of Assurance now he thought that would be the sensible thing to do. He said at least the City would have a contribution of money towards fixing this mess. Dow felt it was a disaster and it was a problem and she did not see any perfectsolution to the situation. She felt the Bill of Assurance was probably the most appropriate route because that way there would be some obligations. She added that would also allow the complaints of the citizens to put a little heat on the City. Seiff advised there were only about 5 homes on the south side of \s\ Planning Commission September 14, 1987 Page 19 Mr. Bishops development, so if there were any kind of improvement district they were only talking about 5 homes. Farrish advised there was one other issue and that was for proper notification and asked the developer if that had been done. Mr. Jorgensen stated he had mailed certified letters and had the return receipts in his possession. Chairman Jacks asked if anyone in the audience would like to speak to this request. There being no one to speak the public hearing was closed and discussion returned to the Planning Commission. Green said the bridge question needed to be resolved because the developer had asked what his responsibility would be for the bridges. Carlisle stated she spoke with Don Bunn, City Engineer and he felt certain the City should participate some how on Stubblefield road. She added she received bids 2-3 weeks ago for replacing a box similar to that size and the bids ranged from $40,000-55,000 dollars. Chairman Jacks advised every bridge arrangement he had seen had been a little different over the years. He added the City had always entered into some special agreement. Green said he had spoke with an engineer today and was told of a couple instances where he had been involved in where the City participated in the cost of a bridge. Green said the engineer also told him that the bridge at the intersection of Old Missouri and Stubblefield was in the 100 -year flood plain. He also said if anything was done, it had to be in compliance with Federal Standards and the engineer told him that would be a heck of a project to undertake. In answer to a question from Commissioner Hanna, Jorgensen replied the elevation would have to 2' above the 100 -year flood plain in order to build a home. MOTION Green moved to approve the preliminary plat subject to: 1) plat review comments; 2) Bill of Assurances on the Sidewalks as the developer requested (Stubblefield Rd. to Harold & Old Missouri); 3) revise plat to reflect to 50' of ROW on the cul-de-sac for Spring Brook; 4) present proof of notification in accordance with the ordinance; 5) the off-site improvements on Stubblefield Road L/ Planning Commission September 14, 1987 Page 20 be equal to the cost to improve Stubblefield all along where it abuts the developers property exclusive of any cost for the bridge re -do at Old Missouri and Stubblefield, but including 1/4 of the cost of the bridge back to the west of the developers property; and 6) a Bill of Assurance be accepted for all of the cost for the developers half of the improvements along Stubblefield Road, seconded by Nash. The motion to approve the preliminary plat passed 9-0-0. Chairman Jacks advised Carlisle to have Mr. Bishop submitt a Bill of Assurance for his share of Stubblefield Road. REQUEST FOR CONDITIONAL USE - DUPLEX IN R-1 DISTRICT E. REX THOMPSON - 1729-1731 MISSION BLVD. The sixth item on the agenda was consideration of a conditional use request for a duplex located in an R-1 District (Low Density Residential District). Application submitted by E. Rex Thompson and located at 1729-1731 Mission Blvd. Mr. Thompson advised the Commission that his proposed duplex would fit in with the property along that portion of Mission Blvd. He added most of the houses on -that side were rental properties. He said he spoke with the 3 major property owners adjoining this property and all 3 agreed to the duplex and felt it was a good way to utilize the property. Commission Hanna asked Mr. Thompson how many feet of frontage did he have on Hwy 45. Mr. Thompson replied 115' of frontage and said to be honest with the Commission the lot was a botched up lot. Hanna asked if Mr. Thompson would have to cut any of the trees down and Mr. Thompson said maybe one. Madison asked if three families would be using the circular driveway. Mr. Thompson said he had not figured out the parking or drive yet. He added he wanted the Planning Commissions blessing before he spent a lot of money. Madison asked if there were any other duplexes on Mission. Mr. Thompson replied there was a duplex directly across from Root School. MOTION Commissioner Seiff moved to grant the request for a conditional use for a duplex in an R-1 zone, seconded by Hanna. The motion to approve passed 9-0-0. • • • Planning Commission September 14, 1987 Page 21 REQUEST FOR CONDITIONAL USE - MINI STORAGE WAREHOUSES LINDA EATON - HAPPY HOLLOW ROAD The seventh item on the agenda was consideration of a conditional use request for mini storage warehouses. Application submitted by Linda Eaton and represented by Steve DeNoon. Property located on Happy Hollow road and zoned C-2, Thoroughfare Commercial. Mr. DeNoon stated the use for use request for the C-2 zone the plat to show the existing adjacent to the R-2 zoning. mini warehouses in that area buffer from Heritage East and mini warehouses was a conditional Mr. DeNoon advised he had revised business and the C-2 zone that was He added there was a great need for , plus he felt it would be a nice the C-2 zone. Hanna asked if the lot in question was next to White River Hardwoods and Mr. DeNoon replied "yes" just north of that property. Hanna advised there were 5 conditional use requests on the agenda and noted the only property with a sign was the duplex property. He added the property with the sign made it easy to find and all the rest were confusing. Carlisle advised a sign was required for a duplex in an R-1 zone, but the rest were not required. Chairman Jacks asked if anyone in the audience would like to speak for or against this petition. There being no opposition the public hearing was closed and discussion returned to the Planning Commission. Commissioner Madison asked under what use unit was this allowed by right. Carlisle advised under use unit 21. MOTION Farrish moved to grant the conditional use as requested for mini storage warehouses, seconded by Seiff. The motion to approve passed 9-0-0. The eighth item on the agenda was withdrawn by the applicant (Greg House). REQUEST FOR CONDITION USE - CHANGE OF NONCONFORMING USE EVERETT CROUCH - 1258-1320 HUNTSVILLE RD - USED CAR LOT The ninth item on the agenda was consideration of a request for conditional use for a change in nonconforming use. Property located at 1258-1320 Huntsville Rd. and zoned R-1, Low Density Residential District. Change of nonconforming use was from a gas station to a used car lot. �_ ‘ 4 • • Planning Commission September 14, 1987 Page 22 Mr. Crouch advised years ago he had a service station and could not make a go of it. He said his station was not large enough to fix flats and mechanical problems. He requested a change to where he could use the building for a used car lot. Mr. Crouch said that particular location was also dangerous for a service station because there was a break in the road going east. Commissioner Madison asked how long had it been since the gas station was in operation and Mr. Crouch replied several years. Madison said it was her contention that it had been longer than 6 months of the last nonconforming use. She added the property should have reverted back to the R-1 conforming zone. Mr. Crouch advised his pumps were still in the ground and Madison said McCord told her today that if the pumps were not used the change would revert back to R-1. Carlisle advised at one time McCord had told her and 2 other staff members that if the tanks were still in the ground the use could be changed. Commissioner Hanna said the structure that was sitting there was not a residential use and he was not going to vote to let that building rot with no use all. Madison said the ordinance charges the Commission that if a use was changed, the new use must be as appropriate or more appropriate to the zone than the prior one. She added used car lots were in use unit 16 which was allowed only in C-2 zone. She said it was clear to her that a used car lot was less appropriate to the zone than a service station. Commissioner Robertson disagreed with Commissioner Madison saying that McCord had told him the opposite thing he had told her. Commissioner Dow requested a written ruling from McCord. David Ellis who resides in Cane Hill advised the Commission that he operated the used car lot and would like to say the area was in fact a defacto commercial area. He added there were a lot of businesses in that area in either direction. Dow said she agreed that the use was appropriate, but she would have to vote no because she wanted some clarification on this. Mr. Crouch advised if Commissioner Dow waited for a clear ruling on this she would never vote. MOTION Farrish moved to grant the nonconforming use for the used car • • • Planning Commission September 14, 1987 Page 23 lot, seconded by Green. The motion to approve the change in nonconforming use passed 6-3-0, Seiff, Hanna, Robertson, Farrish, Jacks and Green voting "yes" and Dow, Madison and Nash voting "nay". MOTION Commissioner Madison requested a written statement from the City Attorney whether unused gas pumps constitute a non use of the property, seconded by Dow. The motion to request a written statement from the City Attorney as to what constitutes a non use change passed 6-3-0, Seiff, Dow, Farrish, Madison, Jacks and Nash voting "yes" and Hanna, Robertson and Green voting "nay". REQUEST FOR CONDITIONAL USE - CHURCH IN AN R-2 ZONE JIM & JANICE KELLEY - EAST FIFTEENTH STREET The tenth item on the agenda was consideration of a conditional use request for a church located on east fifteenth Street. Submitted by Jim and Janice Kelley, property zoned R-2, Medium Density Residential District. Mrs. Kelley advised their contention was to sell the property to the First Assembly of God Church so they may construct a new Church. Madison asked where the property was located and Mrs. Kelley advised the property was just east of Drakes restaurant. Dow said she had no problem with the petition, but wondered if the church had to petition rather than the current property owners. Jacks advised the current owner of the property had to petition the change. Hanna advised the church that wanted to move to this property had lost quite a bit of their property to the widening of sixth street. MOTION Hanna moved to grant the request for conditional use as submitted, seconded by Dow. The motion to approve passed 9-0-0. APPROVAL OF MINUTES The minutes of the August 24, 1987 meeting were approved as distributed. • Planning Commission September 14, 1987 Page 24 OTHER BUSINESS Chairman Jacks advised a recommendation would go before the City Board on October 6, 1987 for the firm who would update the General Plan. Chairman Jacks also appointed the committee to investigate elderly concerns. Fred Hanna (Chairman), Sue Madison and Jerry Seiff. Fred Hanna advised the first meeting would be on Monday, September 28, 1987 at 4:00 p.m., just prior to the Planning Commission meeting. Chairman Jacks asked if the Commission would be interested in amending the by-laws to require Planning Commission ratification of the action of the Subdivision Committee. Green felt there would be no point in having a Subdivision Committee if that happens. Hanna said the Commission had just spent a lot of weeks trying to stream line the set of rules they already had. He said • it was not going to work perfect all the time, but it did work pretty good most of the time. Green saidthere• was a provision in the ordinance to appeal the Subdivision Committee, which in this case it was not done properly and they still voted. • Jacks requested an agenda item for Larry Wood to report on what the Planning Commission was proposing on the new Subdivision Regulations. There being no further business the meeting adjourned at 7:40p.m. (0