Loading...
HomeMy WebLinkAbout1989-03-13 Minutes• • • MINUTES OF A MEETING OF THE FAYETTEVILLE PLANNING COMMISSION A meeting of the Fayetteville Planning Commission was held on Monday, March 13, 1989 in the Board of Directors Room of the City Administration Building, 113 West Mountain Street, Fayetteville, Arkansas. MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: Jack Cleghorn, J. David Ozment, Jerry Allred, Springborn, Ernie Jacks, Julie Nash, Gerald Seiff and Fred Hanna Gerald Klingaman John Merrell, Don Bunn, Elaine Cattaneo, Larry Wood, Rick Alexander, Robert Neukranz, Harry Gray, Jim Lindsey, Don McIntire, members of the press and others PETITION TO REHEAR A ITEM THAT WAS HEARD AT THE LAST PLANNING COMMISSION MEETING ROBERT NEUKHANZ - LOT SPLIT ON THE NORTH SIDE OF ROCKWOOD TRAIL Chairman Jacks stated that they have a petition to rehear the Lot Split for Robert Neukranz on the north side of Rockwood Trail. He advised that the Planning Commission Bylaws contain a paragraph saying a rehearing shall be for the sole purpose of calling attention to a factual error, omissionor oversight in the first consideration. A request must be made in writing and state the factual error. He added that he had heard from several people in that neighborhood and their main objection is that this item was moved from 1113 on the February 27th agenda to 111. Therefore, some people who wished to speak on the matter never had an opportunity to do so. It takes a vote of the simple majority of the Planning Commission to rehear an item. He opened the matter of the rehearing to the Planning Commission for discussion. Commissioner Seiff stated that based on the fact that it was moved from the thirteenth item to the first item, it seems that there were people that were not here to hear it. MOTION Commissioner Seiff moved to rehear the Robert Neukranz Lot Split, seconded by Hanna and followed by discussion. Commissioner Hanna stated that he feels remiss because he didn't speak up when Chairman Jacks asked if anyone objected to moving the item up at the last meeting. He advised that some people had called him and he noticed that they weren't in the audience that night so he should have objected to moving the item up. Commissioner Springborn asked if the petition that has been submitted is in line with the requirements relative to taking up time at this meeting to rehear this. Mr. Merrell answered, yes, they believe it is. 33 Planning Commission March 13, 1989 Page 2 Rick Alexander, Attorney at Law, stated that he is representing Mr. Neukranz who is his father-in-law. He noted that it appears to him with respect to the procedural question, the petition is to be set forth in writing and to set forth the reasons for the rehearing. He advised that the petition letter that he has a copy of states that the reason for the rehearing is that the owners feel that the property values will suffer as a result of the action. The reason just stated by the Commission is apparently some individuals didn't feel that they had an opportunity to be heard. Therefore, from a procedural standpoint, he thinks that petition is out of order and does not state the reason for the rehearing. He noted that the petition has to set forth factual errors, omissions or oversight in the last hearing and the issue of devaluation of property owners was discussed at length at the last hearing. He added that in a free society, everybody should be heard but he thinks that the petition is insufficient as submitted. Chairman Jacks stated that the original action here was on the basis of a letter from Mr. Utley as Chairman of the Architectural Control Committee and this letter is included with the agenda packet. He explained that they took the action they did on the basis of that letter. R.L. Utley of 933 Pembroke stated that he speaks for the majority of the property owners in the subdivision who got word about the previous hearing at 5:15 that evening. By the time he could contact other people in the community and got down here, they were told that they were too late. With regard_to the rehearing, that is the basis for their request. Commissioner Ozment asked if Mr. Utley's reasoning to rehear this is not a procedural question, but back to the original issue. Chairman Jacks advised that Mr. Utley's letter states that the vast majority of the owners were unaware of the pending action and that the item had been rescheduled so they had no opportunity to express their views. He advised that it is on the basis of them rescheduling that item to the beginning of the agenda. The motion to rehear passed 7-1-0 with Springborn voting "no". WAIVER OF TBE SUBDIVISION REGULATIONS - IAT SPLIT 1)1 ROBERT NEUKRANZ - N OR ROCKWOOD TRAIL. The first item on the agenda was a rehearing of the waiver of the subdivision regulations - Lot Split 111 submitted by Robert Neukranz for property located north of Rockwood Trail (Lot 9, Block 1 of South Hampton Addition) and zoned R-1, Low Density Residential. This split would contain .95 acres. Don Bunn, City Engineer, stated that there were two points that were brought up at the last meeting that he would like to speak to: 1) the access to sewer and 2) the size of the lots. He advised that there is access to the sewer to both the lot being split off and the remaining lot. Also, the lot size is at least that shown in the original submittal (.75 acres). During this past week, the Planning Office did sign off on the Lot Split and that makes the Lot Split final 3L1 o • • Planning Commission March 13, 1989 Page 3 as far as the City is concerned. Mr. Neukranz has done what is necessary to follow through on the Lot Split. He advised that the staff's recommendation remains the same to approve this lot split. Chairman Jacks stated that he also has letters from Betta Volkamer and Mr. & Mrs. Covington, property owners there, opposing this and a petition submitted that contains 41 signatures all of whom are in opposition to this lot split. John Merrell, City Planning Director, stated that they were contacted Friday morning of last week by Stan Green who is a former Planning Commission member who stated that one of his objections was the fact that the property being requested to be split would result in two lots being smaller than those lots recently approved by the Planning Commission in the Foster Addition to the East. He added that the Planning Commission has a copy of a map which shows the property that is requested to be split and how it relates to the one entrance of the Foster Addition Subdivision. He noted that the lot sizes in the Foster Addition range from 1.4 acres to 3 acres Commissioner Nash asked if the two lots they are discussing are a part of the Foster Addition. Mr. Merrell answered, no, this property is Lot 9 in the existing South Hampton Subdivision and the lot split, if approved, would result in two pieces of property larger than the average lot size within that subdivision. Mr. Alexander stated that he is a little bit confused. He stated that he understands that the rehearing would be limited to a factual error, omission or oversight. He added that it is his understanding that the City has no objection to the Lot Split or the proposed use and that Mr. Neukranz has complied with all processes and procedures in terms of processing that application. He was required to sent notice to the adjacent property owners and complied with that. From their standpoint, neither the letter to the Commission or the petition with all the signatures on it state any factual errors, omissions or oversights aside from the fact that some of the people didn't get heard. He stated that he would like to point out to the Commission that the meeting was scheduled to begin at 5:00 p.m. and there weren't any specific times that the items were to be heard. There was no objection expressed at that time from the citizens that were there. Mr. Alexander stated that with respect to factual errors and omissions, he doesn't notice any in the petition so he has a hard time addressing that . The question of property values, Mr. Neukranz's proposed lot splits are larger than any of the lots in the subdivision in question and for the most part are larger than any two lots in the subdivision. He added that he read a transcript of the Minutes of the last meeting and the lot size issue, sewage and declining property values were discussed. The fact that some of the individuals objected to any activity in that area at all because they had viewed that as a kind of buffer or greenspace was discussed. In that regard, he advised that he was at a loss as to how to proceed but they will gladly answer any questions from the Commission with respect to any factual errors or omissions. Mr. Neukranz has prepared two exhibits that show an original plat of this subdivision dated 1959 which shows • • • Planning Commission March 13, 1989 Page 4 that it was originally intended that Lot 9 be split into 5 lots. Lot 9 is obviously larger than all the others and it was the intent of the parties to split that originally. He stated that apparently a piece of Lot 9 has already been split off which Joe Clark owns. What is left is what Mr. Neukranz owns and intends to split. He advised that if the Commission will allow him the opportunity to rebut, he will rest on the basis that he believes that there has been no new evidence of a factual nature by way of an error, omission or oversight to warrant a reversal of the Commission's previous ruling. To the extend that new evidence or new grounds are submitted to the Commission, he would request an opportunity to address them. Chairman Jacks advised that they have voted to rehear this on the basis of the omission of testimony which he assumes would fit under the omissions category. He asked if anyone else would like to speak in favor of this lot split. No response. He asked if anyone would like to speak in opposition. He advised that Commissioner Nash has pointed out that since they have heard quite a bit of information last time, they should limit this to new information as much as possible. Mr. Utley stated that he hasn't heard any reference to covenants and he would like to address that as a matter of public interest. He stated that the plat and covenants of this subdivision were filed on May 26, 1958. There were two sets originally and that is when the one that exists now was filed. If there is any lot split on Lot 9 shown on a plat, he would like the. Commission to be informed as to when it was filed at the County Court House The plat and covenants that he is referring to were recorded in the Washington County Court House in Book 508, Page 478 in May of 1958. There were a number of plats drawn up for this subdivision in trying to prepare and come up with the best utilization of the space involved. But none of them that he has been able to determine have been filed other than the one that he referred to. The City accepted by ordinance this plat and the covenants being a part of the subdivision plat on December 7, 1959 and matters that entered into splitting these properties before May of 1958 and when the City took it in 1959 are not relative as far as he can see. Mr. Utley advised that in the covenants themselves, they limit each lot in the subdivision as platted and submitted to the City and approved by the City to one detached single-family dwelling. Paragraph two says that "the buildings require approval by the Architectural Control Committee before any structure can be erected on the site". The covenants also addresses Lot 9 and specifically states that a dwelling may be placed on Lot 9, Block 1 as platted at the time that was submitted to the City. As chairman of the Architectural Control Committee since 1969, he added that with every residence that has been built in that subdivision, the party proposing to build has without question submitted architectural plans to the Subcommittee for approval. In only two instances, have they deviated from the letter of the law of the covenants and in those cases they willingly changed the plans in order to conform. He stated that he must assume from that, that anyone buying property in that subdivision would have a title search by a reputable attorney and that they would indeed read the covenants to determine the conditions under which they can build and the type of structure they can build. Then if there is anything to the contrary to what they intend to do, then he • Planning Commission March 13, 1989 Page 5 would assume that they would submit it to the Architectural Control Committee as directed in the covenants of the subdivision. He commented that the first he or any member of the Committee knew about this was after 5 p.m. of the night of the meeting. Mr. Utley stated that "public interest" is the overriding consideration and the second thing to be considered would be the covenants that are binding on the property owners in the subdivision. He advised that there are still three vacant lots in the subdivision so conceivably he could buy those tomorrow and apply for a lot split and put three houses across the street from his residence. He added that he didn't buy his residence and have a title search and covenants examined to have it twenty-two years after the fact, be confronted with a problem with having to go to court to keep something from being done. Chairman Jacks advised that the Planning Commission and the City has nothing to do with the covenants. They have to look at this from the standpoint of planning principle. Mr. Utley stated that although the Commission doesn't have any obligation or responsibility to enforce the covenants, they do have a public interest to consider. Commissioner Ozment stated that some time in history, a part of Lot 9 has been sold off. Mr. Utley stated that was prior to the time that the covenants were • filed. He advised that the history behind that is when the lot was originally sold, there was not sufficient area in the lot to provide for a septic tank. Therefore, an additional purchase of 30' was granted. Then they found that there was not a proper field within that 30' so they sold an extra 50' in order to provide for septic tank. • Chairman Jacks asked for a show of hands of the people in the audience who are in opposition. Fifteen to twenty people raised their hands in opposition. At the request of a member of the audience, he asked for a show of hands of those in favor of this petition. Around five people raised their hands. Dennis Becker stated that there is an error of fact, he never received notice as one of the adjacent property owners along with Mark Foster. He added that he has an interest in the Foster Addition and one of the approaches they took in the development of that thirty acres was the large lot minimal disruption of the traffic on Rockwood. They broke that subdivision into two pieces and fed part of it from Crossover Road in an effort to keep the traffic down on Rockwood Trail. At no time, did he expect to have his lots back up against a 300' driveway at the back of his property and he doesn't think that is in the best interest of City development. Betta Volkamer, an adjoining property owner, stated that she also didn't receive notice. Also, the City's obligation to post a sign notice would not have been seen by any of the adjoining property owners simply because of the nature of the positioning of it. She pointed out that in the previous lot splits in their subdivision, there have been none which created an additional lot on which a house could be built. Also, it seems that it should be the obligation of the proponent of the change in the status quo to show this Commission why that change Planning Commission March 13, 1989 Page 6 will not have any adverse economic impact on the neighborhood and that the proposed change will be compatible with the adjoining and adjacent properties. Dr. Anthony De Palma stated that he has lived on that hillside for over 30 years and one aspect about the hillside is the fragile ecology of it. He added that he believes that if that lot split is approved, it is not in the public interest and he doesn't want that water cascading down his property and to have to repair his road all of the time. He advised that he also was not notified. He noted that he owns the property at the end of Rockwood Trail to Crossover Road and south of there which contains 120 acres. Stan Green of 2349 East Oaks Drive stated that he is a previous member of the Planning Commission and he has gone back and tried to refresh his memory of exactly what the ordinances say about lot splits and tandem lot conditional uses. He noted that some of the comments he has heard tonight, makes him think that some of the Planning Commission members might think that if you don't live in the subdivision, you property can't be considered in this comparison of lot sizes. What the ordinance says is the Commission shall determine before granting a tandem lot that the tandem lot development will not significantly reduce property values in the "neighborhood" not the "subdivision". In determining whether property values will be significantly reduced, the Planning Commission shall consider the size of nearby lots in comparison withthe proposed tandem lot or lot. Therefore, there is no reference to the subdivision. Mr. Green advised that as has been stated, the lots in Mr. Foster's subdivision which directly adjoins the property that is proposed to be split are at a minimum roughly twice as big as the lots being created after this lot split and at a maximum in access of three times the size. Dr. De Palma's property would quality as a nearby lot since it adjoins the lot that he has a contract to purchase from Mr. Foster in his subdivision. He advised that he had asked Mr. Merrell to provide some information about the Foster Addition in relation to this which he did but he also asked him to provide them some information about what is happening on the south side of Rockwood. Basically, this property in question is a triangle with the Foster Addition on the east side. Also, the property across Rockwood appears in terms of buildable area to be significantly larger than the lot proposed to be created by the lot split. In fact, the ordinances that deal with tandem lots say to calculate a minimum lot size, the ordinance requires that the minimum lot size be equal to the minimum lot size of the zone that the property which is R-1 and requires 8,000 square feet. In calculating the minimum lot size, the ordinance specifically says that lot area calculations to determine whether a tandem lot meets minimum lot area requirements shall not include any portion of the lot having less than the required minimum width which is 70' in an R-1 zone. It appears to him that when you exclude the portions of the lot that are less than 70' wide, this lot is barely over 8,000 square feet. It is at least equal to the 8,000 square foot minimum but no more than that in terms of buildable area and when calculated as the ordinance requires it to be. Obviously, 8,000 square feet is substantially below any of the lot sizes surrounding and including the subdivision that this lot is a part of. • • Planning Commission March 13, 1989 Page 7 Also, he stated that he noticed that the Planning Commission may hear requests for variances from the size requirements for a lot split with the first lot split required to be three acres each lot and five acres for the second and third divisions. As he understands it, what they are really doing is granting a waiver of the minimum size requirement for the lot split. The ordinance says that they may hear requests for variances from the size requirements prescribed above in instances where strict enforcement of said requirements would cause undue hardship due to circumstances unique to the individual property under consideration and that they may grant such variances when it is demonstrated that such action will be in keeping with the spirit and intent of the subdivision regulations. This property is part of a platted subdivision and the surrounding property owners and those who would like to be surrounding property owners have all made some decisions based on a platted subdivision. The subdivision process is designed to protect the citizens of Fayetteville and it would concern him that they change a platted subdivision when the people who are in and near that subdivision have essentially all raised substantial objection to the process. Mr. Green stated that one thing he has not been able to clarify is that the ordinance states that no variance shall be granted for any property which does not have access to an improved public street. He noted that if he is not mistaken, at present, Rockwood is not improved in front of this lot. It appears to end and not be paved and not have curb & gutter before it reaches this 25' driveway that this lot would be served by. If that point is correct, it appears to him that Mr. Foster is going to build Rockwood including the portions outside his subdivision that are not completed yet to provide the necessary access to the subdivision. It appears that if this property was proposed to be split by a subdivision plat rather than by a lot split, the owner of the property would be required to make a contribution to improving Rockwood. He advised that he can't see an undue hardship unique to this property that has been proven and that is the burden of the property owner and not the other residents of the neighborhood. Mr. Green commented covenants, but one of Fayetteville by the submitted. Therefore, protective covenants. the covenants, if they are sending a message the legal process that that the Planning Commission and City may not enforce the requirements of submitting a plat to the City of ordinances on page 934.2 is that protective covenants be the City definitely appears to have an interest in the While it may not have the legal responsibility to enforce ignore them after requiring them to be submitted then they to the citizens that you don't have a lot of respect for was put in place to protect them. Chairman Jacks asked Don Bunn if it is not so that according to the lot split ordinance, it has to be a minimum of three acres. Mr. Bunn stated that when it is three acres or below it has to go to the Planning Commission for approval. All three of the allowed splits could be granted administratively depending on the size of the lots. Chairman Jacks stated that Tract B is listed as 1 acre and on the last meeting's agenda, it was listed as .8 acres. Mr. Bunn advised that the 1 acre was what he scaled out. Commissioner Nash stated that before they put a definite number of signatures in • • • Planning Commission March 13, 1989 Page 8 the Minutes, the addresses of some the signatures on the petition need to be checked. Some of the street addresses don't appear to be in this neighborhood. Mr. Merrell stated that the staff would be glad to verify those. He commented that in his past job, they administratively required any petition going to the Planning Commission to be submitted to the staff first so that they could evaluate it and give an opinion in advance but they didn't have that opportunity with this one. Chairman Jacks advised that Mr. Utley had indicated that not all of the signatures on the petition are from that subdivision. Mr. Utley advised that the petition represents 37 of the lots in that subdivision. Chairman Jacks advised that there are 41 signatures on the petition but that is no guarantee that they are all valid for this petition. Rebecca Shreve stated that she is the property owner of Lot 8 and in reference to the signature on Ridgeway, that is where they reside. She advised that they were not properly informed by mail that this subdivision would be changed. Chairman ordinance as far as Jacks asked the City Planning Secretary if the City is required by to notify adjoining property owners for lot splits. She answered that she knows, the City is not required to notify. Rick Alexander stated that Mr. Neukranz, with respect to the notice, filled out the address sheet with the addresses for the notices.on it and apparently the City mails those out. But if people weren't notified according to this process, certainly Mr. Neukranz apologizes and wasn't trying to do that intentionally. He thought he was following the procedure. Mr. Alexander stated that Mr. perhaps what Mr. Neukranz was minimum size. However, even Green concentrated on the lot size suggesting that requesting was a granting of the waiver of the by Mr. Green's calculation, Mr. Neukranz' lots met the minimum 8,000 square foot requirement. He added that he has heard no evidence that the size of the lot will contribute to a devaluation of other lots. The lots above Mr. Neukranz are certainly smaller than his. The lots as you go east down the hill are somewhat larger and as Mr. Neukranz pointed out at the last meeting, his lot size seems to make a perfect buffer in transition between the sizes of the two lots. With respect to the subdivision that Mr. Neukranz's property is in, they are certainly some of the largest lots in the subdivision. Mr. Alexander commented that Mr. Utley made reference to the Architectural Subcommittee; Mr. Neukranz hasn't submitted his plans yet for building his house, but there has been no evidence that his house as proposed would in anyway violate any covenants if there are any or in any way devaluate the property. The restrictive covenants also were discussed at the last meeting. There has been no evidence that there are valid restrictive covenants. He noted as a lawyer, he would submit to the Commission, that is a question properly left up to the courts if and when that should ever become an issue. He advised that Mr. Utley had noted that, with respect to what he claims to be a restrictive covenant, one article of the description of the subdivision says a dwelling may be placed on Lot 9 which falls far short of being a restrictive covenant and • • • Planning Commission March 13, 1989 Page 9 doesn't say that "only one dwelling may" or that two or three could be placed on there or that it has to be a particular size. Mr. Alexander stated that the public interest was raised with respect to the parties and he can understand their concern because they have invested time and money in there properties and he believes that they have not had an adequate opportunity to meet Mr. Neukranz and see what he intends to do with the property. Nothing he proposes and nothing that has been brought out here today, indicates that the property will be used in any way adverse to the public interest. He pointed out that, procedurally, some of the issues here have been raised for the first time although they weren't included in the petition. He advised that he has heard no facts submitted to the Commission at this time that would warrant the reversal of its decision. Mr. Green stated that Mr. Alexander made a couple of points that might need to be clarified. He stated that he didn't intend to indicate that he is asking for a waiver of the minimum lot size requirement, but what the ordinance says is that the Planning Administrator shall not waive preliminary and final plat requirements for the division of any partial unless each lot which will be created by the proposed division meets the following minimum size requirements: First division - three acres each lot, Second & third divisions - five acres each lot. The Planning Commission may hear a request for variance from the size requirements prescribed above in instances where strict enforcement of strict requirements would cause undue hardship due to circumstances unique to the individual property under consideration. Therefore, what the Planning Commission is being asked to do is to waive the minimum size of the requirement for a lot split and to do that, the petitioner has to be able to prove that an undue hardship is created which is unique to the particular property under consideration. He commented that Mr. Alexander also raised the point that there had been no evidence submitted that the size of the lot would contribute to a devaluation of the adjoining property. He stated to his knowledge, Mr. Neukranz's property was never listed with a real estate agency so there is not a lot of public information on what he paid for his property but it is clear that he paid substantially less for his property than the average asking price in Mr. Foster's Subdivision because they are putting in sewer, roads and drainage improvements at today's construction costs. Mr. Neukranz will be benefiting further financially from the fact that Mr. Foster and the people who own lots in his subdivision will be improving the public street in front of Mr. Neukranz property. Commissioner Springborn asked Mr. Green with his background on the Commission, what procedural objection he is trying to make. Mr. Green stated that he thinks they are beyond a procedural question at this point, the procedural question has been resolved by a vote of the Planning Commission. Now they are into new evidence. The procedural question they had to address was that there was factual error or omission at the last Planning Commission meeting and he thinks Mr. Alexander himself has pointed out that there were a lot of factual errors or omissions because a lot of new evidence has been presented tonight. • • • Planning Commission March 13, 1989 Page 10 Mark Foster stated that he did a subdivision there to the East and is improving all that street and Mr. Neukranz is just asking for a lot split. If he would also ask for a subdivision, then he would have to do improvements also and share in the cost of the street. He noted that it doesn't seem fair to him that he has to do all the street improvement. Mr. Ozment stated then that basically Mr. Foster would be happy if Mr. Neukranz paid for improving the footage in front of his lot. Mr. Foster answered, no, he wouldn't be happy at all, but at least he could have asked him about it. Patricia Neukranz stated that reference was made to the fact that there is no paving in front of the whole lot 9. If they are part of the subdivision, why wasn't that done when this subdivision was developed. She noted that if that lot was only meant for one residence, why was this lot left so large. It was left large because they expected to break it into lot sizes that were the same as other lots in the subdivision. Therefore, it shouldn't be their responsibility if they were full-fledged members of that subdivision, it would have been done. Commissioner Ozment asked if anyone could tell him how that got there or why. Ralph Goff stated that when Carl Collier's wife bought the property that Mark Foster is now subdividing, she had it surveyed and the surveyor told him that it was an old county road. Chairman Jacks advised that he lives on that side of the mountain and old roads and trails exist all over the place up there. Mr. Goff of 956 Shrewsbury stated that Mr. Neukranz shows on his plat a 25' driveway that goes about 500'. He asked how a fire truck or an ambulance would get up there if something happened. Mr. Neukranz stated that one of the exhibits that he has is a tentative plat which may not have been recorded but shows that the intention of the subdivider at the time was to put a road from Rockwood Trail going north in order to serve a future five lots. The property description talks about a proposed road. He stated that now that the developer to the East has come in with his plat, it makes it impossible to proceed to conform with what had originally been intended so this has become obsolete. The reason for the request of this tandem lot is in order to get to the back of the property. Commissioner Seiff stated that the letter from Jess & Dorothy Covington states that Mr. Neukranz bought Lot 9 from Mrs. Brown. Mr. Neukranz stated that Mrs. Brown was the owner, but he bought it through a real estate company. Mr. Seiff asked if Mrs. Brown ever expressed her reluctance to have him split those lots. Mr. Neukranz answered, no, that was never discussed. Mr. Utley stated that a reference was made to the fact that the covenants state that "a dwelling may be erected on Lot 9" which they say doesn't necessarily preclude more than one dwelling. He read from the covenants which state in Paragraph 1 that "no building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two stories in height and a private garage". That applies across the board to all of the lots. Lot 9 is an unusual shape and is taken into consideration in Paragraph 5 of the covenants which states that "no dwelling shall be erected on • • • Planning Commission March 13, 1989 Page 11 any lot having a width of less than 80' at a minimum building setback line nor shall any dwelling be erected or placed on any lot having an area of less than 10,000 square feet except a dwelling may be erected or placed on Lot 9, Block 1". There are three odd -ball shaped lots in the subdivision and there is no way they can comply with the 80' frontage at a 25' setback line because the lot is built as a "V". Also, Mr. Utley stated that if they are going to deal with intentions here, he believes that the Commission will have to deal with the lots that were included in the plat that was submitted and approved by the City. What the intentions of the original builder was, he is not prepared to cope with. However, if they are going to go on intentions, his intention when he bought his property was that Lot 9 not be subdivided at a later date. He added that there is a moral consideration here because thirty years ago this subdivision was taken into the City of Fayetteville with a specific plat and the covenants that were specifically required to be submitted with it specified one building per lot as platted by the plat submitted. Now, thirty years after the fact a man buys a lot and within thirty days asked for it to be subdivided with complete disregard of the intent of the developer and the intent of the property owners that have been there for thirty years. Commissioner Cleghorn stated that he honestly feels that no matter which way they vote tonight that this won't be over when they are finished here judging from both sides. He added that it seems like there is something underlying here that they are not hearing. He asked if there is a communication problem between the groups or is it that they really don't want this to happen. John Todd of 884 Shrewsbury stated that he thinks they are talking about a matter of what underlies planning principles, trust and integrity and he doesn't think the City Board or the Planning Commission should undertake to overrule something that was set thirty years ago. He commented that the issue is public interest. Basically, the neighborhood just asks to be left alone and they have someone coming in and trying to uproot the neighborhood. Commissioner Ozment asked Mr. Neukranz how he proposes to meet the covenants on this tandem lot. Mr. Alexander stated that he doesn't know that there are any covenants because covenants are a specific legal proposition which have to come from the grantor of the original deed, have to run with the land and be of record. The fact that certain individuals get together and decide to run their affairs in a certain fashion, it is certainly appropriate that those do not rise to the level of legal covenants that would bind a subsequent purchaser of property. There is no mention of covenants found on Mr. Neukranz's deed or on the plat as recorded. Certainly, to be a legitimate covenant, it would have to be noticed and be something that has more legal integrity than just some of the people deciding that is what they want to do with their property. It would have to run from the original grantor of the property and all deeds subsequently filed of record from that point would have to contain that covenant to give him notice of it and an opportunity to decide whether or not to purchase that property. He advised that one of the reasons covenants are not recognized is that inappropriate uses were put to covenants that have now been overturned by courts • • • Planning Commission March 13, 1989 Page 12 throughout the country. Mrs. Volkamer stated that the expectations of the neighborhood people who have lived here for over thirty years are an appropriate consideration of this Commission. Regardless of any proposed plats that were not accepted or developed, they all bought their lots and built their houses with the expectation that the lots were going to be as they are platted of record. No one in the subdivision has objections to Mr. Neukranz building on Lot 9, they object to him splitting that lot into two lots and building two homes on it. Chairman Jacks stated that the Planning Commission is by now beginning to be used as a forum to communicate and he is hearing the same things over again. He advised that unless there is something new, they really need to get on with this. Commissioner Allred stated that he thinks there has been some new evidence presented. MOTION Commissioner Allred moved to deny the Lot Split, seconded by Hanna. The motion passed 5-3-0 with Allred, Hanna, Cleghorn, Seiff & Ozment voting "yes" and Jacks, Springborn & Nash voting "no". Commissioner Ozment stated that he felt this particular lot being discussed has more bearing as it relates to the Foster Development than it does to the existing subdivision above the hill. Chairman Jacks advised that the vote to deny makes moot the Conditional Use for a Tandem Lot which is Item lit on the agenda. RESUBMITTAL OF LARGE SCALE DEVELOPMENT PLAN - VILLAGE APARTMENTS JOHN C BURCKART - S OF APPLEBY RD & N OF DRAKE ST The third item on the agenda was a resubmittal of a Large Scale Development Plan for Village Apartments submitted by John C. Burckart and represented by Harry Gray of Northwest Engineers for property located south of Appleby Road and north of Drake Street containing 7.2 acres and zoned R-2, Medium Density Residential. Don Bunn advised that this is a resubmittal of Village Apartments by Mr. Burckart. The number of units and the number of buildings remain the same as before, but they have condensed the development from about 9.5 acres to 7.2 acres. This changes the density of the development from 16 units per acre to about 22 units per acre which is still allowed under the R-2 zoning. Chairman Jacks asked if there is any additional development planned right now on the other two acres. Mr. Bunn answered, no, but they might have apartments on them in the future. 35 • • • Planning Commission March 13, 1989 Page 13 Chairman Jacks advised that there was a good deal of controversery when this went through originally. Mr. Bunn stated that was the main reason they decided to bring it back before the Planning Commission. Harry Gray stated that the reason for the condensing of the property is strictly to reduce development costs. They did eliminate some garages that were planned also. The major savings will be in earthwork. Chairman Jacks asked if anyone else wanted to speak in favor or in opposition to this. There being no reponse, it was opened to the Planning Commission for discussion. Chairman Jacks advised that the traffic questions were pretty well answered and voted on before, but they do have additional density with this. Commissioner Seiff stated that his concern is not so much the increased density of the project, but has to do with the two and one half acres that remains and what that will do to the future density. Mr. Gray stated that there is a potential for future development but a Plan would have to be submitted at that time for that development. Commissioner Ozment asked if Mr. Burckart owned additional property in there that adjoins the two acres. Mr. Gray answered, yes. In answer to a question from Harley Brigham of 1801 Fox Hunter Road, Mr. Gray stated that they plan to build 160 units. MOTION Commissioner Nash moved to approve the resubmittal of the Large Scale Development Plan for Village Apartments, seconded by Ozment. The motion passed 8-0-0. RESUBMITTAL OF LARGE SCALE DEVELOPMENT PLAN - LAKESHORE APARTMENTS JAMES LINDSEY - N OF JOYCE ST & W OF OLD MISSOURI RD The fourth item on the agenda was a resubmittal of Large Scale Development PLan for LakeShore Apartments submitted James Lindsey for property located north of Joyce Street and west of Old Missouri Road containing 19.29 acres and zoned R-2, Medium Density Residential. Mr. Lindsey stated that they had a plan approved that included apartments with a requirement for two entrances and what they are requesting is with the Phase I (204 units) to be allowed to put in one street that will be dedicated to the City and one emergency entrance that will have the emergency barriers that are approved by the City. John Merrell stated that the the number of the proposed apartment units is being cut from 360 to 204 and along with that, Mr. Lindsey is asking to be allowed to build one paved entrance into the apartment complex at this time along with a 3(0 • • • Planning Commission March 13, 1989 Page 14 temporary entrance. He advised that the staff's recommendation is to approve this with the further recommendation that the second entrance be completed within three years regardless of the status of Phase II. Phase II would be the potential addition of the other 156 units. Chairman Jacks asked if by "emergency" entrance, are they talking about a "non - paved" base such as gravel. Mr. Merrell stated that they talking about the old farm market type of base. In answer to a question from Commissioner Seiff, Mr. Lindsey stated that they have proposed to leave an emergency exit there and so the staff's recommendation came back this way. He added that his thought would be that what they are going to have is a driveway and parking on each side of the driveway. The second entrance is not a City street as per plan. What they would be proposing would be to complete the paved driveway portion. He stated that he is assuming that they would complete the normal driveway portion just like they they were being requested to complete in the original plan. If that was what Mr. Merrell was saying, that is o.k. with him. Chairman Jacks stated that the staff report indicates that within three years regardless of whether any more units were built, the second entrance would be developed to City street standards as a second street. Mr. Merrell stated that the intent of the City staff was to be developed as a City street within three years regardless. Mr. Lindsey stated that he wasn't thinking of it as a City street; he was thinking of it as the same way their other entrance would have been as it was laid out on the Plan. That is shown as a paved entrance that is leading into new units like a driveway arrangement and apartments immediately started all the way along the east side with parking between the driveway and the apartments, but not to City street standards. He added that he was planning to do the driveway portion of the apartments at that time. If they did that next phase next year, they wouldn't be building a City street there. Chairman Jacks clarified that they are showing only one street built to City standards regardless. Mr. Lindsey agreed. Mr. Merrell stated that perhaps he is misinterpreting the intent of the recommendation from the Engineering staff. Normally, they would not like to see that many dwelling units whether they are apartments or single-family houses served by only one entrance off of a public road. He advised that they were willing to negotiate to some extent with the developer and felt that their recommndation was something of a compromise between the one position of just putting in the street and the emergency exit period and the position of requiring two full streets to go in. Mr. Lindsey stated that it would seem to him now that he could build the second entrance to the requirement that he first requested. He added that he would not have been asked to put a City street in if they didn't build those other 156 apartments if he didn't take the three year waiver. He advised that he would be • • • • • • Planning Commission March 13, 1989 Page 15 willing to agree with this if he does build the rest of the units in the next three years and if he can build it as he laid it out and planned it originally. Chairman Jacks stated that they don't have the plat of what happened before. In answer to a question from Commissioner Ozment, Mr. Lindsey stated that they had 360 units approved; one with the City street leading into the middle of them and the other a driveway with parking lots adjacent to it which would be concrete. Chairman Jacks stated that it was approved last Octoaber subject to the construction of two entrances and they didn't see another plat after that. It shows 24' and 19' for the roads. MOTION Commissioner Seiff moved to table this until Mr. Lindsey, Don Bunn and John Merrell can meet and straighten this out, seconded by Allred and followed by discussion. Chairman Jacks stated that he thinks one key to this is that when this came before them they approved it with the provision of the second entrance. What subsequently turned out to be approved here was a 24' wide street with parking on it. He noted that they may need to go back and look at the Minutes from that previous meeting to determine what happened. Mr. Lindsey stated but the 24' and 19' they made the main like it is drawn. that the middle street was not there on what they approved, were there. They were told to put another entrance which street and this driveway and entrance was always there just Mr. Merrell stated that it is possible that the staff may have misinterpretated the chain of events from the Plat Review to the Subdivision Committee to the Planning Commission. There are discussions in those three sets of Minutes about two access points and perhaps it would be wise for them to meet again and discuss it. The motion to table passed 8-0-0. WAIVER OF THE SUBDIVISION REGULATIONS - LOT SPLIT #2 DON MCINTIRE - E SIDE OF JOE FRED STARR ROAD The fifth item of consideration was a Waiver of the Subdivision Regulations -Lot Split ill submitted Don McIntire for property located east of Joe Fred Starr Road containing 1.75 acres. Don McIntire of 2329 Kantz Lane about 3.5 acres from Zed Johnson an agreement on it provided that stated that he recently made an offer to buy off of Joe Fred Starr Road and they have come to he has the opportunity to split it off and sell 3-7 • Planning Commission March 13, 1989 Page 16 half of it if he needs to help finance the home he is planning to build there. He advised that if the lot split was approved, each lot would be about 210' x 376'. Chairman Jacks stated that Mr. McIntire is proposing to buy 3.5 acres which is Split lit and will be done administratively. Then he proposes Split lit which is to split off half of the property he is buying Keith Robbins of Rupple Road stated that this is in the County Growth area and they talked with Don Bunn, City Engineer, at length about this and he would think that he would have some comments on this. Chairman Jacks stated that they would have some comments from the staff. Chairman Jacks advised that the purpose of the Lot Split ordinance is to prevent a developer from splitting off lot after lot and selling those and avoid the necessity to put in improvements: streets, sewer, water, etc. John Merrell stated that the staff recommends approval of the request subject to the granting of.the appropriate easements and the payment of the parks fees. Chairman Jacks asked John Merrell if the subject of development without improvements is a concern. Mr. Merrell answered, no. Commissioner Seiff asked how this proposed split fits into the proposed 20 year Land Use Plan. Mr. Merrell stated that he didn't know the land use plan designation for this property for certain, but he would guess that it would be low density residential given the location. In answer to a question about access, Chairman Jacks advised that there is a road there. Mr. McIntire stated that the existing road is owned by Zed Johnson who has given the right of access. Chairman Jacks stated then that there would be a granting of an access easement in connection with this. He advised that they have been told in the past that legally an easement in perpetuity is just as good as an ownership so whatever they do would have to include that access stipulation from Mr. Johnson. Mr. McIntire stated that Mr. Johnson has already agreed to that. NOTION Commissioner Seiff moved to approve the request as submitted subject to the staff report which stipulates an easement for water, utilities and ingress/egress payments of the necessary parks fees, seconded by Springborn. The motion to approve passed 7-0-0 with Nash leaving before the vote. Mn The Minutes of the meeting of February 27, 1989 were approved as corrected. • • • Planning Commission March 13, 1989 Page 17 Page 4, Paragraph 5 change "Allred" as abstaining to "Seiff". John Merrell advised that if it is the Commission's desire, they will put the approval of the Minutes of the last meeting at the top of the agenda. Chairman Jacks stated that it does make it a little easier to end the meeting with the Minutes at the top. Mr. Merrell stated that they will then put that item at the top of the agenda. There being no further business, the meeting was adjourned at 7 p.m.