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HomeMy WebLinkAbout2000-06-19 Minutes0 • 0 MINUTES OF A SPECIAL MEETING OF THE PLANNING COMMISSION A special meeting of the Fayetteville Planning Commission was held on June 19, 2000 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED AD 00-19.00: Administrative Item (Steele Crossing, pp 212) MEMBERS PRESENT Nancy Allen Don Bunch Bob Estes Lorel Hoffman Conrad Odom Loren Shackelford Lee Ward Don Marr Sharon Hoover STAFF PRESENT 'rim Conklin Sara Edwards Jim Beavers Ron Petrie Kim Hesse Charles Venable Jerry Rose Heather Woodruff Diana Varner ACTION TAKEN Denied MEMBERS ABSENT None STAFF ABSENT iffe" Planning Commission Minutes ` June 19, 2000 Page 2 AD 00-19.00: Administrative Item (Steele Crossing, pp 212) Appeal of the Floodplain Development Permit and Grading Permit for LSD 00-5 Steele Crossing. Odom: Good evening ladies and gentlemen and welcome to the meeting. Can you hear me okay? Ladies and gentlemen if you will please come to order we will begin the June 19, 2000 meeting of the Planning Commission. This is a special meeting that I called to hear AD 00-19 which is an appeal of the Floodplain Development Permit and Grading Permit for LSD 00-15 of Steele Crossing. Before we begin the hearing of the appeal I will ask staff if there are any other items that we need to discuss? Mr. Conklin do you have any items that we need to discuss? Conklin: No additional items. Odom: Do we have any members of the Planning Commission that has anything they need to bring up? Estes: Mr. Chairman, this past week an additional Appellant was added to the consolidated and amended appeal. That additional Appellant is Whitewolf • Properties, Inc. That is an Arkansas business corporation that is owned by Dr. Tony Graven who is both a personal friend and client and should Whitewolf Properties, Inc. remain an Appellant it will be necessary that I recuse from these proceedings. Odom: Any other Commissioners have any recusals or questions? Then what I would like to do before we begin the appeal, I'm going to run through the process that we will follow. I have formulated a different procedure that is a little bit different than the regular procedure that we have for the Planning Commission. We went over this at the agenda session and it was somewhat published in the paper, but just so everybody is familiar with the way we will be doing things tonight, they will be just a little bit different. Can everybody hear me okay? Audience: No. Odom: I'll try to speak up a little bit. Is that better? Audience: Yes. Odom: The way we will be conducting the meeting is I'll begin with some introductory remarks. We will then move to the opening presentation by Colene Gaston who represents the Appellants in this matter and she will be given 20 minutes for opening presentation. I will then give Mr. Rose, on behalf of the City, the • Planning Commission Minutes June 19, 2000 Page 3 opportunity to give an opening presentation for 20 minutes. I will then give Mr. Butt, on behalf of Argus Properties, 20 minutes for opening. At that point and time we will begin with the presentation of witnesses and Mrs. Gaston will be allowed to call witnesses. After she does her examination, the other members will be allowed to cross examine. Originally it was published in the paper that Mr. Rose was going to go first, but after some further discussions with Mrs. Gaston she wishes to go first and so that is how we are going to proceed. After she has completed her examination of the witnesses Mr. Rose will be allowed to call witnesses and after he is finished Mr. Butt will be allowed to and then Mrs. Gaston will be given the opportunity for rebuttal witnesses at that time. After we hear all of the witnesses then we will end with closing remarks by Mrs. Gaston and she will have 10 minutes to close. Then we will have closing remarks by Mr. Rose for 10 minutes and then closing remarks by Jack Butt for 10 minutes. Then we will allow for public comment at that point and time. I'm going to limit that at this point to 30 minutes. Then we will begin our Planning Commission deliberations, questions, and answers. Then we will hear motions. So, that is the format that we are going to be using tonight. Now, we have had a large group of people come before us on the large scale development that had come before us • twice before and during the Planning Commission meetings I felt as though those meetings went very orderly and I was very happy as to how things went with regard to the Planning Commissions actions and the public comment and the presentation by those that were giving presentations. Tonight I would ask that we use that same repoir that we have used in the past. I can assure you that you are going to have a Planning Commission that is going to hear this appeal with an open mind. We are going to listen to the witnesses and the presentations that are made. We are going to listen to the public comment. In return I would ask for you to show the respect to the Commissioners up here by not applauding by not booing or hissing either the witnesses or anyone giving public comment or any of the witnesses that testify. That will make it more orderly and also it will be a better proceeding for everyone if we remain in that light. It's often brought to my attention that perhaps sometimes people don't know that the Planning Commissioners up here are nothing more than a group of volunteers. We all have our own jobs, our own families and live here in the City of Fayetteville and volunteer our time and do our best to deal with the issues that are before us. And I hope that you will be mindful of that during your comments. Also, what we have before us is a very specific issue with regard to an appeal of a Grading Permit. I would ask that the public comment please be limited to that issue. Now I know it is going to be difficult and I know that emotions are very high with regard to the large scale development that was approved by the Planning • Commission and then the City Council and is currently the Circuit Court. I would ask that you please reserve those issues for the Circuit Court and try not to bring • Planning Commission Minutes June 19, 2000 Page 4 those up during public comment and please keep your remarks with regard to the specific issue of the Grading Permit. That will help things go a lot smoother. Now we have, and again before we begin with the opening presentation, we have witnesses that intend to be called. We went over that list of witnesses. Colene, were there any other witnesses that you intended to call tonight besides those that you had listed? Gaston: No. Odom: Okay. Anybody else have any additional witnesses that were not previously mentioned? What I would like to do is for the City Clerk to go ahead and swear the witnesses in that are present. Do all of the witnesses know who they are? Let's go through them real quick. Rose: Jim Beavers, City Engineer, Kim Hesse, Landscape Administrator, Floodplain Administrator Sara Edwards, Ron Petrie, I don't know if you are going to testify, would you like him to testify or do you intend to call him? • Odom: If there is a possibility that he is going to testify, let's go ahead and swear him in. Rose: Swear him in. Ron, we will swear you in just for fun just in case I get something out of Conklin here. Charlie Venable looks like a good bet to swear in on a just in case basis. That's all I've got. Colene do you have any others? Do you all want them to stand up and raise their right hands? Odom: I want all of those that are going to be called or think they will be called. Go ahead Mr. Butt. Butt: Let me add some to that as possible witnesses. Tom Hecox, Mel Milholland, Guy Washburn, Kirk Rankin and Mickey Harrington, Odom: All right. Colene did you want to add any in addition to those? Gaston: Witnesses? Odom: Yes. Gaston: No. • Odom: Then I would ask all of those names that were called to please stand to be sworn. • Planning Commission Minutes June 19, 2000 Page 5 Woodruff: Please raise your right hand. Do you solemnly swear to tell the truth the whole truth and nothing but the truth so help you God? Witnesses: I do. Odom: Thank you and be seated. Now if someone is called as a witness that has not been sworn please let us know so that you can be sworn for testimony. OPENING STATEMENTS: Odom: We will begin at this time with the opening presentation of Colene Gaston. Gaston: Chairman Odom, before I begin my opening presentation I have decided to drop Whitewolf Properties from the appeal. I am doing this because I believe that Ms. Jenkins, Jeannie True Jenkins and Morty Newmark are sufficient to provide standing in this matter. I feel that it is important to have all of the Commissioners present and not have one excluded because I think that you all have been participants in this process and, again, because I believe that there is no doubt that • Ms. Jenkins and Mr. Newmark do have standing, I will at this point drop Whitewolf Properties from the appeal. Odom: Okay. Estes: Mr. Chairman, with the withdraw of the Appellant, Whitewolf Properties, Inc. there is no necessity of my recusal in hearing AD 00-19. Odom: Well, you almost got away, but you get to sit with us. Thank you. Ms. Gaston you may proceed and I will notify you when you have 5 minutes left. Gaston: As you know, my name is Colene Gaston of the Gaston Law Office. I'm here this evening, now, on behalf of Morty Newmark and Jeannie Jenkins. Ms. Jenkins and Mr. Newmark have appealed the June 1, 2000 Grading Permit and the May 30, 2000 decision of the Landscape Administrator that is part of the Grading Permit, both of which were issued to Melvin Milholland for Steele Crossing. My clients have also have appealed the May 25" and 26", 2000 Floodplain Development Permits that the City issued to Argus Properties for Steele Crossing. I want to say at the outset that my clients are not opposed to development in Fayetteville and they, in fact, want to see Fayetteville continue to grow and thrive. They believe, however, that any growth should be in conformance with the laws • that were written and enacted to protect the community and the environment that we will all share. I'd also like to point out that it has only been 17 days, or 17 • Planning Commission Minutes June 19, 2000 Page 6 business days since the first of these permits were issued and only 2 business days since the deadline for filing appeals on the most recently issued permit. In that time I have attempted to review the relevant documents pursuant to the Freedom of Information Act. I have not, however, had the opportunity to conduct the type of discovery that typically proceeds a contested administrative or judicial proceeding. There has not been a provision for depositions or interrogatories in this process. In fact, I have not received a written answer to my client's appeals, although I'm not saying one is required, it's just not part of this process. I'm pointing this out to say that the process has moved very quickly and that I may have unknowingly made some errors in what has been stated in the appeals. If that is the case I'm sure that Mr. Rose, on behalf of the City, will point it out and I welcome the opportunity to correct any errors in the record. One thing I do know about Mr. Rose's position in regard to these appeals, at least as of Friday, is that he does not believe that my client's have the right to bring the appeals. Before we began this evening I distributed to each of you and to Mr. Rose and to Mr. Butt, council for Argus Properties, a series of documents marked for identification as exhibits 1 thru 18. I'm now going to go through these as I hit on the high points of the grounds for the appeal. Exhibit 1 is a memorandum dated June 18, 2000 • from John Harbison who is a professor at the law school here. This memorandum was provided earlier today to Chairman Odom, Mr. Rose, Mr. Butt and perhaps other members of the Commission, I believe, have received it in advance as well. Professor Harbison's conclusion simply stated is that injuries to aesthetic and environmental values are sufficiently concrete to confer standing and that the standing of my client's to bring these appeals before the Planning Commission is beyond reasonable dispute. I'm quoting here from Professor Harbison's memo. Exhibit 2 contains affidavits for each of my clients and if you will please omit the affidavit for Whitewolf Properties. These are affidavits in support of their standing in this matter. As I stated last Friday afternoon at the Planning Commission Agenda Session I do not believe that a jurisdictional judicial standing analysis applies to administrative proceedings such as this where the permit decisions were just issued and there has been no opportunity for the public to be heard on these permits other than to file an appeal. None the less, my clients each meet the jurisdictional standing requirements for appellate review even in the courts. Before I start talking about the specifics of my client's challenges to the permits I would like to talk about why the issue is raised regarding these permits, particularly the Grading Permit, are so important. This is a copy of UDO § 169.01 B. Chapter 169 of the UDO are the grading provisions. The Grading ordinance of § 169.01 B provides that `The purpose of this chapter is to control grading, clearing, filling, and cutting (or similar activities) which alone or in • combination cause landslide, flooding, degradation of water quality, erosion and sedimentation in storm sewer systems and water storage basins. It is also the • Planning Commission Minutes June 19, 2000 Page 7 intent of this chapter that, through the implementation of the guidelines and regulations contained herein,' and I believe this is critical, `the existing scenic character and quality of the neighborhood and city as a whole not be diminished.' The next exhibit in your packet, exhibit 3, is a press release from Siena Club regarding a recent consent decree that was entered in Federal District Court on May 16, 2000. This consent decree is........... Rose: Mr. Chairman, point of order if I might. I'm not sure if Ms. Gaston is attempting to introduce these into evidence at this time. If that's so, I do have some objections to it. If that is not so and we are simply talking about it, then that is okay I suppose, if it's not the truth of the matter stated, that's probably okay. I just want some clarification on it I guess. Odom: Why don't we just refer to your exhibits at this time and if you want to introduce them then we will do that at a time when it doesn't interrupt your presentation. Gaston: That sounds fine. I mostly put these things together so you would have an understanding of the background of why my clients and 1 believe these grading • issues are important. So, quickly, this is a press release about a lawsuit in Federal District Court requiring the State of Arkansas and EPA to identify lakes and rivers that are polluted and to determine the particular pollutants that are causing the problem and then develop what are called total maximum daily loads, which is kind of a complicated process, and you may have read about this in the newspapers. Basically that is to determine the maximum amount of the problem pollutant that the lake or stream can absorb or simulate without being polluted. I've got copies of the consent decree to give you. I did include a portion of this consent decree in your packet. It's exhibit 4 and includes the attachments to the consent decree. The reason these attachments are important is they list the parties determination of the water quality impaired streams in Arkansas. You can see, if you flip through these, it lists the stream, the stream segment, and the pollutant of concern and you will see that siltation or sedimentation or what results from grading is one of the main pollutants impairing water quality and that several stretches of the Illinois River are listed on page A-4 of attachment A, as being impaired by siltation. The press release from the Sierra Club also notes that the Illinois River is one of the top three priority watersheds where TMDL development must be expedited. That means this is going to be taking place soon. They are going to be studying these watersheds in our area. The creeks that flow through CMN Business Park II, including the one that runs alongside Steele Crossing, are in the Illinois River watershed. Exhibit 5 is a page from the EPA's • web site that explains why siltation or sediment is a problem. For example excessive suspended sediments can cause direct physical harm to fish and aquatic • Planning Commission Minutes June 19, 2000 Page 8 life. Excessive deposited sediments can impair food sources and spawning grounds reducing survival and growth rate. I now go to exhibit 6 which is a site map of CMN Business Park prepared by Milholland Company. Some of you may have gotten color ones, others of you got black and white. The site map shows lots 1 thru 17. The streams going through CMN II and the trees that remain and those that have already been removed. Now I want to go to that to sort of the discussion of the problem in theory to what is happening here. Exhibit 7 contains two pages of photographs of CMN Business Park II that I took just this Saturday morning while it was raining. The first page shows storm water runoff on the north side of Joyce Boulevard west of the Shoe Carnival. The polluted runoff is coming from the area where there is a lot of grading going on. Basically, I'm sure you've driven by there, you see that the hillside has been brought down. I think that it's lot 10 but I'm not certain. As you can see from the photos there are some silt fences in place but they were not at all sufficient to stop the contaminated runoff. The second page shows sediment contaminated storm water runoff from the road grading areas behind Home Depot. These are pictures I took outside the fence line. I can't see what is going on in the rest of the development but I think these photos may be representative. The road work behind Home Depot, you can see • the runoff flowing, it's hard to see because I couldn't do one big picture, but the runoff flows along some of the road work down hill into an area where there is no erosion control. There are some silt fences along the creek but this just goes on the edge of those and goes right into the creek. Now that we have seen some of the problems with runoff from areas where grading is taking place in CMN II I'd like to look at the laws that are in place to attempt to prevent polluted runoff from occurring. The first law that we in Fayetteville have is UDO § 169.08B which states, `Final Grading Plan. No subdivision may be finalized nor large scale development plat approved before a final grading plan has been submitted to the City Engineer and approved.' The large scale development for Steele Crossing was approved by the Planning Commission on April 24, 2000 and upheld by the City Council on May 2, 2000. This was in violation of UDO § 169.08B since the final grading plan had not yet been submitted or approved. The Grading Permit application for Steele Crossing was submitted on May 26, 2000 and the Grading Permit or approval letter was issued by the City Engineer on June 1, 2000. Additionally, before grading activities can be permitted a storm water management, drainage, and erosion control Permit is required pursuant to UDO § 170.03. That section which is § 170 is the storm water management, drainage, and erosion control section. I'm going to shorten it to the drainage section because I don't want to confuse it with a later storm water construction Permit that the state issues that I will be talking about. This section states, `Permits Required. • Applicability. This chapter shall apply to all land within the corporate limits of the City of Fayetteville and the Fayetteville Planning Area. No person may • Planning Commission Minutes June 19, 2000 Page 9 subdivide and develop, change to a more intensive land use, construct or reconstruct a structure, or change the size of a structure except as hereinafter exempted, without first obtaining a storm water management, drainage, and erosion control Permit from the City.' Rose: Mr. Chairman, for the record, the first time that I have been aware that we were attacking the stone water Permit was in a document that was handed to the Planning Commission this last Friday. Rest assured I am objecting to that and I can get into it some more but I don't want to limit or interfere with Mrs. Gaston's comments, but at the same time let me assure that as far as I'm concerned we are here on only two permits. One is the Grading Permit and the other is the flood water Permit. Odom: Objection is noted. Go ahead Colene. Gaston: You are right. We are here on two permits but what I'm saying is the Grading Permit should be issued simultaneously with what I'm calling this drainage Permit. Some of you may have already seen Mr. Rose's April 24,2000 • memorandum on ordinance requirements for Grading Permits and for storm water management, drainage, and erosion control, a copy of which is included as exhibit A. This is an issue that has been raised before the City Council and before different committees. In response to that issue Mr. Rose has written this memo which states, at 11 I think on page 2, that, the question is, is it possible to interpret this storm water management, drainage, and erosion control ordinance and the physical and alteration of land ordinance, that's the grading ordinance, in such a way as to prevent any developer from doing virtually any work until a final grading and or storm water management and erosion control plan or permit is approved. Mr. Rose's answer is probably. A 12" question was asked is it possible to interpret these ordinances so as to allow for a partial phase permit. Mr. Rose's answer is yes, not only are they not specifically prohibited but section 156.04 allows variances to the storm water management, drainage, and erosion control ordinance, according to Mr. Rose. A copy of UDO § 156.04, the variance section is exhibit 9 in your materials. This is what he says allows that you can do these phase permits and there is a variance provision that allows this. If you look at that provision it provides that a variance may be granted from requirements of the drainage ordinance when specific showing is made that the variance will not result in an increase in the rate or volume of surface water runoff will not have an adverse impact on adjacent property or waterways and will not result in degradation of water quality. I do not see how this showing could be made if the • variances from the basic requirement to have a permit at all before development or grading activities begin. Clearly this variance provision can not be read to waive • Planning Commission Minutes June 19, 2000 Page 10 the basic requirements set forth in UDO § 170.03, that one must have a drainage Permit before beginning grading. Other provisions of the drainage ordinance make it clear that the grading and drainage Permits should be issued together. I want to show you UDO § 169.06F 1 regarding permanent improvements. It says, `Permanent improvement such as streets, storm sewers, curb and gutters and other features for control of runoff shall be scheduled coincidental to removing vegetative cover,' that means grading, `from the area so that large areas are not left exposed beyond the capacity of temporary control measures.' In this case a Grading Permit has been issued. No drainage Permit accompanies it and there will be removal of vegetative cover without the permanent improvements that are listed here. Mr. Beavers, the City Engineer, stated that in most developments the Grading and drainage Permits are issued simultaneously but that hasn't happened in this big development. Until the ordinances are revised the same thing should be true for large developments that they should be issued simultaneously. The four permits that have been issued for CMN up to April 24, 2000 are attached to Mr. Rose's memorandum which again is exhibit 8. An additional verbal approval for grading at CMN II was given and confirmed by letter, that is a verbal approval for grading was given and confirmed on May 8, 2000 as shown by the • letters, my note states exhibit 10 but I'm wondering if that is right. Odom; Exhibit 10 is a letter. Gaston: Yes. Exhibit 9 is just the provision from, the variance provision. If you look at the approvals, the permits, that are attached to Mr. Rose's memorandum and then the two additional, or the additional one, you can see that none of these permits or approvals are for storm water management, drainage, or erosion control. None of them. The photographs that we looked at earlier of polluted storm water runoff from CMN II demonstrate that the drainage Permit should be issued before grading begins instead of there being none almost a year after work has begun. A storm water construction Permit from the Arkansas Department of Environmental Quality, that is called ADEQ, also is required before grading at Steele Crossing can begin. As of last Friday, a permit application, which is known as a Notice of Intent or NOI, had not been submitted for Steele Crossing. Storm water construction Permits are a little bit different than the usual water permits in that ordinarily 48 hours after the submission of a Notice of Intent the state general storm water Permit for construction activities, it's sort of like a blanket form permit, becomes effective to authorize construction activities as long as a storm water pollution prevention plan has been prepared and implemented by the applicant. • Odom: Mrs. Gaston, I'm going to let you keep going for a little bit. We've been going • Planning Commission Minutes June 19, 2000 Page 11 about 20 minutes but because of the objections and stuff I'm going to allow for 5 more. Gaston: Okay. I'll speed it up then. In the case of Steele Crossing and any subsequent CMN development however, ADEQ has requested that the storm water pollution prevention plan be submitted to them for review along with the NOI. That is set forth in exhibit 11 which includes a letter from State Representative Jan Judy to DEQ director Randall Mathis and then Mr. Mathis' response dated June 14, 2000. There is a state storm water construction Permit for this project issued to Apat Arkansas, Inc. McClinton Anchor. That is for the road work at CMN and does not apply to any subsequent large scale developments and that is stated in exhibit 13, Apat, McClinton Anchor's storm water pollution prevention plan for CMN. I've also included the permit for them as exhibit 12. Once again, due to the sensitive nature of this watershed, and remember that Mud Creek is the receiving water for this split discharge from the Fayetteville Wastewater Treatment Plant and the watershed into which Mud Creek discharges is, again, the Illinois River high on the State's priority list of water quality ........ streams. It would seem prudent for the City to insure that a state storm water construction Permit has been • issued for Steele Crossing and to review the required storm water pollution prevention plan prior to issuing the Grading and drainage Permits. In the appeals I listed deficiencies in the Grading Permit application and in the May 26, 2000 grading plan that was approved. Those deficiencies include the failure of the owner of the land, which is Fayetteville Exchange, to sign the application. The fact that the lot lines for lot 15 were drawn incorrectly. And that lot 7 is missing from the grading plan altogether. Here is a blowup of the grading plan but, again, being pressed for time, I'm simply going to state that lot 7 and 15 were presented together for the applicant, by the applicant for this large scale development which was approved by the Planning Commission on April 24, 2000 as a unit. We are going to quickly go to the approved plan for the large scale development. I already know that Mr. Rose has said that this large scale development does not include lot 7 but I would like for you to direct your attention to the legal description. I'll give you a copy because I can't read it from here and I'm sure you can't. The legal description is lot 7 Phase I and 15 Phase 11 of the proposed CMN Business Park II describes as follows. Then it gives, you know, all of the legal descriptions including, containing 29.99 acres, more or less, that is both lots 7 and 15 that are part of the large scale development plan that was approved by the City. I'm just going to quickly touch on one other issue that I think is important. As part of the City's preliminary plat process for CMN 11, Phases I and II, tree preservation plans were submitted on behalf of CMN Il as required by the ordinance 167.05B. These plats were approved by the Planning, well, this is what the ordinance says, `In proposed subdivisions and large scales developments • Planning Commission Minutes June 19, 2000 Page 12 a tree preservation plan shall be submitted and approved by the Planning Commission as a portion of the preliminary plat or site plan,' I left out a sentence, `There shall be no land disturbance or tree removal until the tree preservation plan has been approved.' The tree preservation plans incorporated in the preliminary plat approval process for CMN Phases I and II specified that most of the trees now included in large scale development 00-5, Steele Crossing, were to be preserved. Do I have time to play a 3 minute video tape? Odom: If that will be the conclusion of your presentation, I'll allow it. Gaston: Basically. I just want to start out, this is........... Odom: Where is the television? Is it not set up to go? Gaston: Okay, we will do this, if I can have a break in a minute. Odom: Why don't we just do this at the end as opposed to now. • Gaston: Okay. Steve is it coming? Odom: Do you have any final comments? Is it set up? Gaston: Steven, we will do this later. That's fine. Odom: I'll allow you to do it at the closing. Gaston: Okay. That's okay. Let's just wait. I've also appealed the Floodplain Development Permit. I'll get into specifics on that with the witnesses. In conclusion I think that I have pointed out a number of ways that these permits have been issued in violation of City ordinances. If you take what I've said tonight plus what is in the papers that were in the appeals filed earlier, therefore, I'm asking that at a minimum the permits be revoked. The City should then take the opportunity to review the procedures that have been followed improperly and take steps to correct actions that have been taken in violation of the ordinances including the approval for large scale development for Steele Crossing. I believe that the City is entitled to take some time to review this. The developer does not have a right to have it's permits issued immediately. Now, I would say, is a golden opportunity for the City to work towards a solution that will be in the best interest of the long term economic, aesthetic and environmental interests of • Fayetteville. • Planning Commission Minutes June 19, 2000 Page 13 Odom: Thank you Mrs. Gaston. Mr. Rose. Rose: One point of clarification. I know that Mrs. Gaston said on Friday that it was possible that she would narrow the issues between Friday and now. I wonder if I might direct to you, Mr. Chairman, to inquire as to whether or not we have narrowed the issues by that presentation or are we still covering everything in the complaint orjust what was mentioned in the opening statement. Odom: It's my understanding that we are going forward with everything that is in the complaint because I have not been notified of any narrowing of the issues. Gaston: There probably are some specific instances where I say the permits have some problems that, for example, on the grading plan that was submitted, there were indications to remove trees in lot 7 even though lot 7 was not owned by Fayetteville Exchange. Now there is a letter in the record that gives permission for Argus to remove those trees so I am not going to pursue, for example, that type of issue. There have been a number of things that were submitted subsequent to the filing of the appeals that have attempted to correct some of the deficiencies • pointed out and so I will not pursue those in detail and some I may not pursue at all. Odom: Since we don't have time to hash out what we are and are not going to talk about, Jerry, I recommend that you talk about all of them. Rose: I sure will. Odom: Time permitting. Rose: For starters my name is Jerry Rose. I'm the City Attorney in the City of Fayetteville. I represent a variety of folks as City Attorney. I sometimes represent the City Council. I sometimes represent you as Planning Commission and tonight I represent City Staff. Of all of those choices of my representation I probably do better with City Staff than with anyone else. City Staff is in a unique position. They are not volunteers and they are not elected officials. This is their job. They do it eight hours a day. I have found in my 12 years that they do it rather well and I'm here to defend those decisions tonight. I want you to be sure of who I represent on this particular occasion. I feel like I walked into a different forum than what I intended because the only thing that I have to go on is what Mrs. Gaston has given me by way of a number of different appeals that list very • specifically what it is we are after. I think the first thing we need to consider a little bit is person aggrieved. That's not something that I pull out of the air by Planning Commission Minutes June 19, 2000 Page 14 way of standing, it is a thing that is in your ordinance in § 155.06, only a person aggrieved may appeal these particular decisions. Incidentally, it's not unusual for ordinances to contain limits on who may appeal. If you think to large scale development for instance, when you make a decision on a large scale development your ordinance tells you that only the owner of the property of a member of the City Council may then appeal it to the City Council. So, it's not unusual or odd to limit who may appeal and who may not appeal. The persons aggrieved, we can do away with 350 Millsap because that is Whitewolf. But the two folks live at 1039 Overcrest and 3441 Northwood, on the big map this is the development that we are talking about. Mr. Newmark, which is 1039 Overcrest lives way down here. The other individual lives, there is lot 15, there was Whitewolf, and Ms. Jenkins lives way over here. It's on the west side of this road that is in the subdivision that has lot 6 and then lot 7 and then lot 15. As you will notice, the drainage runs this way on all of this property. None of the drainage on this project site, lot 15, goes anywhere near Ms. Jenkins house. It all runs down this way into Mud Creek so that doesn't affect it. I saw that the very erudite and very learned treatise on what standing was by Mr. Harbison and I respect it greatly. I think that we are in a little bit of agreement here at any rate, that I think • he agrees that you have to be more than a simple tax payer or a resident in order to appeal. I think that he agrees with me that the person who is injured must suffer an injury that is concrete, specific, real and immediate. Not hypothetical, not conjectural. I can't read the rest of it because it's too far down. I don't know whether Mr. Harbison agrees with me or not on this point, but it has to be not a general civic interest. It must be something that is unique to you in order to appeal. That is what person aggrieved means. In Mr. Harbison's treatise or brief, he certainly points out that there is very little law in this effect in Arkansas. That is true. I wish that I could tell you that I was a great researcher and could do marvelous things, however, there is this marvelous book called McQuillens and McQuillens is kind of the handbook on city law in the world, I guess, or certainly in the United States. My brief that I wrote for you comes directly from McQuillens and contains law from other jurisdictions who have considered the words persons aggrieved. It's not standing, it's persons aggrieved, and accordingly I think that if you look at that you find the affidavits that we have, we don't have the individuals here, but we have some affidavits, they say they are public invitees. They say the intend to use a walking path down by Mud Creek. That Mud Creek path incidentally is not in a wetland. It is adjoining a wetland but it is not in a wetland. They say the intend to patronize the retail shops, which I suppose is true, however, well what ever. At any rate they also say they have a strong aesthetic and environmental values. I would hope that most people would, • and that they are particular to Mud Creek for some reason that is undisclosed. But at any rate, that is their entire, according to their affidavit, their interest in this • Planning Commission Minutes June 19, 2000 Page 15 matter. You will notice that all three affidavits, I didn't read them word for word, but I believe that they are exact in word to word. I don't think they vary one from another. They are the same exact words for every affiant. At any rate, I think that you will find that these are not persons aggrieved for the purposes of your statute. What's being appealed? What is being appealed are two permits. The Floodplain Permit and the Grading Permit. I know that because that's what was in the appeal itself. There is no mention in either one of those, in either one of the appeals that have been filed, or any of the appeals that have been filed timely, that have anything to do with storm water Permit. There are no allegations with any of them that have to do with large scale development approval or tree preservation plan approval which is a part of large scale development approval. This is not an appeal of an Argus large scale development or a CMN Phase I or Phase II development and I will object if these things come into play or into being. Not all of the permits are even being challenged. Just what is appealed is being challenged. Within the four comers of the appeal itself is what is being challenged. I object because these matters have already been appealed or their appellate time has already run and they are already in court. Your decision, for instance, on large scale development regarding Argus has been appealed to the • City Council which upheld your decision and it is now before the Circuit Court. So, these things have been already appealed or their time has already run. I look at the complaint again and try to determine what is wrong with the Floodplain Development Permit. I found three things in that complaint. One, the signatures of the owners and the agents are not clear. Two, that Hecox's letter of review that is attached to that Floodplain Development Permit is not clear and was not reviewed, they say. And finally, no base flood elevation was determined. The nice thing about opening statements is that I get to give you evidence that I think will come out on the witness stand. But if I differ from what is said on the witness stand, believe the witness stand because I haven't talked to them all that much either. Here's what I think that the witnesses are going to tell you. One, as regards to signatures, plain and simple, we got `um. We've got Rankin's as agent for Fayetteville Exchange LLC who is the owner. If you don't believe that look to your May 26, 2000 attachment C to the latest complaint that was given to you by Mrs. Gaston. It's there. Second, the Fayetteville Exchange says that Argus and Rankin is my agent. Again, look in your packet to page 1.47. Clearly Fayetteville Exchange says that Argus and Mr. Rankin are my agents for this and they can do anything to this thing that they want too. We want them to apply for us. Next, Hecox's letter. Gentlemen and ladies, there are no requirements for a review of modeling and of the modeling that Mr. Hecox has done. He is a professional engineer and that is why we've got him. That's why we want him • with a letter saying that there are no adverse effects which are defined in this code, in the code that is being followed, this floodplain code is being less than one • Planning Commission Minutes June 19, 2000 Page 16 foot as required. Less than one foot deterioration that's required. I think that is what the evidence is going to show you on Hecox's letter. Base flood elevations. One, there is no increase above one foot for fill. That is what you are trying to do. That's in your packet at 1.45. That is part of that floodplain flow code. It talks about fill incidently. Remember what we are talking about isjust an area over to the left of the project as you are looking at it away from lot 7 which is this way. That little area in blue there is the floodplain and that is what the Floodplain Administrator is concerned with. She is not concerned with this. She is concerned with that and in that area there is no building. There is no construction other than a parking lot and some landfill where you see this yellow marked here and some riff raff that is there. That is the only change that is being made to that floodplain and it meets, as the engineer says, it is specific to zone A, which is what this is, that floodplain, and there are no structures in it and there is no increase above one foot which is what the code requires. It's that simple. Next, the Grading Permit. Here is what's complained about. They say it's too fast of an approval. They say the signatures are wrong again. They say the lot lines are, lot 7 wasn't properly drawn. They say § 169.8 ways no large scale development until final grading. They say there is no ADEQ or SWPPP permits. They say the • parking lot drainage is wrong because of 2003 MTDEF requirement. And finally they say the grading plan should be delayed or stayed pending the lawsuit. I went through that thing with what I thought was a fine toothed comb and it's those seven things that I. saw in that four corners of that complaint. Here is what the evidence is going to show about those things. Too fast. You bet'cha it was. It was fast because we made it a priority. This was not a typical project because the grading plan review was taking up all my City Engineer's time and all of everybody else's time and everybody was raising unmitigated hell about it. So, the only way you could get any work done in your office was to drop everything and go directly to this permit and that was done. The reason for a two or three week delay on most projects, typical projects, is not because they take that long, it's because it takes that long to get to them. So we prioritized this project and got it out faster than most projects. Nothing wrong with that. The grading plan review was exactly the same. We had the benefit of preliminary plat approval. We had a meeting on site. We had an actual review that was not a belated process because all of this was completed fairly early because we had the benefit of the preliminary grading study. Nothing wrong or unusual or conspiratorial about having it happen rather quickly. It's just the only way our are going to get your work done in your office. The signature. Guys we new on February 22, 2000 who the owner and the agents were. That was in the application for the large scale development. It showed exactly who the owner was, Fayetteville Exchange. We • know Argus was the agent for Fayetteville Exchange. On May 12, 2000 we have an affidavit that is in your packet. The application does not require, incidently, a Planning Commission Minutes June 19, 2000 Page 17 signature. Take a look at § 169.07 that says you have to have the owner's name. Well, it's got that. It doesn't say it's got to be signed by the owner it just says you've got to know who the owner is. We knew all of that. Lot line 15 and 7. They say, and again, Igo to their appeal. Lot 7 is not clearly shown. By God, they are right. It isn't. So we went back and redid it. And we will show you lot 7 is clearly shown on a plat and show you exactly where it is. No problem. Do we have permission from the lot 7 owner to go over on his land and take some trees? Answer, yes we do. Look at your packet at 1.70. Take a look there and you have clear authority from these folks that will allow the Argus people to go ahead and take some trees out on lot 7. The April 24, 2000 minutes, incidentally, which you have in front of you, limit your consideration to lot 7 to just those trees along the edge of this property. That little ole bit right there. We are not and never have required, or are including a large scale development for lot 7 and lot 15. The evidence is going to show you is real clear that you did lop over onto lot 7 for some few little trees right there but that is the only reason that you did. And that if lot 7 comes back we are going to require a separate large scale development approval for them just like was done on lot 15. Just like what was done on lot 15. UDO § 169.08, a large scale development, as you know, was issued subject to • final grading. Take a look at your minutes of April 24, 2000. Is that unusual or odd? Well, I ask you to be the best witnesses on that. How many large scale developments do you pass with recommendations from and engineering recommendations from staff? I virtually could say that every large scale development that you pass or have passed since you have been on this commission had included a subject to clause and that is precisely what we have done. Is that a common interpretation? You bet'cha. It's been done by you, it's been done by City Staff and it's been done by City Council. And now all of a sudden, someone with another idea comes up and says, gee, that's a bad interpretation that you all have been making. That's just the wrong interpretation and we want to change your mind. Well, that's fine and I suppose if you want to do it you may certainly say that's so but, I promise you that is not the interpretation that has been given that is a good faith interpretation and it's one that we have followed for years and is in conformity, conformity with your ordinance. Odom: You have five minutes Mr. Rose. Rose: Maybe you have heard of SWPPP plan. Read paragraph 12 of your permit packet page 1.40. It requires all federal and state ADEQ and SWPPP plans to be followed. Again, nobody is ignoring these but this is a state and federal problem. • It is not a City problem and it is one that we require them to get permits for from the state and federal government. Parking lot storm drainage. There is no Planning Commission Minutes June 19, 2000 Page 18 existing federal or state requirements for storm drainage which applies to Cities. None. Zip. Zero. No mater how much they would like to make it so, it isn't true. We can not make up a new ordinance requirement which complies or makes them conform to some non existent state or federal requirements. You all remember the Richardson case that we talked about before? That is what that Richardson case says. You can't just go back and make up things as you go along. You have got to follow your ordinance that exist. The ordinance that exists says that no existing federal or state requirements are required and that's what we are following and that's what we will continue to follow. The EPA may indeed add later requirements at a different date, but they are not doing it now and there is no requirement in our ordinance for them to do it now. They want to stay permits pending appeal. It's already in court and begs the question there is nothing wrong but let's wait and see if there is or if we can't find something. Finally the landscape letter. This is the third thing. The landscape letter, there is nothing in that letter that is wrong and there is nothing alleged in the appeal that is wrong. It's a collateral double attack. In order to attack that landscape letter you have to go back to CMN Phase I back in 1998 and say that there is something wrong with that one because Argus didn't comply with it and then you have to say Argus • didn't comply with it on a large scale development so the letter that was written for that large scale development and tree preservation under it is somehow wrong. The letter is not the tree preservation. Finally, there is probably nothing wrong with it. There is nothing illegal about it but I have the funny feeling we are working backwards here. I have the funny feeling that we started out with a group of folks that decided that they were against those trees coming down and they said we are out of appeals, we are out of everything, let's go try and see if we can find something wrong with the permits. Let's go take a look at them and let's do an in-depth study and that's what they came up with. And so, I think what you are seeing is a backwards movement and not a forward movement. I think this is about trees, unfortunately, and I don't think there is anything wrong at all about those permits and we are here to present witnesses to show you that. Odom: Thank you Mr. Rose. Mr. Butt. Butt: Thank you Mr. Odom. Members of the Planning Commission, I'm Jack Butt. I represent Argus who is a Limited Liability Company representing Fayetteville Exchange which is the deed owner of this property with respect to the development. It's power of attorney has been filed with the City reflecting who owns it and who they have authorized to proceed. I think the two prior council have probably touched on every issue so I will just add a couple of thoughts about • those as we go through. Mrs. Gaston noted that she was concerned and disappointed and upset I guess that there was no pretrial discovery in this issue. If Planning Commission Minutes June 19, 2000 Page 19 there were it would have been the first time there has ever been pretrial discovery before a Planning Commission. This is not a federal court. She was disappointed that she didn't get a formal answer filed. Formal answers are not filed in Planning Commission. Somebody is disappointed with the inspector or administrator below they ask you to review it. Nobody ever files an answer here. She notes that this has moved quickly. These always do. This could have been heard last week but for the fact that we wanted to gather up all of these appeals and hear them at one time. And one of the reasons that they move quickly is that under City rules there is a stay. Argus is losing somewhere in the neighborhood of $2000.00 a day waiting for this to be resolved. These things move quickly. They are simple procedures to review usually simple administrative decisions. Another reason this is a little bit convoluted is that I think that in your experience, I know certainly in my limited experience before the Planning Commission, the people who bring these appeals are the upset applicants for the permits in the first place. They are the builders or the plumbers or the developers of the property owners that got sideways with the administrator about some issue and they need you all to sort it out, give some better rules and let them go back and get the permit the way it should be done. In this case we have two citizens who have no financial stake • whatsoever in the property except the fact that they can see the property from the public way and anticipate walking on its sidewalks when it's built coming in here and asking you to review this. Now, I think Mr. Rose did an excellent job of reviewing the person aggrieved issue. But let me suggest what the practical effect of this board finding that these people are "people aggrieved". If you find that these people are persons aggrieved and you go back to the code that means if you are doing an addition on your house, where ever in town you live, and you are not pleased with the denial of a plumbing permit, I who don't like you because you beat me at golf or your political views don't agree with mine or maybe I don't like the type of trees or garden you have in your yard, I get to appeal the decision that your plumbing permit was approved. I can appeal your building permit. I can appeal all of your contractual permits. I can appeal your landscaping permit. What they are asking you to do is to give cart blanch to every citizen in the town to appeal every permit issued in this city. I suspect there are hundreds if not thousands per year. I don't think that was contemplate when the City designed it's regulations. If you've got a dog in the fight, if you are an adjacent property owner who is entitled by ordinance to participate in a variance, that is the kind of person who has a dog in the fight. If you are the developer who's money is at stake because their standards are too high, you've got a dog in that fight. It's those people that the City recognizes as truly being aggrieved. Not everybody in the city that for whatever reason doesn't like the fact that you got a permit. I • don't think that it is proper to open the door to every time a variance comes in here that somebody across town doesn't like that person, they can come in and say • Planning Commission Minutes June 19, 2000 Page 20 I didn't like the variance, I'm appealing to this Council and everything goes on hold. So like most laws, I think there is a real practical basis to this person aggrieved idea. However, I would suggest you not dispose of this solely on the person aggrieved issue. I think that what the City Staff did was correct. My client, Argus, has as most developers, come in and said here is what I want to do. City Staff says massage it this way, turn it that way, do that, they do it, you go back and forth and back and forth until finally it came to this Planning Commission a month or so ago, two months or so ago and got approval as having met all of the standards. That was tested at City Council, it was approved and now that is in court. From Argus' standpoint, they have done what they had to do and they want to move forward. Now they have brought in here the whole issue of the Illinois watershed and clean water being a concern and so on and I guess we all do live down stream. Water is a concern to all of us but how that is articulated is not in this Planning Commission going off on some tangent trying to decide what they have got to do to save the Illinois River. What you have in the City code are specific Grading Permits that are designed to protect the water quality and if the people meet the requirements for that you have done what you are supposed to to protect the environment. They've got some pictures showing an • extraordinary flood situation out near this development within the last couple of weeks. You may have noted in the newspaper that 23 people were stranded down at Byrd's Canoe Rental which hadn't flooded in the 18 years that they had owned that and they had to be airlifted out by an Air Force helicopter. I could have probably taken a picture of any one of your yards and brought this in here showing muddy sheet runoff going through yards and say you've got to save water environment. You all aren't controlling the runoff. That was an extraordinary situation when it rains that much in that period of time you have muddy water running everywhere. I think those pictures kind of go out on a tangent. It's urged that you must have a final grading plan before you can get the final large scale development, Mr. Rose addressed that in detail and I've always understood it that way. When you issue your large scale approval there are all kinds of conditions and requirements that have to be met. There is no way that by the time you all look at this there is nothing left to do. You have to leave something to your administrators to go out, look at the site, check the elevations, make sure the hay bales are in place, make sure state and federal permits are required. You all have never ever, and you never will issue a final large scale development without conditions. This is such a case where among the conditions is getting the Grading Permit and that permit in turn has additional conditions. A preconstruction meeting so theses City Administrators can meet face to face with the people that are going to be doing it and say I want you to do this, watch out • for this, did you get your fences up right. So I think that is not an issue that is critical. I was going to go through the particular allegations that are made in this Planning Commission Minutes . June 19, 2000 Page 21 appeal and you have them before you but Mr. Rose really did that detail by detail. Most of them consist of not having a signature and if that is an issue, I have got Mr. Rankin right here and he can sign anything you want tonight if it has not already been properly signed. They are concerned about how fast this went through approval and I think City Staff probably spent more time on this project than any other project this year if not the last five years. They were probably more knowledgeable about it. They were prepared to move fast. They were eager to move fast. That doesn't presume that it was an incompetent review. The final thing is that the City Flood Damage Prevention Code requires the applicant to determine the elevations of the site. That is not in the City Flood Damage Prevention Code. I don't know where they got that from. And finally that they have to have certain plans and permits required by the Arkansas Department of Environmental Quality. Yes they do at a certain state. That is part of the Grading Permit. You can't start work till you get those things. But you have to get the Grading Permit before you go to the state. Now, you can go to the state first if you want too, but this City and it's Administrators is not going to allow them to proceed with the portions of this grading that is going to effect water quality and runoff until they have gotten the appropriate permits and that is in the conditions. • So I think what we've got is a rather convoluted appeal by some citizens who, in the sense I think it was designed, aren't aggrieved. They are unhappy about this project. They don't want this project to go forward but they don't have property adjacent or property down stream, they are not the owner, they are not the developer and that makes it kind of awkward for you all to figure out what the problem is. But I think that if you look at the appeal that has been filed and check through there, I can give you the paragraphs that I think they are trying to prove. They are trying to prove paragraph 7, 8, 9, 10, 11, and 14 thru 18. 1 don't think there is proof on those, but we'll see. The final thing is, and Mr. Odom has expressed his desire to stay away from this and I think it's appropriate, this is not a rehash of whether the large scale development had a proper tree plan in it. The tree administrator knows what her requirements are and she signed a letter saying that if you follow these things we are consistent with the tree plan that has already been approved by the Planning Commission and City Council. Those issues are in a different foram in Washington County Circuit Court and this board is really going to be rethinking a very significant decision on which you have already made once, you are going to be going back and doing that all over again, I think, without authority to open up that box to see, let's see if that tree preservation plan that we approved is really good and let's consider it all over again. Those are my comments. Thank you. I appreciate this special proceeding. It's very important to my client. I'm eager that you hear all of the information because I think that • the City Staff work, which has been extensive, my client's staff work has been extensive, will be vindicated. They have, as I've maintained throughout the • Planning Commission Minutes June 19, 2000 Page 22 process, followed the rules as best they can and as dictated to them and indeed, that has been a following of ours. Thank you. Odom: Thank you Mr. Butt. WITNESS TESTIMONY: Odom: Mrs. Gaston, you may call your first witness. Gaston: Mr. Beavers. Hello Mr. Beavers. Beavers: Hello. Gaston: I'll be brief because I imagine you may be back here with Mr. Rose. I'm going to go through the specific allegations in the appeal if you will give me a moment here. Do you have the exhibits that were part of the appeal by chance? No? Beavers: The ones handed out tonight or the ones previously fumished? • Gaston: The previous ones. Beavers: Yes. Gaston: Can you turn to attachment F please. Attachment F as in Frank. Beavers: Right, but which date? There are two or three appeals filed. Gaston: They all have the same attachments so take your pick. Beavers: Okay. Gaston: Do you see the application form? Beavers: Yes I do. Gaston: At the bottom of the form it states owner's signature and who's signature is there? Beavers: On the form which is part of your attachment is signature of Mel Milholland, Project Engineer. • Gaston: And is Mr. Milholland the owner? • Planning Commission Minutes June 19, 2000 Page 23 Beavers: Mr. Milholland is not the property owner to my knowledge and after you brought that to our attention last week or two weeks ago, whenever it was, I notified Mr. Milholland and he submitted a form with Mr. Rankin's signature which I think you have a copy of. Gaston: I don't believe that I do. Do you have a copy? Beavers: Yes. It's been in our files. Several people have gone through our files. I really thought you had a copy of it. Gaston: It's a Grading Permit form? Beavers: It's the same form with Mr. Rankin's signature I think: Gaston: I have not see this form with Mr. Rankin's signature. Beavers: Okay. It may say storm water management on it instead of grading. That's a technicality. • Gaston: Right. It does not say grading. 1's not a Grading Permit application form. Beavers: Well, you notice here that I hand wrote, "Physical Alteration of Land (Grading) on this one because over the years on some developments we've had two permits and some we had one. I couldn't find one that said Grading Permit at the particular day that Mel was there. But let me say that the ordinance doesn't say how our permits are to be. This permit application is something that was produced by Engineering. It's got all of the information there. The fact that it doesn't have grading hand written at the top, in my opinion, it's not a problem. Gaston: But it is a problem to have a legal permit application that does not have a responsible party signing the document, is that correct? Beavers: Again, we have a faxed copy of a permit signed by Mr. Rankin. A permit application. Gaston: Again, I've not seen that. Beavers: Come on, let's quit going in circles. 0 Gaston: Okay.... • Planning Commission Minutes June 19, 2000 Page 24 Beavers: Gaston: Beavers: Gaston: Beavers: Gaston It doesn't have the hand written grading on top. It's not exactly a Grading Permit application but you've got another application that has his signature on it. Yes. And if we need to, I've got a blank one here ................. So if you violated the Grading Permit you would be able to have proof that he had signed and was the responsible party? I think so, yes. Again, if that's an issue, I'm willing to correct anything that needs to be corrected. I've got a blank one with me. He said he is ready to sign it and if we need him to sign it we can do it this evening. It's not a problem. I'm not trying to trivialize this issue but it can be a problem if you are issuing permits......... Rose: I'm going to object to the attorney testifying. • Gaston: You are right. I'm sorry. I apologize Jerry. Again, the basis for your approval letter was a grading, erosion control, tree preservation plan certified by Mr. Milholland on May 26`h, is that correct? Beavers: I believe that to be true. I just want to check that date. Yes that's true. Gaston: Is this a copy of that? Beavers: I believe that to be............ Gaston: This is not part of it. Beavers: I believe that to be a copy of the plan. It appears to be. Gaston: And one of the allegations in the complaint was that the lot line was drawn incorrectly. Beavers: Yes. And again, I appreciate you pointing it out to us. We immediately contacted Mr. Milholland and he furnished a revised plan to myself, to the Planning Commissioners, I believe, that correctly shows, the red line that you have drawn • on there, that shows the part of that area to the southwest that wasn't delineated earlier as being part of lot 15. It's 15 on the east. Planning Commission Minutes June 19, 2000 Page 25 Public: Mr. Odom we can not hear please. Odom: Yes. Jim is very soft spoken and sometimes I have to ask him to ask him to approach that mike just a little bit more. Jim if you can lean into that microphone just a little. Beavers: Okay. I sure will, I'm sorry. I'll repeat if that helps. Again this was pointed out to us I think by Mrs. Gaston and appreciated anything that we need to have Mr. Milholland correct we sure want him to correct it. This is not the City of Fayetteville's plan, this is Mel Milholland's plan. We reviewed it for general compliance. If we missed something such as a property line, I sure want to get that right. You pointed that out to us, we asked Mr. Milholland to correctly show that. He added that to his plan and resubmitted. Gaston: The Grading Permit as it's called is actually a letter dated June 1, 2000. Is that correct? Beavers: Yes ma'am. • Gaston: And do you have that in front of you? • Beavers: Yes ma'am. Gaston: Would you just quickly read the first sentence? Beavers: The first sentence or item 1 of the conditions? Gaston: The first sentence in the text after Dear Sir. Beavers: The Grading plan submitted May 24 and revisions submitted May 26 have been reviewed by Engineering for general compliance and the plan is approved subject to the following specific conditions. Gaston: So this serves as the record of what is required by the applicant is that correct? Beavers: That is further explained as condition. To answer your question, yes. In here it is also a condition of the approval. Gaston: Right. It's number seven. Would you read that for us? Beavers: This letter shall serve as the "permit" and as required by the Grading Ordinance • Planning Commission Minutes June 19, 2000 Page 26 (Physical Alteration of Land) a copy shall be posted on site. Gaston: And do you still intend to have them post this letter on the site? Beavers: Yes. Gaston: And does it refer to a correct grading plan? Beavers: No, that was one of the items we were going to cover at the preconstruction letters which serve meeting. what is being permitted when the plan is Gaston: So, wouldn't this letter need to be withdrawn and reissued to refer to the appropriate plan? Beavers: No. I think that is a very minor technicality to show that lot line where the phase line happened to be. That's something that we can take care of at the preconstruction meeting. • Gaston: You've seen all the letters that have been issued. There are say, five permit letters that have been issued in this matter. Beavers: I do not know that I have seen them all. I think that Ron has shown them to me and I have had ample opportunity to see them but I don't remember them all. Let me put it like that. Gaston: I'll let you take a look at those letters. How do you tell when looking at those letters which serve as permits, exactly what is being permitted when the plan is not specifically identified? Beavers: I think that it is. In this first letter it clearly states the revised grading plan that was resubmitted September 1. Gaston: Flip through it some more. Beavers: The revised plans for the box culverts. Gaston: Undated. Beavers: It may not say when the date was, but again I know exactly where they are. I • think these plans are submitted for myself and my staff to review not for the general public to come in and try to review. • Planning Commission Minutes June 19, 2000 Page 27 Rose: I'm going to object again. Those letters have to do with the CMN projects Phase I and II is that not correct Mr. Beavers? Beavers: Yes sir. Rose: I don't know what that has to do with this particular lot 15. I haven't got a clue. Odom: Mrs. Gaston do you want to respond? Gaston: Yes. Mr. Beavers can you tell me how you can go back and determine whether permits have been complied with? Down the road this is going to be, these are ongoing projects. If in fact it is not clear which plan to which the permits refer. Beavers: Because it's very clear. Again, we sit down, we get the plans, we sit down and go over the plans with our public works inspectors before the preconstruction meetings. We have a preconstruction meeting where the contractor the engineer and the engineer's inspector are there and we go over the plan. It's very clear to us which plan. • Gaston: And what if you and the members of your staff win the lottery? To whom will it be clear? Beavers: Well, I don't think that all of us would win the lottery. It would be clear to the private engineer and his inspector and our inspectors. Again, this is their plan. We do try to look out for the adjacent property owners and protect downstream and adjacent property owners. But it is not the City of Fayetteville's plan. We have, when I say public works inspectors, that is what they are called by title, but they are observers. We rely upon the private engineers to also have inspectors for their projects. Gaston: So you don't believe it's necessary to withdraw this permit that refers to an incorrect plan and reissue the permit letter? Rose: I'm going to object to the form of the questions and I would like to object to it's relevance. Odom: Mrs. Gaston do you want to respond? Tell me how it's relevant. Gaston: Pardon? 40 Odom: Tell me how it's relevant. • Planning Commission Minutes June 19, 2000 Page 28 Gaston: Tell us how it's relevant as to whether the City believes this is an appropriate permit? Odom: Well, I think that the objection is with regard to a permit from another site. How is it relevant? Gaston: No, no. I'm referring to this particular permit. Odom: Okay. Gaston: Which refers, which incorporates and refers to a plan that Mr. Beavers has admitted contains errors. Rose: I'm going to object to that. I think the characterization that it has errors in it is all Mrs. Gaston's. It's certainly not out of the words of this witness. Odom: Mrs. Gaston I have not heard Mr. Beavers say that it has errors in it and I would ask you to rephrase your question and to keep it on point to this particular Grading • Permit. Gaston: Does the grading plan comply with requirements for lot lines? Beavers: I'm sorry I didn't hear that last part. Gaston: Does the grading plan, which is a part of this permit, comply with the requirements for lot lines? Beavers: To the best of my knowledge it does. Gaston: This plan? Beavers: Oh, by this plan? I'm talking about the approved, the final one. The revised one. You are talking about this plan? Gaston: This is the plan to which your letter refers. Rose: I'm sorry, there is no question there. Gaston: You are right. I'm just looking for an answer. • Rose: I don't know how you would ask for an answer without a question. • Planning Commission Minutes June 19, 2000 Page 29 Odom: Please keep it to the form of a question. Beavers: We've already gone over this and may have to go over it again. You pointed it out to me or your appeal did and Mr. Milholland added that very, very minor change from a phase line to a lot line. Again, that is something that I think could have been handled at the preconstruction meeting if it had been brought to our attention later. That is not the main issue here. And no, 1 do not think the Grading Permit should be revoked or postponed. Gaston: To be clear, you do not think it needs clarification? Beavers: No. It has been clarified with Mel Milholland. The plan has. Gaston: The permit letter itself, in terms of the plan to which it refers. Beavers: No. Another thing, we are talking about this lot line, and let me tell you there is no significant grading even going on in that area. I think he has some stockpiles of some soils, some topsoil over there. So, no. • Gaston: The ordinance, and I'll grab it for you, can you see this? Beavers: Yes. Gaston: That no subdivision may be finalized nor large scale development plat approved before a final grading plan has been submitted to the City Engineer and approved. Beavers: Yes. Gaston: If that had, if the ordinance had been followed in this case........... Beavers: I think the ordinance has been followed in this case. Gaston: Was the final grading plan approved before the large scale development? Beavers: You know, you are going to have to take this and read this. What does it say? No large scale development plat approval, plat approved before final grading plan. Well, we have already talked about the fact that the large scale development was approved subject to a final grading plan and other conditions. What is a large scale development plat and the approval? Is that, you know, that is not clearly • defined as Planning Commission approval. Are they talking about, there is not a final plat for a large scale development like there is a subdivision, are they talking . Planning Commission Minutes June 19, 2000 Page 30 about the acceptance of the water and the sewer? The actual final parts of the large scale which is part of the final plat? I think they are and so that approval would be Engineering's approval, not Planning Commission. Gaston: So you are saying this large scale development approval by the City on April 24, 2000 and by the City Council on May 2, 2000 is not a final approval? Beavers. It is final approval for discussion. I mean for construction. Yes it is. And that was, if you go back and look at the minutes, and I think the people should go back and look at the minutes of the April 24, 2000 meeting, that was discussed by the Planning Commission. This has been fully discussed. And if you want to go back further in history to the 1991 Planning Commission and Council meetings where the original grading ordinance was passed, it was fully discussed then and that was not their intent. I don't think that is what the ordinance says. You do not do a final grading plan before you get permission to construct your large scale. Gaston: Well, that is your interpretation........... • Beavers: Yes it is. Gaston: .........but what does the ordinance say? Beavers: Just what I said. I mean, that is my interpretation as you said. Gaston: Is one of the requirements of a grading plan that the owner's name be given on the grading plan? Beavers: Yes it is. Gaston: Is the owner's name given on this grading plan? Beavers: To the best of my knowledge it was. Gaston: Will you show it to me please? Beavers: In the title block it says Argus Properties. Gaston: And is Argus Properties the owner of this land? • Beavers: I have been told that they are the legal agent for the owner of the property. • Planning Commission Minutes June 19, 2000 Page 31 Gaston: The ordinance requires that the owner's name be given on the plan. Rose: Again I'm going to have to object because there is no question. If there is a question, let's ask it and let him answer it. Gaston: Does the ............... Beavers: If you'll, I believe that to be true but if you will give me a second here I can turn to the ordinance and tell you. § 169.07 A 1 site plan must show property lines, names of owner and developer and adjacent property owners. When the plan was submitted it showed Argus Properties to be the owner. I have since been told that Fayetteville Exchange is the owner but Argus has the authority to act as their agent. Again, to me that's a very minor technicality. Maybe I shouldn't be expressing my opinion on those. If you want to stick to the facts, I'm sure Mr. Milholland can change that title block just like he changed the lot lines. Gaston: Do you have your ordinance open? • Beavers: Yes I do. Gaston: Will you look at §169.07 please? Beavers: Okay. Gaston: A 4 Land areas to be disturbed shall be ......... Odom: Colette could you pull your microphone up please? Gaston: I'm sorry. Beavers: Okay? Gaston: It says, would you like to read that for us please? Beavers: § 169.07 A 4 Identify land to be disturbed. Land areas to be disturbed (graded, cut, filled, or cleared) shall be clearly identified. Gaston: Are they clearly identified? • Beavers: Yes. They are very clearly identified. Again, that goes back to who is reviewing these plans. No, maybe not everybody can review these plans but it is clearly • Planning Commission Minutes June 19, 2000 Page 32 identified for an engineer, architect, or landscape architect can review this and clearly see what is being disturbed by the contours. Dash lines are existing and solid lines are the proposed. Gaston: §169.07 A 6 are cuts and fills including the height and slope delineated on the plan? for proposed streets and drainage ways. Beavers: Yes they are. Gaston: Will you show us where they are please? Beavers: If you look at the contours you can see for yourself. The contours that are closer together that are at the 3-1 slope are labeled. Gaston: §169.07 A 11 requires profiles and cross sections for proposed streets and drainage ways. Where is that on the plan? Beavers: I believe you are reading from an outdated ordinance. Is that the corrections or is • that the outdated one? Gaston: I believe that's the amended consolidated ordinance. Beavers: No, that doesn't sound right. Gaston: I'm taking it from the packet, the materials that were distributed at the Planning Commission agenda session on Friday. Beavers: Could be. I just don't remember it that way. Let me look. No, that has been amended. It says profiles and cross sections of streets, drainage systems and underground utilities, if they are necessary to clarify the grading plan in terms of potential erosion or runoff or if the grading on the site has the potential of disturbing the utility line. That was changed August 18, 1998. Those profiles and cross sections do nothing to enhance or to take away from this particular grading plan. This is in the ordinance more for the City's protection than for anybody else's so that they don't cut over our water and sewer lines. Gaston: May I see your ordinance because it doesn't match up with mine. Beavers: Again, we have talked about this before and it's unfortunate in a way, but that is • how it is. We still have the old ordinance that is in the UDO and we have the changes. Someday we will have a codified version. • Planning Commission Minutes June 19, 2000 Page 33 Gaston: I'm working from the ordinance that was distributed at the Planning Commission agenda session. It's page 1.61. Rose: I'm working from the appeal that was filed last Thursday, I believe, and there is no mention of that. There is no mention of any deficiency in the grading plan that has to do with streets and drainage ways. There is no mention of any deficiency as to any of these cuts and fills. The only deficiency that is mentioned in the grading plan of the specifics of it has to do with ownership. I don't see one single word to do with any of that. Gaston: May I respond? Odom: Yes. Gaston: The appeal stated that the application and the plan were inadequate and incomplete. These are just further examples of the incompleteness. Odom: You can proceed. • Gaston: Under the storm water management, drainage, and erosion control ordinance, a schedule for implementation of erosion and sedimentation controls including provisions for maintenance and disposition of temporary measures is required. Are any provided on this plan? Beavers: Yes. Erosion control is shown on this plan by Mel Milholland. Gaston: The schedule? Beavers: No. If you will look in the grading ordinance it talks about the schedule. That is a non plan item and if you look at my approval I say the non plan items shall be further discussed at the preconstruction meeting. Gaston: But doesn't § 170.05 B 6 require this schedule to be provided? Beavers: We are discussing the Grading Permit, not the storm water permit § 169. Gaston: And in this case you have issued the Grading Permit without this storm water Permit. The Grading Permit needs to address erosion control measures right? • Beavers: Yes and it does. • Planning Commission Minutes June 19, 2000 Page 34 Gaston: So wouldn't it be prudent to take into account the requirement for a schedule that is set forth in the storm water section of the ordinance? Beavers: Yes, well, I apologize, I guess I wasn't clear. That is a requirement of the grading ordinance, that is §169.07 B 1, and we will discuss that at the preconstruction meeting as clearly is stated in the letter of approval. Gaston: But it's not on the plan? Beavers: It's not a plan requirement. If you read the ordinance you will see that. Gaston: It's just a requirement of the overlapping storm water ordinance? Beavers: No ma'am. If you will read § 169.07 (B)........... Gaston: When you look at the drainage criteria manual, it addresses erosion and sediment control, do you believe that's applicable to what the activities that are taking place? • Beavers: I'm sorry, what did you say? Gaston: The drainage criteria manual, which addresses erosion and sediment control, should that be applicable when you are issuing a permit for grading? Beavers: The section in the drainage manual and erosion control is a good resource, but no, it's not necessarily a requirement. There are other accepted methods of erosion control. If that was your question. Gaston: The following things are discussed in that manual. Temporary ponds, such as the sediment pond shown on the east side of the parking lot. Is there any detail provided for that pond? Beavers: Again, the drainage manual is an excellent resource and I hope all of the consultants use it whenever they can. That is not a requirement of the grading ordinance. But to answer your specific question, Mel does show a small sediment pond on this project and that is another item we will discuss at the preconstruction meeting on whether that is going to be adequate. He believes it to be and I believe it to be but we want to give him a chance to consult with his sub consultant, EGIS. Again, that was in the approval letter. • Gaston: So, when you approve this plan though, you didn't know if the, because there is • Planning Commission Minutes June 19, 2000 Page 35 not a sufficient level of detail, that what is provided will be adequate to protect against erosion? Beavers: No, I don't believe I said that. If I did, that's not what I meant. We know that there are wetlands and mitigated areas, indeed, restricted areas and we want, Mr. Milholland has hired a very fine firm, EGIS out of Bentonville, to perform that work for him and we are just reminding him before any runoff is discharged into those areas, we want to hear the opinion from EGIS. Again, that is in the approval letter. That's, I'm sorry, I'm not looking at the approval letter. Gaston: Well, let me ask you about another possibility for this plan, there are inlets to underground pipe systems shown on the plan, is that correct? Beavers: Yes. Gaston: But there is no protection of those inlets is there? Beavers: I think there is a, there may be a standard detail that addresses that. • Gaston: Where is that? Beavers: Well, you are right. There is not a standard detail or just specific detail on the inlet protections, but they are typically made out of a combination of silt fence and straw bales or silt fence and wire or silt fence and extra wooden stakes. And you have silt fence and straw bale details on here. I don't think that that's an issue with the City. Gaston: Wouldn't that be advisable to have those protections on the inlet pipes? Beavers: I think you will have. Gaston: Or inlets to the underground pipes. You think you'll have it but it's not shown on the plan, is that correct? Beavers: It may not be shown to the detail that you would like for it to be on the plans. Gaston: It's not shown, is it shown at all on the plans? Beavers: There is no specific detail of inlet protection on the plans but there are general 0 erosion control details on the plan. • Planning Commission Minutes June 19, 2000 Page 36 Odom: We are having trouble hearing you again, so pull that microphone closer to you again. Beavers: Okay. Gaston: Are, with this plan, are subsurface drainage sizes shown? Beavers: The only subsurface drainage shown is the proposed or potential improvements for the drainage. Gaston: So when you look at §169.07 (A) (13) which requires provisions for collecting and discharging surface water, those provisions are not shown on the plan? Beavers: Which one was that again? Gaston: §169.07 (A) (13) requires provisions for collecting and discharging surface water. Beavers: I think they are shown. They aren't show, I mean they are shown. He's got his • parking lot drainage and some other drainage. Gaston: But the drainage sizes are not shown. Beavers: Correct. Final sizes are not shown. Gaston: And the sediment pond and the discharge from there are not detailed? Beavers: I think that it's sufficient to be built. Gaston: And the rip -rap energy dissipation? Is not detailed? Beavers: Again this is a scaled engineered drawing that shows the rip -rap there. I see your opinion. I don't agree with it. Gaston: Are there any provisions on this plan for the time frame in which stabilization should be accomplished after construction activity? Beavers: I think there is but I'll have to look to be sure. I think there is in the notes here. It's going to take me a minute to read through the notes to find it, but I want to remember that is covered in the notes. I just heard that it's number 5. It • references § 169.06 (F) (2). And again, these are items that typically we discuss further at the preconstruction meeting to remind the contractor and the engineer. • Planning Commission Minutes June 19, 2000 Page 37 Gaston: Do you know whether the schedule given this plan is in compliance with the Arkansas general storm water Permit for construction activities? Beavers: You are talking about a permit issued by the state. Gaston: Right. Beavers: That is something that the state polices. The City does not police that. Are you talking about the overall site? Are you talking about the one they have yet to acquire? Gaston: The one that they do not yet have, but if they were to come under the general construction. Beavers: I don't understand the question. Gaston: Are you aware that the general, Arkansas general storm water construction Permit requires the stabilization be accomplished within 14 days after construction • activity and a portion of the site as temporarily or permanently ceased? Beavers: I don't know if I'm aware of that or not. Again, there are many items required on the SWPPP which are not required by the City. Again, that is a state requirement not a City requirement. We don't police that. That is not our ordinance and I'm not............ Gaston: So it's not your concern if the plan that you approve is in violation of the state permit? Beavers: Well, that's a strange question. You ask me if I'm concerned if they violate state law, well of course I am. But again, our office does not enforce state law. We don't enforce the storm water pollution prevention plan, ADEQ does. Gaston: What is the status of the storm water Permit, the, the storm water, the, well I'll call it the drainage Permit not to be confused with the state storm water Permit, what is the status of that for this site? Beavers: To the best of my knowledge, and we could ask Ron if anything has changed to date, to the best of my knowledge, they have yet to submit their drainage calculations for this specific site. Gaston: So you can not yet begin review under the stone water ordinance? Planning Commission Minutes June 19, 2000 Page 38 Beavers: Correct. Gaston: Okay. Thank you. Odom: Mr. Rose. Rose: Mr. Beavers would it assist you if I got out what I used on my opening statements so that we could go over some of these points one by one? Beavers: Yes sir. Rose: Let's give it a shot. Now first of all, this plan that we have up here that Mrs. Gaston has shown you, is this the plan that was submitted and that you have now revised to show what Argus Properties has submitted by way of grading plan? Beavers: No sir. The City of Fayetteville did not revise them. Mel Milholland did. Rose: Thank you. But you asked them to provide them? • Beavers: Yes sir. Rose: Do you have a copy of that? Beavers: Yes sir. Rose: All right. Let's put it that way. Is this a true and correct copy of the latest plan that you have got? Beavers: Yes sir. Rose: We are going to ask this to be admitted as exhibit 1 for the, I don't know what you call it, staff how's that. Staff 1. Let's talk about that a little bit now. Odom: Write that on there somewhere Jerry. Rose: Sure. Let's talk about ownership. Ownership on this one says, I look down here and the developer is Argus Properties, right? Beavers: Yes sir. • Rose: Let's see if we can figure out who Argus Properties is. Let's go back first of all is r 1 LJ • Planning Commission Minutes June 19, 2000 Page 39 and let me ask you to look at this document which reports to be a large scale development plan application. Beavers: Yes sir. Rose: Is it? Beavers: Yes sir. Rose: Is that the one on this project we are talking about? Beavers: Yes sir. Rose: Okay. We are going to enter this, is that a true and correct copy of it? Beavers: To the best of my knowledge, yes sir. Rose: Let's call that Staff 2 then. Is that okay? Beavers: Yes sir. Rose: W are going to publish this to the Planning Commission in just a second but let's go through the cast of characters here. Who is the applicant on that? Beavers: The applicant/representative was Guy Washburn. Rose: Who's he? Beavers: He is a professional engineer employed by Milholland Company. Rose: Employed by Milholland. All right. Underneath here is a property owner's authorized agent. It lists, looks like, an agent and an owner there. Can you tell me who the agent is? Beavers: Kirk Rankin. Rose: All right, to whom? Beavers: Fayetteville Exchange, LLC. Rose: Who is listed as the owner? In fact Kirk Rankin is..... G r� L • Planning Commission Minutes June 19, 2000 Page 40 Beavers: I may have jumped ahead and went down one. Rose: Kirk Rankin looks, reports to sign for Argus Properties. Is that correct? Beavers: Yes sir. Rose: Okay. Beavers: Let me tell you this is a Planning document and it's taking me some time to read it. It's not something we normally see. Rose: And the owner? Beavers: The owner is listed as Fayetteville Exchange, LLC. Rose: I'm going to publish this to the Planning Commission. Now the reason why you've got a Grading Permit is because you've got a large scale development permit, right? You've got to have the one to get the other? Beavers: Yes sir. Rose: Large scale development's first? Beavers: Yes. That gives you your approval to begin your final plans for your construction. Rose: So there is no question from this who the owner of this property is that we are talking about here is there? Beavers: No sir. Rose: Now, let's do a little more. Let me ask you to look at this document which we are going to mark as Staff 3 which reports to be a letter from Fayetteville Exchange saying it's okay for Argus Properties to act as my agent. Are you familiar with that document? Beavers: Yes sir. Rose: And does it look like a true and correct copy? Beavers: Yes sir. Planning Commission Minutes June 19, 2000 Page 41 Rose: All right, we are going to publish that. So now we know who the owner of the property is and we know who the agent for the property is don't we? Beavers: Yes sir. Rose: Any doubt in your mind? Beavers: No sir. Rose: Any doubt in your mind when you were dealing with the plan up here? Excuse me, with the grading plan? Beavers: At the time the plan was submitted I thought it was Argus but I since learned that it is Fayetteville Exchange. Yes sir. Rose: After looking at similar documents to these? Beavers: Yes sir. • Rose: Now I believe your testimony is also that lot 7 was not shown on this original, what do you call it, plat that was filed? Grading plan I guess? Beavers: Grading plan, yes sir. Rose: Grading plan was filed it wasn't shown, right? Beavers: I would have to look at mine to see if it was not shown at all. It was not shown accurately. Rose: Accurately. So, what did you do? Beavers: We requested that Mr. Milholland correct the plan. Rose: And this is what he submitted as a corrected plan? Beavers: Yes sir. Rose: Does that clearly show lot 7 on here? Beavers: Yes sir. Planning Commission Minutes June 19, 2000 Page 42 Rose: I don't know whether you can see it or now, but I've got it going down this way, it goes out this way, goes in this way. It says proposed outlot area 2 and all that's, that's lot 7 is it not? Beavers: Yes sir. Rose: So now you've got the requirement in the ordinance that it is showing lot 7 and lot 15, is that right? Beavers: Yes. Rose: Okay. Let's get the Grading Permit in evidence. We are going to mark this Staff exhibit 4. Let me ask you to look at that document and see if you recognize it. Beavers: Yes sir. This is the letter I wrote June I, 2000 to Mr. Mel Milholland. Rose: And this along with your plan and along with your specifications here, there's some meetings mentioned and stuff, represents the grading plan for the project? • Beavers: Yes sir. Rose: Let me go ahead and publish this to you, but I think you've already got it in that packet that was given to you on Friday. I forget now what it is but it's in there. Just in case you want to follow along in your hymnals without looking at that thing that is being passed by. But it's there. Now Mrs. Gaston showed you this §169.08. For what it's worth, let me object right now to you considering §169.08 because in order to get to § 169.08 you have to find that your large scale development that you approved is no good under this ordinance. Okay. This is what is on appeal. This is what was appealed to the City Council. This is what was argued to the City Council. This is what is in the lawsuit that is before the Circuit Court. This is what it's all about gentlemen. They do not believe that this allows an issuance of a large scale development without having a grading plan first. Odom: Mr. Rose, what's your question? Rose: Okay. I just want objectives. Have an objective. Odom: Okay. • Rose: I want to go forward. Let me ask you real straight forwardly, you are the one • • is Planning Commission Minutes June 19, 2000 Page 43 charged with interpreting this ordinance are you not? Beavers: Yes sir. Rose: The grading plan? Beavers: Yes sir. Rose: How do you interpret that? Let's go over that one more time. How do you interpret that Mr. Beavers? Beavers: There are many, or not many but a few facets here. The first being that the Subdivision approval or the large scale development approval by the Planning Commission is conditioned upon many items one of which includes a finale detailed grading plan approved by the City. Rose: Stop right there. Where is that in that permit that we marked as exhibit 5? What paragraph is that in? Well, maybe not, let's go forward. Gaston: Chairman Odom, may I get a copy of the exhibit please? Odom: Uh, it's the only one I have. You, it's marked as exhibit something in one of your appeals. It is the grading plan for Steele Crossing. No mystery. Gaston: Okay. Rose: So in the large scale development there is a provision under which your grading, it is contingent upon your grading plan being approved right? Beavers: Yes sir. Rose: Anything strange or unusual about that? Beavers: No sir. That's, since 1991 and again I reference the minutes of the Planning Commission and City Council where they came up with the grading ordinance. That's how......... Rose: It has been consistently interpreted that way? Beavers: Yes sir. • Planning Commission Minutes June 19, 2000 Page 44 Rose: By these folks as well? • n U Beavers: Yes sir. Rose: This is not the only subject to, incidently, that is listed on the large scale development approval is it? Beavers: No sir. Rose: There are others that are listed by staff as you are also subject to. Is that correct? Beavers: Yes sir. Rose: Okay. Are you violating this ordinance provision by doing it that way? Beavers: No sir. Rose: Let's talk a little bit about the ADEQ and SWPPP requirements. Does your grading plan for Steele Crossing address those? Beavers: Yes sir. Rose: Where does it address it? Beavers: The grading plan approval letter permit has several conditions of approval and it's taking me a second to find it. There are three full pages of conditions of approval. Number 12. Rose: Let me draw your attention to paragraph 12. Beavers: Number 12 is where that is covered. One of the conditions of approval is where applicable compliance with all state and or federal requirements which may include the formulation of the storm water pollution prevention plan, filing the notice of intent and be concerns for wildlife (the nesting hawk). I recommend that you speak with Mark Bradley at ADEQ (501-862-0628) to see if the individual large scale grading plan is covered under the overall CMN SWPPP of if a separate SWPPP is required. Please furnish this information at the preconstruction meeting. And that is a state requirement not a city, but we do notify the engineers that they need to fulfil this requirement. And again, we discuss it at the preconstruction meeting. • Planning Commission Minutes June 19, 2000 Page 45 Rose: When will the preconstruction meeting be held and what is it's purpose? Beavers: The preconstruction meeting will be held whenever the consulting engineer requests it or shortly there after. It normally takes us a day or two to schedule our inspectors to be able to make the meetings because we are spread pretty thin. The purpose is many things, but first we go over items that may need further clarification such as the storm water pollution prevention plan or the time schedule. We go over this letter of approval. We go over the specific requirements. We want to make sure they understand how important the erosion control is, how important the tree protection fencing is. It's to get our public works inspector and the developer's engineer and contractor together, and hopefully the engineer's inspector, to get them together to see what questions they have on the plan. They often have great questions that neither the designer nor the reviewer has covered. The contractors are very knowledgeable. Rose: I look at paragraph 9 of your letter. It says no grading may start prior to a preconstruction meeting at the City of Fayetteville. In addition to the City and Milholland, representatives of the contractor must attend this meeting. You may • begin the installation of tree protection fencing and erosion control prior to the preconstruction meeting. After these two items are installed the City and the private engineer shall inspect the installations. Now Mrs. Gaston asked you a number of questions regarding the adequacy of your plan, grading plan up here, regarding erosion control and different methods by which erosion control should be implemented as a result of this plan, did she not? Beavers: Yes sir. Rose: Are those the things that you go out and look for at your preconstruction meeting and inspect to see whether or not they are done correctly or are going to be done correctly? Beavers: Yes sir. Rose: And is that something unusual, again, to be done? Beavers: No sir. Rose: Why is it not unusual? • Beavers: Well, it makes common sense first of all. • Planning Commission Minutes June 19, 2000 Page 46 Rose: Thank you. That's what I'm looking for. Describe that common sense to those of us who are not engineers who maybe don't have that same common sense that you do. Beavers: And again the contractors are a very good resource. The designer and the reviewer don't always hit everything although we try. We go out in the field and we see things. It's a good idea. Rose: Let's see if I've got anything else. I think we can take care of this without having him come back up here again. Did you do this plan too quickly? Beavers: No sir. Rose: Did you do it pretty fast? Beavers: Yes sir. Rose: How come you did it fast? • Beavers: Because this project has consumed our office and it kept us from doing many good works for,the citizens of Fayetteville including intersections and trails and other projects. Rose: This I take it is not a typical grading plan for approval then because of what you just mentioned? Beavers: The plan itself is pretty typical. It's the whole atmosphere around it that's not typical. The people coming into our office constantly digging through our files. It's been very disruptive. Rose: Did you have a preliminary grading plan prior to the final grading plan that you've approved? Beavers: Yes sir. And if you look in the ordinance, the preliminary grading plan contains many, many of the items that are on the final. It's when you get to the final there's only, and I'd have to look to be specific, 4, 5, or 6 items added to the preliminary plan. Rose: Could you point out to the Planning Commission where that is in the ordinance? 0 think, well, see if you can point it out to them there. • Planning Commission Minutes June 19, 2000 Page 47 Beavers: Okay. Rose: That allows you to do that. Beavers: § 169.07 is the grading plan specifications. Rose: (A) talks about grading plan specs, what is column (B) there talk about? Beavers: Preliminary Grading Plan. The preliminary grading plan shall include all of the above items except for 5, 7, 11, 13, and 14. And then it goes on to state, there's a list of things that can be in text rather than on the plan and those are the items that we discussed previously, such as a schedule, that we discuss at the preconstruction meeting. Rose: After you received the application and the grading plan from Mr. Milholland did you make any site visits? Beavers: Yes sir. • Rose: How many? Beavers: One. Rose: Who was present? Beavers: Mr. Melvin Milholland, Kim Hesse, Charles Venable, myself. Rose: What was discussed? Beavers: Tree preservation, tree removal. Rose: Any other items on the plan, the grading plan? Beavers: We discussed erosion control, I think, briefly. I don't remember discussing very much of the grading because, again, the plan is pretty typical or pretty simple. Rose: Jim, can you describe to me in layman's terms what a grading plan is? What are you doing here? • Beavers: It's a drawing to indicate the existing contours or topography and the proposed contours and topography. • Planning Commission Minutes June 19, 2000 Page 48 Rose: Does it deal with building permits? Beavers: No sir, not directly. Rose: Does it allow them to actually put asphalt down on the parking lots? Beavers: Not before we check the drainage caps. So this plan, by itself, no sir. Rose: Would not do that. It's not intended to? Beavers: No sir. Rose: Let's talk a little bit about that storm water SWPPP permits and the 2003 NPDES permit. I noticed that in Mrs. Gaston's appeal she says you should take into account those things and that the 2003 NPDES permit likely will contain monitoring. Do you know if that is true or false? Beavers: I've attended a seminar by the EPA, a three day seminar, on the proposed • regulations. I've attended a one day seminar by the American Public Works Association and I've attended a half day seminar by ADEQ. Monitoring is not a requirement. It may be added. We don't know but it's not in the law as published as explained to me at these seminars. Rose: It would take a crystal ball to do that wouldn't it? Beavers: Yes sir. Rose: That's all I've got. Odom: Mr. Butt, do you have any questions? Butt: Mr. Beavers, was this permit issued consistent with the City of Fayetteville ordinances? Beavers: Yes sir. Butt: Was it issued consistent with your practice in issuing prior Grading Permits? Beavers: Yes sir. • Butt: Is it your opinion that it's proper in all respects? • Planning Commission Minutes June 19, 2000 Page 49 Beavers: Yes sir. Odom: Now that man knows how to ask questions. Mrs. Gaston you have the opportunity to cross examine. Gaston: Were there errors and omissions in the plan as submitted? Beavers: There were, as we have previously discussed and has been pointed out, the lot line, a very minor piece of the plan, in my opinion, was incorrectly shown and has since been corrected. Gaston: And didn't you testify earlier that there were a number of other measures that were required by the ordinance, this specific criteria that we went through, that were omitted from this plan? Beavers: I don't remember testifying that there were many things omitted. If someone has a copy of what I said. • Gaston: Didn't you say that the profiles and cross sections for street and drainage were not, were omitted. That the provisions for collecting and discharge of surface waters didn't show the subsurface drainage sizes or detail the sediment pond or that discharge. Beavers: I don't recall that to be my precise testimony, no. What I recall saying is the underground drainage systems are show. The exact sizes are not shown and don't need to be shown at this time. We will review that when we review the drainage calculations. The rip -rap and the sediment pond are shown and it's a scaled drawing. We have asked EGIS, we've asked Mel Milholland Company to ask EGIS to see if they have any further comments on the sediment pond. As far as the profiles, I quoted to you from the ordinance where that's not required. It's not a requirement. Gaston: Well, the ordinance that I have says that it is and the ordinance that the City handed out says that it is. Rose: I'm going to object again. Already testified. Odom: All right. • Gaston: Was there any protection of inlets to the underground pipe system? • Planning Commission Minutes June 19, 2000 Page 50 Beavers: I'm sorry? Gaston: Protection of inlets to the underground pipe system, those were missing, that's missing right? Beavers: As previously discussed there are some general details of erosion control and we are going to have a site visit and we are going to further discuss that at the preconstruction meeting. And I would expect, but again it's a state requirement but I would expect that to be on their SWPPP, which again is more stringent than the City's requirements. Gaston: There are a number of details that are missing but you are going to discuss those in the preconstruction meeting so it's not important if they are included? Beavers: I don't know that there are a number of details missing. Gaston: The ones that I just specified. • Beavers: The only one I heard you say was silt fence or hay bales or sand bags or some other method around inlets and they have a general detail which could probably be stretched to cover those inlets. Gaston: The permit letter that you issued, again I'm going back to the fact that we have a letter that serves as a permit. It refers to a May 26i1 plan. Beavers: Yes. Gaston: And you have acknowledged that there are errors in that plan. Beavers: The lot line, yes. Gaston: Among others. There is a provision in the ordinance on enforcement, Chapter 153. Are you familiar with that? Beavers: Not without reading it. I've read it before but I don't remember it. Gaston: Well, I'm not going to ask you, Jim, I'm, Mr. Beavers I'm not going to ask you specifics about that, but there is the possibility for enforcement when there are violations of ordinances and permits, is that correct? • Beavers: To the best of my remembrance it is, but again I have not read that section in a Planning Commission Minutes June 19, 2000 Page 51 while. Gaston: But in order to know what to enforce you have to have the specifics set forth in the permit. Wouldn't that be correct? Beavers: And I think they are. I really, I know you are trying to make a technical point here but something this small as whether or not the general erosion control detail can be stretched to cover the inlets, I think that's something that you should trust the developers, engineer's inspector and the City's inspectors to see that that happens. Gaston: I just want to make sure that I understand you. You're saying that the large scale development approval that was given to Steele Crossing is conditional and not final? Beavers: The, I think it was April 24, 2000, but if you will read the minutes from April 24, 2000 meeting you will see that there are either 12 or 14 conditions of approval. • Gaston: And it's your understanding of the way this works then with this ordinance about having a final grading plan first that, that is not necessary because the large scale development approval is not final it's just conditional? Beavers: The large scale is, approval is final. That is what allows them to go to their construction plans. The fact that this has no large scale development or subdivision plat may be finalized until there is a final. I think that is a mixing of the terms. Gaston: Thank you. Odom: That's all you had Mrs. Gaston? Gaston: No, actually I do have one other question. I couldn't find my piece of paper. I just want to make sure I understand you, Mr. Beavers. You say you issued the grading plan so quickly because concerned citizens were overwhelming your office? Beavers: I'm saying that was one of the items. I'm saying this whole project has. Gaston: So, those people coming in instead of slowing things down that sped things up? • Beavers: I guess I don't understand your question. • Planning Commission Minutes June 19, 2000 Page 52 Gaston: Well, I'm trying to understand your statement. I'm trying to understand what you said. You said it was the citizens who sped this project along ahead of the others. Beavers: No, I think I said that was one of several things. I don't think I specifically said that. We would have to see the minutes. Gaston: But you did say that this project was sped ahead along, in front of others? Beavers: Yes. It was definitely given a priority. You know, it was in Ron's stack to be reviewed and I chose to review it for a lot of reasons. Ron is an excellent engineer and would probably have done a much better job on this than me. But it's really disruptive to our office. Ron has other things to do. You know, I don't want, I mean, that is his job, but I mean, we had many, many projects in. Gaston: Because of the citizens, not because of the efforts of the developers or some in the city, this was put ahead of other projects? Beavers: I'm not saying it's because of the citizens I'm saying there are many, many things • here. The whole atmosphere. I just wanted .............. Gaston: But it was put ahead of the rest of the applications? Beavers: It was put ahead of several other applications. Gaston: Thank you. Odom: Any further? Mr. Butt? Jim you may step down. Beavers: Thanks. Odom: You're welcome. Thank you for the colorful commentary. Colene, you may call your next witness. Gaston: Sara Edwards please. Odom: Mrs. Edwards would you please come up. While she is getting her notes and going up there, why don't you just for the record you tell who you are and what you do. • Edwards: My name is Sara Edwards. I'm the Development Coordinator for the City of Fayetteville and also the Floodplain Administrator. • Planning Commission Minutes June 19, 2000 Page 53 Odom: Thank you. Gaston: Hi Mrs. Edwards. Do you happen to have a copy of the appeal that was filed in the attachments in front of you? Edwards: Yes I do. Gaston: Also that was provided at the agenda session. If you will turn to attachment B. Odom: Attachment B is listed as page 1. 19, is that correct Colene? Gaston: I think it's 1.20. Yes, the attachment cover sheet and the application for the Floodplain Development Permit is page 1.20. Under the application were base flood elevations provided? Edwards: Were base elevations..... Gaston: Base flood elevations provided? • Edwards: No they were not. Gaston: Were specific increases to the base flood elevations due to the proposed development provided? Edwards: Specific increases? Gaston: Yes. Edwards: No. Gaston: Do you have your flood damage prevention code by any chance? I seem to have lost mine in the mess of papers. Edwards: Actually no, I do not. Gaston: Actually, it may be part of this that you submitted. Paragraph 3b. Will you read that for me please? Edwards: When base flood elevation data has not been provided in compliance with section • (F) (2), the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state or other • Planning Commission Minutes June 19, 2000 Page 54 C1 J • source, in order to administer this section. Any such information shall be submitted to the Council for adoption. Gaston: Did you do that? Edwards: There was no other information available. Gaston: There was not information in Mr. Hecox analyses? Edwards: Not with regard to the base flood elevation. Gaston: Did you. Edwards: And that is not federal, state available data ............. Gaston: It's not other ................. Edwards: .........that has not been submitted. Gaston: It's not an other source? Did you review the modeling for Mr. Hecox's letter? Edwards: No 1 did not. Gaston: Based on his letter is it possible for the City to evaluate the impact of the proposed development on the culvert structure at Shiloh or the Fulbright Expressway? Edwards: The zone A that is addressed in his letter ends before the boxed culverts and before Fulbright Expressway so his letter did not address that and we did not evaluate the impact on that. Gaston: But he did not quantify the rise in the base flood elevation. He only said it would be less than one foot is that correct? Edwards: Yes. Gaston: So from that information you are not able to assess how close to the 12 inches it is? The rise might be? Edwards: Correct. • Planning Commission Minutes June 19, 2000 Page 55 Gaston: And I'm going to show you, you will see on this site map that there are, will you describe which lots are directly downstream and across stream from lot 15? Edwards: Fourteen and thirteen. • • Gaston: I'm sorry? Edwards: Lots 14 and 13. Gaston: And 16 is the opposite. Edwards: Across from, yes. Gaston: Without knowing the extent of the expected rise in the base flood elevation, it's not possible to determine what future impact that might have on developments in lot 16, 14, or 13 is it? Edwards: I'm sorry, what is your question? Gaston: Is it possible to determine the potential impact of developments on lot 16, 14, and 13 without knowing now exactly how much of the 12 foot availability is being taken up by this proposed development. Twelve inch, I'm sorry. Edwards: I believe that Mr. Hecox's letter took into account the entire CMN park development when he figured his coefficients for the rise. Gaston: In a post developed state? Edwards: Yes. Gaston: Could you tell me where that is in the letter please? Edwards: It's in the second paragraph. Odom: Where are you Sara? What are you looking at? Edwards: Page 1.21. Odom: Thank you. Edwards: Second paragraph five lines down. Runoff coefficients of 0.35 for pre -developed • Planning Commission Minutes June 19, 2000 Page 56 and 0.85 for post -developed onsite conditions are used as presented in the Drainage Study for Onsite Improvements, CMN Business Park 11, Phases I and II. Gaston: And taking into account, though, he said that for this development it would not exceed the 12 inches but he does not say how much. Edwards: I'm sorry, what was your question? Gaston: Mr. Hecox's conclusion is simply that for this development, at Steele Crossing. Edwards: I believe he is using coefficients for the entire CMN Business Park development. Gaston: But given, there is a lack of detail in this analysis and from it you can not determine exactly the extent of the rise other than it's less than one foot, is that correct? Edwards: Correct. • Gaston: Thank you. Odom: Mr. Rose. Rose: Sara would it help you if I use some of those same charts that I used at the start of my opening statement to assist you? Edwards: No, that's okay. Rose: It's okay. All right. Let's talk a little bit. You are the Floodplain Administrator. Edwards: Yes sir. Rose: How long have you been that? Edwards: Approximately six months. Rose: What training have you had for it? Edwards: I went to a week long course put on by FEMA regarding floodplain management. • Rose: Did you graduate that course? • Planning Commission Minutes June 19, 2000 Page 57 Edwards: Yes. Rose: These folks in their packet have your graduation certificate I believe. Is that correct: Edwards: That is actually the certificate for the test I passed following that course making me a certified Floodplain manager in the state of Arkansas as well as nationally accredited. Rose: I've got to brag on you, how did you rank among all the folks who took that Sara? Edwards: I got the highest percentage. Rose: Thank you. The flood damage prevention, what is it, a permit that you issue, why do you issue that? Edwards: In order to manage our floodplain. • Rose: Where is it required that you do that? Edwards: It is required in our flood damage prevention code. Rose: And that is referred to in our ordinances and adopted by our ordinance? Edwards: Yes it is. Rose: I think you have already got it but let's go ahead and make this staff exhibit 5, I think. This is the flood damage prevention code. I think that the Planning Commission has it but is that it? Edwards: Yes it is and no we did not provide that to them in it's entirety. Rose: So they just have part of it? Edwards: Yes. Rose: I'll publish this to you in a moment. Let's take it by the numbers here in the appeal. Mrs. Gaston says that you did not get the correct signatures on it and she offers as proof of that, let me ask you to look at her attachment B which is a • Floodplain Development Permit application. One signed by Mel Milholland and the next day later one signed by Kirk Rankin as agent for Fayetteville Exchange, • • Planning Commission Minutes June 19, 2000 Page 58 LLC. Do you recognize those? Edwards: Yes I do. Rose: Why were those two issued? Edwards: The first one was issued upon request by the applicant in my mind at that time, Mel Milholland. He did at a later date offer the second one with Kirk Rankin's signature and I did not request that. Rose: As agent for the owner? Edwards: Yes. Rose: All right, let's go to Mr. Hecox's letter. Well, first of all, let's talk a little bit about the Floodplain damage prevention code and the section that the Planning Commission has which is, it says page 12 at the bottom. I'm sorry I don't have your packet. Odom: Page 1.51. Rose: Page 1.51. Under that little iv) there, little 4, it says the proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined. Now let's stop right there. Have base flood elevations been determined on this project? Edwards: No they have not. Rose: No they have not. Nowhere to you knowledge have they been? Edwards: For this site, no. Rose: But, let's go on and read. It says, but the floodway has been designated on the FIRM. What is an FIRM for starters? Edwards: The flood insurance rate map. Odom: It says has not been designated on the FIRM. I don't know if you read that correctly. 0 Rose: I'm sorry. • Planning Commission Minutes June 19, 2000 Page 59 Odom: I think you said has, but it says has not been designated. Rose: Has not been designated, excuse me, you are right. It has not been designated on the FIRM. Has the floodway not been designated on the FIRM? you or Edwards: No it has not. Rose: So it has not been designated. Okay. Now then, it says, for the purposes of this chapter, "adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than one foot at any point. Did you determine that? Edwards: Yes I did. Rose: How did you determine that? Edwards: Based on Mr. Hecox's letter. • Rose: Based on Mr. Hecox's letter. Now can you point out to us where in Mr. Hecox's letter it establishes there are no adverse effects? Edwards: The last paragraph, third line from the bottom, there will be a minimal impact on the flooding potential and the increase in existing onsite'water surface elevation will be less than 1 foot. Rose: Now then, Mrs. Gaston has stated that she finds fault with your decision because you did not look at the models that Mr. Hecox was using. Are you an engineer? Edwards: No, I'm not. Rose: Do you rely on Mr. Hecox? Edwards: Yes. Rose: Why do you rely on him? Edwards: He is an engineer. • Rose: Are you aware of any requirement within the flood damage prevention code which requires you or asks you to go beyond getting that engineering letter? • Planning Commission Minutes June 19, 2000 Page 60 Edwards: No. Rose: Our ordinance doesn't so require? Edwards: No it does not. Rose: Flood prevention code doesn't so require it? Edwards: No. Rose: All that training you got at FEMA, did they tell you that that is what you had to do? Edwards: Absolutely not. Rose: Absolutely not. Now let's go to the base flood elevation is not established. Now one, that is true is it not? • Edwards: That is true. Rose: And that occurrence is anticipated within the flood damage prevention code, is it not? Edwards: Yes it is. Rose: And what are you supposed to do when it is not established? Edwards: We are, as I read earlier, to try to find other sources and if those are not available then we can not require them. Rose: Okay. Did you look for other sources? Edwards: Yes. Rose: Where did you look? Edwards: Through the FEMA maps and there was nothing available. Rose: And there was no source of which you were aware that you could find it? • Edwards: No. • Planning Commission Minutes June 19, 2000 Page 61 Rose: Can't do the impossible, can you? Edwards: No. Rose: What are you supposed to do if you can't find them? Edwards: Check other sources and if those are not available we can not require it. Rose: Okay. That's all I've got. Odom: Thank you. Mr. Butt, do you have any questions? Butt: Mrs. Edwards, did you cause the Floodplain Permit to be issued? Edwards: Did I........... Butt: Did you cause that, did you sign off on that permit? • Edwards: Yes I did. Butt: And in your opinion was it properly issued consistent with all of the applicable ordinances and codes? Edwards: Yes it was. Butt: Thank you. Rose: I will publish at this time the flood damage prevention code to you all just as a matter of course although I think you have the relevant copies of it. Odom: Mrs. Gaston do you have any additional questions? Gaston: Did you ask Mr. Hecox to provide the additional data in order to determine the base flood elevations? Edwards: No I did not. Gaston: Would a quantification of the expected impacts, a specific quantification this expected impacts of the proposed development, if not required would that have • been helpful to the City in protecting the public both downstream and those that might be impacted upstream? • Planning Commission Minutes June 19, 2000 Page 62 Edwards: Not for me in the issuance of my permit, no. Odom: Any further? Then you may stand down. Mrs. Gaston, call your next witness. Gaston: Kim Hesse please. Odom: Kim state your name and what you do for the City. Hesse: Kim Hesse, Landscape Administrator. Gaston: Hi Ms. Hesse. I want to start with the ordinance and I'll just let you read that, Kim. I'm sure you are familiar with it. Hesse: When required for Preliminary Plat/Site Plan. In proposed subdivisions and large scale developments, a tree preservation plan shall be submitted and approved by the Planning Commission as a portion of the preliminary plat or site plan. There shall be no land disturbance or tree removal or tree removal until the tree preservation plan has been approved. • Gaston: Do you know if tree preservation plans were submitted for CMN Phase I and II. Hesse: Yes they were. Gaston: Did you review those plans or, actually let's back up. When did you begin, take your current position with the City? Hesse: August 31, 1998. Gaston: And when was the application for tree preservation as part of the preliminary plat for the subdivision submitted? Do you recall? Hesse: No I do not. I believe it was prior to my starting is when it was submitted. Gaston: Have you had a chance to review, though, the past records and determine what those tree preservation plans provided? Rose: I'm going to object to that. I don't think they have any relevance at all to the letter that was written. The four comers of that letter which was attached to the grading plan for Steele Crossing. That letter is before the Planning Commission • and is a one page document containing seven paragraphs. We are not here to discuss CMN I's tree preservation plan. We are not here to discuss Phase II of • Planning Commission Minutes June 19, 2000 Page 63 that plan and we are not here to discuss Argus' plan. Those appeals are long since finished and the appeal for Argus is presently on appeal before the Circuit Court. That's exactly what we are getting into. Now if she wants to attack this letter, if there is something wrong with this letter that effects this Grading Permit we want to hear about it, we want to discuss it, we want to talk about it. But we sure don't want to talk about anything else. Odom: Mrs. Gaston, what is your response? Gaston: Well, my response is what I set forth in the appeal that the Landscape Administrator's decision is in violation of the City's Tree Preservation and Protection Ordinance and of the prior tree preservation plans which still control. And I would like to show that they should still be controlling. Odom: Well, I think that Mr. Rose is correct in that we have addressed the CMN Business plans in other areas and that is what is going to be in front of the court. Now if you are going, if you are leading with your line of questioning to the letter that he is referencing, I'll allow you to continue to go in that direction. • Gaston: I think that simply because something is before the court should not preclude you from considering it. Just because the court is considering it doesn't mean that you can't look at the issue and evaluate your decision making in the process. So, I would like to just, and these questions ............... Odom: Are you wishing for us to revisit CMN Business Park? Gaston: No, I'm not. I'm not. I just want to follow up to where we got to Ms. Hesse letter. Odom: Okay. Well, if you are going to follow up to where we got to Ms. Hesse's letter I'll continue in that line of questioning but continue to move on in that direction. Gaston: Do you know what those earlier tree preservation plans provided? Hesse: Per our ordinance they provided the square footage of total site in existing tree canopy and the proposed tree canopy and the proposed existing canopy that is to be preserved in the percentage amounts. Gaston: And the specific calculations, I have a copy of the plat review minutes, you see 0 the item under Landscape Administrator? • Planning Commission Minutes June 19, 2000 Page 64 Rose: Oh, again, I've got to object again. We are getting way afield here. We are talking about CMN Business Park II and the requirements of it. CMN Business Park I and the requirements of it. Do you, in order to get where Mrs. Gaston wants you to be here is what you must do. You must look, for her appeals to go forward, here's what you've got to do. You've got to look in great detail to CMN I and CMN II and then you've got to take Argus and you have got to look at Argus large scale development and tree preservation plan which has already been appealed and already been afforded. You've got to closely compare those two and Mrs. Gaston has got to point out to you the differences between those two plans. Then she is going to tell you well, there's such a difference you should have never, you should have never entered that first large scale development with Argus at all. Shouldn't do it because it's wrong, you see. Because it doesn't compare with CMN I and II. That is where you are being lead and that is where you are being taken and that is not what is before this tribunal. Odom: Mrs. Gaston as I'm in agreement with Mr. Rose that that is not the direction that we need to be going. We need to be going towards the direction of the letter that was issued which is part of or page 1.43 of the packet that was addressed or that • was offered by Mrs. Hesse which is what I understand to be the appeal. I do not want to go in the direction, go ahead. Gaston: This is not a trial before a jury. You all are the triers of fact and you can, if the information that I'm going to ask Mrs. Hesse you determine to be irrelevant then you can exclude it from your consideration. Odom: Well, that doesn't mean that you can ask irrelevant questions all night. I just want you to continue to go, move on towards this letter here and not away from it. Gaston: All right. Odom: Okay? Gaston: All right. What percentage of trees were proposed to be preserved? In the earlier tree preservation plans? Hesse: For? Gaston: CMN Phases I and 11? 0 Rose: I object. • Planning Commission Minutes June 19, 2000 Page 65 Odom: I understand. Go on. Gaston: Let's go with just Phase I because that is the one that contains the lots that we are talking about. Hesse: I believe it was 13 percent. Gaston: For....... Hesse: Pardon? Gaston: Was it not 20 percent? Hesse: Those are Beth Sandeen's notes. Those are not mine but I will read them if you want. Gaston: Well, let's just go to this. We don't have to talk specific numbers. Was this grove of trees designated for preservation? is Hesse: Yes. Gaston: Is that the same grove of trees that we are talking about here today? Hesse: Yes. Gaston: Does your letter and your decision allow for preservation of those trees? Hesse: These are two separate developments. One is a subdivision, commercial subdivision the other is a large scale development. Gaston: Same........ Rose: Let me do it again. Ms. Hesse's letter does not have anything to do with the preservation of particular trees. That's in the tree preservation plan which you approved with Argus. Ms. Hesse's letter outlines, if you will read the seven paragraphs, outlines how to save the trees and how to protect the trees, put up stuff around them and do things. It doesn't have anything to do with saving particular trees. That's the tree preservation plan. • Odom: Your objection is noted. Go ahead. Go ahead. • Planning Commission Minutes June 19, 2000 Page 66 Gaston: This prior tree preservation plan is it still in place? Hesse: Upon the submittal and review and of each individual lot we look at it as a separate development. Gaston: Then where......... Hesse: So those that are still under construction that are not split up and sold they would be. But once a lot is split off of the subdivision we review it under large scale development. Gaston: Well, let me ask you then, this ordinance requires that a tree preservation plan be submitted with any proposed subdivisions, what is the value of submitting a tree preservation plan that is ignored in subsequent large scale developments? - Rose: I'm going to object to the form of the question. It assumes it's being ignored. It was not ignored. I think the facts will show that it riot only was not ignored it's the same way you do every subdivision that gets approval on LSD level and once • a subdivision or whatever is approved you then have another large scale development approval which starts over again with a new tree preservation plan. don't understand where we are going with this. Odom: Please rephrase your question. Gaston: Kim, is there, is it your understanding that the ordinance, I know that grading is not exactly your area, but the ordinances require that grading be conducted in compliance with the tree preservation plan? Hesse: Yes. Gaston: And what tree preservation plan is being utilized for all of the grading that is going on right now at CMN? to grading. There is grading Hesse: The grading plan that is in review for CMN. Gaston: Pardon? Hesse: For CMN Phase I and II. Did I answer that question correctly? • Gaston: I'll ask it again. There has to be a tree preservation plan in place prior to grading. There is grading going on in a number of sites in this development. Is it the June • Planning Commission Minutes June 19, 2000 Page 67 and respectively ............... Rose: Maybe I can help. We will stipulate that the tree preservation plan for Lot 15 is part of the Argus development, large scale development which you approved and that is what we are talking about and that is what is being done with regard to tree preservation. I'll be happy to stipulate that. Gaston: I didn't understand. Odom: Well, we are all busy misunderstanding each other right now. Why don't you just do your best to rephrase your question to Ms. Hesse. Gaston: Okay. The earlier tree preservation plans that were submitted for CMN, are those the plans that are being utilized for all the grading that is being done out there? Hesse: Yes. Gaston: But not for this lot? • Hesse: This lot is separated out. There is no grading happening on this lot at this point but this lot has been separated out and so we review it separately. It's above and in addition to. Gaston: Okay. So if the tree preservation plans never apply to this lot, what is the reason for doing those tree preservation plans at the preliminary plat stage? Hesse: I believe that they are there to, in all good faith, to require the developer of any residential or commercial subdivision, they are reviewed the same, to require that development through those initial improvements, infrastructure improvements, to save all trees possible, therefore, allowing individual lot owners to, again, have the choice to preserve trees. Nowhere in the ordinance does it connect large scale development to commercial subdivisions. Gaston: So we go through this process of submitting a tree preservation plan and two years later we are allowed to ignore it? Rose: I'm going to object to the form of the question. Gaston: That's fine. I'll withdraw the question. Thank you. • Odom: Jerry do you have any questions? Planning Commission Minutes June 19, 2000 Page 68 Rose: Do you know much about the history of the tree preservation ordinance and it's development? I assume you have picked up some, have you not? Hesse: Some, but not enough. Rose: Prior to the tree preservation ordinance was there any opportunity from, for a person who bought a subdivision lot, and when I say a subdivision lot I mean a subdivision lot in a subdivision or a subdivision lot in a commercial development like CMN, was there any way in the world back before that tree ordinance that an individual developer who wanted to develop one of those individual lots, any way in the world that he could save any trees if the overall developer, the overall subdivision developer tried to cut them all down? Hesse: No, I don't believe so. Rose: So our new tree ordinance allows that to occur then, does it not? Hesse: Yes. • Rose: It allows the developer or the person who buys the lot the opportunity, I think as you phrased it, to save trees should he so desire and within our ordinances? Hesse: Yes, that's correct. Rose: That's about it. Odom: Mr. Butt do you have any questions? Butt: Ms. Hesse, did you issue the May 30, 2000 letter, page 1.43 of the packet? Hesse: Yes I did. Butt: And is it consistent with the Argus tree preservation plans that has been approved by this Planning Commission? Hesse: Yes it is. Butt: And is it consistent as far as you know with the city ordinances applicable to the issuance of this letter? • Hesse: Yes it is. • Planning Commission Minutes June 19, 2000 Page 69 Butt: Thank you. Odom: Mrs. Gaston, any additional questions? Okay. Thank you Kim. You may call your next witness. Gaston: Just quickly, Tim Conklin. Odom: Okay quickly Tim Conklin hop up here. Colene that's kind of like saying I have one more question. When you say quickly, that's kind of like saying I have one more question. Tim state your name and what you do for the city. Conklin: Tim Conklin, City Planner. Gaston: Hi Tim. Quickly, is it your position that the large scale development approval for Steele Crossing includes only lot 15? Conklin: Mrs. Gaston, if you will refer to page 1.73 that was handed out last Friday and I will read that to you. I'd like for you to find it first. • Odom: What page are you on Tim? Conklin: 1.73. Odom: Is that the LSD large scale development Steele Crossing? Conklin: Yes. What I'm referring to is the staff report that was submitted to the Planning Commission for the April 24, 2000 Planning Commission meeting. Under project, we always put a description of what the project is and I'll read that to you at this time. Project: LSD 00-5 Large Scale Development was submitted by Mel Milholland of Milholland Engineering on behalf of Argus Properties for property located on lot 15 of CMN Business Park. The property is zoned C-2, Thoroughfare Commercial and contains approximately 18.48 acres. So, the answer to your question is yes. Gaston: Okay. The large scale development only included lot 15 not lot 7 and........ Conklin: Pardon me? Gaston: Did you provide any variances in this approval process? • Conklin: If you will refer to page 1.74 of the staff report c) Site Coverage. The applicant is • Planning Commission Minutes June 19, 2000 Page 70 requesting that the Planning Commission consider both Phase I and Phase II together when determining compliance with the green space and site coverage requirements. The outlots will be required to meet the site coverage requirements independently of this large scale development. Please see attached letter from City Planner. You ask the question and let me make sure that I understand, you asked did I approve any variances? Gaston: Or waivers, yes. Conklin: Did I personally approve any variances, the answer is no. Gaston: Did the Planning Commission? Conklin: Did the Planning Commission approve any Gaston: Based on staff recommendations? Conklin: 1 pointed out c) Site Coverage. Let's see, if you will turn to page 1.110......... • Gaston: I'm sorry, 1.110? Conklin: Page 110. Page 48 of the Planning Commission minutes of April 24, 2000. Gaston: Yes. Conklin: Where it says Conklin. I wanted to make a comment at that meeting. I said, "Yes, with regard to site coverage they do have in their table calculations for site coverage in the overlay district and outside the overlay district for each phase of Steele Crossing. If the Planning Commission decides to act on this I think the variations in site coverages that have resulted from saving the additional trees and granting the variances from the green space along Shiloh Drive need to be reflected on the plan and in this table. I guess what I'm saying, I can't give you the exact number with regard to Phase I and Phase II, but what they are proposing on their plan is what you will be approving with regard to site coverage. Gaston: So you took into account both lots 7 and 15 in determining compliance with the site coverage requirements. Conklin: As I stated in that staff report the Planning Commission needed to make that • determination. They did request to be consider site coverage to put both lots together and plan them all together as one unit. When we started out we were • Planning Commission Minutes June 19, 2000 Page 71 looking at trying to have a larger open space area along the Mud Creek tributary. As we began to discuss trees that open space area was shifted, and that is one of the reasons we are in the floodplain is because everything moved over to the east, and ended up between Phase I and Phase II of this development. However, the large scale development, which as staff, I always try to point out to this Commission and to the public when there is any variation in the ordinance. I did include a letter. I did include it in the conditions and I did, during the meeting in the minute, inform the Commission. Gaston: Do you recognize this letter? Conklin: Yes I do. Gaston: Will you state what it is please? Conklin: It's a letter that I wrote on December 2, 1999. It was regarding site coverage calculations with regard to the Design Overlay District. Would you like me to read this letter? • Gaston: The second sentence would be sufficient. Conklin: If both lots are brought through as one large scale development staff will calculate the 25 percent open space requirement by combining areas designated as open space throughout the entire project. Gaston: So, if both lots are brought through as one large scale development you would grant this variance? Conklin: I would interpret the ordinance with regard to site coverage. And Ms. Gaston, let me just let you know, l brought this up numerous times throughout the process to explain to them they are showing a phased large scale development. And if 1'm, ] don't have the Subdivision Committee minutes in front of me right now, but as I brought it up numerous times a Commissioner, or several Commissioners said, yes we understand Tim, we understand what you are trying to tell us. Gaston: I recall seeing those. Conklin: Okay. Thank you. is Gaston: So it's your understanding that these were brought through as one large scale development? Both lots? E • Planning Commission Minutes June 19, 2000 Page 72 Conklin: It was brought through as Phase I and then Phase II would have to come back through the large scale development. If they did not bring it through as they planned then it would need to comply with all of the ordinances. But they did see both. I did request that Mr. Milholland show the entire project if he wanted the Planning Commission to look at this site coverage calculation. Gaston: This has been discussed so I know you know the answer, but I'll ask again. Conklin: Sure. Gaston: Does Fayetteville Exchange or Argus Properties own lot 7? Conklin: No they do not. Gaston: In your experience are development conditions provided for large scale developments which the owner is not a participant in that process? Conklin: I informed Mr. Milholland that when he did question me, I said you can have multiple owners submit a large scale development. Gaston: But did they? Conklin: Lot 7 owners signature was not on the application. And that is why, one of the conditions of approval, and we talk about tree preservation, is that the trees shown with this approval have to be preserved in perpetuity and shown on all future development plans. That is a condition of approval. Gaston: But site coverage is not something that is required in perpetuity? The allowances? Conklin: You're, that is correct but if they don't meet the conditions, all of the open space, the impervious surface is pretty much on lot 15. You are going to end up with more. They have 24 percent impervious surface, open space on this site. So you would end up with additional. You would end up with more open space. Gaston: Conklin: Gaston: • Conklin: On lot 15? On lot 7. On lot 7? Yes. • Planning Commission Minutes June 19, 2000 Page 73 Gaston: But you would make lot 15 alone essentially impossible to develop under the requirements? Conklin: Lot 15, lot 15 is the development that we approved large scale development on. I'm not sure when you say make it virtually impossible you ............... Gaston: If you use the site coverage requirements? Conklin: No, I believe they are meeting site coverage requirements on lot 15. The issue was combining site coverage from lot 7 over to 15. Gaston: Right. Well, I guess maybe I.......... Conklin: It's taking it from one site trying to preserve a creek area but as we sent through the process we ended up shifting that over to the trees. Gaston: One last question. • Conklin: Sure. Gaston: This is the approved plarr is it not? Conklin: Pardon me? Gaston: Is this the approved plan? Conklin: You will have to bring it closer please. Yes. Gaston: And this is what is followed in determining compliance with the ordinance requirements? Conklin: Yes. Gaston: And what is this? Conklin: Mrs. Gaston, I can't read that from this distance. I apologize. Odom: We are having a hard time hearing the questions so you need to be sure and use the mike. • Conklin: Mrs. Gaston, I can assure you that in the staff report, during the meeting, during • Planning Commission Minutes June 19, 2000 Page 74 the Subdivision Committee I have tried to make it clear for everybody that what we were looking at was a request from a developer to look at site coverage. And to look at how can we best preserve open space in this community. I've heard a lot of talk about doing master planning or an area plan. Here's an opportunity, a developer came to us and said, look what if we plan both lots together? Can we look at how can we have a larger preserved area of open space. And I looked at that and I wrote a letter and I included it from day one in the Planning Commission packets that this is something that the Planning Commission will need to make a determination on. Do you want both lots looked at together with regard to preservation of these features. I think it's clear in the minutes and I think it's clear in the staff report. Gaston: So that both lots are, it's clear that both lots are a part ................ Conklin: With regard to tree preservation and site coverage, I believe it's clear. That's my understanding, that with regard to tree preservation and site coverage that we talked about, that I put in this letter, that's indicated in these official minutes, that's indicated in the staff report, that it's clear. It does not say that the large • scale development applied to lot 7. It said this applicant requested, let's look at developing both lots together and if we do that how can we best accomplish keeping open space. Gaston: So they were brought in together and both are part of this large scale development? As stated in the legal description? Conklin: I'm sorry, you will have to ask that question again. I want to make sure I understand what you are asking me Colene. Rose: I'm going to object too because............ Conklin: Colene, you have been in my office for many days and I have tried to answer.... Odom: Tim, Tim, let me stop you. We have to keep this on track. Colene asked her last question about five minutes ago and we need to, try to rephrase your question and let's see if we can't answer it, Tim. Gaston: Does the stated description on this approved plan include both lots? 29.99 acres. Conklin: Does that legal description on that large scale development plan contain 29.99 • acres? You know, I'm not trying to be nit -picky here and pick apart your question here, but it was clear what was approved at Planning Commission. Yes, it does • Planning Commission Minutes June 19, 2000 Page 75 say lot 7 on there. They put it on there, my guess is I haven't talked to the applicant about this, they probably did that because they requested that tree preservation and site coverage be combined. Now maybe you need to ask that to Mr. Milholland or Mr. Rankin. I'm not sure why they put that on there Colene. But I think that it's clear from the record that it's site coverage and tree coverage. Gaston: Only? Conklin: Only. Yes. Gaston: And even though you approved this plan it says 29.99 acres? Conklin: I required, I requested Mr. Milholland to provide those site coverage calculations after Planning Commission approval because I wanted to see what kind of site coverage there was. So, Mr. Milholland plotted it out, recalculated it and I looked at it and reviewed it with Ms. Edwards and we put our approval stamp on it. That this is a large scale development that they approved. Now, if they come back six months from now and they have something different on lot 7, you know, I'm • going to say it's not meeting those conditions with regard to site coverage and tree preservation plan. But I can tell you one thing, they'll have site coverage and tree preservation on here that meets the ordinance. Gaston: What if someone else comes back and asks for different conditions since Fayetteville Exchange does not own lot 7? Conklin: As always, I try to inform the Commission about any variations from what has been approved and I will bring it forward. I will put in the staff report and I will sit up here as I do twice a month and look at this Commission and explain to them what has been brought forward. They will have to make a decision and in that process we will have Kim Hesse our Landscape Administrator and Ron Petrie our Staff Engineer and Chuck Rutherford our Sidewalk and Trails Coordinator and Mickey Jackson our Fire Chief, we will all sit down through this multi step process and we will review the plan and we will see where it complies or doesn't comply with our ordinances and we will make a staff report and bring out any variation or issue to this Commission. As we always do every twice a month. Gaston: The subsequent owner, not even a subsequent owner, the owner is not subject to the conditions of approval of this development then? • Conklin: Yes they are. • Planning Commission Minutes June 19, 2000 Page 76 Gaston: Including the owner which did not participate in the application? Conklin: They have submitted a letter authorizing that work on their lot. It's my understanding that when Phase II comes through we will check for compliance. You know, I can guess, as Jerry said, using a crystal ball here, I'm not sure what's going to happen in the future Colene. But we do have a plan here and we will use it at staff and I will inform this Commission of any variation. I promise to do that. Gaston: I know you will Tim. Do you happen to know, well, I'll just, Thank you. Odom: Thank you. Rose: Tim let's get down to some basics. It doesn't even show lot 7 on here does it? Conklin: No it doesn't. Rose: Let's get one that does. This map here it's got lot 7 and 15. It's the grading plan • we had up here before. Lot 7 would be over here is that right? Conklin: That is correct. Rose: And lot 15 on this side. Any doubt in your mind that other than the site plan, excuse me, other than the site coverage and open space requirements, other than that does anything by way of large scale development apply to lot 7? Conklin: No. Rose: It's only on that specific thing? Conklin: Yes. Rose: And it's even narrower than that isn't it because it only has to do with the little line of trees that runs, I don't know what this is to scale, but it looks like it's considerably less, it looks like it runs from quarter inch to half inch, is that correct? Conklin: That's correct. is Rose: That's the only thing we are talking about here is that right? • Planning Commission Minutes June 19, 2000 Page 77 Conklin: That is correct. Rose: That's this little area that you are talking about that's right down in here. Conklin: Yes. Rose: Okay. And that's the only part that sloshes over into lot 7? Conklin: That is correct. Rose: And if lot 7 has any development on it, any tum of dirt on it other than those few little trees right there, other than that, it will have to have large scale development? Conklin: Yes it will. Rose: It's going to have to come back before these people again? • Conklin: Yes it will. Rose: You going to talk tree preservation plan? Conklin: We will review what has been approved, yes. Rose: You are going to talk about everything to do with grading plans and the whole shooter, right? Conklin: Yes. Rose: Okay. Oh, and let's talk about whether or not, who's the owner of lot, do you know who the owner of lot 7 is? Conklin: I believe it's Charlotte Steele and Nancy Brooks. Rose: Let's take a look at 1.70 in our packet. Let me ask you to look at page 1.70 and look at a thing that purports to be an affidavit from those folks signed by Marjorie Brooks and NANCHAR allowing them permission for Fayetteville Exchange, LLC, which is the owner of lot 15 to do all things necessary for grading and tree removal on lot 7 as far as it goes to that lot 15, is that right? • Conklin: That is correct. • Planning Commission Minutes June 19, 2000 Page 78 Rose: So you know who the owner of lot 7 is and you've got his permission to do what needs to be done by way of the tree preservation and the, excuse me, not the tree preservation, but the site coverage and the open space, you've got permission? Conklin: Yes. Rose: That's all. Odom: Thank you Jerry. Jack do you have any questions? No. Colene? Gaston: Tim, I'm going to show you, once again, the approved plan for large scale development 00-5. Conklin: Sure. Gaston: This is the one that Jerry pulled out and then decided he didn't want to use. Does it show development on lot 7? • Conklin: It shows a future phase. Gaston: It shows parking lots, what else? Conklin: It shows parking lot and a future phase for a retailer and some small leaseable retail space. Gaston: But those really don't count. Conklin: When you say they don't count? Gaston: They don't apply. They are not really supposed to be on there? Conklin: No. I thought it would be beneficial for this Commission, and I'm not going to make this speech again, but that it would be beneficial that if we are going to look at trying to have a larger area of open space to see how this was going to be planned together. I thought as a planner it would be good to have a unified development with these two lots. That's why when they asked me I wrote that letter and I brought it to the Commission's attention. I did go over that letter with them and said that they are showing this Phase I at this time at this time and this Phase II which will have to come back through. I don't believe I've ever tried to • hide that information or not state that information. It should be in the public record because I said it over and over again. As I am saying it over and over • Planning Commission Minutes June 19, 2000 Page 79 again right now. Gaston: And this plan itself is in the public record and if someone goes in and looks for the approved large scale development plan this is what they would see with both lots included? Conklin: That is correct. And the line you see is the phase line. I requested Mr. Milholland put that phase line on that plan so it would be clear to me, staff..... Odom: Thank you Tim. You've answered the question. Thank you. Conklin: I'm just trying to make sure everybody understands what was approved. Odom: That's all right. I know you are. Colene, any other questions? Gaston: No, I do not. Odom: Anybody else? Thank you Tim. • Conklin: Thank you. Odom: Call your next witness. Gaston: No other witnesses. Odom: Okay. Rose: Can I take just a two minute break and go to the restroom? Odom: Sure. You know, it's a lot better if I keep that pressure on you Jerry. Yes. We will take a two minute recess. Two minutes. Odom: Ladies and gentlemen. I'm asking you to start coming to order. We will bring the meeting to order and Mr. Rose. Rose: I have no other witnesses and I'm ready to shut it down. I've heard about as much as I want to hear. Odom: Thank you. Mr. Butt, do you have any witnesses? Butt: No. • • 7 Planning Commission Minutes June 19, 2000 Page 80 CLOSING STATEMENTS: Odom: Thank you. Then we will move into the final presentation phase. Mrs. Gaston do you wish to show your video at this time? Gaston: Sure. Odom: You don't have to if you don't want to. Gaston: No, I would be happy to. Odom: I'm gong to give you 13 minutes. Gaston: I won't take that long. I would say that this vide goes to the issue.. (video begins) here's a transcript. Video played. Copy of transcript attached to end of minutes. Gaston: This was from an Ordinance Review Committee meeting on May 30, 2000. This to me is acknowledgment that the proper procedures were not followed and in fact the tree preservation plan that should control for this site is the one that was approved for CMN. At the very least, if somehow you find that it doesn't apply to lot 15, it should still apply to lot 7 which CMN owns. I don't see how the owners of lot 7 can give their permission to destroy trees on a tract for which they have a preservation plan in place. In addition to that issue, which I'd like you to think about because I think you have the opportunity here to think about that. Rose: You will note my objection. Odom: It's noted. Gaston: And you have the opportunity to think about it before the City finds itself at trial in October. You have the opportunity to revoke the Grading Permit that was issued. There are a number of errors that I pointed out. There are errors admittedly on the plan that was approved and that is referenced in the letter. There are a number of other items that we have gone over and I won't go over those again right now but I think that those are sufficient grounds for you to revoke that permit and when you do there is no need to tum around and reissue that permit immediately. You can think about the process that has been at play here. You can think about the fact that there is some thought that the final grading plan should have been approved before the large scale development. There also is • Planning Commission Minutes June 19, 2000 Page 81 argument that I presented and that others have presented before the City Council that a Storm Water Management, Drainage and Erosion Control Permit should be issued simultaneously with the permit for grading. You have the opportunity here to require that. I want to correct one thing that Jack Butt has said now for the second time that this permit appeal is costing his client $2,000.00 a day because of the delay. As Jack has acknowledged they do not yet have the required Arkansas Department of Environmental Quality Storm Water Construction Permit to proceed with grading on this site. Therefore, it is not these appeals that are costing his clients any money. Thank you for your attention. I know at times it's been slow. Again, I urge you to look at the number of issues that were raised and find that they do find that these permits were improperly issued and issued in violation of the ordinances and to revoke those permits. Thank you. Odom: Thank you. Mr. Rose. Rose: Well, I think I did better than I thought I was going to do on predicting what would occur. I want to talk a little bit about persons aggrieved again. I think that if that is what you want to do, if you want to allow individuals to be personally aggrieved by their general aesthetic and environmental interests and by their intent to be a public invitee then certainly that is your privilege. I can certainly tell you in all honestly, and I wrote my little brief there and it didn't include these defendants it was just a general statement of what I thought the law was, I can tell you there is no support of which I'm aware that allows the words personally aggrieved to mean the skimpy facts that have been presented to you in those two very similar affidavits. But be that as it may, if that's what you want that's what we will do. The Floodplain Development Permit by Sara Edwards I thought went just exactly as I told you that it would. I think the signatures are certainly there. She had those. I think Thomas Hecox's letter did what it was supposed to do and that was to testify by a professional engineer that the effect on that floodplain area, that small area over to the left as you're looking at the project, I guess, from north to south, was less than one foot. That's her responsibility and that's what she did. The base flood elevation as she told you is just simply not available and she did what was required after discovering that by the Floodplain Code and that was to do the best she could with it which was to determine whether or not there was any adverse effects and to take that engineer's opinion on that. The Grading Permit, the same way. The approval in one day was because of the pressure put upon this office, the engineering office, to get something done or they weren't going to get any work done. So they did indeed prioritize it and advance it up. That in and of itself, I don't understand how it is a fault. It simply is a reality in • setting priorities. If there was some fault resulted from it I'm sure I would have heard that from Mrs. Gaston, but didn't hear any. The signatures on the • Planning Commission Minutes June 19, 2000 Page 82 application, again, I think it's all there. You've got enough, I can't imagine there being any ownership or agency problems at all. You've got a number of documents which show the owner of the property the agent to the property and various permissions that were given. The lot line for lots 7 and 15 being incorrectly drawn, I think the City Engineer with remarkable candor simply told you, yup, you're right. It wasn't on there right so we went back and put it on there where you can tell lot 7 from lot 15 and know where the two exist and that's what we did. The § 169.08, No large scale development before final grading, I disagree with Mrs. Gaston's interpretation. The Planning Commission has disagreed with her interpretation. The City Council has disagreed with her interpretation. City Staff has disagreed with her interpretation. I think as I think about it that's the problem with all of Mrs. Gaston's arguments. They are just that. They are arguments. I like the arguments and I find fun, I guess, in some debate skill that I lost in highschool somewhere or another, and I enjoy talking about that and it's all very interesting but she produces not one single witness, not one single engineer, not one single planner, not one single anybody to contradict what staff did. Not one. The only thing she's got is her arguments and her opinion of what the interpretation of those ordinances look like to her. I think • that's super. I think that's nice and I think she is entitled to her opinion but she is not the one making the call. You are and you have already made those calls. Staff is and they make them on a daily basis. City Council does on a daily basis. Other than that, it's just pure argument. No ADEQ Storm Water Permits and no S WPPP Permits, well, those are state responsibilities. The City Engineer testified without contradiction again, that indeed they would be considered and they have to be provided by Mr. Milholland and his development and they will be provided. That is part of that subject to approve. The parking lot storm drainage, again, they argued that the city should take into account different things and that in 2003 there will be new requirements. But you can not have a crystal ball to where you know what those requirements are going to be. You have to abide by your ordinance as it currently exists. That again, it's undisputed, that is exactly what Mr. Beavers is doing as a City Engineer. He is providing and obeying those particular ordinances. He can't just add new ones on the speculation that something might take place in the next three years. And finally, that is, too fast approval indicates something inadequate and incomplete. Well, what is it? What is inadequate and incomplete about it? The grading plan has been based on the tree preservation plan and that's approved with a large scale development. We've appealed that to Circuit Court and I don't think you need to talk about that. I've already talked to you at some length about that. Finally, the Landscape Administrator, who tells you as far as she knows, that letter that she submitted is • in accordance with the tree preservation plan that was approved by the large scale development of the Argus project or the Kohls project. Again, I mean, we get a • Planning Commission Minutes June 19, 2000 Page 83 nice argument from Mrs. Gaston that perhaps it shouldn't be that way and that shouldn't be her opinion but she's the one that is paid to make those calls. She is the one that is provided to do that. She has made those calls before you as a Planning Commission and you've made those calls in approving the large scale development and the tree preservation plan for that. That's what we are defending in Circuit Court. So, again, it's all, it makes for a nice debate and it makes for an interesting few minutes but the fact is that there is not really very much for you to consider on these permits. The permits are good. The permits are in compliance with the ordinances and I don't know what else that you can say. You may or may not agree or disagree with Mrs. Gaston's arguments but that's not what we're here to do. What we're here to do is to decide factually whether or not there is anything wrong with those permits under our ordinances. Gentlemen, there isn't. Odom: Thank you Mr. Rose. Mr. Butt. Butt: Thank you for your time, you've been very patient. I didn't ask very many questions. I thought I asked the only relevant questions. I don't mean to overstate but this could have taken five minutes. But the five minutes of questions that I • asked followed approximately two hours of Mrs. Gaston doing everything in the world she could to try to get your City Planner and Staff to say yes, we made a mistake, no that's wrong, we didn't follow this rule, but following it carefully the only thing they admitted to I think is that the real owner didn't become apparent to them until well into the process. No fraud or anything, it just took a little while for them to discover that Argus really didn't own it Fayetteville Exchange does. Those are the kind of slips I think you all would realize in the planning process, little over sites are made, little inconsistencies are made and they are cured when they are caught. The bottom line is your staff said we issued these permits consistent with all. The Landscape Administrator said that, the City Engineer said that, the Floodwater Administrator said that and I didn't hear anything in any of Mrs. Gaston's questions that indicate that that simple question and answer was wrong. Did they issue the permits correctly? Yes. Now take two hours and see if you can come up with one instance where they are wrong. What I heard was, no, they were right all the way through. Every question that was asked. So, I think that the permit is properly issued. To touch very briefly on the standing issue, unless you all want to lead a precedent of my being able to question whether or not your electrical permit on your house is correct, I think opening this up to people that truly aren't downstream who truly aren't neighbors within the defined boundaries of people having a defined interest to speak, I think that you opened a pandora's box on that. Finally, wise or not, my client has not chosen to submit to . the state permits. They can't go forward without both the Grading Permit and the state permit and they have not yet applied, they don't yet have the state permit but I• • • Planning Commission Minutes June 19, 2000 Page 84 even if they did, this delay since the last Commission meeting and this one is costing them about $2,000.00 a day. That is as close of an estimate that we could come up with. So, I appreciate your time and your consideration on this matter. Thank you. Odom: Thank you Mr. Butt. PUBLIC COMMENT: Odom: Now ladies and gentlemen, what I would like to do is to open the floor to public comment. I'm going to a lot 30 minutes of time for public comment. Once it gets started I would ask, first of all, I would like to say I very much appreciate your attendance tonight and how things have gone. You all have sat very patiently and listened to the arguments and the testimony as we have up here. I would appreciate your continued courtesy through the public comment section. If you could, let's do our best to limit comments to the issues that we have before us. And, let me just ask, how many people would like to speak? If you would just please raise your hand. Okay. If you could go ahead and some of you come up and come forward and get ready and when you are up here, state your name and your address for the record. Weiss: My name is Lou Weiss and I'm a resident of Fayetteville. I think an upstanding resident. Can you hear me? Odom: No, just barley. These things are kind of tricky. You have to pull them right to you. Weiss: Can you hear me now? Odom: A little bit better. Weiss: Do you want me to repeat what I've said? Odom: Yes, Mrs. Weiss if you could just state your name and address. Weiss: Okay. My name is Lou Weiss and I'm a resident of Fayetteville. I'm an ordinary citizen, upstanding I believe and I just want to ask a couple of simple questions because this is all very confusing and I couldn't hear very well. Is an ordinance a law? Odom: Yes an ordinance is a law as I understand it. • Planning Commission Minutes June 19, 2000 Page 85 Weiss: Okay. The grading ordinance says that no large scale development shall be approved until a final grading plan has been submitted and approved. It seems to me that there was a break in the law here. Does, is there anyone that has any comment about that? Odom: Well, we've had the testimony tonight from Mr. Beavers who is specifically interpreting that ordinance and I know he is soft spoken and sometimes hard to hear, but you, I don't want to try to recharacterize his testimony, but it's my understanding from what his testimony was is that you do these things in phases and you can have a Grading Permit, or you approve a large scale development prior to a Grading Permit because the large scale development itself is continent upon the Grading Permits being obtained. Weiss: But it seems to me if you are going to build something or do something you should have everything in order. Just as you have kept the meeting in order tonight. I admire you for the fact that you have kept the meeting in order. Odom: Thank you. • Weiss: But I can't agree with what you just said. Well, I want to give other people a chance to talk. Thank you. Odom: Thank you very much. Young: Cyrus Young, 210 North Locust. I have two things. One I'd like to speak to the issue of standing or the ability to appeal. I think that citizens should be able to appeal a grading ordinance. These people think that their city may be at risk of being destroyed in some way and I think they have a right to appeal any of these decisions as far as the grading plan is concerned. I think that if you eliminate the right of the people to appeal then these people would be at the mercy of developers and whatever they wanted to do. Make no mistake about it, what you do tonight will set a precedent for the future. So, I certainly hope you maintain the right of the people to appeal these. The other thing that I would like to speak to is the grading plan, the Grading Permit. The grading ordinance and the tree preservation ordinance go hand in hand. If you read the ordinances they both have provisions in there that refer to each other. When the tree committee was discussing the tree ordinance I harped on that quite a while and it took a while for the tree committee to understand what I was talking about. About how the grading effected tree preservation. So, when they finally realized it they did put it • in there and we put it in the grading ordinance. So they go hand in hand. I think that if, since the grading, I mean since the tree preservation plan is still under • Planning Commission Minutes June 19, 2000 Page 86 consideration, I would ask you to deny this permit until such time as the courts have time to interpret the tree preservation ordinance and determine whether or not this development meets the tree preservation plan. Because it goes hand in hand with the grading. Thank you. Odom: Thank you Mr. Young. Byron: My name is Debra Byron. I live on Watson Street here in Fayetteville. I also wanted to briefly address the issue of standing or the definition of an aggrieved person. The ordinance says any person, any person aggrieved may appeal the decision of the City Engineer related to grading requirements. Any aggrieved person. It doesn't specify in that definition that an aggrieved person has to be a property owner or has to be an owner of adjacent property or has to live downstream. I would like to suggest that if the people who drafted the ordinance had meant for it to be narrowed as a definition, they would have narrowed it. They left it open because they intended for it to mean any aggrieved citizen or resident or taxpayer of Fayetteville can qualify as an aggrieved person. Mr. Butt, I think earlier was characterizing his argument saying that one must have a dog in • order to fight. Well, that begins to sound to some of us who are residents here that you need power and money and lots of it in order to have influence. And as a resident and a taxpayer of Fayetteville, I feel that Jeannie Jenkins and Morty Newmark represent many, many of us who care deeply about the aesthetic and environmental issues that are before us tonight and it is very objectionable and offensive to be told that we don't have standing in our own town on these issues. I really don't believe that you as members of our Planning Commission really intend to create a situation where only large money interest have standing and therefore, can claim to be aggrieved by the environmental and aesthetic degradation that is taking place here. Thank you. Odom: Thank you very much. Morman: My name is Barbara Morman. I live a t 3450 Finger Road on a property that is split between the county and the city. I care very much about environmental issues. I'm in the process of putting a conservation easement on my property. I have a couple of points to make here but the first one is, I wonder why there is such a rush, why there has been such a rush in this project. Here's a quote from Jim Beavers' notes, or it may even be in one of the approval letters, The City will not delay the contractor unless a special problem arises. Now that pertained to CMN. That was written in 1999. But I found that identical sentence a couple of • times and for all I know it may be there more than that. Again around the same time a note pertaining to someone who's initials are CV, we are rushing both of • Planning Commission Minutes June 19, 2000 Page 87 these, that is the bridge and street subgrade, we'll see if developers can provide all data by July 6. Moving onto another point. It seems to me that it has been said that all of the permits are in perfect order and I would like to just remind you that some things that are okay today are okay only because questions were raised and they really weren't okay at the time that they should have been okay. For example, Argus, in it's permit for large scale development application, at the time it did not have the letter on file from Belle Meade saying that Argus was the agent. In fact at that moment in the courthouse there was a power of attorney filed for Fayetteville Exchange, the owner in the name of JDN Development. If you want to know who JDN Development is I refer you to the April 13" New York Times article, April 13" of this year, Who's Minding the Store, I believe is the title of it. As far as Fayetteville Exchange is concerned it was active but withdrawn in the state of Georgia and because people were asking questions about it, I assume that's the reason, on the 6`" of June, it registered and entered good standing and at that time it gave it's address as the same address as JDN Development in Atlanta. Fayetteville Exchange was not registered to do business in Arkansas at the time that the permit, the application for permit for large scale development was made. It registered on the 7" of March, 2000. Now about the • lot lines between 7 and 15, that's just another instance, it's been admitted, but it's another instance where because questions were asked, everything was put in order. I would just like to point out about that division between 7 and 15, that in the traffic study which was done, and that is a matter of record and it is in the Kohls file, 7 and 15 are treated together. Throughout that traffic study constant reference is made to both of them as constituting Steele Crossing. Also, in some of the documents pertaining just to the ownership of the property and the option to buy there are references to desires of the tenant of lot 7. The tenant that is presumed to be know and the name is included in the traffic study as Target and it's referred to in the declaration of operation and easement, a courthouse document, it's referred to as Target. In any event, it's stated that the tenant for lot 7 wants particular things such as a ramp that would connect Shiloh, or permits for a ramp that would connect Shiloh to the Fulbright Expressway and the completion of Mall Lane by a particular date. Another thing is the building that is right on the lot line between 7 and 15. It seems to be just not decided whether that is going to built as part of Phase I or Phase II. It obviously, clearly belongs with the construction in lot 7. It makes no sense without lot 7. And I just wonder myself whether when all of these plans were presented to you and you did approve the plan were you aware that there were two owners involved? I mean, now you are aware but were you aware then? I guess I just want to remind you the option to buy as it's recorded in the courthouse is July I' for lot 7 and I thought that that might have something to do with my original question which is why is there such a rush? It seems to me that you could take your time and consider this matter • Planning Commission Minutes June 19, 2000 Page 88 thoroughly. Thank you. Crocker: My name is Karen Role Crocker I live at 951 Pembrook Road, Fayetteville. I have just a kind of a short statement about this but it's my feeling that what's been brought forward here is that we are at a point in the City where we really have to tighten up what we are doing and I believe that this is your chance to do that. I think that the fact that business as usual has been the way that these things have been done, I think that you need to rethink that because what happens is so many things slip through and then you are faced with having to say well, we'll let it happen this time. I really think that that is a bad way to go and we are going to really have a problem in the future with our development if we don't tighten it up. So, I would ask you that the permit, I think that the permitting process in this, I agree that it's incomplete and it didn't follow the way that it was supposed to happen and specifically I really disagree with the fact that the statement no large scale development plat can be approved before a final grading plan has been submitted to the City Engineer and approved, I just think that that is the way it's stated and that's the way it should be. Thank you. • Williams: My name is John Williams. Chairman Odom I wrote you and the Commissioners a short letter and included a photograph, if it's appropriate............ Odom: I have it with me here. Williams: Would you please read the letter and show the photograph? Odom: This is a letter from Mr. John Williams who lives at 140 North Sang Avenue of Fayetteville. It's dated June 19, 2000 and it reads, Dear members of the Fayetteville Planning Commission. I am presenting this photograph and the following verse from the Bible in hopes that they might be helpful in tonight's discussion. Hurt not the earth, neither the seas nor the trees. Revelations 7:3. Thank you, John Williams. And this is the photograph which is a photograph of College Avenue that is dated here from the 1950's. Williams: I just would like to answer any questions if there are any questions. If not I want to express my appreciation to the time you all have given. I'm not under oath I would like to express my appreciation to Mr. Rose. He and I have been friends for a long time. I wouldn't even say that under oath. I know it's been difficult for everyone, but I just thought a verse from the Bible, you know, I'm here sort of to • represent aggrieved Christians. Are there any questions please? Odom: Mr. Estes. • Planning Commission Minutes June 19, 2000 Page 89 Estes: Mr. Williams, what is the approximate location of the photograph you provided? Williams: It's between Center Street and just a little north of Center Street. Mr. Rose mentioned that, something about history. At the time that those trees were cut I was Chairman of the Fayetteville Aesthetic Committee. So there were attempts to pass an ordinance requiring a tree cutting permit but City Council didn't, unfortunately I feel, City Council didn't pass that ordinance. I think we've lost a great deal by losing those trees and other trees that have been lost in other areas of the city. Having been here 54 years and being architecture, I'm an architect, and landscape architecture, which I'm a landscape architect, so I just noticed that one of the basis that one could make some very good financial judgements on would be to, through the past, to have bought very attractive places because, places with lots of trees, because those are the places that have been developed, mostly. Any other questions please? I hope that all of you, I think you know what I hope. Odom: Thank you very much Mr. Williams. • Williams: Okay. Duvall: My name is John Duvall, 1131 Eastwood. I have a question and then a remark. The question, if it takes too long to find out the answer we will just go on. I don't know, could you tell me, has anybody figured out why Mrs. Gaston had one copy of the ordinance and Mr. Beavers had another? Estes: Mr. Duvall, from time to time there have been revisions in our ordinance. We have moved from the Fayetteville Ordinance Book to what we call the UDO, and there are changes and not always do copies get where they need to get. I think that the various members of this Commission, from time to time, have been provided with different copies of different ordinances. Duvall: Thank you sir. And which copy did you all have? Estes: And that theses ordinances are now in the process of being codified, put in one place, and brought together so that we won't have this problem. I can tell you that I personally have been a victim of that, have had ordinances that I thought were in full force and effect only to learn that I had a copy that had been repealed, amended or revoked. • Duvall: Thank you Mr. Estes. My remark has to do with the opening remarks that Mr. Rose made when he, I don't know whether to say he admitted or he boasted, that the staff prioritized the passing of the permits because of all the attention that was • Planning Commission Minutes June 19, 2000 Page 90 slowing up work that was being done by the staff. I would like to point out that that attention was not frivolous. It may have been bothersome but it should have been a signal for a certain amount of deliberation, caution and please slowing down. I believe, I'd like to ask you and the Planning Commission to slow down the process a little bit. I believe that every I should be dotted and T should be crossed before the development takes place. I do beg you to restore a little bit of dignity to a process that has not had very much dignity up till now. Thank you. Odom: Thank you. Warden: Hello, my name is M Warden, I live in Fayetteville. I wanted to address some testimony from one of the witnesses tonight. Specifically that of Ms. Kim Hesse, the Landscape Administrator. She was asked tonight in a point blank fashion by the attorney Mr. Butt if the tree preservation ordinance was followed with the approval of the plan to which she answered yes. On the last, well the City Council Meeting during which an appeal was heard or an appeal was presented to overturn your decision to approve the plan she was also asked in a very point • blank matter directly by Alderman Kyle Russell the same question to which she replied that night, no it was not in compliance. Also on the Planning Commission meeting prior to the City Council meeting during which the plan was approved on a 6-3 vote my recollection was she testified at that time also that the plan was not in compliance. However tonight it suddenly became in compliance. What changed between those two public statements and tonight I would like to know? Thank you. Odom: I will maybe perhaps go ahead and try to answer that question. I don't think that Ms. Hesse was saying that it met the ordinance, I think that she was saying that her letter which is required during these grading permits, whether or not it complied with the plan that was approved ultimately by the City Council and her answer at that time was yet. I don't see that as an inconsistency I think that she was saying yes to the plan that was ultimately approved by the City Council and is now on appeal. I think that is what it was going to. K. Duvall: My name is Kay Duvall and I live at 1131 Eastwood here in Fayetteville. Mrs. Gaston asked me to read this for the record. In answer to a previous question, the copy of the ordinance from which Colene was reading was the current amended ordinance that was distributed by the City at the June 16, 2000 Planning Commission agenda session. Realizing the power of antidotal evidence, I would like to respond to something that Mr. Butt said about questions by private citizens • about commercial development opening up the possibility of people coming into our home property and questioning the legality of our permits etc. I have been • • • Planning Commission Minutes June 19, 2000 Page 91 looking at ordinances quite a bit lately and § 169.03, Exceptions to the rule, there about the permits, specifically excepts single family dwellings and duplex's. I thought that I should perhaps read that to set the record straight so that people won't be concerned that their own home property might be invaded. I do contend that large scale developments do effect the entire citizenry of Fayetteville. Thank you very much. Odom: Odom. Thank you. Fulcher: Clay Fulcher, 683 Cliffside, Fayetteville. I'll just bring up one point. Mr. Beavers stated earlier that the City tries to correct any mistakes and he pointed out several examples of that tonight. The point I'm going to bring up is a very narrow point based specifically on this Grading Permit that has been appealed. I think that everybody, both sides are in agreement that the Grading Permit must comply with the tree preservation plan. I think that everybody agrees that the owner of lot 7 is NANCHAR and Mrs. Brooks apparently operating as CMN. The city apparently approved the tree preservation plan and possibly a large scale development covering both lots 7 and 15 even though CMN, not Fayetteville Exchange owns lot 7. I'm not sure when this fact became known to you but it was something that I didn't find out until the last month. I think it's not in dispute that CMN has a tree preservation in place for lot 7 that was approved in 1998. At this point it's my understanding, even though I have not seen the document, that CMN is giving permission to Argus and Fayetteville Exchange to cut trees on lot 7. I don't believe they can do that. I don't understand how they can do that and the authority to do so to Argus is confirmation apparently that Argus needs permission to cut those trees even though Argus submitted a tree preservation plan also covering lot 7. Allowing CMN to violate their own tree preservation plan is the type of mistake that should be corrected. So at the very least I request that the City correct this mistake and withdraw permission for CMN or Argus to cut any trees on lot 7. Thank you. Odom: Thank you Mr. Futcher. Jordan: My name is Bob Jordan. I live at 280 Ila Street in Fayetteville. In 1998 there was a preliminary plan involving the whole 300 acre tract which set up the preservation of the trees on lot 7 and 15. Now we, it is inconceivable to me that the drafters of the tree ordinance planned on subdividing the lots. There would again be a reapproval or additional cutting of those trees. It doesn't make sense to preserve 15 percent and then subdivide the property and then take 15 percent of that 15 percent which comes to 2.1, 2.25 percent. It doesn't, it's just not conceivable that that was the intent of the ordinance. That's it. • Planning Commission Minutes June 19, 2000 Page 92 Alexander: Fran Alexander, Foxhunter Road. I just want to make a few comments, observations from tonight. There have been some, I think perhaps because we are sensitive, denigrating comments about citizen motive of this appeal. And as a citizen who has and who's family has been seriously effected by engineering mistakes or carelessness or interpretation, as have many others in town, I think it behooves us to, if we are going to be citizens of this area, to try to be as stickler as possible about all the details of what is happening in this large scale development. I also would like to say that the Saturday rain water that came pouring down through this development taking quite a bit of topsoil with it this weekend was probably not all that unusual. I live in a very tight watershed and see a lot of this happening. It is something that I think that you really need to consider in this ordinance, series of events of how these ordinances are ordered, because the construction of the pavement and the rooftops that will drain onto that pavement has not happened yet and yet this much flooding occurred in this weather condition this weekend. Also, I know that Mrs. Edwards did not discuss that the, that Mud Creek is a floodway. I've asked her perhaps on upstream it is a floodway. As we pave continually downstream the character downstream. changes. This is why 100 year floodplains in this country are now 50 year • floodplains. It's because of paving: The calculations are very difficult because this 300 acres can not know exactly what's going to happen downstream from it. I'm not even sure that they know what's going to happen within it. So, this is a very serious thing that I think speaks to the reason the entire development needs to be taken as a whole as well as the vegetation on that development. That vegetation does determine the effects of water in the floodways and floodplains. Mr. Beavers and others have said the lot line changes are minor issues. As the other figures have pointed out, it's not a minor issue to those of us who are trying to save trees in this town. If you keep changing it, it's just 52 pickup every time we try to come forth and know what's going on. I think that this evening is a prefect example of the citizen involvement in this town trying their very, very best and giving their time and their money and their effort to make this community a place worth living in. I think that should be respected and not pointed out as some ulterior motive, whatever that motive may be. Lastly, I would like to say that personally aggrieved is certainly a matter of interpretation. Odom: Any other member of the audience like to come up and address us? Vick: I'm Al Vick and I live on East Rock Street. I'm not very familiar with the grading ordinances and that type of thing but I am really troubled by this talk about citizens not having any standing to have any type of appeal. You know, we • are the ones who live here. We are the ones who have to drive by these eyesores. We are the ones who live downstream. If something is rushed through too • Planning Commission Minutes June 19, 2000 Page 93 quickly we are the ones that suffer in one way or another. If it's not us personally it's our neighbors. A lot of these people that seem to have a standing here, Argus Properties from North Carolina, CMN Business Park from Wisconsin, Kohls Department Store from Wisconsin. Fayetteville Exchange, LLC from Georgia having to have documents signed in Massachusetts. How is it these people have standing to use and take hundreds of acres of our town at a time but the people who live here, we don't have any standing, you know? It's not the same thing to me as you building a house or what the plumbing is like in your house. We are talking about major developments that impact our community, that impact our quality of life. So, I just hope that you all make the right decision tonight and slow it down a little bit. Odom: Al I think that you make a very good point about personal standing but just to be clear, I think CMN is actually owned by Fayetteville residents. Just for the record. Any other member of the audience like to address us on this issue? We have already run over the 30 minute time limit. I don't see anybody else that would like to address us so I'm going to go ahead and close the floor to public discussion and bring it back, I'm sorry ma'am, were you standing up, did you • want to talk? Nesbitt: Can I just say it from here? Odom: Yes. Just say it. Let's hear it. Nesbitt: Okay. My name is Sue Nesbitt. I live at 1718 Austin. Odom: Okay. Nesbitt: My house is falling in because I was told by (inaudible) Construction Company that they had tons of our houses falling in, that we are on a moving hill. It is a slide hill with water rushing under it and that he could put $2,000.00 worth of stuff in there, he could put $20,000.00 worth of stuff in there to get it up and put it all down and within a year it would be to do all over again because it is a living hill that I live on. It is in constant motion. My insurance company will not cover us. There are cracks in the wall and in the linoleum in my floor because of this. And where was the Planning Commission and where were the people that were supposed to come in and say this is a safe place to build a little housing development here? Where were the people who were supposed to be protecting us when this house was built? I have neighbors who have had several french drains put in and they are all collapsing because of this living area that we are living in that has wet wether springs that come up in our front yards that we • Planning Commission Minutes June 19, 2000 Page 94 weren't even told about. This was 30 years ago and it hasn't gotten any better. We're still trying to fight to get the right thing done, you know. So, obviously (inaudible) And I'm battling now trying to find out what to do at my house and my house is falling in. Thank you. Odom: Thank you. I'll close the floor now to public discussion. 1] 0 • Planning Commission Minutes June 19, 2000 Page 95 ADMISSION OF EVIDENCE: Odom: I'll bring it to the Planning commission for questions or comments. Gaston: Can I ask a question? Odom: Yes you may. Gaston: At the beginning we stated that admission of the exhibits would be held off till the end and then we forgot about that. Odom: Yes. Gaston: And I'm assuming that strict rules of evidence and admission of documents do not apply. I think that primarily the documents that I have given you and all of the exhibits are public record. I hope that there is no objection to the admission to all of the things in your packet but if there is I would like to know that now. • Odom: Jerry, do you have any objections? Rose: Sure do. You bet'cha. Odom: Well let's hear them. Rose: Let's go through them a little bit here. Exhibit 1 is the John Harbison's memorandum. No problem with that. Exhibit 2 is an affidavit, affidavit, affidavit, no problem. Exhibit 3, I can't imagine what an EPA Sierra Club press release has to do with anything and so I will object to that as to relevance, heresy, you pick. Exhibit 4 is an attachment to a lawsuit. Odom: Hang on a second Jerry. I want to just set this to the side. Okay go ahead. Rose: So I will object to exhibit 3 that Sierra Club press release. Attachment A which is apparently an attachment to some lawsuit or another. I don't even know what it is. I certainly haven't been able to cross examine anybody regarding the figures that are on there. Nor do I know what the hay it even means. It was not introduced by anybody so, yes, I'll object to it. It's heresy and it's, I guess it's submitted for the truth of the matter stated but I can't figure out what truth is even attempted to be stated there. Exhibit 5 is something to do with the EPA, United • State Environmental Protection Agency Office of Water. The total maximum daily load, TMDL program. It's a one sheet document and, forgive me, I don't • Planning Commission Minutes June 19, 2000 Page 96 understand it's relevance where it comes from what it is, I have no idea what goes behind it or why it was ever profligated so I will object to that. Exhibit 6 is a, I don't even know what exhibit 6 is. I guess, it doesn't look like I have any problem with it. It looks like a diagram of the property in question. Odom: Okay. So you don't have any problem with exhibit 6. Rose: No. Exhibit 7 is some pictures taken at flood stage on January 17, 2000. I do not know what relevance this has to the grading plan that we have submitted before us. These pictures were taken without any grading plan and for all I know the drainage may improve a great deal with the grading plan we have suggested. I assume that it would. It's been the testimony of the City Engineer, so I'll object to that for relevance. Exhibit 8 that's mine. I don't guess I can object too hard to mine. Exhibit, and I guess the rest of it, yes that's fine, whatever. Exhibit 10, Guy Washburn, no problem. Exhibit 11, this is an interesting one. From the House of Representatives stationary signed by Randall Mathis, no excuse me, Representative Jan Judy, a letter from Jan Judy to Randall Mathis. Now, forgive me but I don't understand the relevance of that document and certainly it's heresy • at it's finest form. Than I have a letter from the ADEQ as exhibit 12 which I'll object to. Chuck Bennett, Chief of the water department is writing a letter to some Jeff Sorrells who is APAC Arkansas, Inc. I don't know these people, don't think they have anything to do with this so, you bet I'll object to that. Exhibit 14 is..... Odom: No, exhibit 13 is next. Rose: Thirteen I'll object to. Fourteen, an option for the purchase and sell of real estate... Odom: Hold on Jerry. Rose: I'm just trying to get it over with. Odom: I know you are. You said that you did object to, ok 12. Okay, go ahead. Rose: I'm at 14 for what it's worth, an option of the purchase or sale of real estate. I don't know what relevance it has but shoot, if you like it in there that's fine with me. is Odom: So you are not objecting to 14? • Planning Commission Minutes June 19, 2000 Page 97 Rose: I'm not objecting to that. That's fine. Robert Walters, Chief Engineer is writing to Mr. Rankin here, let's see what this is. Man, I'm at a loss to this. This says reference is made to your letter regarding relocating the westbound Gregg Avenue exit ramp on the Fulbright Expressway. Well, I don't know what that has to do with either the price of eggs or the Grading Permit that's before City Council, so I'll object to 15. 16 no problem that's part of our ordinance. 17 minutes from a 1998 Technical Plat Review on CMN Business Park II Phase I. I'll object to that because it doesn't have any relevance to what we are talking about. So 17 I'll object to. And 18 has a couple of cars apparently on the front page of the morning news going through water at Joyce Boulevard and Mall Avenue. I don't know, sure I'll object to that. I don't know what relevance that's got. Odom: Okay. For the record without objection, Exhibits 1, 2, and Jack if you have an objection you better speak up. Butt: Okay. Odom: Exhibits 6, 8, % 10, 14, 16 shall be admitted and made part of the record. • Butt: Sixteen was the last one admitted? Odom: Yes. Sixteen was the last number. Butt: Let me take a look at one here. Okay. No objections. Odom: Okay. Colene, exhibit 3 is a memo from the Sierra Club and has been objected to on the grounds of relevancy and heresy. Gaston: Yes. These initial documents I utilized in my discussion of why regulation of grading is important. Regulation of grading and control of grading and prevention of storm water runoff is directly tied to sediment and siltation in our waterways. All of these documents to which Mr. Rose has objected on grounds of relevancy have to do directly with the issue of sedimentation which is tied to the grading. I believe they are relevant here. I believe they are helpful in understanding the ordinances and understanding when the ordinance says............ Odom: Mrs. Gaston what specifically does the lawsuit that the EPA settled have to do with the grading permit? • Gaston: For one these are court documents and so I believe that they should be acceptable as public record. The settlement reached an agreement on what watersheds would • Planning Commission Minutes June 19, 2000 Page 98 • • be studied as impaired waters. At the top of the list is the Illinois River watershed. The Illinois river watershed is the receiving water for the streams that go through this development and the stream that runs along the east side of lot 15, That is the relevance. Some of my arguments related to the Grading Permit are that the measures provided are not sufficient to protect against erosion and polluted storm water runoff included with sediment. I also, one of the arguments is that the Grading Permit should not issue unless it is accompanied by the Drainage Permit and that again is directly tied to the issue of whether sediment runoff will be controlled at this site. Odom: Well, I don't see the relevance with regard to this particular Grading Permit. And in particular with regard to exhibit 4, I don't know what that pertains to. Gaston: It is the attachments to the consent decree filed in Federal Court. Those . attachments specify the streams that EPA have agreed are impaired. On the list on page A-4 is the Illinois River and a number of those stream segments. The pollutant of concern that is listed in those attachments is siltation. This is the watershed into which runoff from this development, CMN, will flow. Odom: I'm not going to allow exhibit 3 or exhibit 4. Exhibit 5 is a total maximum daily load. This looks like something that's been ............ Gaston: Underneath there, look, it gives a description of why sedimentation is a problem. What it does, that it chocks out the life of the aquatic species in the stream. That's why it's provided. Just so, you know, this is background so you understand why these erosion control measures are important and why when they are insufficient you should rethink a permit. Odom: Again with regard to 5 I don't see the relevance. Exhibit 7 are some photographs taken of the site out there at CMN Business Park. Is that right? Gaston: Yes. I took those. Odom: 1 don't have any objections to the photographs. Gaston: And to correct the record those were taken last Saturday. They were not taken during the floods in which people were stranded. They weren't taken in January as Jerry said. They were taken last Saturday. I don't believe, you can use your own experience whether that was an extraordinary rainfall or not. Odom: Well, nevertheless, I think they show the site or the area of the site and therefore Planning Commission Minutes June 19, 2000 Page 99 I'm going to allow exhibit 7. Exhibit 11 is a letter from Jan Judy to Randall Mathis and then his response. What is the relevance of these documents? Gaston: Look at 3. This is talking about the CMN Business Development. There is one Storm Water Construction Permit that has been issued to APAC, McClinton - Anchor for the road work. What Mr. Mathis is saying is he is not going to automatically issue a permit for storm water construction at Steele Crossing or at any other large scale development. He is going to require that the pollution prevention plans be submitted first for review. That's another necessary permit for this development that I believe should be taken into account in terms of issuing the Grading Permit. Odom: Well, these are really state issues that I don't see that we can't take into consideration so I'm not going to allow 11. Exhibit 12 is a letter from Chuck Bennett. Gaston: It's the permit essentially and it has the application attached for the CMN road is construction. It's a Storm Water Construction Permit. Odom: And this is the permit that they submitted to the state. Is that correct? Gaston: Yes. The only reason I submitted that is because I gave you a copy of the storm water pollution plan as exhibit 13 and I wanted to be clear what these documents were, that you didn't just have a stand alone pollution prevention plan without the permit. The reason I submitted the storm water pollution prevention plan is that it clearly states any subsequent large scale development will file a separate NOI. I had heard some discussion that this development from the engineering staff could come under the APEC, McClinton -Anchor permit and I wanted to make it clear that that was not correct. Odom: Well, these do apparently, while these again are state, these are state documents that we don't take into consideration. Gaston: You know I think some of these things you are excluding, you could decide what weight you want to give them, certainly. Odom: I will allow 12 and 13. Those are in conjunction right? Correct? Gaston: Pardon? Odom: Twelve and 13 are together essentially? Planning Commission Minutes June 19, 2000 Page 100 Gaston: Yes. Odom: Okay. I'll allow those. 15 is a letter from Robert Walters from, to Kirk Rankin. What does this have to do with the Grading Permit? Gaston: This was included to go along with exhibit 14 which is the document filed in the courthouse that gives Fayetteville Exchange an option to purchase lot 7 by July 1 ". One to the conditions, apparently, of that purchase is that an off ramp be located from Shiloh Drive to the Fulbright Expressway. And the letter from the State Highway Transportation Department just states that, I don't want to misstate what it says, but I think it says, no, we are not going to allow that. Odom: Okay. 15 again I just don't see the relevance of 15 and what we have before us so I'm not going to allow 15. 17? Gaston: These are your own Planning Commission Committee minutes. Odom: Yes. And you referred to them in your presentation. • Gaston: They are the ones that show that the trees in this site were to be preserved under the earlier plans. Odom: Okay. I'll allow 17. Exhibit 18? Gaston: I didn't get to that but that's what happens when you have problems with drainage. Odom: Okay. Gaston: And if you don't issue your drainage permits while building is gong on. Odom: I'm not going to allow 18. Don would you read which ones I allowed? Bunch: So far it looks like 3, oh, allowed, 7, 12, 13 and 17 is allowed. Odom: In addition to the original ones that went in without objection. Okay? Gaston: I just have one other question. I didn't go into detail on standing because I knew you had been given the memo, but I just want to ask if everyone's had an • opportunity to look at that and the affidavits? Planning Commission Minutes June 19, 2000 Page 101 COMMISSION DISCUSSION OF STANDING: Odom: Well, I'll tell you what. That will be my first question. I'll ask everybody that question as well. Now I'll bring it to the planning Commission for questions and comments. And if someone would like to address the issue of standing first as that seems to be one of the ones in front of us. Estes: Mr. Chairman, the issue of an aggrieved person in an administrative law proceeding or an appeal from an agency to a judicial review has historically been given a much broader scope and definition than in other circumstances. The cases that we were favored with by our City Attorney are zoning cases. In those cases a connection, a direct connection or nexis with the property is often required for the status of an aggrieved person to exist. Although our administrative procedure act is not directly on point because we don't have any definition regarding what is an aggrieved person and what would result in standing and therefore in subject matter jurisdiction from an administrative decision, that is the permitting decision to the Planning Commission, I think the administrative procedure act can give us some guidance and direction. Our Arkansas Administration Procedure Act • provides that any person who considers himself injured in his person, business or property by final agency action, our Appellate Courts in Arkansas have said that restricting the definition of aggrieved person only to those individuals who may be regarded or characterized as parties to the administrative proceeding is unduly restrictive. It is for these reasons that I would like to make a motion that we afford the named appellants standing and that we proceed with a discussion on the merits of the appeal. Odom: I don't want your motion to fail for a lack of a second. I think that we could probably accomplish that in one large motion. Allen: Mr. Chair, I'll second. Odom: Okay. We have a motion by Commissioner Estes and second by Commissioner Allen. Would you for clarity sake, restate your motion. Estes: I move that we afford the named appellants status as aggrieved persons finding that they have standing that therefore subject matter exists for us to hear this appeal and proceed forward with a determination of the substantive matter of the appeal. 0 Odom: Thank you. Planning Commission Minutes June 19, 2000 Page 102 Hoffman: I just wanted to add that I think that the very nature of this development warrants the type of discussion that we've had here tonight and that in no way do I find that this sets a precedent for property owners from across town to come and question other developments that do not have similar issues to this. But I will support the motion. ROLL CALL: Odom: Any further discussion? Will you call the roll? Upon roll call the motion carries 9-0-0. • 0 • Planning Commission Minutes June 19, 2000 Page 103 COMMISSION DISCUSSION OF AD 00-19: Odom: Any other questions, discussions or motions? Hoffman: Mr. Chair, at this time I would like to bring up a document that's not been discussed before and some, just parts of the submittal process. This is the Development Manual that is available to everyone who wishes one and I believe is handed out to developers and any member of the public wishing to have one by City Staff. In it, it contains references and policies that dictate partial plan submittals. It seems to me that this document, I'm not sure how long it's been around but I think it's been developed and redeveloped by staff over a period of time. It has memorialized a phased submittal process for Grading Permits. It is also quite clear to me through reading through this document that no building permit for a large scale development could be issued unless all final grading and calculations and erosion control measures had been approved by the engineering department, thus, no Grading Permit no Building Permit. That being said, I believe that my leaning is that the Grading and Drainage Permit, although incomplete is not inconsistent with what has been standard City policy, certainly • as long as I've sat on the Planning Commission which has been a few more years than I can remember. So, it talks about review procedures that continue through each phase of construction, preconstruction meetings, mandatory meetings and other submittal requirements. With this in hand, which I'm assuming, I'd like to ask, do the three attorneys that are arguing this case, are you all aware of this document? Gaston: I am. I'd like to respond to that. That document........ Odom: Mrs. Gaston, you have the floor. Gaston: May I? Thank you. Odom: Yes. Gaston: You're correct Ms. Hoffman. That document seems to incorporate the approach that Staff has utilized, but I will point out that that document is not the law. The ordinance is the law and it's quite possible that that document is incorrect. Hoffman: Well, and you have put me in the position of saying that I can certainly say, and I don't have any more direct questions for you, but I can certainly say that I agree . with almost every opinion that's been presented here tonight on both sides. Because I do believe that what we have done is point out that our current Planning Commission Minutes June 19, 2000 Page 104 ordinances are certainly lacking in clarity and that possibly, well, most certainly we need to update or clarify or otherwise improve our ordinance in three major areas. That is in tree protection, l do believe firmly that the wording in that ordinance is vague and we have done what we have done on the tree preservation plan, when we approved it 6-3 back a couple of months ago, but I think also that it's really important that people remember that 90 percent of the zoning in Fayetteville is residential and when we all look out around town and see the tree covered hills and take a look at your hillside ordinance, which is not a part of this discussion, but that hillside ordinance governs far more with regard to tree removal and preservation than this already pre -zoned 300 acre site. Thirdly I'd like to say that we have no water quality ordinance, although I don't believe state law prevents us from passing one. Detention ponds typically include filtration. Mr. Beavers, I'm sure, could elaborate on what a filtration system is if anybody wants to know, but I believe that would vastly improve the quality of the water that's discharged into the creeks. Right now we have no ordinance requiring that, which I was amazed to learn upon coming on this Planning Commission several years ago. So, that being said, my position is that we have raised the benchmark on this project a great deal more than we have on any other one in my experience • but that we can do no more without rewriting ordinances in the middle of this project. So, that's my concern about overturning or denying a Grading Permit. The tree ordinance or the tree preservation plan is in court. I think that, I do believe that that is a separate issue now and out of our hands because it is in District Court and this is an administrative proceeding hearing a Grading and Drainage Permit. So I guess to wrap it up, although no party has won or lost throughout this process yet, we will all ultimately loose in this community if the polarization continues and we do not go forward to better our code of ordinances. I would like to see the energy that's been generated to this cause to continued in a productive way through the process. Thank you very much. Estes: Mr. Chairman I have some questions for Mr. Beavers to perhaps help me understand a little bit better where we are. Jim there is the statement in paragraph 19 of the appellant's appeal, a Storm Water Management, Drainage, and Erosion Control Permit is required before grading activities can be permitted. The appellants site the UDO § 170.03. As I look at that the wording is that no person may subdivide and develop without first obtaining a Storm Water Management, Drainage, and Erosion Control Permit from the City. So, that's my first question, is there a Storm Water Management, Drainage, and Erosion Control Permit in place? • Beavers: No sir. To answer your question a Drainage Permit, and again we use Drainage like Mrs. Gaston did, a Drainage Permit has not been issued for this development, • Planning Commission Minutes June 19, 2000 Page 105 no. Estes: And does, is there a, then it follows that there is no Storm Water Construction Permit from the Arkansas Department of Environmental Quality. Is that right? Beavers: Sir, that was covered, yes that is right. That is a state requirement and as noted it's covered in the Grading Approval Letter. Estes: So, those two things don't exist. Is that correct? Beavers: Yes sir. Estes: Let me flip back over here, you're June 1, 2000 letter to Mr. Mel Milholland which is the Grading Plan for Steele Crossing, it can be found at page 1.38 of the packet that we are all sharing, you wrote this letter after the Grading Plan had been submitted on May 26, 2000. Is that right? Beavers: Yes sir, that's right. • Estes: I've got two issues I want to talk to you about but let's take this one first, is that in that letter you say engineering policy allows phased and partial project approval based upon the drainage effects to the adjacent property. Is this phased permit process that we've heard about? Beavers: Yes sir, generally. Estes: And then it looks to me that what you have done here is you have listed what I would call conditions of approval or conditions. Conditions subsequent that have to be met. Is that what this letter is doing? Beavers: Yes sir. That's what it states it's doing. Estes: And then paragraph 12 of that says, where applicable compliance with all state and or federal requirements which may include formulation of a Storm Water, so on, filing the NOI, concerns for wildlife and so on. So those things have not been done, is that right? Or at least they had not been done when you wrote this letter on June 1. Is that correct? Beavers: That is correct and if you will further read the paragraph it says please furnish this • information at the preconstruction meeting. • Planning Commission Minutes June 19, 2000 Page 106 Estes: Right. So that's a condition subsequent. That's coming after that letter. Now here's, does a Grading Permit exist? Beavers: Yes sir. Estes: And is it subject to all of these conditions that you've laid out in this June 1s` letter? Beavers: Yes sir. Estes: And is one of those conditions this Storm Water Management, Drainage, and Erosion Control Permit? Beavers: No sir. Estes: Is there a Final Grading Permit that exists? Beavers: It is this letter, yes sir. • Estes: And it's subject to these conditions that you've set out in this letter? Beavers: Yes sir. Estes: Let me ask just one other thing. We've seen this UDO §169.08 (B) that says no subdivision, no large scale development plat approved before a final grading plan has been submitted and then we've learned that the grading permit application was submitted on May 26, 2000 and this Commission approved the large scale development on April 24, 2000. Was there any form of a Grading Permit in existence on April 24, 2000? Beavers: The preliminary plan was presented to you through the process as on all other developments which you have reviewed since you have been a Planning Commissioner. Estes: Now, say that again because I couldn't quite hear you. Beavers: You had the preliminary grading plan which is the same as every other development that you've had before you while you've served on this Commission. • Estes: So on April 24, 2000 we had a preliminary grading plan. Did we also have a • Planning Commission Minutes June 19, 2000 Page 107 grading permit application? Does that come before the preliminary grading plan? Beavers: You have a preliminary application that should have been part of the package that came in with the entire large scale development package. Estes: Thank you Jim. Beavers: Thank you. Hoffman: I just wanted to point out in the same letter you are referencing, and this is always the case I believe, that the developer proceeds entirely at his own risk during this process and that he better understand what the grading and drainage requirements are in the City of Fayetteville, otherwise he's liable to have to redo some work that's in place. That's on item number IV at the bottom of page 1 on page 1.38. Estes: Mr. Chairman I have another question for Mr. Beavers. Jim, is it fair to say that what we have is a phased permitting process and that these, you know, when we read the appellant's appeal that these things that are not done have to be done . before there is grading? Am I not correct in that statement or am I correct? Beavers: To answer the first part of your question, yes sir, this has been termed quite a bit lately as a phase process. I'm not sure that's the best term. We are allowing earthwork to take place while we check final drainage calculations. As far as your second part as to whether the other items in the, or all of the items in the appeal have to be done before there is grading, no sir, I do not believe that. We have reminded them of state requirements they need to meet. The other 18 items, you know, I'd have to get them back out to read them to answer specifically, but no sir, I do not generally agree with that. Estes: You do generally agree with that? Beavers: No sir, I do not. Estes: Okay. What, tell me what parts of my remarks you did not agree with. Beavers: No sir, I said I do not generally agree that the conditions laid out by the appellants have to be met before we issue a Grading Permit. Estes: Well, here is what I am struggling with is that the Grading Permit has been issued. • Beavers: Yes sir. Planning Commission Minutes June 19, 2000 Page 108 Estes: There are some things that are required by our ordinances that have not been done and you've listed those in what I would call your conditional letter, your June 1" letter. Are these people going to be allowed to grade if they don't get a Storm Water Management, Drainage, and Erosion Control Permit? Beavers: That was not a condition of my letter, and yes, they would be allowed to grade before they get their Drainage Permit. Estes: Now why is that? Beavers: As explained, several reasons. Firs we'll start with our City Attorney has reviewed this at Alderman Young's request and said that it is proper and okay to issue grading permits. I'm the City Engineer and I'll yield to the higher and smarter people in our City. Secondly, as mentioned in this letter, they have done the drainage. It hasn't been approved. It's almost approved. They've got some revisions to make but they have laid out the drainage for the entire subdivision. The drainage on this specific lot has to match and fit the overall drainage plan for the subdivision. This is a very large lot but still this is just a lot in a subdivision, • and the drainage for the subdivision for the subdivision controls. Not the drainage on this lot. Whether they go out there and start pushing dirt around, it's not going to materially effect the final drainage product for this lot. Estes: Thank you. Beavers: Thank you sir. Estes: Mr. Chairman 1, maybe this will be my last question. On the final plat there is the engineer's certification and it reads this grading plan complies with Storm Water Management, Drainage, and Erosion Control. How is that possible if the Storm Water Management, Drainage, and Erosion Control Permit has not been issued? Beavers: That's on Mr. Milholland's grading plan? Estes: That is Mr. Milholland's engineer certificate. Beavers: I can't see what you are looking at. Is that the grading plan? Estes: That's, I'm not telling you what to do, but if you want to you can step up here and look at it and look at the engineer's certificate down there at the bottom that's • required. It reads this grading plan complies with Storm Water Management, Drainage, and Erosion Control. The question that I have is how is that possible if • I • Planning Commission Minutes June 19, 2000 Page 109 there is no Storm Water Management, Drainage, and Erosion Control Permit issued? Beavers: I think that Mr. Milholland would like to answer that question. Estes: Okay. Milholland: I'd like you to read that first line it's talking about the grading and erosion control only. It's not talking about storm water. Odom: Mel Milholland. State your name for the record. Milholland: Mel Milholland, Milholland Engineering, Fayetteville, Arkansas. When I put this statement on here I thought about the very thing that you're thinking about so I specifically put, and it may be read different ways, but it says this grading and erosion control plan. It doesn't say anything about drainage, okay. We are looking for a phased permitting. We are looking for a Grading Permit. Compliant with all applicable City Ordinances regarding physical operation of land and storm water management, drainage and erosion control. Estes: So when you, I mean, It's my understanding that the appellants are appealing from the Floodplain Development Permit and the Grading Permit, that when you included in your certificate this grading and erosion control plan you were not referring to the Grading Permit? Milholland: No sir, it doesn't say that. It just says erosion control. That's what I'm talking about. But your ordinance includes other wording. Estes: Thank you Mr. Chairman. Odom: You are welcome. Other questions, comments or motions? Bunch: A question for, I believe this is for Sara Edwards. There was a comment made about the drainage from this going into Mud Creek. Does it go directly into Mud Creek or does it go into the unnamed tributary of Mud Creek which is zone A I believe, according to the plan we have here? Odom: Mrs. Edwards? Edwards: This specific site is going into a tributary which is unnamed tributary 3. • Planning Commission Minutes June 19, 2000 Page 110 Bunch: Okay. And that is a zone A we have on page 1.53? Edwards: Yes it is. Bunch: Okay. Thank you. Odom: Thank you Mr. Bunch. Allen: Mr. Chair, well I'm the new kid on the block and try as I might I was unable to find a matchbook that could make me an attorney or an engineer over the weekend but I have been reading all of this and I see here in my Development Manual when it's talking about the tree preservation requirements, it says that to cut or fill with tree preservation areas is not permitted and the Drainage and Grading Permit for the proposed project will not be issued in accordance with the tree preservation plan. So it seems to me that they all work in tandem. That you can't do one without the other. Marr: Chairman Odom? Odom: Commissioner Philbin? Marr: This will be my final answer. Actually, there are a couple of things that I would like to address and I too as Commissioner Allen don't plan to be an engineer or an attorney, thank God. In looking at this information I am through my business operations typically a stickler for abiding by a process. I know that in our company we are ISO certified and we go through a flowchart of processes. We make it very clear on what we do, what our client does, what's broken out as various responsibilities. That's one thing that I've struggled with in this entire thing because when I look at this letter I think it clearly states what a, that it is a permit. I think it clearly states that there are conditions of approval but I don't think it clearly states what are the responsibilities of the city, what are the responsibilities of the state. Where do those merge and match. So I guess the first thing I would like to say is I really think it's important that somewhere outside of this forum this be looked at as a process, a flowcharted process, which makes it very clear for both developments and citizens. Secondly, I'd like to make a comment that I think that citizen involvement is extremely important and sometimes in the heat of battle I think we loose site that discussion, anger, frustration, clapping, laughing, smiling, all of those things are a part of a process that improves things. So, the first thing that I want to say to the entire people • present and to those watching is that I do think there has been benefit from this regardless of, factually from a legal standpoint, how things shake out. I • • Planning Commission Minutes June 19, 2000 Page ill appreciate citizen input. I respect citizen input. It weighs heavy on my decisions. One thing, from going back to my stickler for detail, in the packet I see a grading application or physical alteration of land (grading) and something hand written, that does not contain the signature of the owner, and I want that corrected. I think that's one thing that we have talked about getting corrected but I think that it's important that it be reflected as the other documents do. In our packet it's exhibit 1.36. Unless I've missed something, I haven't seen a document presented to me that is this application that shows the correct signature. I do think that it's something that we need. The second thing is that I do believe it's been a practice of the City to have approval of large scale development based on subject to requirements. If you look in our packet, and I believe it begins on 1.73, that Tim has so graciously given us as well as a process, item 12 says, prior to issuance of a building permit the following is required: grading and drainage permits is item A. Since my time on the Commission, which was a year ago in April, this has been a very common practice that I have seen. I think that it brings about good information that the development process that we look at versus the ordinances do have discrepancies, and again I think that goes back to something that we need to look at, but I do believe that when I look at what we have traditionally gone through, it's page 1.75 excuse me, but it's item 12, I think it's consistent with what we're doing and I do believe that Tim, his staff, the City Engineer had done a practice that is consistent with what I have experienced as a Commissioner. I do believe that it could be more clearly articulated, again, if we had a process that said what was our part and what is the state's part. I don't believe, I guess the question I still have is, or let me make something clear, because I want to make a comment on Tim's behalf, as a Commissioner, and I can't speak for the other 8 sitting up here, but I clearly understood that we were approving large scale development 5.00 on lot 15 and that lot 7 and lot 15 were to be considered for site coverage and tree preservation. I'm very clear about that in terms of what I looked at. I do think that there is some, one thing I've learned tonight sitting through this process is I also think it's very hard to, or one of the things I want to make sure of, maybe, is that based on that approval process and then based on the fact that we have a tree preservation plan for lot 7 as a part of this scope, I do have concerns wether it was something that's happening or not, that trees could be cut on lot 7 by the okay of a letter that comes from that property owner. I think that that tree cutting plan needs to be in coordination with the preservation plan that was approved and that there shouldn't be just cart blanch. I think that it should also come back when we do the large scale for lot 7, not prior to that. That's my personal opinion as a Commissioner. I have a hard time thinking that, in listening to all of this today, that the Grading Permits and the Drainage Permits and the Floodplain Permits were, should be revoked. I'll phrase it that way. I do believe that we need the right signature on the Drainage Permit. I will not vote for it until Planning Commission Minutes June 19, 2000 Page 112 we make that a requirement. I also believe that the City has acted in the interest that they have always done since I've participated. I think that the biggest issue is we need to get rid of some of this ambiguity that is in these processes between ordinances and the interpretation. Bottom line, I want to thank the public and I want to thank the City and the developers for bring to fact things that we do need to work on. We are not perfect. Thank you. (Tape turned over) Allen: ........proper permits have been issued. Hoffman: Mr. Chair. Odom: Commissioner Allen were you finished? Commissioner Hoffman. Hoffman: Just to reply to Commissioner Allen. I disagree because I think that the tree replacement and the tree preservation are at issue separately and that the decision • that was made by this Commission to approve the tree preservation plan as it was is out there. I'm as confused or probably more confused than anybody about how that specifically ties in with the Grading and Drainage Permit but all I can say is since it's in court it's my understanding that this is absolutely not a part of our discussion. It was approved. It has been appealed or sent to the court and now that's the court's ruling on that one issue. Since the majority of the Planning Commission had ruled that some amount of tree replacement in the form of larger trees than were normal and so forth, was an acceptable tree preservation plan then already a certain amount of cutting and approval of cutting was implied by that action but it's separate from this discussion in my mind. Shackelford: Mr. Chair, I concur with those comments that that was the position I was taking. Odom: I'll entertain a motion. MOTION: Marr: Well, let me try it. I'm trying to think, Conrad, how to make this a non negative motion. I would move that we deny AD 00-19, however, well, how do I get my, I want that form in this thing and I want it properly done as a requirement of it. Butt: Chairman Odom, we have taken the form that was last signed by Mel Milholland • dated February 22n1 and Mr. Kirk Rankin as the agent for Fayetteville Exchange has signed that now. If that is the only technicality, that's done. I've handed that • Planning Commission Minutes June 19, 2000 Page 113 to the City Attorney for review with the City Engineer. Odom: Okay. Commissioner does that take care of your concern? Marr: That helps me. Did any other Commissioner have a comment before I guess I do this motion? Odom: That's my job is to find out. Marr: Well, I had a question specific to the lot 7 tree item. I want to........... Odom: I just don't see that that's relevant with regard to this case. Marr: It's not relevant. Okay. So, I will move that we deny AD 00-19. Shackelford: I'll second that. Odom: We have a motion by Commissioner Marr and second by Commissioner • Shackelford to deny AD 00-19, the appeal of the Floodplain Development Permit and Grading Permit for LSD 00-5 Steele Creek Crossing. Is there any further discussion? Estes: Mr. Chairman, very briefly, when we first saw this as approval for large scale development I was one Commissioner who voted against the approval for a large scale development. The reason that I stated at the time was brief. Perhaps it should have been more of an explanation, but simply stated it was that I think that we should follow our ordinances. We have in our ordinance the requirement that no large scale development plat shall be approved until a final grading plan has been submitted to the City Engineer and approved. Not a preliminary grading plan but a final grading plan. Further, in our ordinance we have the provision that no person shall develop a property without first obtaining a Storm Water Management, Drainage, and Control Permit from the City. And that has not been done. I understand fully and completely that what we have here is what I called a phased permitting process but I do not see that it complies with our ordinances and it is for that reason that I can not support the motion any more than I supported the approval of this project as a large scale development for the same reason. I think if the ordinances are spread of record in the book that we need to follow them. • Odom: Any further Comments? Will you call the roll? • Planning Commission Minutes June 19, 2000 Page 114 ROLL CALL: Varner: Bunch? Bunch: Could you restate the uh.............. Odom: Yes. You are having the same problem that I am. It's 10:30 at night and we are not sure. I believe that the motion, to me, that there was a motion and a second to deny the administrative item, or the appeal of the Floodplain Development Permit and Grading Permit. In other words you would be voting to, for the permit to stand as it is. Is that correctly stated Don? Marr: That's correct. Bunch: I'm getting too many people talking to me at once here, just a second. Now, let's do it one at a time so we understand exactly what we are voting on. Odom: If you vote for the motion, which is to deny the appeal, you are stating that the • action of the City was correct. Bunch: If I vote for. Odom: If you vote for. If you vote against the motion you are stating that the permits should be denied. Bunch: And we have no discussion on what the repercussions are, where we would take back up in the process if it is denied? Odom: We would have any discussions that you deem relevant to the issues. Bunch: Well, the question that I have, before we take a vote on this, to say if this process is denied where do we go from there? Where do we come in the process? What's the next step? Odom: Well, what we would have is a situation where the grading permits were not before us and I would assume that the applicant or the property owner would have to resubmit grading applications. That's how I would interpret the passing of or the denying of the motion. Mr. Rose, you are free to interject here, or Mr. Butt or Colene. • Gaston: Depending on the grounds for your deciding to revoke this permit issuance you • Planning Commission Minutes June 19, 2000 Page 115 may say that they could reapply with the condition that they also apply for the Stonn Water Management and Drainage Control Permit at the same time. That those be issued together. There are other issues that you could conceivably take this back to the large scale development process because of the argument, anyway, that that process wasn't followed properly. Rose: I just want to say that I agree with Mr. Estes wholeheartedly. There is not a member of staff, there is not a member of the Planning Commission, there is not a member of the City Council that I know who wants to do anything more than obey our ordinances and obey them to the letter. You and I may see differently on how that is to be interpreted but I assure you that is the response that I get from every staff member or whatever and accordingly, if this group should decide, for whatever your reasons may be, that we are not following the ordinances in the way that you wish them to be followed you simply tell us how and we will correct it. Estes: Thank you Mr. Rose. I see this as an issue of a finding of law and a finding of fact and I certainly respect you as a college and thank you for those remarks. Mr. • Chairman? Odom: Commissioner Estes. Estes: In response to Commissioner Bunch's remarks, my thinking would be that if the appeal was granted then, I'm not aware of any prohibition on reapplying for the Floodplain Development Permit and the Grading Permit, it would just simply be done as set out in the ordinance, that a condition precedent would be the Storm Water Management, Drainage, and Erosion Control Permit and then the Grading Permit which would follow the Floodplain Development Permit. I certainly don't intend for one moment to prevent the appellee from reapplying for a Floodplain Development Permit and a Grading Permit. Quite the contrary, I think that if we were to grant the appeal I think that we would be charged with telling the appellee what they need to do to make it right. We have already touched on a little bit of that. There have been administrative adminnisterial matters regarding signing documents and correctly reflecting simple ownership. Hoffman: Mr. Chair: Odom: Commissioner Hoffman. • Hoffman: If the appeal is accepted and the permits are overturned then I would amend or request an additional motion to discontinue use of the Development Manual • Planning Commission Minutes June 19, 2000 Page 116 because it is clearly what has been followed. Odom: Let me make this little point of order here. You're one motion ahead of us. The motion that's currently on the table for discussion is to deny the appeal. So, let's avoid guessing what the next motion is going to be and what the results of that motion. Hoffman: I guess I'm trying to make a point though. Odom: I understand your point. Hoffman: And it is a little late. Past my bedtime. Odom: Thank you Commissioner Hoffman. Marr: Mr. Chairman? Odom: Commissioner Marr. • Marr: I guess my, the thing that I'm still struggling with is I agree that I think that everybody wants to follow the law. I can tell you I just can't stand that we're, we get this divided in the City. But with that said, some Commissioner help me understand why this development would be held to a standard different than what we have been doing in this City at least in my experience, since April of 1999 where we have been approving large scale developments with Grading and Drainage Permits as a condition of approval and why it would be different in this case? I would just, I personally need to hear that. Estes: Commissioner Marr, I have some personal thoughts in that regard. One is.......... Odom: Then 1 will give you the floor Mr. Estes. Estes: Thank you Mr. Chairman. One is as we see more and more development in Northwest Arkansas issues such as this come to our attention which we didn't see years ago because we just did not have the activity that we have now. I am a relatively new member of this Commission and this is a Commission. I do not feel bound by actions of my predecessors. Because something was done that was not done on my watch and I disagree with that action I don't feel compelled to adopt that action. Quite the contrary I feel compelled to do what I think is the • right thing to do. And that is simply part of this process that we live with because in a year or several years I will be gone and someone else will sit in this chair and • Planning Commission Minutes June 19, 2000 Page 117 they will perhaps have a different view of this whole matter than I do. Odom: Commissioner Shackelford. Shackelford: I guess I will start with the same disclosure. I'm not an attorney or an engineer either but I have seconded the motion to deny this so I want to go ahead and get my feelings on record here. Simple terms I don't think that we can change rules in the middle of the game on this deal. I think that ordinances and procedures are interpretations. I think that we have approved several LSD's subject to different variations of final completion. I don't think that we should change the way that this has been interpreted up to this point. I think that we have a very capable City Staff to do that sort of thing. I think that in this area you need to depend on your experts. I know in my job it's very important for me if it's not in my area of expertise I pay an expert to tell me how to do something. I have not seen any justifiable evidence exhibited that these professionals have done anything outside of what we have been doing and I don't think that we can change the rules in the middle of the game. That's why I'm supporting this. If this is something that we want to do going forward, if the majority of Fayetteville wants to change the way • that this process is handled, I think that's fine. We can look at that process but I think it has to be from the beginning from a process. I don't think we can do that in the middle of a large scale development. Thank you. Odom: Thank you Commissioner Shackelford. Any.further discussion? Bunch: I think where I'm having my trouble with this is the combination, it seems like, of motions where one part of it is did the applicant abide by the procedure as set forth by the City and then the second is this one that we've just discussed as to whether or not the City had the proper procedure. Whether or not it went by the ordinances. From my standpoint I think we should separate the two and not combine them because the applicant could only go by what was presented to them in the ordinances and in the Development Manual. Then the City, whether or not the City followed the ordinances, I can see that they are combined but I'm having difficulty trying to determine how to vote on both. I have mixed feelings on how each part of it came down. Odom: Well, this is the first time that an issue like this has come before us and so certainly it's understandable that it's not easy to conclude the correct way to deal with what we have before us. All I can state to that is the motion that we have before us is simply to deny the appeal. • Hoffman: Mr. Chairman: • Planning Commission Minutes June 19, 2000 Page 118 Odom: Yes Commissioner. Hoffman: At the risk of taking up a lot more time, I'm going to try to answer your questions as related to other areas of the country that I've worked in in development. I find that this procedure is not drastically different from other planning department policies or processes. It is probably needing, well, definitely needs better documentation. But in the overall scheme of things a site plan is generally applied for to meet a number of different ordinances. Sometimes it's a combined site plan sometime it's separate site plans with separate bits of information like drainage, landscape, so on and -so forth. While that is being reviewed there is generally a separate review that's going on that we don't even talk about and that's the building and permit review. The building permit review is usually ready to be issued when all of the site plan issues have been looked at and agreed upon by City Staff members and voted upon by any Commissions or Boards that have to do with it. So, I guess that's why I'm not having as much trouble as Commissioner Estes with the policies that are set forth that may not directly echo the ordinance. And it is clear to me that we've brought up, you know, I've mentioned environmental things and tree preservation on hillsides and so forth • that we do need to, as a result of the really explosive growth that this area is having, we do need to revisit all of that. But again, I don't see how we can do it in the middle of a project that's already been submitted under this set of rules. Like I say, I agree with everybody. I'm all for changing the rules to be better and to make this city, to preserve it and in all sorts of zoning and in all areas and in all aspects but I just can't rewrite an ordinance for Argus Properties. Odom: Thank you Commissioner. Bunch: I understand that and I guess probably I was listening to too many conversations simultaneously and where my problem is, the motion seemed to include much more than the simplistic statement of the motion. You know, that depending on which way the vote comes down as to who is being centured, that it's more than just a question of were the I's dotted and the T's crossed. And that's why I requested to have the motion restated and also requested to have comments to have comments from my fellow Commissioners because I think there, you know, we've got, I feel that there were several things lumped together here and it was unclear as to exactly what the repercussions of the vote were. That's why I wanted the motion stated as simply as possible and also made the request to see that if the permits were revoked at what point and time the revocation would return to, at what point in the process. You know, would it go back to large scale • development or would it just go back to permit application. Those are things that we didn't fully discuss on, before we started taking a vote. I was formulating Planning Commission Minutes June 19, 2000 Page 119 these questions and the next thing I heard was somebody asking me for my vote on it. It kind of confused me. So, could we get a statement from staff that tells us if there is a revocation of the permit how much would be required at that point? Where does it go back to once it's revoked and then what is required to move Jerry, do you want to comment? Let me try. A lot depends on the reason for your denial I guess. As far as I'm concerned if you deny the permits, the permits no longer exist, okay. So you hav to reapply. Now I don't know how to fix the application again until you tell me what we did wrong, if anything. Now if it is a minor thing, such as Mr. Marr indicated that he needs the signature of the owner, well we've just got that. That' easy, and we've got a permit. No problem. But if it's more complicated than that, if you all want to delve into other matters, then you've just got to tell me why it is and what it is that 1 need to correct and I will do my best to follow it. Doesn't that make sense? I'm not trying to be obtrusive. I don't want to over fix I guess, my purpose is to please. I know, Conrad, you have always had an aversion to motions to deny and I think that's well founded because if we deny the appeal, what then have we said? Yor know, all of these other things that have been talked about and the comment that you've just made, Mr. Rose, on the various conditions. See, there are no conditions attached here. It's just cart blanch deny the appeal with nothing beyond that point to address anything. I think it does address something and it gives it a finality is what the motion does. In effect it states that the appeal that has been brought didn't have enough to warrant being approved, essentially. That's basically the gist of what or the result of the motion would be and I think if that motion fails, then you are right, we are sort of back at the drawing board, well what do we do now? And 1 think it would probably take a subsequent motion to ask for some type of remedy or illustrate tot he staff what they need to do to comply with what we feel they violated. If in fact we feel they violated something. So what we have before us is a motion that states, essentially, thank you Mrs. Gaston for the appeal, we've heard the evidence and we don't feel that the appeal is warranted and therefore it is denied. Even if there are maybe a couple of small I's that are not dotted and T's that aren't crossed, you know that is my question, that this is, throw the whole thing out and then do we, is the meeting over at that point and time if it's thrown out or there's subsequent motions to be entertained? • Planning Commission Minutes June 19, 2000 Page 120 Odom: If the motion to deny is approved then it's over. There is no appeal at that point. There is the right of the appellant to appeal that denial to Circuit Court. But no, there would not be subsequent motions. Well, I guess there may be subsequent motions but I don't think there would be, there would not be an item on the agenda at that point. Marr: Mr. Chair? Odom: Yes Commissioner Marr. Marr: This is a lesson well learned, maybe one of the time I keep my mouth shut. I attempted Commissioner Bunch to provide a motion to basically start this discussion and to put some finality to this proceeding today. If you feel that there is, that it is more advantageous to divide it, which I'm not sure I agree with, but if you feel that that is the approach, I would certainly entertain withdrawing the motion and have someone else make it. But I do believe that ultimately we've got to address, is the permit that we have today good? Is it not good? If it's not good, why is it not good and that there be some, for me, what was, I do think there are • point of orders. I do think Mrs. Gaston demonstrated the very essence of the document we start with doesn't have the person sign it. I wanted to see that. So if there are other things, again I would entertain hearing it, I'm just basically moving forward based on what I personally felt. Odom: And that's a proper motion and second and we've had a discussion and should you feel as though things need to be looked at in another matter the proper vote would be to vote against the motion to deny I believe. Bunch: I think possibly one of the problems I have is that this has happened quite rapidly and I was kind of wanting to have a chance to let it soak in and to hear the feelings on a broad range of subjects from other Commissioners and I do appreciate the finality of this. I was hoping that possibly we might have addressed some of the issues that if there were, you know, if anybody had something, said on this particular one I'm not comfortable with, as Commissioner Marr had done and received a signature. If there were any other issues that someone had a problem with we could address those issues before we take the thing as a whole. And also to separate out and differentiate between whether or not staff has properly gone by the ordinance and to differentiate that between whether or not the applicant made the proper moves at the proper times and had all the signatures and dotted the I's and crossed the T's. I was hoping we could maybe approach it from that standpoint so we would have a, possibly, little more definitive decision so that the community as a whole would greater understand the Planning Commission Minutes June 19, 2000 Page 121 action that we've taken. You know to smarmily dismiss Mrs. Gaston's appeal without qualification I think is a disservice to the amount of time we have all spent here reviewing this. Not just tonight but in past days. I was hoping that if there are areas where the total appeal does not have merit but there are minor areas of merit that then those would be brought forward and addressed. Odom: Okay. Let me just briefly speak to that point and I'll do it in the form of supporting the motion so it will keep us on tract. I support the motion because I feel as though while the applicant has brought forth an appeal which has shown some errors that the city staff admitted they have done, those errors have been corrected and are of such insignificance as to not harm anyone. Had those errors been done that showed some type of harm or had the applicant shown that they had been harmed that required more action than simply correcting the technicalities that had not been completed then I would be in, more in support of a motion to direct the staff to do something to correct the harm that had been done. But because I don't see the harm to the applicant that we have before us, because those technicalities have been addressed and taken care of, I feel as though a motion to deny the appeal is appropriate. • Bunch: Thank you. Odom: Is there any further discussion? Gaston: Do I have an opportunity to say........... Odom: Well, not typically but ............. Butt: You know, I object. This is about the fourth time that she has gotten up. She run over on her opening she went over on her closing. She got more time than all of us. She stood up by my account three times to add one more thing. I want 10 minutes if she gets 10 minutes. I'm sure Mr. Rose will. Let's vote. Odom: Colene, the proper procedure that we have followed in the past is once we have it before the Commission we don't allow additional comment. Gaston: I understand. I just thought that I might be able to add something to this discussion on how to proceed. Odom: But unfortunately, you know, you had that opportunity with regard to your closing • statement. I think that opportunity is already been afforded to you. Will you call the roll. • Planning Commission Minutes June 19, 2000 Page 122 Upon roll call the motion passes 6-3-0 with Commissioners Estes, Hoover and Allen voting against. Meeting adjourned at 11:00 p.m. 0 E 0 0 ��peeio, oledil' Save?, fi-D 00 /9 MOTION � SECOND 1 D. Bunch y B. Estes L. Hoffman S. Hoover N. Allen D. Marr �! C. Odom y y Shackelford / L. Ward ACTION VOTE 149-0-0 _3-n I