HomeMy WebLinkAbout2001-04-09 Minutes0
a
MINUTES OF A MEETING OF THE
PLANNING COMMISSION
A regular meeting of the Fayetteville Planning Commission was held on April 9, 2001, at 5:30 p.m. in
Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas.
ITEMS CONSIDERED
ACTION TAKEN
Approval of March 26, 2001, meeting minutes.
Approved
Page 3
AD 01-14.00:
Administrative Item (Millenium Place)
Approved
Page 4
CU 01-3.00:
Conditional Use (Cricket Communications, Inc. pp 528)
Denied
Page 5
AD 01-11.00:
Administrative Item (Dandy, pp 524)
Tabled
Page 18
CU 01-1.00(A):Conditional Use - wood fired boiler
(Hanna's Candle Company, pp 643)
Approved
Page 19
CU 01-1.00(B):Conditional
Use -
candle manufacturing Use Unit 31 in an I-2
Tabled
Page 44
LSD 01-6.00:
Large Scale Development (Hanna, pp 643)
Tabled
Page 52
FP 01-4.00:
Final Plat (CMN Business Park II Phase II, pp 173 & 174)
Approved
Page 56
CU 01-5.00:
Conditional Use (Trumbo, pp 485)
Approved
Page 79
CU 01-7.00:
Conditional Use (O'Reilly Automotive, Inc., pp 329)
Approved
Page 81
CU 01-6.00:
Conditional Use (Bandy, pp 484)
Approved
Page 86
RZ 01-7.00:
Rezoning (Mansfield, pp 444)
Approved
Page 100
AD 01-1.00:
Administrative Item (Amendment to Chapter 17 1)
Forwarded
Page 102
AD 01-8.00:
Administrative Item (Sidewalk Escrow Fund)
Forwarded
Page 15
AD 00-46.00:
Administrative Item (Definition of a Family)
Tabled
Page 106
2001 Subdivision Committee appointment
Page 123
MEMBERS PRESENT
• Nancy Allen
Don Bunch
Lorel Hoffman
Sharon Hoover
Conrad Odom
Lee Ward
Bob Estes
Don Man•
Loren Shackelford
STAFF PRESENT
Tim Conklin
Dawn Warrick
Ron Petrie
Kit Williams
Sheri Metheney
Kim Hesse
Chuck Rutherford
C,
J
•
MEMBERS ABSENT
STAFF ABSENT
Planning Commission
• April 9, 2001
Page 3
Consent Agenda:
Approval of minutes from the March 26, 2001 meeting,
Estes: Welcome to the Monday, April 9, 2001, meeting of your Fayetteville Planning
Commission. The first item of business to be considered is approval of the minutes of
the March 26, 2001, meeting. Commissioners are there any amendments, changes or
comments regarding the minutes from the March 26, 2001 meeting. Seeing none, the
minutes from the March 26, 2001 meeting will be approved.
•
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Planning Commission
• April 9, 2001
Page 4
AD 01-14.00 Administrative Item Millennium Place removal of condition to require large scale
developments for all lots within the subdivision.
Estes: The next item of business is the consent agenda. There is one item on the consent
agenda. It is an administrative item, AD 01-14.00, Millenium Place removal of
condition to require large scale developments for all lots within the subdivision. This
will remain on the consent agenda and a vote will be taken unless there is some member
of the audience which would like to pull it from the consent agenda for discussion or
some member of the Commission which would like to pull it from the agenda for
discussion. Is there anyone that wishes to pull AD 01-14.00 from the consent agenda?
Seeing none, Sheri would you call the roll please?
ROLL CALL:
Upon roll call the consent agenda is approved by a unanimous vote.
•
11
Planning Commission
• April 9, 2001
Page 5
O/d Business:
CU 01-3.00: Conditional Use (Cricket Communications Inc., pp 528) was submitted by Craig
Hull on behalf of Cricket Communications Inc., for property owned by Preston & Eunice Ferguson
located behind 2908 E. Huntsville Road. The property is zoned C-2, Thoroughfare Commercial and
contains approximately 18.28 acres. The request is for a 150' monopole to support wireless
communications facilities (use unit 3) in a C-2 district.
Estes: The next item of business is an item of old business, it is CU 01-3.00, a conditional use
submitted by Craig Hull on behalf of Cricket Communications Inc., for property owned
by Preston & Eunice Ferguson located behind 2908 E. Huntsville Road. The property
is zoned C-2, Thoroughfare Commercial and contains approximately 18.28 acres. The
request is for a 150' monopole to support wireless communications facilities (use unit
3) in a C-2 district. Commissioners, as an addition to your packet this evening is a
letter from Michael B. Smith from Calhoon Tower Joint Venture and we will get to that
in just a moment. That impacts upon one of the conditions of approval. Before we
begin discussion by the applicant, Tim, there was some concern regarding proper notice
of this conditional use, what has been done to notify the public of this meeting and of the
• previous meeting because of course at the March 26, 2001 meeting, this item was
tabled and continued to this meeting. What has been done to notify the public both of
the March 26, 2001, meeting and of this meeting this evening?
Conklin: Mr. Chairman and members of the Planning Commission, the notification requirements
for a cellular tower application is that property owners within 500 foot radius of the
tower be sent a notice of the upcoming Planning Commission meeting, public hearing.
Adjoining property owners are required to received that notice by certified mail. This
applicant did send out certified mail to all property owners within a 500 foot radius of
the project. Other notification that we are required to do is a legal notice in the
newspaper, 15 days prior to the Planning Commission meeting, that was done. We
also put a display ad in the newspaper the Sunday before the Planning Commission
meeting describing the project. In an effort to better notify this neighborhood, I had my
staff put two additional signs out after the last meeting, one at Stonebridge and one on
Wyman Road. We did put a total of three signs out. Originally, we had one public
hearing sign out on Huntsville Road. That's the extent of the notification that has
occurred. We have started e -mailing our agendas to neighborhood associations, having
our agenda scroll on the government channel 3 and also trying to get our agendas onto
our web page. We are trying to make an effort to reach out and notify the public.
Estes: Thank you Tim. Staff recommends approval of conditional use 01-3.00 subject to
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certain conditions of approval. Do we have signed conditions of approval?
Planning Commission
• April 9, 2001
Page 6
Conklin: No, we do not.
Estes: Let me read each condition of approval. Has the application had an opportunity to
review these conditions?
Hull: Yes sir. Mr. Chairman, in our last meeting, we made a request to the Commission to
consider elimination of the painting requirement. The applicant is willing to respond on
all the other conditions and, of course, if you require painting, we will. That's the one
request we thought because of the ever changing sky colors, the neutral gray steel pole
is a neutral color.
Estes: Let me read the conditions of approval. Number one, applicant shall comply with all
applicable federal regulations. Number two, equipment used in connection with the
tower shall not generate noise which can be heard beyond the site per §163.29 (A)(1).
Number three, lighting on the tower shall only be installed if mandated by the FAA.
Security lighting or motion -activated lighting may be used around the base of the tower
provided that the lighting is shielded in such a way that no light is directed towards
adjacent properties or rights-of-way. Number four, the tower shall be a monopole, no
• taller than 150' (including all antennas, arrays or other appurtenances). Number five,.
the monopole shall be painted a suede blue color. Number six, the utility equipment at
the base of the tower shall be surrounded by an 8'6" tall wooden security fence. The
tower shall also be equipped with an appropriate anti -climbing device. The facility shall
place signs indicating "No Trespassing", "High Voltage" or other pertinent information
on the outside of the fence. Number seven, landscaping shall be added to the site (and
shown on plans) which provides a "buffer of dense tree growth and understory
vegetation in all directions to create an effective year-round visual buffer" as required
by §163.29 (A)(11). Number eight, any connection to existing utilities to provide
power to this site shall be located underground. Number nine, only ownership and
cautionary signage located on the screening fence shall be permitted as provided by
§ 163.29(A)(3). Number ten, the applicant shall provide a certification letter that states
the tower meets or exceeds design criteria and all local, state, and federal requirements
regarding the construction, maintenance, and operation of the tower as provided by
§ 163.29(B)(9)(c). Commissioners, that is the letter that was provided to you this
evening from Mr. Michael B. Smith, Calhoon Tower Joint Ventures. Tim, are there any
additional conditions of approval?
Conklin: There are no further conditions of approval.
40
Estes: Craig, would you like to make a presentation on behalf of the applicant?
Planning Commission
April 9, 2001
Page 7
Hull: Mr. Chairman, I feel like I went over the essence of our application in our last meeting.
However, you are a new Chairman, I want to welcome you to this venue, as I'm sure
everybody else has.
Estes: Let's pause for a moment and recognize our newest Commissioner, Alice Bishop.
Thank you.
Bishop: Thank you. Glad to be here.
Hull: Ms. Bishop, for your information since you may not have attended the last meeting.
We did present a propagation map that shows the approximate limitations of coverage
for the various cell sites that are proposed by Cricket Communications. In the area to
the south, in the bottom corner, number 15 shows the area that we'll cover with this
particular tower. There is a valley on the other side of Mount Sequoyah that extends
out Highway 16 to the river. With this coverage the RF Engineers indicate that will
cover the places where people work, play and live and if they go with Cricket it will
meet those objections at Stonebridge Golf Course and residential populations further
• out 16. Obviously, they are not going to cover all the way out to Elkins on this, we can
always come back later with additional facilities to better cover the area. As indicated
on the other map, the client has essentially targeted two new buildings in this area,
everything else is co -location. We've done our very best to avoid building additional
towers. Also, we did contact the chairman of the neighborhood association as well as
the lady that objected to the communications last time and I contacted them by email
and have received feedback from them, at least positively, that they got the information
and were appreciative of the effort. That's as far as I've taken it. There has been no
other indications of meetings or other concerns. Thank you.
Estes: Craig, is the only condition of approval that you are not in agreement with, number five?
Hull: Yes sir. I'm color blind but the neutral tint of the galvanized metal requires no
maintenance. If you paint it suede blue, you've got to repaint it suede blue and keep on
repainting it. It's a maintenance and a visual impact to the neighborhood because
somebody is going to be climbing it and there is safety equipment. Not only the undue
cost but the fact that the sky color changes so many hues during a days time that we
feel like the standard gray is neutral.
Estes: As part of the supplements to our packet this evening, we find something printed off of
the intemet from Benjamin Moore, color preview strip chip, does that have anything to
• do with your application?
•
•
Planning Commission
April 9, 2001
Page 8
Hull: If that's what you decide, that's what we'll do.
PUBLIC COMMENT:
Estes: Commissioner's, as part of the material that was just recently provided to us is a piece
of paper addressed "Dear Planning Commissioners", which seems to address this
conditional use request. It's not signed by anyone but I would bring that to your
attention. Craig, thank you. Are there any members of the audience that would like to
comment on this requested conditional use 01-4.00, the request for the monopole
tower by Cricket Communications? Yes ma'am.
Isaacs: I'm Elsa Isaacs, Travis. Many of these are re -hashes of things that have been
addressed this time and previously. Has this been distributed to all the Commissioners?
Estes: Yes, ma'am.
Isaacs: Five has already been taken care of, is that correct? That if you decide on the paint,
should you approve the monopole...
Estes: The applicant has stated that he is not in agreement with condition number five, the
monopole shall be painted a suede blue color. That will be subject for Commission
discussion and perhaps action.
Isaacs: Or perhaps someone has a better color perception. Number one is a very pertinent
one, as a matter of fact the residents asked "Why this low lying area was chosen when
a higher site would have perhaps made more sense?" I don't have the technical
expertise in that field to pursue that any farther. The rest are repetitions of previous
issues. I would really hope that Commissioners take this memo to heart. It represents
the consensus of many people in the neighborhood association. It is my writing but it is
the thinking of probably 30 different people in the neighborhood association of which,
as I told you, Gary Sorenson is the chair. Mr. Clark, I asked him if he would like to
speak and I suppose that's as much as we need to say. Thank you.
Estes: Thank you very much for your comment. Are there any other members of the audience
that would like to speak regarding this requested conditional use?
COMMISSION DISCUSSION:
Estes: Seeing none, I will bring it back to the Commission for discussion, questions of the
Planning Commission
• April 9, 2001
Page 9
applicant, motions.
Ward: Tim, on the color of suede blue color, why did we come up with that particular color.
can understand making in sky blue or something like that. What's the thinking behind
this besides leaving it the normal color?
Conklin: We have permitted many different types of towers and different colors. This color
matches blue sky color, more true blue. It's thought that this color would help hide the
tower's appearance during a clear day.
Estes: Commissioners, any other questions?
Hoffman: I have some questions for the applicant regarding the site selection process that you
went through and if you could explain to the audience why the tower was not located
up on a hill instead of in a valley. I would like you to first address your site selection
but, more specifically, did you look at areas that were non-residential in nature?
• Hull: Yes ma'am. In this particular site, it's zoned commercial and in on the corridor where
that's one of the criteria we had in our selection process because I had a briefing with
the Cricket site team at the very beginning of this. Having had some experience with
Fayetteville and having been blamed for you existing ordinance once or twice in my
previous history of projects, I understand your concerns and that of the public. The site
selection process, any of the applicants whether it be Cricket or Telecorp, any of the
competitors in the market, they send out RF Engineers into the field to look at the
terrain to evaluate the coverage objectives of the client and to come up with a way to
do the propagation map as I indicated on that previous picture. The way that PCS
works is not the same as an old analogue Alltel pole that you were first acquainted with
when you got your first cell phone. It comes from a higher frequency but a lower
energy source. These things are line of sight and they have to penetrate into your
homes and buildings and stuff to actually give you coverage when you pick up your
phone and want to use it. With the Cricket objective of actually trying to replace the
home phone, they are different than some of the other guys that try to do corridor stuff.
Obviously, we do want to cover the roadways back and forth to work but they are
trying to get in the homes and essentially be broad coverage for this market and for any
market they go into. The trend in the industry is to go lower. It's like McDonald's,
they want to put them in between the ones that are already out there to get the coverage
and also the number of users is increasing all the time which means capacity problems
with existing facilities. A combination of all those ingredients, leaves them to come up
• with selected search rings and patterns throughout the topography for us to cover. This
Planning Commission
• April 9, 2001
Page 10
particular one covers the southeast area of Fayetteville that this particular target zone is
in. Mount Sequoyah which is a couple of miles back to the west is way high and when
you send that signal real high off of a tall mountain in this area, with their system, it starts
interfering with the other sites. They actually like it to be in a lower and more in target
range with the people that are trying to talk on the units. I'm no RF Engineer and I was
given a lot of information from them as well as these maps and information, I've also
seen other build -outs in this market. We'll see continuing pockets here and there where
people have objections and problems, it's going to be customer driven. In this
particular case, there is no structures, no tall buildings, nothing else for us to go on in
that area that would suffice for our clients. That's why they picked that particular site.
They only got two. Believe me, they don't want them to be built, they would rather
have existing structures, it's cheaper and quicker and they don't have to go through this.
Hoffman: I toured that area of town this afternoon. I was looking at a number of different things.
It struck me that the Industrial Park is not too far away from this site in terms of a
number of miles, this may be a mile away or something like that. Did you approach
anybody in the industrial park about locating there?
• Hull: In your packets, originally, we supplied a search ring that was given to the site team and
it's perimeter doesn't even reach all the way over to the Industrial Park. It would
maybe reach over to White River Hardwood or something to that extent but not any
further than that. It's hard for me to explain what the reasoning is of all these engineers
and I don't have all the answers. Population base and going east was their objective.
If you go a mile back to the west, you are losing that many people out towards Lake
Sequoyah and out on 16 East and they want a piece of the market. When they launch
their project, they don't want to wait another six months or year before they can
actually sell phones all the way out in that direction. It's population is the key ingredient
in these investments.
Hoffman: Saving the Industrial Park, there was no other non-residential neighborhood area? You
are backing directly up to a neighborhood. Did you not find another site that was more
conducive to a commercial structure. Even though this property is zoned commercial,
it's definitely been a thorn in the side of the neighbors for many different reasons over a
period of time and I'm trying to address their concerns with yet another intrusion into
their neighborhood, as it were.
Hull: It was a circumstance where the zoning was appropriate, it met the objectives, it's
almost dead -center of the search ring that we had supplied to us. If it went any further
• to the north, we were in the neighborhood, on top of residences.
Planning Commission
• April 9, 2001
Page 11
Hoffman: I'm talking east though, east out 16. Nothing else?
Hull: We were in the bull's eye zone and we had a willing landowner and situation with the
local tower builder that was going to build the structure. Once you arrive at the
ingredients, you are hitting the target, it's in the right zoning, it appears to be screened
quite well by natural vegetation and we are going to screen it further with the
requirements. We pretty much exhausted all the options and when you find a good
candidate like this, you don't try to second guess it too much. It's hard enough to find
a good candidate.
Hoffman: It's hard to meet all the needs of the industry and stay out of the neighborhoods. I do
understand and can see both sides of it. I'mjust trying to explore all the possibilities.
Thank you I think you've answered my questions.
Allen: I had a gentlemen and his wife called me concerned about the tower and their primary
concern was that it would interfere with their television reception. I wondered if there
was any credence to that or if you could do something to abate their concern.
• Hull: All of the television frequencies are carefully guarded by the FCC and these frequencies
that are issued as licensees for PCS are way away from that in the band width. There
isn't any interference problems, in fact, we have certain cell carriers that on towers that
also have television. The head -in for PCA or Cox Cable up in Bentonville for this
whole market, has also got two different cell carriers on it, on the same structure. You
know Cox would be real concerned about that. We don't have any issues at all about
interference between the t.v. As far as the individual antennae that might be aimed right
at this site, there may have to be some adjustments on that antennae. If there is
concerns that are brought out on that, they are not that close. If somehow it was just
dead reckoning right into that tower then I suppose we can conceivably have a
interference issue. That's the luck of the draw.
MOTION:
Ward: I would like to go ahead and try a motion. My motion would be that first of all, these
towers are being federally mandated to be approved throughout the country so it's up
to us to make sure that we try to get approval done because of the federal mandate on
these. The second thing is, that I would like to go ahead and recommend approval of
CU 01-3.00 the conditional use for Cricket Communications with item number five.
Going back to this suede blue, I feel like the steel gray which is totally maintenance free
• would be a much better thing to have out there. There would be a lot less maintenance
Planning Commission
• April 9, 2001
Page 12
on this as far as I'm concerned. I don't think there is much difference between steel
gray or sky blue or suede blue to make any difference, particularly for this particular
pole. My recommendation is that I'll change number five to the monopole shall be the
natural steel gray and make a motion to approve it.
Shackelford: I'll second.
Bunch: A question for the applicant, in the site
selection process, a
site less than a
mile to the
south in the vicinity of the golf course,
where any of those
investigated or
considered?
Hull: The search ring is only a quarter mile in radius, so it's a half a mile diameter. It only
goes right to the edge of the golf course really, from this particular site. Since we are all
bulls -eye range, we didn't talk to Mr. Goff. I bet he wouldn't want us to put a
monopole right at the front entrance to his golf course.
Bunch: Could you explain to me the significance of your search ring? You are looking at
several miles of coverage. I'm not understanding exactly what a search ring means and
• why it's so important that it has to be within that ring even though you are looking at a
much broader are to cover.
Hull: The RF Engineers create these preliminary maps for a system design and they link in the
other sites that we have identified in Fayetteville. All of them were co -location and they
all talk to each other and link. If you start moving one site around and you've got all
these others that are essentially fixed because they are rooftops and existing structures,
you don't have many options with them, then your new locations have to really fit that
network in order for it all to communicate together because if you are driving, you don't
want your calls to be dropped as you are going down the road. Once you get a system
built or figured out with a whole bunch of reliance on existing stuff, the new ones have
to fit that pattern in order to make it all work together.
Marr: A question for City staff. Do we have any cell towers where we've required suede
blue painted, in town currently?
Conklin: We haven't required that color of blue but we've required a sky blue, lighter blue color.
Our water tanks are mint green. I'm trying to find a color blue that's most compatible
with the sky.
Marr: Do we know what the maintenance has been on those structures where we have
is
required a color?
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Planning Commission
April 9, 2001
Page 13
Conklin: We haven't had to go back and require them to repaint them at this time. They are all
fairly new.
Allen: I have just wondered whether or not the residents of the area, if the tower is going to be
in that area, if it really matters to them a great deal whether or not the color is suede
blue.
Marr: On number five, it looks as they feel it's more pleasant.
Estes: We have a motion and second to approve CU 01-4.00. Any discussion, any further
comment?
Marr: Since I keep my record running of lack of seconds maybe... I would like to actually, I
don't know if we can do it by amending but to change number to the original blue and
either vote it down or not get a second on it. I would like to move that we ... can we do
that?
Estes: You may make the motion.
MOTION:
Marr: I would like to move that
the original
motion of item number five be changed
to painted
suede blue color.
back to the original suede
blue color
is approved by a vote
Allen: I second.
Estes: We have a motion to amend, is there any discussion? Sheri, would you call the roll on
the motion to amend?
ROLL CALL:
Upon roll
call the motion on CU
01-4.00,
to amend condition
number five
back to the original suede
blue color
is approved by a vote
of 8-1-0
with Commissioner
Shackelford
voting "no".
Ward: I don't care what color it is. It made more sense to me that steel gray was better than
blue.
Estes: The motion to amend passes. The motion now before the Commission is to approve
CU O1-3.00 with the staff recommended conditions of approval and that motion has
Planning Commission
• April 9, 2001
Page 14
been seconded. Is there any other discussion or comment?
Hoffman: I reluctantly will be voting against this cell tower site for the primary reason of the site of
itself, the choice of this particular site, for the reasons stated it's been a continuing
problem for the neighborhood and I just feel like putting something else in that location
would exacerbate that problem. I feel that the applicant has a tremendous and
commendable job of meeting our ordinance. Unfortunately, you are coming in with a
conditional use request and that has to be taken into account with the adjoining
neighborhood. I don't feel that the addition of your site would be compatible with that
neighborhood. That's the only reason I'm voting against this. Not that I'm against your
technology or against more towers but that trying to preserve the character of the
neighborhood is uppermost in my mind on this item.
Hull: No matter what color it is?
Hoffman: No matter what color. Sorry.
• Estes: I will also vote against the conditional use for the reasons articulated by Commissioner
Hoffman. Any further discussion or comments? Sheri, would you call the roll please?
ROLL CALL:
Upon roll call CU 01-4.00 is denied upon a vote of 4-5-0 with Commissioners Bunch, Estes, Hoffman,
Hoover and Allen voting "No".
Estes: The request is for a conditional use which requires five affirmative votes. The motion
fails with four "yes" and five "no".
Hull: Excuse me sir, did you say it failed? I counted five affirmative.
Estes: Sheri, would you?
Metheney: We had four affirmative and five negative votes.
Estes: This is a request for a conditional use which requires five affirmative votes, so the
motion fails.
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Planning Commission
• April 9, 2001
Page 15
New Business:
AD 01-8.00: Administrative Item (Sidewalk Escrow Fund) request to amend chapter 171, Streets
and Sidewalks of the Unified Development Ordinance to provide for an escrow account for making a
cash contribution in lieu of sidewalk construction for certain projects.
Estes: The next item of business is our first item of new business. It was originally on our
agenda as item number 11 at the agenda session. It is administrative item 01-8.00,
sidewalk escrow fund to amend chapter 171, Streets and Sidewalks of the Unified
Development Ordinance to provide for an escrow account for making a cash
contribution in lieu of sidewalk construction for certain projects. The reason that this
item that this item has been moved forward on the agenda is that staff has asked that
Mr. Chuck Rutherford, who is our Sidewalk and Trails Administrator, make a
presentation to us and he is now at the podium. Chuck, why do we have this before us
and what is this all about?
Rutherford: You have a letter in your packet that explains what this is all about. The City of
Fayetteville requires sidewalks to be constructed in accordance to the Master Street
• Plan at the time of the building permit, parking lot permit or lot split approval.
Sometimes it is just not feasible to construct a sidewalk due to the amount of changes
that will be required because of the existing elevation. Also, sidewalks are required that
can be an isolated sidewalk. When the above situation happens, money in lieu is an
option and this will allow the funds to be used for sidewalks where they can better
serve the citizens of Fayetteville.
PUBLIC COMMENT:
Estes: Is there any member of the audience which would like to comment on Administrative
Item 01-8.00, Sidewalk Escrow Fund?
COMMISSION DISCUSSION:
Estes: Seeing none, I'll bring the item back to the Commission for discussion, motions,
comments.
Williams: Pursuant to our agenda session, of course item number five had been slightly amended
and it hasn't been amended in this but I think it was the agreement of the Planning
Commission at the agenda session that we would be amending Additions. "Additions
of 2,500 square feet or larger", would be how that reads. I just wanted to make sure
. that was correct before you all made a recommendation to City Council.
Planning Commission
• April 9, 2001
Page 16
Estes: Mr. Williams the note that I made at agenda was under subpart B, Application of
Provisions, item number five to read "Exterior additions of 2,500 square feet or larger",
is that correct?
Williams: That would
be fine. I don't
think you
necessarily need exterior in there if you have an
addition but
if you want to
have it we
will certainly leave it. in there.
Estes: Are you okay with that?
Williams: I'm fine.
Estes: Commissioners, any other discussion?
Hoffman: I'm in favor of the amendment because we had an excellent example of that placed on
15i° Street.
Rutherford: The one just recently on 6th Street, yes.
• Hoffman: I think most of the Commission will remember that. We had an existing condition, a
sidewalk and right-of-way dedication requirement that just didn't make sense in that
location and could have been better utilized in other places. I agree with the
amendment proposed by Chairman Estes with keeping the word exterior... Let me
think about this. You can make an addition inside the building and add more square
footage if you added a mezzanine, so let's just take the word exterior out if we could.
"Additions in excess of 2,500 square feet".
Estes: I don't think anybody seconded my motion, if you want to go ahead and make that
motion.
MOTION:
Hoffman: I'll go ahead and make a motion "additions exceeding 2,500 square feet".
Estes: How do you want that to read, Commissioner Hoffman?
Hoffman: I missed that part, I don't have the rest of the sentence.
Williams: How about "additions of 2,500 square feet or larger"?
0
Planning Commission
• April 9, 2001
Page 17
Hoffman: That's my motion.
Ward: I'll second.
Estes: We have a motion to approve administrative item 01-8.00 with the amendment and a
second. Is there any other discussion or comments? Seeing none, Sheri, will you call
the roll please?
ROLL CALL:
Upon roll call AD 01-8.00 is approved by a unanimous vote of 9-0-0.
E
40
Planning Commission
• April 9, 2001
Page 18
AD 01-11.00: Administrative Item (Dandy, p 524) was submitted by Brian Dandy for property
located on lots 1, 2 and 3 of City Addition. The property is zoned R-2, Medium
Density Residential. The request is to build a multi -family unit on a lot without street
frontage.
Estes: The next item of business on the agenda was previous item number three, administrative
item AD 01-11.00 submitted by Brian Dandy for property located on lots 1, 2 and 3 of
City Addition. This matter was tabled at the agenda session and has been moved to the
Planning Commission meeting scheduled for April 23, 2001.
•
•
Planning Commission
• April 9, 2001
Page 19
CU O1-1.00: Conditional Use (Hanna's Candle Company, pp 643) was submitted by Fred Hanna
of Hanna's Candle Company for property located at 2700 S. Armstrong. The property is zoned I-2,
General Industrial and contains approximately 46.74 acres. The request is for an addition of a wood
fired steam boiler (use unit 31).
Estes: The next item of business is conditional use 01-1.00, Hanna's Candle Company
submitted by Fred Hanna of Hanna's Candle Company for property located at 2700 S.
Armstrong. The property is zoned I-2, General Industrial and contains approximately
46.74 acres. The request is for an addition of a wood fired steam boiler (use unit 31).
A second request is to change the use of this structure from warehousing to a candle
and potpourri manufacturing facility (use unit 31). Commissioners, it will be necessary
that I recuse on this item and on the following item large scale development 01-6.00.
The reason for the recusal is, within the past year I represented a petitioner in a matter
which Hanna's Candle Company, the applicant, was the respondent and I now
represent a plaintiff in a matter in which the applicant's engineering company, Crafton,
Tull & Associates, is the defendant. I will continue to Chair the item if there are no
objections from the audience or the Commission. Seeing none, I'll continue to Chair
. the item. Are there any other recusals?
Man: I'm a Chief Operating Officer of Staffmark LLC and Hanna's Potpourri and Candle
Company is our largest client in Fayetteville so therefore, I will be abstaining from the
vote.
Estes: This is a conditional use request and will require five affirmative votes. The two
recusals will be counted as absences. The conditional use 01-1.00 contains two
requests. The first, for the addition of a wood fired steam boiler and the second, to
change the use of the structure from warehousing to manufacturing. This will require
two separate motions and two separate votes. Because we have two recusals, is it the
applicants pleasure to proceed with this matter?
Stockland: Yes.
Estes: We have with us this evening, Mr. Keith Michaels who is the Chief of the Air Division
for Arkansas Department of Environmental Quality. Staff has asked Mr. Michaels to
be present and to make a presentation before receiving the applicants comments and
before public comment. The reason for this request is that staff has, at this time, not
made a recommendation regarding this conditional use and will, after the presentation
by Mr. Michael's, finalize their recommendation to the Commission. Mr. Michaels, will
40
you come forward to the podium and tell us what we need to know about this
Planning Commission
• April 9, 2001
Page 20
conditional use request?
Michaels: Mr. Chairman and members of the Commission, thank you for inviting me up here
tonight. I wasn't prepared to make a presentation, I'm here to serve as a technical
resource for you all. I can tell you a little bit about the Department of Environmental
Quality and what our responsibilities are. Basically, as you have mentioned, I am the
Chief of the Air Division and we have three main branches in the division. We have air
quality analysis group who analyze air samples and put out monitors and project needs
of the air quality of the state in the future and make regulatory recommendations to the
Commission for rules. We have the enforcement branch which inspects all the permits
that we issue to make sure they are in compliance with and issue compliance orders
against the facilities in they are not in compliance. We have the permitting branch, they
act on permit requests that we get from permitees and ensure that they are in
compliance with all applicable state and federal regulations. With that said, I'm not
sure that enlightens you a whole lot as to what we do. I know there are a lot of issues
here, I'm familiar with some of them. I don't know what specifically may be on your
mind and I would like to be able to just sit here and answer as many questions, as long
• as it takes, possibly even after your public comment period, maybe other questions will
come up. If that is satisfactory to you all, Mr. Conklin is that what you kind of had in
mind?
Conklin: Yes. I did invite Mr. Michaels up here this evening from ADEQ to be able to provide
some more technical expertise with regard to air permits and what ADEQ would likely
require for a 28 million BTU wood fired boiler and the relocation of a candle
manufacturing facility to this location. I have been working and talking with ADEQ
regarding air permitting and what is required. I have given the Planning Commission the
actual permit that they currently have at the 15' Street location with regard to the
candle manufacturing facility. My hopes this evening, if you do have questions
regarding what likely conditions ADEQ may place on a wood fired boiler and what
likely conditions or what they can and can't do with regard to fugitive odors that are
emitted from the Hanna's Candle Manufacturing facility. Those type of questions, I
would encourage you to ask Mr. Michaels and hopefully he can shed some light on
how ADEQ permits these type of facilities, what type of conditions they place on
emissions from these types of facilities because I do realize you do have a lot of
information. This is the first time a facility has come to the Planning Commission under
the Use Unit 31, a facility that has the potential to emit an odor. I want to make sure
the Commission has as much information as possible with regard to air permits. I know
it's technical information that you have received. There are many different methods and
• alternatives to mitigating odors and how to mitigate fugitive odors. With that, I'll let the
Planning Commission
• April 9, 2001
Page 21
Commission go forward if you have any questions for Mr. Michaels.
Estes: Do any Commissioner's, at this time, have any questions for Mr. Michaels? He will be
available to come forward and answer questions both after the applicants presentation
and after public comment. Anything on anybody's heart and mind right now they would
like to ask Mr. Michaels? Thank you Mr. Michaels. There are conditions of approval
listed for the wood fired boiler, there are 23 conditions of approval. Tim, do we have
signed conditions of approval?
Conklin: We do not have signed conditions of approval.
Estes: Let me read each of the conditions of approval. I do this for the benefit of the audience
because you do not have these available and in front of you. Number one, the wood
fired boiler shall meet Section 18.501 of the Arkansas Air Pollution Control Code.
Number two, the transport of fuel material (saw dust) for wood -fired boiler shall be
securely covered at all times so that saw dust, wood shavings or other material does not
escape from the trucks traveling through the City. Number three, the off loading and
• removal of the saw dust from the truck into the silo shall be conducted in a manner that
prevents saw dust from blowing into the atmosphere. The proposed method of
transporting the saw dust from the truck to the silo is by use of an auger system. The
auger system shall be installed in such a manner to prevent saw dust from escaping into
the atmosphere. The applicant shall be limited to this method unless the Planning
Commission approves alternative methods. Number four, this facility shall comply with
all state, federal and local regulations regarding air pollution control requirements and
shall not begin operation without such permits. A copy of all permits required for the
wood fired boiler shall be provided to the Planning Division within 10 days of issuance.
Number five, this conditional use approval is subject to compliance with any and all
approved large scale development conditions of approval. Number six, the Planning
Commission shall hold a public hearing and review this conditional use permit 6 months
after the date that the wood fired boiler begins operation to determine compliance with
conditions of approval and address any complaints regarding odor caused by smoke
and/or ash. Number seven, the wood fired boiler building shall be inspected by the Fire
Marshall and Building Inspector to assure compliance with the Arkansas State Fire
Code and to assure that no significant safety hazards exist. Number eight, the wood
fired boiler described in the "Anderson Tully Company New Wood Fired Steam Boiler
and Accessories Proposal No. 499170-GKM-1" shall be the boiler that is installed at
this site. No other type or kind of wood fired boiler shall be installed at this site.
Number nine, the wood fired boiler shall have a multi -clone exhaust system as
• described in the information proved by the applicant. The multi -clone exhaust system
Planning Commission
. April 9, 2001
Page 22
shall be working according to specifications during all times the wood fired boiler is
operating. Number ten, the wood fired boiler shall comply with the City's noise
ordinance (based on zoning district and enforced by Police Department). Violations of
the noise ordinance shall result in a revocation hearing by the Planning Commission.
Number eleven, there shall be no outdoor piles of sawdust located on-site. All fuel
(saw dust) shall be brought to the site on an as needed basis and contained within the
silo or boiler at all times. Number twelve, a complaint log shall be maintained by the
applicant of all complaints received by the company regarding odor or emissions and
loss of saw dust during transport and loading into the silo, logs shall include date, time,
name of caller, complaint and resolution information. The log shall be submitted to City
on the fifteenth of January and June of each calendar year. Number thirteen, the wood
fired boiler shall be maintained and inspected as required by the manufacturer and by
State and Federal law. Number fourteen, the applicant shall submit a plan for ash
disposal to be approved by the City Solid Waste Division. Ash shall not be left in piles
outside. All ash shall be stored in appropriate containers and sealed. Number fifteen, a
change in the type of Air Permit to a major stationary source permit under Title 5 of
ADEQ regulations shall require Planning Commission approval to ensure that additional
• conditions can be reviewed and considered. A copy of the draft and final permit shall
be submitted to the Planning Division within 10 calendar days of receipt by the
applicant. Number sixteen, modification to the Air Permit shall require Planning
Commission review and approval. Note: An Air Permit has not yet been issued by
ADEQ for the Wood Fired Boiler. A copy of the draft and final permit shall be
provided to the Planning Division with 10 calendar days of receipt by the applicant.
Number seventeen, the boiler shall be operated in compliance with all State and
Federal Regulations. A boiler operator, as required by State Law, licenced by the
State of Arkansas Department of Labor shall be on-site at all times during operation of
the boiler. Number eighteen, the wood fired boiler shall comply with the opacity limits
as set by ADEQ. Violations in the opacity limits set by ADEQ shall result in a
revocation hearing by the Planning Commission. Number nineteen, complaints
regarding excessive smoke and ash, if determined to be reasonable and substantial by
the City Planner shall be reviewed by the Planning Commission to determine validity of
the complaints, appropriate additional conditions, and/or revocation of the permit.
Number twenty, any change in fuel used to fire the wood fired boiler other than saw
dust shall be reported to the Planning Division. Number twenty-one, any violations of
ADEQ Air Permit conditions shall require a revocation hearing by the Planning
Commission. Number twenty-two, the applicant shall notify the City of any violations
of the ADEQ Air Permit. A copy of all violation notices and Consent Administrative
Orders shall be provided to the Planning Division with 10 calendar days of receipt by
. the applicant. Number twenty-three, no final Certificate of Occupancy shall be issued
Planning Commission
• April 9, 2001
Page 23
by the City until after ADEQ permits are issued, reviewed and approved. Tim, are
there any additional conditions of approval?
Conklin: There are no further conditions of approval.
Estes: Mr. Stockland, I understand that you have been selected to make a presentation on
behalf of the applicant.
Stockland: I am the guinea pig. I have several copies of what I'm going to read. It covers both
issues but I'll just do it all at once. Good evening, my name is Tom Stockland. I'm a
lawyer that is regularly retained by Hanna's Candle Company. I'm proud of the impact
Hanna's Candle Company has made over the years that I've represented them. They
employ hundreds of our citizens while infusing 10's of millions of dollars into our
economy each year. Hanna's Candle Company approached the City for permission to
install a wood fired boiler to produce energy for it's facility. Due to Mr. Conklin's
concern that the boiler would produce odor, he determined to apply the 1996
ordinance concerning odor emitting businesses. The benefits of this type of energy
• generation versus the consumption of fossil fuels utilized by our electric providers are
well known. It is clear that Hanna's Candle Company's plan will reduce hazardous air
emissions, moreover because it uses a byproduct from another local company. It will
reduce waste of a local company while using sawdust to generate electricity. It is my
understanding and staff had told you of visits to areas where similar equipment was
being used and they were unable to detect any odor or see any smoke. Because a
cogeneration system heats at temperatures in excess of 1400 degrees and maintains
efficient air flow in it's system through uses of grates and manifolds, there is virtually no
smoke or smoke odor. This is very different from a fireplace and that is the reason staff
noticed no smoke or smoke odor when they visited this site in Mansfield. We have
asked the City for permission to put this piece of equipment in a separate building
beside our facility in an I-2 area. If the cogeneration is not approved in an I-2 area,
then it would be difficult for Fayetteville to ever allow any industrial business to install a
cogeneration system outside of it's facility. Hanna's Candle Company submitted a
simple request to build a structure to house a wood fired boiler and related
cogeneration equipment. Unfortunately, City staff has responded by forcing Hanna's to
seek two conditional use permits, having a total of 39 recommended requirements and
submit a large scale development plan. That number has now changed because I had
not seen condition 23 until it was read by Mr. Estes. The recommended requirements
are overly broad and burdensome and we can't agree with them. Probably the best
way for me to go through the conditions is to tell you what we will agree to do and what
• we won't. First, we reject the conditions for candle manufacturing operation set forth in
Planning Commission
• April 9, 2001
Page 24
staff proposal. It is an attempt by City staff to allow the Planning staff, Planning
Commission and ultimately the City Council to interpret and enforce regulations that are
promulgated by federal and state governments and enforced by agencies with expertise
in these areas. As I understand the situation the City is maintaining that Hanna's Candle
Company cannot manufacture candles in a facility one mile further removed from
residence than it's current facility without obtaining a conditional use permit. My client
will not agree to a conditional use permit with terms such as those proposed to
manufacture in an I-2 facility. With respect to the conditions of approval for the wood
fired boiler, we all will not agree with many of those. In our opinions, conditions 1, 4,
6, 13, 14, 15, 16 ,l 7, 18, 19, 21 and 22 are attempts to allow the City to enforce
federal and state laws.
Estes: Mr. Stockland, can you mention those again?
Stockland: I can hand you a copy of this Mr. Estes, if you would like, so you have it.
Estes: I think if you could just tell those conditions of approval.
• Stockland: 1, 45 65 13, 143 15, 169 17, 18, 19, 21 and 22.
Estes: Thank you Mr. Stockland.
Stockland: Hanna's Candle Company, like all residents, must follow those laws and regulations
which are enforced by ADEQ or the EPA. It is not proper for the City of Fayetteville
to attempt to enforce those provisions. We will not agree with condition 5. We believe
2, 3, 11 and 14 are too restrictive but would agree to negotiate some sort of condition
that is reasonable to both sides similar to those suggested. The remaining conditions are
fine. Relating to the conditions of approval, my client will agree to construct the cul-de-
sac discussed in condition 1. My client will also agree with 4 through 7 except to the
extent it is inconsistent with comments I've made above. In summary, I believe the City
is making a poor judgement placing conditions of moving of a portion of the
manufacturing operations at 2700 Armstrong. If you are truly concerned about the
fragrance made by scented candles, the City ought to be encouraging my client to move
the manufacturing. Moving a portion of the manufacturing to 2700 Armstrong would
obviously reduce the fragrance lost from the 15`h Street location, which is a mile closer
to residential areas than the Armstrong Avenue location. Everyone in this room knows
my client won't agree that this City, with it's current Mayor who has filed multiple
complaints with the ADEQ relating to my client, ought to be the enforcer of state and
• federal environmental regulations. Basically the point I want to make is that my client is
Planning Commission
• Apri19, 2001
Page 25
trying to reduce fragrance lost from a facility close to residential neighborhoods by
moving part of it's production and the City is stopping that from happening. Moreover,
my client wants to utilize a cogeneration system that is better for the environment than
the current electric generation systems used in the area and the City has made that
nearly impossible. You can pass the staff's recommendations but you must understand
my client will not accept that proposal. It will continue to manufacture it's candles at
15th Street and purchase electricity from generators using fossil fuels. If you want my
client to reduce fragrance lost at 15`" Street by moving part of the manufacturing and to
utilize an environmentally responsible cogeneration system, you will have to approve
such actions without the numerous restrictions recommended by staff.
PUBLIC COMMENT:
Estes: Thank you Mr. Stockland. Is there any member of the audience that would like to
comment on this conditional use request, CU O1-1.00? Would you raise your hands
please so we can get an idea? As we begin the public comment portion, let me say this,
this conditional use request is going to require two motions and two votes. Mr.
Stockland has spoken to both of the aspects of that. That is, the request for the wood
•
fired steam boiler and he also spoke to the request to change the use of the structure
from warehouse to a candle and potpourri manufacturing facility. I would like to limit
public comment, at this time, to the request for the wood fired boiler because then we
will have the opportunity to ask Mr. Michaels some questions and then we will perhaps
have a motion and vote on that and then we will take up the second part of this
conditional use request which is to move the warehouse. Please be respectful to the
speakers as they are at the podium. Please limit your remarks. We have a very full
agenda this evening and in fairness to all, we need to be very brief. Please do not be
redundant in your remarks, if a previous speaker has covered what you would like to
cover just swallow hard and take it. We have many people to accommodate this
evening and we also have been requested to meet a press deadline by the media people
that are here. With all of that said, please come forward, anyone that would like to
comment on the first part of the conditional use request 01-1.00, that is the request for
an addition of a wood fired steam boiler. Anyone that would have a question for Mr.
Michaels, please come forward and ask.
Zurcher: Hello Commission. Thank you for allowing us to speak at this. My name is Randy
Zurcher. I am an Alderman for the City of Fayetteville but I'm really here before you
as a citizen. I guess my only concern, I believe that I'm not against necessarily giving
this conditional use but I do believe the conditions are reasonable. I guess one very
important thing that just occurred to me here that I haven't heard before is somebody
Planning Commission
• April 9, 2001
Page 26
from this company actually saying they have lost fragrance. To me that makes this
company an odor emitting company and it seems, maybe I'm wrong on this, but it
seems representatives from this company have been denying that for years. I think that
should get proper consideration, that they are losing "fragrance" and that all these
complaints that have come in over the years are not just some kind of cranks that don't
like the Hanna's. Thanks.
Estes: Is there anyone else that would like to comment on the first portion of the conditional
use, that is the request for a wood fired steam boiler.
Weiss: My name is George Weiss. I live in Fayetteville. I just have a question. What will the
emissions be from this wood burning boiler? We are burning sawdust, what are the
emissions going to be? Just carbon dioxide? Carbon monoxide?
Estes: Let me ask your question of staff, if staff knows and if not, I'll give the applicant an
opportunity to come back at the close of public comment and answer that question.
• Conklin: I do not know exactly what will be emitted from the smoke stack. I can tell you what I
observed at Mansfield, Arkansas, at Travis Lumber Company. That was very little, if
any smoke, you wouldn't be able to tell if there was smoke coming from the stack.
Probably what would be observed was heat coming from the stack. They have two
wood fired boilers, they burn sawdust in their boilers and use the steam to dry their
wood. It's very efficient and clean operation. The only time you do have smoke that
comes from the stack is about once a week, you have to shut down the boiler and rake
the ash from the boiler, for about 30 to 45 minutes you will have smoke that will come
out of the stack until you get the system up and running with the right temperature,
oxygen and fuel. ADEQ does regulate that, they do have monitors on the stack and
they do have to meet those opacity limits for their emissions.
Weiss: I think what you are talking about are particulate emissions but like carbon monoxide
and carbon dioxide or both colorless, odorless emissions. I just wondered if we have
any information that would address that. Are we getting COI?
Conklin: I don't have the actual amounts.
Estes: George, in just a moment when we are through with public comment, I'll give the
applicant an opportunity to come back and address that. Is there any other member of
the audience?
0
Planning Commission
• April 9, 2001
Page 27
Davidson: Hi, my name is Sharon Davidson and I was say the firm terms as this gentlemen seems
to put it that the only acceptable incinerator at all would be a brand new incinerator
which his brand new big huge plant would need. That's where we should start all this.
Beyond that, he reflects Fred Hanna and his negativity and his approach to we the
people of Fayetteville when everything Fred Hanna used to say was "You people ought
too...
Estes: Ms. Davidson.
Davidson: This is tied to it because he says we are against him.
Estes: Let me speak please. Please limit your remarks to the issues and not personalities.
Davidson: The issue is this is trying to be brought, shoved down our throats by a man who uses
the Mayor to place these cards and yet they... The point is, it has nothing to do with
Dan Coody. It has everything to do with a lot of people. I would be glad to get the
stinking saw dust pile out of down there myself. I'm concerned about the leftover ash.
• I'm concerned about the attitude and I can come back and discuss the problem with
the fragrance. Sickening sweet is still sickening, it's not just sweet. Thank you.
Estes: Is there any other member of the audience that would like to speak on this issue?
Gaston: Colleen Gaston, 3270 Rom Orchard Road, Fayetteville 72703. I'm not taking a
position on this application. I just want to make a few comments for you to consider.
Mr. Stockland made a statement that this wood fired boiler would reduce air emissions
as compared to a fossil fuel boiler. I don't know that that is supported by record. It's
not presumptively the case, so I think that in terms of the conditions that you put on this
application that it is legitimate to consider the air emissions and to question whether in
fact this will reduce air emissions as compared to a conventional fossil fuel. Similarly,
Mr. Stockland made the statement that this is better for the environment and there will
be emissions from this boiler. Again, this is something Mr. Michaels can speak to if you
are interested in pursuing it further.
Schuster: My name is Art Schuster, I'm the General Manager at Vlasic Foods. Although we
have never applied to install a boiler like this, we have considered it. We have
considered cogeneration for our plant. Our energy costs are in excess of 3 million
dollars a year and the energy costs for this year have increased by 25%. We need to
consider opportunities to reduce those energy costs. The generation of boiler steam
• does require some burning of some fuel. When you consider the fact that you have to
Planning Commission
• April 9, 2001
Page 28
bring in either oil, gas or electricity to make steam, that is more expensive, it is more
volatile. There is a loss in energy in any transmission system, so the closer you can
keep the burning of energy to the use of energy, the more efficient it is. I think the City
of Fayetteville would do well to honor the request to increase business in this town, to
increase the opportunity for revenue. I would consider you, if you would consider it
favorable, to honor this application without all these additional restrictions. The state
and federal government has adequate protection for emissions at this time. I think that
those are carefully monitored and applied and the City of Fayetteville will be properly
protected. Thank you.
Farrell: Mr. Chairman, Commissioners, my name is Robert Farrell, 2413 Twin Oaks Court.
Did you say a while ago, Mr. Chairman, that we could ask Mr. Michaels questions?
Estes: I think that would be appropriate, that's what he's here for.
Farrell: Mr. Michaels, do you have any other like situations in this state where there are candle
manufacturers that are cogenerating?
• Michaels: Not to my knowledge.
Farrell: Do
you have any other places in the state where
there are generators
that are regulated
by
other entities besides ADEQ? "Yes" or "no"
would be alright.
Michaels: We regulate air pollution in the state, we have that sole responsibility. As far as other
activities at a facility, they may be regulated through local building ordinances, county or
city, that may or may not overlap in our regulations. Directly for air pollution purposes,
we have the sole responsibility delegated to us.
Farrell: I just wanted to say that Hanna's Candle Company, Burt Hanna started out and had a
great idea as a young entrepreneur here. You can see how this company has grown
and is nurtured. They have approximately 680 full time employees. This young man is
a visionary. He plans one day to build this company to perhaps 3,000 employees, I
think he will do that. I hope we can help him grow in a responsible manner and I
appreciate your time.
Pinneo: My name is Paul Pinneo, I am the General Manager for Marshalltown Tools. We are a
neighbor of Hanna's. We have been in the Park for 20 years. We are regulated under
many state regulations such as ADEQ. I would have to say that I have had an
• opportunity to be in the Hanna operation a number of times. They do everything first
Planning Commission
April 9, 2001
Page 29
class. I'm not concerned about being a neighbor of them. I may have received
fragrances from them before but never objectionable to where I don't know they are
there. My only concern is, after reading the 39 or 40 conditions...
Estes: 23.
Pinneo: There are 17 more on the next one, okay. 23. I'm concerned about those being
vague. I'm concerned about them as being redundant with state regulations. Me as a
businessman, I would not embark on such a project with these kind of conditions
because the vagueness of it would scare me and then I would put a lot of money into it
and within six months, I may have someone changing their mind about what is okay and
what is not okay. I would be in favor of you letting the state take care of this problem.
Obviously, you need the state in this problem, they have to be here tonight and we can't
answer our own questions on that sort of thing. I would defer this to the state and cut
these conditions considerably from where they are today.
Francesconi: Good evening Mr. Chairman and members of the Commission. My name is Roseanne
• Francesconi, I am the General Manager for Staffmark here in the northwest Arkansas
area and also a citizen of Fayetteville. The reason I came tonight is because I've had
the opportunity to work very closely with Hanna's during my employment with
Staffmark. I've also have the opportunity to work with many other employers in our
area. One of the things that impresses me the most about this company is the way that
they take care of, not only their facility, but also the way they take care of their
employees. We have found in many areas, employers are not that concerned about the
employees. They are not concerned about the work environment, they are not
concerned about the pay that they provide for these employees and they are not
concerned about benefits and other issues. I can assure you that when we are looking
to grow our community and we are trying to attract other employers into the area,
Hanna's represents what we would like to see in this community. Myself as an
employer, Staffmark is one of the largest in the state of Arkansas, we find great pride in
working with Hanna's. Because of this, we would encourage you to consider their
application and to encourage other companies that take this type of consideration for
their employers, as well as their community, into consideration. Thank you very much.
Lou: Lou Weiss, Fayetteville Arkansas. It's not clear to me, maybe I'm not hearing
everything. Is there going to be odors, fragrances coming out of this system? Some
fragrances are lovely to some people and some people I know have been sick from
fragrances and I just wanted to know whether this new system that they are having is
• going to eliminate the fragrances or odors of whatever you want to call them? That's all
Planning Commission
• April 9, 2001
Page 30
I want to know.
Estes: Mrs. Weiss, the item that is under consideration at this moment is the request for the
addition of a wood fired steam boiler.
Weiss: Doesn't that have to do with what comes out of there?
Estes: Perhaps in just a moment, when the applicant has a opportunity to respond, Mr.
Stockland can provide some insight into that issue.
Conklin: If I may just respond to the wood fired boiler question. When they did meet with me
for the first time regarding installation of this facility, they informed me that there would
be a 40 foot tall smokestack. Based on that information, I was concerned that what
comes out of the smokestack has a potential to emit an odor, this is a wood fired boiler.
Staff did conduct research, I did call Memphis, Shelby County, and talked with their
environmental office down there. They did inform staff that, yes wood fired boilers can
produce smoke that generates odor which generate complaints from neighborhoods.
• Those are typically the old style type wood boilers. Based on information that we have
received with this application and going down to Travis Lumber Company in Mansfield,
Arkansas, and understanding what type of boiler this is, this wood fired boiler should
burn clean. That's why one of the conditions of approval is to make sure that this type
of boiler does get installed on this site. Yes, I did classify this as a facility that has a
potential to emit an odor because it does have a 40 foot tall smoke stack which, if it's
not run properly and depending on the type of fuel, something could come out of that
stack that could be a nuisance to neighborhoods in Fayetteville. Just one other
clarification, staff did make a recommendation with regard to the wood fired boiler.
Staff is recommending approval subject to these 23 conditions.
Hoffman: I want to interrupt just a moment and clarify something for myself. I need to ask the
applicant, the boiler that is proposed is a new product to be installed in a separate
building from the manufacturing facility and therefore, the combustion air for the boiler is
not drawn from within that building, is that a true statement?
Stockland: That is a correct statement.
Hoffman: The questions that have come up have to do with new versus used and the odors that
could be transferred from a boiler placed inside the manufacturing facility could indeed
carry the fragrances out if the make-up air for the boiler were placed inside the facility.
• Obviously, that would not meet any kind of mechanical codes for something like that. If
Planning Commission
• April 9, 2001
Page 31
it's outside the building, in another building, we are not talking about drawing air from
the candle odor place.
Conklin: They are proposing to build a 1,700 square foot separate building to house the boiler
outside of the existing 600,000 square foot plus warehouse at this site. With regard to
the issue whether it's a new boiler or used boiler, my understanding is that they are
purchasing the boiler from Anderson -Tully Company in Memphis, Tennessee. It's
about 6 years old.
Hoffman: I thought it was new.
Conklin: It's a used boiler and, the applicant can correct me if I'm wrong, my understanding,
talking with the applicant, it's a boiler :hat will be purchased from the Anderson -Tully
Company in Memphis, Tennessee. Staff did talk to their environmental office and did
ask if there were any violations or complaints with regard to the emissions coming from
this boiler. They had no complaints or violations of record for this particular boiler.
Once again, that's why staff put that as a condition of approval in the staff report, to
• make sure that this boiler that's being installed is the one that's coming from Memphis,
Tennessee, Anderson -Tully, Company.
Hoffman: So that's a model number on an existing boiler?
Conklin: Yes, that number was an existing boiler that was used in Memphis, Tennessee,
Anderson -"Cully Company.
Hoffman: Back to the applicant, is that a used boiler and not a new boiler?
Stockland: We were responding to your question about where the air was coming from and I just
didn't pay attention. It is coming from Anderson -Tully.
Estes: Commissioner Hoffman, let's continue with public comment and then perhaps the
applicant can address some of these issues that have been raised both by the
Commission and by members of the public.
Garcia: My name is David Garcia, I live at 120 North Block in Fayetteville. For anybody who
pays attention to local politics if that matters, I think it will come to no surprise to
anybody that I have been a political opponent of Mayor Hanna's in the past, on a
number of issues. Again, I don't know if it really matters or not or if anybody really
is
cares, I was not a supporter of our current Mayor, Mayor Coody, I was actually a
Planning Commission
• April 9, 2001
Page 32
supporter of Cyrus Young in the last campaign. To me, I would not support or oppose
this matter because it has to do with the former Mayor or because of anything to do
with the current Mayor. What I would simply like to do is ask our visiting expert some
basic questions and that would form my own basis for either supporting or opposing
this matter. Mr. Michaels, the City staff has expressed some concerns about control of
the emissions, ash and smoke and those kinds of things and have proposed a series of
conditions to try to address those concerns, do those conditions seem excessive to you
sir?
Michaels: I have not seen a permit application from Hanna's and conditions get more intensive as
the size of the boiler increases because of the amount of pollutants that are emitted from
large boilers. It covers a wide range of emissions that would typically be included in the
air permit.
Garcia: You think those are reasonable concerns then.
Michaels: I think that the conditions, I haven't seen them I just followed along as they were read,
• generally I would say they sounded reasonable. They would probably be included in an
air permit that was issued to any facility that had a wood fired boiler of a sufficient size.
Garcia: There were some comments about whether some of the conditions of use were an
excessive attempt of the City, the Mayor, the City Council, the City staff to step into the
jurisdiction of the federal and state authorities, obviously you can't speak on behalf of
the federal government but on behalf of the state office that you represent, did any of
those conditions seem an excessive assertion of authority by the municipal authorities?
Michaels: Here again, I don't have the conditions that have been read but I would say that the
ones that apply to the air pollution aspect of it do not seem to be excessive and we do
also have the delegation of the federal program. Not knowing the extent of the
emissions of these units it depends on if it would be a minor source or a major source
contaminant and that would make a difference as to how many conditions were applied.
Yes, we do also administer the federal program, but I don't think I can speak to that in
as much detail.
Garcia: I think you've answered my questions and if I say this wrong, please do feel free to
correct me. Regardless of my feelings about the current Mayor, regardless of my
feelings about the past Mayor, if the concerns of the City staff are justified and it these
conditions do not seem excessive, which is what I believe Mr. Michaels is saying, then
• as an individual citizen, I would support this. I apologize if that seems like a political
Planning Commission
• April 9, 2001
Page 33
thing because seriously it's not. It's what the objective expert says about it. Thank you
for listening.
COMMISSION DISCUSSION:
Estes: Is there any other members of the public that wish to comment on the issue of the wood
fired boiler? Seeing none, I will close the floor to public comment on the issue of the
addition of the wood fired steam boiler. Tom, there were a number of issues raised by
public comment, do you wish to address any or all of those issues?
Stockland: I would like to address a
few. I guess the first one, through a series of questions to Mr.
Michaels, if I
could. My
understanding is there is a state statute
that says your
department is
the only one
that can monitor air pollution, is that
correct?
Michaels: Basically, yes. Not just monitor but be able to enforce regulations.
Stockland: I would agree with what you said, that most of these requirements would be in our air
• permit but, in your view, is it unusual or beyond what nominally happens to have a
subdivision of the state enforce regulations that are almost identical to what's in the air
permit?
Michaels: I have not seen that before. Just to add a little bit, there are some requirements in there
about noise and that sort of thing, we do not regulate those conditions or anything like
that, those are the sort of things that would not go on the air permit.
Stockland: We don't object to the noise one. We've got some nickel and dime wording things on
some of the others but the ones that we have issues with is where the City of
Fayetteville is attempting to enforce conditions that will be in our air permit. I guess I
just want to have an understanding that that is beyond the intent of what is normally
done since you are given sole authority to regulate those, is that correct?
Michaels: I think so. There is one exception, the City certainly has the, the City Attorney can
probably speak better than I can, through the City zoning requirements and noise
requirements and nuisance requirements in whatever the people of Fayetteville believe
is appropriate. They may overlap some of our responsibilities also.
Stockland: I understand those. As far as the other conditions that were brought up, I'll answer
questions I can answer. What I can't answer, I'll get John to answer but I don't have
0
any other responses I wanted to make. Our main problem is the idea that the City of
Planning Commission
• April 9, 2001
Page 34
Fayetteville is going to become an enforcer of air pollution requirements where we are
already having that enforced by the state of Arkansas. There is a state statute that
basically gives them the sole authority. There is a question as to whether our 1996
ordinance is even valid because of that.
Estes: Mr. Stockland, my notes reflect that Ms. Davidson raised the issue of the new or used
boiler. Are you able to comment on that in a dispositive way?
Stockland: I now understand that we are buying that from Anderson. When I was listening to the
Commissioner's question, I was listening to separate building, airflow and did not listen
to the question close enough. It's new technology, it's a technology currently used. It's
not the old technology that has the smoking problem. It is a new technology but it is a
used boiler.
Estes: Mr. Weiss has some questions regarding emissions and odors as they may relate to the
wood fired steam boiler, do you wish to comment on those issues?
• Stockland: I will tell you what's in your packet, that our system is significantly below federal law,
the requirements they have. I think it's 20 parts per million or something. It meets all
federal regulations. Mr. Conklin has commented on what he saw down in Mansfield
which is basically the same system. I can't really elaborate and be more technical than
that.
Estes: I will bring that portion of the conditional use 01-1.00 as it regards the request for an
addition of the wood fired steam boiler back to the Commission for discussion,
comments and motions. Let me say that also in your packet is a letter from Mrs.
Harriet Jansma who says that because of illness she could not be here and asked that
you read her comments.
Hoffman: I'm going to try to get the meeting moving along and preface a motion to approve the
conditional use for the boiler portion only with the following comments. It's my
understanding that Hanna's has not applied formally for a permit with the State. In
agreeing with item number 7, in order to assure compliance with the Arkansas State
Fire Code and those significant safety hazards exist, in reading your paperwork, I have
done some research through the Standard Fire Prevention Code, I don't see any
mention of a spark arrester, is there a spark arrester located in your smokestack? Can
anybody answer that question? In addition, in chapter 37 of the Standard Fire
Prevention Code there are requirements for a wood fired boiler based on the BTU
40
input and on disposal of ash and housekeeping of the site and containment of the ash.
Planning Commission
• April 9, 2001
Page 35
Tim, do we have any plans submitted by mechanical engineers, submitted to your
department that cover any of this material? Interlocking safety devices, other than state
emission requirements, fire codes that you have to meet?
Conklin: There may be some information. They did give us a packet of information with regard
to this existing boiler but I don't have that available right now.
Hoffman: I appreciate that. For those reasons, I feel like the laundry list of requirements in front
of you is merely a redundancy to ensure that these applications and permits are
followed through. Should they be followed through according to our state
representatives, it sounds like you'll be fine. If this is indeed a new type of boiler using
the new clean technology, I've heard of it used in other areas and I believe that
properly operated it can function well. Since it's going to be outside the manufacturing
facility, I don't believe that it will contribute additional aromas to the atmosphere. With
that being said, I believe that... Did we have a condition number 23? Could you re-
read that to me because it's not in mine?
• Estes: Condition of approval number 23, no final Certificate of Occupancy shall be issued by
the City until after ADEQ permits are issued, reviewed and approved.
Hoffman: We have the part in there about the City fire inspection and all of that?
Conklin: Yes we do.
Hoffman: Number
seven, although it says
state, could we put City and State, by the
City Fire
Marshall
and building inspector.
I want it specified who's Fire Marshall
it is.
Conklin: The intent is the City.
MOTION:
Hoffman: The City Fire Marshall would be the one having jurisdiction here, not the State. the
City is going to have a lot to do with inspecting the right plans and drawings and
installation and stuff like that. I'll go ahead and move for approval of CU 01-1.00
based on the 23 staff comments.
Estes: We have a motion to approve CU 01-1.00 as that conditional use request relates to the
request for an addition of a wood fired steam boiler, subject to the 23 conditions of
• approval. Is there a second?
Planning Commission
• April 9, 2001
Page 36
Ward: Second.
Bunch: I have a couple more questions, something I would like to ask Mr. Michaels. Mr.
Michaels, in speaking to the various organizations that have jurisdiction, could you tell
us how your jurisdiction overlaps with the State of Arkansas Department of Labor, and
the Boiler Inspection Division. This installation will come under their jurisdiction as well
as yours, which department gets which part of it?
Michaels: Yes sir. We do not inspect the boilers. I think that the Department of Labor inspects
the boilers and I'm sure that the insurance carrier that the facility will have to have to get
the boiler insured by will also have their independent inspector from the insurance
company inspect it too. As far as the integrity of the boiler itself, that is not the
jurisdiction for us. As I understand, there are probably two independent inspections
normally in these cases.
Conklin: I did speak with the Department of Labor this afternoon and they will be required to get
an installation permit and it will have to be inspected through that office to be installed
• and maintained. Commissioner Bunch also asked a question earlier this afternoon
regarding the licensed boiler operator at this facility and whether or not he could be at
this facility or on the 15`h Street site and still meet those conditions. Based on my
conversation with the Department of Labor, the distance of .7 miles between two
facilities will require the boiler operator to be at this location.
Bunch: I want to make sure on what Tim just said, you are saying that if boilers are operating at
both sites, each site requires it's own boiler operator to be in attendance?
Conklin: What he told me today is, he thought that was too far apart.
Bunch: The reason I'm asking these questions is, we do not have findings of fact in this matter
in our packets. Normally we have the findings of facts. I believe it's our responsibility
under the law to research and define these facts and before we pursue the vote on the
motion on the floor, maybe we need to back off just a little bit and see if we have
satisfied the legal requirements for the findings of fact. It is our responsibility, as I
understand the law, it's our responsibility to find those facts. Normally, the staff
prepares those facts for us and we include it with our motions as part of the record.
Those findings of fact are not present, so it is our responsibility as I see it, to have a
finding of fact to go along with the conditions of approval.
0
Hoffman: I would like to discuss this with Commissioner Bunch. The boiler itself to me is a piece
Planning Commission
• April 9, 2001
Page 37
of equipment that is germane to the manufacturing process itself, it's merely supplying
energy to the plant. From what I've seen and indeed generously worded, rather
comprehensively worded conditions of approval shall we say, if they don't meet any of
these then the boiler doesn't get it's operating permit. I would say that I'm comfortable
with as many people that have to inspect this thing and the fact that it is in the Industrial
Park, I don't have any compatibility issues with it. On this one, I think our findings of
fact are relatively minimal.
Conklin: On page 4.1 including the recommendation is the finding you do have to make with
regard to a facility that has a potential to emit an odor and it states "the Planning
Commission shall make the required finding that they are reasonably satisfied that the
permitted use will not generateee nerally offensive or noxious odors or create an
unreasonable hazard to the public", so you do need to make that finding. I apologize, I
did prepare a findings of fact this afternoon and did not get them up here this evening.
Staff has made the required findings and they are in writing and staff is retrieving those
at this time. We do have findings of fact in support of granting this conditional use. I
think it would be appropriate if the Commission could discuss how these conditions will
• result in the Commission being reasonably satisfied that it will not generate generally
offensive or noxious odors, for the record.
Bishop: I have another question of Mr. Michaels. I would like to know what your procedure
for handling complaints is once you issue the permit. It seems like the City is going to
be involved in getting complaints regardless if they want to or not. More than likely a
citizen will be calling us before they will be calling you. Are those passed on by the
City to you or how many complaints does it take before you respond? I would just like
to know what your procedure is.
Michaels: The agency policy is we respond to all complaints, even anonymous complaints. We
have a period of time that we respond to them and we have an air inspector in
Springdale so any complaints the City received could be either directed first hand,
referred to our air inspector or could be passed on to the air inspector if the individual
did not want to talk to our air inspector or our air inspector did not have the
opportunity to reach them at some point in time. If it's a complaint that will affect the
immediate health concerns and the air inspector is out inspecting another facility miles
away, the first available inspector may be a water inspector or solid waste inspector,
whoever is available will then respond to that complaint. That's done generally on spills
and things like that. As far as what would happen after a complaint is lodged, the
permit would have a number of general conditions in there that are inherent to all air
• permit, depending on what source category the permit falls in, they would have a
Planning Commission
• April 9, 2001
Page 38
number of specific conditions in the permit. The permit is written in such a way that is
to reflect proper operation of the facility and ways that easily document when an
inspector arrives on scene. For example, their opacity requirement probably would fall
into the 20% opacity requirement. The air inspector's are qualified twice a year
through a federal testing method so if there was someone who thought there was
excessive smoke coming out of the stack, they could do an opacity reading provided
it's daylight. They could document that the proper fuels are being used, we put in
conditions on the type of fuel. We could look at their records and see the fuel uses
over a short period of time, we usually regulate that over 30 day periods and give them
a rolling 12 month average on how much fuel they can burn. So, if they want to
generate 25,000 pounds of steam an hour, we roll that out to a monthly total and check
their records to make sure they haven't exceeded that. We write the permit in such a
way that we can determine if they are in compliance with the permit when we make an
inspection on site.
Shackelford: I have a question of staff for clarification for myself to make sure I'm understanding this
correctly. The underlying issue for this conditional use was that the boiler alone could
• produce an odor and due to that you made a determination that this fell under the odor
emitting facility, is that correct?
Conklin: That is correct.
Shackelford: After doing your research regarding this type of boiler and after reviewing the actual
operation of the specific boiler in Memphis and after visiting the plant in Mansfield, do
you still feel that this boiler alone causes an odor?
Conklin: It has the potential to emit an odor. If it's operated efficiently and properly, we
shouldn't have any problems and that's the reason for those conditions of approval.
Staff conducted a tremendous amount of research to try to understand how wood fired
boilers operate and some of these conditions are based on our conversations with the
environmental office in Memphis to make sure that they operate efficiently.
Shackelford: Basically what we are looking at is the operation of the boiler alone? We are not
looking at the other operations that have been taking place in this facility, is that
correct?
Conklin: Yes. You are looking at a wood fired boiler, 28 million BTU's with a 40 foot tall
smoke stack. What comes out of that smoke stack, I'm trying to make sure that we
• have appropriate conditions of approval to make sure there aren't any problems.
Planning Commission
• April 9, 2001
Page 39
When we talk about compliance with federal and state regulations, I hope that
everything operates efficiently and that we do our 6 month review and we can go out
there and we can't tell hardly anything is coming out of the stack and everybody is
happy. That's the intent of these conditions, not to have a future problem in
Fayetteville.
Shackelford: Just for my clarification, we are to review only the proposed steam boiler, not the actual
operations of the candle facility in the other building?
Conklin: That's the second part of this request. Once again, just the smoke stack, what comes
out of the smoke stack, does have a potential to emit an odor.
Michaels: I would like to give the Commission just some general perspective on wood fired
boilers. We have hundreds of them in the state. We have a lot of experience regulating
them. The newer technologies, of course, burn cleaner and the older technologies,
there are some problems associated with them depending on the height of the stack and
the velocity through the stack and the temperature of the gases makes a difference as
• how high the pollutants go into the atmosphere before they settle back to earth. We do
occasionally get complaints about ash on nearby residences and things like that when
they are close to areas of inhabitance. We also, there is a grate raking issue that I think
was addressed, that's basically a deposit build-up on the grates that inhibits the air flow
and needs to be removed so that the boiler can be efficiently operated. Those
conditions can cause ash and sediment to be emitted from the smoke stack. In some
cases, there is scrubbers or electrostatic precipitators or some sort of control, I think I
heard multi -clone. I don't know, I haven't seen the permit application or diagrams, I
have no idea as to what is proposed, if any, control equipment is on this boiler and what
would be required. That's a little bit of information I can tell you about wood fired
boilers. They do emit what we call criteria pollutants. Criteria pollutants are carbon
monoxide, sulphur dioxide, chicklet matter, volatile organic compounds is what you are
typically going to find emitted from a combustion source such as this, including your
automobile. There are also de minimis quantities of hazardous air pollutants. However,
when we write a permit for a wood fired boiler we usually include de minimis emissions
of 188 hazardous air pollutants because they have been identified in what we call de
minimis quantities meaning that below a level of concern. However, even your
automobile emits de minimis quantities of hazardous air pollutants on property
collectively in this town, if you add it up are probably much greater than the hazardous
air pollutant from this facility. I'm not trying to raise an alarm here, I'm just trying to
give some perspective on that. The criteria pollutants and the concentrations of them
• are very specifically regulated in the Clean Air Act. They have various timed standards
Planning Commission
• April 9, 2001
Page 40
with them. There is a 24 hour standard with some. There is always a yearly standard
with all of them, there is a three hour standard, like SO' is a three hour standard. These
pollutants can be monitored to determined if there is an excess emissions typically in a
wood fired boiler. If it's operated properly you have the appropriate stack
temperature, monitors and that sort of thing, it's not usually required for monitors to be
put out there. We can do some air dispersion modeling to determine in what
concentrations these pollutants will be emitted to the atmosphere and we do that when
we get above a certain threshold. Usually it's in a major source category. Just to make
sure that all the concentrations are below the requirements for the criteria pollutants that
are established in the Clean Air Act. The models are very, very conservative so
usually, many times our experience has been that monitoring we'll show that the models
are very conservative so you have an adequate margin of safety when an air dispersion
model is done to determine what that would be. Since I haven't seen the application I
don't know to which if it would be a major source or a minor source and how that
would need to be monitored or not.
Estes: Thank you Mr. Michaels. We have a motion on the floor by Commissioner Hoffman,
• seconded by Commissioner Ward to approve CU 01-1.00 at it relates to the addition
of a wood fired steam boiler, is there any other comments, questions, discussions?
Bunch: Now that we have seen the findings that have been passed out to us from the City staff
and after reviewing those and looking at the 23 conditions of approval which admittedly
are rather redundant but finding that they basically call out that the proper duly
authorized federal and state regulatory agencies have jurisdiction over this and they are
merely yielding most of them, even the ones that were objected to by the applicant, are
recognizing that those authorities exist, I will be supporting this wood fired boiler.
Hoover: I have a question for Mr. Michaels. When you mentioned that there is a possibility of
ashes coming out and being deposited, is that something you would give a citation for if
you see that or how does that work and how much would the citation be for?
Michaels: Here we are getting also into the realm of if a tree falls in a forest and there is no one
around, does it make any noise? If it occurs out where there are no complainants, of
course, there would be no citation. If it's in an area of concern where this is a habitual
situation, we have upset provisions in the regulation. We understand that nothing can
run perfectly all the time, there is provision for an upset condition. If it's tied back to an
upset condition, if the upset condition report was timely and properly submitted to the
agency describing the upset and the conditions that were required to put it back into
• proper operation, we could use an enforcement discretion and not enforce on the
Planning Commission
• April 9, 2001
Page 41
facility. We usually try to give the facility the opportunity to comply and give us a
compliance plan to reduce the problem because we feel they know their operation
better than we do as far as what makes the boiler run best. However, if they do not,
then we use progressive discipline, so to speak, to go after then with a fine and if it
happens again the fine is increased and then there is other things we can do in a consent
order if the facility agrees. If the facility doesn't agree, we can go to a notice of
violation and go through the Administrative Law Judge and he is going to have stiffer
fines.
Hoover: On odors, is it my understanding that you do not give any citation or regulate actual
odors, only emissions?
Michaels: Odor is another issue. We have complaints all the time. I think about 6 years ago
Fayetteville put in a new sewer treatment plant and there were some odors associated
with that. We worked very closely with our water division and with the City in trying to
get that operation to where it did not emit excessive odors. The situation on odors is,
we have complaints for example, for bakery's, because of the odor. If you drive
• through a neighborhood and smell bread, how good it smells. People that live there
may feel that that's not a pleasant odor to smell all the time. We have to determine,
many facilities have a number of complaints or complaint log on a facility to determine if
there is an odor situation existing. If it was a rendering plant, for example, where they
had to maintain certain solutions to a certain PH or they had a scrubber that they had to
maintain their scrubber differential pressure at a certain amount, we can go in that
facility and see that it's operating properly and if it's not within those parameters that
we have in the permit, we can give them a citation. However, those are subjective and
it's difficult to determine if a nuisance exists by one person. It's difficult for us to
enforce that. However, if a Commission like this hears testimony from our inspectors,
from the community, and felt that surely a nuisance did exist and they gave us some
formal recommendation that was the case, then we would have, it's my understanding,
we have cause to go in and to enforce an odor remedy of some sort.
Hoover: Are you saying that the City can ask you to go in and enforce an odor regulation?
Michaels: I think that the City would have to determine that a nuisance exists. One of the pieces
of evidence you would be able to use is our inspector's response to complaints, his
professional opinion on odors. Here again, he has one nose and one odor threshold
detection. We've done a lot with odors. We worked with confining animal feed lot
operations, we work with the sewage treatment plants, we work with sour gas wells in
• southwest Arkansas and H2S and different people detect these odors at different
Planning Commission
• April 9, 2001
Page 42
thresholds. Sometimes there are 2 orders of magnitude in the concentrations that they
are detected. It's best, usually these nuisance things are determined by preponderance
of evidence through not only one source but a number of sources. Of course, we don't
want to come up here from Little Rock and say "This doesn't have an odor" or "Yes,
this does have an odor", we would like to have you tell us what your people feel it is
and if you feel it is a nuisance then we can probably take appropriate action.
Hoover: Is a boiler of this type, in your experience, does this emit an odor or could it potentially?
Michaels: Sawdust can if it's not burned property, it could. Then again, the permit would require
proper operation of the boiler and with a 60 foot smoke stack and not knowing the exit
temperatures, someone talked about 1,400 degrees was extremely high. I would think
that the resonance time if it's anywhere on the order of a quarter of a second to a half
of a second, would destroy any odors that would be contained in unburned gases that
would reach the stack. That's a very high temperature, 1,400 degrees.
Hoover: Basically what you are saying, if there is an odor it's because it is running improperly
• and you would be issuing a citation?
Michaels: We can document, for example, in the permit application they said they were going to
have a tertiary or secondary combustion chamber and operate that combustion
chamber at 1,200 or 1,400 degrees, we would possibly require a flip chart record
which basically plots out the temperature at all times so that we have a record we can
go back for months and look at those. We require verification that it's working
properly. They might have an independent party audit that or come in and test that,
might require a stack test on the stack itself to make sure that the particulate matter that
is emitted in not any greater concentration than what was put in the application.
Depending on how competent we feel that the information provided to us represents
what we think we have out there, we have a lot of experience doing this. In some cases
we require lots of testing and lots of instrumentation and others less, depending on the
situation.
Estes: Any other questions, comments or suggestions?
Conklin: I would like someone to either make a statement or amend the
motion to
include that
finding, that "they will
not generate
generally offensive or noxious odors
or create an
unreasonable hazard to
the public".
That is a required finding
that has to
be made.
0
Hoffman: I'll make that finding as an amendment to my motion with the addition that when
Planning Commission
• April 9, 2001
Page 43
properly operated it won't emit an odor.
Ward: I'll second.
Hoover: At one time I believe at agenda session, on item number 20 it says that sawdust is going
to be used, I thought someone mentioned that it would be small pieces of wood and
sawdust and I didn't know if that made a difference in this item or not. I don't know if
the applicant, hasn't said what...
Estes: Tom, is that something that the applicant can respond to? Condition number 20 I had
as marked that was not one you disagreed with, that was one you agreed with?
Stockland: That was one we agreed with. Our understanding from the manufacturer that we are
buying it from, he classifies it as sawdust. If there are chunks of wood in it, I don't
know that. Our idea is to buy sawdust and that's what has been talked about.
Hoover: I thought at agenda someone said any wood that's under 3 inches.
• Stockland: I don't know.
Bunch: Some of the literature that we received did say that this boiler had the capability of using
what is called a 3 inch minus fuel. It's up to 3 inch pieces, I think. Mr. Venable, at
agenda session, told us and gave us some literature to review the more technical
aspects. It is the waste from a saw mill or wood manufacturing operation that will come
under probably a little different nomenclature than we are normally used to using on
sawdust and slabs and that sort of things, what the sizes of pieces are. From looking at
the design from the boiler manufacturer, it did indicate that: it could efficiently burn 3
inch size pieces of wood on down to sawdust.
Estes: Any other comments or discussion? Sheri, would you call the roll?
ROLL CALL:
Upon roll call CU
01-1.00, as it pertains to
use of a wood fired boiler,
is approved on a vote of 6-1-2
with Commission
Hoover voting "no", and
Commissioners Estes and
Marr abstaining.
Planning Commission
• April 9, 2001
Page 44
CU O1-1.00: Conditional Use (Hanna's Candle Company, pp 643) was submitted by Fred Hanna
of Hanna's Candle Company for property located at 2700 S. Armstrong. The property is zoned I-2,
General Industrial and contains approximately 46.74 acres. The request is to change the use of this
structure from warehousing to a candle and potpourri manufacturing facility (use unit 31).
Estes: The second request with conditional use 01-1.00 is the request to change the use of the
structure from warehousing to a candle and potpourri manufacturing facility, a Use Unit
31.
Hoffman: At this time in a little deviation from normal procedure, before the applicant or the
public begins discussion, I would like to state my position on this item and the large
scale development. It's going to be my plan, I'll give you the specific reasons, to make
- - a motion to table both of the next two items due to lack of information. We have a lot
of material in our packets and after having looked through it and done some additional
research, I found the following: Let me say that this is not to unnecessarily delay
Hanna's expansion nor is it to cause any disruption in your plants operations or
continued growth plans. I think we need some more information on some very
• important items related directly to the odor situation. My reason for bringing this up at
this point is to let you know exactly what they are. If I understand it correctly, volatile
organic compounds are what are fragrances that are used in the candle manufacturing
process, those contain oxygenated hydrocarbon fragrances. NFPA 86 in chapter 38 in
the Standard Fire Prevention Code, calls for ventilation and exhaust systems for ovens
or manufacturing equipment that is heated to a degree of 160 degrees Fahrenheit. I
believe in agenda session you guys did say that you operate between 150 and 160
degrees. A ventilating appliance is required for such an oven or such a piece of
equipment. That would directly release these emissions into the atmosphere. Further,
the building make-up air, we've got some conditions of approval that include closing all
the doors and so forth and keeping the vats all closed, that will be a violation of the
building code and NFPA 86. So, I cannot vote for or against something that hasn't
been studied thoroughly enough. I believe that we need some MSDS sheets for the
VOC's which again are the oxygenated hydrocarbon fragrance. I'm really terrible at
pronouncing this stuff, I'm trying to do my best. We'll need some MSDS sheets that
show us what the level of toxicity is for the compounds and if they do then in fact trigger
the exhaust for the vats or the appliances that you use to manufacture the candles and
melt the wax, then we'll need to further investigate the need for scrubbers or other
means to mitigate the odors that are emitted into the atmosphere from the plant. With
that being said, I wanted to go ahead and make that, at least for myself the statement,
the focus, prior to any discussion. I feel that we don't have enough information in front
• of us to continue. I would be happy, when we come upon cases that are special like
Planning Commission
• April 9, 2001
Page 45
this, to expedite meetings, hurry up things, whatever we can do but we sure would like
to, I think, be very complete about this because we are dealing with a new ordinance
and I guess our first case under that ordinance.
Estes: The second request to change the use of the structure from warehousing to a candle
and potpourri manufacturing facility, a Use Unit 31, contains 17 conditions of approval.
Mr. Conklin, do we have signed conditions of approval?
Conklin: No, we do not.
Estes: Mr. Conklin, staff did not make a recommendation regarding this portion of conditional
use 01-1.00 and expressed the desire to reserve a recommendation until after the
presentation by Mr. Michaels. Is staff now prepared to make a recommendation?
Conklin: Staff is still concerned with regard to the change in the proposal that was made on
Thursday. It was our understanding up to Thursday that this facility would be relocated
into the Armstrong Road facility. However, at the Planning Commission agenda
• session, the applicant did state that they plan on keeping their current candle
manufacturing operation on 15" Street and that this is just an expansion. During our
discussions with regard to this conditional use permit, the reason they feel like they can
meet this ordinance and that the Planning Commission will be reasonable satisfied, is
that there will be approximately 7/1 Oths of a mile further to the southeast and instead of
being in a 5,000 square foot building, they will be in a 600,000 square foot plus building
which will help keep the fragrance within the building and further away from residential
neighborhoods. I'm not sure exactly how much manufacturing they are relocating to
this facility. I've also done research with regard to the permit requirements from the
DEQ office in the state of Massachusetts with regard to Yankee Candle and have
provided that background information to you. Based on that information, I would like
more clarification by the applicant to explain and provide information how this
relocation will result in odor control, based on the distance and size of the square
footage of the warehouse that will be converted.
Estes: Let me read these 17 conditions of approval. Again, I do this for the benefit of each of
you because you do not have these before you and yet your Commissioner's do.
Number one, all vats used to mix fragrances and fragrance containers shall remain
closed when employees are not mixing fragrances into the wax. Number two, all vats
shall be located in enclosed rooms or areas designed to control the fugitive emissions
from escaping into the atmosphere. Number three, the amount of pounds of wax and
• fragrance used in at this facility shall met the conditions set by ADEQ in the Air Permit
Planning Commission
• April 9, 2001
Page 46
for the existing facility on 15`h Street. A change in the amount of wax allowed to be
used at this location shall require additional approval by the Planning Commission. At
this time 60,000,000 pounds of wax per consecutive 12 month period are permitted at
the 15`h Street Facility. Number four, all overhead doors shall remain closed at all
times unless a truck is actively loading or unloading product. Other doors and windows
opening to the outside shall remain closed unless in use. Number five, this facility shall
comply with all State, Federal and local regulations. Number six, this conditional use
approval is subject to compliance with all approved large scale development conditions
of approval. Number seven, the Planning Commission shall hold a public hearing and
review of this conditional use permit 6 months after the date that manufacturing activities
have been relocated to this site to determine compliance with conditions of approval
and address any complaints that might arise regarding odor. Number eight, the candle
manufacturing operation shall be inspected by the Fire Marshall and Building Inspector
to assure compliance with the Arkansas State Fire Code and to assure that no
significant safety hazards exist. Number nine, this facility shall comply with the City's
noise ordinance (based on zoning district and enforced by Police Department).
Number ten, a log shall be maintained by the applicant of all complaints received by the
• company regarding odor or emissions, logs shall include date, time, name of caller,
complaint and resolution information. The log shall be submitted to City on the fifteenth
of January and June of each calendar year. Number eleven, a change in the type of Air
Permit to a major stationary source permit under Title 5 ADEQ regulations shall require
Planning Commission approval to ensure that additional conditions can be reviewed and
considered. A copy of the draft and final permit shall be submitted to the Planning
Division within 10 calendar days of receipt by the applicant. Number twelve,
modification to the Air Permit shall require Planning Commission review and approval.
Note: An Air Permit has not yet been issued by ADEQ for the candle manufacturing
operation at this site. A copy of the draft and final permit shall be provided to the
Planning Division within 10 calendar days of receipt by the applicant. Number thirteen,
once manufacturing operations have been relocated from the existing facility located at
1421 E. 151h Street, no future use (manufacturing, warehousing, etc.) which has the
potential to emit an odor shall be permitted in the 15`h Street location, only uses
permitted in the I-1 district shall be allowed. Number fourteen, the applicant shall
comply with ADEQ permit conditions for the candle manufacturing operation. Number
fifteen, any modification to the ADEQ Air Permit shall require Planning Commission
review and approval. Number sixteen, any violations of ADEQ Air Permit conditions
shall require a revocation hearing by the Planning Commission. Number seventeen, the
applicant shall notify the City of any violations of the ADEQ Air Permit. A copy of all
violation notices and Consent Administrative Orders shall be provided to the Planning
• Division within 10 calendar days of receipt by the applicant. Staff, are there any
•
•
•
Planning Commission
April 9, 2001
Page 47
additional conditions of approval?
Conklin: No, there are not.
Estes: Mr. Stockland, do you have a presentation you would like to make on behalf of the
applicant as it relates to the conditions for the candle manufacturing operation?
Stockland: It was really included in my last statement. I just reiterate that we are not going to be
able to agree to all of these requirements that will be in air permit and having revocation
in front of the Planning Commission. It's just like the boiler, if it's passed that's fine but
we are not going to be able to live with those conditions. We are already regulated by
ADEQ, they do a fine job. They inspect our facility and I don't think there is a need for
the City duplicate those efforts.
PUBLIC COMMENT:
Estes: Thank you Mr. Stockland. Is there any member of the audience that would like to
comment or speak on that portion of the conditional use as it relates to the change in the
use of the structure from warehousing to candle and potpourri manufacturing, would
you raise your hands please? If you would please come forward and give your name
and address?
Eaves: I'm Gail Eaves, I live in the City at 2668 Ashbrook. I am an employee of Staffmark,
Hanna's is one of my larger clients. However, I'm here to speak as a citizen of the
City. There are several comments that I would like to make and I will be very brief.
Number one being, it would seem to me that if we are moving a portion of the
manufacturing from this area, which is primarily a residential area, that we would be
eliminating some of the odor as has been commented on tonight. I think that would be
an effort at controlling that situation. We are going into, primarily, an industrial area
with no homes in the area. It seems to me that would benefit everyone concerned and
maybe eliminate some of the problems that have arisen recently. I also would comment
that I moved into the City 7 years ago, there are many things I love about it. There are
a lot of benefits each of us receive. I can realize that my taxes do not pay most of those
benefits, the companies such as Hanna's do take care of that. I would suggest that we
try to be as reasonable as we can in our restrictions. Thank you for your time.
COMMISSION DISCUSSION:
Estes: Thank you Ms. Eaves. Does anyone else wish to comment on this portion of the
Planning Commission
• April 9, 2001
Page 48
conditional use request? Seeing none, I will bring the matter back to the Commission
and I will close the floor to public comment. Commissioners, is there any discussion,
motions?
Bunch: Question for the applicant, item 13 on the conditions of approval and considering where
it's been stated concerning just what will be produced at which location and whether or
not this is a moving or expansion or a combination. Could you please clarify that
because we are in the dark?
Stockland: There is no intention right now to buy additional equipment. We were going to move a
portion of the manufacturing to the new facility. It's just a moving of some of the
manufacturing to a new facility further in the industrial park.
MOTION:
Hoffman: I'll go ahead and make a motion to table CU 01-1.00 for the relocation of the candle
making operation for the reasons previously stated. I'll be happy to answer any
• questions from the applicant if I've misstated any of the facts or if I've gotten anything
wrong, while we are all together. If not, again I would like to reiterate the fact, I'm
personally willing and I know that staff is generally very willing to fast track meetings
and so forth to go ahead and reach a reasonable solution to the issue. I certainly don't
want to delay unnecessarily any relocation or expansion of your company but I do want
to make sure we get it right and don't have to go back in and retrofit a lot of expensive
equipment that may not be budgeted for or something like that. With that being said,
I'll go ahead and make the motion to table this conditional use.
Williams For a point of clarification, is this an indefinite tabling then; not to a definite time?
Hoffman: I think it's up to the applicant to reapply or supply the information. I have given a brief
list of things that I feel were lacking in our information.
Williams: It is for an indefinite time then?
Hoffman: I won't plan on bringing it back unless they do.
Estes: There is a motion on the floor to table that portion conditional use 01-1.00, the second
request as it relates to change the use of a structure from warehousing to a candle and
potpourri manufacturing facility, a Use Unit 31. Is there a second to this motion?
0
CI
E
is
Planning Commission
April 9, 2001
Page 49
Hoover: I'll second.
Estes: There is a motion made by Commissioner Hoffman and seconded by Commissioner
Hoover, is there any discussion?
Bunch: Could we discuss, just briefly, any of the concerns that we have before we vote on this,
should the motion pass to table, to give the applicant a fair idea of what we would want
to have brought back to us in addition to anything you might have already mentioned in
previous comments? In all fairness, we need to know what we are looking for here.
Hoffman: Was I clear enough?
Bunch: 1 was hoping to poll the other Commissioners to see if anyone else had some concerns
that need to be added to the list.
Hoover: One comment I have or question, this might be for Mr. Michaels, in this whole process
as we've gone through this and trying to understand the HVA system, the make-up air
and all of that. I don't understand when you have to have a mechanical engineer or
environmental engineer involved in a process like this. Mr. Michaels, does the state
require that you have an engineer stamp before you submit for a permit or what are the
requirements? When is this needed? I would feel much more comfortable if there was
an environmental engineer involved in saying this will make it work or it will not.
Michaels: Let me see if I can address those questions if I understand them. Our agency basically
has the responsibility for outside air, in other words air that basically contacts any
resident that may be in the area, that they are not restricted from an area. If there is a
fenced in plant and you have to have access to get into that plant, that's where our
jurisdiction stops. Inside that plant is normally OSHA's requirements. There is some
move afoot to have EPA take on additional indoor air quality issues, at this point in time
it's not been done. To answer your question, I suspect that the applicant would need
to make sure that the concentrations or whatever compounds that are emitted from the
process are not in excess to what the OSHA requirements, the federal requirements,
would be for the indoor air quality. It would be our responsibility to do the modeling
and determination if there would be excess and concentrations of any compounds
outside the fence line or the area that is basically accessible to the general public. We
are talking about VOC's, volatile organic compounds here, they have to be emitted in
very high quantities to be a concern for health reasons. I suspect that on candles
themselves there is a component that has a VOC component to them but it's not a high
percentage. For example, if you get a can of paint at the hardware store, it's a solvent
Planning Commission
• April 9, 2001
Page 50
based paint, it will tell you on there what percentage of VOC is in that paint. If you
know you can paint something and it can dry and you can smell that odor and some of
that odor is associated with the VOC's. As far as wax, wax is a long chain
hydrocarbon and doesn't generally have many VOC's associated with it. However,
when the wax is heated there will be some VOC's emitted but in a small percentage.
Hoover: I guess when an applicant submits their proposal to you, it's not done by an engineer,
or do you do that part of the process?
Michaels: We review the application for the air permit. We don't review anything about on-site
as far as air concentration or concentrations of the contaminants on-site. If it comes to
our attention, we feel it's our responsibility to notify the applicant that there is potential
- -for a problem for concentrations on-site, just because our concern for human health and
the environment. We don't have the authority to regulate that.
Hoover: What kind of engineer would take care of that if you are emitting something into the
environment? Is that an environmental engineer?
• Michaels: We have in our air division approximately 30 engineers. Most of our engineers are
mechanical engineers and chemical engineers and some environmental engineers.
Basically, not only do they have degrees from an accredited universities, they also have
a lot of training that we send them to, EPA courses and those sorts of things. So, we
have the expertise to make a determination as to what the requirements are for the
applicant when they submit an application.
Hoover: But you are not designing the system for them, are you?
Michaels: No.
Hoover: They need to have it already designed and then you evaluate it?
Michaels: Yes, that's correct. We are not prescriptive, in other words, we have a level of
expertise filled up and we have a review system that goes through. I review every
permit and sign every permit that's issued. We have a review permit from the permit
engineer for their review, through a engineer supervisor, through a permit section
manager. We also have that permit sent to the enforcement branch to make sure it's
enforceable and we hope that we only issue good permits and nothing gets by us when
we issue it.
•
Planning Commission
• April 9, 2001
Page 51
Hoover: When you are reviewing it, are you looking for odors? My understanding is that you
can't measure odors.
Michaels: Odors can be measured but it's very difficult. It's difficult to determine is this a pleasant
odor or obnoxious odor. For example, H2S we can pretty well tell you if it's emitted in
certain concentrations. We know that there are gas sweetening plants in northwest
Arkansas and there are going to be some H2S emissions with them. We can estimate
concentrations of those and tell you if it's going to constitute a health problem. In some
cases when the concentration gets so high odor is no longer an issue but health is. Here
again, it's difficult, all over the map, as to are they a problem or not a problem, are they
a health problem or not.
Estes:= Any other discussion? Sheri, would you call the roll please?
ROLL CALL:
Upon roll call the motion to table AD 01-1.00, as it pertains to changing the use of the structure from
• warehousing to a candle and potpourri manufacturing facility, a Use Unit 31, is passed on a vote of 5-
2-2 with Commissioners Bishop and Shackelford voting "no", and Commissioners Estes and Marr
abstaining.
0
Planning Commission
• April 9, 2001
Page 52
LSD 01-6.00: Large Scale Development (Hanna, pp 643) was submitted by Chris Parton of
Crafton, Tull & Associates on behalf of Burt Hanna for property located at the northeast corner of
Armstrong Road and Borick Drive. The property is zoned I-2, General Industrial and contains
approximately 46.47 acres. The request is for an 1,739 square foot boiler building and a wood -fired
steam boiler.
Estes: The next item of business before the Commission is item number five on your agenda, it
is LSD 01-6.00, large scale development for Hanna submitted by Chris Parton of
Crafton, Tull & Associates on behalf of Burt Hanna for property located at the
northeast corner of Armstrong Road and Borick Drive. The property is zoned I-2,
General Industrial and contains approximately 46.47 acres. The request is for a 1,739
square foot boiler building and a wood -fired steam boiler.
Hoffman: I thought the large scale development, which I said I would table, had to do with the
change of use of the manufacturing plant from a warehouse to a candle manufacturing.
If we are just talking about the building the boiler goes in, I have no objection to it.
When I originally stated that I was going to move to table the next two items, I was
• under the mistaken impression that the large scale development had to do with the
change of use in the actual associated interior construction for the candle manufacturing
going from warehouse to manufacturing. If this building isjust the building housing the
boiler, I'm going to withdraw that statement and go on and go with the flow, quickly.
Estes: Let me discuss with you the conditions of approval. There are 7 conditions of
approval. Do we have signed conditions of approval Mr. Conklin?
Conklin: We do not have signed conditions of approval. With regard to the conditions of
approval, condition number 2 does address the change of use and therefore, I would
like to remove condition number 2. I don't want any indication that we are granting any
kind of permit for change of use.
Hoffman: No.
The condition number
2 is about the
parking space waiver and that would have to
go
with the conditional use
for the candle
making.
Conklin: That's
for the change from warehousing
to manufacturing additional
parking. Since we
have
not approved that, I would like to remove that condition.
Estes: Mr. Conklin, would you take a look at condition of approval number 3? Do you want
to make any modifications or additions to condition number 3? That is, "approval shall
• be subject to the approval of a conditional use allowing for a wood -fired steam boiler
Planning Commission
• April 9, 2001
Page 53
and candle manufacturing at this location. (Use Unit 31 Facilities Emitting Odors and
Facilities Handling Explosives).
Conklin: If we can eliminate "and candle manufacturing at this location".
Hoffman: The reason I was confused is because we also have minutes of the meeting of the
Planning Commission back on September 28, 1998 and that all talked about that big
building. I just would like to eliminate any discussion about that and just go with the
boiler building only.
Estes: Once again, let me read the conditions of approval to the large scale development 01-
6.00. Number one, the cul-de-sac at the end of Borick Drive shall be constructed to
current city standards as required in the 1998 LSD conditions of approval (See
attached minutes). At this time, the cul-de-sac has not been constructed and the
City has not issued a final Certificate of Occupancy due this matter.
Commissioners, condition of approval number two will be deleted. Condition of
approval number three will read as follows: approval shall be subject to the approval of
• a conditional use allowing for a wood -fired steam boiler. Condition number four, Plat
Review and Subdivision comments. Number five, staff approval of final detailed plans.
Condition number six, Large Scale Development approval to be valid for one calendar
year. Seven are the standard conditions of approval. Staff, are there any other
conditions of approval?
Conklin: There are no further conditions of approval.
Estes: Mr. Stockland left us. Does the applicant wish to make a presentation?
Parton: I'm Chris Parton with Crafton & Tull. I think Mr. Stockland has covered basically
everything we wish to have heard in his presentation earlier. I think he addressed the
conditions that we are in agreement with, with regard to the large scale, and those we
are not in agreement with also. I would happy to answer any questions you might have.
Estes: Commissioners do you have any questions of Mr. Parton?
Shackelford: Just one quick question for my clarification. Do you think we need to be looking at this
LSD approval at this time? Without the approval of the manufacturing facility at this
location would the boiler be installed? It's my understanding that we tabled the request
to allow manufacturing in this location. Without the manufacturing being set at this
• location, do we need to be considering a large scale development that would allow the
Planning Commission
• April 9, 2001
Page 54
boiler to be built at this location, would the boiler even be built at this location assuming
that the that manufacturing was not allowed at this location?
Parton: No, it would not.
Shackelford: It's my concern that this may need to be looked at at the same time as the other
conditional use for that matter. We are basically looking at a large scale development
that is contingent upon the manufacturing that has been tabled in a previous motion.
IMI IN [SK6117alaI Blab 9
Estes: Are there any other questions for Mr. Parton? Thank you Chris. At this time we will
hear public comment on LSD 01-6.00 and this is the request for the boiler building and
the wood fired steam boiler.
Alexander: Fran Alexander. In the series of comments that have occurred from the beginning of
this discussion, something has occurred to those of us that have had a little experience
• with incineration issues that I would like to point out for you to consider either tonight or
in your consideration of the boiler. Mainly the discussion of the fuel involved, in
incineration quite often, especially in cogeneration, quite often the percentage of the fuel
is how the facility is mained. I realize this is a wood burning facility but I would like to
have it clarified by this Commission, at some point in this process, that there will not be
anything else burned in this facility other than wood. On that note, is this treated or
untreated wood? If it is coming from White River Hardwood, it could possibly be the
sawdust from treated wood, it could be wood that has had polyurethane or varnish or
any other kind of treatment on it that has been sawed and that wood is collected. Quite
often in very high degree boilers, the use of burning trash and so forth is allowed, I
would like for Mr. Michaels to address that. We don't know for sure if what's going in
will determine what's coming out. These were questions that arose and I don't imagine
that they fit in this category but I did want you to be cognizant of them and to try to
address that. I believe there are a lot of issues on odor that yet need to be addressed
as well. The ramifications of odor and the burden of proof falling on the citizenry. How
soon we forget what the folks fighting Bakery Feeds had to go through to prove that
there was a public nuisance to the odor that they were experiencing and what they had
to go through as far as legal recourse. Please do not forget where the burden of proof
has to fall on the citizenry and issues like this. Not to make too fine a point of it but Mr.
Michaels said that the sewage treatment plant about six years ago had odor problems.
The sewage treatment plant has had odor problems for thirteen years, they have never
• been solved and I think that we should never forget that. That is one of the hottest
Planning Commission
• April 9, 2001
Page 55
political items right now as far as the new sewage treatment plant goes. So, odors are
very much in the public domain, public responsibility to address and to solve and quite
often there is just not the political fight, there is not the political will, there is not the
political money to solve those problems. Please be very cognizant of odor, do not let
this slip by without knowing absolutely for certain what this plant will be emitting and
what it will do to the surrounding area. A 40 foot stack does not keep it on location.
A 40 foot stack is so that it will be dispersed far and wide.
DISCUSSION:
Estes: Thank you Fran. Does anyone else wish to comment on this large scale development?
Seeing none, I'll close the floor to public comment and bring it back to the Commission
for discussion, motions, consideration.
Hoffman: I was going to make a motion to approve. I think it's important to indicate to you guys
that we are trying to be helpful on the issue of candle manufacturing, it just seems to me
that we have a little bit more homework to do on the emissions. Is it your wish not to
• proceed with this, did I understand that correctly?
Scott: We think it's a moot point at this time. John Scott.
MOTION:
Hoffman: With Mr. Scott's request, I'll make a motion to table it at your request.
Allen: Second.
Estes: We have a motion to table LSD 01-6.00 and a second, is there any discussion? Sheri,
would you call the roll please?
ROLL CALL:
Upon roll call the motion to table LSD 01-6.00 passes by a vote of 7-0-2, with Commissioners Estes
and Marr abstaining.
1-1
Planning Commission
• April 9, 2001
Page 56
FP O1-4.00: Final Plat (CMN Business Park Il Phase lI, pp 173, 174) was submitted by Mel
Milholland of Milholland Company on behalf of Nanchar Inc. & Marjorie Brooks for property located
south of NWA Mall, north of Fulbright Expressway. The property is zoned C-2, R -O, Thoroughfare
Commercial, Residential Office and contains approximately 86.84 acres with 7 lots proposed.
Estes: The next item of business before your Planning Commission is item number six on the
agenda, Final Plat 01-4.00 for CMN Business Park II Phase Il submitted by Mel
Milholland of Milholland Company on behalf of Nanchar Inc. & Marjorie Brooks for
property located south of NWA Mall, north of Fulbright Expressway. The property is
zoned C-2, R -O, Thoroughfare Commercial, Residential Office and contains
approximately 86.84 acres with 7 lots proposed.
Bishop:
Mr. Chair? I need
to recuse
myself from this issue. I'm the manager of Northwest
Arkansas Mall and
we have
a relationship with CMN.
Estes: Thank you Commissioner Bishop. There are 14 conditions of approval. Mr. Conklin,
do we have signed conditions of approval?
• Conklin: I don't believe so.
Estes: Again, for the benefit of each of you, let me read through the conditions of approval.
Number one, Planning Commission determination of a waiver request from UDO
§ 158.01(A), "Guarantees in Lieu of Installed Improvements" to allow the developer to
place a bond in the amount of 150% of the construction costs to adjust some
miscellaneous water valves & fire hydrants, to install a retaining wall at the northeast
corner of Lot 15, and to construct protective railings on the wing walls on the box
culverts under Van Asche and Shiloh Drive. (See the Engineer's letters dated April 2,
2001 and April 3, 2001). The ordinance only allows "... the installation of the final
pavement, sidewalks, tree replacements, or landscaping" to be bonded. Staff is in
support of this waiver request.
Conklin: I apologize for interrupting in middle of the conditions of approval. Staff would like to
remove that condition number one. The ordinance does allow the guaranteeing of the
final layer of pavement, sidewalks and landscaping and it basically states that if
improvements have been substantially completed, a final plat can be approved and
come forward to the Planning Commission. We do have a letter from our City
Engineer dated today and basically states, I'll read it to you, "It's is my determination,
as City Engineer, that after the formal final inspection and subsequent reinspection that
• all required improvements for CMN Phase II have been substantially completed. Items
Planning Commission
• April 9, 2001
Page 57
which are not completed and required to be bonded are some of the sidewalks, the
culverts with protective railings are substantially complete, the additional railings down
the culvert wings were requested after final inspection as an extra measure, water and
sanitary sewer systems is substantially complete and functional on minor adjustments
and standards", signed by Jim Beavers, PE, City Engineer. I bring that up because
there was a question with regard to a waiver request, staff does not believe this is a
waiver request and does believe that the improvements are substantially complete and
this is just the minor punch list items.
Estes: The conditions of approval will then read, condition number one, payment in the amount
of $150,900 for the installation of five stop lights as required by the preliminary plat
approval (See attached letter from the Traffic Superintendent, Perry Franklin). The
agreement made at the time ofpreliminary plat approval was for the developer to
provide the equipment and materials and the City would install the traffic signals.
The City will require money to be placed in escrow at this time and these funds
may not be refunded and will not be subject to the five year expiration of the
standard escrow account. Number two, payment in the amount of $35,000 for off-
site street and intersection improvements for Phase II. At the time of the preliminary
• plat, it was determined that $140,000 would be assessed for the entire 309 acres. (See
the attached letter from the Engineer dated March 23, 2001) These funds were
assessed for miscellaneous improvements that have already been constructed by the
City. Therefore, these funds will not be escrowed and will be placed directly into the
general fund. Number three, the portion of Shiloh Drive across CMN Business Park
lI, Phase I and westerly to Northwood Avenue shall be completed and the right-of-
way dedicated with this Final Plat to provide two means of ingress and egress.
Number four, a determination shall be made by the Landscape Administrator with
regard to note #5. Discussion ensued at Subdivision Committee as to whether that note
was necessary. A note shall be added to indicate that each large scale development will
be required to submit a tree preservation plan as a part of the large scale development
approval. Number five, the floodplain and floodway delineations as shown on this plat
must be adopted by the City Council in order to be utilized for future lot developments.
The delineations have not been accepted by FEMA at this time and the original
regulatory boundaries will be enforced until the new studies have been accepted by
either the City Council and/or FEMA. Number six, the channel improvements shown
on the grading plan immediately downstream of the Shiloh Drive box culvert shall be
completed prior to the City Engineer signing the Final Plat. Number seven, the notes as
shown on the Final Plat shall be revised as directed by the City Engineer. Number
eight, the final design theme for the entire subdivision as provided by the applicants shall
• be enforced and made a part of these conditions of approval. (See Attached) Number
Planning Commission
• April 9, 2001
Page 58
nine, all lots will be required to go through the large scale development process.
Number ten, additional road improvements and or assessments for offsite
improvements may be imposed by the City at the time of lot development pursuant to
current regulations. Number eleven, temporary barricades shall be installed and placed
to the west of the Kohl's entrance on Van Asche Drive and on Steele Avenue at the
intersection with Shiloh Drive. Number twelve, Plat Review and Subdivision
comments. Number thirteen, are the remaining standard conditions of approval. Staff,
are there any other conditions of approval?
Conklin: There are no further conditions of approval.
Bunch: I would like to comment on the condition of approval where it made reference to note
number five. I believe that's note number five on the drawing rather than note number
five in our conditions of approval.
Estes: Thank you, I stumbled over that because I didn't know what that referred to. I have a
note here before we go to the applicants presentation to ask Ms. Kim Hesse to
• comment on the condition of approval that Commissioner Bunch just alluded to. Kim,
you act a little surprised, is that not correct? Condition of approval number four,
"Determination shall be made by the Landscape Administrator with regard to note five.
Discussion ensued at the Subdivision Committee as to whether that note was necessary.
A note shall be added to indicate that each large scale development will be required to
submit a tree preservation plan as a part of the large scale development approval. Do
you have any comment or explanation regarding that condition of approval before we
go to the applicants presentation?
Hesse: That is the exact wording that I had worked out with the applicants. Originally the note
referred more to replacement. There were no replacement requirements on this
particular plat. Therefore, that note was an error and we ask that the note be changed.
Milholland: I have a question, is there a modified list I have one more, I have 14 rather than 13
conditions of approval?
Estes: Mr. Milholland, condition 14 I have would be renumbered as condition 13 because we
deleted condition number 1 and condition 13 would now read "prior to signing final
plat, the following is required", and then it lists the standards, "the project disk with final
revisions", etcetera.
• Milholland: May I address the remaining 13 and would just like those that have been complied with
Planning Commission
• April 9, 2001
Page 59
as of this date, the new number one, a $150,900 check has been given to the City, they
have it in their hands. Number two, the City has a check for $35,000 at this moment in
their hands. Number four, that road has been constructed and the right-of-way has
been drawn up and given to the City, acquisition space which they have drawn up the
dedication and that document has been signed by all parties and my client and been
filed and will be presented tonight, if not already, to Mr. Conklin. That item is done.
The next item which would be number four has just been addressed, that's taken care
of already. We concur with Ms. Hesse as to the wording that's on the final plat, not the
one you have but the one that will be filed. Item number five, is an item that City staff
will take care of I understand with City Council and FEMA.. The new item number six,
the channel improvements, that has been completed, the construction is done as of a
couple of days ago. There is nothing left to be done in the field. Item number seven,
where the City Engineer requests an opportunity to revise a note, we agree to that, no
problem. We've already met with him a couple of times and reviewed this several
weeks ago. If he has another comment or if he wants to revise something, we'll work
with him, no problem. Number eight, the final design theme, my understanding is that
Ms. Harrington the attorney for the client, has worked with Mr. Conklin and that's
• taken care of. I'm not sure that's filed in the courthouse but will be in concurrence with
the final plat if not. Mr. Conklin does, I understand, have a copy of that and
understand that. If not, Ms. Harrington can discuss that with you. Number nine, we
concur and agree with the fact that all lots on this project will come through the City as
a large scale development process. Number ten, additional road improvements and
assessments of off-site improvements be imposed by the City at the time the lot is
developed for current regulations. I don't think it's an option, think it's just a
requirement. I think that they just want to reassure everyone that is going to take place
and we concur with that and agree with it. Number eleven, temporary barricades to be
installed at the phase lines between phase II and phase I on Steele and also Van Asche
Drive as soon as the plat is filed and set up right now to be put there by the contractor,
we concur with that. Number thirteen has been taken care of through the review
process and the plat will reflect that as it's signed off. Item number 14A, the disk is a
requirement and every subdivision plat that is filed with the City a disk will be given to
them off of the computer, we agree with that. Item B, a security bond has been placed
on the items that are incomplete at this time, I think in the neighborhood of $103,000,
that's 150%, that's done. Item C, the subdivision covenants to be recorded and if that
has not been done, it will be filed in concurrence with filing of the final plat. We
respectfully request approval of the final plat of phase II of CMN Business Park 11.
Thank you very much.
•
Planning Commission
• April 9, 2001
Page 60
PUBLIC COMMENT:
Estes: Is there any member of the audience who wishes to provide comment on this request
for a final plat 01-4.00?
Zurcher: Hello again, my name is
Randy
Zurcher, I'm on
the Fayetteville City Council. My
question, this is the final
plat, I'm
assuming that
this won't necessarily come before the
City Council, am I right
on that
assumption?
Conklin: They are approved at the Planning Commission level, correct.
Zurcher: Okay, I don't want to waste your time. I guess my question goes back to something
I've heard brought up a few times and that is a specific provision in the tree ordinance
that's called the successor in interest clause, do you guys know about that? Basically
what this says, in effect anyway, is that once a tree preservation plan has been
approved for a parcel of property that plan is binding on people who subsequently own
that parcel. Meaning that, the tree preservation plan that was approved in 1998 should
• stand, that subsequent owners, if this is sold off in various pieces. If you have the whole
thing, the plan says we are going to save 15% and then you split it off into lots and
those subsequent owners say "Okay, we only want to save 15% of this lot", all of a
sudden your 15% starts slivering down. Of course in this instance, as you all well
know, we are talking about 10% something, not 15%. Up to this point, I have heard
arguments that subsequent owners shouldn't be put to this part of the tree ordinance
because of some kind of a waiver that was given to CMN in 1998 that talks about
deferring tree replacement, that that's the responsibility of that individual tract
developer. I've never seen a waiver to this effect. Maybe I'm way off base. I've had
a lot of people bring this to me and say "What about this part of the tree ordinance and
why aren't we looking at that?" To me it's a real important part of the tree ordinance
and I would like to at least get some answers from City staff or the developer, if they
don't feel they should follow this part of the ordinance. Thanks.
Estes: Thank you Randy. Does any other member of the audience wish to comment on this
final plat request?
Futcher: My name is Clay Fulcher, I live at 683 Cliffside in Fayetteville. I would also like to get
either Kim Hesse or somebody from CMN to give us a clarification on the change in
language on the tree replacement. The 1998 plats state that tree replacement will be
deferred to large scale development and I think everybody understands that that makes
• sense. It doesn't make a lot of sense to come in and replant trees when the subdivision
Planning Commission
• April 9, 2001
Page 61
developer doesn't know what's going to happen down the line and they are going to
defer that to the large scale development. I don't have any problem with that. It
sounds to me like what she's saying tonight is that that waiver meant something else in
1998. The only people that I've heard that from are Beth Sandeen and Kim Hesse.
Nobody that I was able to talk to on the Planning Commission at that time understood
that it meant that the tree preservation plans were basically going to be deferred until
the large scale development. What I gave you was a copy of a memo in 1992 from
LaGayle McCarty and it basically references some information that the Sierra Club
proposed during the original drafting of the tree preservation ordinance and I will refer
you to page 4 in the information I gave you which is the last page of the letter from
several Sierra Club members to Mr. Jerry Rose and Ms. LaGayle McCarty in 1992.
Basically what it says is "You need to have a section in the ordinance that if a
commercial developer files a tree preservation plan in accordance with the ordinance
and then sells the property to another person who proceeds to destroy the trees, the
purchaser would not be considered to have committed a violation. To correct this
problem, we suggest adding the new section 12 as follows." Basically what they
drafted in 1992 was the successor in interest section and it was to prevent exactly what
• has happened out at CMN already with a large number of rare trees being cut down
even though they were designated as being preserved on the CMN 1998 tree
preservation plan. Apparently there has been some discussion and a difference in
opinion in what the successor in interest section of the tree ordinance means. I have
sent letters to Jerry Rose during and toward the end of the litigation over the Argus
Development out there, trying to get him to address this issue. If the Planning
Commission does not address this issue tonight, what's going to happen is, the first
large scale development that comes in on CMN that proposes to cut down trees that
are preserved under the existing tree preservation plan, there is going to be a challenge
and there is going to be a challenge to the next one and the next one and the next one.
This thing is going to keep on going. If they are going to put in a tree preservation plan,
those trees ought to be preserved. If the tree preservation ordinance needs anything,
then it ought to mean that these trees are preserved. It makes no sense for them to
have gone through this entire exercise to come up with this tree preservation plan and
have a large scale development be able to cut these trees down at will. That's exactly
what's happened. I think it's important that the Subdivision Committee try to
understand exactly what kind of waivers are being granted or being proposed to be
granted to CMN and what's likely to happen in the future. I just think that this issue is
going to continue to come up. I gave you a full copy of the letter, of the original waiver,
even though the waiver was on phase I. I believe that the waiver on phase II was the
same, basically it just says tree replacement and I also gave a copy of some testimony
• by Kim Hesse during the recent litigation that CMN is not being granted any different
Planning Commission
• April 9, 2001
Page 62
variances than any other subdivision developer. It's my understanding that this is par
for the course but I just think people have forgotten that the successor in interest section
is there and it has meaning. Thank you.
Gaston: My name is Colleen Gaston. What I have given to Ms. Metheney, for the record, is a
copy of the 1998 tree preservation plans for CMN Phases I and II. I know we are
only considering phase II tonight but because the lot lines have changed and now some
of what was in phase I is in phase II and vice versa, I've gone ahead and given both
copies of the tree preservation plans to be entered into the record. My purpose in
doing this is, I hope, to avoid problems in the future. When this matter of the large
scale development for the Kohl's came up last spring, I think many of us were totally
unaware that these tree preservation plans existed. Unfortunately it wasn't until way
into the proceedings that we realized that in fact the Planning Commission had
approved tree preservation plans back in 1998 and one of them wasn't formally
approved as part of the preliminary plat until January 25, 1999. These have been
approved, they provided protection for a percentage of trees at the CMN
development. The percentages are listed in the second set of documents that was
• distributed which are the applicant's tree preservation application. They are broken
down by various configurations of lots and not all of them show the same percentage of
trees being preserved but the percentages vary from say 14.8% to 18.5% to 14.2% to
11.6%. That's the existing tree canopy to be preserved. Because these tree
preservation applications and plans were approved by the Planning Commission in the
past, I do object to note 5 on the final plat for phase II which reads, actually I'm not
sure what it's going to be now because I did get a copy of the packet that was to be
distributed to the Planning Commission Friday afternoon and my copy, page 6.1 on the
conditions of approval starts number 1, page 6.2 goes to number 12 so I guess I didn't
get to see condition number 4 that we are talking about tonight. From what I could
hear in the audience, I object to the wording of this condition and I also object to note
5 on the final plat that's been proposed. Again, as Mr. Fulcher said, it's common sense
that if a certain percentage of trees in a tree preservation plan are designated as needing
to be replaced, if you look at the applicants application you'll see that there is also a
replacement tree canopy number and it varies from 0.7% of the total site to .78% and
so forth. There is a small percentage even on the 1998 tree preservation plans that was
designated for replacement. It makes sense to delay that activity until construction is
complete and I don't think that we object to that. The statement that tree replacement
is deferred makes sense. I think what needs to be added to these plats to prevent
future confusions, it certainly needs to be in the record, is that these tree preservation
plans from 1998 were approved by the Planning Commission and there is a successor
• in interest provision in the UDO and if any of you are interested in seeing that, I've got
Planning Commission
10 April 9, 2001
Page 63
one copy here. There has been debate about what this provision means and I don't
know that we can adequately resolve that here tonight but I think that's not necessarily
necessary if you choose to just make a note on the record that these tree preservation
plans exist and were approved by the Planning Commission. Then when a subsequent
large scale development comes through, the public and the Planning Commission
members at that time will be on notice of their existence. I have one other comment. I
passed out, it's part of your materials already, it's a letter dated March 26, 2001, from
EGIS, it's page 6.20 in your materials. It states that the letter's intended purpose
regards approval of the final plat by the City of Fayetteville's Engineering Department.
In short, all requirements specific to the U.S. Army Corps of Engineers, section 404
permit for the above reference project site which were possible to implement have been
satisfied to date. I've also distributed a copy of selected pages from the 404 permit
which was issued to CMN on September 9, 1999. 1 didn't copy the entire permit
because it's mildly long. The permit does contain special condition 5B on page 4 and
you have a copy of that. That condition states, "You shall complete all required
wetland mitigation work, including plantings, by May 31, 2000. You shall complete all
required stream mitigation by August 31, 2000." I spoke with Ken Lyons who is the
• contact with the Corps of Engineers on this project. I spoke with him today. He
informed that, in fact, this permit condition has not been met, that the items required by
May 31, 2000, have not been done and that the required stream mitigation which was
required by August 31, 2000, has not been completed. That, I assume, is the reason
the letter is worded so that it says "All requirements which were possible to implement
have been satisfied to date." Much as has been said about the wonderful mitigation
work that CMN is doing on this project and I'm glad to see that they are doing
mitigation work. Again, I just want to clarify for the record that the permit conditions
that were due, one of them almost a year ago, the other since August, those have not
been satisfied. Thank you.
Estes: Is there any other member of the audience which wishes to provide comment on this
request for final plat approval?
Moorman: Barbara Moorman, 3450 Finger Road. I have a question to start out with. It's about
the actual ownership of lot 7 and 15, it was listed at one time as belonging to
Fayetteville Exchange with a managing member Belle Meade. Now the managing
member is listed as JDN Realty. I wonder if you know why that change was made or
what that indicates? Has there actually been a change in the ownership?
Estes: Barbara, in just a moment I'll give the applicant an opportunity to come back up and
0
answer any questions that they may desire and perhaps that will be an issue that they'll
Planning Commission
• April 9, 2001
Page 64
want to address. I don't know the answer to that question.
Moorman: I want to talk about one of my favorite subjects which is this process. I think that as far
as the phasing is concerned, to take phase II before phase I is a little bit surprising at
this stage because as I recall, and I may recall incorrectly, I believe that from the very
concept stage they were presented together, they have always gone hand in hand and
to such an extent that the phase lines, and this has been mentioned before, have
changed over the years. This to me is important because when the project was first
presented, years ago as a concept, the commitments and the claims that were made to
the Planning Commission in a campaign to achieve the first approval of this project
rested on certain phases that were referred to clearly at the time. The phasing had to
do with the actual work that was going to be done, with the types of services, the types
of facilities and the environmental protections that were going to be offered. The phase
lines changed after the initial approvals and what was in phase I is not in phase II or
vice versa, I'm not sure quite which. Then the two were put together for the tree
preservation plan that was approved for Steele Crossing. That tree preservation plan
and grading plan melded phase I and phase II, now here we are splitting them again so
• that if you approve phase II and not phase 1, it seems to me that you are separating that
very tree preservation plan and grading permit that caused such a furor a while ago. In
other words, what I'm saying is I don't think you can separate them at this point. I
don't think these have been separated before and I don't see any point in it. Why
would phase II be taken before phase I? What do the numbers actually mean? One
other thing about the successor in interest clause. Because of the origins of this plan,
because there was an escrow agreement, because the Planning Commission was so
eager to allow streets to go in, they allowed lot splits to take place before the
subdivision was finalized. The result of that is, the Kohl's lot actually was not even
quite a successor in interest to the original tree preservation. plan, it was coterminous
with it. In other words, because this final plat was not approved when part of the
subdivision was allowed to cut the trees, that 1998 plan, it seems to me, was still in
affect. There had been a lot split allowed for special circumstances and what I'm
saying to you now is I think that you either need to keep these two phases together and
deal with them simultaneously because of what's happened with the trees and because
of the shifting phase lines that have been allowed over the years or you need to say that
the lot 7 trees are still on the 1998 plan. Thank you.
Young: Cyrus Young, 210 North Locust. Something Barbara just mentioned, I haven't seen
the plat so I don't know but if there are two owners, is there a place on there for both
owners to sign Nanchar and the other owner of one of the lots?
0
Planning Commission
• April 9, 2001
Page 65
Conklin: Yes there is.
Jeffcoat: I'm Tom Jeffcoat, member of the Millholland firm. I would like to clear up one matter
on the 404 permit that was brought up.
Estes: Tom, could we do this, after public comment closes, I'm going to allow the applicant to
come back and answer questions. What we are doing now is receiving public comment
on the request for final plat 01-4.00. Does any other member of the audience wish to
speak on this issue?
Garcia: Again, my name is David Garcia and I live at 110 North Block, here in Fayetteville.
I'm involved in quite a different number of community groups and activities and could
appear before you wearing any number of hats. I think, at this point, I wear one that
only 32 other people in the City wear and that's as one of the people that was arrested
during the demonstrations last year. Actually, I was one of only two of those folks that
was arrested twice. I got very used to being called a kook, a crazy tree -hugger, an
extremist, a tiny minority, a vocal handful and I can't even remember all of the names
• that we were called. I think it's fair to say that the November elections pretty clearly
indicated that there was not just a tiny isolated handful of people in Fayetteville that
were concerned about the environment, that were concerned about trees, that were
concerned about development. I don't think anybody would say, including myself, that
60% of the people in Fayetteville are anti -development, anti -business. Very often the
political struggle that was going on was being characterized as trees versus growth,
business versus green, development versus no development and I think that was just a
mischaracterization along the lines of you are just a tiny bunch of extremists or isolated
kooks. I think the real question and I think what the last election showed us is not that
the people in the City of Fayetteville want to stop development but that they want to
see intelligent development, they want to see sustainable development, planned
development, not just mindless urban sprawl. I think very specifically and very directly
coming back to this committee that they want to see the ordinances, policies and
procedures that their elected officials have put in place, followed. I think one of the
things that really generates an outrage among those of us that were arrested, I can
speak specifically for myself, was the sense that this committee, this is my own opinion,
I understand that many of you and many other people disagree with it but my belief that
this committee was violating the law or at least allowing the CMN developers to violate
the law. I think we need to start following the procedures, the policies, the ordinances.
I think that's important. I think the people in the City care about that. I think they have
demonstrated overwhelmingly that they care about that. The last meeting that I was
. here, although you did it reluctantly, I saw you again approve a development with at
Planning Commission
• April 9, 2001
Page 66
least one illegality that I thought I heard discussed and numerous irregularities, that of
course being the Youth Center. Now we come back to more irregularities in this one.
Let's do it right. I don't want to stop development, I don't want to stop all growth, I
know we need those things but let's do it right. You folks are the forefronts of doing
that.
COMMISSION DISCUSSION:
Estes: Thank you Mr. Garcia. Does any other member of the public wish to comment on the
final plat request 01-4.00? Seeing none, I'll close the floor to public comment and
bring it back to the applicant. Mel, would either you or Tom like to address any of the
issues that were raised during the public comment portion?
Jeffcoat: Tom Jeffcoat with Milholland Company. I'm a registered environmental manager and
also a registered landscape architect. I just want to address the one issue about the
404 permit so that there is no misunderstanding. The conditions of approval of a 404
permit are often extended because of extenuating circumstances and working with
• completion dates is one of those. The tree planting scheme has been completed and all
the required trees, in fact in excess of the required trees have been installed and all
mitigation to wetlands have been completed at this time. The only one item that remains
not complete at this time and which cannot be implemented has to do with crossing of
Skull Creek and the Corps is very aware, Ken Lyons is very aware that that particular
item will be implemented when that crossing does occur. It's part of the permit, that
development just has not occurred and remains incomplete and may remain incomplete.
He understands that. The intent of having EGIS's letter say that are implemented at this
point in time just exemplified that fact that all items that can be completed are complete
at this point.
Harrington: My name is Micki Harrington, I'm the attorney for CMN Properties. I just wanted to
address some of the questions that were raised so that people don't feel like they are
leaving without answers. Alderman Zurcher said that he didn't know or hadn't seen
any evidence of any variance granted. I have in front of me the January 25, 1999,
minutes of the Planning Commission meeting that approved phase II, which is what we
are here for tonight and right at the front end of it, it says "Planning Commission
determination of three requested variances. Number A, defer tree replacement as the
responsibility of the individual tract developers." There were several pages of
discussion about many things and then at some point there was more than one motion
but this motion was finally made and I think Mr. Estes made an amendment to the
• motion for the second sentence to read something about the fly -over which was talked
Planning Commission
• April 9, 2001
Page 67
out in length back then. "Further the motion will grant the three waivers requested and
is subject to all other conditions of approval", then the motion was passed with a vote
of 6-2-0. It certainly was addressed at that time. Given the political environment last
year on the issue of trees, I can certainly understand why Planning Commission
members might say that any given person that approached them, "Gee, I don't
remember discussing that" or "That's not the way I thought". That's an easy thing to
say after the fact when faced by opponents or those with views different than your own.
I don't know that anybody did that but it certainly was, at the time, discussed and
passed in that fashion. There have been, of course, allegations from Mr. Fulcher and
Ms. Gaston that there were no such waivers, although this evening I'm hearing them say
that maybe there were. I want to make sure that we all know there were waivers
saying "defer tree replacement as a responsibility of individual tract developers." I also
want to make a point that in 1998 and 1999, the way the City was regarding the entire
issue of tree deferral, replacement, tree preservation plans and everything else
compliance with the tree ordinance, is fairly different than is being looked at in 2001
and largely because of the efforts made last year and maybe those efforts are to the
better of the City and I'm certainly not going to debate that. 1 don't think we are here
• tonight to spend time going over all the issues about the tree ordinance. We are here
tonight to determine if the final plat for CMN Development phase II has been complied
with and should be approved. I would like to note that there is more than one possible
interpretation of successor in interest. There has been no court that has adjudicated
what this means. There has been no one that Mr. Fulcher and Ms. Gaston's view of
this is correct and while I see that they would like to posture for a future lawsuit or
several of them as they have indicated to you. I don't think it's proper to take the notes
of this plat and try to change those to meet their legal advantage in any future lawsuits
they are looking to have. I would like to address Ms. Moorman's concern about
separation of the plats. These plats came in separately. Phase I came in 1998, phase
II came in 1999. They have been generally addressed together in many regards. The
reason that phase II is coming before you without phase I is because it's done. Phase I
should be done in approximately two weeks and will be before you at the next meeting
or the one after that. I don't see any harm resulting from approving one phase and then
the other, all the conditions for all the plats still apply and that won't be affected by
approving phase 11 separate from phase I. I want to make sure I address everything.
We ask you to approve the plat because everything is substantially complete and all the
items addressed on the staffs recommendations have been met and we are in
agreement. Thank you.
Allen: There was a query about the ownership of the land.
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Planning Commission
• April 9, 2001
Page 68
Harrington: I'm sorry, I knew I had one thing I had forgotten. Fayetteville Exchange LLC, is a
limited liability company that purchased lot 15 and Fayetteville Exchange LLC is still the
name of that entity and is still the same entity as it was. I understand there has been
some corporate reorganization in that limited liability company whereby they changed
the managing member, which is the one that runs the limited liability company, basically
the administrator of the company has changed from Belle Meade Acquisition Company
to JDN Realty Corporation, which is a publicly traded company and they are the sole
managing member at this time. I have documentation to that effect. I have resolutions
and a whole stack this deep. I provided the Planning office a letter stating who is
authorized to sign what on behalf of the entity but it is the same entity, Fayetteville
Exchange LLC. When it comes to phase lines between the two phases, the only
adjustment that has been made is lot 7 and 15 which was administratively permissible
under Mr. Conklin's discretion and it was a very minor adjustment and that's the only
thing that's been changed. There has not been any other changing of any phase lines.
Estes: I'll bring the matter back to the full Commission for consideration, discussion and
motions.
• Allen: I wondered if Ms. Hesse would talk with us a bit about the successor in interest portion
of the tree ordinance, how it applies.
Hesse: Basically I'm going to start back in 1998. Prior to that time, Beth Sandeen was the
administrator of this ordinance, beginning in the fall of 1998 I took this position. I think
our past track record at that time did not show an understanding of the successor's of
interest. I did not interpret it as the way we have discussed it tonight. It wasn't until the
lawsuit that centered around Steele Crossing that I first saw the memo that's before
you, between the Sierra Club and LaGayle McCarty. I feel that is definitely the intent
of the successor's of interest. From reading the memo the Sierra Club and members of
them were involved in the writing of the ordinance. I believe that is their true intent. I
am not so sure that that intent was well written in the ordinance. Prior to that memo, I
could not read that successor's in interest and get that meaning out of it. That's not an
excuse, that's just a reasoning behind my interpretation. Now that I do understand that,
I look more at a fairness issue. I think once a preliminary plat is approved based on
certain ordinances, laws and interpretations of such, I do not feel it is fair to change
rules mid stream. After preliminary plat has been reviewed and the subdivision has
been built, a lot of money has been invested into that preliminary plat. I believe that if
successor's of interest was interpreted the way the memo states, that the subdivision
would have been designed differently, it would have been reviewed differently by
• myself as well as Beth. That was not our awareness at the time that we approved that
Planning Commission
• April 9, 2001
Page 69
preliminary plat. I agree with Mr. Fulcher, it doesn't make a whole lot of sense to
require a commercial subdivision to preserve a certain percentage of the entire site and
not require the same amount of preservation from each commercial lot. That was the
interpretation of that successor's in interest, I've changed that interpretation. However,
there are a lot of things about our ordinance that don't make a lot of sense. We require
residential subdivision developers to save 25% of their site and yet we totally back
away when each lot is developed. We have a lot of trees lost there. We are revising
this ordinance, we are trying to find and make sense out of conservation laws. I think
around the country all conservation laws have a lot of discretion. There are a lot of
issues that really work against one another. That's just the nature of conservation and
we've got to find a way to find that balance. As a staff person I have to stay neutral, I
have to find a common ground, I have to look for that balance. I personally have a
problem with the fairness issue, I don't believe that we can change the rules midstream.
Just like any sport, do you change the rules in the middle of the game? I don't think so.
That is why I gave my recommendation that I did. I look at all recommendations very
seriously as a Landscape Administrator as well as an individual. Yes, I do interpret
successor's in interest much different now than I did when I approved this preliminary
• plat but it's based off our previous track record, it's based off of how we looked at the
preliminary plat, based at how we reviewed and approved all the construction and the
money invested in that development that I have to really look at as well. I think that
each individual large scale development, as it comes through, we'll look at it very
strictly. I don't believe I am very lax with this ordinance. If there is any way that I can
see preserving those trees and the development being built, that is what I'll require.
Allen: When do we start applying the rules?
Hesse: Any new commercial subdivision that comes in I will. We haven't had a new
commercial subdivision passed since that lawsuit. I think developers will design these
developments much differently based on that interpretation. It only makes sense.
Hoffman: I have a question when Commissioner Allen is done, I have some more questions for
Kim. In phase II we have lot 15 which is Kohl's, adjacent to it is lot 7 which is phase
which was, in my recollection, included in our tree preservation plan for the two lots.
We included trees on lot 7 and lot 15, that will be before us in two weeks, according to
their schedule. Those trees on 7 and 15 constitute the majority of the trees on this site
in this subdivision, is that correct?
Hesse: No. I couldn't tell you the exact percentage overall of the entire subdivision. There are
0
a lot of trees along the creek that are being preserved.
Planning Commission
• April 9, 2001
Page 70
Hoffman: That's in an easement.
Hesse: There were a lot of trees in lot 1, that's up on top of the hill adjacent to the mall
property. There are a small growth of very similar trees along Shiloh, lot 6 and then
there is a few trees on a couple of the other lots.
Hoffman: They are not in the middle of the lots? In other words, they could easily be built
around, in general? If I remember the tree preservation plans as I have seen them and
I've looked at the site, the biggest problem was of course lot 7 and 15 and the rest of
them are along creek beds or the edges of lots and sometimes in easements and
floodplain areas and so on and so forth.
Hesse: There are maybe two lots that would possibly affect the development. One is adjacent
to the interchange, just south of the mall. There is right now an existing pond and there
are trees growing around that pond, that's in the very center of that lot.
Hoffman: That's in phase I?
• Hesse: That is in phase II. I'm trying to remember this without a plan. There is also a lot in
phase I that is very close to the Steele Crossing bridge that has trees on it that may be
affected by development.
Hoffman: The lot with the pond, I wanted to ask Ron, is it typical that if that lot is developed, that
pond will be eradicated if it's in the middle of the lot? I've been wondering about that
particular lot myself.
Petrie: I don't know for sure. There is a good chance that it could be.
Hoffman: Under our subdivision plans and our preliminary plats, as we've gone along we have
divided up the lots, we have made roads for connectivity. I want to bring that up, we
didn't just make roads because we wanted them there just willy nilly, there was a lot of
discussion and public discussion about the connectivity and the circulation in this large
development. So, I guess what I'm trying to get at is, I don't want to approve the
preliminary plat and have another Kohl's come along certainly but are we going to be in
that predicament as people have intimated each time we come through with a lot, unless
we do some good preliminary reviews on large scales as they come through.
Hesse: I think that there is always a chance, quite honestly. If there is a tree anywhere outside
40
of being right on the property line, there is always a chance, due to drainage and
Planning Commission
• April 9, 2001
Page 71
utilities, there is always a chance.
Hoffman: I think this project was certainly a turning point and an eye-opener for us on the
Commission and want to say that we've worked with the ordinances, as we have them,
the best we can. I certainly agree with Kim that the interpretation, I was not aware of
this successor of interest clause at all when we were putting the roads in, that would
have made a huge difference. I think the barn door has already been opened on this
one. We already had a lawsuit that I believe has been settled and we've got money for
replacement trees or to buy easements or tree easements elsewhere and so on and so
forth. We are pretty much between a rock and a hard place based on an older
interpretation, information that has just come to light and all this work that we've done
to get to where we are at. I'm really happy that we are redoing our tree ordinances. I
think that it was most important, it's unfortunate that Kohl's was it, if a project if it were
to be called to action, did just that and I'm really happy to see that people are taking
more of an interest in these developments. I don't think that's a bad thing at all. I think
it's great. I don't think that holding up the final plat to a subdivision that's gone through
as much as it has and has had as much public input is the thing to do. I think we just
• need to be very careful on large scales is all I can see to do as they come through and
put the developers on notice here and now that we will be. I guess I can make a
motion to approve this final plat number 01-4.00.
Shackelford: I'll second.
Williams: I had conversation with the City Engineer today about the fact that he felt there was
substantial completion of the project and I know we have tentatively deleted number
one, obviously the City Engineer does want all of those things that are listed in number
done. I wonder if rather than totally eliminating number one, we should just say the
developer shall construct all of those items that were there as part of the conditions
because obviously Mr. Milholland and the petitioners, he expects that this. I don't
know if you want to make that as a condition still that the developer will construct
miscellaneous water valves and fire hydrants, install the retaining wall and construct the
protective railings on the wing walls of the box culvert. I know that it is the intent of
Mr. Beavers that be done.
Estes: Mr. Conklin, do you have any
comment on
the suggested
inclusion of the original
condition of approval number
one?
Conklin: That is correct as our City Attorney has indicated. Those things have to be done. I just
0
want to clarify, it's not a waiver of an ordinance requirement and that it actually meets
Planning Commission
• April 9, 2001
Page 72
the standards for the City Engineer to determine if substantial completion has been done
out there with regard to required improvements. I think we can just strike everything
down to after 150% of the construction costs, say "the developer shall be required to
install the miscellaneous water valves and fire hydrants, install the retaining wall at the
northeast corner of lot 15 and to construct protective railings on the wing walls of the
box culverts under Van Asche and Shiloh Drive." I think that will cover all those items.
Hoffman: Do you want to say "see the letter dated April 2, 2001 and April 3, 2001," and just
keep on going with the entire paragraph?
Conklin: Sure.
Hoffman: I'll amend my motion to include that language.
Shackelford: I'll amend my second as well.
Milholland: We wrote a letter to the City stipulating those things. The valves are installed, there is
• no installation for valves, there is just an adjustment in a matter of a few inches. I want
to make sure that the wording is not install, they are already there. As the sidewalk is
constructed they will be adjusted according to maximum.
Hoffman: "Adjust" is fine.
Shackelford: That's fine with the second.
Estes: We have a motion and a second to approve final plat 01-4.00, is there any further
discussion?
Marr: Just to make sure I
understand,
could I have Ms. Harrington
bring us the note she read
from the Planning
Commission
minutes? Are these the ones
you read aloud?
Harrington: I don't know, I haven't seen that. (Looked at the minutes given to Man from Colleen
Gaston). It appears to be. Anything else?
Man: No thank you. A question for Kim Hesse also, please. Have you, in your role with the
City, had any situation with commercial development that you have interpreted
successor in interest clause differently than how you originally applied to this
development?
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Planning Commission
• April 9, 2001
Page 73
Hesse: Differently to how I originally applied it to the preliminary plat for phase II?
Marr: Yes, has there been any other development, any other situation, where you applied it
differently than you've applied it in this case?
Hesse: No, not to date. The replacement, that's different than preservation. When I look at
the preliminary plat, there was one tree removed leaving enough canopy to meet the
requirement. Typically, the replacement only comes in if you go below your
requirement. It's possible that I could have, that was an early one, I could have
reviewed that as part of phase I as a whole development. We do typically defer
replacements to large scales for the reasons that was discussed earlier by the public.
Does that answer your question?
Marr: Yes. I guess this is more for me to understand at what point we are going to have a
clear understanding of rules we are going to follow. 1 feel like every time these things
come through we are on the hot seat trying to decide the interpretation of it. The new
ordinance that's being looked at, is it addressing a clear understanding of what
• successor in interest clause is and the interpretation of that, in this review so that we are
not sitting here on some future development dealing with the same issue?
Hesse: I think what is difficult about an ordinance like this is that every side is very different and
that it's different and it's difficult to meet the conditions that you are going to hit in future
sites. We are trying to go over every aspect of it and at the end of the writing we will
ask several different people to review it and try to pick it apart. That the best that we
can really do. There is no way that we can make assumptions of what might happen in
the future on whatever site may come before us, it's very difficult to do.
Marr: I guess my point is, not trying to plan for everything that may happen, certainly I think
that I think for me what makes it difficult, we have one approval that has notes on it of a
tree preservation plan application and we have the next one where it's waived and then
it's back again. We are talking about notes on it. When I look at these conditions and
go through them, the only thing that comes up is something that there is question that
comes back to this tree thing again. It's, for me, it's I don't want Mr. Garcia thinking
Pro sitting up here breaking the law. I don't want to be unfair to a developer who has
been led the entire way through a process believing that it's one way. I think it is a
fairness issue, I agree with you on that but at some point this has to stop. I'm trying to
sit here and make a decision in the best interest of the developer, best interest of the
City, citizens points of view and I guess I'm frustrated and maybe venting to you in your
• role. It seems like at some point this has to stop. Interpretation has to be the
Planning Commission
• April 9, 2001
Page 74
interpretation. I am curious how we didn't get an interpretation of successor's in
interest clause when you read it. I understand how maybe you and 1 would look at it
differently. I understand the point of that clause.
Hesse: To address your first comment, basically I think the best that we can do it set some
very clear guidelines for procedures. The Landscape Administrator will provide a
recommendation in recommendation form to each and every development with trees or
without trees. There will always be a form. There will be a series of checks and
balances that we are trying to build into the ordinance just for that reason so that
regardless who's in this position, they have the same set of criteria to follow.
Interpretation of successor's in interest, initially if you read that, that is what some
people have discussed as what the interpretation of successor's in interest is. It is the
way I always looked at it for a full development. Like a large scale development, if it
was sold, as is, before it was developed to another developer, those follow along. If a
subdivision was sold to another developer, the subdivision would follow along. I never
looked at the individual lots because an individual lot and the interest in that individual
lot is greatly different than the entire subdivision. So, I think it could be interpreted both
• ways but the background that we have from the Sierra Club who helped to write the
ordinance, I think the intent is clear. I think you can write the same thing twenty
different times, it's just the intent that's meant is what's important. Sometimes it's hard
to pick what the intent was unless you were there writing the ordinance.
Ward: The City Attorney was, at the time of the landscape ordinances, on the Council and I
think he helped formulate a lot of this. Kit, what was the intent at the time that this was
all done back when you were on the Council?
Williams: Actually we just had gotten elected at that point in time, we: were all pretty young
Alderman at that point. Just like you are having problems with the second tree
ordinance that you are trying to draft, the first tree ordinance was a long negotiation
process between different groups of people. Some wanted more rights for developers
and some wanted more protection for the trees. It was kind of the grand compromise
when presented to the City Council. Basically, we were told that this was a very
difficult negotiation and that we should not change a word that was presented to us. In
fact the City Council did not. We were all in favor of preserving and protecting trees
and in passing this ordinance but we never discussed the successor's in interest clause
or anything else like that. The Assistant City Attorney is now working with your tree
committee and trying to reformulate this new tree preservation ordinance. The basic
charge that must be his charge and will be my requirement or at least my suggestion to
• the City Council when they approve it is, this must be clear. That hard decisions will
Planning Commission
• April 9, 2001
Page 75
have to be made by the City Council but there needs to be tests and guidance for our
Administrator. This successor's in interest clause has two different meanings at this
point in time. I think they can both be legitimately argued. Even viewing all the memos
from the past I think you can still make legitimate arguments on both sides and that's
not the way a good ordinance should be written. It should be written so that it's clear,
so everybody knows how to apply it. Hopefully that's what we are going to get out of
the new tree ordinance. The current one does have far too many ambiguities in it.
Ward: What was your take back when you all passed those ordinances on replacement? Do
you remember?
Williams: I think that it was a preservation ordinance is what we viewed it to be as opposed to
replacement ordinance. I think that, I can only speak for myself as one of the eight City
Council members there, the way I viewed it, it was a tree preservation and protection
ordinance as it's titled states, knowing that sometimes you have to do replacements.
The goal of the ordinance was to be to preserve the existing canopy if you could.
• Allen: What's the status of the writing of the new tree ordinance?
Hesse: I believe, based on the schedule that we have set, by the middle of May we should be
taking this to the public meetings as well as the Ordinance Review Committee and then
on to the Council. We'll start public meetings in the middle of May and go from there.
Conklin: I would like it to go to Planning Commission too, Kim.
Williams: This ordinance was not perfect as it was drafted and has caused a lot of problems for
you and City Council but I think that it has done a lot of good for the City of
Fayetteville even though it has not been perfect. Sometimes you can't be perfect on
your first step and that's why we are going to try to write a second one, to be even
better. I think overall, we have saved a lot of trees and created a much nicer
environment for the City of Fayetteville with the current ordinance.
Estes: There was determination of the three requested variances for CMN II Phase II, what
we are being asked to approve as the final plat tonight. One of those was deferred tree
replacement as a responsibility as the individual tract developers. Then if we look at the
plat that we have in front of us tonight, note five reads "tree replacement deferred as a
responsibility of the individual lot owners." In my mind, that's consistent. In my mind,
note five comports and conforms to the variance that was granted at the January 25,
• 1999, meeting. Am I correct in that?
Planning Commission
• April 9, 2001
Page 76
Hesse: It does. What bothered me though was, when we I came back two years later and
reviewed that preliminary plat, I didn't see that we had replacement required. I felt that
if we start stating replacement on our final plats, we may be doing ourselves more
damage than good.
Estes: Where we are tonight is that in condition of approval number four, "A note shall be
added to indicate that each large scale development will be required to submit a tree
preservation plan as a part of the large scale development approval." That seems to me
to be substantially different than note five that's on the plat which conforms to the
variance granted on January 25th, am I correct in that?
Hesse: Yes you are correct.
Estes: We are making quite a leap from the variance we granted on January 25, 1999, to the
condition number four tonight.
Hesse: The revised note was, I felt, to put people more on notice. I think it's a note that we
• should require on all final plats in the future. That's been probably one of the biggest
questions, is how are possible lot owners, buyers, aware of this ordinance? I feel that if
it's on the final plat we can at least alert them. It's standard. Everyone has to provide
one. I didn't feel that it would hurt by putting it on there. I did feel that replacement
note would be a little more damaging.
Estes: What is wrong with deleting condition of approval number four and leaving note five on
the plat? What harm is done?
Hesse: Just that there weren't any replacements required. When I look back, like I say, we
didn't remove enough canopy to require replacement. I don't remember back then. I
don't know if you remember but we had phase I and phase II then we had the whole
thing coming in, we had several different plats all very close to one another. I don't
have a good answer.
Estes: Mr. Williams, I don't mean to put you on the spot with this one because it's kind of an
involved question and cause you opining but we had the Steele Crossing litigation and
that litigation was settled, what, if any, impact did the settlement of that litigation have on
the tree preservation plan in CMN Business Park?
Williams: That's probably more of a difficult question I am going to be able to give you an answer
0
to but if you want me to comment about number four on this, the fourth condition, my
Planning Commission
• April 9, 2001
Page 77
feeling is that the less that we say in relation to exactly what the tree ordinance says or
the note says, the better from a legal point of view. I was concerned for a while that
you might want me to change it to make it more strict. I think that this condition is
probably not necessary and it certainly would not be advisable from a legal point of
view just because we might be, to some extent, foregoing some options and arguments
we might be able to make if we did not have it in there.
Estes: Is it your recommendation to the Commission that condition of approval number four
be deleted?
Williams: That would be my recommendation.
Estes: Mr. Williams, would you leave note -five on the submitted final plat? That's the note
that comports to the variance that was granted on January 25, 1999, that reads "tree
replacement deferred as a responsibility to individual lot owners"?
Williams: I would you leave note five as it has been on there for a couple of years now, with due
• regard to our Landscape Administrator.
Hoffman: Kim, my motion is to remain the same. I'm willing to delete number four because I
don't think it will substantially change what you do, with leaving number five on the
plan. When we have a large scale development, you'll review it and you review it for
these items. I don't have a problem with that, we can so amend my motion as long as
note five remains on the plat.
Shackelford: I agree with that as well as the note because it does specifically apply to the waiver
from the original approval so I would like to see that remain as well.
Estes: We have a motion to approve preliminary plat 01-4.00 subject to two amendments and
two seconds to the amendments. The first amendment regarded a reinstatement of
original condition one adjusting some miscellaneous water valves and so on. That was
made by Commission Hoffman and seconded by Commissioner Shackelford. The
second amendment was to delete renumbered condition of approval four from the
conditions of approval. That condition reads "A determination shall be made by the
Landscape Administrator with regard to note five. Discussion ensued at Subdivision as
to whether that note was necessary. A note shall be added to indicate that each large
scale development will be required to submit a tree preservation plan as a part of the
large scale development approval", that condition of approval would be
40 deleted/removed from the conditions of approval. That motion to amend was made by
Planning Commission
• April 9, 2001
Page 78
Commissioner Hoffman and seconded by Commissioner Shackelford. Is there any
other discussion? Sheri, would you call the roll please?
I.ZO4 Mrs"s I F
Upon roll call, the motion passes upon a vote of 8-0-1, with Commissioner Bishop abstaining.
n
U
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Planning Commission
• April 9, 2001
Page 79
•
is
CU O1-5.00: Conditional Use (Trumbo, pp 485) was submitted by John Firmin on behalf of Sean &
Michelle Trumbo for property located 324 N. Olive. The property is zoned R-1, Low Density
Residential and contains approximately 0.6 acres. The request is for a detached second dwelling unit
`&granny unit".
Estes: The next order of business before the Commission is conditional use 01-5.00 submitted
by John Firmin on behalf of Sean & Michelle Trumbo for property located 324 N.
Olive. The property is zoned R-1, Low Density Residential and contains approximately
0.6 acres. The request is for a detached second dwelling unit "granny unit". Staff
recommends approval of the conditional use subject to the following conditions. Do we
have a signed conditions of approval?
Conklin: No we do not.
Estes: Let me read the two conditions of approval. The proposed second dwelling shall be
constructed according to the plans submitted with this application and in a manner
which is compatible with the existing residence to include: Same or similar building
materials and colors (exact colors and samples to be provided to Planning staff at the
time of building permit request). Similar architectural features (shed dormer window,
overhang depth, roof pitch). Number two, a deed restriction to run with the property
shall be filed of record in the office of the Washington County Circuit Clerk which
requires that one of the units on this site shall be occupied by the property owner of
record at all times. Staff, are there any additional conditions of approval?
Warrick: There are no additional conditions.
Estes: Does the applicant have a presentation that they would like to make?
Skiles: I believe everybody has the drawings of the project. It's pretty straight forward. I am
just here to answer any questions anybody might have.
Estes: Do you have any questions?
Allen: I drove
by this
property and it appears that it was completed. I couldn't figure out
what it
was. I
guess I was looking at the wrong
thing.
Skiles: We are
digging
up
the ground now, we are putting in a retaining wall and then the
cabana
is going
to
go in the back.
Planning Commission
• April 9, 2001
Page 80
Allen: I guess it was something else I thought was the granny unit.
Skiles: It's a real discrete project.
PUBLIC COMMENT:
Estes: Is there any member of the audience that would like to comment or speak on the
requested conditional use 01-5.00?
COMMISSION DISCUSSION:
Estes: Seeing none, I'll close the floor to public comment and bring it back to the Commission
for discussion, motions.
MOTION:
Marr: I would like to move for approval of conditional use 01-5.00 subject to staff comments
• and conditions of approval.
Bunch: I'll second.
Estes: There is a motion
to approve CU 01-5.00 made by
Commissioner
Marr and seconded
by Commissioner
Bunch. Any discussion? Sheri,
would you call
the roll please?
ROLL CALL:
Upon roll call CU 01-5.00 is approved by a unanimous vote of 9-0-0.
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Planning Commission
• April 9, 2001
Page 81
CU 01-7.00: Conditional Use (O'Reilly Automotive, Inc., pp 329) was submitted by Kathy
Prainito on behalf of O'Reilly Automotive, Inc. for property located at 245 Township Road. The
property is zoned C-2, Thoroughfare Commercial and contains approximately 0.67 acres. The
applicant proposes to build a 1000 sq ft. storage building. The request is for storage (use unit 21)
within the C-2 zoning district.
Estes: The next item on our agenda is Conditional Use 01-7.00 submitted by Kathy Prainito
on behalf of O'Reilly Automotive, Inc. for property located at 245 Township Road.
The property is zoned C-2, Thoroughfare Commercial and contains approximately
0.67 acres. The applicant proposes to build a 1000 sq ft. storage building. The
request is for storage (use unit 21) within the C-2 zoning district. Staff recommends
approval subject to certain conditions of approval. Staff, do we have signed conditions
of approval?
Warrick: Not at this time and I have been working with the applicant today. They are going to
propose an alternative to the staff recommendation. The 11 by 17 drawing that I just
passed out is what the applicant is proposing with regard to improving the parking and
• it is different than what staff recommended in the report.
Estes: Have you had an opportunity to consider the suggested changes and determine whether
or not additional conditions of approval are necessary?
Warrick: I have looked at it today and looked at the calculations with regard to the percent of
improvements that the applicant is required to make to the non -conforming parking lot.
The applicant is proposing approximately 25% addition to the existing structure.
Therefore, based on our parking lot ordinance, the 25% improvement of existing
parking would also be required along with that addition. The applicant is proposing to
meet that 25% requirement by removing some asphalt on the west side of the parking
lot to create the 5 foot landscaped buffer adjacent to side property lines as required by
the parking lot ordinance. They are also proposing to install 1 landscaped island with a
tree in the interior of the parking area. That meets the requirement with regard to
percentage of improvements. One additional item that I did discuss with the applicant
today that staff would recommend as a condition would be the addition of a continuous
row of shrubs adjacent to the Township right-of-way in front of the six parking spaces
that are along the front property line. The applicant has indicated that they would be
willing to install that shrubbery.
Estes: Is the applicant present? Do you want to come forward and make a presentation?
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Planning Commission
• April 9, 2001
Page 82
England: Ron England. She's pretty well done it for me. It was kind of a trade out. We just
wanted a trade out simply because the line of vision, if you come up Township from the
west, the Township Plaza actually blocks off any additional parking. If we remove
those six parking spaces, it would limit customers to be able to actually view a packed
parking lot versus maybe a parking space that was available and be more inviting to
them because once they get to a certain point, they have very limited vision and they
have to make an instantaneous decision about do I go in or do I not go in because
Township is very busy as all of us know. We wanted an inviting environment versus a
packed environment because with the addition of the building, we do anticipate that we
will have substantial growth of patrons to pass through our doors.
Estes: The condition of approval, "the applicant shall secure all required permits for proposed
addition". does that remain in affect?
Warrick: Yes sir.
Estes: The second condition of approval "addition shall comply with commercial design
• standards and shall be constructed of the same materials as the existing structure.
Elevation drawings will be required at the time of the building permit application." Do
those conditions remain?
Warrick: Yes sir.
Estes: The condition of approval with regard to compliance with section 17.01 regarding non-
conforming parking lots, how does that change?
Warrick: I would say that would change to read "the applicant shall comply with the proposed
landscaping improvements to the parking as submitted in their drawing with the addition
of a continuous row of shrubs in front of the parking along Township.
Hoffman: Can we specify what kind of shrubs?
Warrick: We have not come to a determination on the exact species of plants.
Hoffman: Would you please work with Kim to get a good kind?
Warrick: We would be glad to.
• England: Anything would be great as long as the line of vision is not blocked for the store. I
Planning Commission
• April 9, 2001
Page 83
would say, just
off the
top of my
head, I was thinking of something along the line of 24
to 30 inch type
with a
continuos
row.
Warrick: We'll work with the Landscape Administrator and come up with a workable solution.
Estes: Dawn, condition of approval number three remains, is that correct?
Warrick: Number three would be modified to reflect the plan as proposed by the applicant with
the additional landscaping.
PUBLIC COMMENT:
Estes: Does any member of the audience wish to comment on this request for conditional use?
COMMISSION DISCUSSION:
Estes: Seeing none, I'll close the floor to public comment and bring it back to the Commission
• for motions and discussion.
MOTION:
Marr: I would like to move for approval of conditional use 01-7.00 with the three
recommended conditions from the staff, changing number three to the modified plan
provided by the applicant with the additional landscaping.
Shackelford: I'll second.
Estes: There is a motion by Commissioner Marr and second by Commissioner Shackelford.
Is there any discussion?
Hoover: I'm confused. What were you suggesting that they do originally and what is the
difference between what they are doing now? The plan I have from before looks the
same.
Warrick: We don't have a plan of what the original staff recommendation was because that was
based solely on ordinance requirements. Originally, the suggestion had been that the six
spaces adjacent to Township be removed and relocated to the south portion of the
property and that landscaping be installed where those six spaces are currently located.
• The change is reflected in the plan you have in front of you as far as the applicants
Planning Commission
• April 9, 2001
Page 84
proposal. That includes removal of asphalt along the west property line to provide a
five foot greenspace and the addition of a landscaped island with a tree in the interior of
the parking lot. Generally, what staff tries to do when we look at improving non-
conforming parking lots, is treat the most visible areas, which is why the staff's original
recommendation was to improve the property along the front property line, the six
parking spaces there. The applicant felt that those parking spaces were very valuable
with regard to the location and visibility of them and preferred to propose this
alternative solution.
Hoover: Will we still have the 15 feet of landscaped area?
Warrick: No.
Hoover: How many feet of landscaped area will we have?
Warrick: There is probably three or four feet of landscaped area in front of those existing parking
spaces. It would not change what we currently have as far as the condition of that front
• property line right now.
Hoover: You are saying, according to our ordinance, if they are adding 25% we can modify the
parking lot by 25%?
Warrick: That's correct. There is a sliding scale with regard to improving non -conforming
parking lots. When a building permit is requested to enlarge or reconstruct an existing
structure that has a non -conforming parking lot on the site, the percentage of
improvement, if it's above 10%, which in this case is 25%, the improvement of the
parking lot also goes along with that percentage. Therefore, you improve the parking
lot 25%. It does not specify how you make that improvement, that's up to negotiation
and up to, in this case, Planning Commission approval.
Hoover: I guess I have some issues with only a three to four foot landscape strip between the
street and the parking lot.
Warrick: Actually, between the street and the parking lot there is probably 20 feet. The three to
four feet is the distance between the right-of-way and the parking area. There is an
open ditch in this particular location on the south side of Township and there is
probably 15 to 20 feet of landscaping between the parking itself and the street, the
curb.
40
Planning Commission
• April 9, 2001
Page 85
Hoover: Thank you.
Estes: Dawn, is the O'Reilly Automotive application CU 01-6.00?
Warrick: I believe it's CU 01-7.00.
Estes: Okay. Any further discussion? We have a motion and second, Sheri would you call
the roll please?
ROLL CALL:
Upon roll call CU 01-7.00 is approved by a unanimous vote of 9-0-0.
•
0
Planning Commission
• April 9, 2001
Page 86
CU 01-6.00: Conditional Use (Bandy, pp 484) was submitted by Benton Bandy for property
located at 227 W. Dickson. The property is zoned C-3, Central Commercial. The request is for a
dance hall (§163.12) within the existing 2900 sq ft. structure with an outdoor patio also proposed.
Estes: The next item of business is Conditional Use 01-6.00. This is a conditional use
submitted by Benton Bandy for property located at 227 W. Dickson. The property is
zoned C-3, Central Commercial. The request is for a dance hall (§ 163.12) within the
existing 2900 sq ft. structure with an outdoor patio also proposed. Staff recommends
approval of this conditional use subject to certain conditions of approval. Staff, do we
have signed conditions of approval?
Warrick: No sir.
Estes: The conditions of approval as staff recommends are: Number one, before a conditional
use permit is issued for a dance hall, the building must be inspected by the Fire Marshal
and Building Inspector to assure compliance with the Arkansas State Fire Code and to
assure that no significant safety hazards exist. All improvements that are required as a
• result of requests by the Fire Marshall and Building Inspections Division shall be
complete prior to the operation of a dance hall at this facility. Number two, compliance
with the City's noise ordinance (based on zoning district and enforced by Police
Department). Number three, all dance and music related activities shall be located
within the structure. No music or amplified sound, loud speakers, etc. shall be used
outside the structure. Number four, any exterior modifications to the structure shall
comply with Commercial Design Standards. Drawings of proposed elevations are
required to be submitted with a building permit request to finish out the interior of the
structure. Number five, this use shall not include an outdoor patio at this time. When
sufficient information regarding the proposed outdoor patio and accommodations for
required parking for the additional square footage are provided, a revision to this
conditional use permit may be submitted for Planning Commission consideration.
Number six, this conditional use shall be brought back to the Planning Commission for
review, further action or revocation should the City receive complaints as a result of the
establishment of the dance hall. Number seven, water shall be turned off immediately
and the dance hall shall not operate if any of the conditions are not met. Number eight,
this conditional use shall be automatically revoked if any condition is not met. Staff, are
there any additional conditions of approval?
Warrick: No.
0
Estes: Is the applicant present?
Planning Commission
• April 9, 2001
Page 87
Bandy: We had talked about tabling the patio at the agenda meeting and I don't really know
how to go about doing that.
Estes: How would you like to do that at this time?
Bandy: I would love to table it for the next Planning Commission meeting if possible.
Estes: Then the Conditional Use will be a request for a dance hall. Do you have any
presentation you would like to make?
Bandy: No, I'm just here for questions.
Estes: Commissioners, are there any questions for the applicant?
Allen: In my drive-by, I couldn't find our famous red sign. Is this the property that is just to
the east of Dickson Street Liquor?
• Bandy: Yes.
PUBLIC DISCUSSION:
Estes: Any other questions? Is there any member of the audience that would like to provide
comment regarding this conditional use request?
Borents: My name is Julie Borents and my husband and I reside at 217 North Locust Avenue.
I'm a life long member and resident of Fayetteville. In an effort to save time, I've been
asked by some of my neighbors to discuss our mutual concerns regarding your
proposed dance hall on Dickson Street. They asked that I make it clear to you tonight
that we are all, on Locust Street, in support of new entertainment development on
Dickson Street and that we wish Benton Bandy, Jimmy Rapert and Wayne Ogle
success in their venture. Noise issues, while they are very important to us, are
secondary concerning what I have to talk about this evening. The proposed dance hall,
with the potential occupancy of 300 persons, has been the catalyst for our block to
discuss the importance to protect our street side parking for residential purposes. Our
primary objective is to discuss what options are available to us to ensure that residential
parking in preserved on our block. A brief overview of the composition of our block is
as follows: We are zoned commercial however, we are primarily a residential block.
We have six single family residences, seven duplexes and one office. Parking is
• currently allowed on just a single side, the west side of the street of Locust. One half of
Planning Commission
• April 9, 2001
Page 88
the duplexes on our block do not offer off-street parking or driveways. Several of the
existing driveways have room for only one car. The street parking currently allows for
15 parking spaces and that's if everybody maximizes and parks correctly on the block,
which rarely happens. On any given evening, we estimate our residential needs at 17
spaces on the block and that's if no guests are present at any of our homes. I would
like to mention that with regard to available parking on our adjacent streets in that first
block off of Dickson Street, there is no parking available on Church Street, School
Avenue or Thompson Avenue. This fact makes Locust street a primary target for those
looking to park and walk to Dickson in the evenings. The available community parking
lots east of the Walton Arts Center and the Bakery Building are constantly full in the
evenings and on weekends. We have a few concerns for safety. We have nine women
living on our block and in the event that any of us leave early in the evening and return
later after dark, we are forced assuredly to park somewhere else and walk, usuall;
through a dark alley to the rear of our houses. It has been brought to our attention that
we could find some possible relief by eliminating a bike lane on the east side of our
street and offer parallel parking on both sides of Locust. My neighbors and I feel that
this is not a good option due to three factors. Number one, the current load of traffic
• on Locust is heavy. Our street is privileged to have approximately 90% of the cars that
leave the Dickson Street Liquor, go by our houses by virtue of the fact that they are
already headed south and Locust Street serves as a major corridor to the Fayetteville
square. Secondly, there is a perception that we would have more difficulty pulling in
and out of our driveway if there was parallel parking allowed on both sides of the
streets. Currently, in order to achieve those fifteen spaces that I spoke about earlier,
everybody will pull up to the very edge of our driveway and back up to the very front
of our driveway meaning that we have to swing wide to get into our private parking
areas. Most important, there is a fact that two of our residences have very small
children on the block. They ride and play bikes on or near the sidewalk. We feel that
the added congestion and reduced visibility of this would contribute to the safety of the
children on our block. In closing, with the current parking problems that we are
experiencing and the anticipated parking needs required for the dance hall, what we are
asking for is, as a condition of the Bandy permit that the City Council pass a resident
only parking permit ordinance for the first block of Locust Street. Thank you very
much.
Young: Cyrus Young. I don't normally comment on these but this is my neighborhood. The
only concern I had was with the letter that was sent out. The letter mentioned the hours
of operation of the establish will be until 1:00 a.m. at night. but not on Saturday. I hope
the applicant realizes that on Saturday they have to close at 12:00 a.m. Thank you.
CI
Planning Commission
• April 9, 2001
Page 89
Zurcher: Randy Zurcher. This is actually the issue that I came to speak on tonight. This is my
neighborhood too. I live around the corner on Spring Street so I won't have the same
problem with parking because there is quite a bit right there where I live. I do want to
let you know that I have been contacted by several of my constituents right there on
Locust Street, that parking problem is a real problem. I don't think anybody wants to
keep these guys from doing their business there on Dickson Street. I think what they
are proposing to do is going to be a great thing for our neighborhood. I do believe it is
a real issue and whether we need to do a parking study or a lot better signage or
actually pass an ordinance for permits, I want to let you all know whatever work you
can do on it would be great but I'm also willing to work on it too. Thanks for listening
to us.
Alexander:: ° Fran Alexander, I own a building at 116 West Spring. I have two parking spaces
behind the building on the alley side and two parking spaces in front of the building.
do anticipate that these will be needed in the evenings at times and I am concerned
about what the legalities are of having someone towed. I would intend to post that
anyone not having to do business with my building would be towed. I would hate to
have to go through that hassle. I don't know what the City's, is it a direct cost to the
•
taxpayer, is this going to be costing me to have them towed?
Estes: Is this from your private property Fran?
Alexander: Yes. Does the City pay for that towing, if it's legally posted to only be parking for that
facility?
Hoffman: I can speak of a direct towee from the Dickson Street area. I was parked too close to
a stop sign. I also have a friend who owns a restaurant. They post "no parking" signs
and a towing company just services that and the towee pays for the privilege of getting
their car back.
Alexander: Is it the City that you call?
Conklin: It's the towing company.
Alexander: They will come and tow and you don't have to pay?
Conklin: Our experience dealing with the towing companies, they actually compete to win your
business to put their sign up on the wall and they actually patrol with their trucks in these
• areas because that's how they make their money, by catching people illegally parking.
Planning Commission
• April 9, 2001
Page 90
It's a very competitive business in Fayetteville.
Alexander: Does it cost the property owner anything to have them post their "I'm going to tow
you" sign?
Conklin: The Planning Division knows most of them by first name. I would be more than happy
to give you some names. They try to get the property owners to post their signs on
their property.
Alexander: I think the signs will be ugly as sin but other than that, I think it would be a terrible
hassle if it continued. I suppose that the turnover of different customers, should they
find those spots. Then again, they are there and I just wanted to try to protect them
because of the need to use them in the evening as well as having the proximity of that
much human traffic by the building when I might be there alone. Thank you.
Shoemaker: My names is Richard Shoemaker, I live at 605 West Dickson. I have lived there for 12
years before the Art Center was started or the parking lot at the Art Center. It's my
• neighborhood, I've invested in that area, I vote in that area and visit the restaurants in
that area, I walk in that area and my church is in that area. I love Dickson Street and
I'm not opposed to change nor the addition of additional bars in the Dickson Street
area. After college I worked for the Arkansas Planning Commission, for about 10
years I was the assistant director of the Regional Planning Commission in Fort Smith,
responsible for development in two counties in Arkansas and two in Oklahoma and an
organization called the Planning and Development District responsible for development
of six counties in Arkansas. I understand the need for planning and how it can benefit
everyone economically if it's done property or if it's done improperly, how it can hurt
everyone economically. On some projects that I can remember bringing before the
Planning Commission, I don't think any of you all were members here, I don't even
think Tim was in town at that time, or Dawn. One of them, if you can imagine twelve
years ago how desolate that area was, one of them was the Ozark Brewing Company
and we came before the Planning Commission, I was a real estate agent on the sale side
of that project and we asked the Planning Commission to kind of think outside of the
box. After many, many meetings and some litigation, the Planning Commission granted
nine different variances that made that one project possible. I think everyone would
agree today that that's a great project. It was not received that well to start off with.
Again, I want to remind you that we had to think a little bit different than what the rules
say that you should look at now. There is another restaurant in that area that someone
may remember, it was there only a short time, where Doe's is now, they took half of
• that space and the name of it was Guido's. A young fellow from Fort Smith came up
Planning Commission
• April 9, 2001
Page 91
here, got a building permit, spent $50,000 in there, spent all the money that he had and
he was ready to open, he came for his occupancy permit and he was told he owed
$26,000 because he didn't have the parking that he was supposed to have according to
the ordinance at that time. You were asked at that time, I was involved in that too, to
think outside of the box. It's time for some changes to be made in that particular
ordinance. Phyllis Johnson was the Chairman of the Planning Commission at that time.
She held about seven months of hearings and the ordinance that you have now is what
is in place, which basically, for that area, grants parking variances for everyone. If you
had not done that, what we would end up with is about 6 buildings and all the rest of
the land down there would be parking lots. We asked you all to think outside of the
box at that time and you did and I think the decision that you made has played a major
role in contributing to the development of what I call the campus town. Residential
property is in high demand in that area. Commercial property, there is a lot of it
available for anyone that wants commercial property. If these people want to do a bar,
as I said before I have no problems with that and there have; been articles in the paper
saying that maybe they were going to be part of maybe the Ice House which is Cal
Canfield's project. Another article is talking about the Superior Linen building which
• Tyson Buckley converted, that building I think is full now but there are still other
properties for a bar in that area. The key, the remainder, and this is where I want to
ask you to start thinking outside the box again, for that area, the Dickson Street area to
work, is residential development. Like I said, there is plenty of commercial space
available. I can show you thousands of feet, I've got some of it myself. Every time
someone is gutsy enough to do residential, it leases immediately. The Three Sisters
project, across from this, started out with 12, they are up to like 15 now and there is a
chance they are going to convert some of the vacant commercial space to 2 more.
They get 10 calls a day, "Is there not any way I can't live in that space?" There is
really not. If we don't start protecting the residential properties in that area, which are
going to be the customers. If you stop and think about the alcohol limits, you seen it
reduced from .10 to .08, there are going to be fewer people driving distances to go to
restaurants. They will be concerned about having a glass of wine or not. The history of
redevelopment of old downtowns, probably the closest and oldest one to you is
identical to all the rest of them is Little Rock, Arkansas. I came from Little Rock 100
years ago. They started a renewal project back when the federal government had
something called the urban renewal authority. They closed off all of the streets to
traffic, made beautiful walking areas, plantings and trees, everything in the world. They
had a consultant tell them what to do, he had like a dozen items, 15 years later it was a
massive failure. They asked him to come back in and his comment was "You did
everything that we asked you to do, told you to do, but you did not do anything in the
• area of housing." There was no one that lived down there. You were afraid to even
Planning Commission
• April 9, 2001
Page 92
get on the streets down there at night. A party constructed 8 residential apartments and
had 254 applications for those, about 4 years ago. The buildings, if anybody's been
down there, the old Wallace Building, I remember as a kid throwing confetti out of the
top of it, it was like a 12 story building, for parades that would go by. Those buildings
are selling for like $100,000 if you can imagine that. They are giving them away. What
people are doing there now is converting them to housing units. People are eating them
up. Memphis, Tennessee, it's the same thing. It doesn't make a difference where you
go, the key to the redevelopment of downtown is residential development. I'm going to
ask you to give some serious thought, hopefully down the road, to holding some
meetings for us to look at how we need to start trying to protect the remaining
residential areas in that district, the square and the Dickson Street area. As I said
before I have no problem with these folks doing what they are doing, I just have a
problem with the location. On your staff report; I would like to comment on a couple
of things, you have to look at findings. I think the findings is, "The Planning Commission
is empowered under § 163.12 to grant a conditional use for a dance hall in the C-3
zoning district. (b.) That the granting of the conditional use will not adversely affect the
public interest." I would hope that maybe you could see now that this does affect the
• public interest, the residential area staying protected in that area. Anyone that wants to
convert commercial property to residential is met with tremendous success and I think
would continue if that pattern continued. On down, "All surrounding properties are
zoned commercially. The rear wall of the building is located on the south property line
adjacent to the adjacent residential use. (f) Signs, if any, and proposed exterior
lighting with reference to glare, traffic safety, economic effect, and compatibility and
harmony with properties in the district." That's one thing that we need to really, in
particular in that area, we need to start thinking about is the economic affect of
conversions or movements into areas where the residential sections are. They will not
only have a negative effect upon the people that you have heard that live there, it will
have a negative effect on commercial businesses there because it's going to drive
customers away. That's a reason that people want to live down there, so they can
walk to those places, walk to a whole bunch of different places as opposed to getting in
the automobile. Number h.) "General compatibility with adjacent properties and other
property in the district." I don't think that it's compatible at all. The narrative on the
project, talks about it being primarily a second run movie house. It's my understanding,
Ms. Bishop probably knows more about this than me but I've read in the newspaper,
movie houses are having problems nationwide and a lot of them are closing and actually
going bankrupt. We are talking about something different, we are talking about a
second run house with dancing only occasionally. Open to 1:00 a.m. as opposed to
2:00 a.m. When you look at the next page and you look at the anticipated numbers of
. clients, 300 on weekends, you don't have 300 in the movies out at the mall, I don't
Planning Commission
• April 9, 2001
Page 93
think, per day. We are not going to have that down here. Really what this is it's going
to end up being a private club. I don't have any problem with a private club, it's just
the location where it is. It's going to have a tremendous negative affect upon the
residential customers of Dickson Street. I would like for you to think about those items
and also thing about this, you play kind of a minor role in this whole issue, you would
play a major role if a person wanted an outdoor garden and you can vote that up or
down. You are going to vote on the dancing permit tonight. You don't really have
anything to do with whether the business is going to open or not because the Alcohol,
Beverage Control Commission in Little Rock can make that decision. You can decide
whether they are going to be able to dance in there or not. If you want to able to police
it and make that determination later on, I think you are trying to bite off more than really
what we need to be involved in. I hope this is voted down. Send them a message of
encouragement to look at another spot somewhere down there. I would also hope, in
your resolution you might conclude a message to the ABC that you feel like a
redevelopment of the campus area is important to this area and that this project does
not fit within that goal that we have because they are going to play a major role in what
happens there, you are going to play a minor role. Thank you.
• COMMISSION DISCUSSION:
Estes: Thank you Mr. Shoemaker. Is there any other member of the audience that would like
to provide comment on this conditional use request? Seeing none, I will close the floor
to public comment and bring it back to the Commission for discussion and for motions.
Allen: It does seem a good spot to me for a night club, it has been a night club in the past. I
think the crux of the problem is finding a way for it to peacefully coexist with the
surrounding neighbors. I wondered what options and authority we really have to help
them. Can we decide that a street is going to be... What options do we have?
Estes: Commissioner Allen, the request that is before us this evening is a conditional use for a
dance hall. We can either vote it up or vote it down.
Allen: There are no options to assist the neighbors in their parking concerns?
Estes: I'm sure there are many options and alternatives available but what is before us is the
conditional use request. Mr. Conklin, did you have a comment?
Conklin: I would be happy to do some research and talk to our Traffic Superintendent that is
0
responsible or in charge of on -street parking. Keep in mind, the City Council amended
Planning Commission
• April 9, 2001
Page 94
that ordinance five years ago and basically any existing building square footage down
there can be converted change of use without having to provide the required parking,
zoned C-3. With regard to the neighborhood, neighbors and residents in that
neighborhood, I would be more than happy to get with the City Council and provide
them information on parking.
Hoffman: I share the neighbors concerns about parking and I know that a dance hall with the
occupant load factor involved doubles the number of people that can be in the building
versus a night club. You have one person per seven square feet to dance in and one
person for fifteen square feet to sit and drink in or watch movies, so that directly affects
the parking. I know that there is no additional required but. just in terms of numbers of
users of the building. If we turn this down, he has to wait a long time to come back. I
don't want to be in the business of making motions to table; stuff but, I would like to find
out if they could do a resident permit parking on Locust before making a decision on it.
Conklin: We have never done that as a City. That would be starting a new program. I'm aware
of other communities that have done that with regard to different types of issues like
• parking near a University and resident parking in a very urbanized area, I've seen
residential parking permits issued. That's why I made the statement I would be more
than willing to research that. I'm not sure under Arkansas State laws or City laws
whether or not we can or can't.
Hoffman: Use private parking on public right-of-way.
Conklin: Yes. Using public streets.
Hoffman: How many parking spaces are on the site, just the ones in front of it?
Conklin: Five.
Hoffman: I guess that's my only hangup because I thought the neighbors were going to be talking
about the noise and I haven't heard that really mentioned. Usually I'm pretty sensitive
to that. I'm just more concerned about, there is a parking problem on Dickson Street
and having personally experienced the wavering judgement of the police with regard to
how close one can park to a stop sign.
Conklin: Keep in mind this neighborhood is also zoned C-3 and if any individual wanted to
change the use of one of those houses, they could do that also without being required to
• have the parking. I'll just make this offer to the residents in that neighborhood and
Planning Commission
• April 9, 2001
Page 95
other neighborhoods in Fayetteville, I think there are areas that we do need to take a
look at downzoning and I would be more than happy to work with neighborhoods and
protect these residential areas and not charge an individual fee for every piece of
property that comes through but do it as a City initiated rezoning and bring those
forward. I'm all in favor of doing that. I think we need to take a look at our downtown
area and we are starting to begin that process and we need to look at south
Fayetteville, University Avenue areas up on Mission to actually downzone these
properties and protect them. I invite the neighborhoods to meet with Planning Division
staff and we'll go forward.
Estes: My concern is, we are going to have to make certain findings of fact and one is that
granting this conditional use will not adversely affect the public interest or the
neighborhood. Staff makes the finding that the granting of the conditional use will not
affect the public interests. If the applicant's business plan is successful, I don't see how
in the world it cannot affect the neighborhood. The other finding of fact that bothers me
is, that screening and buffering with reference to type, dimensions and character, staff
makes the finding that all surrounding properties are zoned commercial, they are not. If
• they are, they are not used for commercial purposes, there is people living in them. I
understand that that's C-3 but the present use is residential. I'm kind of troubled by
that. I'm going to have a difficult time voting for this conditional use because personally
I can't make the required findings of fact. Commissioners, any other discussion,
motions?
Marr: I'm not sure I've ever voted against a dance hall. This is the number one item I
received calls on this week. I too live in ward 2. We have both Alderman here tonight
from that ward and I believe that your comments about the finding of not adversely
affecting public interest is, in fact, an issue in this particular location. For that reason I
won't support this.
Hoover: I'm struggling here. I feel like this is a good use of this building and I certainly promote
business on Dickson. I understand with a conditional use they have to wait a year to
come back. I guess use by right, they could open up a bar today.
Conklin: They could open a bar, theater, restaurant, office, just about anything in C-3. The only
thing you are considering is whether or not dancing should occur inside this building and
how allowing dancing to occur inside this building impacts this area of the
neighborhood.
0
Marr: Are occupancy levels the same on a dance hall requirement as one of those other use
Planning Commission
• April 9, 2001
Page 96
by rights? Do we have any number count on that?
Conklin: A restaurant with entertainment requires one parking space per three occupants.
That's the ratio we use for the dance hall. If they had a restaurant with some other type
of entertainment that didn't have dancing, it would be the same. If it's an office it would
be a lot lower, 1 per 300 square feet.
Hoffman: Let me clarify, the numbers you just talked about were parking requirements based on
use and we are talking about the number of occupants based on true occupancy of the
building, not number of parking spaces.
Conklin: Occupancy is going to be set by the Building Inspections Division or Fire Marshall with
regard to the number of openings.
Marr: Is that different by use though?
Conklin: It's going to vary by the amount of openings and the type of occupancy. If it's
• assembly they are going to be required to do more. Yes, basically the most occupancy
you are going to have is the assembly type occupancy. If they are planning on having a
theater here, my guess is it would probably be very similar to a dance hall.
Allen: This proposed club is right in the hub of where all the other clubs and dining
establishments are and all of what's happening in town. I'm trying to understand why
this is more of a concern for the residential area than any other, George's or any other
existing club. I certainly understand the residents concern for their parking and I hope
that can be addressed but I don't see why this club is more objectionable than any
other place that's already on Dickson Street.
Ward: I feel the same way really. Just because they want to put in a dance floor, I don't think
that changes the number of people going in there or anything else, to be honest about it.
It's got 2,900 square feet of building. It's already by right to have a night club in there.
Dickson Street has been declared our entertainment district. We've allowed night
clubs everywhere up and down Dickson to anybody that wanted one. I don't think it's
right to all of a sudden just come out and say we are not going to allow a dance club
right in the middle of Dickson Street. I don't think that would be fair to the applicant.
They have a right. I don't see a difference between a night club and a dance floor.
Hoffman: I'll tell you the difference. Based on the square footage, the 2,900 square feet, if he has
• just general seating, not fixed seating, he can fit 193 people in there. He has to provide
Planning Commission
• April 9, 2001
Page 97
adequate exits for that but probably two 3 foot doors. To dance, he'll have 414
people. I know he said he's only going to have a maximum of 300 expected, but that's
how many people you could conceivably have in that building. I don't really have
heartburn with the fact that he's going to open an entertainment business or whatever
but there is a real difference between the dancing factor.
Ward: You want to limit the number of people?
Hoffman: No, I don't want to limit anything. I do have a respect for the people behind that are
going to have to deal with the overflow.
Ward: What difference does it make? How many people can a night club have?
Hoffman: A night club can have 193, so you have 414 for dancing. Those are round numbers, I
didn't take out the bar area or whatever. You are roughly going to go two-thirds of the
area that's going to be seating. If you clear away the tables and dance, it's going to be
another 33%, it sounds like 40% I guess.
• Ward: It seems to me like we can say there is going to be so many people in there for the night
club than we should say there is a maximum number of people that can be in there
whether it's a dance hall or a night club.
Hoffman: Why don't you try something then?
Ward: I don't have much say about it.
Shackelford: I'm totally confused at this point. Occupancy is tied to the use of the building?
thought occupancy was determined by the Fire Marshall.
Conklin: It is determined by the Inspections Division but depending on the type of occupancy
you have changes in your building code requirements. Based on those requirements, if
it's an office building, you may not have to have as many openings and therefore, your
limit is much lower. If it's assembly occupancy you are going to have much more
higher standards for openings and fire protection.
Shackelford: In all the cases in the past where we've approved conditional uses to allow dancing, we
have unknowingly increased the occupancy level that was allowed at that location?
0
Conklin: You typically would know what the occupancy level is. Yes, when you change the use,
Planning Commission
• April 9, 2001
Page 98
it changes the occupancy level in those type of buildings.
Bishop:
I just
have a
concern, there are
other residential areas around
Dickson
Street. It's not
that I'm
not
concerned for the
residents but 1 think that if we
take that
into
consideration, we are setting a precedent and every time a business on Dickson Street
is going to look at opening, this issue is going to come up. I am concerned that it is
Dickson Street. I think that's something we need to look at too.
Marr: I'm just curious if the applicant looked at any other location other than this particular
location.
Bandy: We chose Dickson Street for quite a few reasons. One, as you all have established, it
is an entertainment area. Two, we are hoping that parking will be easier because we
are hoping for more of a bounce around type crowd. Based on our past experience,
we didn't have the dance hall type of thing, we were more of a destination type venue
and parking was a problem then. As a dance hall we are to get people going to
restaurants who come across and not have to drive right up and park. That's one of
• the factors. Also, the drinking and driving problem, we are hoping that people will get
together and car pool and have designated drivers, it's much easier to do on Dickson
Street than it is if we went out by the mall.
Marr: Have you had any dialogue with the residents on Locust Street?
Bandy: A few have called. I've provided my phone number to everyone, few have called. I
talked to Randy who was quite concerned because he had quite a few people call him.
We are going to do everything we can to put up signs posted on the street "Please
respect these residential spaces". I know that we can't force people that, it's up to the
City Council to do that. We are in support of that. We spoke with Grisso's, who own
more residential property than anybody else and he said he fully supports our business.
MOTION:
Shackelford: In an effort to keep the meeting moving, I think I'm going to try to formulate a motion
here. Mr. Chairman, I understand your concerns with the finding of facts. My view is
this is a conditional use strictly for the dancing part of this facility. I think that the
allowed uses of operation under this zoning already have an affect on the neighborhood.
I think that there is some very significant issues there to deal with, the parking and that
sort of thing. Unfortunately, I don't think the Planning Commission is the group that can
• address that. I would like to make a motion to approve conditional use 01-6.00
Planning Commission
• April 9, 2001
Page 99
subject to the five conditions of approval and staff comments. I'll go further and
applaud the City staff and Alderman present for their effort. to work on the parking
issues and solve those at a later date.
Estes: There were eight conditions.
Shackelford: I'm sorry, the eight conditions with the tabling of the outdoor patio until we have further
information on that.
Allen: I'll second.
Hoover: I would like to just make one comment. As part of the Downtown Dickson Group and
on the Design Committee, we have been trying to work out a master sidewalk plan and
encourage people to walk downtown in the Dickson area. Another part of that whole
attitude is perhaps some kind of park and ride system. We talked about if it's possible
to get the trolley down there in the evening and park at the larger parking lot so that we
can alleviate some of these problems. There are groups working on this, I think the
• City does need to get more involved. I think with Tim's help that would be great.
There is also the Public Affairs office with the City now and I think they could
contribute to alleviating this problem too.
Estes: Any other comments or discussion? Sheri, would you call the roll?
ROLL CALL:
Upon
roll call CU
01-6.00 is approved
by a vote of 6-3-0, with Commissioners Marr, Hoffman and
Estes
voting "no".
0
Planning Commission
• April 9, 2001
Page 100
RZ 01-7.00: Rezoning (Mansfield, pp 444) was submitted by Stephen Mansfield of Mansfield
Property Management, LLC for property located at 932 N. Garland Avenue and 1003 Hughes Street.
The property is zoned R-3, High Density Residential and contains approximately 0.26 acres. The
request is to rezone to R -O, Residential Office.
Estes: The next item on our agenda is item number ten, rezoning request 01-7.00 submitted by
Stephen Mansfield of Mansfield Property Management, LLC for property located at
932 N. Garland Avenue and 1003 Hughes Street. The property is zoned R-3, High
Density Residential and contains approximately 0.26 acres. The request is to rezone to
R -O, Residential Office. Staff recommends approval of the requested zoning based on
the findings that are included in your packet. Is the applicant present? Do you have
any presentation for us?
Mansfield: My name is Steve Mansfield, I live at 2665 Deer Path Drive here in Fayetteville. The
purpose of the rezoning request is, our intent is to renovate these two older structures
on the property and use the one on Garland to be a property management office,
basically a residential real estate type office and renovate the one on Hughes Street, at
• least for the time being keep it as a rental home. I would be happy to answer any
questions that you have.
PUBLIC COMMENT:
Estes: Commissioners, are there any questions? is there any member of the audience that
would like to provide comment on this rezoning request 01-7.00?
COMMISSION DISCUSSION:
Estes: Seeing none, I will close the floor to public comment and bring the matter back to the
Commission for discussion, motions.
MOTION:
Man: Based on, I
believe in this
area, that
this zoning would
be needed at the time and it is in
compliance
with the 2020
Plan,
I'll
move for approval
of RZ 01-7.00.
Hoffman: Second.
Estes: There is a motion by Commissioner Man and second by Commissioner Hoffman. Is
there any discussion regarding the motion? Sheri, would you call the roll please?
Planning Commission
• April 9, 2001
Page 101
ROLL CALL:
Upon roll call RZ 01-7.00 is approved by a unanimous vote of 9-0-0.
•
•
Planning Commission
• April 9, 2001
Page 102
AD O1-1.00: Administrative Item Amendment to Chapter 171 "Streets and Sidewalks", Section
171.13(B)(6) "Width of Driveway Approaches" and Chapter 172 "Parking and Loading" Section
172.01(C)(5)(b)(1)(a-c) "Parking Lot Entrances" of the Unified Development Ordinance to change the
width of a curb cut allowed for commercial driveways.
Estes: The next item of business to come before us is an administrative item AD 01-1.00 an
Amendment to Chapter 171 "Streets and Sidewalks", Section 171.13(B)(6) "Width of
Driveway Approaches" and Chapter 172 "Parking and Loading" Section
172.01(C)(5)(b)(1)(a-c) "Parking Lot Entrances" of the Unified Development
Ordinance to change the width of a curb cut allowed for commercial driveways. Tim,
what is this about and why is this before us this evening?
Conklin: Staff has brought this forward to amend our driveway specifications. We've had some
situations where the island that is required in a driveway that has a one way in and a left
out and right out, with a ten foot island, has caused problems for motorists and delivery
trucks, tractor trailers from entering and exiting these curb cuts. Staff has removed the
requirement for the ten foot island and we do have a driveway that has an entrance lane
• and then two exit lanes, the left and right out. The proposal is to have a 15 foot
entrance lane, a 12 foot exit lane, that's a 27 foot drive for one way in and one way
out, then to have a 15 foot entrance lane and 12 foot exit lanes, right out and left out,
for a total of 39 feet. Staff believes this will help bring traffic off our streets in a more
efficient manner, cars are having to slow down. It will increase the capacity of our
roadways and also comply with the Arkansas Highway Transportation Department
standards for a maximum curb cut of 40 feet. That is why we have brought this
forward to you. In an effort to help minimize the conflicts that are occurring with the
automobile.
PUBLIC COMMENT:
Estes: Is there any member of the audience which would like to provide comment on
administrative item 01-1.00?
DISCUSSION:
Estes: Seeing none, I'll close the floor to public comment and bring it back to the Commission
for discussion, questions of staff, motions?
is
Planning Commission
• April 9, 2001
Page 103
MOTION:
Hoffman: Now that I'm
fully aware
of what it is we are discussing and having seen quite a few of
these projects
go through
with narrower driveways and broken down
curbs being a
problem, I would like to move for approval of AD 01-1.00 subject to
staff comments.
Shackelford: I'll second
Marr: Just to communicate my position. I understand the widening issue. I have a concern
about taking out the island. I know that the rationale behind it is flow off a street such
as College to make the tum easier. I asked at agenda session to give me examples of
places where we had islands in, I was given Denny's, Walgreen's and First Security
Bank. I also have a safety concern that, I don't want people making speeding turns
into parking lots either. So, while I understand the City position on getting traffic off of
the main road, I also have a concern with safety. Islands serve the purpose to not let
someone make a two wheel turn. I also believe that when properly planted, they are
also adding an aesthetic to the community that is nice. Thirdly, I don't think the
• rationale of someone who can't drive by driving over one is a reason to remove it. For
that reason, I won't support this.
Hoover: I think that maybe I'm not educated enough to understand this because I don't
understand why we would be giving up the island. I would like to reiterate what Don
said but maybe I'm missing something here.
Conklin: There are always two sides to every argument. The islands are slowing traffic down
and they are causing it to be difficult for trucks to enter into the actual sites. One of the
things that we've done a tremendous job doing is eliminating two curb cuts and only
requiring one. When we do that, it sometimes requires like an "S" turn if they put it
right in the middle of their project and those trucks aren't able to maneuver and are
crossing the island. That's what you see at Denny's. That's why they have a concrete,
mountable island because the trucks can't make that turning movement. At the most
recent past two access management seminars, I've raised this question with regard to
the concrete island or the landscaped island that we place in our curb cuts in
Fayetteville. They recommended against doing that unless you had a wide enough drive
and radius in order to get the cars efficiently off the roadways to maintain capacity.
That's the other issue. When you drive down College Avenue and you have a very
limited radius and you got almost a 90 degree turn, you have to almost slow down to a
stop to make it into those driveways. What we've recommended is eliminate the
• landscaped island and that way cars are not inclined to slow down and stop which
Planning Commission
• April 9, 2001
Page 104
reduces your capacity in the roadway and also recommend that the radius should be
about 25 feet. I put in the ordinance that it "should" be a requirement because in not all
situations will you want to have curb cuts designed in that manner. For example, in our
downtown area most of the time you will have a driveway which has no radius, it's just
a 90 degree turning movement that you make. On our major streets, this is why we are
recommending it, is where trucks are having problems getting into the driveways, cars
are having problems, cars are going in the wrong direction in some cases. Staff will
encourage developers to do a boulevard type entry when they can but it's going to have
to be wider and the Highway Department is going to have to grant variances for those
types of things.
Hoover: Have we had any complaints from any of the business owners themselves or is this
something that you've been observing?
Conklin: We have to force business owners to do this design most of the time. As staff, we tell
them they have to do it and we bring it forward to you. Most of the time they do not
want to put this island in their driveway.
• Hoffman: As it goes forward maybe you can talk about the different uses of the buildings because
if you have a smaller professional office building and won't need a delivery truck to
service it typically. You can work with the individual developers in that. I do see a
problem with, as pretty as they are, the islands that are being overrun and the inside
curb is the particular one.
Conklin: I've asked the question at two different conferences now with regard to access
management about our islands that we have in our ordinance. Once again, the negative
is it does allow vehicles to access into the parking lots in a faster motion than slowing
them down on the street in order for them to make a turning movement. They're
recommendation was not to have the islands when I asked that question.
Hoover: Is there a way to formulate this that the whole entry is wider and you still have an
island? I hate losing the island.
Conklin: I would say that's a possibility. Most of our major streets in Fayetteville are State
highways and the Highway Department has already had to grant us a variance for a 48
foot drive with the island. Charles Venable and I went down to Fort Smith and actually
got that approval just in order for the Highway Department to be able to deal with it.
That was the other problem, the Highway Department wouldn't permit our driveway.
0 The rationale was that if we limit the number of driveways they would consider allowing
Planning Commission
• April 9, 2001
Page 105
that to occur. If we go any wider, I'll have to go back down to Fort Smith and
convince the District Engineer to allow an even increased island. What they assume is
your driveway width is from curb to curb including the island. They assume that's a 48
foot curb cut.
Estes: We have a motion to approve AD 01-1.00 by Commission Hoffman and seconded by
Commissioner Shackelford. Any other discussion or comment? Sheri, would you call
the roll?
ROLL CALL:
Upon roll AD 01-1.00 is approved on a vote of 7-2-0 with Commissioners Hoover and Marr voting
"no".
•
0
Planning Commission
• April 9, 2001
Page 106
AD 00-46.00: Administrative Item (Definition of Family) to revise the definition of "family" in the
Unified Development Ordinance in a manner that best preserves the character of single-family
neighborhoods.
Estes: The next item that we have on our agenda is Administrative Item 00-46.00, Definition
of Family to revise the definition of "family" in the Unified Development Ordinance in a
manner that best preserves the character of single-family neighborhoods.
Commissioners in your material, among other information regarding this administrative
item is a letter from a concerned constituent whom I anticipate will be a presenter
tonight request that anyone who owns rent property within the City of Fayetteville
recuse from voting on this item. I just bring that to your attention for your
consideration.
Hoffman: I just want to state that I do own rental property but I don't find it necessary to recuse.
Estes: The staff has made recommendations and those are on page 13.3 of your material.
This matter was well considered by a Subcommittee of your Planning Commission, I
chaired that Subcommittee, Commissioner Bunch served on that Subcommittee as did
•
Commissioner Allen. The result of our work was that the revision that we bring
forward to you this evening is found on page 13.4 of your material, as revised the
definition of family would state:
Family. (Zoning) Family is defined as gone or more persons ,
related by blood, or marriage, (i) adoption, guardianship or
other duly -authorized custodial relationship occupying a dwelling as a (7).single housekeeping
unit, or no more than ('0four (4) unrelated persons occupying a dwelling as a single
housekeeping unit i'>fiert
dontesfieservapits entpl� mi Me pretiri�es may he housed on Me premises iviihdw being
()The definition offamily does not include fraternities, sororities,
clubs or institutional groups.
Estes: Tim, do you have any additional information, any additional recommendations that you
would like to make for us this evening?
Conklin: Yes. With regard to changing the number from three to four, initially when I brought
this forward and brought it to the Subcommittee the intent was to remove the section
where it talked about domestic servants and that counting towards the number in that
family. I have put in the staff report the recommendation from the Subcommittee and
• would like to let you know that I do believe we should keep it at three and not change it
Planning Commission
• April 9, 2001
Page 107
to four. Changing it to four would eliminate a lot of the violations for the Planning
Division to investigate but I don't think it's going to benefit the neighborhoods by
changing that from three to four. I think it should remain at three. The rest of the
changes are the result the Associate Planner, Shelli Rushing, taking a look at other
ordinances across the United States and adding some language in there with regard to
the term related, the single housekeeping unit, and making sure that it distinguished
family from a sorority, paternity club or institutional group. Those are the changes that
we recommended. The definition that you did read is correct except I would
recommend that you keep it at up to three unrelated people in a single family home.
Estes: Would you make that a part of your recommendation to the Commission this evening?
Conklin: Yes, I would.
PUBLIC COMMENT:
Estes: With that said, is there any member of the audience who would like to provide
• comment, suggestions, edification, guidance or enlightenment regarding administrative
item 00-46.00?
West: My name is Chuck West and I am president of the Sunset Woods Property Owner's
Association. That is located just a few block northwest of the University campus. First
of all, we are very much in favor of dropping the domestic servants loophole but we are
very much against raising the maximum number from three to four. I'm glad to hear that
Mr. Conklin is recommending that be dropped. I just want to reiterate that the
Commission please go along with that because we feel that there has been
encroachment of student population into large houses that have resulted in a loss of the
community, a loss of family nature and degradation of yards, properties, noise, more
traffic and so on. I don't want to belabor that too much but our experience is that many
landlords, too frequently, who rent to students in our area, don't respect community
standards and will allow extra traffic and noise and litter and so on. I do urge the
Commission to go along with Mr. Conklin's recommendation to not increase to four.
Thank you.
Mansfield: My name is Steve Mansfield. I wanted to focus a little bit on the issue because I think
some of the problems that have risen have been mostly in single family or
neighborhoods or duplex neighborhoods. I'm not sure if the Commissioners are all
aware, there are at least three apartment complexes in town that have four bedroom
is
apartments that specifically focus on the student market. Those, that I know of
Planning Commission
• April 9, 2001
Page 108
anyway, include Woodway, College Park and Maple Manner. If the number in the
family is reduced to three rather four, in effect, all the four bedroom units, which I
believe is in excess of 150 apartments in this town, would have significant loss in value.
For the owners of those apartments, that could be pretty drastic. I was wondering if
you could consider either exempting larger apartment complexes or in some way
change the definition of a residence such that it really focuses on the problem, which is
the single family neighborhoods where there is traffic congestion and trash.
Marr: Can I just get a point of clarification, this definition, does it apply only to R-1?
Conklin: No, it applies to all zoning districts, all residential uses. Just for clarification, we are not
changing the number of unrelated people allowed within a dwelling unit. The current
limitation is three. I understand the apartment complexes you've described. Staff has
done a lot of research and this is just one part of what I intend to bring forward and
we'll take a look other methods to deal with the issue of student housing and what other
communities have adopted to help regulate the number of people.
• Marr: Was there any look at different non -related, the number being different based off of
type of zoning, like an R-2 having a different requirement than an R-1?
Conklin: There are some communities that have done that. In your information there are some
zoning districts that have allowed different number of unrelated people and that's a
possibility we can take a look at anything above R-1 allow up to four in order to help
bring it into compliance these existing conditions.
Marr: I guess my point is, I think this warrants investigation of looking at a different limit based
off of zoning level, even square footage. I can speak for myself, I actually bought a
house that is 100 years old that used to be Mount Nord Club for the University and I
live on Mount Nord Street. The size of a location can also dictate the difference in a
facility that might be able to allow an unrelated amount higher than three. I just throw
that out for discussion.
Conklin: In Shelli's research, other ordinances define family by zoning district in Auburn,
Alabama, Athens, Georgia and Lawrence, Kansas, in such ordinance two to three
unrelated persons are allowed in more restrictive single family zones and four unrelated
persons are allowed in all other zones that allow single family uses. They created that
two to three for single family, four for other multi -family zoning districts.
0
Cring: I'm responsible for putting those pictures together. My name is Tim Cring, I live at 708
Planning Commission
• April 9, 2001
Page 109
Fowler Avenue. I appreciate you staying here late at night. Six of my neighbors left at
about 10:00 p.m. I wanted to make one point that I'll come back to. I think it's critical
to remember we are at three now and the charge of the Committee was to really look
at revising the definition to best preserve the characteristic of family neighborhoods and
if we go to four, we have to think about how going to four preserves that neighborhood.
The other point I wanted to make is we talk about students till the time and I'm a
professor at the University, this really isn't an anti -student issue, this is a anti -bad
neighbor issue and an overcrowding issue of a home that wasn't built for that. There
are a number of neighborhoods right around campus, north, south, east and west, I
won't say those street names, they are on that top part. Those are traditional student
rentals over time. Really, they are not anymore because the students don't like living in
those homes anymore. I imagine staff, when Tim was looking at different university
towns, other universities have actually purchased them back; trying to reclaim these
neighborhoods that have degraded because the degraded areas around the University
reflect on the University. What our focus is, in the people that are neighbors of mine,
are mostly looking at areas that weren't rentals five or ten years ago but are now.
Those are a little further out and a little higher priced ones, those are Washington
• Street, Prospect. There are still some isolated neighborhoods where they haven't gone
to the rental areas but when you see the rental homes where there is multiple people,
four and more that are avoiding our ordinance, you see multiple cars parked at one
place. That one picture on the right, that was six cars, that was this morning. There
was six cars parked on the lawn and the driveway. This other picture down on the
bottom right was also this morning. That's where the students have to park on the front
lawn, there is typically eight cars at that location. There just isn't room, they want to get
out at different times and it really creates an obvious problem. The other issue we are
looking at is not really the extreme of use of the ordinances that exist now and that's on
the top of the second page. I know you've looked at that upper right one, Maple
Street and Oliver. Those have been the focus of other issues and a lot of complaints.
That's where the ordinance is completely ignored, there was 14 cars at that location this
morning. The other issue I wanted to bring back is, when we go from three to four, we
are increasing that multiple that if you buy a house and want to rent it out to students,
you can actually make a much bigger house and nicer house into rentals. The bottom
two photos on that page are in Waterwind Woods and right across form Waterwind
Woods, these are over $150,000 homes that are currently rented to groups of people
now, more than four. That's an issue we are trying to resolve and address. I really
urge you to remember the mandate and not go to four.
Manskey: Rita Ann Manskey, 6 North Hartman, Fayetteville. I would first like to express my
is
thanks to Mr. Conklin and the staff and to the Subcommittee for the work and the
Planning Commission
• April 9, 2001
Page 110
research that you did on this issue. It's very much appreciated by all of us. On my
particular street, I represent the lower number of years of home ownership. I have
lived at 6 North Hartman for 18 years. Others have lived there for periods of time from
20 to 45 years. We have some long term family renters who have lived there for
periods of 5 and as long as 10 years. We are now experiencing a most unfortunate
change in the stability and character of our neighborhood. Due to our proximity to the
University, we are increasingly being targeted as an area for student housing. Single
family homes are being purchased and rented to college students, not one, two or three
students but as many students as possible, pseudo dorms, if you will. The one close to
me even had their own so-called dorm mother but it didn't do any good. This meant
and still means, four and five cars without room to park, they park in the yards, bags of
trash left on the street for a week, extra noise and traffic, increased crime. Our
neighborhood was designed and zoned for single family dwellings. Yards were not
meant to be used as parking lots, streets were not meant to be used as trash
receptacles, young men were not meant to urinate in the yard when my daughter is
walking home from school. Our property is consistently being devalued by these
practices. We all understand at least part of what has happened. An examination of
• the University's dormitories would cause any parent to look for alternatives. Young
people of today are not impressed by the dorms our campus has to offer. The rental
market, especially anything convenient to campus will remain strong. Our
neighborhood does not owe it to the University to allow our property values to be
decreased. Our neighborhood does not owe it to the University to allow our aesthetic
standards to decrease. Our neighborhood does not owe it to the University to allow
our general sense of welfare and safety to decrease. We cannot and will not become
one big dormitory. My neighbors and I work in this community, play in this community,
we contribute to the community, we support this community, we raise our children here
and some of us raise our grandchildren here, we pay taxes, we vote and most of us
own our own homes and do not plan to move. There are plenty of available
neighborhoods in our town designed for every imaginable rental purpose. Our
neighborhood need not be sacrificed to easy money. We, as citizens of Fayetteville,
ask this Commission to help us protect our investment, help us protect our security and
safety and help us to protect our neighborhood. There is no magic number. I strongly
support the number three. We all know it only takes one person to be that really bad
neighbor. Is it good business to allow any circumstance that helps anyone to allow
erosion and deterioration of our established neighborhoods. There is nothing wrong
with setting a standard and there is nothing wrong with choosing number three and I
thank you for your very kind attention at this late hour.
0
Estes: Thank you. The seminal issue seems to be whether it's three or four. We are going to
Planning Commission
• April 9, 2001
Page 111
vote on this definition of family. Staff has now recommended three. I don't want to
limit public comment in any way. Can we just have a show of hands of how many
people favor four? Show of hands of how many people favor three? Is there anyone
else that would like to offer comment to us that you feel would be helpful to us and not
redundant of what we've heard? Please come forward.
Moeller: Bill Moeller, 1511 Markham Road, president of the University Heights Neighborhood
Association. I think you have all received the letter that I've sent to you expressing the
neighborhood association's position on this issue which is, that we are for dropping the
reference to domestic servants and we are against the increase in the number from three
to four. I wanted to mention one thing that hasn't been mentioned here tonight,
mentioned to me by a fellow that does not have the endurance that all of you folks have
and that I have. R-2 actually has more protection for it's residents than R-1 because -in
an R-2 apartment complex, the offended residents can go to a manager and say "Hey,
I'm not going to pay my rent if you don't quite these guys up next door." Who does R-
1 tum to? You folks. Thank you.
• Weiss: George Weiss, 1614 Sawyer Lane. I was at both of the subcommittee meetings and
one reason that was given for wanting to increase from three to four was that this was
going to help senior citizens. That there might be for senior citizens, who are unrelated
but because of maximizing social security finances, would want to live together. As it
stands right now with the current ordinance, if such senior citizens wanted to live
together, they could come before the Planning Commission and get permission to do
so, if I understand it correctly. They probably would be granted that permission. In
other words, they have a remedy right now. I if they didn't come to the Planning
Commission and they wanted to do it and they just moved into a neighborhood and
didn't even realize there was an ordinance, nobody is going, to complain about them and
therefore, the ordinance would not be in force because it is a complaint driven
ordinance. No complaint, Planning Department doesn't go out and knock on the door
to find out. What I'm saying is, right now the senior citizens, and I am a senior citizen,
will have remedies. Let's examine thisjust a little bit in more detail. First I do want to
say thank you for anybody who does think of senior citizens but how real is this senior
citizen problem? I would ask you Mr. Chairman to ask the staff, how many of the
complaints that we've had about more than three people living in a house, how many of
those have been about senior citizens?
Estes: Tim, do you keep any records?
• Conklin: With regard to senior citizens? I don't think I've received any complaints with regard
Planning Commission
• April 9, 2001
Page 112
to senior citizens.
Weiss: How many senior citizens wanted to occupy a house and be unrelated with four in a
house, how many have requested that either through the Planning Department or to the
Planning Commission?
Estes: Tim, do you have an answer for that?
Conklin: None.
Weiss: This is a non -problem and therefore, I don't see that as a valid reason for wanting to go
from three to four. The problem, I think you've already heard it, is with the younger
generation. I'm not anti -student either. Those are the ones that seem to cause the
problems. If you do increase from three to four, not only are you not helping the senior
citizens but you are in fact hurting the senior citizens because you are inviting more
noise, traffic, safety, trash and problems. Therefore, I would encourage you to follow
the staff's recommendation and not raise from three to four, the number of unrelated
• people in an household. Thank you.
L. Weiss: Lou Weiss, Fayetteville. Something just occurred to me, I don't know if it's possible
or not but in defense of the students, perhaps if somebody can talk to the University
and during their orientation if they could be given this information on how many
unrelated people can live together, maybe more of them could be aware of this rule and
follow this rule. We are always talking against the students and I feel badly doing that
because they are here for a higher education and so on and I respect that. I have been
scared, last night as a matter of fact, we live across from Hotz Park and there were kids
yelling all over the place and it sounded like guns and sounded like they were in our
driveway, we ended up calling the police. There are a lot of problems but perhaps if
students were educated a little bit more to this problem, maybe they would behave
themselves a little better or be aware of these rules.
Baker: I won't take but just a moment because I know
you are
tired and
I appreciate so much
you being here. I appreciate you giving me the
chance
to speak.
I brought pictures.
Estes: Would you tell us who you are and where you live?
Baker: I'm sorry. My name is Ruth Baker and I live at 99 West Elm, Fayetteville. I brought
some pictures that are worth a thousand words and hey just give credence to what has
• already been said. As you look at them, I would like you to note how many times the
Planning Commission
• April 9, 2001
Page 113
sidewalks are blocked. This particular neighborhood has duplexes, three and four
bedroom duplexes. It's also the closest residence to the location for the new Boys and
Girls Club. I know, in listening to the Planning Commission when the Boys and Girls
Club was being presented, one of the things they talked about was children walking to
the Boys and Girls Club and also riding their bicycles. If you'll notice, in order to get to
the Boys and Girls Club, by that particular neighborhood, they would have to be riding
and walking out in the streets because there are so many cars. Two of the pictures
shows a particular duplex this morning that went by at 7:20 a.m. On one side there
were seven cars, six on the driveway, one in the yard, on the; other side of the duplex
there were five cars, which gives a total of twelve cars. We have not even mentioned
what happens on Friday nights and Saturday nights. The only other thing that I would
like to add is, I thank you very much Mr. Conklin, for recommending three. I think that
was a wise decision because we seem to have enough trouble with three and we don't
want to open the barn door up wider. Also, the fact that something was mentioned
about people with four bedrooms not being able to have as much income, there are
families that need four bedrooms. I don't think that is going to interfere with anyone's
income. Thank you very much for listening.
• Benedict: I'm John Benedict and I've lived on Oliver Street over 30 years in two different houses.
My mother and I chose to live on Oliver Street because it's zoned R-1. I agree that we
need to define a family and limit the number of unrelated persons living in a house. It
looks like that we are trying to address the problem after the: fact to me. The issue
might be better addressed on the front end but the problem that we are having at 527
Oliver, next door, might have been addressed in the planning stage or the permit stage.
In Fayetteville a builder can build just about any structure within reason but if you see a
plan calling for a long hallway with many doors, a reasonable persons would say
"That's probably a dorm, it's not an R-1 structure." I'm saying that there would seem
to be many indications of what a structure is going to be used for and what structure
does not belong in R- 1. It's helpful to limit the number of unrelated persons but
builders can continue to build what amounts to dormitories in R-1 areas. The history at
527 Oliver is that the neighbors had to get together and oppose the owner building a six
unit apartment complex there. Why did the neighbors keep having to band together to
oppose the building of structures that shouldn't even be considered in R-1? I object to
there being six students living in the house at 527 Oliver, in addition to the students
living at 1520 Maple on the same property. These students have not been bad
neighbors but there are too many of them living in one property. As near as I can tell
there have been as many as eleven people living in the two houses on the one property,
judging from the numbers of cars and the people coming and going that I've seen. My
0
mother and myself feel the existence of a rooming house next door has adversely
Planning Commission
• April 9, 2001
Page 114
affected our quality of life and enjoyment of an R-1 private home in an R-1 zone.
That's the issue to us. I guess I would urge the Planning Commission to go even further
than this step that you are doing to protect R-1. Thank you.
Reynolds: My name is Ben Reynolds and I am a student at the University of Arkansas. Currently,
I do live on campus but I am planning on moving off campus next semester and I have
many friends that live off campus. All this talk has been about college students, I see
that as a big problem. With the mention of the senior citizens not causing problems, it's
kind of like saying "If I'm speeding and there is not a cop there, I'm not breaking the
law." There are a lot of problems with a lot of students living close together. You have
problems with noise, illegal parking and sometimes the threat of violence and illegal
acts. All that is handled by other ordinances, not by this one. There are other means to
take care of that. As far as other people providing servicZs to the community and
helping out the community, even as a member of the University, I do perform a great
deal of service for the community. I help out routinely with the Boys and Girls Club, I
helped volunteer at this rescheduled First Night and occasionally I'll go out to the
animal shelter when my class schedule permits. A lot of students are more active in the
• community than people realize. Many are registered voters, after this last election. We
do frequent many of the businesses around Fayetteville. Even though we do not pay
property tax, we pay sales and HMR taxes. Not all of these problems of trash and
noise are not college students. The further you get away from campus you still have a
lot of these problems, the further you get away from campus the number of students
decrease. I have several ideas on how to solve this problem. The only option I see
tonight is increasing it four people. I don't see how changing the number will increase
any problems that you already have. I am for making it more strict and getting the
loophole out, I am for that. As far as letting more people live there, when you are
renting out a house for $1,000 which is an average price around Fayetteville, especially
close to campus, if you are only to let three unrelated people there, the cost of living in
that house is $330. If you let four people live there that's $250. That's a difference of
$80 and that can make a difference if someone eats or not. Also, if you increase the
number and it's legal, more people will try to live closer to campus and if we live closer
to campus we won't spread out and invade other areas which seems to be the problem.
Also, a lot of people claim that we are bad neighbors, I think the number of good
neighborly students is not known here because they don't get reported. Maybe if when
students moved into a residence or house that is in an area where there is a
neighborhood association, they should be encouraged to join it and then they could
realize that they could actually help out and maybe they do cause problems at certain
times. For the domestic servants, an idea to get rid of the loophole I thought of was to
• get an update annually or semi-annually, even quarterly on what they do and report on
Planning Commission
• April 9, 2001
Page 115
such things and have to be approved by the City. Also, you can discourage the owners
of these properties from doing it and not focus so much on the students themselves. If
the owners didn't let this happen then the students wouldn't have the opportunity to be
in this position. What I thought would make an even better idea would be to make the
number of residents dependant on the number that the residence can handle. You
could have a number of people living in a house to be dependant on the number of
bedrooms and the number of parking spaces because that's one of the biggest
complaints I've heard. If you can figure out a relationship between all that, you might
be able to help out because I know there are several houses and apartments that are
four and five bedrooms but you are only going to let three people live there, you are
wasting a lot of space and there is a lot of space going unused. Just to close, I would
like to say that I know I'm not the only one that has come here to Fayetteville and
started a life in town but if I'm not made to feel welcome here, I don't know if I would
want to come back. Thank you.
COMMISSION DISCUSSION:
• Estes: Thank you for your comments. Are there any members of the audience which would
like to comment? Seeing none I'll close the floor to public discussion and bring
administrative item 00-46.00 back to the full Commission for motions, considerations,
comments, discussion.
Ward: I'm going to ask the City Attorney about if we limit to three, is that some kind of
discrimination? First of all, I know if somebody wants to buy a home in a residential
area and use it for a rental, which has happened many times in this college town, that's
how neighborhoods start changing. I see that our Subcommittee recommended four
people. Is this too discriminatory?
Williams: Since this would be a continuation of a current ordinance, I don't think would be more
of a problem than it's been in the past. I don't think we've been challenged in the past
over that.
Ward: I think the only place we need to use this would be strictly in R-1 zoning only.
Williams: I would
like
to say that might make some sense.
Tim, you were talking earlier about the
fact that
you
were going to look at that also?
Conklin: Yes.
0
Planning Commission
• April 9, 2001
Page 116
Williams: My only suggestion to the Commission might be that if we are going to try to change
this, maybe we ought to do it all at once rather than change this a little bit now and send
that up to City Council and then come back and re -change it again. It may be that we
are not ready at this point in time to do the finished product:.
Ward: The real problem I see with all this stuff is that if you rent a house to three boys, the next
thing you know, if you are in the rental business, there is a girlfriend moves in for a few
weeks or weekends and things like that. Another thing that I noticed, parking is a
problem at a lot of these places, friends do come by. Up on Mount Sequoyah where I
live, everybody has parties on weekends and there is 8, 10 or 15 cars. I don't think
that's a thing we need to concern ourselves too much with as far as seeing a bunch of
cars parked somewhere. I just think there is no real perfect solution to this problem.
You can't legislate people from buying property, that's discrimination. I'm not sure that
there is a really is a real solution to our problem. I understand. I live up on Mount
Sequoyah and there are lots of rental properties up there and a lot of nice homes.
Shackelford: Just to expand a little on what Commissioner Ward is saying, I agree in theory with
• what we are trying to accomplish with this ordinance but I'm very much struggling with
the fact that we have apartments and duplexes that are built four bedrooms for four
unrelated occupants. I'm afraid that if we approve this as it's presented that we are
going to be put in a position where we are either making a lot of conditional use
acceptances to this or we'll just kind of be picking where we are applying the law and
where we are ignoring the law. I don't think that's fair to anybody. As much as I hate
to, I'm going to have to say that I won't support it stated as three people instead of four
unless it's tied to zoning. I think that's perfect for R-1. I think other zonings to where
there is specific rental properties already built that are for four unrelated people that we
are going to have to address that. I don't think I've ever voted for a motion to table in
my life but I'm not so sure we are exactly where we want to be with this ordinance
before we send it to City Council. That's my thoughts on the issue at this time.
MOTION:
Marr: I was going to actually move to table based on the comments. I support the three
particularly in an R -I zoning. I'm not comfortable having three across the board. I
agree with our City Attorney that we should address it all at one time. I know no one
wants to probably deal with the thought of revisiting this again, particularly when it's
11:25 at night, at a future meeting but I think it's the most appropriate thing to do. I'll
move to table administrative item 00-46.00.
0
Planning Commission
is
April 9, 2001
Page 117
Estes: There is a motion to table by Commissioner Marr, is there a second?
Ward: Second.
Estes: Second by Commissioner Ward, is there any discussion?
Conklin: Would it be appropriate to vote on the issue of limiting to three for single family, R-1
zoning district so we can have direction of staff to bring that proposal forward? Not to
send it to the City Council but, since we've discussed it this evening whether or not it's
three or four, to vote on that to keep it as is or change it.
Estes: I have some questions but I think first Commissioner Hoffman has something.
Hoffman: I think that's a good idea to give direction because I'm a rental property owner but I do
find the same things that Commissioner Ward had said. I think there are more
responsible landlords out there than not but the ones that are not really stand out and
we know where they are and we know who they are. I would like to send a message
• to those people that it really does decrease property values, it really does create an
eyesore for Fayetteville that can be easily avoided if we limit the number of people and
get rid of these loopholes. Then we can certainly sort out, at another time, what to do
with the apartment complexes that have the adequate parking, we have non -conforming
duplexes that don't have adequate parking but maybe they are already in a really dense
district that we can deal with that in some manner. When I first sat in on the
Subcommittee, I was thinking it needs to be four but I've been considering it since then
and had some discussion about it with various people and I do believe that in a single
family neighborhood, and we are really talking now a lot about preserving the character
and integrity of our neighborhoods, that if we keep it to three it sends a message.
Maybe somebody slips four in under the door but if they act. as responsible citizens then
they won't have a problem as in the senior citizen example. If we could make some
kind of suggestion or give a direction for staff or take a consensus before we table it.
Can we table it with a show of hands or something like that'?
Estes: Mr. Conklin, a couple of questions. There was a Subcommittee appointed, which of
course I chaired, the seminal issue that brought this all about was the domestic servant
clause in the existing definition of family, is that right?
Conklin: That is correct. That's all I ever wanted to remove was just that last sentence in the
ordinance that talked about domestic servants.
u
Planning Commission
• April 9, 2001
Page 118
Estes: Then we got off on the discussion of three or four or six or eight and, help me out, the
definition of family is seminal to our zoning code because it is in our zoning code that we
talk about single family, multi -family, R-1, R-2 and we use that definition to define R-1
or to define R-2, is that a correct statement?
Conklin: I use that definition when we go out investigate a complaint to determine whether or not
there are more than three unrelated people within a dwelling unit.
Estes: Is not our zoning code based upon, for example R-1 is single family, R-2 is more than
single family, so we must have a definition of family for our zoning code to function, is
that fair?
Conklin: That is correct.
Estes: All we are doing is that, you asked that we look at the definition of family and consider
removing the domestic servant clause?
• Conklin: That is correct.
Estes: We did that. Now we have a motion to table which I will oppose because I think we
need to vote the ordinance up or down and send it on. There is not some grand
scheme here of ordinance revision, it is just simply that we needed to take a look at the
definition of family and it was suggested that we remove domestic servant. Then we got
into this discussion of whether it's three or four or whatever and here we are tonight
with a motion to table what I guess is about four months of' work for what purpose I
don't understand. Maybe it's just the late hour and I'm not capable of grasping the
nuance of it all.
Marr: I asked the question during this discussion whether the definition of family was used for
R-1 zoning or all residential zonings. I don't believe, nor can I support, the definition of
family being three in an R-2 requirement when I know that there are multiple properties
in Fayetteville that have four bedrooms, that if I am a landlord or a building owner, it is
my goal from a profitability standpoint to have maximum rental out of that property.
Therefore, as I said in my table motion, I support three. I think the feedback we've
heard tonight is that it should be three in R-1 zoning. I guess my questions would be,
instead of staying here until midnight, would have been was there a rationale that the
Committee did not address definition of a family in higher zonings? Were there
additional considerations to deal with properties that are out of compliance today? If
• we pass this, are we going to on Monday or whatever point it becomes effective, have
Planning Commission
• April 9, 2001
Page 119
100 citizens in Fayetteville calling because they've got pictures, they've got property
where more than three people are there in zoning that was built to accommodate that?
That's my rationale for tabling. I would certainly be happy to vote it down or vote for
R-1 only but I would not support leaving it the way it is today.
Conklin: I don't mind tabling the issue,
I would just
like to let the public know, who are here this
evening,
that the Commission
acted on the
issue of three or four and give staff direction.
To bring
back something more to address the R-2 or whatever...
MOTION:
Marr: I would like to withdraw my motion to table and I would like to move that we adopt a
definition of family as presented with three unrelated individuals for R-1 zoning only.
Ward: Second.
Hoffman: I can't do that because Locust has C-4 or C-3 zoning or whatever. I just want to vote
• on three or four and let them work on the different zonings.
Estes: We have a statement by Commissioner Marr that he withdraws his motion to table,
does the second accept that?
Ward: Yes.
Estes: Then Commissioner Marr makes the motion to approve the definition of a family as
recommended by staff, "No more than three unrelated persons occupying a dwelling as
a single housekeeping unit in an R-1 district." That motion has been seconded by
Commissioner Ward. Is there any discussion?
Bunch: I realize that it is late and we have had various changes in the form of motions and
discussions. My concern is that we are going to, in our haste to get out of here because
it is late, that we are going to do ourselves a disservice. I believe that responsibly we
can respond to the community and the community can know that we are addressing this
issue without having to jump through hoops right now to make a vote on three or four.
We have had information that has been presented to us at the last agenda session, at the
request of Commissioner Allen, from our last meeting of the Subcommittee, which
opens up considerable other alternatives. We can look at possibly four if it's owner
• occupied. We've had things presented tonight of ideas about other zonings. My
•
•
Planning Commission
April 9, 2001
Page 120
concern here is that in our haste to solve one problem we are going to create many
more. The idea of saying "Yes, we can live with three. Let's just jump up and do three
and wink at all the other violations of the three", puts us in a position of selectively
enforcing the law and I am just not comfortable with that. I think that if we spend a little
more time on it and come up with something that is pragmatic and realistic that we will
be better served rather than in a haste come up with something that we know is
improper and we wind up enforcing selectively and playing favorites. I don't think
that's a position that we, as a City, need to be in where we can be readily accused and
hear "How come I have to move and these people over here don't have to move?" I
think we are putting ourselves in a real strange position to do it that way.
Hoffman: I have a friendly amendment to this motion, can we say not: more than three in a house
used as a single family dwelling or zoned R-1? That takes care of all the people on
Locust.
Conklin: In an effort to move forward, I think I understand the intent of Don Marr's motion and
we'll bring forward an ordinance definition to the next Planning Commission that talks
about up to three unrelated people in a single family zoning district and consider up to
four in multi -family zoning districts. I don't know how you want to word your motion.
Basically I was trying to clarify, on this issue of a single family zoning district, how many
unrelated people. I would be more than happy to bring that forward to the next
Commission meeting.
Marr: Are we in fact hearing to table the motion until we come back with those two?
Conklin: I just want a clarification. I was trying to clarify, for the public, a consensus of the
Commission of what you felt should it change from three to four so we don't have to go
through the public hearing portion again and debate whether or not it was three or four.
Marr: That was my intent.
Bunch: Seeing that Mr. Conklin has requested this, does it require a formal motion or does it
require just a consensus and a request of staff to bring these things forward? The
question I have is the "as presented" what is the next step as presented in our packets?
Is this something that goes back to staff and then comes back to this Commission or is
it as just described by Mr. Conklin that it's something that goes back to staff and is
represented to this Commission for further consideration?
0
Estes: At the present we have a motion on the floor with a second. That motion will stay
Planning Commission
• April 9, 2001
Page 121
unless amended or withdrawn. Is there any further discussion on the motion?
Bunch: I don't feel that the motion describes what Mr. Conklin has requested and that's what
our whole purpose is here, to gain some relief for the Planning Department in
addressing these issues.
Hoffman: It would get a
consensus
and
it could always be changed because it's just an
administrative
item. It's
not
into ordinance yet.
Williams: My experience has been, after you've had a six hour meeting and it's 11:30 at night,
you don't do very good drafting work. I would rather see a show of hands three or
four to Mr. Conklin and let him and me, in the next couple of weeks, do some drafting
work when we can think.
Estes: We have
a motion
and a second on the floor and we need to do something
dispositive
with that
motion.
• Marr Mr. Chair, I will remove my motion.
Ward: Reluctantly I'll agree.
Estes: Mr. Conklin has requested a sense of the Commission regarding three or four. Let's
accommodate him in that request. All who would favor three?
Ward: In what zone? I'm not voting unless it's a zone.
Estes: Mr. Conklin, how do you want the sense of the Commission?
Conklin: In a single family zoning district.
Estes: R-1?
Conklin: There is more than one. Yes, single family zoning district.
Estes: What is the sense of the Commission for three unrelated persons in a single family
zoning district, signify by raising your right hand.
Shackelford: I'm sorry to do this. Tim, is that the current ordinance now?
U
Planning Commission
• April 9, 2001
Page 122
Conklin: Yes.
Estes: Any other discussion? Signify by raising your right hand if you favor three in a single
family zoning district. Those who are in favor of four or more in a single family zoning
district, signify by raising your left hand or your right hand. Does that accomplish what
you wanted to accomplish?
Conklin: Yes. I'll get with Mr. Kit Williams and we'll draft an ordinance.
•
0
Planning Commission
• April 9, 2001
Page 123
2001 Subdivision Committee appointment
Estes: There is one remaining item of business before the Commission and that is the
appointment of the 2001 Subdivision Committee. Lee Ward, Don Bunch and Sharon
Hoover have graciously agreed to serve and Lee Ward has graciously accepted
appointment as Chair of the Subdivision Committee. Is there any other further business
before the Commission?
Conklin: No there isn't. I would like to welcome Alice Bishop, thank you.
Estes: We'll stand adjourned until the next regularly called meeting.
•
L�
4-9-01
PC Mtg
CU O1-5.00
Trumbo, pp 485
CU 01-7.00
O'Reilly
Automotive, pp
484
CU O1-6.00
Bandy, pp 484
MOTION
Marr
Marr
Shackelford
SECOND
Bunch
Shackelford
Allen
D. Bunch
Y
Y
y
B. Estes
Y
Y
N
L. Hoffman
Y
Y
N
S. Hoover
Y
Y
Y
N. Allen
Y
Y
Y
D. Marr
Y
Y
N
A. Bishop
Y
Y
Y
Shackelford
Y
Y
Y
L. Ward
Y
Y
Y"
ACTION
Approved
Approved
Approved
VOTE
9-0-0
9-0-0
6-3-0
Ll
E
0
4-9-01
PC Mtg
RZ O1-7.00
Mansfield, pp 444
AD O1-1.00
Amendment to
Chapter 171
Section
171. 13(B)(6) and
Chapter 172
Section
172.01(C)(5)(b)(1)
(a -c) of UDO
AD O1-8.00
Sidewalk Escrow
Fund
MOTION
Marr
Hoffman
Hoffman
SECOND
Hoffman
Shackelford
Ward
D. Bunch
Y
Y
Y
B. Estes
Y .
Y
1'
L. Hoffman
Y
Y
1'
S. Hoover
Y
N
1'
N. Allen
Y
Y
17
D. Marr
Y
N
Y
A. Bishop
Y
Y
Y
Shackelford
Y
Y
Y
L. Ward
Y
Y
Y
ACTION
Approved
Approved
Approved
VOTE
9-0-0
7-2-0
9-0-0
11
0
4-9-01
PC Mtg
CU 01-1.00
Hanna's Candle
Company, pp 643
pertaining to the
wood fired boiler
LSD O1-6.00
Hanna, pp 643
CU 01-1.00
Hanna's Candle
Company, pp 643
pertaining to
manufacturing
candles
motion to table
motion to table
MOTION
Hoffman
Hoffman
Hoffman
SECOND
Ward
Allen
Hoover
D. Bunch
Y
Y
Y
B. Estes
abstain
abstain
abstain
L. Hoffman
Y
Y
Y
S. Hoover
N
Y
Y
N. Allen
Y
Y
Y
D. Marr
abstain
abstain
abstain
A. Bishop
Y
Y
N
Shackelford
Y
Y
N
L. Ward
Y
Y
ACTION
Approved
Approved
Approved
VOTE
6-1-2
7-0-2
5-2-2
0
0
E
4-9-01
PC Mtg
FP 01-4.00
CMN Business
Park I1 Phase II,
pp 173 & 174
Motion to amend
"motion to remove
condition number
five" back to
include condition
number five
CU O1-4.00
Cricket
Communications,
pp 528
MOTION
Hoffman
Marr
Ward
SECOND
Shackelford
Allen
Shackelford
D. Bunch
Y
Y
N
B. Estes
Y
Y
N
L. Hoffman
Y
Y
N
S. Hoover
Y
Y
N
N. Allen
Y
Y
N
D. Marr
Y
Y
IF
A. Bishop
abstain
Y
17
Shackelford
Y
N
IF
L. Ward
Y
Y
Y
ACTION
Approved
Approved
Denied
VOTE
8-0-1
8-1-0
4-5-0
4-9-01
PC Mtg
Consent Agenda:
3-26-01 Minutes
and
AD 01-14.00
Millenium Place
removal of
condition to
require LSD's for
all lots
MOTION
SECOND
D. Bunch
Y
B. Estes
Y
L. Hoffman
Y
S. Hoover
Y
N. Allen
Y
D. Marr
ab4Rr
A. Bishop
Y
Shackelford
Y
L. Ward
Y
ACTION
Approved
VOTE
8-0-1