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HomeMy WebLinkAbout2001-08-20 Minutes• MINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on August 20, 2001, at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN ADM 01-32.00: Administrative Item Page 3 MEMBERS PRESENT MEMBERS ABSENT (Tree Preservation and Protection Ordinance) Forwarded Nancy Allen Lorel Hoffman Bob Estes Lee Ward Donald Bunch Sharon Hoover Loren Shackelford • STAFF PRESENT Tim Conklin David Whitaker Sheri Metheney Hugh Earnest Don Marr Alice Bishop STAFF ABSENT Dawn Warrick Planning Commission * 1 44y5-1- ao, a ( 1 Page 2 1 ROLL CALL Estes: Good evening and welcome to the special meeting of your Fayetteville Planning Commission for August 20, 2001. There is one item on the agenda and that is administrative item 01-32.00, the Tree Preservation and Protection Ordinance, an ordinance amending Title 15, Unified Development Ordinance of the Code of Fayetteville to provide amendments to and clarification of various provisions concerning tree preservation and protection. As an introduction, if I may begin with a brief explanation of why we are here this evening and the purpose of this meeting, it is that there is a legislative mandate that we hold this meeting. In Title 14, Chapter 56 of our Arkansas Statutes is the provision regarding municipal building and zoning regulations and planning. A part of that statute is that one of the purposes of this Commission is to prepare and transmit to the legislative body, that is the City Council, recommended ordinances implementing plans. The specific ordinance or adoption of plans, ordinances and regulations, provides that the Planning Commission shall hold a public meeting on the plans, ordinances and regulations proposed under this statute. Notice of the public hearing shall be published in a newspaper of general circulation in the city at least one time, 15 days prior to the hearing. Following the public hearing, proposed plans may be adopted and proposed ordinances and regulations may be recommended as presented or, in modified form, by a majority vote of the entire Planning Commission. Following it's adoption of plans and recommendations of ordinances and regulations, the Planning Commission shall certify adopted plans or recommended ordinances and regulations to the legislative body of the city for it's adoption. The legislative body of the city, that is the City Council, may return the plans and recommended ordinances and regulations to the Planning Commission for further study or recertification or, by a majority vote of the entire membership, may by ordinance or resolution, adopt the plans and recommended ordinances or regulations submitted by the Planning Commission. Following adoption by the legislative body, that is the City Council, the adopted plans, ordinances and regulations shall be filed in the office of the City Clerk, spread of record with the County Recorder of the counties in which territorial jurisdiction is being exercised and then shall then become law. The proposed ordinance that we have before us this evening has been presented to us after much effort and much work. I would like to take a brief moment and mention how the drafting committee was formed and then the members of the drafting committee. Letters were sent to various members of the community to seek participants to guide the revision of the ordinance. Those contacted included architects, Chamber of Commerce members, citizen groups, contractors, developers, engineers, environmentalists, lawyers, planners, professors and realtors. 25 members of the community were selected of which 15 were chosen to serve as the core group which • • • Planning Commission August 13, 2001 Page 3 met weekly and reported to the full committee monthly. This has been an ongoing process for approximately one year. Assistant City Attorney, David Whitaker served as Chairman until employed with the City and than served as Legal Assistant and drafted the ordinance. Those members of the drafting committee who participated in writing the ordinance that we have before us this evening were Audrey Lack of Miller, Boskus and Lack, Fran Alexander with The Friends of Fayetteville, John Duvall with We've Had Enough, Jim Neal with McClinton -Anchor, Matthew Bottishball with Navaho, Richard Alexander, Kirk Elsass, Andy Feinstein, Dr. Gerald Clingerman, Missy Lefler, Celia Scott-Silkwood, Beverly Milton and Jim Wilson, Tree and Landscape Advisory Committee and other members who contributed to the core group meetings included Jo Bennett with The League of Women Voters, John Harbison with the Sierra Club, Bob Hill with Nickel -Hill Group, Bill Keating and Chris Brackett with Jorgensen and Associates, and Jim Key. Before we begin the meeting this evening, Sheri would you call the roll please? ROLL CALL: Upon roll call there were 7 Commissioners present with Commissioners Marr and Bishop absent. • • Planning Commission August 13, 2001 Page 4 ADM 01-32.00 Administrative Item Tree Preservation & Protection ORDINANCE NO. Estes: AN ORDINANCE AMENDING TITLE XV: UNIFIED DEVELOPMENT ORDINANCE, OF THE CODE OF FAYETTEVILLE, TO PROVIDE AMENDMENTS TO AND CLARIFICATION OF VARIOUS PROVISIONS CONCERNING TREE PRESERVATION AND PROTECTION. A quorum is present and we will begin the special meeting of your Fayetteville Planning Commission. Let me tell you how we will proceed and what the order of business will be. First I would like to take public comment. As you come forward and address the Commission if you would state your name and give us your address. If you would please speak to that specific section of the ordinance to which you wish to comment. What that will do is allow us to go to that specific section and make appropriate notes as you speak. If you wish to make a general policy statement, would you please identify whether that general policy statement is one of a definitional issue, a procedural issue or a substantive issue. If it is something that is in the ordinance that you would like to see taken out, again refer us to that specific section. If it's something that is not in the ordinance that you would like included in the ordinance, please tell us the section where you would like to see that particular provision included. Ask questions, if I am not able to answer your questions, which in all probability I will not, we have Mrs. Kim Hesse, our Landscape Administrator with us this evening, we have Mr. Tim Conklin who is our City Planner, we have Mr. Hugh Earnest who is our Urban Development Director and we have several members of the drafting committee who participated in actually writing the ordinance that we have before that can perhaps speak to your questions. After we have heard public comment I will then close the floor to public comment and I will bring the matter back to the full Commission and we will go through section by section and discuss the comments that have been made and then once our discussion is completed, I will ask for a motion as to the entire ordinance. PUBLIC COMMENT: Estes: Israel: With that said, is there any member of the audience that wishes to provide public comment? If so, please come forward, give us your names and address and tell us that specific ordinance for which you wish -to speak. My name is Ben Israel, I live at 1501 Starr Road, Fayetteville. I am a commercial developer and would like to address several issues. I'm not sure I can give you what you are asking for as far as the particular section but I will try. First of all let me say • • • Planning Commission August 13, 2001 Page 5 that Fayetteville needs developers. I know we sometimes don't do a good job and sometimes we do a good job but Fayetteville needs developers. I just started a project on the corner of Joyce and Old Missouri Road that the taxes on that property a year ago were $800. The taxes on that property next year will be $55,000 and I think our school system can certainly use the revenue. The thing I find most disheartening about any ordinance is the inability of the staff to carry it out in a timely fashion. Fayetteville is a very difficult place to do business in as a developer. For example, on our latest project it took 89 days from the submittal of our last documentation to the City employees before we were able to get a grading permit. When you have two million dollars borrowed at 9% interest, that's about $45,000 additional cost that we would not have had had we developed in a City that had the infrastructure to support the ordinances they pass. Your people aren't sitting around on their thumbs, they just don't have enough help to enforce the current ordinances so that developers are put in a position of supplying an enormous amount of information. Then City staff, not only do they have to look at that information, they have to attend other meetings to provide similar advice to other developers. To wait 90 days from the time you submit your last detail to the City to get a permit to start grading is quite ridiculous. I encourage you, if you pass the ordinance I hope that you provide staff to evaluate the plans so that we don't wait another 90 days before we can have access to go forward. There are two or three things about the ordinance that I would like to see you change. Right now it is somewhat discriminatory. If you are going to require 20% canopy of trees on a tree lot, why not require it on every lot? A lot without trees doesn't have to have any trees other than those that are called for in the parking arrangement. I would suggest if you are in a position of requiring a 20% canopy on some lots, the person who owns a lot who has trees on it is at a disadvantage. A developer determines a price of a given piece of property by how many square feet he can build on that property. If I have to preserve 20% of the property for trees that are already existing on the property than it's worth less to me as a developer than it is if there are no trees at all. I would encourage you to say let's make it a level playing field, let's say that any lot that's developed commercially must have a 20% tree canopy. That's only fair. It's also unfair that downtown only needs a 10% tree canopy. Why is downtown any more special than any other part of the City? Is a tree less deserving downtown than one that's out in the countryside? Or the citizens of downtown Fayetteville are less likely to appreciate the fact that 20% of the ground is covered with trees. The difficulty I have as a developer is that the plans are not administered evenly. One developer is not required to leave any trees, while another developer is required to leave 20%. I think that if you had an ordinance that said every lot regardless of whether it had a tree on it to start with and it's a commercial development, should have trees on it and it should have 20% canopy. If I was a landowner in the growth area of Fayetteville, the first thing I would do is go • • • Planning Commission August 13, 2001 Page 6 clear-cut it, if I thought I wanted to sell it for retirement and wait five years and then sell it to a developer. I know I would make more money on it. But if I knew as a developer that even if it was clear-cut, I had to replace that 20% trees than I wouldn't want to do that. I think that anytime an administrator, whether it is this administrator or another administrator, has the ability to make a decision that you don't need 20% trees, you only need 17% trees, that's a mistake. If it say's 20%, it should say 20% and let's go vertical with the buildings and not horizontal. Fayetteville is a horizontal developing city, you don't see very many vertical buildings except downtown and that's crazy We would like to develop vertically but nobody will rent them. People don't want to be on the 4th flood. If we start demanding that they leave a 20% tree canopy, then let's do that and we will build vertical buildings because we will have to in order to get the return on the investment that we are looking for. I live off of the 45 Highway. There was a lot there that has some beautiful, gorgeous trees on it and now there is a convenient store on that with one scraggly little ole tree in it's place. I don't understand how they do that. As a developer I'm held to a different standard than that, I don't know why isn't held to the same standard. I've got a new development on Joyce Street apart from the other one I mentioned and they've required me to set aside 630 feet in length by 55 feet in depth that I can't even park in a car into that tree. I don't see how the next developer on a given corner can take down every tree on it and not plant anything back, it's not fair. As I said, anything that's fair, honest and non- discriminatory, I'll live with it if you tell me what it is. Fayetteville is still a hard place to develop property in. It costs about 20% more to develop property in Fayetteville than any other city we develop in. The other thing I have difficulty with is, if there is an existing tree canopy, let's say it's this one acre that I am setting aside, I can't go on that one acre and make the better trees healthier because I can't cut any trees out of it. If there is a persimmon grove in the middle of it, I can't remove the persimmon grove and put in oak trees. They won't let me cut them. The national forest burns to achieve undergrowth destruction so that healthy trees will have a chance to survive. I don't know where we are reading that no trees should be cut. The ordinance indicates that any tree already existing is better than any new tree I can plant and that's just not true. I went out on 45 Highway, we had 30 acres, we cleared of a bunch of scrub brush and we planted maples and we planted everything else you could plant that's going to be a beautiful tree someday. A persimmon tree is going to be a persimmon tree until it falls over. That's what it is and it's not going to be a beautiful tree. I'm sure it has it's advantage but I don't like them. I can't choose the trees I want to plant. You are telling me that here's a list you can choose from and if you plant one that's not on this list, we are not going to let you count it towards your canopy. I don't like that. It also states that after a tree is preserved, in order for me to remove that tree, I've got to come before the City Council and convince the City Council that is in the best interests • • • Planning Commission August 13, 2001 Page 7 of the citizens of Fayetteville to remove that tree. How in the world could I do that? How can get before the City Council and convince them that it's in the best interest of the City of Fayetteville? If it's in the best interest of the tree, I can understand that. Do we have a vote? Do we take a public opinion poll to determine how it's in the best interest of the citizens of Fayetteville? That's on page 13 "such damage, destruction, transplantation or removal is in the best interest of the residents of Fayetteville". That's just too far reaching for me. Estes: What subsection is that? Israel: It's exhibit "A", Technical Corrections for Planning Commission... Estes: I'm on page 13. Israel: It's under L1. I received from the Administrator and I like her, I have nothing against her, she is doing a great job and I believe in what she's doing. It's just I don't believe in the manner in which we are doing it. It's a good opportunity to work together but I don't get an opportunity to work together, I get directives. I says that if I damage a root of a tree, you know when you got bulldozers and men from everywhere in the country bringing in materials you are going to damage a root of a tree. Somehow I've got to cover that tree root with 4 inches of mulch and water it every day. This is a construction site, we are doing everything in the world we can we can to protect it. If that tree is protected were outside the dripline has a root that extends another 20 feet over here, I don't know how to do that. I got a letter the other day that if I was to prune a tree that I had to use a special sharpened something and that if I used one that was dull, I wonder if I would be fined. I don't mean to be facetious, it's just that we don't have to have that much instruction. Give me 20% tree canopy and say protect, preserve, replant or replace it and we'll do that. Just don't let somebody else not do that and get away with it but you are doing that. Maybe you are not doing that but somebody is doing that. That's about all I have to say. I have one other thing. You are asking me to ensure that tree will live 3 years. I've got to put up money or a bond that says that tree will live for 3 years. If I know that I have to maintain 20% canopy, would I purposely destroy a tree or not take care of a tree? That's an expense to a developer to have to guarantee the life of a tree for three years or whoever the assigned of the developer is, it travels with the property. I don't think that's necessary. If you tell me I have to maintain 20% canopy, I'm going to do the best I can not to have to spend a lot of money two or three times to replace trees. Doesn't that make more sense than you tying up my money for 3 years, me having to charge the tenant more, I'm already having to charge them more because it costs more here. I just ask that you Planning Commission August 13, 2001 Page 8 use common sense and not get so carried away that we lose sight of the fact that this is still America and we still have individual rights and part of our individual rights are that pursuit of life, liberty and the pursuit of happiness. I'm not real happy right now but I will do whatever we have to do to develop. I like Fayetteville, been here 35 years and I want to stay here. Thank you. Estes: Is there any other member of the audience that would like to provide public comment on the ordinance amending Title 15? COMMISSION DISCUSSION: Estes: • Seeing none, I will bring it back to the Commission for discussion and motions. Commissioners, let's begin working off of the technical corrections draft dated August 17, 2001? Let's begin with section 1, the definitional section. Is there any discussion regarding any item of section 1? Hoffman: I do have one suggestion and I have just about 3 or 4 throughout the ordinance. I have one for the definition section. Before I start on that I just want to say thanks to the Committee because I realize that it was made of all segments of the community, as you stated before, and a lot of work has gone into it. It's a difficult process once a lightening rod or seminole issue like Kohl's development began this, to go through and put together an ordinance that's as far reaching as this and it's implications. With that being said, I'll throw in my two cents worth on some of the text. Under the definition of significant tree, I would like to add, I'll pass my copy of this down for the record later so we don't have to worry about typing everything. Under the definition of significant tree at the end you've got "endangered species" add ", or due to it's location on a site designated as historic by local, state or federal authority". I'm adding historic sites into the definition of significant trees. I'm doing this because I can think of other locations where treaties have been signed under trees that are given historic markers, I'm not aware of any particular sites like that in Fayetteville but there may be that I'm not aware of. There are tree groves in the confederate cemetery that if someone wanted to add a structure one day, those trees shall be considered because of their location on a historic site. That's all. Estes: Any other discussion regarding section one? Seeing none, we'll go to section 155.05, Appeals From Planning Commission Decisions. Any discussion? Seeing none, we'll to go section 156.03, Development, Consideration by the Planning Commission. Any discussion? Seeing none, we'll go to the tree and preservation ordinance section 167.01, Purpose, which includes both Objectives and Principals. Any discussion? Planning Commission August 13, 2001 Page 9 Hoffman: Under objectives A7 "To stabilize soil and prevent erosion" add ", with emphasis on maintaining tree canopy on hillsides as defined in canopied slopes under the definition section". I like the format that you used following the question and answer session and I would just like to throw them in the mix. Estes: Bunch: Hesse: Any other discussion? One of the things that appears to be missing is stabilization of riparian areas. It does say stream beds, "preserve river and stream beds and present sedimentation". Possibly under item 7, in addition to what Commissioner Hoffman suggested, on stabilizing soil and preventing erosion, add a comment about riparian areas. It just se ms that is one item that appears to have been overlooked. I would think we could add that to either number 7 or number 9, "Preserve river and stream beds and banks and riparian buffers to prevent sedimentation". The idea was basically that objective. Estes: Commissioner Bunch do you have a comment regarding whether you would like to see that included in item A7 or item A9? Bunch: For clarity it would probably be better to have it in item 9. Estes: Any other discussion regarding section 167.01? Seeing none, section 167.02, City of Fayetteville Tree Preservation, Protection, and Landscape Manual, any discussion? Seeing none, we will go to section 167.03, Tree Registry, any comments or discussion? Allen: I wondered if there needed to be a clarification under A, the tree registry that this registration goes with the landowner and not with the property? Hesse: I tried to cover that in B. Did you see the underlined statement in B, "Registration of trees shall be voluntary and may be done by the owner(s) of the property on which the tree is located. I guess it doesn't really discuss into the future as this property is sold. Whitaker: I think it would probably be in order to put some sort of disclaimer in it, if your reading of it raises that ambiguity in your mind and it's a fear that it would for others as well. I don't think there would be any problem adding some sort of disclaimer there to that affect. Estes: Before we go to that, can we have more definition where that should be included and Planning Commission August 13, 2001 Page 10 how should the language read? Whitaker: I'm thinking probably almost immediately after the corrections in B which Mrs. Hesse just read and something to the affect that "registration shall affect only the owner who sought registration and shall not run with the land". I can clean this up a bit. Something to that affect. Hoffman: "Shall not run with the land unless designated by the seller." They might do that. Whitaker: Yes, they certainly could voluntary put a trust on that. Yes, I think something like that would be appropriate. Estes: Any other discussion regarding this section? Allen: Hesse: I also wondered, how it would be determined whether or not a tree would be registered? Supposing I have a magnolia tree, I can dust register it or does someone have to come look at the tree and determine that it's a significant tree or it fits into some category or is it just at the owner's discretion? It's basically at the owner's discretion. If the tree or group of trees that are documented that are of uncommon or endangered species regardless of the size, that are of extraordinary value due to their age, size or type. Really although we were going along with the significant tree definition, we would allow some flexibility to that. The idea is, this is a tool to raise awareness and pride of homeowner's trees. We didn't want to eliminate somebody who really wanted to put a tree on the registry that we somehow had to come up with a mechanism the owner, in the future on the website or something, they could actually be able to view theses trees. We would like to try to do something to encourage that kind of pride. I didn't want to eliminate the ability to put a tree on the registry if for that homeowner it meant something to them. • Allen: Conceivably, if a person was a real conservationist, they could register every tree on their property? Whitaker: They certainly could but I don't know, other than the fact that they could brag to all of their neighbors that all their trees are registered , I don't think it would have any real affect. Allen: I just had some question about it. Planning Commission August 13, 2001 Page 11 Whitaker: I want to reassure you that one of the changes that was made was trying to pull the registration process away from the development regulation process so that the only real affect would be that the person we would have or the registry of the trees and people would develop some pride in the trees on their land. Theoretically someone could, if they wanted to, register every tree on their land, yes. Allen: Thank you. Estes: Any other discussion regarding section 167.03? Seeing none, section 167.04, Tree Preservation and Protection During Development. Any discussion or comments? Allen: Estes: Hesse: Sorry to keep asking questions but I wondered if there might be something added since we have had a situation since I have been on the Planning Commission where there were some discussion as to whether something was a Targe scale development, whether or not it was an acre or not and the trees were cut. Whether there could be something included that would make the developer or the City need to measure the area. I don't know quite how to put this. I just don't want to see trees cut in an area until we determine whether or not that is over or under an acre. The application of paragraph 167.04 provides that this section applies to proposed subdivisions, large scale developments and developments required by other chapters to go through the City's permitting process. By definition this section applies to proposed subdivisions, large scale developments and other developments required by other chapters of the UDO to go through the City's permitting process. On that specific type of situation, most of the time grading permits are always required which is why we put a grading permit. They will fall into this ordinance if they require a grading permit. It used to be for an acre or more but now that is no longer there. It's basically all grading permits. Than also what is included are multi -family from three units and up and then all non-residential buildings. If they had to get a building permit, other than single family and duplex, it would fall under the ordinance. It still doesn't keep them from cutting trees prior to building permit. Allen: Thank you. Estes: If required to go through the City's permitting process than this subsection applies, is that correct? Hesse: To everything that is listed in here. I'm sure there are processes through permitting that Planning Commission 0'0 ' Page 12 we do not see. Conklin: On a duplex, you wouldn't see those unless it's on a slope or floodplain. Estes: Any further discussion regarding this section? Hoover: On section I67.04(C), Canopy Area, I was noticing that we've got in zoning designation, a C-4 for downtown and that's a 10% canopy and in our administration and management draft they don't show a C-4 on here. How much C-4 is there downtown? Conklin: It's primarily the square and surrounding streets around the square, it's not very much Hoover: What is downtown district as far as zoning? Conklin: If you are talking about the square and surrounding buildings, that's zoned C-4. Dickson Street is primarily zoned C-3, in between the Square and Dickson Street we have everything from R-0 to C-2, R-2 multi -family and many different zoning districts. Hoover: Do we need to show the C-4 on this? There is not a C-4 listed in here, 1 was just curious. Hesse: That is a draft, I'll make sure it's included. Hoover: I have a question on C-4 and 10% in the downtown area. For instance if we have a lot down here and we are trying to build zero lot lines then what do we do when we have trees that are actually going to be in tree wells out on the sidewalk. Does the developer go for a variance for this? Hesse: I think that's a good point to bring up. In the most situations on Dickson Street, if you went through this criteria we wouldn't be saving any trees. That was from the original ordinance. Whitaker: Yes. I actually have it in the latest draft. Hesse: Didn't we discuss the change in the percentages so we didn't go through it individually. That's a very good point because of the density downtown area. Hoover: There wasn't any discussion during all the meetings about the difference? I see the • • • Planning Commission August 13, 2001 Page 13 downtown area from Dickson to Archibald Yale and this whole area is being different than developing out on 45 and 260, especially if we are encouraging higher density. Don't we have smaller setbacks? Conklin: Yes, in C-4 setbacks are up against the sidewalk. Hoover: It would be impossible to do any canopy. Conklin: Depending on the lot size. Typically it would be very difficult to preserve canopy unless you have a large enough lot that maybe back behind the building save a few trees. Hoover: I don't think that would be what we are wanting to encourage. I don't have any language or anything, I'm just bringing that up as a question. I don't know how to address it. I don't know if other cities tree ordinances separate the downtown area from other areas? Hesse: A majority that we reviewed didn't go by percentage, it's by zone. Those that did definitely did define them but I didn't really point out or look for that high density commercial. 1 do agree. Estes: Any other discussion? Ward: You are talking about 10% on basically zero lot lines and buildings that shouldn't even be in there. Hoover: On C-4 but also in our area we have lots of C-3 which is 15%. It would be like Dickson Street. Hoffman: I think there is other wording in the ordinance like technically and feasible or something like that that the Landscape Administrator makes that determination and makes the recommendation to the Planning Commission. Hesse: In the criteria, basically if your building footprint fills the site then I wouldn't recommend making them preserve a tree. It's actually section B of the same subsection. Hoffman: We could look in the future at taking it out or something. If this ordinance is eventually passed it's going to go through some evolution of it's own. Things are going to be dropped and changed as we go along and start implementing various things. 1 would like to incorporate Dr. Israel's request that we look at an equal playing field for all lots. • Planning Commission August 13, 2001 Page 14 I'm sure the committee had talked about that and if you have a bare lot, if it's worth more or less and should we require the 20% of it be planted? I am concerned and, I'm not sure where you came up with the figure of 20% more, development cost in Fayetteville with impact fees coming in in Bentonville right now. I would want, before this goes forward to City Council to investigate and see if that has been discussed in any of the committee meetings about the completely bare lots. Whitaker: I can tell you it definitely was discussed. The subcommittee spent a good deal of time on the subject at one point during it's career My impression of having watched discussions and participated in numerous ones until late March. There was a sense that might be going too far. We had never previously had what we referred to as an A4 station requirement. Certainly I think that's being a policy question is certainly something within your power to adopt and recommend to the Council. - Hoffman: What you said is just my feeling. We are talking about a far reaching ordinance and to make it too overbearing at one time seems to me to be putting more pressure on the development community than I would prefer to at this time. • Whitaker: That was my impression of the subcommittees sentiment as well. Better to make progress than to overreach. • Hoover: I have a couple more questions on the section on prior tree removal I frankly didn't think that that was severe enough. Is this different than what we had before? Hesse: What we used to have is replacement which is now mitigation or off-site alternatives. Those are a lot stricter. To have to replace your canopy by your zone plus 10% and has to all be done on site... Hoover: I'm talking about the prior tree removal. You are saying if it was removed without... Hesse: Basically. They have to mitigate on site for what's removed. If it where a 20% requirement, they would have to mitigate 30%. It would all have to be on site. If they would have to provide the amount of area for those trees to mature which will limit any chance for the size of the property they have to develop on. By removing those trees suddenly they are limited, versus 20%, they are limited to 70% of the site. Hoover: Was there any discussion as far as, this probably wouldn't be very popular, I'm assuming we took out the option of paying a fee for the tree removal? Was there any discussion of maybe a delay of being eligible to apply for a permit if you did tree Planning Commission August 13, 2001 Page 15 removal without a tree preservation plan or any permit? Whitaker: Not specifically, I don't believe. Hesse: I don't remember discussing it. Hoover: I was trying to think of what would be a significant reprimand for not going through the proper procedures. Hesse: I think that it is a little bit presumptuous to assume they would only be able to utilize 70% of their land. The canopy would have to be replaced on that land through mitigation measures. Hoover: I'm thinking of a particular one we have that's been come through Planning Commission lately. That doesn't seem to be enough incentive. To me, a time delay would be incentive for a developer not to do that or for anyone not to do that. Estes: Hesse: Commissioners, with regard to subsection E, Tree Preservation Priorities, we've been provided with a memo from Mrs. Hesse that contains suggested additions and she speaks to section 167.04(E), Preservation Priorities. Mrs. Hesse, would you like to comment on your suggestion change to this particular subsection? Basically, versus using the language undesirable, we would change that to less desirable. Mainly because most of the trees that are listed there as undesirable, they all have benefits to them. They all provide some sort of function on the land. They considered undesirable in an urban setting where maybe they have a lot of pedestrian use underneath them or cars are parked near them or that sort of situation. In every case they may not be really undesirable, they may be utilized for their canopy if they are in a location that works well with the development where they possibly don't have a sidewalk next to the tree, or parking next to the tree. Also, say you have a willow in there, the willow may function to stabilize the bank of the stream. I want to point out the fact that even though they are listed as undesirable, if they are functioning as a high priority, we will view them as that. If they are holding up a stream bank per se, or if they are in the floodway they would be considered more desirable. I really was uncomfortable with the use of the word undesirable. Throughout that section we talk about the preservation of high and mid level priority trees and we do not talk about the preservation of the low level trees. Like I said, in some situations that that's your only canopy, if it works well on the site we would want that canopy protect and we do require that it be mitigated if you have to remove it all. It is of value I just prefer we • • • Planning Commission August 13, 2001 Page 16 use the word canopy in those situations where we are talking about protection of high and mid level. The canopy would include all canopy that was being preserved. That we use the word less desirable versus undesirable. Estes: What is the numbered paragraph where you are suggesting the undesirable and less desirable language? Hesse: Actually it's utilized in table 2 on page 6. Estes: In table 2, column 3, undesirable you would like to see changed to less desirable? Hesse: Yes. Estes: Your second revision canopy versus the high and mid level priority trees, where would that language change be made? Hesse: On page 5 under E-1, the bottom of that paragraph. Estes: Paragraph E-1, last sentence, ..."routed wherever possible to avoid high and mid level priority trees", and how would you like that changed? Hesse: "Such utilities shall be routed wherever possible to avoid canopy." Estes: Any other changes? Hesse: On page 6 under F, paragraph one, again the last sentence. "Trees in the utility easements shall not be counted towards percent minimum canopy requirement, and such utilities shall be routed to avoid canopy." Estes: Hesse: Estes: Hesse: Any other changes? On page 9, paragraph 4, Analysis Report, "The applicant shall submit an analysis report detailing the design approaches used to minimize damage to or removal of canopy that were considered in arriving at the proposed design." Any other suggested changes? No sir. • • Planning Commission August 13, 2001 Page 17 Estes: Commissioners any other discussion regarding section 167.04, Tree Preservation and Protection during development? Hoover: I have one other question for Kim. Was there any discussion about civic trees, that a canopy that's along the street edge gets any more credit than a canopy in the rear as a buffer? Or, was there any discussion about is all canopy equal on the site or do we see one being more desirable than another if possible? Hesse: That's basically it's preservation priorities, identify more valuable trees on the site based on the function. Actually we started out looking at more environmental issues like canopy slopes, floodway, riparian buffers and we also put in the large significant trees as being high priority. A second level priority would include the use buffers and we define those in the definitions. I don't know if we discussed them along the right-of- way but in our discussions that was kind of part of that, buffering between land uses as well as between vehicular and pedestrian. We may need to further design that. Hoover: I see under use buffer incompatible land uses, unwanted light or noise. I guess I would be interested if you could include in the public realm what you are going to see as being pointed out. Do you know what I mean? In my viewpoint, I would rather see if they have to do tree canopy in the front of the building rather than in the back that maybe has 300 feet before it gets to the next lot. Conklin: That issue does come up about where it's more desirable to preserve tree canopy and where we view trees from the public realm, the civic space or from our streets. I don't think it's in the ordinance but I do agree with you that we do want to try to preserve trees that the public will be able to enjoy from our streets. Hoover: Even if it's replacement canopy, I would prefer to see it out in the front more so. I've noticed on some things that have come through Planning Commission will be like 14 new trees in the rear which 4 would have taken care of screening to the next neighbor but it would have been nice to have more than 2 trees up front. Whitaker: Right-of-ways and public grounds are addressed in 167.06. Conklin: I think what Commissioner Hoover is suggesting is, should we place a higher priority on trees that you will be able to see in a development to be up front versus back behind the building? • Whitaker: On private land as opposed to city right-of-way. • Planning Commission August 13, 2001 Page 18 Conklin: Not on city right-of-way, on the development site, should we have a priority where trees that you preserve, should there be a higher priority for those trees that you can view from public space versus back behind the building. Hoover: Possibly as an incentive if you put larger trees in that public realm than you don't need as many. Some kind of incentive. I don't want to make it even harder, I would like it to be an either/or kind of thing so there is a trade-off there. Hesse: I see a couple of ways we could incorporate that into use buffers between pedestrian use and vehicle use. We can incorporate that into that definition. Oftentimes; just through my experiences, it's sometimes more difficult to preserve them along there but it doesn't mean it's impossible. If it's a commercial development the Commercial Design Standards require the trees along the right-of-way every 30 feet. One thing we have done, when they do mitigate on site, obviously we are looking for a space where they have room for the trees to grow. Oftentimes you find that setback allows for that room and I have a feeling we will find a lot of mitigation going in that area in the front setback especially because there is more space. Hoover: What about when you mentioned the utility easement? Are we allowed now to plant trees in the utility easement? I'm thinking again along in the front where there is often utilities. Hesse: We have continued to plant in the utility easements. It's the preservation in the utility easement that we don't count as preservation. We have no control over the utilities, they come in and dig out. That's also true for those that have been planted. We have been planting in utility easements and I haven't seen it as being a major problem. Hoover: They are not going to get any credit for their canopy in the utility easement, or are they? Hesse: Not for their preservation. They do get credit for what they plant in Commercial Design Standards, they can plant those in the utility easement. They would not count that as replacement in the utility easements, you've got a point there. Hoover: I don't know, is that a good or bad thing? I'm seeing a lot of trees are being setback 50 or 60 feet from the road which is not helping shade the road or sidewalk at all. I am just wondering how to get to that point? Hesse: We have a couple of issues to deal with as far as water and sewer as well. The water • and sewer Superintendent feels strongly about the repairs that has to occur in that area • • • Planning Commission August 13, 2001 Page 19 Estes: and they prefer that we keep it at a minimum 6 to 8 feet from that line. Sometimes that will pull us back. There is a lot of situations that cause us to pull it back, sight distance from the driveways. I can see where aesthetically and also functionally we have benefits by putting the trees near the streets, it seems like we do have a lot of obstacles. I don't know if there is a good answer for that. There has been provided a written comment to us from Ms. Colene Gaston and copies of her comments have been distributed to you and I would like to pass the original to Sheri to be made a permanent part of the record. With regard to those comments, in section 167.04A, that change has been made in the technical correction draft that we have and that section now reads "Canopy to be preserved shall be noted on the final plat and shall be protected as set forth in section 167.04L below." The comment provided as to section 167.04 F.2.b and let me give you an opportunity to go to that, Preservation Plan for Infrastructure Only, the comment that Ms. Gaston has provided is "This second option for a preservation plan (for infrastructure only) should also include the mandatory filing of a "Tree Protection Easement or other recorded device, which provides a permanent record of the protection afforded under this chapter." Any discussion? In section 167.04 I, which is titled Request for On-site Mitigation, Ms. Gaston is "I believe that the test for allowing on-site mitigation should be clarified to provide that the applicant must demonstrate to the Landscape Administrator's satisfaction that a site's physical or spacial constraints prevent any development of the property that would preserve the Percent Minimum Canopy." Any discussion? As to section 167.04 J, Request for Off-site Alternatives, at the bottom of page 10 of your technical correction draft, in column 2. The comment made is "I recommend that this option for off-site alternatives also require demonstration that the property would not in any way be developed and also meet the Percent Minimum Canopy." Any discussion? In 167.04 L.3, which is found on page 13 in the left hand column, the comment is "This provision regarding continuing preservation and protection should include the same language as recommended above for UDO 167.04F.2.a and 167.04F.2.b that would require the filing of a Tree Protection Easement or other recorded device." Any comment or discussion? Is there any other comment or discussion regarding section 167.04? Shackelford: On the site analysis plan, which I believe is somewhat of a new document trying to combine other things, I67.04H subset 1, Site Analysis Plan, page 7. My concern is, if this does not apply to LSD only then it would apply to the individual developer who was wanting to build a triplex on a so zoned piece of property. If that is the case, I assume it is the applicant's responsibility to complete this plan at his cost. My concern is that as a developer trying to build a piece of property, I'm going to have to do a plan • • • Planning Commission August 13, 2001 Page 20 Estes: Hesse: Whitaker: Shackelford: Hoffman: Whitaker: Estes: Hoffman: Conklin: showing the approximate age, health and size of every tree on the lot, a plan including all natural features including features beyond 100 feet beyond the property line, a plan showing the topography highlighting slopes 15% or greater and I'm going to have to identify all the soil on the property according to soil classification system. My concern is that if this is held outside the LSD on just developments that are not excluded by the overall ordinance, it's going to be a requirement that the developer on smaller scale may not have the professionalism to do. My concern is who's going to do this type of study and at what cost is it going to add to the developer on that project? Mrs. Hesse, would you comment and before you do, let me sort of add a little footnote to that. We have the abbreviated tree preservation plan which is in subpart 3, is that what we are talking about, subsection H, Submittal of Plans? Yes, for abbreviated tree preservation plans, those are the required of building permits, grading permits and parking lot permits. Anything that does not go through the full review of this Commission would not be required to do a site analysis or analysis report. They would be required to only do an abbreviated tree plan, which could actually be done with a hand drawing, it does not have to be a computer generated drawing. The intent was not to have to require them to hire somebody to do this. Also, on page 9 the very end of the abbreviated tree preservation plan section, the committee asked that I put in the specific disclaimer that applicants submitting abbreviated plans shall not be required to submit either a site analysis plan or analysis report. Thank you. Do you want to get any more specific and say that professional engineers or architects will not be required for abbreviated tree preservation plan? I could. Commissioner Hoffman where would you suggest that language be included? Just add it on page 9 on 167.041-1.3, the end. Add "An architects or engineers seal is not required for an abbreviated tree preservation plan." You might want to add landscape architects also. • • • Planning Commission August 13, 2001 Page 21 Hoffman: Architects, landscape architects or engineers seal is not required. Estes: Is there any further discussion regarding section 167.04? Shackelford: The changes that Ms. Gaston has referenced that you read earlier, are those being read into the document as it exists? Estes: No, my intention was to read those and ask for comment. If my memory is correct, there was no comment or discussion. It was certainly not my intent to read those in as a change to be considered. It was my intention to read those and offer them for discussion. Shackelford: The only reason I ask that is because it would be in conflict with number 7 but if those are not changes that have been made then we are okay there. Estes: It was only my intent to bring those to your attention by reading them and asking for comment. Any other discussion? Hoover: I have a general question that I was wondering if the committee discussed. I appreciate all the ordinances that we have and making them more stringent but were there any tree ordinances around that gave incentives to developers so that if they did one thing they would get something else? It seems like reading through here this is pretty in depth. Have other cities approached it from that direction? Hesse: I'm sure they have. I can't think of anything at this point. The only incentive we built into this ordinance was for the mitigation aspect of it. If they were able to mitigate all on-site, they would only have to mitigate 80% of what's required. That was just trying to encourage them to do that. I don't believe we had any other built in mechanisms. Hoover: From the developers in the group, did they think that was enough incentive or would they want to see more? Hesse: I'm sure they would want more. Hoover: In general, did they think that was an incentive or did that mean nothing? Hesse: That was an incentive. That was brought up by one of the engineering representatives of the committee. At our committees we had a mixed bag, we almost always has some from the construction industry, some from engineering. We did not always have a • • • Planning Commission August 13, 2001 Page 22 Allen: developer there, we had representatives for them but we did always physically have a developer on the committee at every meeting. As we went through this they may have missed an opportunity to question something. I had a like concern as I read through. there are so many rules that if you are abiding by everything there ought to be more incentive built into the ordinance. Did you have any thoughts or ideas as you were working on it about other things that could be added? Whitaker: I must tell you that on that it came up from time to time but no one really brought forward any concrete plans or specific schemes for incentives other than the 20% allowance that made it into the final draft. There are such things elsewhere but it's subject to pretty complex schemes. Some things are earning development points and things like that but who tracks that over time? How many tree compliance points do you have? Did you use them up on the last one? Do you get into a regime where you have all these points so you could come in and clear 300 acres and not put any trees on it because you've earned up enough bonus points. Those are some of the things that you encounter when you start talking about these incentive programs. I think that at some point the subcommittee felt like it had enough work over the 14 months that it just wasn't ready to move there in any of those complex parts. Allen: I was thinking about on the piece of property that they were developing, not accumulating points. Maybe they would have an additional parking space. There might be something that could be a real incentive for people to want to comply. Whitaker: I would defer to the Planning Director when you start giving away parking spaces and things of that nature. Conklin: I think one of the biggest changes I've seen since we went through the ordeal with Kohl's that resulted this ordinance, the development community is meeting with staff up front prior to the applicant submittal. They understand that when you do meet the ordinance requirements and you do work with out Landscape Administrator and you meet our ordinance requirements, you can get through the process on time. There are very few developments now that we are unaware that they are coming into the Planning Division for processing. It's almost always a preapplication conference. Even with the new tree ordinance where it encourages preapplication conferences, that has been happening for about a year now. I think it's evident at our Planning Commission meetings lately that development community and staff are working closely together to make sure these projects come to you meeting our ordinances. The biggest incentive that we can give the development community is an ordinance that's clear, the ability for • • • Planning Commission August 13, 2001 Page 23 Estes: Hesse: staff to communicate with them and bring in projects that meet our ordinance requirements. I think this will be a positive step. Any other discussion regarding this section? Seeing none, Section 167.05, Tree Protection measures and construction. Let me direct your attention to Ms. Hesse suggested additions to the technical corrections regarding section 167.05B, Tree Protection. Mrs. Hesse could you speak to your suggested change please? Yes, just from experiences on projects, oftentimes I think anyone that has dealt with construction realizes that once you design a plan on a sheet of paper that there is quite a few differences when you get out into the real world on the site. There are a lot of construction changes that happen during construction. Oftentimes we find ourselves, even prior to or during construction allowing them to encroach on some of the protected trees, into the dripline. Basically they find themselves boxed in or a utility has to run in a different location. In situations like that I would like to have the ability to require them to do root pruning or add mulch to the base. Oftentimes you can allow them to get under that dripline if you put a thick layer of mulch and then that tree will not be impacted like it would be if there was nothing there to cushion the weight of the compaction of the soil. My suggestion was that under tree protection that we would include a statement saying that the Landscape Administrator may require other protective measures based upon the individual characteristic of the site and the proposed construction methods. Very often I find, especially on tight sites with commercial buildings, if you look at it on a drawing it may look perfectly fine but if you looked at the details of their footing plan you would realize that they are having to excavate beyond that tree. Typically you need to keep 10 feet from the building in order to build the building and oftentimes I'm being more flexible on the site and allowing them to move into that tree. I do so by asking them to do some additional measures and it has worked for many sites. I was uncomfortable that without this language I may not be able to make those changes. Estes: Any discussion regarding this section? Hoffman: I have some elaboration or expansion on your idea That is that we implement tree preservation measures for trees that are actually located off the site but have a root zone on the site. I've come up with some wording that you are welcome to change but this is the idea. At the end of 167.05B to say "Tree preservation measures must also adequately protect off-site trees with root structures extending into a site for proposed construction. If damage or destruction to an off-site tree occurs, the applicant or developer will be required to mitigate that damage as prescribed by the Landscape • • • Planning Commission August 13, 2001 Page 24 Estes: Administrator." Any discussion? Any other discussion regarding Section 167.05? Seeing none, Section 167.06, Tree Planting Maintenance and Removal on Street Right-of-ways and Other Public Grounds, any discussion? Seeing none, Section 167.07, Commercial Tree Pruner/Service:Certificate and Insurance Required, any discussion? Seeing none, Section 167.08, Hazardous Trees, any discussion? Seeing none, Section 167.09, Local Disaster Emergency, any discussion? Hoffman: I only have one question about that, the ice storm brings it to mind. Is there anything in our ordinance or UDO that covers trees down on power lines? Does SWEPCO or the utility company have to come and cut the trees off the power line, should we address that or is that a separate disaster issue? Hesse: I think that there laws would probably override these and they don't allow anyone get near those lines when there is a tree on them. It's something that the utility wants to maintain for safety reasons No, it's not addressed in here. We discuss it in some section. Whitaker: Section 167.06J, talks about public utilities rights. Hesse: It basically states that nothing in this section shall be construed to prohibit public utilities from pruning or removing trees that encroach upon electric, phone, cable, television transmission lines, gas, sewer or water pipes. Conklin: Most of those utilities are probably within our rights-of-way where they have franchise agreements to be there or within utility easements which they already have the right to go in there and remove the trees. Estes: Any other discussion? Seeing none, if we could refer back to Section 167.02 for just a moment. The comment letter that Ms. Gaston provided with regard to this section reads "The Landscape Administrator...shall promulgate and periodically revise forms, procedures, and regulations to implement this chapter...", I do not believe that the Landscape Administrator has the legal authority to promulgate regulations. Any discussion? David, would you speak to that please? Whitaker: This ordinance would be the enabling legislation. It would be the governing body of the City telling a particular city official to promulgate regulations to enforce the chapter. • • • Planning Commission August 13, 2001 Page 25 Estes: MOTION: Hoffman: Estes: Allen: Estes: Bunch: Hoffman: The chair will now entertain motions, any further discussion or comments. Let me say this, I do not want to limit the discussion in any way nor do I want to limit the motions. We have had several comments by Commissioners. Rather than require that we go back through and discuss each of those individually, let me suggest this, any motion incorporate by reference those changes. They have been recorded by our clerk and will be duly made a part of the record. I do not in any way limit your ability or capacity to make motions. If you would like to go to some specific comment that's been made and discuss it more fully and completely remove it, modify it, do so. I would like move for recommendation of approval to City Council of Administrative Item 01-32.00, with reference to all Commissioners and public comments recorded today that they be duly considered prior to the ordinance reaching City Council as so recorded. We have a motion by Commissioner Hoffman to approve Administrative Item 01- 32.00 which would be forwarded to the City Council an ordinance amending title 15 of the Unified Development Ordinance of the Code of Fayetteville to provide amendments to and clarification of various provisions concerning tree preservation and protection, is there a second? I'll second. We have a motion by Commissioner Hoffman and second by Commissioner Allen, is there any discussion? I ask Commissioner Hoffman just how you were including the various portions of the public comment and the letters that have been read into the public record? Are you suggesting these be in the form of suggestion in minutes or that they be incorporated into the document as substantive changes? If I understand our Chairman correctly and by looking at the memorandum from Mr. Whitaker, I think that as this goes forward it's a good idea to go ahead and have staff and the City Attomey's office incorporate all of the discussion that has been made here tonight by the public and by the Commission. It se ms that there was some discussion on various wordings and various legal issues and so forth, in the technical memorandum following the question and answer question. I would assume a similar format or similar action would be taken by the staff prior to it reaching the Council level. Am I right or • • Planning Commission August 13, 2001 Page 26 wrong? Whitaker: My only concern is that, if we gather every comment that was made both here in the chambers and from letters and such and attempt to incorporate in the draft, we are going to have some incredible inconsistencies. Some folks opposed you and I wonder how you would want the City Attorney's office to reconcile that? Estes: My thought was that the amendments made by the individual Commissioners be incorporated and be the modified draft that goes to the City Council. Not public comments and not Ms. Gaston's letter which I read simply for the purpose of inviting comment but that those changes and modifications to the technical draft include only those changes made by individual Commission members. If there is a disagreement or question by any individual Commissioner as to whether that specific provision should go forward that it be discussed and proliferated at this time. Commissioner Hoffman, was that the intent of your motion? Hoffman: Not really but I understand. Otherwise we will be here all night rewriting and trying to get the opposing views in. Understanding that, not having a great legal brain, I would say that there is still time for public comment to City Council and that those people that wish to make it will have further opportunity. We should go ahead and incorporate our comments and leave the public to the next meeting as those go forward. Does that sound better? Whitaker: Yes. I believe the Council will get a copy of the minutes. Hoffman: I understand now. Colene's letter has some definite legal terminology that I'm certainly not prepared to deal with tonight. Estes: Commissioner Allen, was that the intent of your second? Allen: Yes. Hoover: Will the tree committee be meeting again before this goes to City Council and revising or what? Whitaker: It had not been planned. Hoover: I guess I'm concerned if we are just making the motion with new language, I didn't • make any new language. I want my points to be considered. Planning Commission August 13, 2001 Page 27 Conklin: There will be an opportunity, I believe this is going to go to the Ordinance Review Committee and there will be opportunity there to have that committee make the final recommendations to City Council. Hoover: When will that be do you think? Conklin: The City Council will have to set that up, I'm not sure. Hoover: Thank you. Estes: The statute provides that following the public hearing proposed plans may be adopted and proposed ordinances and regulations may be recommended as presented or in modified form by a majority vote of the entire Commission. That's what we are doing. That's the purpose that we are charged with this evening. There is a motion by Commissioner Hoffman, second by Commissioner Allen to approve Administrative Item 01-32.00, is there any other discussion? Shackelford: I would just like to make some comments for the record as well. While I agree we need consistency and clarification beyond what our current ordinance offers, I feel that we need to do this without infringing on property owner's rights. I am somewhat troubled that we are adding more restrictive covenants that will further add to the difficulty of development in Fayetteville and add to the gap between here and our neighboring communities. I'm concerned that this might push more development and tax revenue outside our City limits. I know that many hours have gone into rewriting this ordinance and it's merits were good. My concern is, it may be somewhat intrusive and could possibly cost the City of Fayetteville a great deal of lost tax revenue going forward. I think we need to be very careful going forward to keep from further increasing the gap in development costs between the City of Fayetteville and other communities. If this ordinance is passed, I feel that we need to keep an open mind on appeals that are brought before either the Planning Commission or City Council. We need to continue to look at these things on a case by case basis and not let this ordinance stop proposed developments in Fayetteville. Ward: There is a lot of gestapo about the landscape establishment guarantees that we are putting in this ordinance, how we picked out a three year maintenance and monitoring period and all this type of thing. I think we are really pushing legal, property rights and constitution as far as some of these things we are asking to do here. For the most part I think the tree ordinance is fantastic. A lot of good stuff in here. I'm just kind of worried about going too far. We all want to have beautiful real estate, we all want the • • • Planning Commission August 13, 2001 Page 28 Estes: trees, we all want to preserve what we have but there is two sides to all this. Any further discussion, comments? We have a motion by Commissioner Hoffman to approve administrative item 01-32.00 and a second by Commissioner Allen, Sheri would you call the roll? ROLL CALL: Upon roll call administrative item 01-32.00 is approved by a vote of 7-0-0 and will be forwarded to City Council for consideration. Estes: In closing, let me speak on behalf of the entire Commission and thank each of you for your participation in this process. As I have attend various meetings and as I look out over the audience this evening, I see architects, 1 see engineers, I see lawyers. There have literally been over 1,000 hours of time put into the preparation and drafting of this ordinance. On behalf of your Commission I thank you. It's been a very noble effort and we appreciate it very much. Is there any other business? Conklin: There is no further business. Earnest: I did want to make sure, we did spend a lot of time last week mailing out a notice to everybody about the meeting on September 11th and I hope you have all gotten that in the mail. If you haven't, please let me know. We are proceeding. We did mail out over 900 letters to people in the region. It went out last Friday. Estes: What is the meeting? Earnest: It's the presentation by Mayor Brent Coles from Boise, Idaho, speaking about smart growth and his perspective on it as a past president of the U.S. Conference of Mayors. Estes: Thank you, any other announcements? We will be adjourned until our next regularly called meeting. 1 ''tO /%�w n001 61-52 iti MOTION SECOND D. Bunch B. Estes L. Hoffman 7 S. Hoover 7 y N. Allen tij l D. Marr a fig4Q-A-i- A. Bishop AA7t Shackelford L. Ward.YI ACTION 1 c ,l i ✓1II A,... �^�'�� 1 VOTE -I'D - a • COLENE M. GASTON GASTON LAW OFFICE, PLLC POST OFFICE Box'8038 (ZIP 72703) 2949 NORTH POINT -,CIRCLE, SUITE 3 FAYETTEVILLE, ARKANSAS 72704 August 20, 2001 Planning Commission City of Fayetteville 113 W. Mountain St. Fayetteville, AR 72701 PHONE 501.521.3148 FAX 501.521.1356 CGASTON@GASTON-LAW.COM RE• Proposed Revision of the Tree Protection and Preservation Ordinance Dear Sirs and Madams: I would like to express my gratitude to the committee members who spent many long hours working on the proposed revision of the Tree Protection and Preservation Ordinance. I would also like to thank the members of the Planning Commission in advance for their efforts iri consideration of the proposed revisions. In addition, I have the following comments on the proposed revised ordinance: UDO § 167.02 provides in part that "The Landscape Administrator ... shall promulgate and periodically revise forms, procedures, and regulations to implement this chapter, ..." (Emphasis added). I do not believe that the Landscape Administrator has the legal authority to promulgate regulations. UDO § 167.04 F.2.a. The third sentence in this first option for a preservation plan (for entire subdivision) provides that "Canopy preserved in this option shall be noted on the Final Plat, and may be protected by a Tree Protection Easement or other recorded device, which provides a permanent record of the protection afforded under this chapter." (Emphasis added). It was evident from the discussion by Ms. Hesse and other committee members at the August 14, 2001, public meeting on the proposed ordinance that the word "may" in this sentence was intended to be "shall". I believe that changing the may to shall is critical to the successful implementation of the revised ordinance. • Letter to the Planning Commission August 20, 2001 Page 2 UDO § 167.04 F.2.b. This second option for a preservation plan (for infrastructure only) should also include the mandatory filing of a "Tree Protection Easement or other recorded device, which provides a permanent record of the protection afforded under this chapter." UDO § 167.04 I I believe that the test for allowing on-site mitigation should be clarified to provide that the Applicant must demonstrate to the Landscape Administrator's satisfaction that a site's physical or spacial constraints prevent any development of the property that would preserve the Percent Minimum Canopy. UDO § 167.04 J I recommend that this option for off-site alternatives also require demonstration that the property could not in any way be developed and also meet the Percent Minimuni Canopy. UDO § 167.04 L.3 This provision regarding continuing preservation and protection should include the same language as recommended above for UDO § 167.04 F.2.a. and b. that would require the filing of a Tree Protection Easement or other recorded device. Thank you for your consideration of these suggestions. Sincerely, Colene Gaston 9-04