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HomeMy WebLinkAbout2002-04-29 MinutesMINUTES OF A MEETING OF THE PLANNING COMMISSION A special meeting of the Fayetteville Planning Commission was held on Monday, April 29, 2002 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN Appointment of Subdivision Committee Page 2 Appointed ADM 02-1.00 Administrative Item (Shadow Hill Subdivision, pp 292) Page 2 ADM 01-49.00 A: Administrative Item (Hamestring Creek Sewer Escrow) Airways Freight ADM 01-49.00 B: Administrative Item (Hamestring Creek Sewer Escrow) Sonic-Wedington Place ADM 01-49.00 C: Administrative Item (Hamestring Creek Sewer Escrow) Wedington Place Senior Apartments ADM 01-49.00 D: Administrative Item (Hamestring Creek Sewer Escrow) Wedington Plaza ADM 01-49.00 E: Administrative Item (Hamestring Creek Sewer Escrow) Bridgeport III ADM 01-49.00 F: Administrative Item (Hamestring Creek Sewer Escrow) Bridgeport IV ADM 01-49.00 G: Administrative Item (Hamestring Creek Sewer Escrow) Bridgeport V ADM 01-49.00 H: Administrative Item (Hamestring Creek Sewer Escrow) Coyote Trail ADM 01-49.00 I: Administrative Item Approved Refunded Refunded Refunded Refunded Refunded Refunded Refunded Tabled Planning Commission April 29, 2002 Page 2 (Hamestring Creek Sewer Escrow) Refunded Heritage Village I ADM 01-49.00 J: Administrative Item (Hamestring Creek Sewer Escrow) Heritage Village II ADM 01-49.00 K: Administrative Item (Hamestring Creek Sewer Escrow) Pine Crest Phase III ADM 01-49.00 L: Administrative Item (Hamestring Creek Sewer Escrow) Pine Crest Phase IV ADM 01-49.00 M: Administrative Item (Hamestring Creek Sewer Escrow) Salem Village P. U.D. ADM 01-49.00 N: Administrative Item (Hamestring Creek Sewer Escrow) Silverthorne ADM 01-49.00 0: Administrative Item (Hamestring Creek Sewer Escrow) Wedington Place Refunded Refunded Refunded Refunded Tabled Tabled MEMBERS PRESENT MEMBERSABSENT Lee Ward Nancy Allen Donald Bunch Sharon Hoover Lorel Hoffman Bob Estes Don Marr Loren Shackelford Alice Church STAFF PRESENT STAFF ABSENT Kit Williams Tim Conklin Dawn Warrick Hugh Earnest Renee Thomas Jim Beavers Planning Commission April 29, 2002 Page 3 Hoffman: Welcome to the April 29, 2002 special meeting of the Planning Commission. Tonight we only have three items on the agenda. First is the appointment of the Subdivision Committee. Second, we have two administrative items, one for the Shadow Hills Subdivision and another for the Hamestring Creek sewer escrow. Renee, will you call the roll please? Roll Call: Upon the completion of roll call there were five Commissioners present with Commissioner Ward arriving at 5:32 p.m. Commissioners Hoover, Shackelford, and Church were absent. Hoffman: The first item on the agenda is the appointment of the Subdivision Committee. As the Chair I will be making these appointments. I am reappointing Lee Ward as Chairman of the Subdivision Committee, Sharon Hoover as Vice Chair and Commissioner Bunch as the additional member. Commissioner Marr, would you agree to serve as the first alternate? Marr: Yes. Hoffman: Thank you very much. I will also reserve the option to reassign the Committee in thirty days. The second item on our agenda is ADM 02- 1.00, which is an administrative item submitted by Hugh Earnest, our Urban Development Director on behalf of the City of Fayetteville. This request is to allow a private drive through the subdivision in order to improve safety along Old Wire Road. Staff recommends approval of the administrative request, subject to the following conditions. We have twelve conditions of approval. Tim, do we have signed conditions? Conklin: What we are passing down to you right now is a Bill of Assurance offered by the owners. There are multiple owners of Shadow Hill subdivision. That Bill of Assurance mirrors our conditions and our staff report. Keep in mind this is something that the City of Fayetteville is bringing forward to you this evening in order to eliminate some potential driveways out on Old Wire Road. Hoffman: That is correct. It is my understanding that this subdivision was approved in the 1970's and had no expiration date and it has now been constructed and in the interest of public safety we're hearing this item at this time. Conklin: That is correct. It was a final plat that was approved. Improvements actually were installed and what you have is a recorded final plat subdivision that has sat out there since 1975. Hoffman: Thanks. I am going to go ahead, I guess if the Bill of Assurance mirrors the conditions of approval, I will go ahead and read those conditions. If the applicant is present we will have a presentation from him and then Planning Commission April 29, 2002 Page 4 hear public comment and deliberate. Lets let the record reflect that Commissioner Ward is here. Conditions of approval are 1) The common access drive shall be private and shall be maintained by the developer or the property owner's association to be established for the Shadow Hill subdivision. 2) Access drive shall be a minimum of 20' in width in order to comply with state fire code requirements. 3) Access drive shall be constructed of concrete which is a minimum of 6" deep in order to withstand the weight of solid waste collection vehicles. The owner shall sign a waiver relieving the City of any responsibility for damage to the private drive caused by solid waste vehicles utilizing the access to provide collection services to the homes in this subdivision. 4) No parking shall be permitted along the private access drive. No parking signs shall be installed by the owner. 5) In addition to the 16' wide driveways to be constructed for each single family home, an additional concrete parking pad (16' x 18') shall be installed beside each driveway. 6) A total of nine additional parking spaces for guests and overflow parking shall be located within the development in four different areas along the private access drive. These spaces shall be constructed in order to allow vehicles to pull completely off of the access drive and into standard sized parking stalls. 7) An 18" berm shall be installed along the south side of the development from the southeast corner of the house pad for lot #14 angling to the south property line of lot 13 and running generally along the south property line to its intersection with the ditch along Colette Ave. This berm shall be sodded. 8) A 6' tall wood board fence shall be installed along the south property line of the subject property where it adjoins the north property line of the Hutchinson property. 9) An 8' tall wood board fence with steel support posts shall be installed along the south property line of the subject property adjoining the Phillips' north property line. The smooth face of this fence shall face south. 10) The developer shall dig out and regrade the ditch 10' north of the culvert providing access to this private drive and shall also grade the ditch on south side of the culvert to create a better drainage system. 11) Culverts and drainage improvements to be installed in order for the common access drive to be installed shall be reviewed and approved by the City Engineering Division. 12) Vegetation along Old Wire Road shall be removed or trimmed back to provide adequate sight distance at the intersection with this private drive. Is the applicant present? Earnest: Thank you Madam Chair and members of the Commission. I might suggest that the word unusual perhaps doesn't totally describe what we're doing here tonight but it has already been mentioned, and I want to reiterate, I am not going to reread all of this to you. It is horribly important, and we've been aware that this is a potential health and safety issue from the first time that Mr. Conklin apprised us of this construction of these units on a plat that was approved in 1975. The interest that I have as Urban Development Director is quite simple. I think it is very important for public safety and in the public interest that this be done. Planning Commission April 29, 2002 Page 5 You might describe this as the lesser of two evils. This is a private access drive. However, the developers of record, there is more than one signature on the Bill of Assurance, have guaranteed us that this is going to be done appropriately and correctly. We have a hammer that is called certificates of occupancy and you may rest assured that this development will be done properly or there will be no certificates of occupancy issued prior to our satisfaction, and that is Planning and Engineering's satisfaction that these improvements are done as have been stated in the Bill of Assurances. I will be glad to answer any questions. I have been on the site, we have talked to the neighbors. There may be some concerns that some other individuals have but the recommendation that you have before us, and Mr. Conklin, do you want to add that last item to the Bill of Assurance? Conklin- Yes. I would like to add one more condition. The whole purpose of bringing this forward to the Commission tonight is to eliminate the potential for ten or eleven more driveways around that corner on Old Wire Road. Condition number thirteen I would propose to read "No individual driveways shall be allowed on Old Wire Road." Earnest: We have here both the 1975 plat, which I think tells you where we were and what we are operating under and also where the private access drive will be constructed. Hoffman: Ok, thank you Mr. Earnest. Does any member of the public wish to address us on this item? Davison: Thank you Chairman Hoffman and thank you Commissioners. My name is Sharon Davison. I would like to comment on this. I do eventually want to find out who these developers are. I am not sure. Even before I even thought about it, I drive by this area regularly and when I first saw these houses going in on the corner I thought 'Who would want a house there?' Somebody is going to come through their yard around that corner one day. Who would build a house there? And how can they build a house there?' Ok, when I saw the sidewalks going in and that there were not drives, I thought `Ok, at least they are not accessing from there, hopefully they are accessing from one of the main subdivisions behind there.' I have now come to find out that if we do not do something such as fortunately Mr. Earnest and Mr. Conklin have tried to look out for our interest here. That is such a dangerous area. It is amazing, it really should not have had this put in here at this time with our traffic but of course I don't think the developer really did care about that. Please, please do number thirteen. That is so important. One drive, you will be responsible for creating extremely, not just like up in our area, extremely dangerous situation if you allow them to do that. Again, I would like to get back to the issue of developers who choose to try and force these dangerous projects down our throats. As Mr. Earnest said, we are right now having to deal with what is called the lesser of two evils. These type of developers seem to present us Planning Commission April 29, 2002 Page 6 with that option often. The lesser of two evils, not the best thing around. Please do number thirteen. My last question is, I would like to have on record the name of the developers, may I please have those names? Can we state them for the record? Earnest: Thank you, I was in error not doing that. The names that we were furnished is Shadow Hills subdivision ownership Hometown Properties, lots 14, 8, 6, and 3. Brian Dandy, lots 13, 11, 4 and 2. Greg Henry lots 9 and 12. Greg Sevadjian, lots 7 and 10 and Richard Henry lots 1 and 5. Those are in the record that I believe is before you and certainly the records that we have at staff level. Hoffman: Thank you Mr. Earnest. Would anybody else like to address us on this item? Yes Sir, come forward and tell us your name. Dunn: I am Alan Dunn, I live at 2648 Old Wire Road. I have resided there approximately 42 years. I saw this property change hands many times. It sold for $700 the first time. My concern is that I was not contacted as an adjoining property owner. I have approximately 600' that joins this on the north. My property is still agricultural zoned. I am permitted to have livestock on it. I have a pond that is available. My property also joins Gulley Park on the south. I have 1,700' that joins Gulley Park. I have a constant headache of repairing fences to keep my property safe and my livestock where it belongs. The worst problem I have now is the frisby golfers on the thing. My next problem is going to be these people because it is a direct shot from this addition to Gulley Park. If they would respect my property I wouldn't mind but you know, the generations today were not raised on a farm, they don't know what a gate or a gap is on the thing so my request is, being as I was not contacted, I think that I am entitled to the same consideration for fencing as Ms. Phillips and the other folks are getting. Hoffman: Tim, can you tell us, I am sorry, I am unfamiliar with where his property adjoins this. Dunn: May I show you this? Hoffman: Yes, please do. Dunn: It comes right across this area. Hoffman: Have you looked at the fencing situation on that? I know we described it generally but if you could be more specific. Conklin: With regard to trying to make sure that we got everybody contacted, there was a slight mix up and I tried to call everybody that left messages over the past eight months that I have saved on my computer. I called their Planning Commission April 29, 2002 Page 7 daughter I believe and left a message. With regard to the fence issue, I was unaware that that was something that the Dunns wanted to have. How we wrote the staff report, and the reason for the fences, I asked the owners who are developing this what conversations they have had with the neighbors and the information they gave me was that it was an 8' fence with metal post or it was a 6' fence, that was where that information came from. Since writing the staff report, we have met with the Dunns and they have expressed interest in having some type of privacy fence along their north boundary line for the reasons that Mr. Dunn stated Gulley Park to the south, livestock within this 10 acres and the fear of having people trespassing and kids going into this pasture land. Hoffman: What we are trying to do is work out this old subdivision that has been on the books for so long and apparently the notification system is now set up for numerous subdivisions and this is by that. Dunn: Yes, I understand. Jean and Whit talked to me before they ever applied for this on the thing many years ago. I have gone to the extent of purchasing liability insurance on that property incase a small child or somebody was to get into the pond. I have had bulls and horses and everything else there and I assume that responsibility but I also realize that I am entitled to that on there. That is my request and I don't believe that I would be here tonight if I would've been contacted earlier as the other folks were on that. Conklin: I can't guarantee that the U.S. Postal Seryice got the letter to you, but you are listed on the labels for the letters. Dunn: We received two letters. One notifying us approximately six weeks ago of a meeting and then another one that that had been cancelled and there would be one held at a later date. We got that notice. Conklin: Ok, I was concerned that you didn't receive any of the mail. Dunn: We were not contacted by the developer or the property owners or the City in regards to fencing, security and this, that and the other, as of Friday when Mr. Conklin visited us was the first contact we had had on that. Hoffman: Tim, I have an idea on this in order to treat everybody fairly. Why don't we just add a fourteenth condition that would require fencing along his adjoining property line of a solid board fence and I would think that would take care of it. Conklin: If that is what you would like to do. Hoffman: I am not making a motion by I am suggesting that we will discuss it further. Planning Commission April 29, 2002 Page 8 Dunn: One other item that I will mention while I'm here and then maybe I won't have to come back. I understand that there is a berm to be constructed along the south point of this. Again, if I may point on the map, this berm stops at this point, which means that all this drainage here is going to drain onto Mrs. Phillips' property. I am not an engineer but you don't have to be to stand at the up high ground and see that water runs down hill on the thing so you might want to consider before this is done, extending that berm on a little to the west to catch the water to give her the protection. There again, I get the protection this time and she does not. That strawberry bed is changing. That originally was a strawberry field. Hoffman: Does condition number 11 cover that concern with culverts and drainage? Hoffman: Does item 11 cover that concern with culverts and drainage? Conklin- I think condition 7 refers to the berm. Dunn: I may be speaking out of school on that being as I am not an engineer and have not set a transit up on it and looked at it but I believe if you see a downhill slope and where it goes that you will realize a little further extension to the west on that berm there would help Mrs. Phillips property. Hoffman: I have some more specific wording of that. Review and approval by the City Engineering Department might be appropriate in item number 8 without having the benefit of a drainage plan. What Mr. Earnest has said before is certainly going to provide the adjacent property owners some protection in that all of this is being thoroughly reviewed and I understand that since we don't have a defined drainage plan that our city staff is going to be looking at it as it is constructed. I am just trying to find ways to put assurances in these conditions that address those things. Is there anything else that you need to address? Dunn: My main concern is the fence and that is for the protection of somebody's child that might cross it later on or something else. I would appreciate consideration of that. Hoffman: Ok, it will be dually noted. Allen: I wonder if Mr. Dunn could show me on this map, because I can't see the angle of that, I wanted you to show me on this map that I have before me the location of your property and the proposed fence. Dunn: It is close to this corner right here. Allen: Where is your house? Planning Commission April 29, 2002 Page 9 Dunn: Hoffman: Allen: Dunn: Right in here, I've got ten acres. He is pointing to the south property line of the adjoining property. Where is the proposed fence? This fence has already been approved in one of the conditions and this has all be approved across here and so my concern is in this area here. Allen: Ok, thank you. Hoffman: Did you have anything else before you sat down because once we close the floor to comment you won't be able to talk again. Did you have anything else that you would like to say? Dunn: No Ma'am. Hoffman: Ok, thank you. Is there anybody else that would like to come forward? Phillips: Kevin Phillips, I am the son of Mrs. Phillips who resides at 2650 Old Wire Road and at some point in the not too distant future I will also reside there again. That is where I grew up, that house has been owned since 1965 by our family. First of all, there has been some misunderstandings with some other folks, but I want to assure you that my contacts with the City have been nothing less than received very well and I appreciate that. The concerns that I had were heard and they were documented and when I was contacted again by Mr. Conklin everything I had said in the past had been brought up, so for that I commend the Commission and their office. It made me feel very good that things were reviewed that well. Just to reiterate, I know that the fence has been approved and so that is a done deal, I won't bore you with that. As far as the drainage, by the way I am a licensed residential and commercial contractor so I do have a little bit of understanding of what is going on next door. With the drainage, the way they have formed the, they are forming now, the actual private drive, as it goes from Old Wire Road up to the first corner its pitch, its grade is very well and I think it will drain nicely. The problem is as it comes down from north to south towards my mother's property, before it makes the turn back to the west they've got a swale, which will catch the water but I believe that if you have much of a water run at all, it is going to override the corner and come straight into my mother's property. When he discussed the berm I think it needs to be all the way down into that corner where the drive goes from a north south direction to an east west direction and I believe that is what Mr. Dunn was bringing up. I believe that was really my only concern other than the fence. Hoffman: While you are up here let me ask Mr. Beavers if we can reiterate that this is something that your staff will be looking at during construction. Planning Commission April 29, 2002 Page 10 Beavers: No, I cannot say that. This is a request for a private drive and it appears that it is now being turned into a way to go back and look into a preapproved subdivision and try to correct the drainage issues in that. If we can, that is great, I would like to do that. I don't see Mr. Schmitt or the other people here to say that they will agree to these additional conditions that are being put on it. Bringing the berm across the entire length of the property may simply move the problem onto somebody else. I am not sure that the berm is a good idea. We haven't analyzed this, we haven't been involved in this and I don't think we need to make any promises tonight that berms will be built or other items will be added. Hoffman: Are you speaking of the fence too? Beavers: The fence surely would let water go under it if it had to. I would hope so. Hoffman. Did you have anything further that you wanted to add? Phillips: No, other than I believe that this water problem, like I said, the street will take care of, as far as her property 75% of the problem, the private drive that they have already constructed or are in the process of constructing. They had it graded well enough, the high point being on the south towards the north side of their drive, that it will flow into the city ditch system and that is wonderful. The problem is from the high point of all of the property to where that drive turns, I believe there would still be a problem with drainage into her property. The drive would do nothing but accelerate that problem. That is something that I just hope is to be looked at well and is also, if everything is approved and construction continues, and everything is approved, then we develop a water problem over the next year I just hope it is recognized that this was brought up prior to all of this being approved. Hoffman: Definitely. Thank you very much. With that, I would like to ask our City Attorney if he could talk to us a little bit about the preexisting subdivisions and how drainage ordinances would apply when they are being built after the fact. Does our current drainage ordinance, is it enforceable for the old subdivision? Williams: The way I understand it, it is not. This is a paper subdivision that was done a long time ago, and there are many of them in Fayetteville. The problem that we are facing, and that we faced in this particular development, is that our newer ordinances, including our drainage ordinance, simply does not apply to these old paper subdivisions. If, in fact, we were not here because our Urban Development Director has gotten into agree to not have all the driveways going out to Old Missouri Road or Old Wire Road and instead have a private drive, this would have never come before us. There would be none of these other conditions Planning Commission April 29, 2002 Page 11 Hoffman: Earnest: there. They would simply build the subdivision as it is, they would have all these tandem lots behind it with long driveways going back. There would be no drainage, there would be nothing that we currently require for new subdivisions. As you are aware, this is a big problem in Fayetteville because this is certainly not the only case. This is something that the Planning Division has been looking at, and I've been looking at about what we can do about some of these old paper subdivisions, which can cause tremendous problems for their neighbors. Hopefully, we will be able to propose something to you and the City Council about ways to eventually try to resolve this problem. That is a long answer, but I am afraid the short answer is and Tim, feel free to jump in here, but I think the short answer is that the drainage ordinance is not applied to these previously approved developments. Thank you Mr. Williams. Mr. Earnest? I do want to emphasize this. We had a frank and lengthy conversation with a representative of the six individuals this morning. There is going to be a further meeting next week between them and us to talk about this and other issues and it is in everybody's best interest that we do our dead level best to handle the drainage problems on this issue. I talked to Mr. Boettcher about it this morning and told Mr. Beavers that because there are going to be some associated problems that will occur in all probability on Colette Drive. Those problems with inadequate ditching are already there. We will do our best from the city's perspective to deal with that and also deal with the developers so that we can minimize any problems that are going to be occasioned by changed runoff from this site. By the way, I am going to repeat this, that driveway will be built to the standards, and we received that assurance this morning, there may be some additional things that we can do as that access drive is built that will alleviate any potential drainage problems. Hoffman: Thank you Mr. Earnest. Allen: I would like to ask Hugh or someone else, when do all these conditions have to be met before people can move into these structures? Earnest: We will not issue Certificates of Occupancy until we are satisfied that the terms and conditions have been met. Hoffman: I am still taking public comment. Would anybody else like to come talk to us about this development? I am going to close public comment and bring it back to the Commission and staff for additional discussion, motions and so forth. Planning Commission April 29, 2002 Page 12 Bunch: This drawing that we have, the question I have is since we are amending a pre-existing final plat, how does this drawing that we have figure into the document scheme, which will be the records of our transactions? Conklin- What they are showing on the plat is a private drive access easement to provide access to these lots. It is not going to change the actual property lines within the development. To go back to why this is before you, I was asked a question about can we change the access for this fourteen lot subdivision administratively and just get it approved? I think when the Planning Commission approves a development you look at access and where the access will be located. Therefore, it is my interpretation and opinion that anytime you are going to change access in a subdivision it needs to get approval by the Planning Commission. It may not be black and white in the code book but I think that is the fundamental reason of why we have subdivision regulations. That is why it is back before you. I am going to go a little further. I think I probably answered your question already but with regard to the fences, I want to make sure that the Commission is aware of this, we don't have a fence ordinance to require subdividers to put fences up between adjoining property owners. What we have attempted to do is to try to alleviate a serious problem with driveways going out on Old Wire Road and we attempted to understand what the developers of these lots were planning on doing with regard to their adjoining, adjacent property owners so where it says an 8' fence or a berm or a 6' fence, that is something that the developers have agreed to also. I bring that up because the Dunns have asked for a fence this evening and that has not been discussed with them and I am not sure how much authority we have requiring that as a condition. Bunch I have a couple of other comments. If this document that we have the pan and profile of the access driveway, in order to have it coincide with the drawings that we are looking at over here for McClelland Engineering, we do need to record the lot numbers on this drawing so that they coincide with the final plat and it would be helpful to show the adjoining property owners. Specifically where they are called out in the conditions of approval. Also, we need to address the access to lot 13. It is shown on the drawing that we have and is called out differently than it is shown on the final plat. Also, the access to lot number 12 and the southeast corner, our drawing that we are looking at does not show the 25' utility easement and private drive per the final plat. If these are changes we need to have somewhere on our drawings or in our language that these discrepancies are straightened out. Conklin: The lot lines will not be changing. There will be an access easement recorded granting access to these lots along the private drive. That will probably be done by separate instrument, not on the plat would be my guess at this time. There will be an access easement that will be granted to allow an access. You will note that the 1975 plat, the driveway on lot 12 Planning Commission April 29, 2002 Page 13 for the tandem lot was adjacent to the south property line. The change that you see today is that it has been brought in between. That is something that we discussed in order to try to move that drive further away from the single-family home to the south. Hoffman: Thanks Tim. Bunch: The record is going to show that the previous access to Colette will be abandoned, is that what we're saying? Conklin- It probably wouldn't be a bad idea to add that as a condition since that is a change. I would recommend that access to lot 12 be from the common drive, not from the access easement. Bunch: What about the access to lot 13, the previous access that now will be going across the newly formed private drive? Conklin: I think 13 that we added probably covers that no individual driveways onto Old Wire Road. Bunch: So that also will be abandoned? Conklin: When you say abandoned, there will not be a driveway permitted. Bunch: Even though it is on the final plat. Conklin: Correct. Bunch: Ok. Allen: I would like to ask Tim whether or not we have the authority to approve the fence. I am unclear about that. Conklin: I do not believe we can require the fence. The fences on our conditions of approval have been offered by the applicant. Kit may want to jump in here and give you his advice. Williams: What I understand really is that we have a Bill of Assurance that has been offered by the petitioners and that has to be a voluntary offer on their part. We can't say give us this and give us this in a Bill of Assurance, even though I did hear our City Planners add one on the driveways and I am sure that since that is the whole reason behind this that that won't be any problem. However, trying to require them to expend more money by building a fence, they may not want to offer that and I don't think that we can agree with this. Basically, the way I look at what the City's situation is that if you don't come to the agreement that has been proposed, or if they don't offer something to make it a little better, they can certainly Planning Commission April 29, 2002 Page 14 build their subdivision just the way it was drawn up. That is not in the best interest of Fayetteville with all the driveways going out there so this other, what has been proposed, has been the mitigation efforts by the City Planner and the Urban Development Director to try to mitigate to the neighborhood what the problems would be and unfortunately, we didn't hear about the other problems in relation to the open field. I don't know whether or not they will be willing to offer that but I don't think we can demand that. Hoffman: I just think in the interest of fairness, I appreciate that, I just think that in the interest of fairness if one person didn't hear about it and they have offered other fences that it would be something that we should either include as a strong suggestion. Mr. Earnest, can you come back and help us with this? Earnest: I sympathize with the Dunn's position on this. There is more than a difference of degree though between these fences. The fence that is between the subdivision and the Phillips' property is between a residential house that adjoins the property and the subdivision. The fence that the Dunes are interested in is a considerable distance from their house and is a fence that covers ingress or egress to their pasture and he is correct, there could be a direct line of contact between their coming across their pasture fence and going all the way over to Gulley Park. I did want the Commission to understand that the reason for the fence between the Phillips and the subdivision is a screening issue between a residential house and the other is not the case. The developers might be perceptive to putting up some type of improved fence to limit ingress or egress to the pasture property but I am not sure that it is fair to even discuss this type of fence. That is my impression since you asked me. Estes: Of course we are dealing with a subdivision that was platted and made of record 27 years ago. At that time there was no drainage ordinance, hydrological studies would not have been required, we may not, we cannot and it is not permissible to impose today's ordinances on this subdivision, which has been approved and made record of 27 years ago. The issue that is before us is the ten or more private drives on Old Wire Road. Mr. Dunn, I have no question in my mind whatsoever that if this came before us today that it would not approved in its present state and in its present condition because we have a whole different set of ordinances that we would apply today but we can't go back and apply those retroactively to something that was done 27 years ago. I also have no question in my mind that if you start making surface alterations to land that it is going to effect downstream owners. By the same means, although we have a condition of approval, condition number 11 that culverts and drainage improvements to be installed in order for the common access drive to be installed shall be reviewed and approved by the City Engineering Division, Mr. Beavers and the City Engineering Division cannot dictate, Planning Commission April 29, 2002 Page 15 mandate or require compliance with today's drainage ordinance because it simply did not apply when this subdivision was approved and spread of record. What we are dealing with is this public safety issue of ten or more curb cuts or private drives coming out onto Old Wire Road. This is not a good situation. I don't think, I know, that what we have before us this evening is the best possible solution to what is otherwise a very significant safety issue. It is for those reasons Madam Chair that I would move that we approve ADM 02-1.00 with the two conditions of approval, number thirteen, no individual driveways shall be allowed onto Old Wire Road and number fourteen, no direct lot access to and from Colette Avenue. Hoffman: I have a motion by Commissioner Estes. Ward: I will second. Hoffman: I have a second by Commissioner Ward, is there additional discussion? Marr: I think one of the things that bothers me about this is that we use public safety as a reason to come back and address this. Yet, from a fence perspective we wouldn't let another developer, I think with a pond, Lindsey tends to have lakes and ponds on their property and we require certain conditions on those or fencing and things of that nature. I also think that when a development doesn't go in for 27 years that a developer should expect the condition to change and the likelihood that public safety issues might become something that we need to step in to do is certainly reasonable and I commend Hugh for doing that. I know that it puts us in maybe some legal positions. I wanted to say it for the record because I would hate to have thought that we voted on a subdivision and some child goes across a wire fence and drowns in a pond because we didn't put a fence up or gets run over by an animal. The other item is that I look at that as a public safety item as well as I do 12 drives on Old Wire Road. I think it brings up a more important issue, and I think our City Attorney has said that. I would encourage us as a Commission to work with Tim so we can present something to the City Council that says these developments that had no time limit, maybe we can have our City Council look at some type of ordinance that allows us some set period that is reasonable that these things die at some point. Two years, or whatever becomes a fair time period. I am certainly open for discussion on that. The fact that these are open and that we never come back and address them and we have public issues like this come up, I think is unfortunate. Hoffman: Thank you very much. Allen: Just to add to that. Was it plats approved prior to 1995 that don't have the same guidelines, is that correct? Planning Commission April 29, 2002 Page 16 Conklin: Our ordinances change almost every year. With regard to when we say expire, a plat expires, our ordinances today have changed to where if you do have a subdivision all improvements do have to be installed prior to final plat. Allen: I know that there are other plats of land around town like the one that is on Gregg Street, that people were unaware of and then suddenly it was cleared. It seems to me that if it is something that an ordinance needs to be proposed to the City Council to maybe have the same one year time frame that these be brought forward so that we don't continue to have this problem. Conklin: I agree and you are referring to a large scale development, which we do put conditions on. A preliminary plat by ordinance already has a one year expiration if no work is being done. The new development is not as much of a concern because we will not allow them to sale any lots or the property until all of the improvements are installed. It is the old subdivisions, the ones back in 1910 that we are dealing with in our office and the City Council deals with it and you deal with it. For example, Rochier Heights off of Sixth Street. We have a paper subdivision up there and it is difficult and it is something that the City Attorney and Planning will look at to see if there is any way to make those paper subdivisions disappear. Allen: Particularly since there is no way to even know how many there are or where they are. Conklin: The developers are pretty good at finding them and bringing them to my office. Williams: I think if you look at a lot over at the County Assessor's and be able to find a lot of them. Let me make one point if I could, the city's power to go back and look and sunset out some of these final plats I think was given a boost by the Supreme Court just last week when they decided the Lake Tahoe case. It was a case where they discussed regulatory takings and what was required, what cities and states could do without having to pay a whole bunch of money to people who would make claims against them. If the decision would have come out the other way we would have been in very bad shape for many things, not just for this. I do think that that case gives us more power to go back and look at that and maybe come up with an ordinance that would be able to sunset out these old, old subdivisions if the owner did not choose to build upon them within a reasonable period of time just like we now require for all of our new ones. Hoffman: Thank you Mr. Williams. I agree with Commissioner Marr that we do have public safety issues not only with the driveways but with the fencing and the livestock proximity. It sounds to me that what our current Planning Commission April 29, 2002 Page 17 ordinances is written as they are, we are doing the best that we can do but I would strongly encourage our staff to work with the developers and see if we can't come to some agreeable solution on the livestock. That being said, is there any further discussion? Bunch: One other question. Sidewalks? Conklin- Sidewalks are being installed. Bunch: They are? Conklin: Yes. Bunch: Ok, I didn't see them anywhere on the drawings and they are not in any of the language. Conklin- That was a requirement when they got their building permits to install sidewalks. I have been out there in the last week and they are formed up. They have meeting with Chuck Rutherford, our Sidewalk Coordinator, and they will meet our standards for sidewalks out there. Hoffman: Ok, is there anybody else? Renee, would you call the roll please? Roll Call: Upon the completion of roll call the motion to approve ADM 02-1.00 was approved by a vote of five to one with Commissioner Allen voting no. Hoffman: The vote carries by a vote of five to one Thank you very much Mr. Earnest for your presentation and we will look forward to seeing some improvements before the development is occupied. Planning Commission April 29, 2002 Page 18 Hoffman: The second item, which is actually fifteen items on our agenda for tonight is ADM 01-49.00, which is an administrative item for Hamestring Creek sewer escrow. This requires Planning Commission determination of the disposition of funds in the escrow account collected through an offsite assessment for Hamestring Creek Basin force main. I would like to before we begin discussion on this item, to set up a few ground rules for how to discuss this. We have I believe items A through 0 which would constitute 15 separate properties or subdivisions of land. I would like to divide these, and I will ask our City Attorney here in just a minute. The first four items are commercially owned and occupied projects. These, in your memo to us of April 26th, do appear to have some differences between the following residential subdivisions. What I would like to do is to be able to discuss generally, first items A through D as commercial subdivisions and let me make sure Tim, follow along with me that I've got the numbers correctly and then the rest of the items as residential in that they do have some differing issues and things to discuss in the interest of time. Then we will have to vote individually on each separate piece of property. Mr. Williams, would that be in line with what I believe I read in your memo? Williams: Yes. I do think you probably need to vote on each individual property and as my advice was that you treat similarly situated property owners and developers the same way. Hoffman: Right. So that being said we will go ahead and have staff report. If you could enlighten us on why we are here and what the background is on the Hamestring Creek... Bunch: Item 0 is also commercial but it did not have the same type of recommendation as the others. Hoffman: Excuse me, Commissioner Bunch just informed me that item 0 is also commercial and so we will include that in this discussion. I believe it has some different issues with it however, since it is a commercial subdivision we will go ahead and take it with the first four. We will be discussing A- D and 0. Staff, would you go ahead and bring us up to speed on this and give us the background on why we are here and what we need to do by ordinance? Beavers: To the best of my knowledge this fund that we have been collecting on the west side started with Mr. Richard Bundrick in Heritage Village. I know you say you want to take the commercial properties first, but I think we need to talk about Heritage Village because I don't see Mr. Bundrick here, I see that he has a representative who might be able to tell us more than staff. My understanding that Mr. Don Bunn retired and Mr. Bundrick and previous Public Works Director, Kevin Crosson determined that in order for development to happen on the west side of town off of Wedington Drive that there would be an additional force main required to pump that Planning Commission April 29, 2002 Page 19 sewage back to Porter Road. Mr. Bunn did an estimate on the area that would contribute to that and came up with a $200 per lot charge. From the time of Heritage Village Phase I through a few months ago when the voters approved a new treatment system, 120 million dollar system that we have requested a condition of approval in all developments out Wedington generally that would flow into this basin of $200 per lot to help fund force mains or other improvements as necessary if the new wastewater treatment plant improvements were not performed. Hoffman: That was inclusive of commercial subdivisions regardless of the implement? Beavers: Yes, we tried to do an estimate on the commercial projects and come up with a fee that would represent an equivalent to $200 per residential unit and apartments I think it was calculated at $67.00, duplexes I think stayed at $200. There were some estimates made for other types of developments. Hoffman: Ok, thank you very much for that background. My reason for wanting to discuss the commercial items first is because they are owner occupied and it would seem to be that since there has been no resale on these particular ones that we could go ahead and deal with those by separate votes without as much discussion. Is there anybody from the public that would like to address us on this subject? Davison: Hi. My name is Sharon Davison and I think this is quite an issue because we're dealing with impact fees right now as we speak. It is amazing to me the gull of these greedy developers, I believe there is a gentleman back here who wants money back, of course if taxpayers had not passed the sewer situation we wouldn't even be discussing this. Hoffman: Ms. Davison, are you discussing the commercial developments? Davison: I am discussing the refund situation regarding commercial and private and I can make a general comment to address them both now and I won't come back. Basically, the comment is that through all of this turmoil over impact fees the number one point the developers, of course remember, our stakeholders on our impact fee discovery team are very outspoken against this, the reason for being outspoken against it is supposedly that these fees charges, expenses get passed on to the homeowner or the buyer or the commercial business person, whoever is buying this. I would guess that the way the system would work is some of these developers may still own these properties, they have not sold them yet. Maybe that means that they get to get that money back and still charge a fee or whatever. I think it is amazing that they have the gull to say they, as the developers, who have already sold this piece of property at this price, that they claim is built in for these expenses and yet that home owner or that buyer has paid this Planning Commission April 29, 2002 Page 20 price, which they say reflects the added in cost of such fees and then they are supposed to get that back? Does everyone understand my question? I do not think that there is any way the developer as the developer should receive any refunds, only if he still is owner of some of those parcels. I would think that all of the buyers are the ones who should get it back. Am I making myself clear? Hoffman. I just want to make sure that you understand the difference that the commercial properties have not resold and that is what we are discussing right now. Davison: Ok, I understand that. You are saying that they are the developers and they are the people in the property themselves right now. Hoffman: That is correct. Davison: Ok. Hoffman: Thank you. Is there anybody else that would like to address us on this matter? Seeing none, I will go ahead and bring it back to the Planning Commission and staff for discussion of items A -D and O. Estes: To me individually this is a very complexed and complicated issue. It is a tracing issue and by that, I mean determining the origin of the funds and then tracing the funds through and find out where the funds are today and make an evidentiary finding. I don't know how we are supposed to do that. Mr. Williams, can you give us any guidance? I guess my first question is am I analyzing this correctly? Is this a tracing issue and if so, what evidentiary findings do we need to make and where do we obtain the evidence to make those evidentiary findings? Marr: Could I add one more question to that? Why we don't have a staff recommendation on all of these. Williams: I will try to answer those as best I can. What the Planning Commission needs to do according to the ordinance is determine whether or not the offsite improvement is necessary and the staff has said it is not necessary so your first determination in every one of these is that the offsite improvement is not necessary. At that point in time then the Planning Commission has three options according to the ordinance. One option is really foreclose, that is where the majority of the property owners would agree to another improvement. There is no staff recommendation for any other improvement in this area and I don't think there have been any signatures or any movement by any of the owners or developers that another development be made so that option is foreclosed I think in this case. Your final option is to refund the money in the escrow account with accumulated interest to the subdividers who made the contribution or Planning Commission April 29, 2002 Page 21 Estes: distribute the money in the escrow account on a pro rata basis to the property owners who purchased the lots in the subdivision and the developers who still own them. I don't really think that this is an exact tracing issue. It would be virtually impossible with the number of property owners, it would be very onerous on the Planning Department or whoever attempted to do this. Basically, as I try to say in my memo to you, I feel like your primary goal in this just must be fairness in equity of who is the most deserving of the refund of this money. That is a very difficult issue but it is not an issue that staff should make a recommendation to you on this. This was left up to the Planning Commission. There are certainly arguments on both sides. The developers obviously paid the money in the first place, there can be good arguments that have been made by Ms. Davison and other people can make them also that in fact the home owners, or the current property owners have in fact paid this money when they bought the lot. That the developers don't do anything for free, they can't and stay in business, so this cost must have been passed along to the property owners. That is also a very good argument. Unfortunately I don't know of any other guidance that I can give to you. You just need to decide in the best fairness and equity that you could come up with who is deserving of the refund of this approximately $200 per unit plus interest that will be going back either to the developers or the property owners. I know we don't pay the Planning Commission, and this is not why you make the big bucks, because you don't get paid anything. It is your discretion up here and I don't know of any ways that I can give you anything to guide your discretion. I looked back to the legislative history of this and I could not find anything that indicated what the City Council wanted you to look at. I think there are just certainly leaving it up to your discretion and I don't know of any other guidance that I could give you. May I continue? Mr. Williams, if I understand what you are telling us correctly is the first thing is we have to make a finding of fact that the offsite improvement has not been constructed within five years, is that the first finding of fact we must make? Williams: That would be finding that that is not necessary. Estes: Then the second finding of fact we must make is that the offsite improvement is necessary and feasible and can be built within a reasonable time, is that correct? Williams: Yes, that cracks the ordinance. Estes: Then the third finding of fact would be that the offsite improvement is not necessary. Williams: I thought that was the second one that it is not necessary? Planning Commission April 29, 2002 Page 22 Hoffman. It was the first one. Estes: Well, could not one finding of fact be that to determine the offsite improvement is still necessary and feasible and can be built within a reasonable time? Williams: I don't think you could make that with the statements here from our City Engineer that it is not necessary. Certainly, you need to make one finding of fact one way the other, either it is or it is not necessary and is not going to be feasible. My recommendation to you is that the only evidence we have before us is that it is not necessary and not feasible so that would be the finding of fact that you make. Estes: That has been taken out of our providence? Williams: You still need to make that as a finding of fact but unless somebody presents some evidence that this is still a necessary project I don't think you could come to a conclusion other than what the City Engineer has told you. Estes: So that leaves us with a determination or finding of fact that the offsite improvement is not necessary or will not be feasible. Williams: Yes. Allen: I wonder if I were ruling out the third option of written permission from the owners for this money to be used for another purpose? Williams: Of course it says here "With the written consent of the majority of the property owners who have purchased lots in the subdivisions and the developers, direct that the money in the escrow account be utilized for a different purpose, which will specifically benefit the neighborhood." I would simply ask our City Planner, you have notified the owners and developers? Conklin: The owners and developers have been notified. Williams: Have you received a written consent of the majority of property owners to use this for some other project? Conklin: We did not receive any written consent. I did have a copy of the ordinance attached to the letter that they did receive giving the options available to the Commission and that ordinance states that the Planning Commission shall hold a public hearing. That is what we are doing this evening. Maybe the public will give you their opinion on which option they would like to see. Planning Commission April 29, 2002 Page 23 Hoffman: I intend to ask for that when we discuss the residential subdivisions. My reasoning for separating out commercial verses the residential is I think that clearly, if we have our sewer plant underway and Mr. Beavers has not found that there is any compelling reason to go ahead and put this force main in for the commercial developments, that we go ahead and dispense with those and then go ahead and talk. I know additional sale and resale is involved. We'll go ahead and take care of that matter and then we'll go on and hear from our property owners and so forth. Marr: Just so I am clear, notices both commercially and residentially regardless of which the property was went out when? How much notice has the owner of the property had prior to this meeting? Beavers: I think it was about two weeks. I don't remember the exact date that we mailed the letters, but we folded and mailed over 400 letters to all commercial and residential property owners on record at the time I think it was about two weeks ago. Marr: Of the residential ones, are there any of these residential areas represented by a Neighborhood Association? Conklin: t don't believe there are. Marr: Ok, thank you. Estes: Mr. Williams, what we are about this evening is the offsite improvement, the proportionate share and here is my question. If, for example, we find that there has been a default by the developer and I am looking at the AD 01-49 regarding sidewalks that a 6' sidewalk along Wedington was required on the building permit for the previous addition to the Airways building. The sidewalk has never been built. I am going to assume that it is not permissible for us to withhold Airways Freight's proportionate $200 share and apply it to the sidewalk that was never built because what we are talking about here is the offsite improvement that is the sewage treatment, am I correct? Williams: I don't see anything in the ordinance that would allow us to do that. Estes: Ok. Hoffman: I would like to see if anybody has a motion or more discussion on ADM 01-49.00. Motion: Planning Commission April 29, 2002 Page 24 Estes: I move that we approve ADM 01-49.00 A following staff's recommendation of approval of the full refund in the amount of $200 plus interest to Airways Freight. Bunch: Second. Hoffman: I have a motion by Commissioner Estes and a second by Commissioner Bunch. Renee, would you call the roll please? Roll Call: Upon the completion of roll call the motion to approve ADM 01-49.00 A was approved by a vote of 6-0-0. Hoffman: The motion carries on a vote of six unanimously. Planning Commission April 29, 2002 Page 25 Hoffman: Our second item is going to be ADM 01-49.00 B, this is Clary Development Corporation and it is lot 7 Wedington Place. This is going to be an assessment in the amount of $200 for the Sonic restaurant. Motion: Estes: I move for approval of ADM 01-49.00 B following staff's recommendation for approval of the full refund in the amount of $200 plus interest to Sonic. Hoffman. Thank you. I have a motion by Commissioner Estes. Bunch: Could we be more specific and say is it Sonic or is it Clary Development Corporation? I think Sonic may be a leaser. Hoffman: They probably are. We should go ahead and do Clary Development that is listed as the owners of record. Conklin: I would suggest to make it really clear, refer back to the project number, LSD 99-24. Hoffman: Ok. Does the movement accept that? Estes: The movement accepts that. Williams: I assume Commissioner Estes that all of your motions include the findings of fact as you had previously stated? Estes: They do. Williams: Thank you. Hoffman: I have a motion by Commissioner Estes and I have a second by Commissioner Bunch. Renee, would you call the roll please? Roll Call: Upon the completion of roll call the motion to approve ADM 01-49.00 B was approved by a vote of 6-0-0. Hoffman: The motion passes unanimously. Planning Commission April 29, 2002 Page 26 Hoffman: Our third item would be ADM 01-49.00 C, which is the Wedington Place Senior Apaitments. This was LSD 99-04. The refund would be for 144 units at $67 per unit, which would equal a refund in the amount of $9,648 plus interest. Motion: Estes: I will move for approval of ADM 01-49.00 C in accordance with staff recommendations, an approval of the full refund in the amount of $9,648 plus interest. Hoffman: I have a motion by Commissioner Estes. Bunch: Second. Hoffman: A second by Commissioner Bunch. Renee, would you call the roll please? Roll Call Upon completion of roll call the motion to approve ADM 01-49.00 C was approved by a vote of 6-0-0. Hoffman: The motion passes unanimously. Planning Commission April 29, 2002 Page 27 Hoffman: Our fourth item is ADM 01-49.00 D, which is Wedington Plaza, LSD 96- 15. It is a refund in the amount of $1,140 plus interest. Motion: Estes: I will move for approval of ADM 01-49.00 D in accordance with staff recommendations, an approval of the full refund in the amount of $1,140 plus interest. Hoffman: I have a motion by Commissioner Estes. Bunch: Second. Hoffman: A second by Commissioner Bunch. Renee, would you call the roll please? Roll Call Upon completion of roll call the motion to approve ADM 01-49.00 D was approved by a vote of 6-0-0. Hoffman: The motion passes unanimously. Planning Commission April 29, 2002 Page 28 Hoffman: We will go ahead and skip down to ADM 01-49.00, which is Wedington Place subdivision and this is FPL 96-12.00. The assessment would be a refund in the amount of $2,560 for lots one and two plus interest. Marr: Could we maybe have a little discussion from city staff on this particular one since it was separated and why there is no recommendation and there were on all the other commercials. I am just curious, every other commercial had a recommendation on it and this one, having been last in this packet, with no recommendation, is there something specifically different about this situation? Beavers: Just the fact that it is a subdivision. I don't know if any of the lots have sold to other individuals or not. Estes: Part of the findings provided to us are that the record shows that the original developers of the subdivision do not currently own lots one and two. Mr Conklin, how in the world are we supposed to make a determination of who to refund this money to if we don't have before us these simple owners? What are we supposed to do? Conklin: This is the same situation you will have with the residential. The lots have sold. Hoffman: Ok. Conklin: Does the developer who developed the subdivision get the refund or do you split the refund between the property owners? Hoffman: Is there a representative for this Wedington Place subdivision present? Seeing none, I would suggest a motion to table. I will make a motion to table. Marr: So moved. Hoffman: Ok, I have made a motion and I guess it is seconded by Commissioner Marr, is there any discussion? Renee, would you call the roll? Roll Call: Upon the completion of roll call the motion to table ADM 01-49.00 O was approved by a vote of 6-0-0. Hoffman: The motion to table passes. We will wait to hear from the applicant and reschedule this item for rehearing. Planning Commission April 29, 2002 Page 29 Hoffman: Ok, are we ready to start with the residential? We are back to item ADM 01-49.00 E and I would like to have a general discussion first from staff and again with Mr. Beavers. Sorry, I want to go ahead and keep it together. Then from the applicants and property owners regarding the refunds on these properties. Mr. Beavers could you go ahead and explain to us the history behind the residential subdivisions and why we are here now. Beavers: Again, lets go over conversations I had with Mr. Bunn before he left in looking at the files for Heritage Village. I believe it started with Heritage Village Phase I and concern over the capacity west of the Porter lift station and the potential need for a new force main back along Wedington, some route along Wedington toward the Porter lift station. Mr. Bunn did an estimate and looked at the land and the potential number of lots that would contribute to this and came up with an estimate of $200 per residential single-family or duplex. Apartments, we estimated those at a different rate to try to come up with the equivalent. Hoffman: Ok, thank you very much. Is there any interested party that would like to come address us on these residential subdivisions in general? I am going to take them all together. We will be voting individually though so help me out Mr. Vice Chair, you've had more experience at this than I have. Estes: What was the proposal? Hoffman: My idea was to discuss in general the issues both pro and con that Mr. Williams and others have articulated with regard to the refunding, whether it be to the original developer that posted the money or to the subsequent buyers of the property and that we just discuss these items. We have nine items remaining that are all separate properties but we could go ahead and discuss the general issues involved and then vote separately on each item. Estes: That would be appropriate I believe, if Mr. Williams concurs. Williams: Yes and let me note what my tentative ruling is going to be on voting. I think that this is not one of the items that requires an absolute five votes to pass being an administrative item. With six members here the majority would require four votes to pass. I just wanted to get that out of the way before we do any voting. Is that everyone's understanding with how the rules will be? Hoffman: This is not like a conditional use or a rezoning. It just falls under simple majority. Let me ask this. At this time I should ask if there is any member of the Commission that needs to recuse on any of these items. Hearing none, we will go ahead with our six members. Who would like to address us on the residential properties? Yes Sir, if you will come forward and tell us your name. Planning Commission April 29, 2002 Page 30 Ash: My name is Larry Ash and I am here in two capacities. One is I own ten houses that I purchased from BMP Properties in 1995 and 1996. I have a financial interest in what I am going to tell you. It also happens that I was appointed to the Impact Fee Stakeholders Committee as a representative of the Northwest Arkansas Homebuilders Association. The Homebuilders Association feels very strongly and has been very consistent both as this issue has been debated in Bentonville and in Fayetteville that these kinds of costs are passed along in full to the buyers. The development community, to the extent that the Homebuilders have spoken on, as an association, have taken the position that to the extent the market allows, they will pass additional costs, like impact fees and this is really kind of an early form of impact fee, onto the folks that are buying these properties. I guess I've identified my conflict of interest here so I will sit down at this point, thank you. Estes: Mr. Ash, may I ask a question please? First of all who do you represent? Ash: Estes: Ash: Well, this evening I am here representing myself as a property owner. It happens that I've been serving in the capacity as a representative of the Homebuilders Association on the Stakeholders Committee. Our association's position is that the builders pass these costs along in full to the buyers of new homes. If these costs are passed on to the individual home owners in full is that then appropriate to refund those amounts to the individual home owners and not to the developers? Speaking as an individual now and you know, our board has not taken a position on this issue, but speaking as an individual it would seem to me that would be the equitable way to handle it. Again, I want to say that I've got a personal financial stake in it but at the same time, builders can't very well come out before public bodies and say that they are going to pass these costs along and then come back and say "No, we absorbed them." You can't have it both ways. Ward: Larry, on this, when you bought the lots did you buy them and then build? Ash: No Sir. I bought ten lots from BMP Properties, Mark Marcos. Ward: Did Mark, when he was selling those lots to you, say that you were having to pay a little extra on each lot because of the Hamestring Creek sewer escrow money? Estes: No Sir, he sure did not. Ward: Ok, thanks Larry. Planning Commission April 29, 2002 Page 31 Bunch: A question for Mr. Ash also. In our language here on how we distribute this it definitely calls out developers and subdivisions but it doesn't say anything about builders. It says people who buy the lots but then the builder buys a lot from the developer, if it is a party other than the developer and then you are saying that you would pass that fee along if, in fact, that fee is charged to you. My question is how do you know whether or not you have been charged that infrastructure fee? When we ask the developers that, you as a builder don't necessarily know whether you have been charged that fee and whether or not you've passed it along to the home buyer? Ash: I have another hat too that I should reveal. Professionally speaking I am a PhD Economist There is a whole analysis in economics called the incidence of tax analysis. To be very honest about this, the incidence of taxation is never 100% one party or the other. It is almost always shared to some extent between the seller and the buyer. Once you have what we call perfectly inelastic demand, in other words a demand curve, buyers will pay any price. The ability of developers and the ability of builders to pass these things along depends on the strength of the demand for the final product. Which, in my case, are these residential houses. Obviously, there is no evidence on this point except to say that these things sold like hotcakes so demand was pretty hot. I know BMP Properties sold out those Pine Crest subdivisions pretty quickly. That is just a subjective view of what the demand was like. My sense of it was they didn't meet much price resistance so they were probably quite able to pass these costs along. I would imagine that was true at both the development stage and the home building stage but you know, that is pure speculation on my part. Bunch: Thank you. Hoffman: Is there anybody else? Bandera: I am Valerie Bandera. I live in the Fieldstone Subdivision. Is that one of those subdivisions represented? I did not get a letter or anything and none of my neighbors did either. As far as I was told is that the developer didn't pass on the fee to me. Hoffman: I don't think Fieldstone is in here is it Tim? Conklin: No, I don't believe it is. Hoffman: I think that was before this started. Bandera: Thanks. Hoffman: Thanks for coming. Yes Sir? Planning Commission April 29, 2002 Page 32 Greenhaw: My name is John Greenhaw. I am an attorney with Greenhaw and Greenhaw in Fayetteville. I am here on behalf of CMB Land and Cattle Company Incorporated, which Mr. Beavers referred to as Mr. Bundrick. He is an officer in the corporation. If I might for a minute, I would like to thank Mr. Beavers for his history on this issue. I can't speak for the other subdivisions that are being brought up tonight but I can speak about Heritage Village. Mr. Beavers, as he correctly pointed out, this began back in 1994 and carried on into 1995 when the Planning Commission, rightfully so, was concerned about growth in west Fayetteville and how to get the sewer out to the Nola plant out in east Fayetteville. With the rapid growth in Fayetteville that was a concern to the engineers and Don Bunn. It was negotiated between CMB and Don Bunn and the City that there would be an impact assessment fee per lot at Heritage Village and Mr. Bunn came up with a figure of $200. In December, bear with me just a moment, on December 18, 1995 CMB made one payment to the city for $20,000 and the following February 2, 1999 made another payment of $9,400. That was to cover the approximately 147 lots that were approved by the Planning Commission for the Heritage Village estates. That money was paid by CMB Land and Cattle Company Incorporated. I appreciate the comments of Ms. Davison, who spoke earlier. I think her argument has merit, unfortunately I disagree with her assessment of this situation. I don't believe that we live in a perfect world. Mr. Ward, I think you know as well as anybody, and Mr. Ash just touched on it, that no two pieces of land are the same. Each piece of land is unique. No two lots in any subdivision are exactly alike. What you are going to get, or what a landowner is going to get when he develops that property, is what the market will bring. The facts in this case, and Mr. Estes, you talked about an evidentiary matter on this, I will try to touch on that briefly without taking much time. CMB didn't sell these lots for $12,200. Some were sold for $12,000. If a builder bought five or more lots there was a substantial discount on price per lot. There were some builders that, without mentioning names, I think bought in excess of ten lots and built houses and their price per lot was substantially lower than someone who just bought one lot. Again, Mr. Ash touched on it, we don't live in a perfect world. That $200 was not tagged on at closing to whoever bought the property from CMB. It is impossible to show that that was absorbed by anyone except CMB. What we do have, as far as an evidentiary matter on this, is that there are checks that were deposited into the City of Fayetteville back in 1995 and those checks were drawn on the account of CMB Land and Cattle Company. The ordinance that you are going to rule on this evening is clearly valid but only so long as it is contingency upon a moral obligation to make sure that the injustice and inequality, which has resulted among those being assessed is repaid. In this case, clearly CMB Land and Cattle Company are the ones that paid that to the city and are the ones that are entitled to the refund thereof. I would be more than happy to Planning Commission April 29, 2002 Page 33 Estes: Goodwin: Estes: Greenhaw: Estes: answer any questions on behalf of CMB and Heritage Village Estates if I am able to. John, how were the lots costed? In other words, I presume that the raw land costs were included Mr. Estes, this was old property. Richard Bundrick, who is one of the officers and shareholders of CMB was born and raised in Fayetteville and educated in the Fayetteville school system, there has been some mention that he might be from Tontitown or some place like that that makes him different than a Fayetteville developer. He was born out on the west side of Fayetteville. This was property that he bought at a young age when the demand was such that there was a need for affordable homes in west Fayetteville. CMB Land and Cattle Company sought to develop that. Because of the concerns of Don Bunn and the City at that time, there was an agreement reached to assess this impact fee to help that force water main in the even that the final plat was approved and they had to find a way to get the sewage out to the Nolan plant. The acreage that was involved with this on Phase I and Phase III don't recall, it was approximately 147 lots for Phase I and Phase II. Of course all of the lots, and of course some lots were configured differently than other lots, but generally, the average price of a lot in that subdivision sold for around $13,000. Some were a little higher if there was a bigger lot. If it was something about the lot that would make it more difficult to build on, of course those lots were reduced in price to sell them. Again, the price of the lot is market driven. There is absolutely no proof that that $200 per lot owner was passed along to anyone. I might also point out if I might briefly, that some of these lots have sold in excess of five and six times since 1995 when they were assessed. The principals at CMB feel it would be an injustice to have a windfall for someone who, clearly there is no traceable way to show that this person absorbed that $200, who may have owned that thing in chain of title five person subsequent. Mr. Greenhaw, my question was how was each lot costed. By that I mean typically you would think about raw land cost, you would think about professional fees, you would think about the cost of labor and materials for the infrastructure. Can you tell us how these lots were costed? No, not with any exact certainty. Ok, let me ask you this. On the income tax returns of CMB Land and Title Company, Inc., did CMB Land and Title Company, Inc. deduct the $20,000 and the $9,400 as a cost fee or assessment at any time? Greenhaw: I can't answer that question with any exact certainty. I would assume of course... Planning Commission April 29, 2002 Page 34 Estes: Greenhaw: Estes: Greenhaw: Estes: Greenhaw: Estes: Hoffman: Davison: Hoffman: Davison: Hoffman: Do you agree with me that that would be important information to have at this time? Absolutely. If it was not deducted as a fee assessment or cost is it fair to presume that it was then imputed in costing the individual lots, was included in all land costs, professional fees, labor and materials or infrastructure? I don't pretend to be a tax expert Mr. Estes. I would say that I wouldn't think that CMB specifically wrote that off as a loss but that that came off any type of profit that they would have made on that project, if any. No, I am not suggesting a lot but what I am suggesting is that in the generally accepted accounting procedures would require that cost be deducted from gross income to arrive at some net figure. Of course, a basic and fundamental principal of tax accounting is to minimize income and maximize cost. If in fact, it was a true cost you would expect to find these deducted as taxes, fees or assessments. I suspect that is the case, I am just not prepared to answer that with any exact certainty. I would sure like to have that information before I vote on this item. Mr. Greenhaw, if you don't mind, I would like to give the other people a chance to speak and then we can certainly come back and address the questions. Did anybody else want to come up? Yes Sir. I am Andy Davison and I have purchased a home out there about eight months ago. Where is your home Sir? Heritage Village. One of the reasons why we purchased the home, in question is Mr. Richard Bundrick I think is his name, he wrote these covenants up, they look like a novel. He has got about 28-30 homes there that he rents. We have an Association and it is $60 a year. He will not attend. We've had two meetings, the Association has since I've been there, he will not attend any meetings. He told me personally, he said "I'm only going to pay my dues." I kind of understood that until I went to the first meeting and come to find out he owns the majority of the rentals, 28. If we can't get him to support us on the covenants, which he is not, then what is our neighborhood becoming? I see that everyday. We are not supposed to have any parking on the street, you are supposed to park in the back. Planning Commission April 29, 2002 Page 35 Hoffman. Ok, I'm sorry, I need to ask you to keep your comments to the issue at hand and that is the refund of the escrow accounts if you could talk to us about that. Davison: I am in favor of the refund to the home owners. I was just maybe getting off line as far as what has been done out there and what he has promised and what he has not given. Hoffman: I am supposed to keep us in line here so I'm trying to keep us on this particular subject. Davison: I am just a little bit perturbed and pushed out of shape. I have invested my hard earned money there. Hoffman: Commissioner Bunch, did you have a question? Bunch: Yes, Mr. Davison, in the covenants and the papers that you have with your property that you purchased, is there any mention of a property owner's association having responsibility for drainage and other items that are in common to the members of the community? Davison: No, I've never seen anything in the covenants saying anything to do with drainage. Bunch: Many of the developments in this area that we're speaking of have this sort of thing, whether above ground drainage items that the City does not accept. Many of the final plats do have comments on them that drainage and other things are the responsibility of the Property Owner's Association. I was just wondering if possibly you knew if that was the case in your subdivision. Davison: No, the copy of the covenants that I have as I recall, is nothing to that effect. Bunch: Ok, thank you. Hoffman: Commissioner Ward, did you have a question? Ward: Yes. Mr. Davison, you bought your home about eight or nine months ago... Davison: Eight months ago. Ward: Were you the first owner of the home? Davison: No. Planning Commission April 29, 2002 Page 36 Ward: So somebody has lived in it before? Davison: Yes. It was another builder that rented them out for a couple of years. Ward: Ok, thank you Sir. Hoffman. Commissioner Marr? Marr: Mr. Davison, you said that you believe that the money should be refunded to the home owners, was there any discussion with you about the fact that you were paying $200 for this particular impact fee or what is your basis for why you think it should come back to you? Davison: Well, those fees are never discussed when you buy a home. I have been in real estate in another state for several years. That is just something that is built in. They are not going to say "Well you're going to pay an impact fee here on that." That is just a built in factor. It is like an insurance company, say State Farm, they have a hail storm or something, well the next thing you see in the paper, your rates are going to go up I think this is some of the same thing. They just put it in there but it is not written out in black and white. Marr: Thank you. Hoffman: Thank you Sir. Did you have anything else that you would like to tell us before we go on? Davison: No, thank you. Hoffman: Thank you very much for that presentation. Parsley: My name is Kevin Parsley and I live in the Salem Village subdivision. The improvement funds that was charged, it was charged to me within our developments. I did appreciate the fact that you are bringing this to the table and that the residents of the area will have an opportunity to receive this refund, as far as the $200. It should go back to the homeowners. Hoffman: So in Salem Village you actually had that as a line item on your closing statement? Parsley: Yes, I did. I think that it is important to also note that because of this development being very new, there are only about fourteen homes. One of the owners in the area actually owns about eight of the homes and is renting that out, so that is going forward as far as any additional lots that are sold that I would agree to the fact that the current owner of those lots should be able to receive that $200 refund so you are looking at kind of a Planning Commission April 29, 2002 Page 37 mix between the two as far as a residential and a developer in that particular development. That assessment should not be passed onto the homeowners going forward after the fact that it has been refunded back to the developers of those particular lots out there. Did that make sense? Hoffman: Yes. Parsley: Ok, thank you. Hoffman: Thank you very much. Is there anybody else that would like to come up and speak? Yes Sir. Helmer: Hi, I am Bill Helmer. I am the project manager for Creekwood Hills Development, which developed Bridgeport Subdivision Phases III, IV, and V. I appreciate everything that John said, and I can appreciate what other folks have said too. The one point that I would like to point out is the difference in this fee and a proposed impact fee that people are arguing about is that this fee was assessed to certain developments that still had to compete in the market with other developments who were not paying this fee. Yes, everything that we do is an expense and is figured into the cost of the development, but on the other hand, we have to compete with the other markets to sell our product we have to price it compared with the other developments who were not paying this fee. I think that is a very distinctive differential there. Obviously, since the developers did pay it I feel like it should go back to the developers. Marr: What is the average price of the homes that you actually sold in that subdivision? Do you have a ballpark figure? Helmer: Average price of the homes? Marr: When you look at these, are they really large homes, are they small homes? Helmer: They are fairly large homes. The homes out there, of course we do have a wide price range, homes out there range from $150,000 to $350,000. Marr: Ok, and this development started in what year? Helmer: The development started I believe, it was before I was there, but I believe the development started in 1994 if I'm not mistaken. Bunch: What about lot costs? Helmer: Lots ranged, here again there is a wide range of lot costs because of the difference in sizes and location and what have you, lots ranged from about $29,000 up to $50,000. Planning Commission April 29, 2002 Page 38 Estes: Mr. Helmer, when you said a moment ago that everything is included in the cost, were you referring to the lot cost? Helmer: I was referring to the cost to the developer. Estes: In order to make a profit does the developer pass that cost on to the lot buyer? Helmer: If he is able to, I mean he would in the fact that the, no Sir, not necessarily. Not anymore than any other cost I guess I would say. In other words, our price was determined from looking at what the market would allow out there and then it worked really backwards from there as to what development costs were going to be. At the time that was initially done, this fee, because we had done Phases I and H and this fee did not apply. Actually, from that point of view was not taken into consideration as a cost of development. Estes: Is it your testimony that the developer absorbed those fees and did not pass those on to the people who purchased the lot? Helmer: Yes it is because the developer would've sold the lots for the same price, because that is what the market would allow. Estes: Were there lots sold in Phase I that were sold for less than lots that were sold in Phase III? Helmer: Yes, but they were smaller, we get into a lot of different perimeters because there were some smaller lots. There were also lots in Phase I that sold for more than there were in Phase III. Bunch: Mr. Helmer, I am having trouble determining how you differentiate between this one impact fee and other infrastructure fees, such as streetlights, drainage, fire plugs, parks fees which are assessed. This is all assessed right up front at the Preliminary Plat stage, so it is not like it is an add on late in the process. For a $50,000 lot I am having difficulty seeing how the $200 is not passed on and is treated any differently than the parks fees or the distribution of engineering fees or any of the other associated costs. Could you please tell us how that $200 is treated differently from the parks fee or from any of the other costs that have to be distributed to the various lots? Helmer: I would not contend that it is treated any differently there at all. I am just saying that it does not add any, I guess what I was addressing was the argument that the developer has carta blanc to determine his sales price, and if he is charged an additional fee that he just adds it to the cost. I don't think that that is the case. I think it would, as the gentleman was Planning Commission April 29, 2002 Page 39 speaking about whether the Homebuilder's Association argument, if you add a cost to every lot in Fayetteville then over a period of time actually that is going to increase costs, or wind up having to increase values of all the properties. If you got an additional cost in one subdivision, just like if there was something else that caused you to have to pay more to develop that, whether it be that you had to extract rock or anything, you are not allowed to just turn around and add to your lot costs, just because you ran into a rock that you didn't expect to have. You still have to stay within the perimeters of what the market will allow you to sale those lots for. That was my only argument. Bunch: In Bridgeport Subdivision specifically, there were four or five phases? Helmer: There were six phases. Bunch: It seems like that it has been a very successful subdivision and there is considerable demand for it and it would seem reasonable and prudent that the developer hasn't been going broke because they seem to still be adding divisions on. Helmer: Haven't yet. Bunch: It would seem rather prudent to distribute all of the cost of development across the various lots, whether it be engineering, streetlights, fire plugs, drainage, street, sidewalks. I am having difficulty seeing how a $200 per lot charge is in some way treated differently than the sum of all these other costs that are distributed across the lots. Helmer: I don't know that I intended to make that point. Bunch: Are you basically saying that they cost figured the rest of everything else? Helmer: Right, my point is that pertaining to it that we were not allowed, that the market didn't allow us just to get $200 more for those lots just simply because we paid that $200. The same as with the power company, when they charge us a per lot fee, they are not charging us more than they were earlier to put the electrical power in there but that does not make the lots worth any more because the people who buy the lot expect it to have electricity. The people who buy the lot expect it to have sewer. The fact that we paid extra to be able to provide sewer did not make them want to pay more for the lot. That is the only thing I was wanting to point out. Marr: I just want to make sure that I understand this. You are in agreement that it is based on the economic demand of a division, whether you can build that in or not build that in. If the market demand will allow you to get that cost back then it will typically be built in the cost. Planning Commission April 29, 2002 Page 40 Helmer: Yes, you could say that or you could also say that if the market would allow without it that you would sell it for the same thing. I understand what you're saying, yes. Marr: Then I guess that takes me to my next question which is that it appears tat this particular subdivision has had quite successful demand. I mean we are in Phase VI of it right? Helmer: Right. I want to point out that the developers still own probably half or better of these lots in this particular phases. Marr: In each of the phases we are talking about today? Helmer: Right. Hoffman: Thank you Sir. We may have more questions for everybody. This is a different kind of public comment than usual. I have a question for staff that I would like to know. On previous refunds have they been of a similar nature or have they been for sidewalks and road improvements? I know that we have had some refunds that we've done recently in some divisions, have they involved infrastructure or have they involved sidewalks and so forth? Beavers: I am only aware of two in fairly recent times. One was on Poplar Street several years ago and one recently with the Archers and both of those involved street improvements to one individual in both cases so you didn't have this problem of having a subdivision with separate owners to make this decision. Both of those were very clear that the improvements were determined by the Planning Commission not to be needed within a time period. The one with the Archers, I know they got their refund. The one on Poplar Street, I think they did. Some other members of staff didn't think we refunded that. It was seven or eight years ago I think, I don't remember. Hoffman: Ok, thanks Mr. Beavers. The reason I asked that question is because going back to Mr. Williams' memo, if we were to treat all of the residential subdivisions in the same manner, it looks to me as though we are looking at a dart board and we've got some development properties on one side that may or may not have passed these costs through, we have a citizen telling us that Salem Village did actually have the charge passed through and if we are to handle everybody equally I am having trouble with trying to figure out how to do that given the fact that we've got different situations. Could you help me out here? Williams: I did say on page two of my memo that this should be a uniform rule and all affected residential subdivisions unless you can point to a substantial, clear difference between subdivisions and the payment of the sewer Planning Commission April 29, 2002 Page 41 assessment. I would want, if you are going to decide things differently from one residential subdivision to another there should be a clear finding of fact of why you do that. That will be more difficult to do than having a general rule for all. Hoffman: Ok, I appreciate that. Allen: I don't see how we can determine that at this point. I wonder if this is an item that we should consider tabling. Hoffman. Is that a motion? Allen: Yes it is. Hoffman: I have a motion to table these items, is there any further discussion? Williams: Before we table it you should probably indicate to the developers, and property owners, and staff what the Planning Commission requires to make up their mind on this so that they will have an idea of what they can provide you. This is a difficult decision and it is not going to be their decision no matter what. That is clear. The only time it is going to be easy is when the owner and the developer are one in the same, which we had in the past and which we have in some of these commercial ones. This can be a difficult decision but please give some guidance and not just table this without guidance. Marr: I know we have these clear two options primarily since we have no other plans in front of us. Is there any ability for us to actually divide this $200? Perhaps $100 to go to the person who actually paid the fee and $100 of it to go to the existing landowner, if that happens to be the same person then they get it all? Williams: I wish that were an option but that is not the way I read this ordinance. The ordinance says you either refund the money with accumulated interest to the subdividers who made the contribution or distribute the money to the property owners. Marr: It doesn't allow us to have a combination? Williams: Of course Tim is the official interpreter of the zoning ordinances so I guess I would defer to our City Planner for his determination. Conklin: I agree with you. My interpretation is the same as Kit's. Beavers: I would like to make a statement. I really anticipated this as a question but it wasn't asked. I think you should know that I was witness to at least one, and I think more than one, conversations between Mr. Bundrick and Mr. Planning Commission April 29, 2002 Page 42 Don Bunn where Mr. Bunn, even though he may not have had the authority to state this, did state to Mr. Bundrick that if he would wait and not bring this up as an issue before the Planning Commission until after the vote on the sales tax to support the bonds for the treatment project, that he would receive a full refund of the monies that he had paid into the city. Hoffman: Thank you for being so clear on that. That is a perfect example of what I am saying. I have on the one hand the fact that certain people were promised certain things and on the other hand, the cost were passed through. It is a question of how to handle it equitably for everybody and I think that is what we are all charged to do and we are going to do our very best to do. Bunch: I just wanted to ask our City Attorney what the limitations are on a verbal contract. Williams: Well, verbal contracts don't affect the interest in land. Of course, we are talking about money here. On the other hand, our Assistant Public Works Director, Don Bunn, who was also City Engineer for a long time, certainly does not have the power to make that decision. That decision was clearly vested in this body, the Planning Commission, to make that decision. I don't know, I am sure Mr. Bunn had the best intentions when he made that statement, but he can't bind the Planning Commission with that kind of statement. I would also say that Mr. Bundrick would've suffered no harm or detriment because of that statement being made because of waiting. He has the same rights now as he would've had then if he brought it any sooner. If he wanted to bring it before the election it would've been here before the Planning Commission like it is right now so there is really no difference between bringing it earlier and bringing it now. I don't doubt that Mr. Bunn said that, and you can take that into account for what it is worth, but it is certainly not binding upon the Planning Commission. Hoffman: Thank you. Commissioner Ward? Ward: Since we've got a motion to table this, I kind of think we need to set things out a little clearer. I think that if the money is not paid back to the developer the only person this could really be passed onto would've been the first buyer of the lots. These are residential lots we are talking about, and in most cases, as Larry Ash pointed out, these were contractors, builders and in most cases getting a large discount price because almost all of these subdivisions out here are bought by these type of homebuilders and they put up anything from one to twenty houses in these subdivisions and in most cases these same builders and contractors work with these developers over and over again, not just in one development but several developments. My feeling would be that if we do not give the money back to the developer it should be only to the first buyer of that property. That would've been the only place it would've passed onto. I don't think Planning Commission April 29, 2002 Page 43 going to the third or fourth homebuyer, or third and fourth property buyer has anything to do with this being passed on. I do think that where buyers in Salem Village can show us on a closing statement or so on that they actually were charged for this Hamestring Creek sewer escrow fund then I think definitely all that money should be given back to those particular people for sure, and not back to the developer. I think that since we're doing this on a case by case, subdivision by subdivision, splitting up the money I think it is going to be pretty easy to do. In Mr. Bundrick's case I really do feel like that in my case personally, I know that when City employees and other people tell Mr. Bundrick in this case that if this escrow money is not going to be used that he would definitely get the refund back, I truly feel like in my case we have to back that up. It is kind of like the error we found on Garland Street with the rezoning. I think the City really needs to try to do what we say we'll do. If we table this I think the main thing is that for each of these subdivisions we need to be sure that it is either going to be the developer or the first buyer of the property and if it is like in Salem Village, it seems to me like if they can show on their closing statement they were charged for this then gee whiz, it is definitely something that needs to go back to them. I don't think that is going to be in any of these others. That is my take on it, if we are going to table it those are things that we need to see from either, any of the homeowners that would have that. Hoffman: I get the sense that if we do entertain tabling this, that the developer or whichever developer, would want their total amount back would be bringing in items having to do with their tax statement showing the line item. I am trying to figure out here, we have people over here with a piece of paper, a closing statement, that we can point to. Where I have difficulty is I understand about market values and market driven prices and so on and so forth, but it seems to me that the soft costs involved in development are really hard to trace and I am having difficulty trying to figure out where it has gone to. Estes: I would respectfully disagree with some of Commissioner Ward's comments. Mr. Ash has been very candid with us and has explained to us that it is the position of the Homebuilder's Association that these costs are passed on. I find it incredible to suggest that after these costs are passed on that the homebuilder would then suffer the cost and not pass it on to the subsequent buyer. I notice that several of my fellow Commissioners are grinning and nodding their head so they must likewise agree. I would find it incredible that that cost would not subsequently be passed on down the chain of title. I am prepared personally, to dispose of each of these matters this evening. My analysis is that a basic and fundamental principle of cost accounting is that fixed and variable and incremental costs are included in costing a lot, raw land cost, professional fees, cost of labor and materials, and fees and assessments would be included and likewise would be passed to each subsequent purchaser in the chain. It Planning Commission April 29, 2002 Page 44 would be my opinion that each simple owner of the property as they exist today are entitled to the refund. Hoffman: I am going to ask you a question, not being as savvy on tax matters and so on and so forth, if one of these items fails to be refunded to the developer and I believe that the recourse now would then be to District Court, what types of information would the District Court be looking for in order to make a determination? Estes: I will refer to Mr. Williams in that regard. First of all let me say this, the appeal would not be at the District Court, it would be at the Circuit Court. I would think that the Circuit Court would be looking for those evidentiary findings of fact that we've already discussed. Williams: I think that the Planning Commission has heard actually sufficient evidence to make a decision tonight. Obviously, there can always be more evidence and more things gathered but we've heard good arguments from both sides of this particular dispute. I think Mr. Greenhaw has made good arguments and presented good facts, as well as the other developer there. On the other hand, I think Mr. Ash and the other citizens have made arguments why it would be more fair to pass it on to the current owners. It does say property owners in the ordinance. I think that Mr. Conklin's original interpretation that the money go to the current owners, is that your interpretation of this ordinance? Conklin: That is correct. Williams: That is your two options really I think according to Mr. Conklin who is empowered by the Unified Development Ordinance to be the official interpreter of these sorts of ordinances so therefore, I would yield to his interpretation, but I also personally agree with it that it is the owners and not former owners that you would have to consider in this particular case. Besides, logically, either it was passed on or it was not. If it was passed on for the first owner then he is going to pass it on too. If it wasn't passed on then it should go to the developer. I think that you have heard sufficient facts. If you wish to make a decision. Obviously, there can be more facts presented in the future if you would rather do that. Hoffman: Thank you Mr. Williams. I have a motion on the table from Commissioner Allen to table this pending further information, do I hear a second on that motion? Seeing none, I will go ahead and entertain motions for each individual item. We are on ADM 01-49.00 E. Before we go to motions or further discussion on the part of the Planning Commission, is there anybody else who would like to come back up and talk about this? Planning Commission April 29, 2002 Page 45 Parsley: Hoffman: Parsley: Hoffman: Bunch: Beavers: Bunch: Beavers: Bunch: Helmer: I know I can't speak on behalf of the other subdivisions, but again, on behalf of Salem Village, I don't know if you guys have seen this development out here before. I have been there for two years, and if you look at the quality of the homes out there, I have lived in several different areas and the quality of homes out there far exceeds most that are actually probably built in Fayetteville. If you look at that alone, if you have to identify and narrow down why that development is not taking off and it is because some of the improvement assessments that have been on the property owners of why that development is not going in the direction that it needs to. I think that this is a step in the right direction if you do get this refund back to the homeowners. It will help us out within that neighborhood to continue to develop that, which is a quality neighborhood. Again, I think that it far exceeds most the developments in the City of Fayetteville. While you're up here, since you seem to have the clearest case for the refund to the current property owners, you are aware that we have a third clause that your Property Owners Association, or whoever could get together and decide on a community improvement? Yes. Ok, thank you. Concerning item AD 01-49.00 E, there is a discrepancy in the number of lots and the amount of money taken in, I was wondering if possibly Mr. Beavers could bring us up to date on that. We are showing 14 lots with only $2,600 collected. If we are going to do any refunds we need to find out which lot did not pay so they would not be eligible. Mr. Doyle, who has since passed away, it is my understanding that his house was on multiple lots and I don't remember the lot number in that development. It is a big house there by the creek on the bottom of the hill. Are you saying that would be lot number 122? Sir, I do not know the lot number. Or possibly there was an existing house before the assessment was made or an unbuildable house? I wasn't involved in Phase III, but I do know that Mr. Doyle's house was built on what became lots 122 and 123 before Phase III was developed it was actually built during the development of Phase I and II. I am assuming that those two lots were probably not assessed is what I was assuming. Can I make another point? Planning Commission April 29, 2002 Page 46 Hoffman: Helmer: Beavers: Helmer: Hoffman: Ash: Hoffman: Greenhaw: Yes Sir. Another point I would just like to bring to your attention of course is that I assume that these did go out to all of the homeowners in Bridgeport? Yes Sir. I would just make it a point that there are no homeowners from Bridgeport here. Simply because I think they are quite pleased with the price that they paid for their lots. Thank you. I would like to go to this question of who pays. I am reflecting on the last couple of meetings of the Stakeholders Committee. Tim was there and can tell you if I am getting this right, probably the biggest issue before the Impact Fee Stakeholders Committee was if we do impact fees, can we grade them so that the lower cost housing isn't hit as hard as the higher cost housing. Staff went back to the consultants and asked the consultants to analyze that issue I think there was unanimity among the members of the Stakeholders Committee that that was a very significant policy concern. I think that if you are looking at some folks who have looked carefully at this issue of incidence on these charges, there is no question but that the folks who buy the house are the ones that are paying it. In so far as the impact fee debate is concerned, the issue isn't when will homebuyers pay these, the question is is it fair to charge everyone the same amount. I think there is a consensus certainly among the city staff and certainly among the Impact Fee Stakeholders Committee, that these fees are in the end, paid by the folks that buy the house. In fact, the issue was never debated, it was just assumed that these things are passed through. If we have a slow housing market in Fayetteville, you might debate the point but the truth is except for the higher end market, the houses sell pretty fast around here, which suggests that sellers don't have much trouble passing these costs through. Thank you. Thank you. If I might for a moment. I am a little concerned about the discussions that took place earlier that lead me to believe that maybe one of the issues that you will be considering is what kind of profit the landowner or the developer made on this project. I would like to ask you to refocus just to the facts of this case. I call this a case because more than likely that is where it is going. There is absolutely no proof on record that any subsequent purchaser of a lot at Heritage Village subdivision was specifically assessed a $200 fee. The facts show clearly, that CMB Land and Cattle Company cut checks to the City of Fayetteville and they detrimentally relied upon the assurances of Don Bunn at that time who Planning Commission April 29, 2002 Page 47 explained to them that if you go ahead and pay it now, if you don't challenge this assessment, you will get a full refund at the end of five years. I might add that almost two more years have gone by since the expiration of that five years. What I would like to hammer on in closing and I'll just end this briefly is that what I am asking you to do is to do what is right. There is absolutely no proof, and lets stick to the facts, there is no fact in here that anyone at Heritage Village was assessed this fee. There are facts that that was paid by the Bundricks and CMB Land and Cattle Company. If you are going to do what is right, that money is rightfully theirs, they are the ones that paid it and I think each of you know that. Thank you. Hoffman: Thank you Mr. Greenhaw. Commissioner Estes? Motion: Estes: I would move that with regard to ADM 01-49.00 E the administrative item for Bridgeport subdivision Phase HI, that the money in the escrow account be distributed on a pro rata basis to the property owners. Hoffman: I have a motion by Commissioner Estes to refund the money to the property owners for Bridgeport Phase III. Bunch: A question for Mr. Estes in making your motion. What determinations are you making on lots 122 and 123? Is that one fee goes to cover two lots since there were 14 Lots and fees for 13 lots were paid? Estes: I have accepted Mr. Beavers comments, lot 122 would be joined to lot 123, and that would be Linda C. Doyle, Trustee of the Linda C. Doyle Revocable Trust. Hoffman: Do you accept that? Bunch: I will second. Hoffman: I have a motion by Commissioner Estes and a second by Commissioner Bunch to refund the escrow amount to be prorated between the property owners. Is there any additional discussion? Renee, would you call the roll please? Roll Call: Upon completion of roll call the motion to refund the assessment on a pro rata basis to the property owners was approved by a vote of 4-2-0 with Commissioners Ward and Hoffman voting no. Hoffman: The motion passes on a vote of four to two. Planning Commission April 29, 2002 Page 48 Hoffman: Our next item is ADM 01-49.00 F, this is for Bridgeport Phase IV. Bunch: I also have a question for Mr. Helmer on this, if he could help us. Bridgeport Phase IV has 29 lots but only $5,400 collected, where are the two lots, or maybe Mr. Beavers, between the two of you maybe you can tell us that. Beavers: There was a lot that was designated as the P.O.A. and not to be built on and no additional charge was determined during the planning process to apply to that lot. Then there was also a parcel, a lot, that was part of the public park donation. You may be able to help me on that one, I really don't understand that one, but it was noted as a public property and no assessment was made to that. Bunch: Ok, so these were numerated as lots but they were not charged a fee and we can correctly track which ones did not serve the fee? Beavers: Yes Sir. Hoffman. Do I hear a motion, discussion or anything on Bridgeport Phase IV? Motion: Estes: With regard to ADM 01-49.00 F, Bridgeport Subdivision Phase IV, I move distribution of the money in the escrow account on a pro rata basis to the property owners. Hoffman: I have a motion by Commissioner Estes to distribute to the property owners. Bunch: I will second. Hoffman: I have a second by Commissioner Bunch, is there any additional discussion? Renee, would you call the roll please? Roll Call: Upon completion of roll call the motion to refund the assessment on a pro rata basis to the property owners was approved by a vote of 4-2-0 with Commissioners Ward and Hoffman voting no. Hoffman: The motion carries on a vote of four to two. Planning Commission April 29, 2002 Page 49 Hoffman: Our next item is ADM 01-49.00 G, which is for Bridgeport Phase V, the assessment to be returned is in the amount of $8,600. Motion: Estes: With regard to ADM 01-49.00 G, Bridgeport subdivision Phase V, I move for distribution of the money in the escrow account on a pro rata basis to the property owners. Hoffman: I have a motion by Commissioner Estes. Allen: I will second. Hoffman. I have a second by Commissioner Allen. Renee, would you call the roll please? Roll Call: Upon completion of roll call the motion to refund the assessment on a pro rata basis to the property owners was approved by a vote of 4-2-0 with Commissioners Ward and Hoffman voting no. Hoffman: The motion carries on a vote of four to two. Planning Commission April 29, 2002 Page 50 Hoffman: Conklin - Hoffman: Helmer: Hoffman: Beavers: Marr: Conklin: Hoffman: Estes: Hoffman: Williams: Marr: Our next item is ADM 01-49.00 H, which is the Coyote Trail subdivision, before I get any motions, do we have anybody here tonight representing this particular property? Staff, have we heard from anybody out there? I haven't heard from anybody. This is a sixteen lot subdivision with a $200 assessment. Could I ask a general question that did not come out in any of this. When we go back to the lot owners of record, as of what time would that be in effect? Mr. Beavers do we have a time frame and we have the interest of the escrow account, my understanding is from the time that the check was paid and then we are adding interest at some fair market interest rate. So just from the date of the check. Yes. Maybe I misunderstood the question, but I thought the question was what would the actual date of ownership, what would be the date of ownership that we would look at. Would it be tonight? Would it be the date that the notices went out? What will be the date used for determining ownership? I believe today's date should be the date of current ownership. That is the decision that was made tonight. Do the movements accept this as the intent of their motions that we've already gone through? Yes Madam Chair. Thank you. Before we vote on this item and subsequent item, Mr. Williams when I find or when a Commissioner finds that there is a substantial difference between the circumstances of Bridgeport verses Heritage Village verses Coyote Trail subdivision, I would assume that that Commissioner would need to voice that difference? Yes, you would need to say that there is another reason that you are supporting that motion. Can I ask Kit a question and Tim, this is not of any disrespect at all. It seems to me that the determination of refunding this comes at the point we make that there is the decision of the city that we no longer need to collect this impact fee. I guess I am just curious why we are picking tonight verses the time that we determined that we were no longer going to build this thing. Planning Commission April 29, 2002 Page 51 Williams: One of the factual statements and holdings that you are making tonight as the Planning Commission is that you are determining that the offsite improvement is not necessary or will not be feasible. City staff tells you that that is in fact the case, but you are making that factual finding tonight with each one of these motions. Especially when we get to the motion for the person who is represented by an attorney who is threatening to sue us, I would like to be very careful that we follow all the precise findings that we are supposed to be making but I concur with our City Planner that tonight is the appropriate time because tonight is the night that you are finding that this project is not going to be built, is not feasible and therefore, that the money should be returned to the property owners. I would say the property owners are the people that own the property tonight. Marr: Motion: Hoffman: Ok, thank you. We are on ADM 01-49.00 H, this is Coyote Trail subdivision. My inclination on this one because we've heard from no one on it, is to table this item as we did item 0, that is my motion. Marr: I will second. Hoffman: I have a motion to table and a second by Commissioner Marr, do I hear any further discussion? Renee, would you call the roll please? Roll Call: Upon the completion of roll call the motion to table ADM 01-49.00 H was approved by a vote of 4-2-0 with Commissioners Allen and Estes voting no. Hoffman: The motion carries on a vote of four to two. Planning Commission April 29, 2002 Page 52 Hoffman: Our next item is ADM 01-49.00 I, which is Heritage Village, this would be for a refund in the amount of $20,000 plus interest. Motion: Estes: I move with regard to ADM 01-49.00 I, that the money held in the escrow account be distributed on a pro rata basis to the property owners and make the following findings of fact. 1) That the offsite improvement has not been constructed within five yeas from the date of the first payment into the escrow account by the developer. 2) A determination that the offsite improvement is not necessary and 3) That, although we have been told by Mr. Greenhaw that the developer wrote two checks, one in the amount of $20,000 on December 18, 1995 and another in the amount of $9,400 on February 2, 1999, there has been no evidence offered that this fee or assessment was not included in the lot cost. Hoffman. I will be supporting this motion. By the way, I do have a motion by Commissioner Estes, do I have a second? Bunch: I will second. Hoffman: I have a second by Commissioner Bunch. I will be supporting this motion for the reasons stated. Bunch: Madam Chair, one additional question for engineering. Obviously, we had the vote pass for the new sewer plant, is there anything on the horizon that you can see that would jeopardize the permitting process that would keep the new sewer plant and the new drainage system from being built? Beavers: No Sir, I am not aware of anything. I also need to point out that I am not very involved in the Wastewater project. I think I will be more in the future with Mr. Boettcher but I do not feel like I could answer that question with any degree of certainty. Bunch: Tim, do you possibly have an answer from your conversations with Mr. Boettcher? We are saying that this sewer lift station and pipe system is not needed, that is assumed I guess by the fact that we have voted money for all these improvements. Do you see any reason that the improvements can not be completed? Conklin: The project is ongoing and plans to be constructed. Bunch: So that is the reason that this money is due to be returned because it is unnecessary and has not been built? Conklin: That is my understanding. Planning Commission April 29, 2002 Page 53 Bunch: Ok, thank you. Marr: I do think that there is one difference in this particular item than what we've heard on some of these others and I think it comes around some of the conversations had by Mr. Bunn and the developer of this particular project. I guess I just want to make sure and be clear that from the City's perspective that we are comfortable with whatever may be a legal defense. To me, there was no contract entered into by the City and this developer to refund this money to them. I just want to understand the legal implication of that because I think it is a factor that is not applicable to these others. Williams: As I try to explain before. First, Mr. Bunn certainly has no authority to contract for the City. The authority to contract for the City is normally placed either in the Mayor for a small contract, or with the City Council in most cases. Of course, that did not happen. I am not completely privy to the conversations of Mr. Bunn with Mr. Bundrick beyond what our City Engineer has related to what he remembers of the conversation I think that it should be pretty clear to any developer, and Mr. Bundrick has done a lot of development in Fayetteville, that contracts and agreements can not just be casual conversations. When you are dealing with a City you can only act in very formal ways. For example, like we are tonight with the Public Hearing. Also, people are charged to know and look at and understand the ordinances that have been passed. This particular ordinance, which does allow refunding, clearly places the power to refund with the Planning Commission and no one else. Anyone who is charged with knowledge of the law, and I therefore think that he would have a very difficult time pretending to believe that Mr. Bunn had the power to commit the City. I think it is clear, and will be clear if we are sued on this, that people are required to understand our ordinances and to read our ordinances, be aware of them and he can not just ignore the ordinances, just as we can not as a body. Nothing is ever 100% certain in Court but I don't think that there can be a logical argument that there was any contract made. Furthermore, despite the fact that Mr. Greenhaw indicated that he felt his client had detrimentally relied upon what Mr. Bunn said, I don't think that is very possible. Not only was it contrary to the ordinance, but no matter what Mr. Bunn said and when Mr. Bundrick would come before the Planning Commission, he would still have to come here, he would still have to make the same arguments that his attorney made tonight. I can't see how a delay by him would cause much, if any, possible detrimental reliance. I don't know if I've answered your question completely, I probably can't, but that is as good as I can get I'm afraid. Marr: Ok, thank you. Hoffman: Is there any further discussion on this item? Planning Commission April 29, 2002 Page 54 Ward: Hoffman: I am definitely going to vote no on this motion. I will kind of reiterate what I said a while ago. I do believe that this developer put up his money and in this case was told by certain city employees more than once that he would receive these escrow funds back if not used. I feel like these expenses weren't passed on to any buyers out there. I really feel like this money should go back to the developer. That is all I have. Thank you. Is there anyone else? Renee, would you call the roll please? Roll Call: Upon completion of roll call the motion to distribute the funds on a pro rata basis to the property owners was approved by a vote of 5-1-0 with Commissioner Ward voting no. Hoffman. The motion carries on a vote of five to one. Planning Commission April 29, 2002 Page 55 Hoffman: Next we have ADM 01-49.00 J, which is for Heritage Village Phase II. This would be a refund in the amount of $9,400 plus interest. Motion: Estes: With regard to ADM 01-49.00 J, Heritage Village Phase II, I move for distribution of the money in the escrow account on a pro rata basis to the property owners and make the following specific findings of fact. 1) That the offsite improvement has not been constructed within five years from the date of the first payment into the escrow account by the developer. 2) That the offsite improvement is not necessary. 3) That, although we have been presented with the statement that this developer did make two separate payments, one in the amount of $20,000 on December 18, 1995 and another in the amount of $9,400 on February 2, 1999, there has been no evidence offered that this fee or assessment was not included in the lot cost. Quite to the contrary, we have been provided with comments and testimony by Mr. Helmer and Mr. Ash that such fees and assessments are included in the lot costs and passed on to the buyer. Hoffman. Do I have a second? Bunch: I will second. Hoffman: Do we have additional discussion? Beavers: Mr. Williams, a specific finding of fact talks about the improvements not be available within five years. We don't think we will build that force main but some of these, and this just caught my attention, the five years isn't up yet. This is the one where we've been threatened with the lawsuit, is there any issue there with the five year time period? Williams: I don't think so. I think it is possible that if we had refused to act, refused to refund the money back then we could've been sued and the court would've said 'You must follow the ordinance and a have a hearing before the Planning Commission to refund the money.' They could've done that in the past when we were beyond the five years. I don't see how that would give a developer any greater interest than the property owners to demand that the money be returned. I think a property owner or a developer could've gone to court and said `City, you said you would do it within five years and you haven't done it so you must refund this money back to someone' or have another finding down here where it could determine if we actually should hold onto it. Beavers: It has been three years, some of these have just been one year. I am just asking if that presents a problem if we go to court. Planning Commission April 29, 2002 Page 56 Conklin: Williams: Beavers: Marr: Hoffman: Roll Call: Hoffman: Since it has not been five years yet since we collected this money, we are having the public hearing and actually, the reason why it is on here is that question was asked of me and I said that I don't see why would hold the money for five years if we are not going to do the improvement so let's have the public hearing and decide these all together for something that we are not going to build. The question is that we had some indication that we may be challenged in court and it is not five years yet, whether or not we should vote on this one tonight. I would recommend you still vote on this tonight. I think that obviously, with the refund of the rest of the monies this project will not be built and it would be unfair both to this developer and to the property owners to hold this money when the City has no intention on using it or applying it to the project for which it has been collected. Even though the ordinance says that it has not been constructed within five years. Maybe here when we are dealing with three years, we know that it will not be constructed and therefore, I don't think that it would be proper, it might even be unconstitutional to wait, to hold someone's impact fee when we know the project is not going to be going forward. Thank you. I fully agree and fully support what Tim is doing. I just wanted to ask that question. I also think another added benefit of that is that we don't pay interest for two more years in that particular case, which costs the City more money. Renee, would you call the roll please? Upon completion of roll call the motion to distribute the funds on a pro rata basis to the property owners was approved by a vote of 5-1-0 with Commissioner Ward voting no. The motion carries on a vote of five to one. Planning Commission April 29, 2002 Page 57 Hoffman: Williams: Hoffman: Ash: Motion: Estes: Hoffman: Bunch: Ward: Hoffman: Ward: Marr: Ward: Hoffman: Our next item is ADM 01-49.00 K for Pine Crest Phase III, did we have a representative from either side from Pine Crest? Seeing none, I will go ahead and make a motion to table this one. We had a property owner from Pine Crest here, Mr. Ash. I'm sorry. I am a property owner from Pine Crest. With regard to ADM 01-49.00 K, Pine Crest Phase III, I would move distribution of the money in the escrow account on a pro rata basis to the property owners. I have a motion by Commissioner Estes. I have a second by Commissioner Bunch. Is there any additional discussion? Since Mr. Ash admitted that this particular sewer escrow wasn't acknowledged or passed on to him I will be voting against this. You've been voting against all of them. Well, I could change. Could Commissioner Ward say that one more time? I just want to make sure I understand what he said. I had asked Mr. Ash, who is a property owner out there of ten rental homes or duplexes, if when he bought the properties that this was brought up to him that he was paying more for these because of the Hamestring Creek sewer escrow money and he said no, this was not brought up as a cost to him. So I assume the cost was not passed on. Ok, I understand, his many hats have confused me Thank you for pointing that out and you are exactly correct. Is there any additional discussion? Renee, will you call the roll please? Roll Call: Upon completion of roll call the motion to distribute the funds on a pro rata basis to the property owners was approved by a vote of 4-2-0 with Commissioners Hoffman and Marr voting no. Hoffman: The motion carries on a vote of four to two. Planning Commission April 29, 2002 Page 58 Hoffman: Motion: Estes: Hoffman: Bunch: Hoffman: Marr: Hoffman: Marr: Williams: Conklin: Hoffman: Williams: Ash: Conklin: Ash: Conklin: Hoffman: Next, we have ADM 01-49.00 L, which is Pine Valley Phase IV. The refund would be in the amount of $3,200. With regard to ADM 01-49.00 L, Pine Valley Phase IV, I would move for distribution of the money in the escrow account on a pro rata basis to the property owners. I have a motion by Commissioner Estes, do I hear a second? I will second. I have a second by Commissioner Bunch. Is there any further discussion? Was anyone here that actually spoke on either side of this particular item? If not, shouldn't we consider treating it the same as any other item that didn't have representation? It is Mr. Ash for Pine Valley. Is that Pine Valley or Pine Crest? I think it is actually just different phases of the same development. No. If we don't have anybody here I do want to table these, or I think it is appropriate to table these. May I ask Mr. Ash? I might have misspoken when I said he was from Pine Crest because that was only a five lot duplex. That is not yours I bet. Are you Pine Valley? To be honest, I don't know. I have always been under the impression that Pine Crest was the name of that BMP Development. Are you south of Hamestring Creek or north of Hamestring Creek? I can tell you the street names. Wildflower and Essex. That is Pine Crest Phase III. I would assume then if the same developer is responsible for both of these. It says BMP on both of them. Planning Commission April 29, 2002 Page 59 Williams: One is a five lot duplex division and the other is an eight lot duplex division. They are pretty similar. Hoffman: If it is BMP I don't know why we shouldn't go on with it then. I am not making a motion to table ADM 01-49.00 L, do I have a motion to consider this? Estes: Madam Chair, I think we have a motion and it has been seconded. Thomas: Yes, we do have a motion and a second. Hoffman: Thank you. I assume that was by Commissioner Estes and Commissioner Bunch. Renee, would you call the roll? Roll Call: Upon completion of roll call the motion to distribute the funds on a pro rata basis to the property owners was approved by a vote of 4-2-0 with Commissioners Ward and Hoffman voting no. Hoffman: The motion carries on a vote of four to two. Planning Commission April 29, 2002 Page 60 Hoffman: Next is ADM 01-49.00 M, which is Salem Village P.U.D. and this would be for a refund in the amount of $22,200 plus interest. Estes: With regard to ADM 01-49.00 M, Salem Village Planned Unit Development, I would move distribution of the money in the escrow account on a pro rata basis to the property owners. Hoffman: I have a motion by Commissioner Estes, do I hear a second? Bunch: I will second. Hoffman: Is there any additional discussion? Ward: On this particular motion I will definitely be voting for it. I do feel like in this case that the representatives can prove to us that the actual sewer fee was passed on to the buyers, especially since it is on the closing statement. This is a totally different type of way of looking at it as far as I'm concerned. Hoffman. Thank you. Is there any additional discussion? Renee, would you call the roll? Roll Call: Upon completion of roll call the motion to distribute the funds on a pro rata basis to the property owners was approved by a vote of 6-0-0. Hoffman: The motion carries unanimously. Planning Commission April 29, 2002 Page 61 Hoffman: Was anyone here for Silverthorne? I will make a motion to table ADM 01-49.00 N. Marr: Second. Hoffman: I have a second by Commissioner Marr. Is there any discussion? Renee, would you call the roll please? Allen: I wanted to be clear on why you were tabling. Hoffman: There is nobody here from either side, which is in line with what we have done. Allen: Ok. Roll Call: Upon the completion of roll call the motion to table ADM 01-49.00 N was approved by a vote of 5-1-0 with Commissioner Estes voting no. Hoffman: The motion carries on a vote of five to one. I believe that concludes our business for this evening. Beavers: The three that are tabled, are they tabled until your next Monday meeting? Do you want us to send letters to the people or do you want us to do something else? Hoffman: When you hear from the applicants we will go forward at the earliest possible meeting following that. Beavers: We are the applicants. Conklin: I believe that we will make an attempt to contact the developers and owners again and it will not be on your next meeting. It will be sometime in the future, within the next two or three months. Hoffman: Particularly like on Clary because we have the lot ownership. We need to contact those people and find out more specifically what issues there are before us. Beavers: This question is for Mr. Williams. Should we proceed with the refund? Should we wait to see if we're challenged? Do you have any advice on actually writing checks? Williams: I will have to talk to you in the morning on that after I have a chance to look at that. My initial advice will be that we proceed unless there is a Court challenge that seeks to enjoin us from paying this out but let me think about it overnight and I will get with you in the morning. Planning Commission April 29, 2002 Page 62 Beavers: Bunch: Williams: Conklin: Williams: Hoffman: Conklin: Hoffman: Marr: Hoffman: Conklin: Hoffman: Conklin: Hoffman: Thank you Sir. Just out of curiosity, if we are challenged on this, is there any sort of limitations as to how long before that challenge can be filed or limitation on filing? I think the normal rule for our Unified Development Ordinance is 30 days to Circuit Court. Is that the way you remember it Tim? I am not sure. However, I don't normally give advice to anyone who might challenge us. They are responsible themselves for reading our ordinances and figuring out what is the proper course. Thank you Mr. Williams. Tim, do we have any announcements? I would just like to thank the Commissioners for spending this fifth Monday to deal with these two issues and I appreciate all the work you do and all the time you spend volunteering for the City of Fayetteville. I appreciate that, thank you. Thank you. I know you get sick of me throwing out something else we need to add on our list, but I think after tonight one thing that I would like for us to look at is the opportunity of this particular ordinance to allow for a combination to a developer and a landowner, for it to be split and not have only one or the other and to address any other concerns that we talked about as a result of this item. That would be something that we can take up in our workshop, which I am sure that we will be rescheduling. This was to have been a work session. That is correct. Do we have an estimated date for rescheduling? I haven't been able to do that yet. Ok, well thanks everybody and we'll see you at the next meeting. We stand adjourned. Meeting adjourned: 8:12 p.m.