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Home My WebLink About2004-10-11 MinutesMINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Planning Commission was held on Monday, October 11, 2004 at 5:30 p.m. in room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS CONSIDERED ACTION TAKEN ADM 04-1230:(Conditional Use Permit Review for 304 W. Meadow) Upheld Page 3 ADM 04-1256: (THE ESTATES AT SALEM HILLS, 206) Approved Consent CUP 04-1220: Conditional Use (FOGHORN'S, 368) Approved Page 23 CUP 04-1224: Conditional Use (JOHNNY WALKER, 529) Approved Page 33 VAC 04-1226: (HABITAT FOR HUMANITY, 563) Forwarded to City Council Page 40 VAC 04-1227: (HABITAT FOR HUMANITY, 563) Forwarded to City Council Page 40 VAC 04-1228: (HABITAT FOR HUMANITY, 563) Forwarded to City Council Page 40 RZN 04-1223: Rezoning (TRACY HOSKINS, 361) Tabled Page 47 RZN 04-1221: Rezoning (SCOTT, 255) Tabled Page 50 RZN 04-1219: Rezoning (HANCOCK/WILSON, 323) Tabled Page 51 RZN 04-1225: Rezoning (CONNER LAW FIRM, 529) Tabled Page 52 ANX 04-1212: Annexation (HARPER/BOWEN, 100) Tabled Page 53 RZN 04-1213: Rezoning (HARPER/BOWEN, 100) Tabled Page 53 MEMBERS PRESENT MEMBERS ABSENT Alan Ostner Christian Vaught Sean Trumbo James Graves Nancy Allen Loren Shackelford Jill Anthes Christine Myres Candy Clark STAFF PRESENT STAFF ABSENT Jeremy Pate Dawn Warrick Matt Casey Kit Williams Suzanne Morgan Renee Thomas Tim Conklin Planning Commission October 11, 2004 Page 2 Ostner: Welcome to the Monday, October 11`h meeting of your Fayetteville Planning Commission. Could you call the roll please Renee? Roll Call: Upon the completion of roll call there were seven commissioners present with Commissioner Vaught and Commissioner Graves being absent. Ostner: The first item is the approval of the minutes from the September 27`h meeting. Do I have a motion for approval? Allen: I will move for approval of the minutes Clark: I will second. Ostner: Is there further comment? Renee, could you call the roll please? Roll Call: Upon the completion of roll call the motion to approve the minutes from the September 27`h meeting was approved by a vote of 7-0-0. Thomas: The motion carries. Ostner: Thank you. The first item on our agenda is on the consent agenda. One item. I'll read the title. Administrative item #04-1256 for the Estates at Salem Hills. Would a commissioner or anyone from the public like to have this item removed from the consent agenda? If so, please state your case. Do I have a motion for approval? Shackelford: I make a motion to approve consent agenda. Trumbo: Second. Ostner: The motion from Mr. Shackelford and Mr. Trumbo. Is there discussion? Could you call the roll please? Roll call: Upon the completion of roll call the motion to approve ADM 04-1256 was approved by a vote of 7-0-0. Thomas: The motion carries. Planning Commission October 11, 2004 Page 3 ADM 04-1230: Administrative Item (Conditional Use Permit Review for 304 W. Meadow): Submitted by Flint Richter, an adjoining property owner. The request is for the Planning Commission to review the conditional use permit issued in 1985 to allow the operation of an antique shop at 304 W. Meadow Street. Ostner: The next item under old business is Administrative Item #04-1230. The conditional use permit review for 304 West Meadow. If we could have the staff report please. Warrick: The information that's in our packet is substantially the same as what you saw at the September 27` meeting when this item was tabled. The staff report itself has not changed. You'll notice by the date in the top right corner that it is the same staff report. Information that you've received with your packet has been extended to include, starting on page 2.43 a selection of information that was provided by the complainants including material safety data sheet information, with regard to chemicals including lacquer thinner, some letters, correspondence between the neighbor, the property owner, and the department of environmental quality, as well as a letter from the Fayetteville Fire Marshall. Those are listed as well as included in content in your packet. Then on page 2.69, there is a supplement of material that was provided to you at the meeting on September 27`h by the property owner. I wanted to make sure that nobody lost that information so we've duplicated that. That is now in this packet in full. Then at the back of your material, or it was provided as a supplement, there was a packet of information, also provided by the property owner. The first page of that is dated October 7, 2004, and titled "An Addendum to Your Planning Commission Materials." Lastly, this evening, I passed out a letter from the adjoining property owner. Actually, it's from one of their previous tenants, with regard to their experience with renting property at 101 Locust. Basically, the information that you have is what you did have with additional pieces. That's all I have. Ostner: Thank you. Since this item is a little bit different from most of the items we see, we're going to go about it a little bit differently. Since Mr. Richter and Miss Terry brought the item forward, they will speak second. I will call on the Stiles family to speak first. You can both speak, and then we'll have another chance for a response. We'll also be including the neighbors. Then we'll stop with the voluntary comments and we'll move to a questioning period. So, if the Stiles would like to make a presentation now. Stiles, S.: Thank you. My name is Sharon Stiles, and I live at 117 West Rock Street in Fayetteville. The property in question is at 304 W. Meadow where our antique shop has been located for 30 years. Public speaking is not my strong suit, so I get really nervous when I have to do this. That's why I chose to write the addendum and give you the opportunity to decipher Planning Commission October 11, 2004 Page 4 what was in there between last Thursday and tonight. In addition, you have the information from the previous meeting. I don't know if it's proper to ask if you have any questions on the information that I gave you, or if you want me to proceed with an outline of what I gave you in that addendum. Ostner: You can go ahead and do an outline and we'll get to your questions later. Stiles, S.: We feel like there's three main issues at question here. Number one, Did we receive a conditional use permit that granted us permission to operate a refinishing shop as well as an antique shop in 19857 We believe that the minutes do support that we were given this permission. We also discussed the process that occurred over the years from 1981 to 1985. We submitted a letter from a previous city employee, Beverly Hodges, verifying the circumstances in 1985. Discussion from the commissioners at the last planning commission meeting led me to believe that some of you agree that we indeed were granted to have permission to have an antique shop and a refinishing shop. I also attached Item A that shows that there were numerous antique shops in the area that also did refinishing, and I put an asterisk by the ones that did both. So, times were quite a bit different in 1985 than they are now. There are lesser of us in the area. Our shop is the main one in Fayetteville that does refinishing. But I thought it was important to point out to you what the situation was like when we were granted this conditional use. It was not something out of the ordinary. The second item in question is whether we continue to sell antiques at this location and we do. We had both stores, the one at 304 W. Meadow and the one at 1934 E. Huntsville, when we were given the conditional use for both locations. As then, and we do now, everything that we buy comes through the 304 W. Meadow store. It either goes there to be repaired, restored, touched -up, or totally refinished. Some need more major repairs than others. Because of trying to accommodate our neighbors, we have changed our situation somewhat at Meadow, in that our backroom that was used for display is now where my husband does his repair work. Therefore, we have been limited to our space in the front room. But, we still do sell antiques out of that location. The percentages of those sales have never been as large as they were at other locations. You may know that at one point we did have four stores. One was a block away on School Street, and then on East Central Road, and then another one in Prairie Grove. As items came in, depending on who had sold something or who had room for it, was where the next refinished piece went for sale. Since we feel that the real issue with our neighbors is the refinishing, we gave you information that verifies the use of chemicals and how it has been reduced since the first complaint in 1997 to now, and usage at time was 890 gallons a year. Through September of this year, we have only used 220 gallons. Due to 9/11, and things that started coming back after that as far as our sales and our refinishing goes, things have kind of Planning Commission October 11, 2004 Page 5 diminished again for the antique business. So, we do not do as much sales or as much refinishing as we did at one time. I have a list that I've attached, Item B, that tells you all of the things we have tried to do to improve the situation with our neighbors. I think we went over that at the last meeting. I don't know whether I had dates on the items at the last meeting. I think I just listed the items that we had improved. Shannon is here from Hazmert this evening, and if you have any questions about what he recommended, we have implemented all of those changes. The fire marshal also made a few suggestions, and we are in the process of taking care of those. One of the items is the smoke alarms that need to be wired consecutively from the store down up into the house. That takes a little more time to do, so that one has not been accomplished. It is not a requirement, it is a recommendation. We think it's a good one, and we intend to fulfill that. Because of the headlines in the Times last week, or after the meeting, the ADEQ came and visited us again on Thursday afternoon. His report won't be available for two weeks. He told us basically the same thing that he told us in 1998 -that we are not large enough to be required to have a permit. He will report his findings, and then they will send us a letter to that affect. I submitted letters with signatures from our adjoining neighbors that don't have a problem with us being there. At the last meeting, Flint Richter, in his statement, indicated that we are causing him to lose income, and I really don't think that what we do there has caused that. They have a two-story house, and until August 4th, there was never an air conditioner up there. I feel like living conditions in Arkansas in a two story building probably weren't very pleasant. They also suggested that our van located there has lowered property values in our neighborhood, and I gave you two instances of properties that sold recently, at least one of them selling for twice the value that it sold for ten years ago. Actually, the one at 230 W. Meadow sold for $91,000 in 1991 and then for $195,000 in 2002. Both of those are directly to the east of our property. Now I also indicate that they tell me they are not trying to jeopardize my business. But, they just want me to move. I don't know what else I can do to make them happy, and I've tried to do everything. I've met all the requirements of me. I've never been fined for anything that I've done. I don't think that the fire marshal would let us continue to operate our business there if it was not safe for the neighborhood. The refinishing operation is an integral part of our business and if you take that away from us, you will take away our livelihood. It's a family business, we've been there for thirty years, and we'd like to continue to operate our business there. I hope that you wilt agree that we have adhered to our original conditional use. Ostner: We'll get back with you. Stiles, S.: Okay. Planning Commission October 11, 2004 Page 6 Ostner: If Mr. Richter or Miss Terry would like to speak now. Terry, M.: Hi, my name is Melissa Terry, and I live at 101 North Locust. First of all, thank you guys for hearing this issue. We have owned this home, which like the Stiles, was in more than disrepair. It was a dump in downtown, and we have also invested a lot of money in fixing it up. We understand what it's like to invest in property downtown, that you can hear football games, that you participate in Bikes, Blues, and Barbecue whether you like to or not, that you have downtown things that don't occur anywhere else. That's fine; that is downtown. I would like to say that it's unfortunate that this is where we are. We have been recommended to come to the Planning Commission for years by our city counselors at the time, and by the Department of Environmental Quality. What they actually said in their letter on November 2, 1998, they said that, "Situations such as yours are usually dealt with as city zoning issues. And so, we've spent the past few years trying to figure out how to address them. So every time we ended up talking to the Stiles, it was mostly because we had a complaint from a renter. Which we can't control if they want to have an air conditioner or not, but the upstairs does have 20 foot ceilings, so I think that there's pretty adequate circulation if that's their personal choice. You have a letter from one of the renters. They actually called the fire marshal, and the fire marshal did not go on record as saying positive or negative that this was okay or not, they said specifically that they did not have the "equipment, training, or jurisdiction to handle air quality issues." So, I think that was pretty much a wash, but once again, we were trying to go through the process. So that renter did move out, and we have had several occasions where that's happened. And, in fact, on our way from walking back from the library, coming down the alley behind the house, you could smell the lacquer. This is not the matter of one compatible scent, or another, versus the solvents and tallulanes, and what not. I haven't seen the letter from the adjoining property owners, but I do know that if it's property that you go to, that there are only two property owners that adjoin their property. And those two residence owners have been in front of you. Well, I don't know if Marsha's here, but she was here last week. So, I would just say that this is directly related. I know that the Stiles have done a lot on their property. I want to say that I really respect what they do -the recycling aspect -obviously, I'm totally down with that. But, at the same time, it may just be that this is a situation that has outgrown itself. I think I heard Ms. Stiles say earlier that this property was processing all the refinishing work for four antique shops at one time. I don't really think that's what the planning commissioners had in mind when they approved this. Since then, they have sold two businesses, so it has diminished a little bit. I know that they have made some efforts which I sincerely appreciate, as far as the air filters, and things that they have done in their shop. But, according to Ms. Planning Commission October 11, 2004 Page 7 Stile's letter that she had submitted, she said that they do keep the windows and doors open in the summer time. So, I'm not sure how well an air quality filter works when the doors and windows are open. The other factor being what we referenced to in our original letters to you, an evaporation tray in the back. I had about an hour and a half conversation with the Department of Environmental Quality inspector this week after his visit, who went voluntarily, and by the way, like any time we've called we have left our name, anonymous complaints have come from renters, we assume, or renters at Miss Tomly's house. And so, he clarified, that what is evaporation to us, because it comes over in our backyard, which is about fifteen feet away from his area, is actually a shed area, built against the property line, that's got a tray back there. It's a tilted tray that your pour the stripper into, and it goes into a spout and a bucket, and then they redo that over and over as they're doing their refinishing. And so that is not enclosed and would also not be applicable to any air -filtration system because there are no walls, and I guess they'd have to get a set -back variance to put walls up there and what not. So there are a couple of situations where, despite maybe their best efforts, we haven't really been connecting the dots together. And I will say, that, I know it's got to be bogus to have a neighbor that's coming over all the time, but again, when I have a renter that's coming to me, that's my responsibility. I mean, as far as property values go, I don't know. When we bought the house, we thought it was a cute antique shop. You know, the property values are great in our neighborhood, but if we turned around to sell our home today, that we've put several thousands of dollars into fixing up. If we aren't morally obliged to tell the prospective buyers that they're going to smell this all the time, then we've got a good value on our house. But if we do tell them they're going to be smelling lacquer for 4-6 hours at any given time, and sometimes on the weekends, I don't know. Would you buy that house? Would you buy it at full value? And that's really where we are. We have no intention of selling our house, we love our place. I'm just giving you some kind of comparison. And, I think that when we look at, again it just comes down to the use. I feel like that processing this many antiques at one location, whether it's two shops, or four shops, or five shops or twenty, I think the conditional use was granted for what might be produced out of this one particular location. And again, I really respect what these guys do, and I appreciate that as much as the next person, because it gives us fine pieces of furniture like this podium, and your area. But at the same time, it could just be that when you have people living that closely together, it's just not compatible. I appreciate them moving the fifty-five gallon barrels around of flammable liquid inside their shop, but I feel like that that was the fire marshal's suggestion, and again, we're at an impasse. So whether we, whether I make my career choice in environmental education or what not, I venture a guess that if I were a Wal-Mart store employee, I would still value my right to clean air, or if I were a JB Hunt truck driver, I would still value my right to clean Planning Commission October 11, 2004 Page 8 air, and would be speaking with you tonight. I know this is a tough decision, but the Stiles do have other locations, and we only have one house. And part of our income to pay for that house comes from the income derived from our rental property upstairs. So, I feel like, despite their best efforts, that maybe, we're just not compatible. And I just thank you guys for your time. Ostner: Thank you, Miss Terry. Would the Stiles like to have a response at this point? Stiles, S.: When Melissa made reference to the fact that we leave our windows and doors open, that was what we did very early on, and when we installed the new system, where it recirculates everything inside of the building, it retains everything inside that building. We do not do that anymore. When we were originally granted the conditional use, we had two stores, and I was trying to make a point that we are doing exactly what we were granted in 1985. We still have two stores, and everything went through Meadow before it went through Huntsville Road. And yes, we did have four stores, and had an enlarged operation, but we have decreased it back to what it was in 1985. The drum barrel that she refers to, the fifty -gallon drum is a non-flammable, stripper, but we still went to the expense of purchasing a drum and putting it inside of the building so that Melissa would not be able to complain about it anymore. I feel like they have an extreme sensitivity to odor. I realize they are directly north of us, but she says she's smelling it in the alley, and yet, the young lady that lives in the apartment that is by the alley says that she doesn't have a problem with odors. The other directions of us, I mean the wind blows more than one way so I'm sure that if there's odors that they would be complaining too. The other thing that she suggests is that we have other locations where we could move our operation, it's kind of like, well it's alright as long as it's not in my backyard. And I still feel that we have done our utmost to address this issue, and we feel that we have everything in good control, and we continue to try to find new things to improve our situation for our use as well as our neighbors. Ostner: Thank you. Would ya'll like a response before we stop? Richter, F.: Good evening, I'm Flint Richter. We've dealt with this years, and part of me, I feel a little schizophrenic at times. We hear people that say there's no odor, yet I come home from work, and without even getting out of my truck, I smell these odors, and my neighbors talk about. I know I'm a sensitive guy, I've worked with solvents before, I know what they smell like. I feel like I have a really good idea of when I'm smelling something that's over the tolerances. We are very close to their refinishing operation. I just have a really hard time. You know, we've waited years to come up here and talk about this, and I do not want to put them out of business. I Planning Commission October 11, 2004 Page 9 really admire what they do with the antiques, I'm a woodworker myself. If there was another option, I think we would have looked at it already. I'm just kind of at a loss for words. I had a lot of confidence when I was up here last week, but then I went home, and realized that some of our most pertinent information had been left out of your packets. I asked the Planning Commission why this was left out; I wanted a statement in writing. I did not receive a statement in writing. I still do not know to this day, why these items were left out. I was really happy that this was tabled, or my case would not have been presented fairly, I feel. I just want you all to know that I feel we have done everything in our power to deal with the Stiles. Every time we've complained to them, they've never come back to us and said, "Okay, we've installed X, we've done Y, has it helped?" I've never heard back from that. We complain again, and we never hear from them. We have never known what was actually being done over there to increase our safety. And, actually, it was just August that we met with Bill and he actually told us they were filtering the solvents over there, and it's just the first time we ever heard that. There's been a huge gulf of misunderstanding between us, and I just feel that's why we're here at this time still, to get an objective third party. Ostner: Thank you. Are there any other neighbors, who'd like to speak before we stop the comment period? Motes, B.: Hello, thank you. My name is Brian Motes, and I'm here representing myself and my wife, Meredith Martin Motes. We live in the property owned by Marsha Donnelly, directly west of the antique store and the Stiles property. My unit that I live in is probably technically the closest in that house to the property. I've lived there for just over a year with my wife, and I love the neighborhood; it's fantastic. But my case personally, and with my wife, is since we are not able to determine actual health risks by living there, and even if maybe we could, it would still probably be up to debate by everyone involved. But, we can, however state accurately what our comfort level is, living in the presence of these odors, which is what it comes down to mostly for us. The smell isn't at all an enjoyable one. It is in our opinion, not anymore pleasant than one of a sewage leak or something, it would just naturally be uncomfortable for anyone to have to live around. I'm a self-employed graphic designer, 90% of my work, probably, is done out of my apartment. One of the windows near my desk and my office space is facing the Stiles property, and also right there we have our cooler for that room, which circulates air through the room, and also from the air out there over my backyard, which meets the fence with their property. It is a fairly well ventilated upstairs, but it does gather a lot of that and send it in and out of that room. I really do not have a whole lot more to say than that, other than that it is a noticeable and there is a high presence to it, including in the alley way. Our apartment goes from the east to west side of the house, and we have porches on either side, and I've Planning Commission October 11, 2004 Page 10 had friends or family over, or acquaintances over, and they have, not all of them, but many of them, have brought it up. They wonder, "What is that smell? That's an interesting smell. That's kind of a strange smell." As far as just attesting to the presence of it, I can account for a few others other than myself and my wife. There from the alleyway to the backyard. But that's all, thank you. Ostner: Sorry, if you wouldn't mind signing in? Signing the sign -in sheet at the podium. That will help us keep track in the minutes. Motes, B.: Sure. Ostner: At this point, I'll ask for any other neighbors in this area to speak. Bailey, J.: My name is Jim Bailey, and I used to live in the same apartment that Brian did. My wife and I in 2001 and 2002 lived in the apartment that's directly west of this business. I came home one afternoon from work, and the spraying was going on. It was the first time we experienced it. And my wife was physically ill. She had a headache, and it was because of this day, that every time that they would spray after that, that I would go and get her and take her to my business for the day, with my 1 year old son, and that's why we moved out of that apartment. It was because of the spraying. It may be better now, maybe they have a new filtration system, but, pre -catalyzed lacquer is really very strong -smelling stuff. And it can affect people. Maybe my suggestion might be, if it's going to be contentious of just how strong this smell is, maybe a couple of you guys could go down there on a day when he's spraying and kind of get a sense of it. What it would be like to live next door to that, because it's vaporized, it's put into the air, and left to go whichever way the wind blows, and it can be a real health detriment. And, even if there, and there are long-term issues with it, but even if it's just the neighbor gets a headache and gets nauseous, I think that probably, in a residential neighborhood, that that needs to be thought of in that context. There's a guy that this is all he does, is refinish furniture, in the building that I'm on, on the same street, on the end of Meadow Street. He sprays twelve hours a day and has no complaints. He's in a light -industrial space, and he doesn't have any close neighbors. By the time it's kind of vaporized and put out there far enough, then things get better. That's really all I have to say is that, I hope you will address this issue in terms of a dangerous nauseous chemical being released into a residential neighborhood, because that's really what it comes down to. Ostner: Thanks. Okay, are there any other neighbors who'd like to speak about this issue? At this point I'm going to close it to the neighbors, and open it up to the commission for questions and comments. Planning Commission October 11, 2004 Page I1 Allen: Mr. Chair? Ostner: Commissioner Allen. Allen: I'd like to ask Mr. Williams a couple of questions of points of clarification about this. First of all, I'd like to know whether or not the Planning Commission has any authority over air pollution or quality of air control. Williams: Well, I do note in our ordinance, the ordinance that's sited in your packet, "16302 Authority Conditions Procedures for Deciding these Conditional Uses," one of the things it talks about is under subsection B of that, it says, "Off-street parking and loading areas where required with particular attention to ingress and egress, economic, noise, glare, or odor affects of the special exception on the adjoining properties, and the properties generally in the district." So, the ordinance speaks of odor problems. The state law talks about the fact that when the Arkansas Department of Ecology was created, to control air pollution, that they preempted the area of outdoor air pollution, and said that only the state could legislate in that area. And that's what the preemption is, and so they attempted to preempt this whole area of outdoor air pollution. Obviously our ordinance talks about odor, and I don't think that's totally irrelevant. We also have a conditional use specifically for an odor -producing facility, which I don't think would be applicable to the Stiles case, because that's talking about a new odor -producing facility, and one of large scale. If you remember, there was one proposal from a factory here to do something, and we looked at the odor control there. The amount, or the extent of preemption that the state has done for itself is not clear, in that there's never been a case interpreting that, because if the Stiles have had the Department of Ecology come down, and then say, "Well, you're too small for us to consider it," then does that mean that they no longer intend to preempt small uses, and still leave that to the cities. And unfortunately, I don't have a clear answer for that. As you read that language in the state statutory broadly, yes, they preempted everything, and we can't even consider it. But in this particular case, they're not going to consider it either. So does that mean that something like the Stiles situation and the potential affect on its neighbors can't be considered by anyone? According to our ordinances, we can consider odor to some extent. Even though we could, there could be a problem with that, because I don't know how far the state is going to say that their preemption doctrine will go forward. And I know that if this were a very large project, we would have some potential problems. Since it's very small, I'm not sure. I think it is still, according to our ordinances, you can consider that. And so, I guess my recommendation is that you would still consider that. But it is unclear in state law whether we have actually had this preempted from us. And we won't know that until the Supreme Court tells us what that means. Planning Commission October 11, 2004 Page 12 Allen: Okay, and to follow up on that -would it be your opinion then, that, more than hazardous fumes, that what we're really trying to determine here is whether or not there's been a significant change in usage of this property since it's conditional use in 1985? Williams: I think you have to look at the whole picture. Our ordinance does talk about odor. But I do think you should look at what has happened, differently, from when this was granted. The problem we do have the planning to probably look back at the record and try to find as much as they could about what was actually granted, what was considered. But since this was twenty years ago, or more, the records are not very clear on exactly why this conditional use was granted. It was granted for an antique shop. There have been statements, of course, that they were already doing refinishing, so the statements would be that it was already a refinishing and antique shop. But it's definitely not crystal clear on the record. I do agree with you, though. You should look at the basic change, if there has been any, in this particular business, to help you guide, if they're doing exactly the same thing, that they were granted a conditional use before, that's certainly to their benefit. Conditional uses are not necessarily for forever, though, and if the conditions that were placed on them before, and I don't know if there were any specific conditions that were placed on them. If they're not adequate to protect the neighbors and the compatibility with the neighbors, than the Planning Commission, certainly, would be empowered to place new conditions to try to protect the neighbors. There's only seven of you here tonight, and I need to point out that in order to pass a new conditional use, requires five votes. That's what your by-laws say. To reject this conditional use, to determine this conditional use is no longer valid, I think only requires the majority of the people here. To do nothing or to allow it just to go forward, also requires the majority. But if you wanted to put anymore conditions on this conditional use, I think it would require -that would be a new conditional use -I think it would require five votes. So that's something that the applicants, both sides, including the Stiles, need to consider in whether or not they want to have the Planning Commission make a decision when two of its members are not here. Allen: I definitely feel that I've been answered by an attorney. Trumbo: Mr. Chair. Ostner: Yes, Mr. Trumbo. Trumbo: I have a question for staff. Mr. Richter stated that some of his information was left out of the packet. Did we get in now? Did that come in? Planning Commission October 11, 2004 Page 13 Warrick: I was the one who put together the materials that were distributed for the September 27th meeting. I felt that the information that was provided to you was adequate, that represented both sides, as well as staff research. That information that Mr. Richter was referencing, is in your packet this evening, and I apologize for any misunderstanding that may have stemmed from that. I didn't intend to leave any information out. Trumbo: We just want to make sure we got it. Warrick: It is in your packet this evening. Trumbo: Thank you. And Ms. Warrick, what specifically, what is the information? Warrick: It's the addendum that stated that additional information from the adjoining property owner- Trumbo: About the chemicals Warrick: Yes, the information that is contained in the packet starting on page 2.43. Trumbo: Okay, thank you. Clark: Mr. Chair. Ostner: Yes, Ms. Clark. Clark: I have a question for Mr. Richter actually, and Miss Terry. When you bought the adjoining property, did you know there was an antique store next door? Richter: Yes, ma'am we did. We thought it was very cute. I actually liked the presence of the antique store. Clark: But you didn't notice the fumes or the odors or anything at that point? Richter: No. Clark: When did you first notice? Richter: About a week or so later. Clark: So a week or so after you bought the house, you noticed there was a problem? Richter: Yes. Planning Commission October 11, 2004 Page 14 Clark: Thank you. I have a question for Ms. Stiles. In the week since Mr. Richter and Miss Terry moved into their house, did you increase your refinishing business, or, did you do anything different? Stiles, S: Are you interested in when they moved in? Clark: Yes. Did you increase your refinishing business? Did you do anything to present the odors at that point? So they were there in present, you were doing what you were doing when they had bought the house? Stiles, S: Since we've moved in 1974, we've done the same things. Clark: I know those are really strange questions, but I have a really strange mind. Ostner: Okay, thank you. ?: Mr. Chair? Ostner: One moment. After Mr. Williams' comment that five votes will be required to place new conditions on this, whereas to uphold or overturn would simply be a majority. I want to ask if Mr. Richter and Miss Terry, if you want to table this item. We're short two members tonight. If it makes a big difference, we always bring this up. When people are absent and a conditional use is at hand. Richter: All I can say is it seems like your decision. I'm kind of in a strange land here, and that's why I'm here. It's your opinion, so. Sorry. Ostner: Well, thank you. Clark: Mr. Chair, I have a question for Mr. Williams. What decision, are we called, okay, I need to know what we are called upon to do tonight, to decide if we need to return the conditional use, to end the conditional use, to mend the conditional use or continue the conditional use. Are those the three options, or four, or all of the above. Williams: Well, you can say the conditional use is no longer valid. You can say you can overturn the conditional use. I think that's what the petitioners are requesting. We're kind of in an odd situation here because normally the petitioners have the conditional use. You can say that it was approved back then, that the Stiles have not changed what they're doing, so you're not going to make any changes, and leave it the way it is. Or, if there are five of you that think the conditional use should be continued, but additional conditions need to be placed on there to protect the neighbors. Then, you could come out and approve a new conditional use based on new conditions that you would choose to make this property more Planning Commission October 11, 2004 Page 15 compatible with the neighbors. So I think those are your three options, whether tonight or whenever you would decide this. And I would also add that the Planner, since she deals with this stuff all the time too, whether or not those are the options, or are there other options that I've left out. Warrick: Well, thankfully, this isn't something that we have to deal with very often. Conditional uses are rarely brought back to the Planning Commission. But I would agree that the list of options that you've been discussing is the appropriate list of options. As staff, we feel that that's very important to recognize that the body representing the Planning Commission in 1985 sat where you're sitting and made a decision based on compatibility, based on the criteria that are listed in 163.02. While our record is not very good, unfortunately, that decision was made, and the Stiles have been operating a business for thirty years; about twenty four of them based on that decision. So I think that it's important that if conditions have changed, that that be specifically discussed within the realm of what needs to be modified to address those changed conditions. Ostner: Thank you. Shackelford: Mr. Chair? Ostner: Mr. Shackelford. I have questions to the attorney, for my edification and everybody else here. What is the process of appeal regarding this decision? Can the applicant appeal this decision to city council, or where does it go from here? Williams: Well, at least the Stiles would be able to appeal, I think, although it is a difficult process to appeal a conditional use. The alderman had decided that it requires both aldermen in that Ward, plus a third alderman to bring an appeal to the city council of the denial of a conditional use. We've never had an appeal the other way, where someone would appeal a conditional use that's been granted. And of course, if you did nothing, I don't know if there would be an appeal, because the original conditional use was granted twenty -something years ago, and the time to appeal has run on that. The neighbors have other options, though. They could, if they wanted to, file a nuisance suit. This has happened in many cases throughout the state, that nuisance has been filed, because a homeowner is not allowed to have a nuisance, something that would adversely affect his neighbor. That certainly would not be preempted, I think, by that state law. I think the courts could consider that. But that would mean, to say that, both the parties would have to go to court. And they would present their evidence in what they have presented to you. Basically, you're in some situations, almost sitting like a court here, and like a jury, trying to determine whether or not there's been compatibility, or whether there's too much of a nuisance going on for you to allow to go on where it had Planning Commission October 11, 2004 Page 16 existed for a long time. So, those are a couple options, or that's another option they have besides coming to you as they have done tonight and asking you to remove this conditional use. Shackelford: Thank you very much. Clark: Mr. Chair, if we do not want to overturn or make an alternate conditional use, does that need a motion? Ostner: I believe we would need to take a vote. Trumbo: I would certainly like a vote. I believe it's only fair for the petitioners, so that they know clearly what's happened and why you made your decisions. Clark: So, would that motion be to deny the administrative item that's presented? Is that correct sir? Ostner: Well, I think we're here to gather information, so we would go ahead and make a motion in the affirmative, to uphold the conditional use. If that motion - Williams: Well, actually, I would actually go the other way and say that you have not found facts sufficient to deny the continuing use that has been on this property. The reason for that is if you uphold it, then I think I want to see five votes to uphold a conditional use, to say, "Yes, this is a good conditional use." You're not really doing that, you're reviewing whether or not this conditional use should be rejected and done away with. Ostner: Instead of someone saying, I'll make a motion to uphold the conditional use, Mr. Williams is saying, procedurally it would be better to say, "I'll make a motion to note overturn the conditional use." Allen: Mr. Chair? Ostner: Ms. Allen. Allen: I wondered when, if the Stiles started their operation thirty years ago, when was the first time that you ever got a complaint from a neighbor? Stiles, S.: The first complaint was from Marsha Donnelly, and I believe that was in 1997. Allen: Okay and I also wondered if you, how would you compare the volume of your business in 1985 as opposed to 2004. Planning Commission October 11, 2004 Page 17 Stiles, S: Well, I didn't go back to 1985; I went back to when that first complaint occurred in 1997. And then, came forward to now. And our refinishing has diminished about 60% since that time -due to selling two stores and to the 9/11 situation and the war and just general economic factors. Another thing that I did a little bit of research on that I meant to point out too, when I come up with a figure for refinishing sales, for the last two years, I went back to see how much of it was actually physical repairs, as opposed to refinishing with using a chemical, and it's about 50/50. So, we feel like our refinishing is not near as significant as they are indicating that it is. Our sales from sales of antiques are about 60% of our business, and 40% of our business if from refinishing, and of that, about 20% is from physical refinishing, and 20% from repairs. We make turnings, carvings, we replace cane in chair seats, we also have somebody that does upholstery work for us, and that's included in our sales, so there's a lot of things that enter into those figures. Allen: Thank you. Anthes: Mr. Chair? Ostner: Ms. Anthes. Anthes: As Ms. Warrick stated, we don't see these very often, because I think all of us are thinking, why did we sign up for this job? But, probably the first time I ever walked into this antique store was before this conditional use was granted when I was in college here in the early eighties. And, the last time was when we were on tour, the other day, when we went with the Planning Commission on tour. And, you know, you've got to applaud the people who have hung with, you know, being downtown business owners for this amount of time. Because it's a very different place than when it came about, when they started to do that work here. I've referred several people to their bed and breakfast, which is their other business downtown, which is in a great part of upper downtown. But what I'm trying to do is back out and think, "What is it as a Planning Commissioner that I'm charged to look at and how does that look in terms of ordinances and uses and all that?" And I've come to the same thing in where I was last week, which is this: Has the land use, which was granted, for an antique shop, substantially changed since the original conditional use was granted in 1985? And, I have to look at the fact that conditional uses are based on compatibility, because that's what we have to look at. So, you know I've been really searching in my memory, trying to figure out what was accurate, and I know that I've been in this shop over the years, and unfortunately, it used to look like a shop to me, and we went in the other day and it looked like a lot of furniture stacked up ready to be refinished and it looked less like a shop. So then I started looking at, well, what about the compatibility? Compatibility works a couple of ways. Planning Commission October 11, 2004 Page 18 Downtown was a very different place in 1985 then it is in 2004 and going forward in the downtown metro -plan vision for downtown. So we're talking about compatibility of an antique shop with refinishing in 1985 and now we're looking at compatibility of a shop with refinishing in 2004 and beyond, because, as I understand it, when we look at conditional uses, we can revote them at any time for compatibility issues. And I'm finding it more difficult to find compatibility now. So, then I go back to the questions I asked of Mr. Conklin last week, and that is, "In what use units are antique shops allowed, and in what use units are businesses that are allowed to use solvents and they generate odor, are those allowed?" And what he stated last meeting was that antique shops are allowed in use unit two and that businesses that have other sort of toxicities associated with them are a manufacturing and industrial use unit and those are not allowed by conditional use in an RL zoning. They just aren't. And I was trying to find for set -backs and other things that would work there, but I couldn't come up with anything. So, after reading this and reading this, and really being in favor of the mixed use zoning unit downtown and having a lot of interaction with neighborhoods and businesses, I have to go on experience and say that it appears to me that the shops and the land use have substantially changed since 1985, because of the appearance of the shop. And that the compatibility issue in now going forward, is different than it was in 1985, and that I cannot find any way to approve the manufacturing, industrial high -use unit to be approved within an RL zoning district. So, I'm afraid I'm going to have to vote against this item. Ostner: Vote against it? Anthes: Well, vote to discontinue their conditional use. Ostner: You're going to vote for the item, then. Anthes: For the discontinuation of the use. Sorry, I'm not an attorney either. MOTION: Shackelford: I have a completely different take on this. First of all, for the record, I was one of the folks that was asked to make a motion to table this two weeks ago basically because I needed more time to get my answer on this, and I have spent a lot of time getting my answer on this. I've read the eighty one page report that we received from city staff. I've read all of their information. I've actually been by this property several times, trying to smell this odor. So, for the record, that's why I voted to table at that point, but I do feel that I'm ready to make my vote on it at this time. Secondly, I would like to state that I personally think the state statutes probably preempt us from having needed to make a ruling on this, but it seems that our city attorney has requested that we do so, so I'm quite capable and Planning Commission October 11, 2004 Page 19 happy to do that as well. My take on this is we're being asked specifically to revoke a conditional use that was approved by a previous city government. Now I have to go by the understanding or the assumption that that was a good decision made in good faith by those people on the set of facts as they were stated before them at that time. So, as our city attorney has said tonight, basically, what we're looking for in my mind is a basic change that justifies revoking this decision that was made in good faith back at that time. I go back to page 2.20 which is a letter from David Whitaker kind of on his ideas on what we needed to look at and what we needed to judge on this. His first point is: What is the definition of an antique shop? And is there anything that is significantly different than what was being done in 1985? I don't see, after reading all this report, any statement of fact that shows there's a difference in the way this business has operated since 1985. In fact, I see statements of fact regarding the other way. We have letters from this city staff member who states that this was in operation as both a refinisher and a retail sales place at that time. We've talked about whether or not this has become a predominant use in the area. I don't see any statements of fact that would state that that is the case, in fact, I see the opposite. We see letters showing that the actual use of chemicals has gone down dramatically over time. So, I don't know how you could find that statement of fact that has become the predominant use of business at that point, either. So this, I guess I have a completely different opinion. I understand this is a problem. My personal opinion is, it's a private nuisance problem, and it needs to be pursued in that area. As a Planning Commissioner, if I have to find the finding in fact, I'm going to look at the facts. And I don't see that the complaint can be quantified. All the reports: Hazmert, ADEQ, fire, letters from city staff, all the hard fact evidence that we can put our hands around and make a judgment on do not show, in my opinion, a basic change of operations that would allow us the grounds to revoke the conditional use. My opinion is that this business is operating in the same basic manner as it was in 1985, and at that point, if you elect the people that sat in our seat where we are now, that knew under what situation it was operating, and made the decision to grant this conditional use. So without some kind of quantifiable evidence, I don't know how we can make that decision, at this level, to overturn that. And I would encourage the applicant that this is, in my opinion, much more of a private nuisance issue than it is a zoning issue. With that being said, I'm going to go ahead and, just to keep this moving forward, and make a motion to deny the request to revoke the conditional use. Clark: Second. Ostner: I have a motion by Mr. Shackelford to deny the request to revoke the conditional use and a second by Commissioner Clark. Is there further discussion? Planning Commission October 11, 2004 Page 20 Allen: Not too frequently do Commissioner Shackelford and I agree, but in this case I do. I'm very, very sympathetic to the neighbors. I think this is very difficult. I wish that it could be possible for the Stiles to move their refinishing process out to a less populated area at the location of their other shop. But, from what I see as our responsibility as Planning Commissioners, which I do more reluctantly than you, find -I'm real caught up with how I feel I should vote -I'm going to have to feel that there's nothing that has significantly changed since 1985. Clark: I share Commissioner Anthes' concern over the appearance of the shop. I've been a native of Fayetteville all of my lifetime, and I've been in the shop many times, and it has changed to the eye. But to me, that doesn't mean I've looked in the books and can quantify anything. It comes back to what Commissioner Shackelford said. There's no quantifiable evidence that the preponderance of evidence has shifted from antique sales to refurnishing, and quite honestly, that's not in our jurisdiction to ascertain that fact. I have to go on what people tell me. And what people tell me is that there's no violation from the Fayetteville fire marshal, there's no violation from the environmental ADEQ, there's no proof that the refinishing shop has increased business, Hasmert has found no violation. All suggestions that Hasmert and the fire marshal have made the Stiles have implemented or are implementing. They've been there for thirty years. To relocate I think would be a severe hardship based on the amount of money they've put into fixing some of these issues. And I agree with Commissioner Shackelford that I see no significant change in operations that we are allowed to verify. I think that Mr. Whitaker and the assistant city attorney made two suggestions in his opinion to us and that is that the complainant can continue with the environmental complaint with the ADEQ, or take this to a private nuisance action. And there you have discovery and all kinds of other neat little legal things that you ascertain some of these answers to if you think we're wrong. I think that we don't have the grounds to overturn this conditional use, and I sincerely hope that in my tenure on this Planning Commission we are never asked to do this again. So I'm going to support the motion. Ostner: Thank you. Myres: Thank you. I have to agree with all of my colleagues, both pro and con. This is a real difficult decision, and it's something I hope we never have to do again. But I will have to, I think, agree with those of us who feel, and I have to agree, that based on the grounds that we have to either revoke or support this, I don't feel that we have much choice in the matter. I wish there was a perfect solution to make everybody in this case happy. But I'm not sure that there is, and I'm not sure that we have the power to make that happen, so I will have to support it. Planning Commission October 11, 2004 Page 21 Ostner: The motion? Anthes: A question to the city attorney. I'm trying to think of other instances where conditional uses have been brought into question or challenged. And I haven't been able to come up with any since I've been here. I was thinking about the Bakery thing with the odor business, and I think there was something about where somebody was looking for a day-care in an industrial area, and that was turned down on the basis of the fact that people were going to be introduced to possible toxicities and things based on their adjacencies to an industrial unit, so that was kind of backwards of this. Is it that we're looking to uphold or overturn a conditional use, or is it that once there's a complaint filed, that the books are thrown open and we are allowed to look at the conditional use wholesale again? You know you said yourself that conditional uses aren't forever and that they're always open to discussion. And I know that this is kind of splitting hairs, but I'm trying to get this satisfied in my head for if this comes up again. Williams: I'm not sure -your question. Anthes: If somebody files a complaint against a current conditional use, does that make the hearing about upholding the conditional use or do we revisit the entire conditional use again because they're not forever and they're constantly open for that interpretation. Williams: Well, it's kind of the same thing. If someone files a complaint that, I would say the Planning Department feels is substantial, and not just frivolous, then I think that they will bring that to you. At that point in time, you can review that conditional use. You can chose to take no action by rejecting the opposition to it, or you can say the conditional uses should no longer be granted, or you can put new conditions on it. But you are looking at the entire conditional use when it is brought before you, which is, unfortunately, where we are tonight. I regret, and I'm sure the city planning staff regrets that you have such a difficult task in front of you that don't have any real crystal clear guidelines for how to apply this. It is a very difficult situation. And Dawn, I think you can speak to some of the previous times that a conditional use has been brought back before the planning commission. Warrick: We've had two that I can recall in the past nine years, that were both brought back to the Planning Commission by staff. The first had to do with a towing business that had been allowed to operate in a C2 zoning district by conditional use. That was brought back by staff because the applicant had failed for over a year to meet several conditions that were placed on that approval. That was eventually denied, or revoked, by the Planning Commission. They've relocated. The other one was a situation where a catering business had been granted conditional use approval to Planning Commission October 11, 2004 Page 22 operate in an RO zoning district. They applied for building permits to convert their structure to a sit-down restaurant, which was changed. And staff brought that back to the Planning Commission. Additional conditions were placed on that item and it was permitted as a conditional use to continue under different conditions because the land use was different. Anthes: Okay, well, I mean, we can count on our fingers here and know what's going to happen. I guess what I'd say is that I would hope that the Building Safety division, Mr. Cattaneo, and those folks would -they're the people we actually haven't heard from in this picture -and I would hope that they would be able to look at the building and the structures and make sure that they're safe and adequate for the uses that this is going to permit them. And I would love for that to be a condition. I just am going to state that for the record. Trumbo: Really, when I look at something, I look at property owner's rights. And I feel very strongly that a property owner has rights. However, this case, I've read all the information and one thing that David Whitaker said that we should look at, and the city attorney said this, the definition of an antique shop. I don't think of refinishing as part of an antique shop. I don't think that was the intent back then. Personally, I wouldn't have voted for it then, and I think a mistake was made. I want to vote against this motion. In our unified development code, which was already mentioned, it says one thing we should look at is, "Odor effects of the special exception on adjoining properties and properties generally in the district." And I've sat here and listened to three or four people who adjoin the property, who say there is an odor and have a complaint. To me, I wouldn't have voted in the first place for it and I'm going to vote against it now. Ostner: Thank you. We have a motion and a second. Would you like to speak? Clark: No. Ostner: I'm going to call for roll call. Please. Roll Call: Upon the completion of roll call, the motion to deny the request to revoke the conditional use was approved by a vote of 5-2-0 with Commissioners Trumbo and Anthes voting no. Planning Commission October 11, 2004 Page 23 CUP 04-1220: Conditional Use (FOGHORN'S, 368): Submitted by JEFF HODGES for property located at 2175 N COLLEGE AVENUE. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.87 acres. The request is to allow outdoor music. Ostner: Our next item is another conditional use for Foghorns. CUP 04-1220. If we could have a staff report please. Pate: Thank you Mr. Chair and members of the Commission. This request is conditional use CUP 04-1220. The subject property is located at 2175 N. College Ave. containing the Foghorn's restaurant. The property is zoned C-2 with restaurants located to the north and south, College Ave. to the east, and office retail strip center to the west which is actually on the same line. The property is currently fully developed and containing both the strip retail center and a subject restaurant use. Foghorn's restaurant consists of approximately 1,984 SF, with a new exterior deck consisting of 720 SF. There are 21 existing parking spaces, with an additional 20 spaces to the rear that are shared between the retail development and the restaurant. The proposed outdoor music stage, this evening's request, it does currently exist. It sits outside of the deck area. It is an 8 ft. x 8 ft. platform, 30 inches in height, and it sits on castors. This does make it movable. The applicant's proposal is to provide live outdoor music to the restaurant's patrons one or two nights per week, from 7 PM to 10 PM as stated in the conditional use request. Noise levels are to comply with City of Fayetteville noise ordinance requirements. The musical artists are intended to utilize the provided platform, which will be moved when not in use from this area. As I mentioned, the request is specifically to allow the Use Unit 35, Outdoor music establishments, within a commercial zoning district for the purpose of providing live music at the subject property. With regard to staff findings, the note on page 3.4, staff does find that the granting of the conditional use will not adversely affect he public interest. Surrounding properties are commercial in nature, with two similar restaurants on either side of the subject property. College Avenue is a busy Principal Arterial to the west. No substantial increase in traffic will be generated by this proposal. The existing deck has been permitted according to Fayetteville regulations. The stage platform will need to comply with all city regulations as well as with regard to permitting. There's no additional signage proposed at this time. Staff has placed conditions, and our recommendation for approval for this request. Regarding exterior lighting, those shall be subject to City of Fayetteville standards and directed towards this subject's use. Staff also finds that this use is generally compatible with adjacent commercial uses, which does include restaurants, with outdoor patios and decks along College Avenue, and no residential uses are located in the immediate proximity. On page 3.6 there are specific findings with regard to this conditional use request. 163.11, specifically those requirements for outdoor music establishments Planning Commission October 11, 2004 Page 24 that the applicant is required to comply with, and those findings have been made. Essentially, the applicant has submitted a site plan. Basically the speakers are located where the music will be played. Staff is recommending approval of this conditional use with seven conditions. A couple of those I'll go over for you. All appropriate building permits shall be obtained of course. The outdoor platform is actually movable, so it would be removed from the front of its structure to a location likely in the rear of the structure when it's not in use. This is because this is a landscaped area. If not landscaped, it's existing in a non-performing parking lot. The structure's not allowed to be located within that area. Item #3 I included for you: "If the establishment or any band or any person operating at such establishment is convicted of violating the Fayetteville noise ordinance, which is code 96, such violation may constitute grounds for revocation of this conditional use to operate an outdoor music establishment." That is directly out of the code of Fayetteville, Chapter 96, which is noise ordinance. Item #4, any outdoor music shall cease operation at 10 PM. All speakers and music shall be directed toward the associated building, away from the adjacent businesses and the public right-of-way. I mentioned Item #7, also lighting. Item #6 I would like to clarify. The applicant shall construct a 6 -foot sidewalk at the Master Street Plan right-of-way line of College Avenue or contribute a money -in -lieu fee of $1579.50, based on the recommendation of the Sidewalk Administrator. The Sidewalk Administrator's recommendation is to construct a six-foot sidewalk at the Master Street Plan right-of-way line. The reason that we look at a sidewalk for this type of development is with any conditional use request, a sidewalk construction, or money related, is required. Ostner: Thank you, Mr. Pate. Is this applicant present? If you could introduce yourself and give us your presentation. Hodges: Hi, I'm Jeff Hodges. I'm one of the owners of Foghorns. That's my co- owner back there, if you have any questions for him. The only thing, I agree with everything, but the platform, the building permit for the outdoor deck. The building inspector said that if we made it 30 inches on castors, a permit was not necessary. So I believe that covers that issue with 30 inches, it's done. That should be approved, there's also the condition of signing of the patio permit. So Item #1 should be addressed. As far as Item #6 goes, most of the right-of-way where the sidewalk would be is currently a parking lot, a paved parking lot, and I don't see that you need to put a sidewalk over a paved surface. Plus, I'm not the property owner myself, he's on vacation. And I can't get ahold of Steve Mansfield. He'll be out probably until next week. I learned about this issue Friday, and I left him a voice mail. He hasn't called me back, and I found out today he's on vacation. So to build a sidewalk -it's his property -so it's a pretty big expense. But I don't believe it's necessary, plus it would take Planning Commission October 11, 2004 Page 25 up a parking spot. I would rather us have that parking spot on 71. And with forty-one spots, we're limited anyway. That's really all I have, unless you have questions for me. Ostner: We'll get back with you. Hodges: Okay. Ostner: At this point, I'll ask if anyone would like to speak to this issue. Now is your time. Seeing none, I'll close it to the public and bring it back to the Commission. Shackelford: Question for the applicant before you get away, sir. You talked about the height of the platform and how that has addressed condition number one. Condition number two is that the platform should be removed from its location when not used. Are you in agreement with that? Hodges: Yes. Shackelford: Okay, thank you. Ostner: I have a question for staff. The applicant has illustrated that we're moving a parking space to put in a sidewalk. How does this, how compliant would a parking space be with our sidewalk requirement? Warrick: This development meets the very minimum requirements for parking on the site. We are working under the recommendation of our Sidewalk Administrator, Sidewalk Coordinator, and Chapte4 171.12 Streets and Sidewalks, which is very specific with regard to the application of sidewalk requirements for conditional use permits. "Unless the developer presents evidence that the number of persons served by the development and the pedestrian troop generation rates of the development justify a reduced contribution and in lieu of the construction of sidewalks, all industrial, commercial, and multi -family developments shall make a cash contribution in lieu of the construction of sidewalk at the rate of $3.00 per SF of sidewalk that normally would have been required." That's the option, the in lieu option, should the sidewalk itself not be the recommendation. The application of this provision specifically states the provision that this section shall only apply to the following property: Subsection 5 under that is conditional use, any development which requires conditional use approval. The reason that there is a recommendation for the installation of a sidewalk in this location is because we're dealing with a fully developed area. We're not going to see these existing structures torn down and a renovation that would generate new site improvements and developments that would comply with today's regulations and that would of course result in the installation of a Planning Commission October 11, 2004 Page 26 sidewalk. This is the situation of not necessarily a renovation, but a new and expanded use in an existing structure. It would be similar the renovation that we saw with -I'm trying to think of the name of the building -there's a Monarch Dental and a couple of others, it's a strip center with several tenants -and there is a new sidewalk in front of that development as well as some landscaping. A similar application, which is near this location, is the renovation of the Coolwater Cafe project location. They did substantial fagade improvements and modified their parking lots, and they were required in that instance, also, to install a sidewalk. Another relatively recent project was an additional development at the Jones Motorcars project, further north on College from this location, where there were additional developments. They were actually developing an area that was relatively green fields, but there is a need for sidewalks along North College, and we see that in these areas where people walk on the pavement if there's any pavement there, but they walk through the grass, and there's a rut along North College Avenue anywhere there's a patch of grass and there's not a sidewalk. So that's basically where the sidewalk recommendation is coming from and there is basis within "Streets and Sidewalks" chapter of our unified development code to support the Sidewalk Coordinator's recommendation. Ostner: Thank you. Thank you very much. Shackelford: A follow-up question was that as I went out and looked at this property this afternoon, is there anywhere that this proposed sidewalk would be that there's grass now? Because it looks to me like it's going to build completely across existing pavement. Warrick: I think that's the case -that it would be in an area that's currently paved. We would be looking a sidewalk that is constructed to city standards. Shackelford: So, the city would actually prefer that the blacktop be torn out and concrete be poured in? Warrick: That's the recommendation. Shackelford: I don't personally understand. The other areas that you mentioned, I think there was significant improvement, because it came across some areas that were not paved already. I personally don't know that that's necessary in this, and as long as, it sounds to me like our ordinances allow for money in lieu, as long as the applicant meets that requirement, than I'm going to support it as written. Anthes: I was going to comment on the sidewalk, but since you said that, I think it's sort of like when we, in residential areas, where we have the sidewalk go through driveways, and they're intentionally as a signal that that's a Planning Commission October 11, 2004 Page 27 pedestrian zone, rather than totally for cars. It's already a harsh environment out there for anybody trying to walk on College, and anything we can do to try to help that I think is a positive thing. I do have a question about the platform. You said it shall be removed. But where does it go? Hodges: Mr. Mansfield owns both properties, and there's room behind the back building to put it at the side. He's approved that. Anthes: That's behind this one-story stucco building? Hodges: Yes. He's got plenty of storage room on the side of it and at the rear of it. Anthes: A question to staff, I guess. Does that kind of storage something that's allowed in this area? Warrick: If it is an accessory to the development. It is not that they are creating a storage unit; they're just storing something that has to do with the business. Anthes: This leaning up an 8' x 8' thing would be allowed? Warrick: As long as it's appropriately stored. Hodges: My other question is with the sidewalk. Can we paint a crosswalk? Since it's already a paved drive, instead of ripping it up and making a sidewalk, can we just pave a crosswalk? Anthes: I don't think that our ordinances talk about that as being an option. Warrick: The option is either the construction of standard sidewalks or the money in lieu. The Planning Commission has discretion if the applicant appeals the recommendation of the Sidewalk Administrator, the Planning Commission will determine which one of those two options is installed. But it has to be one of those two. Shackelford: I just realized those other projects you've mentioned made major renovations as far as restructuring. All we're doing here is allowing outdoor music. If they didn't do outdoor music, it would not be required. It seems having outdoor music two nights a week means you have to spend either $1,600 or $3,000-4,000, whatever the cost might be. If basically they said, no, okay, they are not going to do outdoor music they wouldn't have to do anything. The E -Z Marts, all the other restaurants down there, it could be a hundred years before there is sidewalk connectivity across the parking lot. Planning Commission October 11, 2004 Page 28 Hodges: I really don't feel the need for that, or the money in lieu. I don't feel like that's fair. Myers: If the applicant does not agree with conditions of approval, what is our next action? Warrick: It's your call. The Planning Commission's concern is what conditions are placed on a conditional use. If you approve this project with the conditions as stated or as amended, and the applicant chooses not to comply with them, then their conditional use is not granted. It is only granted under the conditions that you approve. And if they choose not to comply, then, they're either going to be found in violation, and their conditional use will be brought back to you, or we'll deal with it at a staff level, and they just won't be able to conduct the use that they're proposing. The reason that this is a conditional use is that outdoor music establishments have been determined by the city council to be uses that require discretion by the Planning Commission for compatibility and it's not a use by right. They require special approval. Myres: So we would have to make an amendment if we want to remove a condition? Warrick: Yes. Myres: I'm just asking, I'm not planning to do it. Ostner: On the issue of restriping, it makes sense on the surface, but we as drivers and parkers have trouble parking between the lines period. When it is a parking space. Little areas that are striped, "Don't park here," "People are going to walk here," are ignored routinely. They get washed away, people forget and suddenly there's a car there just like there is today, and the parking lot is not a sidewalk, it would be elevated. It would be different. You'd have to get up on the sidewalk. And I think that's important. I think College Ave. is seriously lacking. I wish this city had the money to pay for it, to do it. I think it's crucial. And we don't. And I think it's important that the council has laid special restrictions on the conditional use, to give them special scrutiny. So I'm in support of the conditions of approval as they stand. Anthes: I have a couple of more questions. One of the staff, it states that acoustic music is proposed. What assurance is there that only acoustic music will happen in this location? Warrick: That's a statement from the applicant's letter to staff and to the Planning Commission. And, we have not placed a condition in regard to the type of Planning Commission October 11, 2004 Page 29 music. We have placed a condition with regard to compliance with the noise ordinance. Anthes: The other question is about lighting. Does the existing lighting on this building meet the extent of our lighting ordinance? Warrick: It meets the codes that are in place today. That's about the best I can tell you. Hodges: As far as the acoustical music, that was an ABC rule. To have alcohol on the patio, if we have live music, it has to be acoustical. So that's where that comes from. And also I'd like to say, we've been doing live music for three months, hadn't had real complaints from any neighbor in the surrounding area. Ostner: You shouldn't have told us that. Hodges: That's what I was told to say as a background, I was told to. MOTION: Shackelford: I make a motion that we approve conditional use for permit 04-1220 subject to all seven conditions as stated. Ostner: I have a motion by Commissioner Shackelford. Myres: I'll second. Ostner: A second by Commissioner Myres. Is there further discussion? Warrick: Can I ask a question? Ostner: Yes, Ms. Warrick? Warrick: I would just like to clarify that Item #6 is per the recommendation of the Sidewalk Administrator. Is that the way the motion is intended? The recommendation of the Sidewalk Coordinator is installation of the sidewalk. Shackelford: It looks like it is the alternative, allowing them to have a choice. Warrick: That is what we drafted it was the information we had at the time. The recommendation from the Sidewalk Administrator came after we published this agenda. The actual recommendation is construction of the sidewalk, and we'd like a determination from the Planning Commission one way or the other, whether it's money in lieu or construction. Planning Commission October 11, 2004 Page 30 Shackelford: Okay, I'm going to muddy the water, because my motion is that they have the opportunity to follow the specific ordinance to either build a sidewalk or contribute the money in lieu. Myres: I'll second. Ostner: Alright, well we have a second, that's agreeable to second. Clark: That's agreeable to me. Anthes: Question to the city attorney. If we want to motion the amendment of the condition of approval, can we do it with the motion to approve the whole ball of wax on the floor? Williams: It would probably be better parliamentary procedure to go ahead and make a motion to amend and have that voted up or down and then vote on the motion that is on the floor. Anthes: The sidewalk installation is important in this area. And I would like to amend condition #6 to reflect the recommendations of our Sidewalk Administrator for the installation of the six-foot sidewalk. Ostner: So, I have an amendment motion before we vote on the entire conditional use. Williams: Let me point out one thing before you vote on that. I had not realized, I guess I should have been paying better attention when you said the Sidewalk Administrator had not granted a waiver to build. Is that correct? Warrick: That's correct. Williams: The ordinance says, "If the Sidewalk Administrator grants the waiver to construct a sidewalk, the owner shall have the option to construct the sidewalk or contribute money." So I don't believe that he actually has an option in this particular case if the Sidewalk Administrator has not granted a waiver, which evidently, he has not. So, the condition of approval should be to build the sidewalk. I don't think we really, under this ordinance, have the option to give, I don't think we can give the developer the option in this case. Ostner: I'd like to point out when Mr. Pate presented this, when he came to this item, he did say, the contribution was off the table and that that had been changed. This is basically a typo. Planning Commission October 11, 2004 Page 31 Trumbo: I guess for Mr. Williams, if we approve this as stated, will the applicant have the opportunity to appeal the sidewalk decision? Williams: Yes, I'm not sure exactly where they appeal the Sidewalk Administrator. Do they appeal it to the Planning Commission? Warrick: "An owner/builder may appeal the Sidewalk Administrator's refusal to grant a waiver or the Administrator's determination of the amount of contribution to the Planning Commission pursuant to §155.06 which is with regard to rough proportionality. Trumbo: So, they would appeal to us? Warrick: It's coming back to you one way or another. Clark: Point of clarification. Does Joe need to withdraw his recommendation since Williams is telling us it doesn't matter. Ostner: I believe our conditions basically have a typo that talk about money in lieu. And, his motion to support this basically supports the Sidewalk Administrator's recommendation. Clark: So Jill does not need to make a motion. Shackelford: My motion stands to approve as presented with the conditions of approval. I obviously am going on record that I don't support one of them, but that's... Ostner: Well, we'll deal with that later. Shackelford: Knowing that we are the board that will hear that appeal, if such appeal is filed, I will go ahead and keep my motion on the table to approve as presented. Ostner: Okay. Shackelford: Great. Ostner: Is there further discussion? Would you call the roll? Roll Call: Upon the completion of roll call, the motion to approve the conditional use was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 32 CUP 04-1224: Conditional Use (JOHNNY WALKER, 529): Submitted by JOHN M. WALKER for property located at 3548 E HUNTSVILLE ROAD. The property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 0.51 acres. The request is to approve a multi -family use in an R -O. Residential Office, Zoning District. Ostner: My next item is another conditional use. Item 04-1224 for Johnny Walker. Pate: This item, the applicant has requested us to table the item; he can not make the meeting tonight. Ostner: Thank you. MOTION: Clark: I will make a motion to table this item, per the applicant's request until it is resubmitted by the applicant. Ostner: Thank you. Do we have a second? Shackelford: I'll second. Ostner: We have a motion and a second. Does anyone from the public want to speak to this conditional use item, since it's been published and placed on our agenda? We'll be glad to hear any comment. Seeing none, I'll close it to the public, and we will hear this again. Is there further discussion on this motion? Shackelford: A point of clarification. Do we need to state that it's tabled until the next regular meeting, or how would you like that? Pate: We would like to table this until our next regularly scheduled meeting, October 22. Clark: So I amend my motion to agree. Shackelford: I'll amend my second as well. Ostner: Would you call the roll Renee? Roll Call: Upon the completion of roll call, the motion to table Item #04-1224 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 33 VAC 04-1226: (HABITAT FOR HUMANIT, 563): Submitted by PATSY BREWER for property located at 222, 224, and 226 E. 13t STREET. The property is zoned RMF - 24, RESIDENTIAL MULTI -FAMILY 24 UNITS PER ACRE, and contains approximately 0.04 acres. The request is to vacate all of a 10' alley in the Berl Dodd Addition. VAC 04-1227: (HABITAT FOR HUMANITJ, 563): Submitted by PATSY BREWER for property located at 221, 223, and 225 E. 13 STREET. The property is zoned RMF - 24, RESIDENTIAL MULTI -FAMILY, 24 UNITS PER ACRE, and contain apfroximately 0.04 acres. The request is to vacate a portion of an alley lying south of E. 13 Street behind lots 8, 9, and 10 of the Berl Dodd Addition VAC 04-1228: (HABITAT FOR HUMANITY, 563): Submitted by PATSY BREWER for property located at WILLOW AVENUE, EAST OF LOTS 6,7, AND 8 OF THE BERL DODD ADDITION. The request is to vacate a portion of the yet un -constructed Willow Avenue. Ostner: Thank you. Our next item is not a conditional use. It is a vacation for 04- 1226. A vacation for Habitat for Humanity. Olsen: Good evening Chairman and members of the Planning Commission. The next three items are kind of all very similar. They are vacations for two alleyways and a portion of South Willow Avenue which was platted but never constructed. You'll obviously have to vote on these one at a time, so I'll start with 04-1226. These were submitted by Habitat for Humanity for lots 6, 7, and 8 of Block 3 of the Berl Dodd Addition located east of Washington Ave. and North of 13"' St. The property is zoned RMF -24, and the request is to vacate the existing 10 foot public alley. Like I said, this portion of alley was platted but was never constructed and Habitat for Humanity currently owns the lots adjacent and is constructing single family homes and are requesting to vacate this alley. VAC 04-1226 is the north portion of the alley north of 13a' St. The next item, VAC 04-1227 is the South portion of that alley, south of 13t' St., and VAC 04-1228 is the portion of South Willow Ave. Staff has recommended approval for these vacations with no conditions placed on VAC 04-1226 or VAC 04-1227, and two conditions of approval placed on VAC 04-1228. Those being that the legal description for the vacation of S. Willow Ave. shall be amended to remove the built portion of 13a' St. prior this item being placed on the City Council agenda, and two that the described right-of-way vacation shall be retained in a general utility easement. And that is just for the item 04-1228. There are a series of maps in your package which better display where these reflected vacations are to occur. I believe that's all the information I have for you. Any questions? Ostner: No. Olsen: Thank you. Planning Commission October 11, 2004 Page 34 Ostner: Thank you. Is the applicant present? If you could introduce yourself and tell us about your project. Brewer: I'm Patsy Brewer, the executive director for Habitat for Humanity. I live at 2607 E. Joyce Boulevard in Fayetteville. When we purchased these properties, the North property was used as a dump behind an existing home, that the previous owner tore down before we purchased it. So we think we are certainly enhancing the neighborhood to get things like that cleaned up because that's what the residents around there considered this to be -a dumping ground for used mattresses etc. The south side was also unkept and we just feel like it's never been used for platted purposes of alley or street in all the years that it's been platted. So that this property would be maintained, mowed, and taken care of, we're proposing to ask for the vacation of both the alleyway and Willow, which is not connected on either end, if you will check your plats. Ostner: Thank you. At this point, I'll ask for public input. Would anyone like to speak to this vacation issue? If you could introduce yourself and go ahead and sign in. Gardner: My name is Carol Gardner. I own the property at 113 S. 13`h St., which is adjacent to the S. portion, so I guess it would address 04-1227. I think you have comments in your packet, I haven't seen your packet, that I submitted several weeks ago. It's true that this has never been an alleyway, it has been a drainage area and I addressed the city concerning this probably almost two years ago that if Habitat was allowed to build up the land there that it would cause drainage problems on my property which they have done in spite of the fact they said they would not do that. At this point, since the buildings have already been raised, there's not much that can be done, so I am withdrawing my objection, because anything that's done at this point would cause more harm than good. I do find it ironic that I have been responsible for bringing in over 1,000 volunteers and now I find myself in the position where they're flooding my property. Ostner: Thank you. Is there further comment? Seeing none, I'll close it to the public and bring it back to the Commission. Anthes: You know when I look at a plat like this, I'm sort of heartbroken that it wasn't constructed according to plat, because this is the kind of lot and block system with rear alleyways that all of this country is trying to get back to. I'd like to retain those rights that we could get to that again in this city in places that that exists. I guess I have a question for staff about the drainage, and that is, if neighbors downstream or down flow from areas are experiencing problems, do they have better recourse if they request that the city take care of the drainage in their alleyway that they Planning Commission October 11, 2004 Page 35 own, or do they have better recourse if they have to go to a series of property owners to deal with that condition? Shackelford: Well, to answer the question on the issue of drainage, no issue has been brought to our attention. If there is a problem, it does need to be brought before the staff, our flow plan administrator has dealt with these issues in the past. It would be probably in the best interests of neighbors that are experiencing any issues to bring their concerns to city staff. Clark: Seems like she did. Shackelford: This is the first that I have heard of it, and I am unaware of anything brought to city staff. I regret that I have not. Anthes: And in your opinion, do neighbors have better recourse if the city owns that, than multiple tenants, or multiple owners to resolve any problems? I think in a way it might depend on where that drainage is coming. There's no, I don't know if we've looked at this, and certainly our storm -weather engineer could take a look at this and determine if the drainage is coming from the area of this proposed vacation. If this is an area that has not been maintained traditionally, and from what I understand, because of new development on the sites, there is an increased run-off, or there seems to be a problem with regard to drainage, and I'm just kind of interpreting that from what I'm hearing tonight, that's not to say that it's coming through this area, because this area has been prohibited from developments. It's a platted alley, and we can not issue building permits or anything from that area to date. So, I can't verify that the drainage flow is coming in a manner that the city could accommodate it, in this particular location. That might take a little more analysis from the engineering division. We could certainly request that to happen. I guess, you know, I hate to have to give away public interest in a piece of property because the city hasn't been doing a good job of taking care of its own property. That's a little awkward. Well, I would add also that we all own property, if our lots abut a street, we own area that is adjacent to public right-of-way that intervenes between the actual built street and our yards. Those areas are required to be maintained by the property owners. And therefore, it's not the city's responsibility unless that area has been approved to go in there and maintain an alleyway that's not been established as an alley, or a street that's not been established as a street. From what I understand you saying, I think some of the argument in the packet was that they wanted this vacation so that they would be allowed to go in there and maintain the alley, but it sounds like what you're saying is it's their responsibility to maintain the alley whether or not this vacation is granted. Warrick: That's correct. Planning Commission October 11, 2004 Page 36 Anthes: And the constructions have already been constructed, right, so we're not taking away development rights? Warrick: They've either been constructed or initiated. I don't know that all of them are complete. The Habitat owns several lots here. I think maybe three or four. Ostner: Excuse me, I'd also like to point out that we are not deciding to give away city land. The council will actually do that. We're making a recommendation. Anthes: That's right. Brewer: There were three lots on one side of the street, and three on the other, and we've built on some and some we have not. The water that is the concern of the neighbor comes from a culvert underneath the street, flows along the side of her property as it does ours. Any filling that we have done we have not done near the edges of the property. We have changed no water. We've been out there watching when we've had these rains, that we've had, a few rains. Which, we always critique our properties for standing water, running water, and all. Nothing has changed at all with the water flow, besides stopping some from coming catty -corner through the lots that have gone, that aren't even coming through there anymore. So we feel that there should not be any issue with the water. It's coming from the North, underneath the street, past he property. And her property in the back is raised, so, it's kind of hard to flood up hill. Ostner: Mr. Williams? What are the findings for vacation requests? Williams: Well, the key is whether or not this property is needed for municipal purposes anymore. If you look at the plat, you'll see that part of the alley has already been blocked by a structure. And looking on page 5.9, it doesn't look like this can function anymore as an alley, and therefore I think it's a pretty safe conclusion that it's no longer needed for corporate purposes. Clark: Okay, I might be looking at this wrong, but I thought that was one of the old buildings that were torn down as part of this project. Williams: Oh, is that building no longer there? Brewer: No, no, that's actually a built structure that is a newer, multifamily structure, I believe. The alley north of this petition has been vacated through prior action. Clark: That's interesting. Planning Commission October 11, 2004 Page 37 Shackelford: I'd also like to point out that the drainage issues really aren't that relevant. They have their proper channels and they can be dealt with, regardless of a vacation. So, the neighborhood and Habitat can further that issue, regardless of where this goes tonight. So. Commissioner Clark. Clark: To get this right about an alley. It's the adjoining neighbor's responsibility to maintenance it, even if the city does it. And if we vacate it, it automatically becomes their mandated responsibility to maintenance it. Is that what I'm hearing? Warrick: If an alley is not constructed, what typically happens, and what I believe has happened in this case, it's just, basically, an overgrown area that has large trees in it, that would not, certainly, have been there had this been paved or graveled or utilized as an alley -as a functional alley. And if that's the case, if it is not established as an alley, which for the purposes of accessing your property from the rear or from the internal driveway, if it's not established from the city in that fashion, than yeah, it's the adjoining property owner's. They will typically be responsible for ensuring that those areas don't become maintenance issues or sanitation problems. Clark: Okay. And if it is vacated, it will be their piece of property. They will pay taxes on it and maintain it as their own property. I'm going to hate asking this question, but Ms. Brewer, is this the reason you want to vacate this? So that you can take care of city property adequately? I mean, I may not be hearing this properly. Brewer: I guess you need a before and after picture, which we did not put in the packet, of what all this looked like before we started clearing out ten foot high debris and all this kind of stuff. We would just like, for our home owners, we would just like to have everything clean and clear. We'd like to add, you know, five feet on the one side, and the ten on the other side, with splitting the difference with the adjoining property owners, which is more than ?on one side so ya'll would still be in charge of ten of those feet. Just to make it crystal clear that this is their property, and so on and so forth, we would like to do that, and of course, it's a few more feet on the tax rolls too. Clark: And it is their responsibility to take care of and clean up some of the problems that we're having. Brewer: Right. Well, we've cleaned up a lot. Clark: Okay. That takes care of my question. Brewer: Okay. Planning Commission October 11, 2004 Page 38 MOTION: Shackelford: Bottom line as I see it, is that this property is no longer needed for public use, as there is no additional connectivity that can be gained. I also find in favor with the findings of the city staff. So I'm going to make a motion that we recommend to the City Council approval of VAC 04-1226. Trumbo: I'll second that. Ostner: Thank you; I have a motion by Mr. Shackelford and a second by Mr. Trumbo. Is there further discussion? Could you call the roll please? Roll Call: Upon the completion of roll call, the motion to recommend approval of VAC 04-1226 was approved by a vote of 6-1-0 with Commissioner Anthes voting no. MOTION: Shackelford: Based on the comments that I said earlier, I also make a motion that we recommend approval to the City Council on VAC 04-1227. Trumbo: I'll second. Ostner: Thank you; I have a motion and a second. I'm going to ask for any public comments, since we're actually hearing separate items. We've already heard staff reports. Would anyone else like to speak to the second vacation? Thank you, could you call the roll please, Renee? Roll Call: Upon the completion of roll call, the motion to approve VAC 04-1227 was approved by a vote of 6-1-0. Ostner: Yes. MOTION: Shackelford: I also make a motion that we recommend approval to the City Council on VAC 04-1228, based on earlier comments. Ostner: I have a motion by Mr. Shackelford. Trumbo: I'll second. Ostner: And a second by Mr. Trumbo. Would anyone from the public like to speak to this second vacation? Thank you, is there further discussion among the commissioners? Renee? Planning Commission October 11, 2004 Page 39 Roll Call: Upon the completion of roll call, the motion to approve VAC 04-1228 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 40 RZN 04-1223: Rezoning (TRACY HOSKINS, 361): Submitted by TRACY K. HOSKINS for property located at 1719 N RUPPLE RD. The property is zoned RSF-1, SINGLE FAMILY - 1 UNIT/ACRE and contains approximately 11.73 acres. The request is to rezone the subject property to RSF-4, Residential Single-family, 4 units per acre. Ostner: Thank you. Our next item is a rezoning for Tracy Hoskins, RZN 04-1223. If we could have the staff report, please. Pate: Subject property is located at 1719 N. Rupple Rd. It is currently a large agricultural field, with several residential and accessory structures located on it. It consists of approximately 11.73 acres. It was recently annexed as part of the City Council's decision to annex all unincorporated areas surrounded by city limits, or the islands within the city limits of Fayetteville. It was part of the 254 -acre tract along Rupple Road, north and south of Mt. Comfort Road. At the time of annexation, this area was zoned primarily to RSF-1, with the exception of a small portion zoned to R -A, with existing agricultural uses. The property is located directly east of the Bridgeport subdivision, and south of Bridgeport subdivision Phase VII. There's a stub out, if you remember the preliminary plat has been approved for Phase VII. There is a stub out south of New Bridge Road that will access this property. Additionally, that property does have an access easement, approximately sixty feet wide, that does access Rupple Road. Surrounding properties are zoned RSF-4 and RSF-1, and are developed, or being developed, as single family residential homes. As I mentioned, Bridgeport subdivision Phase VII, which is the easiest place to actually see this property, is currently under construction to the north of the subject property. The proposed rezoning staff finds is consistent with land use planning objectives. The future land use plan for this area does designate this site for residential use. Rezoning the property to RSF-4 is consistent with the land use plan and is compatible with surrounding land uses in the area. Bordering the property directly to the west are the backs of the lots within the Bridgeport subdivision, as well as those lots to the north of Bridgeport subdivision Phase VII. As I mentioned, the site currently does have access to Rupple Road and a street connection to this arterial will likely be required for the development of the subject property to allow for adequate access. I've already mentioned, basically, the stub out that's being provided to the north. Individual findings from our public service providers have been submitted with your packets, and they find in favor of this rezoning as well. Response time to this particular site is approximately three minutes or .8 miles from the fire station #7, which is, of course, under construction at this time. Based on the findings, staff recommends approval of the requested zoning from RSF-1 to RSF-4. Ostner: Thank you Mr. Pate. Is the applicant here? If you could introduce yourself and tell us about your project. Planning Commission October 11, 2004 Page 41 Hoskins: Good evening folks, I'm Tracy Hoskins, and I'm the applicant. I'm here to answer any questions you may have. Ostner: Thank you. I'd like to open it up to the public. If anyone would like to speak to this rezoning issue, please step forward. Seeing none, I'll close it to the public and bring it back to the commission. I have a question for staff. Rupple Road is not really adjacent to this, but is nearby. On the Master Street Plan, Rupple is planned to be built new, or rerouted somewhat? If you could explain that? Pate: Sure, this property actually does have a portion of access. If you look on page 8.16, it does have, basically, there's a driveway, a gravel driveway, that is currently sixty feet wide to access the subject property. Also, on pages 8.16-8.17, you do notice the Master Street Plan veers essentially to the east, away from its current alignment. With future development of this property, that Master Street Plan would be required, for instance, a subdivision or any other type of development here. You'll notice there is a bad intersection, as we all know. There have been improvements recently with the subdivision that has come through final plat at the intersection of Rupple Road and Mt. Comfort Road, a "Y" intersection. The intent of this Master Street Plan is to align this southern portion of Rupple Road with that which is constructed north of Mt. Comfort Road, out by the school, that currently accesses through the school. Ostner: Okay. The sort of issue that I was driving at, or fishing for, was there's a pretty good loll in the area, it's not a heavy river or stream. Obviously, a new bridge would be required. Pate: Correct. Ostner: Are we going to just wait on development to get that built? Pate: As with most bridge constructions, they are, obviously, for instance the Clabber Creek Bridge, that we recently saw, there are assessments made from developers in that area based on a rational nexus calculation, that if they contribute their fair share of access, they contribute their fair share of assessment into that bridge construction. We've seen that used in a couple of different instances. And with developments of the property, for instance this one, we would see an assessment of that as well. The city has no plans currently, to construct a bridge in that location. Ostner: I see. But the possible assessment you just mentioned is not really part of our scope here. Planning Commission October 11, 2004 Page 42 Pate: Not until we see development on the subject property that would create the need for that. Ostner: Okay, thank you. Clark: According to the note that we got before the meeting, all the rest of the actions we're not going to vote on? We're just going to hear public comment and then hear them again on the 25`", is that correct? Ostner: Due to an accident, right, we will hear each of these items again publicly. Clark: We're not going to take any action tonight? Do we have to table it? Ostner: Well, we can motion to table, which is probably what we should do. If we did go ahead and approve them, we would still hear them again, to give the public plenty of time to respond to them. Either way, the council should hear them at about the same time, the way the schedule of the docket lines up. Clark: Okay, just trying to figure out when we were supposed to be done. Ostner: Right, I appreciate your bringing it up. Thank you. Shackelford: That's troubling to me. Obviously, I agree that every citizen has a right to know what's going on and to make comment, but I also think every applicant is owed due process in the proceedings. So, my question to staff: If we recommend approval, obviously, this has to go to city council, tonight, when would we anticipate these items being heard by city council? Assuming that everything is done correctly to this point. Warrick: The same as if you chose to table them tonight and make a recommendation two weeks from now. Staff proposes to send these items forward to be heard by the city council. Our burden is meeting a deadline to send an agenda request forward. I believe that the items would be heard at the agenda setting session for the city council on Tuesday, the 26`", and then at the actual city council meeting on November 2. Shackelford: So, if I'm understanding correctly, you guys are going to work overtime Monday after the meeting to get it on the next day's agenda, which you would normally do, so there's no loss of due process to the applicant. Is that correct? Warrick: We feel that that's appropriate because this was staff's error. Shackelford: Okay, thank you very much. That relieves my concern. Planning Commission October 11, 2004 Page 43 Ostner: And, just to further eliminate question, we are merely making recommendations again, to council. They will hear this, whether we recommend approval, or we recommend denial. Williams: I would just make the statement that rezoning and annexations are only forwarded from this body if recommendation for approval is your vote. If a recommendation for denial is your decision, the applicant has the right to appeal to the city council. Clark: But regardless, all the people who need to be notified have not been notified. Warrick: No, they have been notified, we just didn't get fifteen days. Clark: Okay. Warrick: Everyone has gotten notice. Ostner: Forgive me, I was not quite right. Williams: And just to reiterate what the city planner said, if any owner would have their request denied, then they would have to move very quickly to file their appeal to be able to still have it heard by the city council on November 2"d. All the ones that will be approved will automatically be heard by the city council on November 2"d. But if you are unlucky and have yours denied, then you would need to almost immediately file your written notice of appeal with the city clerk, and then it still can be heard on November 2"d. MOTION: Shackelford: Two things. First of all, I applaud city staff for going the extra mile so that there isn't a delay to the applicants. I appreciate you doing that. Second of all, I'm going to do something I don't think that I do very often. I'm going to make a motion that we table RZN 04-1223 to the next regularly scheduled Planning Commission meeting. Clark: Second. Ostner: I have a motion to table and a second. Is there further discussion? Anthes: I just have one question. I just need to know that we're doing this so that we have opportunity to hear public comment twice, so then, because if we voted to forward something now, and we heard public comment in two weeks, that persuaded us to change our mind, there would be no doing so at that point? Planning Commission October 11, 2004 Page 44 Williams: My interpretation agrees with the city planner that you may not make a decision tonight that we have not fully complied with all notification requirements which require the signs to be in place fifteen days before this meeting. Everything else was done, the signs were up, but not fifteen days before, so you may not make a decision tonight. Ostner: Thank you. Clark: I commend everybody who is here and I apologize that we can't make a decision tonight, and I'm hopeful that everybody will come at the next Planning Commission, because I guarantee you I won't remember everything you say tonight if you don't show up next time. Not trying to be ficticous, it's just our agendas are so long. I'm hoping that all of these will be at the front of the agenda as well next time when we come back. Warrick: They will be, and we will also have a written record in the minute of those persons who chose to speak tonight so that you'll have that. Connor: Will you entertain comments from the floor? Ostner: Absolutely, are you part of the applicant. Connor: Yes, I'm an applicant. My name's Jeff Connor with Connor Law Firm. I'm trying to rezone a residential property to a residential office. Ostner: Sir, if you don't mind, let's get through this item, and we're going to go down the list. Connor: Well, I'm just wondering, if we're going to do this again, and no decisions are going to be made, I'd just assume go home right now. I don't want to stay here just to come back on the 25`h. If its not necessary for you to hear me or anything about my case this evening, I'd just like to go home. Ostner: Well, you're basically asking us to consider your item out of line. So, we need to get through this item right now. Warrick: Staff's intention was to present each of these items to provide you with a staff report with a recommendation so that you got the substantive information with regard to each of these requests tonight when it was originally scheduled to be heard and allow the public and yourselves the opportunity to open to public comment only on the 25`h, so that this process could be somewhat expedited and the main conversation happen today, because that's when everyone understood that their item would be here. And what we prepared was to review those staff reports and answer any questions that you might have and not necessarily do it all again next Planning Commission October 11, 2004 Page 45 time, but allow for public comment at the next Planning Commission hearing. Ostner: I understand. Shackelford: I, unfortunately, respectfully disagree. I think a lot of the conversation that happens in an item is in response to public comment. And I think that as long as we're taking public comment the second time we hear these, it could very likely be a second set of issues that are brought up by the folks that decide to give public comment. I don't know that we can, whatever word I'm looking for, look at it tonight and not next week. I think we have got to give it due process both times. So, with that being said, I agree with Commissioner Clark said, we just need to encourage everybody that feels compassionate about these issues to come back and talk to us next time as well. Hoskins: I have a question, I guess for Kit. First up, let me say, these folks normally go way beyond the call of duty for me, so I'm okay with tabling. I'm cool with tabling. But what I'm curious about is, let's assume we do wait for two weeks. Even though I can't even imagine there being any public comment. Ostner: You've never been turned down before, have you? Hoskins: Not yet, but I'm working on it. Let's assume in two weeks that something happened to go south for me, or whatever, and I did want to appeal to the city council, how can I do that in a twenty-four hour period? Williams: Owners of record may appeal the decision to deny a rezoning request, you just simply send a letter, or I wouldn't send it, I would take a letter to the city clerk's office. Have her file it prior to the city council meeting. It's already going to be on their agenda. It'll be on the agenda as an appeal to a denial as opposed to a recommended rezoning. Hoskins: Okay, will we be able to do that the very next night like that? Williams: I think so because everything's going to be on their agenda in order not to prejudice you all because of the date slip-up that we had on the signs. Hoskins: Yeah, that's fine. I say we table it. Ostner: Now on that point, Mr. Williams, can the applicant request that he not be put on the next docket for the council, I mean since we're tabling it? Williams: Yes, in fact, if any applicant does not file the appeal before the city council meeting, then he will not be on, it'll have to be tabled by the city Planning Commission October 11, 2004 Page 46 council because it won't be properly before them without an appeal from this board. Ostner: Okay. So, I believe we have a motion and a second. Is there further discussion to table? Renee? Roll Call: Upon the completion of roll call, the motion to table RZN 04-1223 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 47 RZN 04-1221: Rezoning (SCOTT, 255): Submitted by ED & PATRICIA SCOTT for property located at 3196 SKILLERN ROAD. The property is zoned R -A, RESIDENTIAL -AGRICULTURAL and contains approximately 2.01 acres. The request is to rezone the subject property to RSF-4, Residential Single-family, 4 units per acre. Ostner: Our next item is a rezoning for Scott, RZN 04-1221. If we could have the staff report please. Olson: This rezoning was submitted by Ed and Patricia Scott for property located at 3196 Skillern Road. The property is zoned R -A, Residential Agriculture, and contains approximately 2.01 acres. The request is to rezone this property from R -A, Residential Agricultural, to RSF-4, Residential Single-family, four units per acre. The property is located north of Skillern Road and east of Crossover Road. It currently has a single-family residence on it. The surrounding properties consist of large single family tracts and some agricultural tracts. The applicants' intent is to build a pergola on the east side of the house. This pergola would provide covered parking for cars and access to the back yard. The house layout, septic system, and lateral field locations to the north and west of the existing dwelling do not allow for the addition of a garage in these locations. Under the current R -A zoning designation the side building setback line of the east side of this property is twenty feet. The applicants' proposal to rezone the property RSF-4 would allow for an eight foot building setback, which would give them room for the construction of the proposed pergola. Staff has received no comments from nearby property owners concerning this project. Staff recommends approval of the rezoning request based on the findings included in the staff report. Any future development on this site will be regulated by the city to ensure adequate services, infrastructure, connectivity and consistent development within the surrounding area. Ostner: Thank you. Is the applicant present? Scott, P.: Hi, I'm Patricia Scott, and I'm here to answer any questions that you might have. I've talked to my neighbors, and we're not putting in any apartment complex, so we have clarified all of that with them. Ostner: Thank you, ma'am. Okay. Would anyone from the public like to speak to this issue? Seeing none, I'll close it to the public and bring it back to the Commission. Clark: Mr. Chair? Ostner: Excuse me one second. First another question for Mr. Williams. Williams: Sorry, I don't know what a pergola is. Planning Commission October 11, 2004 Page 48 Ostner: Doesn't matter. It's like a carport. On this issue of basically efficiency, and not re -presenting staff reports two weeks from tonight. Is that okay? Williams: I think that's proper as long as no decision is made until you've heard all the information from any person that maybe did not see the sign up fifteen days ago. I think that's fine. Ostner: So, in theory, we would simply ask for public comment on each of these and go ahead and make a vote. Shackelford: For the record, my opinion, for what it's worth. I would much rather have the staff make their presentation the day that we're taking a vote, rather than make the presentation of staff reports now and us try to remember those and public comment from tonight, and public comment two weeks from now. To make that motion, I would much prefer that we take staff reports on the same meeting that we're going to vote on these items instead of tonight. Ostner: I would tend to agree and that's why I'm basically sort of interjecting in this item. It's hard enough to keep track of these things, much less string it out for two weeks. Clark: I have a question for Mr. Williams. Will we be breaking any big law or rule to just move to table all of these in mass right now? Williams: I would table them all individually, but I would certainly ask if there's any public comment, because somebody might have come. Ostner: I would like to politely ask staff if we could defer staff reports for two weeks and we'll go ahead and take public comment tonight. Warrick We are your staff. We will do what you ask us to do. There are people who have been waiting to present their information. And that is solely your decision. We are here to present our information when you're ready to hear it. Ostner: Thank you. MOTION: Shackelford: I will make a motion that we table the recommendation on RZN 04-1221 until the next scheduled Planning Commission. Clark: Second. Planning Commission October 11, 2004 Page 49 Ostner: I have a motion by Mr. Shackelford, and a second by Ms. Clark. Is there further discussion? Renee. Roll Call: Upon the completion of roll call, the motion to table Item RZN 04-1221 was approved by a vote of 7-0-0. Ostner: So as a public announcement, we are here to hear public comment, if any, on the entire rest of the agenda. However, we will completely hear staff reports, comments, and presentations, in two weeks where we will make our formal vote. Planning Commission October 11, 2004 Page SO RZN 04-1219: Rezoning (HANCOCK/WILSON, 323): Submitted by PROJECT DESIGN CONSULTANTS, INC for property located at 2389 SALEM ROAD. The property is zoned R -A, RESIDENTIAL -AGRICULTURAL AND RSF-1, RESIDENTIAL SINGLE FAMILY - 1 UNIT PER ACRE, and contains approximately 14.94 acres. The request is to rezone the subject property to RSF-4, Residential Single- family, 4 units per acre. Ostner: Our next item is RZN 04-1219. We're not going to have a staff presentation. Is there public comment? This is the Hancock/Wilson rezoning. If you could please step forward to the microphone? Scott, B: My concern is would the staff report be available to public review sometime this week? Warrick: Yeah, the staff reports are all available in the planning office, and it should have been provided to the applicant or representative late last week, but absolutely you're welcome to come and take a look at those in the Planning Office. Or give us a call if you need us to e-mail it or fax it to you. Scott, B: Okay. Thank you. Ostner: So, is there any further public comment on rezoning 04-1219 for Hancock/Wilson? Seeing none, I'll close it to the public and bring it back to the Commission. MOTION: Shackelford: I'll make a motion that we table rezoning request 04-1219 until the next regularly scheduled Planning Commission meeting. Allen: Second. Ostner: I have a motion by Commissioner Shackelford a second by Commissioner Allen. Is there further discussion? Ren&e. Roll Call: Upon completion of roll call, the motion to table Item #04-1219 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 51 RZN 04-1225: Rezoning (CONNER LAW FIRM, 529): Submitted by ROBERT JEFF CONNER for property located at 3398 E HUNTSVILLE ROAD. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.78 acres. The request is to rezone the subject property to R -O, Residential Office. Ostner: Our next item is rezoning 04-1225 for the Connor Law Firm. Would anyone like to speak to this issue, concerning this rezoning? Clark: I have a question. These pictures we have, are they just in color, and that's the only difference? Warrick: Yes, they were just more clear. MOTION: Clark: Thank you. Then, Mr. Chair, I would like to make a motion that we table rezoning 04-1225 until the next regularly scheduled meeting. Ostner: Thank you. I have a motion. Myres: Second. Ostner: For the record, there was no public comment tonight, so a motion by Commissioner Clark, a second by Commissioner Myers. Is there further discussion? Renee. Roll Call: Upon completion of roll call, the motion to table Item #04-1225 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 52 ANX 04-1212: Annexation (HARPER/BOWEN, 100): Submitted by MICHELE, A HARRINGTON for property located at 5512 GEORGE ANDERSON ROAD. The property is in the Planning Area and contains approximately 2.68 acres. The request is to annex the subject property into the City of Fayetteville. Ostner: Thank you. Our next item is annexation. Annexation 04-1212, from Harper and Bowen. Would anyone from the public like to speak to this issue? We're almost empty, seeing none, I'll close it. MOTION: Clark: I make a motion that we table Annexation 04-1212 until the next regularly scheduled Planning Commission meeting. Myres: Second. Ostner: Thank you Commissioner Clark. Clark: And we apologize to all the folks out in the audience who have waited this long. Ostner: A motion by Commissioner Clark, a second by Commissioner Myres. Is there further discussion? Ren6e. Roll Call: Upon completion of roll call, the motion to table Item #04-1212 was approved by a vote of 7-0-0. Planning Commission October 11, 2004 Page 53 RZN 04-1213: Rezoning (HARPERIBOWEN, 100): Submitted by MICHELE, A HARRINGTON for property located at 5512 GEORGE ANDERSON ROAD. The property is zoned R -A, Residential Agricultural, and contains approximately 2.68 acres. The request is to rezone the subject property from R -A, Residential Agricultural, to RSF- 4, Residential Single-family, 4 units per acre. Ostner: The last item is a rezoning for Harper/Bowen. Item #04-1213. Would anyone from the public like to speak to this issue? Seeing none, I'll close it to the public and bring it back to the Commission. Clark: Mr. Chair, I make a motion that we table Annexation 04-1213 until the next regularly scheduled Planning Commission meeting. Ostner: Thank you Commissioner Clark. Myres: Second. Ostner: A second from Commissioner Myres. Is there further discussion? Renee. Roll Call: Upon completion of roll call, the motion to table Item #04-1213 was approved by a vote of 7-0-0. Ostner: Thank you. I believe that's the... Myres: Mr. Chair? Ostner: Commissioner Myres. Myres: Would staff like us to keep our packet for these items 8-13. Clark: I'm hanging on to mine. That would be great. Myres: Then you won't have to give it to us again. Hold on to them. Clark: Because we are environmentally conscience. Ostner: On the announcements section, Commissioner Vaught has left subdivision and Commissioner Clark is taking his place for now. The subdivision is still Commissioner Anthes, Commissioner Shackelford, and Commissioner Clark until further notice. Are there any more announcements? Planning Commission October 11, 2004 Page 54 I believe there's a meeting at noon on Wednesday with the Hillside? Taskforce Committee members. So, Clark: Where's the meeting? Ostner: Where is that? 326. In City Hall, room 326. Ostner: Are there any more announcements? Allen: Mr. Chair? Ostner: Commissioner Allen. Allen: I have a social announcement. As the seated Planning Commission, we would like to invite the former Planning Commissioners to join us after the meeting next week, which would be the 25`h, to go have dinner together, as well as any member of the media that might like to join us. Clark: We can also invite staff to that right? Allen: I think we could. Ostner: I think we should. Clark: I think we should. Ostner: It's the same. Are there any further announcements? We are adjourned.