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HomeMy WebLinkAbout2005-11-14 MinutesMINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on November 14, 2005 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN VAC 05-1784: (FOUR SEASONS SUNROOMS, 370) Approved Page 4 LSD 05-1462: (RIDGEHILL APARTMENTS, 405) Tabled Page 7 CUP 05-1752: (GREEN DOOR, 407) Approved Page 9 C-PZD 05-1610: (EAST SQUARE DEVELOPMENT, 523) Forwarded Page 23 ADM 05-1820: (EAST SQUARE DEVELOPMENT - COLLEGE AVENUE) Approved Page 4 C-PZD 05-1704: (FIRST BAPTIST CHURCH, 484) Tabled Page 7 LSP 05-1755: (PARK WEST, 208) Approved Page 61 PPL 05-1774: (WALKER ESTATES S/D, 294) Approved Page 4 CUP 05-1804: (JONES, 526) Approved Page 64 CUP 05-1785: (SMITH TWO-WAY RADIO, 324) Approved Page 67 Planning Commission November 14, 2005 Page 2 MEMBERS PRESENT MEMBERS ABSENT Jill Anthes Nancy Allen Candy Clark James Graves Audy Lack Christine Myres Alan Ostner Sean Trumbo Christian Vaught STAFF PRESENT Jeremy Pate Andrew Garner Suzanne Morgan Brent O'Neal Jesse Fulcher Tim Conklin Leif Olson CITY ATTORNEY: Kit Williams STAFF ABSENT Planning Commission November 14, 2005 Page 3 Ostner: Roll Call: Upon the completion of roll call Commissioners Allen, Anthes, Clark, Graves, Ostner, Lack, Trumbo and Vaught were present. Commissioner Myres was absent. Ostner: Planning Commission November 14, 2005 Page 4 VAC 05-1784: Vacation (FOUR SEASONS SUNROOMS, 370): Submitted by FOUR SEASONS SUNROOMS for property located at 1586 E. AMBER DRIVE. The property is zoned RSF-4, SINGLE FAMILY- 4UNITS/ACRE and contains approximately 0.09 acres. The request is to vacate a portion of a utility easement on the subject property. ADM 05-1820: Administrative Item (East Square Development - College Avenue): Submitted by ROBERT SHARP ARCHITECT, INC., the applicant requests a lesser dedication of right-of-way than that required by the Master Street Plan at College Avenue, between Center Street and Mountain Street, to accommodate a proposed development. The applicant requests that the required right-of-way for College Avenue be modified from 55' right-of-way from centerline to 30' right-of-way from centerline. PPL 05-1774: Preliminary Plat (WALKER ESTATES S/D, 294): Submitted by ROGER TROTTER for property located at 2806 NORTH CROSSOVER RD. The property is zoned RESIDENTIAL SINGLE FAMILY- 4 UNITS/ACRE (RSF- 4) and contains approximately 6.34 acres. The request is to approve a preliminary plat of a residential subdivision with 11 single family lots. Graves: Mr. Chair. Ostner: Yes, Mr. Graves. Motion: Graves: I would also move to put Item Number Seven, Administrative Item 05- 1820 on the consent agenda. Anthes: Second. Ostner: Thank you. I have a motion to put Administrative Item 05-1820 added to the consent agenda. A motion by Mr. Graves, a second by Commissioner Anthes. Is there discussion? So, this consent agenda currently has four items on it. I have read those items. If anyone in the audience or any commissioners would like one of these items to be heard in full, please, step forward. Jefcoat: Tom Jefcoat, Milholland Company. We would like to add some comments to the Park West project. We have agreed to the conditions of approval, but there are some extenuating circumstances that we would just like to point out for the record. Ostner: Okay. Thank you, Mr. Jefcoat. We will remove that from consent agenda. So, currently we have the Vacation request 05-1784 and Planning Commission November 14, 2005 Page 5 Administrative Item 05-1820 for East Square Development, and the third on is -- right -- Walker Estates, Preliminary Plat 05-1774. So -- Anthes: Mr. Chair. Ostner: Commissioner Anthes. Motion: Anthes: I move for approval of the consent agenda. Ostner: Thank you. I have a motion to approve the consent agenda -- Clark: Second. Ostner: -- by Commissioner Anthes. A second by Commissioner Clark. Is there a discussion? Will you call the roll, please? Roll Call: The motion to approve the consent agenda carries with a vote of 8-0-0. Commissioner Myres is absent. Ostner: Thank you. Allen: Mr. Chair. Ostner: Commissioner Allen. Allen: Before you proceed, since there was something about putting something on the record, I want -- I had a comment about the minutes -- a concern about the minutes, that we haven't had any lately, and I'm hoping that our meetings -- the minutes of our meetings are somehow reaching the council, otherwise, sometimes one wonders what's the point of all this. So I wondered if anyone could update me on that? Pate: When the City Council requests minutes for specific projects, we make sure those are included in their packets for those. The last minutes approved, I believe, were the September minutes. Obviously six -hour meetings are difficult to get these minutes, especially when we're contracted out. We're looking at a different type of contract for next year. This is obviously not working with the amount of work that we have right now with the Planning Commission and Subdivision Committee dockets, so we are going to address that. Allen: Okay. So as it stands now, the council only sees minutes of our meetings that are requested by individual council members; is that correct? Planning Commission November 14, 2005 Page 6 Pate: That's correct. Allen: And is that the way it has been in the past or have all of our minutes been available to them? Pate: Formally all of the minutes we're -- they're always available at the request individually. Allen: Right. Pate: There was a time when all the minutes were included; however, the council oftentimes has 500- to 700 -page agendas. Therefore, all the minutes from all items are not necessary, so we only do it when they request that. Allen: I understand that. I know all our words are not saved, but I just wanted to make sure that there was some record, some way that they could -- Pate: Yes, ma'am. We also archive these on DVD as well, and actually we oftentimes now copy DVDs for council members too. Allen: Okay Thank you, Jeremy. Planning Commission November 14, 2005 Page 7 LSD 05-1462: Large Scale Development (RIDGEHILL APARTMENTS, 405): Submitted by N. ARTHUR SCOTT for property located at NW OF GREGG AVENUE AT HOLLY STREET. The property is zoned RMF- 24, MULTI FAMILY -24 UNITS/ACRE and contains approximately 1.68 acres. The request is to approve a residential apartment complex on the subject property with 38 units and 56 bedrooms proposed. C-PZD 05-1704: Master Development Plan for a Planned Zoning District(FIRST BAPTIST CHURCH, 484): Submitted by Cromwell Architects for property located at 20 E. Dickson Street. The property is zoned C-2, THOROUGHFARE COMMERCIAL AND R -O, RESIDENTIAL OFFICE. The request is for 26,500 s.f new construction and 8,340 s.f. renovation in three phases. Ostner: Thank you. The first item on our agenda -- excuse me, I have some announcements about that. There are two items that were tabled tonight. Item Two, Large Scale Development 05-1462, has been tabled by the applicant -- there are different agenda numbers going around, that's also called agenda item number four. That's Large Scale Development 05- 1462, large scale for Ridgehill Apartments. The next item that was tabled by the applicant is C-PZD 05-1704, Master Development Plan for a Planned Zoning District, First Baptist Church. Those items have been requested to be tabled by the applicant and we will not hear them tonight. We will hear them at a later date. Is that accurate? Pate: You will need to make a formal motion and a second to table those to a date specific, which I believe is November 28th in both of these cases. Ostner: Okay. Anthes: Mr. Chair. Ostner: Commissioner Anthes. Motion: Anthes: I move that we table both of those items to the November 28th Planning Commission meeting. Allen: Second. Ostner: I have a motion to table by Commissioner Anthes and a second by Commissioner Allen. Is there a discussion? Could you call the roll? Planning Commission November 14, 2005 Page 8 Roll Call: The motion to table LSD 05-1462 and C-PZD 05-1704 carries with a vote of 8-0-0. Commissioner Myres was absent. Ostner: Okay. Thank you. Planning Commission November 14, 2005 Page 9 CUP 05-1752: Conditional Use Permit (GREEN DOOR, 407): Submitted by ROBERT HATFIELD & APRIL LIZANA HAT -CO, LTD for property located at 1404 N. COLLEGE AVENUE, IN EVELYN HILLS SHOPPING CENTER. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 17.21 acres. The request is to approve a dance hall, use unit 29, in the C-2, Thoroughfare Commercial Zoning District. Ostner: Our first item on our agenda to be heard is Conditional Use Permit 05- 1752. Conditional Use Permit for the Green Door. If we could have the staff report, please? Fulcher: Yes. This is conditional use item was at the Planning Commission. It was tabled at that time so that staff and the neighborhood could get some more information together for you tonight, which we have. I'll just quickly go back over what the request was specifically. There is a lease space within the Evelyn Hills Shopping Center that is zoned C-2, Thoroughfare Commercial, and the applicants are to open a bar/restaurant or tavern/eating place, which is a use by right within that zoning district. They are requesting a conditional use for a dance floor that is approximately 18 -by -19 feet within this bar/restaurant. Last week when this item was tabled -- or the last meeting, when this item was tabled, the Planning Commission requested additional information regarding other clubs or dance hall, bars, to see if there is a correlation between police calls or arrest reports, and the type of activities that took place in these bars or clubs. With the help of the neighbors and the police department, we did get a printout of, I believe, five nightclubs and six bars in Fayetteville. The six bars do not provide dancing, the five nightclubs do provide areas dancing. We included kind of a spreadsheet on Page 7 of 8, it kind of breaks down the different clubs and dance clubs. It has a number of calls received by the police department, the number of arrests, and then we also included the square footage. We felt that that was important because some of the bars or dance clubs are two, three, four, times larger than some of the other ones, so we didn't want the numbers to be skewed in that manner, we wanted to see -- show the size of these clubs at the same time. Also within your report in the background, the neighborhood contacted us last week and we spoke with them a few times. They had requested that four conditions be added to the report. Staff was only able to reply one of these conditions, relating to the size of the dance floor, we put a condition -- we've added Condition Number 7 within the staff report, based on the square footage that they requested, 352 square feet, we stated that the dance floor shall not exceed 400 square feet, which would run with this piece of property, not just the ownership or these applicants tonight. They also -- the neighborhood also wanted us to see if we could limit the type of liquor license obtained, the type of music to be played inside the facility, and the transfer of the granted license. We are Planning Commission November 14, 2005 Page 10 unable to put those as conditions of approval. So staff, again, after speaking with the neighborhood, looking at the conditional use, making the findings, has recommended approval of this item with seven conditions of approval and I would like to go through those. Condition Number 1, the signage shall comply with city sign ordinance as well as commercial design standards. Condition Number 2, compliance with the city's noise ordinance as enforced by the police department. Condition Number 3, the trash receptacle shall be located behind the building and shall be screened on any side visible from the right-of-way or any residential property. Condition 4, which we may have some discussion on tonight regarding valid complaints, and bringing this item back before the Planning Commission, if a number of complaints or type of complaints are received, if this item is approved. Item Number 5, no outdoor music or amplification of music out of doors shall be permitted. Item Number 6, as indicated in the attached materials, are within the applicant's request; musical entertainment shall cease at 11:00 p.m. nightly. And that as I stated before Condition Number 7, the dance floor shall not exceed 400 square feet which would run with the property. If you have any more questions, I will happy to answer those for you. Ostner: Okay. Thank you. Is the applicant present? If you could introduce yourself and give us your presentation. Hatfield: Good evening. Robert Hatfield, Green Door, 1404 South College. Just here for a conditional use permit for a small dance floor. Anything else? Is that -- Osmer: Okay. We'll get back with you if we have any questions. Hatfield: Okay. Ostner: Thank you, Mr. Hatfield. At this point I will call for public comment. If anyone like to speak to this conditional use, please, step forward. Wicks: Rob Wicks, 1314 North Hillcrest, right behind Evelyn Hills. I just want to say that in the last couple of weeks I've found out a little bit about the folks and I think their intentions are very good. I think they genuinely want to bring a good front to the neighborhood. Our concern is what will happen down the road when they either chose to sell or retire, or whatever. We appreciate the size of the dance floor being limited and we're glad that that will continue on. We were not contacted by Mr. Hatfield for a meeting and we hoped that we would be. We would have liked to gotten together to chat with him about this, maybe Sunday afternoon down at the location, we haven't had that opportunity and I wish we had. Thank you. Ostner: Okay. Thank you. Planning Commission November 14, 2005 Page 11 Gillespie: Carol Gillespie, 200 East Oakwood. There's one other condition that some of the other neighbors would like, if possible, under the valid complaint section, that is our concern. In the future, what exactly is a valid complaint, if possible, say, three violations of the city noise ordinance within a six, nine month period, somewhere in there. If they violate it three times, that will be a condition to have their permit pulled, because kinda -- the neighbors thought, well, if they're violating it that often and they're not really trying, we don't want to say over the whole period they're there, that didn't seem fair to us -- but a shorter period to try to -- if there is a noise problem. Limiting the dance floor and all that seems fair. I'd also ask that maybe they not be able to expand to a bigger club, you know, expand the size, not the dance floor, but the capacity of the people in the club. I think they listed it as 200 capacity before, somewhere in there, I'm not real sure, but I think it's somewhere in there, it's possible. And like the previous speaker spoke, we wanted -- we looked forward to meeting with them to address some of our concerns, mine is still the crime the difference between a dance club and a bar, there seems to be quite a bit more police activity in the area and that's my concern, and I don't know how we can address that, because it's going to bleed over into our neighborhood with extra police calls and all that, and I don't know how to make that a complaint under that valid complaint section. Thank you. Ostner: Okay. Thank you. Is there anymore public comment for this conditional use? ?. Bob ?, 1235 North Hillcrest. I live right up behind this area. One of the problems that the whole neighborhood is having is that a bar is not a good neighbor. If you looked at where this place is going to go, it is deep within Evelyn Hills, it is a very short distance from the little pathway or road that goes out of the back corner of it, right up into our front yards, practically. We've been concerned and we tried to present it to ABC that the -- this is going to be a primary exist for bars late at night. Nobody that's been drinking is -- if they have a option is going to go out onto College Avenue and be exposed to the police when they can kinda sneak out the back door, go up Hillcrest to North Street and go around, so we're concerned about that. But we seem to not have much of a choice the fact that the bar is going to go there. This is strictly a conditional use permit and all cases that I've seen where dancing is allowed in bars or in the neighborhoods, like, around the area on Porter Street and whatnot. I talked to the neighbors down there and they are so happy that it's gone you cannot believe it. We had LJ's and so forth, there in our neighborhood, and we had a tremendous amount of problems when they were there. So what we're primarily interested in is not having this Planning Commission November 14, 2005 Page 12 conditional use permit. If they're going to be a tavern, that's fine, I'm not happy with it but I don't have any choice to it. But I really do not want to see the dancing activity added to the area. I think it will lead -- it always leads to an increase in activity, it always leads to some conflicts because of competitiveness of dancing, and so forth, and it just happens that way, so we're not too happy about it. If this is approved, I would like the -- you to include in their permit any of the restrictions that they told the ABC board they were going to stick to, such as the 11 o'clock curfew on music and the 12 o'clock closure, and so forth, and no outdoor activity in all this other area. I don't want to have to keep coming down here and fighting this, because it increases an activity like most of these places do. Thank you. Ostner: Thank you. If there is no further comment, I'm going to close the public comment section, so it's closed and I'll bring it back to the commission for discussion. Trumbo: Mr. Chair. Ostner: Mr. Trumbo. Trumbo: Can we get a definition of "a valid complaint"? Pate: Sure. This is a pre -standard condition on conditional use permits and sort of to qualify that statement, a valid complaint would be a complaint that would indicate noncompliance with the terms and conditions set forth in this conditional use. So if someone presented a conditional use permit application and there were certain conditions here that were placed upon that applicant, if there were was a valid complaint that I could prove that one of these conditions was not being met, I would then propose that be brought back to this Planning Commission to review that specific conditional condition of approval. Trumbo: Thank you. Allen: Mr. Chair. Ostner: Commissioner Allen. Allen: I was the one to move to table this item two weeks ago with the hope that there would be some conversation between the applicant and the neighbors, and I'm disappointed to find out that that didn't happen. Because so often when we meet each other one on one and look at each other in the eyes we can see that we're real folks and we probably have the same interest in heart, so I'm sorry that didn't happen. But I did want to Planning Commission November 14, 2005 Page 13 Pate: ask a question, one of the neighbors spoke of a concern about expansion, and if this business were to try to expand into -- would decide to expand into a neighboring now existing building in -- that adjoins it there in Evelyn Hills, would it come back before the Planning Commission? Is this conditional use for just this phase that he's in right now -- that he would be in right now? This conditional use is based upon a legal description, so it does go with that property. Keep in mind, though, that the conditional use is for the dance floor only, so a bar or they expanded and did a restaurant with this use or whatever else they might do if it was allowed in the C-2 zoning district, then I believe we would have to permit that expansion, however, the actual dance floor would be limited to that particular place because it is defined within the legal description, so it's definitely specific to that place. Allen: Thanks. Anthes: Mr. Chair. Ostner: Commissioner Anthes. Anthes: I guess I concur with Commissioner Allen, that I'm disappointed that a good faith effort was not made to meet with the neighbors. I also still have some trouble with condition of approval number four in that I don't understand how the city is going to weigh the complaints of the result of the establishment of the dance hall versus the complaint of the establishment of the bar, and the reason why is because the bar has not been opened yet and we don't have any kind of baseline data with which to compare it. So I'm inclined to think that I'd like to see this bar open for six months before so that there is a record, and then possibly entertain a conditional use at that time so the neighbors and the city understand what we're measuring against, and for that reason I'm going to vote to deny this conditional use. Vaught: Mr. Chair. Ostner: Yes, Commissioner Vaught. Vaught: I'd like to ask the city attorney on that point, kinda what we need to look at or what the law allows us to -- I mean, do we set a criteria or is that something that staff develops a criteria in that situation to measure that or how is that to be done? Planning Commission November 14, 2005 Page 14 Williams: I would think that regardless of where the complaint would come from, you know, I don't think the city would be required to say it either came from the dance hall or the bar. For example, a sign ordinance violation -- any complaint, I think, of this business establishment violating a noise ordinance, whether it be with people dancing or not dancing, I think, would be a valid complaint that the planner would look at and bring back to you, so I really don't think you need a baseline. I think that any complaint that this new business would generate, and the reason I think they say "valid," it just means a substantiated complaint, in other words, a neighbor says the noise is too loud, the police come out there, and they say, "Yes, the noise is too loud," I think that's a valid complaint. I don't think it has to be tied to whether they're dancing or not. Now, Jeremy, you would be the one, I guess, actually making that determination. Is that the way you interpret this particular condition? Pate: That's correct. That's what we have done in the past. Williams: So, anything that this business -- any complaint that this business would generate, whether it's directly tied to the dance hall or not, I think, would be a valid complaint brought back in front of you to see whether or not the conditional use for the dance hall should be revoked. Ostner: Thank you, Mr. Williams. I'm inclined to not vote for this conditional use. I've lived, oh probably, a quarter of a mile from a bar, and the noise - - there are different kinds of noise, and in a hill town hills and elevations make a big difference, but we would call the police and they would measure it, and they would say there was no violation. Yet, when we turned off the lights at 11:00 or whatever, everyone could hear the music, we could hear what song was playing, so that's part of where I'm stuck on it, is a valid complaint with the police coming out. I'm guessing that the noise complaint wouldn't register as valid the way it's currently measured. So that's where I stand on this conditional use. Vaught: Mr. Chair. Ostner: Yes, Mr. Vaught. Vaught: I guess I'm -- in my opinion I'm not convinced when we've got some numbers of different types of establishments and their arrests when we could break it down per square foot a hundred different ways, and I don't know if a 400 -square -foot dance floor is going to make that much of a difference in the noise, because they already have a noise and that's going to be there anyway no matter what. I'm inclined, especially, in the way it's worded, it sounds like the burden is on the applicant to make sure this club takes care of its business if one noise complaint can bring it back to Planning Commission November 14, 2005 Page 15 us or if one other type of complaint can bring it back to us as the staff deems as valid, and I would hope that would include other things, like a (inaudible) number of police calls or -- and that's brought to their attention that we can quantify. So it's my opinion that I'm inclined to vote for it and give the applicant the ability to run his business and see if it works. If it's not compatible, I have a feeling we will see it back pretty soon, because the neighbors are very interested in making sure this establishment follows the rules and I have a feeling that they will be sure to monitor that on a regular basis when this opens. So I guess I'm just not yet convinced that a dance club -- a small dance floor makes that much of a difference, we've limited the size, we now get to limit, you know, the time music shuts off, and we have a number of other restrictions on this property. So it's my opinion that I'll vote for this tonight when we do vote, so on those reasons. Ostner: Okay. Allen: Mr. Chair. Ostner: Yes, Commissioner Allen. Allen: I'd like to hear other thoughts of Commissioners, because I guess I still feel a good bit of torment about this one. Because Evelyn Hills is a area where this sort of thing does seem compatible and I have some problem with the idea of weighing it against LJ' s, I don't think that's exactly fair to say because this happened there that this will happen here, and it's an entirely different ownership. I know that there are indeed bars and strip joints, actually, pretty close to where I live, and we all do pretty well together, I don't work there or anything -- (Laughter) Allen: -- but it could have been an option at some point, but I'm just not at all clear on -- I'm not clear on how I -- how to do on this and I would like to hear the thoughts of the other Commissioners before I make a decision. I understand the neighbors concerns. I even wondered about that little cut - through street, that seems to be a real integral part of the problem, and maybe that -- I don't know whether this is unrealistic or not, maybe that could be closed to through -traffic after 10 o'clock at night or something, because that seems to be a concern that that will be an area where these folks will leave to go home. So, with that, I would like to hear what everybody else has to say. Graves: Mr. Chair. Planning Commission November 14, 2005 Page 16 Ostner: Yes, Mr. Graves. Graves: In line with Commissioner Allen's request, I'll support this, I just have a lot of trouble with denying something over a dance floor, something that otherwise would be allowed. With all of the uses that are accompanied or all of the things that would go on in that particular business or that's associated with that particular business, would be allowed by right here but for the request to have a small dance floor, and to me that's such a small part of the overall -- what the business is about and what it does, that I would have a hard time denying the conditional use permit on that basis. I understand the neighbors' concerns, some of those concerns, obviously, are associated with, you know, being quite frank, people drinking alcohol and getting stupid, and the use of a tavern or a bar or whatever, is allowed there by right anyway. The consumption of alcohol in that area would be allowed whether this dance floor goes in or not, so then it seems like the issue becomes, is there going to be too much noise, and we've got valid ordinances that regulate the noise, we've got conditions in place that will require them to stop that noise at a particular time of the evening, and if there are problems with that, we've a got a mechanism in place in the conditions to try to rectify the situation. There have also been situations, Commissioner Allen mentioned LJ's, we had the situation with River City a number of years ago where an actual -- it was declared a nuisance because of problems associated with it and those are obviously always other options under the law other than just noise if there are problems associated with this establishment. Obviously, ABC would be interested if somebody is getting served that's not supposed to be getting served, so there are a number of laws, regulations, ordinances, and so forth, that these guys are going to have to follow whether they're a bar, a tavern, a dance hall, or whatever we call them. And I just have a hard time turning down a conditional use over a dance floor when otherwise the use -- the uses that people are concerned about are going to be there either way. Ostner: Thank you, Mr. Graves. Vaught: Mr. Chair. Ostner: Mr. Vaught. Vaught: In addition to that, I feel that if this was a dance club like a number of the clubs listed on our police report, I might have a different opinion, but since it is such a small part of the (inaudible) by other commissioners, that one of the main things in my mind, and we're limiting it to that size no matter if they expand in the future or not. I have a hard time directly pertaining this business to any of these, the Electric Cowboy or Club West or Dickson Street Theater, most of them are either larger concert halls or Planning Commission November 14, 2005 Page 17 primarily dance clubs. This seems like the dancing is an ancillary activity to the main part of their business, which is, of course, you know, the bar part and it also sounds like they're serving food and some other items, so I agree with Commissioner Graves. Ostner: Thank you, Mr. Vaught. I think Mr. Graves touched on a important part of this, that the fact that is there really a difference between these two types of establishments, and the police broke down a bunch of information for us, and on a per square foot basis for every police call that is complaining about a non -dance floor establishment, there are two police calls requesting service for the dance floor establishment, in fact it's more than double, it's a 103 percent increase. On the arrests, for every arrest at a non -dancing club there are one and a half arrests for dance clubs, and that's per square foot, that's allowing the big establishments to have more calls because there are more people there. So that's -- I think that's pretty clear to me that we're dealing with apples and oranges, when I've seen many establishments where the dance floor was this tiny square in the middle of the room and by 10:00 or 11:00 that was not where people stopped dancing, the whole place was full it was -- it was a suggestion. And since the zoning administrator is in charge of that line on the floor, not the police, I think that's an important distinction, only because this is located so close to a residential area. I'm not saying I'm against dance floors, I'm saying as a conditional use I don't think it's appropriate in this area. Clark: Mr. Chair. Ostner: Yes, Commissioner Clark. Clark: I have a question for staff. Jeremy, should this conditional use be denied tonight, how long does the applicant have to wait to reapply again? Pate: One year, unless there is evidence that change conditions or new circumstances would justify reconsideration, so essentially a year unless something dramatic changes. Clark: I go back to what Commissioner Anthes said about a baseline. We're being asked to look into a crystal ball that we don't have to predict future actions. I don't think that a dance floor -- and I said this last time, is going to cause undue death and destruction, but I have no way to prove that. I wish the applicant had not requested a dance floor until after the establishment is up and going, and could prove to the neighbors that there is not a problem. Because should we approve this conditional use tonight, you get a noise complaint in two weeks, how are we suppose to adjudicate whether that came from dancing, drinking, or just being inherently stupid, Planning Commission November 14, 2005 Page 18 I don't think we can. So I go back to what Commissioner Anthes said about needing a baseline and I think I'm going to vote against this conditional use, simply to give this establishment an opportunity to function, to open its doors, start its business, I don't think you're going to lose an inordinate amount of business not having a 352 -square -foot dance floor, be in business for a while, establish a relationship with the neighbors, prove that you're not going to be a problem that they fear, then come back and ask for a dance floor, and I will support it, and I don't think these people will be here. If the opposite holds true and there are a lot of complaints, then we know it's because of the type of establishment and then we can go from there when it's asked for again. But I'm not inherently opposed to dancing, I find myself in a very uncomfortable position having to vote against this for these reasons, but I think I will err on the side of safety for the neighborhood in this instance. Graves: Mr. Chair. Ostner: Thank you, Commissioner Clark. Yes, Mr. Graves. Graves: Just a couple of more comments on this. In addressing the issue of square footage, there's no question that the information that we've been provided shows that there are more calls to the clubs that have dance floors, I don't think that's surprising. I don't know if that means they were valid calls or not, I know that there were a number of calls out there. I also know that there are a couple of really large clubs included in that information, and I think that the more folks you pack into a place that are consuming alcohol, the more likely it is that you're going to have problems. But I don't necessarily know, again, that -- this could be apples and oranges, I don't necessarily know that this particular club where the nightclub, but a bar with a dance floor is going necessarily be comparable to the Electric Cowboy or Doc Murdock's, which are both huge places of business, and I'm not certain how these particular businesses were chosen, I know that there are a lot more than five places with dance floors in town, and we've got five places here. There are a lot more than six places without dance floors and we've got six here, so as far as the information that we've gotten, I'm not sure what kind of sample that is to draw conclusions from, and it's certainly -- whatever the sample is, not necessarily fair to this particular business owner to judge him on the way other business owners have run their establishments. And with that, there is also the question of looking into a crystal ball, which our administrator has already told us that we don't have to try to fair it out which part of the complaint would come from dance hall complaints versus would come from any other complaints that are associated with a bar or tavern. If there are complaints that come out of this business they can be lodged and the conditional use can be revoked if it's a problem out there, and so I just continue to come back to Planning Commission November 14, 2005 Page 19 the fact that it seems unfair to judge this person based on four or five businesses that have been pulled out of a hat as far as I can tell, and which are a lot bigger and different type of establishments that what this applicant is proposing, and I don't believe that it's a fair situation to judge him and his business guilty until proven innocent based on what other large -establishment owners have done in the past, and I'll vote in favor of the conditional use. Lack: Mr. Chair. Ostner: Thank you, Mr. Graves. Yes, Mr. Lack. Lack: I wondered if -- a question of staff. If there's any known history as to why the dance floor portion would be a conditional use in this zoning and a bar or tavern would not, there had to be some reason at some point that there was a delineation between the two in the dance floor requiring a conditional use? Pate: I don't know off hand what the history of that is, honestly. Lack: Okay. I know that's a lot to ask and I don't mean to put you on the spot, but I think, as other commissioners have voiced, I have a good deal of trepidation to the idea of allowing the potential additional activity and the additional potential into this neighborhood, and I think as Commissioner Allen voiced, I've been trying to decide which side of this to come down on. Allen: Mr. Chair. Ostner: Okay. Thank you, Mr. Lack. Yes, Ms. Allen. Allen: This throws more bits of the puzzle out there. It does seem to me that there is a significant amount of parking in Evelyn Hills, so I don't see parking of any problem in the neighborhood. I know that there -- beer and wine is served at Chuck E. Cheese, that may be in order to tolerate the event. (Laughter) Allen: But there is a precedent for that in Evelyn Hills. I just -- I'm very much always an advocate of the neighborhood and as I said before, I'm really disappointed that the applicant didn't take time to talk with these neighbors, but I keep coming back to the fact that it just doesn't seem an inappropriate spot for such a location and I hate to judge one by the other, that's problematic to me, that we can't decide that Green Door will do the Planning Commission November 14, 2005 Page 20 same thing that LJ's did. So I'm still vacillating, but leaning -- but I thought I'd throw those things -- those other comments out. Ostner: Thank you. I'm not sure -- Mr. Williams. Williams: I have a little bit of, unfortunately, fuzzy history of where this came from, because I was on the Council in '94 when we passed this, and so my memory is not excellent for 11 years ago exactly what happened, but my memory is that there was a proposed location on School Street, right by where the new library is, where there used to be a restaurant there and it's been a restaurant back and forth, and that was being proposed as a -- for dancing, and that was a concern of the administration because until this condition use was passed and they could -- you know, basically where you had a bar you could have a restaurant, I mean, a dance hall, and so that was the motivation, I think, even though I don't know if that dance hall ever really lasted more than, you know, a couple of months, and then it was not a good location, there was not enough parking, and so that's why there's a lot of this parking stuff in this condition use, but I think that's where it came from. The reason, I think, that we don't condition use bars is probably because they're licensed by the state, and if the state grants a license to a particular location, I don't think that would like the city to say, "Oh, no, you can't be there." The state is higher than us, so we can only license or put conditional uses on things that aren't directly controlled by the State of Arkansas and the Alcohol Beverage Commission, and this being one of them whether or not it can be a dance hall. Ostner: Thank you, Mr. Williams. Vaught: Mr. Chair. Ostner: Yes, Mr. Vaught. Vaught: (inaudible) on that view, I agree with Commissioner Graves. I don't want to sit here and judge guilty until we prove someone innocent. I feel that these kind of complaints can come out of a bar as much as a dance hall, if you can even call it a dance hall, I would think that dancing would be ancillary to the rest of the activities like I said, but, you know, we're a town of mixed uses and mixed neighborhoods, and a couple of comments that I heard earlier about not liking dancing in a proximity of neighborhoods, we would never, ever have dancing on Dickson Street again, because we're in an area that's very mixed use, and we have residences abutting clubs, or abutting some of these clubs that were larger problems, for sure, far different. I mean, the Dickson Street Theater is more of a concert hall a lot of nights and has a lot more activity abutting several single-family homes, so I don't know if we -- but I have a feeling - Planning Commission November 14, 2005 Page 21 - I feel like they run it well. I mean, if you look at their number of calls are far below many of the others. So, like I said, I will vote in favor of this ordinance, and I say that with the fact that I'm knowing that the neighborhood will be vigilant to watch this club, and I hope that under valid complaints things like, you know, arrest reports or complaints -- police complaints or police calls, can be something you can look at as well, so I think that is important, granted, if they come back in six months with a list of ten arrests, we can deny the conditional use permit and it might not change anything for the neighbors, but it could be a punitive type action, but it could be something in our control. And like I said, the other side of that I like having being able to pick up more of these controls, such as limiting even the indoor music to 11 o'clock, just typically something we can't do, and limiting the size of the dance floor, ultimately. But I feel like the business owners deserve a chance and a well-run business no matter what they do, is a well-run business and won't cause trouble, so that's the thing that I fall back on. I don't think we can say "a dance floor in this location will create more of a hazard, so we shouldn't allow it." And I don't know if it's something that six months down the road we would be able really to fair it out either, so -- Lack: Mr. Chair. Ostner: Thank you, Mr. Vaught. Yes, Mr. Lack. Motion: Lack: I guess with this conditional use I'm not convinced that the dance floor is going to increase the danger to any noticeable degree, and with that, to get things rolling, I'm going to move that we approve Conditional Use 05- 1752 for the Green Door to have their dance floor. Ostner: Thank you. Trumbo: Second. Ostner: I have a motion to approve by Mr. Lack, a second by Mr. Trumbo. My last comment is that this denying a conditional use is not judging guilty at all. The Planning Commission is charged to review conditional uses and 161.17 B, we need to make a determination that the granting of this conditional use will adversely affect the public interest. It's up to us to make that judgment. It is not a guilty. It is not a black mark against any applicant. In fact, the zoning allows the bar by right, we have no right to put conditions on that, we do have a right as a city to put a condition on a dance floor, and that is simply what we're doing. We're doing our job and voting no is also doing our job. I don't think we're judging guilty before Planning Commission November 14, 2005 Page 22 the -- inappropriately, so that is my final comment. Any further comments before we vote? Will you call the roll, please? Roll Call: The motion to approve CUP 05-1752 carries with a vote of 5-3-0, with Commissioners Clark, Anthes, and Ostner voting no. Commissioner Myres was absent. Ostner: The motion carries with five votes. Thank you. Planning Commission November 14, 2005 Page 23 C-PZD 05-1610: Planning Zoning District (EAST SQUARE DEVELOPMENT, 523): Submitted by BOB KOHLER for property located at NW CORNER MOUNTAIN ST. AND COLLEGE AVE. The property is zoned C-4, DOWNTOWN COMMERCIAL and contains approximately 1.01 acres. The request is to approve a 16 story Commercial Planned Zoning District with a hotel, residential condominiums, meeting spaces, commercial space and a parking garage. Ostner: Our next item is Commercial Planned Zoning District 05-1610 for East Square Development. As a note, since item number seven in the old agenda, item number seven, 05-1755, Park West, since that was included in our full agenda tonight, that will fall after Administrative Item -- excuse me. It will fall next on this agenda, first in new business. So if we could have the staff report, please. Morgan: Certainly. This property is located between Center Street and Mountain Street on College Avenue. Most of the property in the subject property boundary description is vacant at this time. It also included one vacant structure on Center Street. The proposal is for development of a sixteen - story structure that will incorporate a hotel with 147 rooms, 25 condominiums, excuse me -- 23 condominiums, retail and tenant space, as well as conference rooms and a ballroom. There are two structures proposed on Center Street which will be retail in nature as well as potentially have two condominiums. There is also proposed a seven -and -a half -story parking garage consisting of -- containing 350 parking stalls, and that will be located on Mountain Street. With regard to the uses proposed, the applicant proposes uses which are consistent with a commercial zoning district. The property is currently zoned C-4, Downtown Commercial, the proposed uses include a hotel, neighborhood shopping goods, trades and services, multifamily dwellings, dance halls, and offices, and studios. The density has a total of 25 dwelling units per acre. The project consists of approximately one acre and 25 condominiums are proposed. With regard to access, excuse me -- phases, the applicant proposes two phases for this project. The first being the hotel and retail units on Center Street, and the second being the parking area -- or the parking deck. The reason for this phasing is to allow for building permits to pulled on one portion of the entire construction while construction documents are being provided for the second phase. I would like to note, however, that because the development of the sixteen -story hotel is dependent on the parking spaces and the parking garage, a certificate of occupancy for that hotel and the retail centers would not be issued until a parking garage is completed. These -- the parking garage will be accessed off of Mountain Street and there is one access there, and the hotel -- the applicant is providing a drop-off portion on Mountain Street for the hotel. The buildings on Center Street will, obviously, be accessed on Center Street. There's also an additional access to the hotel Planning Commission November 14, 2005 Page 24 through one of the structures on Center Street, so there will be vehicular access on Mountain, and pedestrian access on both Mountain and Center Street. The -- at Subdivision Committee, one of the issues or items that was brought up was with regard to the drop-off for the hotel and how that would function with Mountain Street. Currently, Mountain Street is a one-way street, it is proposed with the Downtown Master Plan to become two-way, but at this time City Council has not considered any modification of that street -- the direction of that street. The parking garage is to be accessed off of Mountain. It is a unique structure and that the applicant proposes for the structure to overhang the right-of-way, therefore, there would be a covered sidewalk underneath the parking garage on Mountain Street and the applicant has requested a waiver to construct to that street over the right-of-way. Additionally, there is an alleyway just to the east, excuse me -- just to the west of the parking deck, which will be a pedestrian bridge, there will be built a pedestrian bridge from the parking deck to the Bank of America condominiums. This was discussed when the Bank of America condominiums came before the Planning Commission in, I believe, May of this year for a conditional use, and the applicant requests a waiver in order to build that bridge over public right-of-way. The applicant is not required to dedicate right-of-way on Mountain or on Center. They do meet the requirements of the new revised right-of-way dedication requirements according to the Downtown Master Plan. However, College Avenue was not included in that, it still requires 110 feet right-of-way and the applicant requests a lesser -- a waiver to dedicate less, and I know that the Planning Commission already approved on the consent agenda tonight an item with regard to that, however, it's still included as one of the conditions in the conditions of approval and requires a Planning Commission determination. With regard to commercial design standards, the applicant has worked considerably long and hard on the -- on revising and updating, and getting the materials that are going to be used in construction of this hotel. As you can see, the applicant has provided several sample boards, both for the parking structure and for the hotel. Staff finds that the proposal and the elevations provided do incorporate many of the unique characteristics or architecture found downtown. Staff and Subdivision Committee, however, did have initial concerns with regard to the parking area and the parking deck, because it will be a little bit more visible than the hotel itself, because it is encroaching into the right-of-way or it will be built over the right-of-way. And I believe the applicant has submitted some elevations showing how -- showing the view of that parking deck from the adjacent streets. With regard to improvements, this is quite a large project and although all of the surrounding streets are built, we do find that there are improvements that would be beneficial to neighborhood and the downtown area. We find that those improvements include sidewalk on -- adjacent to the property, including -- and I'd like to clarify that those improvements -- staff is Planning Commission November 14, 2005 Page 25 recommending along the entire -- the entire frontage along College Avenue, as well as along Center and Mountain from College west to the alleyway. And those improvements include sidewalk, and curb and gutter, as well as storm drainage as approved and deemed necessary by the city engineer, as well as overlaying and restriping the streets -- Mountain Street, Center, and College Avenue. Staff recommends an overlay of the entire width, typically we look at improvements on half of the street, but we do find that it would be appropriate to overlay the entire width, as well as along the alleyway. In addition to that, the applicant is proposing landscaping and we do find that landscaping and the -- having trees along the sidewalk will be beneficial for the pedestrian movement. The applicant has submitted, however, a revised proposal and I have submitted that prior to this meeting to you with regard to the landscaping showing improvements on Center Street only to the boundary of those two structures on Center Street, and no further west to the alley. Staff is recommending approval with a total of 21 conditions. There are several Planning Commission determinations required and I believe I've gone through all of those items. If you have any questions, please, let me know. Ostner: Thank you, Ms. Morgan. Is the applicant present? If you could introduce yourself and give us your presentation. Nock: Good evening. John Nock, representing East Square Development. Thank you for taking the time to review this project. I wanted to talk about just a couple of items that gave us the logic behind this design. I want to credit the architects, both locally and those that have been called in to help us with the superstructure of the project, we wanted to first of all make sure that the challenge of the old property that has since been torn down that was such an eyesore, some of the problems that developed over the years with that one could be eliminated. One of the major issues on that one was access, you could only access the parking deck by actually driving under the old motor lodge style, which was a very rough corner of College and Mountain. One of the other issues was signage, being able to see where to actually go in. What we did -- the old hotel had actually one entry for a number of years at the end there. What we have now, is we actually have five different connections. Let me explain what those are. We have a pedestrian connection drop-off point from Center Street that goes through the historic building. Now, keeping that historic arcade on Center Street is quite costly, well we believe that that's something we represent to the city and that we're trying to do at all costs to keep it right for the project. The other one is the main access off of Mountain Street, which will be clearly flagged for the hotel guest or also the condominium owner or visitor to the project. We also have access from the parking deck and let me explain that we have two-way access from the north on the alley and a one-way direction coming from the south from Mountain Planning Commission November 14, 2005 Page 26 Street, giving multiple access routes into the parking deck, which then you go right into an elevator into the hotel area. In addition to that, between what is currently the Taste of Thai location and Cafe Santa Fe building, we are currently planning to do a pedestrian walkway that connects the project to Center Street. One of the problems with Mountain Street has been for a number of years, was a dead end, you couldn't really -- either though you could drive through it, once you got past the nice shops that are there on Center Street -- on Mountain Street, excuse me -- right off the square was nowhere else to go, and if you were only going to the federal building for business and it wasn't something that the citizens actually would use for retail or other things. So what we tried to do was really bring that altogether, in particular, the parking deck was crucial. For a hotel this size it would be much easier, as you've heard before, to go and build this on some vacant acreage out by the interstate, but because we're dealing with an urban setting and an urban fabric, in order to make that parking deck work you got to have clear signage and then at the same time not do what they do in other urban areas, and that is just build a big parking deck that everyone sees. And so one of our design criteria that we gave the architects was to front all of our parking deck with retail. And so from a citizen's perspective, even though it's sticking in that right-of-way area, which you're actually walking under, and I think you have a copy of this, is a colonnade which is set up for retail shopping and it's also a connection to the square. And assuming that we continue with the discussions that are ongoing with the Town Center having civic functions as well as various conventions that my come here, they're now walking part of that way underneath the covered colonnade. One of the comments we heard come back through was how we're going to treat those materials and so we've elected to go anywhere that you can touch that with a human, the colonnade is all brick, so it's a very permanent, very high quality material in that area. In addition, rather than just having an open deck, we're anticipating right now doing a screening which is a very, again, costly, but also a very functional aesthetically pleasing screening that's going on the front of that. The whole idea was to make those things so that they would be a permanent addition to the (inaudible) of the downtown area. The other thing is that some people have asked us as of lately, because what we're talking about is being a very mixed-use project, how they can get they can get up to the top of it. I want to remind the citizens that may be watching tonight as well as you, members of Planning Commissions, that on this upper floor of the sixteenth floor, is where we're putting the arboretum for where we'll have -- it will be an observation deck with plants, botanical garden connection to that, and it will also be meeting space as well, so it will be a multipurpose area up there with that setting, and the public will be able to see the mountains and the hills in the distance from that area. Someone had just passed me as of this morning, "how can we get up to the top of it," and that will be one of Planning Commission November 14, 2005 Page 27 the issue there. As far as the project goes itself, we've tried to consider the long-term look and how it's going to effect with its neighbors, and how it's going to function from just a day to day operational standpoint. One of the other issues we had to deal with is with a hotel this size, you got to make sure that you don't have your garbage, your transformers, your utilities, your trucks, your eighteen -wheelers blocking traffic and causing an eyesore, so all of those has been tucked in on the lower level of the parking deck and then faced on the front with the retail. And so what we've tried to do is look at both utilitary functions as well as the aesthetic functions and blend those together. And I think in the inner our architects have really done what we've asked them to do. And would appreciate your consideration, and we look forward to making this project a reality. Thank you. Ostner: Thank you, Mr. Nock. At this point I'm going to open it up to public comment. If anyone would like to speak about this issue, please, step forward. Commercial PZD 05-1610. Seeing as there is no public comment, I will close the public comment section and bring it back to the Commission for discussion. Vaught: Mr. Chair. I would like to ask a question of the city attorney to start off. We had considerable discussion about the enclosed parking deck that goes out over the colonnade and in reading the code, I think I see where they're drawing the ability to do that. I was just wanting a clarification from you in our -- well, it's our Downtown Master Plan which hasn't been approved yet, I guess, but this is a PZD. It talks about enclosed usable space shall be permitted by the colonnade, does this fall into that category? Williams: It might, but as you said, the Downtown Master Plan has not been codified, so we must decide everything on the Unified Development Code which is, in fact, has been enacted and not something that may or may not be enacted. Vaught: And in the Unified Development Code, I guess, for Jeremy, is this -- are we able to approve this or is this something that's allowed, or is it PZD flexible enough to allow us to go by the possibility of this falling into the Downtown Master Plan code? Pate: I think that could be utilized as one of your points of consideration, but the City Council is the only body or authority who has the ability to allow, for instance, like your private property, if your neighbor wanted to build on to your property, you're the only person who could give the right to build on to your property, or provide an easement, or something of that nature, as long as it met city setbacks. It's sort of a similar instance where we as the city has granted prior to this, not to this degree, but prior to this, balconies, Planning Commission November 14, 2005 Page 28 porches, Tim's up here, the West Mountain Brewery area has an area over the right-of-way there -- the public sidewalk. So there are instances the City Council has looked at that on a case by case basis to allow, or at least review, instances where something is over the right-of-way line. Vaught: So they kinda -- it's a defacto -- right now currently into the code it is a defacto condition -- or a waiver by the City Council to allow that part of the structure to be built there, if I'm correct. Pate: Essentially. Vaught: Okay. Williams: I would also add, and I'm not sure right now, if there is any utilities within that right-of-way on Mountain Street that they're planning on building their structure over, because if there is, a section of the code says: 161.12, structures not allowed over public easements, no portion of any structure shall be built over any public utility easement. It might be -- even though the City Council has the decision on whether to allow anything to happen on Mountain Street. You might consider whether or not you would wish to grant a variance to that section, which you could look under the variance section and just the general variance section for developments, where you would have to find undue hardship where it says that if the provisions of that chapter, one of which I just read to you, are shown by the developer to cause undue hardship as they apply to this proposed development, including, but not limited to, financial, environmental, or regulatory, and that the situation is unique to that subject property. The city Planning Commission may grant a variance on a temporary or permanent basis to the development from such provision, so that substantial justice must be done -- may be done and the public interest secured, provided that the variation will not have the effect of nullifying the intent and purpose of the development regulations. So I think that you might -- if you think this is a good development and that they -- the developer has shown evidence to you of undue hardship in the uniqueness of their development and how this will not nullify the purpose behind the development code. You might wish to grant a variance, even though that will not be the final word, because even if the City Council allows it, if there is any possibility of utilities within there, and there very well might be, without that variance they still couldn't go forward because I don't think the city is going to grant them this land. It might allow encroachment for limited encroachment as proposed here, but I don't think that they're going to convey this land to developers. Vaught: I guess, my follow-up question for Jeremy -- in the Downtown Master code -- Master Plan code, would this type of encroachment -- is that what Planning Commission November 14, 2005 Page 29 Pate: we're talking about? We're talking about the area enclosed open -- enclosed useable spaces above colonnades, or is this the intent kinda -- and that's kinda what we're working on, and I know, so that's what I'm relating it to now, and what we're wanting to do with downtown, so -- I think that's open for discussion a little bit. Obviously it's the applicant's opinion that this is the intent that's indicated in their packet of materials. I don't know -- I don't necessarily think this is something that we will look lightly upon. We've discussed this a lot. There's been a lot of debate. I would anticipate Planning Commission and City Council to have debate on this because it is an important issue. To this degree, I don't know that we've had a full structure, four, five, six -stories tall, that is existing within the city right-of-way or built in the city right-of-way, so I think it is something that you do need to look at if there is a hardship, if there is a burden placed upon the applicant given the existing situation in the downtown area. We feel there is. We feel that there is -- there are constraints here that limit the applicant's ability to move a lot and still retain some of the character of this area, and we're recommending approval of this. Obviously this does have to go to the City Council, but we would certainly wish for the Planning Commission to debate this tonight and get an understanding from you as well. Vaught: And in your recommendation, one of the primary reasons is the limited size of the space and what they're trying to accomplish with it, or -- Pate: That and what has been presented to us, again, by the applicant. Parking is essential in this area. By reducing the size, the dimensions of this parking garage, there would be a decrease in parking spaces. Maybe the applicant can speak to this a bit more and the architect can speak to this a bit more in detail, but there would be parking spaces lost and the actual efficiency of the parking garage decreases quite a bit. We would actually lose parking spaces and potentially have to lose floors of the hotel with that. Vaught: And I guess I have a question for the applicant -- I don't know who best -- about the parking garage. Mr. Sharp, is it going to be open to the public? I mean, we're losing some public parking here. Is there going to be a portion of it open to the public or is it only for the hotel guests, and the Bank of America residents and employees? Alexander: There's going to be a portion of it open to the public on hourly or daily charge. There will be -- Ostner: If you could introduce yourself for the record. Planning Commission November 14, 2005 Page 30 Alexander: Richard Alexander. Ostner: Thank you. Alexander: One of the applicants -- or part of the applicant. There's going to be a portion of it open to the public. We've entertained discussions with the downtown Dickson -- the parking authority -- I don't know what their acronym is, but to lease or buy a level of that. We intend to have at least one level open to the public. There will be a charge for it. The real reason for asking for the ability to build over the right-of-way is there's almost -- there's just a rule about parking decks, that in order to be efficient you have to have 120 feet -- 20 feet for parking, 20 feet for two-way lane, 20 feet for parking, 20 feet for two-way lane, 20 feet for parking, so that you can have a circular up and down pattern with parking on either side of it, less than that if you come in from that, then you severely limit the number of your parking. You basically cut off a lane or two lanes of parking. The cost of building a parking deck, a large part of it, is in the structure and the ramping, and so in order to have an efficient deck and it still comes out to about $13,000.00 a space, which is pretty expensive. You have to have 120 feet so that you have that two-way circulation. You can have one-way circulation, but you have to go -- well, it's very difficult. You have to go all the way up and then you can't come back down in an efficient manner. The reason we're restricted to 120 feet, even with the portion that hangs out over the right-of-way, is that we made a commitment early on to try to retain the historical character of Center Street, and retain a good portion of those buildings. We essentially tried to retain all of the buildings on Center Street, but, again, the right-of-way issue on College Avenue basically forced us to give up the historic courthouse building and to pull our buildings back from College Avenue so that we had enough room for a decent sidewalk with landscaping. If you ever walked that section before, the sidewalk was hard up against College Avenue and was a very dangerous affair. You had about 4 feet, literally, from the trucks and cars passing to the edge of the building, so we pulled the buildings back, took the courthouse building down, made a significant effort to retain the old arcade, the 31 East Center building, Cafe Sante Fe, and the historic McRoy/ McNair building. If you go to the back of those buildings, which this plan envisions, the parking deck starts exactly the back of those buildings and it goes out 120 feet from the back of those buildings to the area that we've proposed. Again, that 125 feet is dictated by the amount of space that you need in order to have an efficient deck, so it's a very limited space. We were trying to do many things. We were trying to work within the limited space. We were trying to save the historic buildings on Center, as part of that we had significant expense, had to close that existing alley where all of the old utilities used to run for a large amount of money, and ran all those utilities down the alleyway between Planning Commission November 14, 2005 Page 31 McRoy/McNair and the Bank of America building, down Center Street; new sewer and new water, and down College Avenue with new sewer and new water to connect to the hotel. So a lot of that -- all of that was driven by desire to maintain the historic character of the buildings and build an efficient -- semi -efficient parking deck. We're still restricted by the amount of space that we can go. So working with all those constrictions, that's the plan that you have in front of you that took about two years to develop, so it was a long process and it's a result of many factors, not just one. Vaught: Okay. I also have a question on the aesthetics of it. I don't know -- Jeremy, in our packet it talks about staff and subcommittee expressing concern with design on the parking deck. Are those reflected in the elevations of the drawings or what where those concerns? Pate: There have been changes made since Subdivision Committee. Some of the materials -- the brick material has been added to the parking deck. There was actually a significant amount of time between that meeting and this, and I put into, essentially, this, I believe, if I'm not mistaken, into the elevation of the parking deck, because there were concerns voiced by the Subdivision Committee. They could, perhaps, update you as to those. Vaught: And are those reflected in the elevations? Pate: The revised ones, yes. Vaught: Okay. Can we pull that -- is that material board behind that second -- is that the parking deck. I just couldn't see it -- and that's the screening material going to be used, I assume? My main concern with the parking deck is that -- has the visibility, especially the upper portions of the deck from the square and from other areas, and I don't know if Mr. Sharp would address Did you help design the parking deck or was that a consultant? The brick -- why weren't -- or could we do something to help mitigate the upper floors of those corners that are visible, take the brick up and tie it together, it just kinda seems like it chops off a little bit, and those are very visible, so that's -- those two corners are visible, that's why I was asking. Sharp: I'd love to talk about it -- Vaught: Yeah. Sharp: -- but let me just weigh in a little bit from the developer's standpoint. We looked at doing a deck without any screening. Obviously, that's a cheaper more economically efficient model. We decided against no screening. Planning Commission November 14, 2005 Page 32 The screening we've decided to include is the brick portion that you will actually see from Mountain Street, in order to see the rest of the screening you have to be some distance back, in any event, the screening that we decided to add -- the total screening package adds about 6 to $700,000.00 to the project. That's a self-imposed requirement so that we do try to address the issue of what the parking -- whether or not you're looking at the parked cars and ramps, or you're looking at a uniformed system that attempts to ameliorate the harshness of a parking deck. The brick portion, I think -- is that two -stories? -- so it's two stories of brick, so in effect, what you'll actually see will brick. If you are way back from the project and look up, you'll see a screening that will hide the cars and hide the ramping. Obviously, you can do all sorts of screening, you can have glass and metal, and you could put marble or whatever up there, but it's a very expensive process and so we tried to pick one, ameliorated it, and still sort of fit within the budget. I mean, when we first started this we didn't have any screening in the budget, so another $700,000.00 was a significant jump, but (inaudible). Vaught: I think the elevation I'm looking at the most is the one looking from the square back and you see that staircase. I don't know if that represents -- because you can -- you see the staircase through the screening, I assume, I don't know. I just didn't know. It's hard for me to tell. Sharp: Okay. I would like to talk about the parking decks some. This project has brought out a lot of optimism in the citizens of Fayetteville and it's also brought out, at least some pessimism, I've had at least a dozen people tell me this project will never work because you cannot get the parking downtown. It doesn't have parking. You're not going to have good access. It's going to fail just like the Mountain Inn failed. And I think the -- you know, a great deal of care has gone into designing the hotel, but I think just about as much care has gone into designing the parking structure and the access, and the pedestrian experience, all around this whole block. You mentioned the corners of the parking deck. Vaught: Yes. Sharp: When we did our first diagrams we decided that we're really going to pay attention to the corners of the parking deck because that's really what you're going to see. I mean, unless you're in the federal building looking at the deck, you're really going to see the corners, and the retail colonnade, and so we placed the stair tower at the corner facing the square. We felt that was a good choice because if people can come out of the deck they can go down the stair tower and they can head towards the square, rather than having a closed -in stair we wanted it open. People have security concerns in parking decks that are very real and when Planning Commission November 14, 2005 Page 33 they're in the stair tower they want to know if people are watching them and also people on the street -- they need to see people coming and going so the building has some life, so that's the decision we made to put the stair tower on that corner so that it gives the building activity. Also it's easier to make a stair tower look good than it is to make a parking deck look good. I think we maybe haven't done a good enough job in our diagram showing how interesting that's going to be, but it's going to be a nice sculptural stair with a handrail, it's going to be a little color inside, it's going to be well lit, it will have enough glass to deflect the rain, so some attention has been spent on that piece. The other corner is the one that met the hotel. We curved that in and that, of course, added some expense. We felt that way it sort of helped that transition between the hotel and the parking deck. And we're constantly discussing this issue both within the office, with planning staff, and with the developers about how you make a parking look enough like a parking deck, people know what it is, they know where it is, and they know how to get in to it, you know, we don't try to conceal it, make it look like a building that confuses people. We still want people to see this parking deck, but we don't want it to just be bare -boned, harsh, parking deck right in the middle of our downtown. So what we -- a major factor was we would look for a material that would let fresh air in, that would let light in, but it would still screen and sort of -- almost like a scrim from the front, and we came up with this perforated aluminum material which is a very low maintenance, it's kinda got a little shimmer to it and it would -- during the daytime you would have that, you know, the sun and the clouds would over it and I think it would be nice effect. A night you would see the headlights and the taillights of the cars as they move through, so it almost -- from a distance it almost has sort of a -- I think a real pleasing artistic effect that lets people know it's a parking deck, but you're not just looking right at the, you know, the typical parking deck, which I've included plenty of pictures from Fort Worth, Texas, of how bad key parking decks in downtowns can be. I really -- I think the developers have made an extraordinary effort to humanize this deck and make it work in this very, very tight setting. Vaught: And so the corner are glass, not the perforated metal; is that correct? Sharp: Correct. Vaught: Okay. I was picturing the perforated metal there around the staircase. Sharp: The perforated metal is in middle part of the deck. Vaught: Okay. Sharp: And some glass in some open areas, not entirely glass. Planning Commission November 14, 2005 Page 34 Vaught: Okay. I'll let other commissioners have some questions, I know they have them. Trumbo: Mr. Chair. Ostner: Yes, Mr. Trumbo. Trumbo: While we're talking about the parking deck, Mr. Williams said that we cannot grant a variance if there were any utilities, I'm assuming public or private, in the right-of-way. Williams: I actually said that you would need to grant a variance from this particular part of the UDC, if there was in fact, utilities in them. Trumbo: Okay. My mistake, then. That's the answer. Ostner: Well, I would like to continue that with the question; are there utilities in this area that you are -- Sharp: We haven't found any. We've got a water line that's in that street, but it's more toward the centerline of the street, it's not in the area that we're talking about. Ostner: And the required width for our water line easements is outside of it? Sharp: Yes. We've had a lot of discussion with water and sewer on this project, this was one of their worst areas, that old alley that we dug up and replaced. (Inaudible) quite a bit and there's no water and sewer in that area. Williams: What about in the alley between the bank and your new building where there's going to be a walkway? Sharp: There is every utility in that alley, including fiberoptic, that's why we're staying away from it. All we're doing is just crossing over to connect to the Bank of America to the deck. Williams: So, for that particular crossover you would need a variance. Sharp: (inaudible) Williams: All right. Lack: Mr. Chair. Planning Commission November 14, 2005 Page 35 Ostner: Mr. Lack. Lack: Pate: I think -- and it seems like we're going to talk about this parking garage a lot more than the sixteen -story building, but I think that's mostly just where we all have concerns, where we all want to kinda flush out the issue. I think that parking is definitely an issue and I think, first of all, I'd start with a question of staff. In looking at the parking calculations, I see that the overall calculation of the building parking was derived and then reduced by the number of spaces which were inadequate from the Mountain Inn project, unless I'm reading that wrong. There's a calculation of parking for the Mountain Inn project or that property, which depicts that there were originally a 101 parking space shortage and then in the parking space calculations, we have a subtotal of the parking from the new building and then it is lessened by the shortfall from the original building, and then the 30 -percent reduction which is allowed by the ordinance taken on top of that. Can you help me with some logic on why a new development would be reduced by the number of shortfall parking that the previous development had? Sure. One is the PZD, there are flexibility in the parking ratios that you can have, so you can -- even if this were green field development you could look at it with a flexible ratio and we would evaluate it, and see if it was somewhere in generally in what we typically look at with our permitted -- in conditional uses in our code currently. Beyond that our code does allow in C-3 and C-4 districts, if there is existing square footage in a building that's on a piece of property, that square footage doesn't have to have any parking, you raise the building, you can tear it down and rebuild it without having to provide any additional parking. Also, if there is parking on the site already, that parking is utilized for those uses, to reduce them you would actually -- I think we see on Dickson Street sometimes, an extension of a deck, remove a parking space, $1,200.00, or find a shared -parking agreement. We see that -- the Planning Commission sees that as a conditional use often times, but there are allowances in a C-3 and C-4 district for you to essentially kind of as is. If you have parking, great, if you don't, you don't have to have, you don't have to provide it back. So if this were just a large-scale development, I think they would be meeting without a PZD, they would be close to meeting that requirement to be able to just simply credit the parking spaces from the existing hotel, the existing uses, (inaudible) uses, or whatever was in that building at the time it was the Mountain Inn. Does that answer your question? Lack: I think it does. I think I had not recognized that opportunity in the C-3 and C-4 district -- Planning Commission November 14, 2005 Page 36 Pate: It's the only districts that allow that. Lack: -- for prior use. And I think that the parking does give me some concern, and not exacerbating a condition of type parking that we see on the square now. And additionally with the garage, and looking at the plan of the garage, looking at if we were to disallow the building of the garage out over into the right-of-way. By a review of it, I'm looking at probably 98 spaces to be lost, being 14 spaces in that row, seven -stories tall, so that concerns me even more as I have some concern with the idea of the colonnade actually being the face of the building, as opposed to protected from the face of the building, and the columns right at the edge of the traffic lanes. I understand -- I'm not saying that that's going to keep me from voting for this. I think this is a wonderful development that I look forward to seeing downtown and I like what it proposes to do for downtown. I think that the design of the parking garage is nice for what it is. I'm happy with the application of the materials. It does help to know that the stair tower is glass. I had noticed that a rendering did show the different tone on that and I'd hoped that that was that vertically expressed element was a different material, I'm happy to hear that. I think that's pretty much a summation of the concerns of what I'm trying to grapple with on this, whether we can actually justify the number of floors, the square foot, which I'm hopeful that I can get a good feeling for that. Ostner: Thank you, Mr. Lack. I've got a question for the applicant -- architect. On this parking deck, and I would like to agree this is an exciting project, we've all talked about it for a long time, it's exciting to finally be here tonight, especially following the beginning of the Master Plan code that we're beginning to talk about. The parking is what concerns me a little and it's that dimension, I believe it's 120 feet or 128 feet. Did you explore turning that the other way? Sharp: Yeah, what we're left with is almost a square with that, so either way we turn it, it's about the same result. It does -- we did look at turning it the other way and we looked at trying to eat into the existing buildings, or go over the existing buildings, and nothing was really efficient and practical. I mean, it's already -- when we benched marked this deck against other parking decks that contained 350 spaces, they're usually on two -stories, so this is already a -- like a boutique parking deck. If it goes up seven -stories to get only 350 stalls, so it's already a tough thing to justify as far as the economics of it. The screening also makes it difficult and then if you go in and do like Commissioner Lack has suggested, if you go in and take those 98 spaces out, then it just becomes really -- really unmanageable, and I assure you we've looked at a lot of different options, and it's just a very -- it's a very tight site. There's -- it's a -- well, we couldn't find an Planning Commission November 14, 2005 Page 37 easy way to do it, and this was one of about four different strategies looked at and it ended up as the one we felt was the best. Osmer: Well, I suppose I'll take your word on it. I just did some basic measurements and it -- without the additional right-of-way stopping at that invisible line that goes up into the sky, it's not square, it's longer on the east/west measure than on the north/south measure. I understand not as many spaces could fit per floor, but I was just curious as to -- I mean, if it's turned, then it's shorter, like, two or three parking spaces are cut off of each level and it doesn't protrude into the right-of-way if it's turned. I mean, I'm not an architect, but -- Sharp: When I say it's square, I mean, it's square as it's drawn right now. You're right, the lot is a little bit rectangular east to west. Ostner: Yes. Sharp: The other reason we needed to get the long direction east and west is because the ramps are -- they have to run a certain amount before they get enough headroom to make the (inaudible). It's also tied in a little bit to that concealed loading area and how that works, and how trucks pull in, so it's -- I assure you we've looked at that. Ostner: Okay. Well, and that -- Sharp: Also I even -- I think it's a positive value to have the retail colonnade -- you know, when you have a parking, rather than walking right beside it and looking up and seeing all the car bumpers and seeing all the structure, actually, you know, you look up and you see a nice ceiling, you look in shop windows, so I think there is a real advantage to pulling it out over the sidewalk and having a covered connection between the hotel, and the Square. You know, it just doesn't -- first it seemed like it was a compromise and now I feel like that it's a really positive benefit to the proj ect. Ostner: Well, okay, that's a good point. My second concern is sort of along the lines that Mr. Lack mentioned, that if you start to bring forward a balcony or colonnade as such and it's the entire building, is it still a colonnade? Since the face -- there is no face that has become the face of the building. I'm just struggling with the fact that the city or the people of this town are giving the applicant the square footage times six up on the air, some people call that air rights. If that's something that's going to happen, it's going to happen more than once, I assure you. It's free square footage guys, I mean -- I understand there are a lot of permission that have yet to be granted, but when a building protrudes into the right-of-way, and I'm Planning Commission November 14, 2005 Page 38 almost convinced with the arcade, I can understand that if it were protruding from the face of the building, but with the building, per say, completely occupying, I believe it's maybe 7 or 8 feet into the right-of- way, if I'm not mistaken? -- times the length. I'm not sure, 120, 130 feet. That concerns me. As Mr. Pate mentioned, it's like it's someone else's land and they're asking to use it, except it's not just some guy, it's the city's. So I'm concerned that's a precedent, that a lot of people are going to want that. Let's just intrude every street both sides straight up. Let's sink our views, our sight lines, our space between buildings along streets in the downtown. I mean, I'm very concerned about that. I'm not sure that's a good precedent. I can almost understand a lot of the extenuating circumstances today, but when it comes down to it, it's a permission to build in the public lands times six, so it's not really a question. I'm (inaudible) you considered that -- Mr. Alexander would like to speak if you don't mind. Alexander: First of all, and we've struggled with this. We've been working on this project for four years -- the TIF District, the aspect of it took at least two. There is a historical precedent for just such a thing. The Ozark Theater building was sold by a group that I partnered with for the express purpose of redeveloping an eyesore and a blight. As part of that process the city gave the developers 20 feet of the street that -- the front that existed between the County Courthouse and the Ozark Theater building, in order to make the parking work. This building does not work without adequate parking. Yes, the city gave us -- it might have even been more than 20 feet. The road between the old courthouse and the existing Ozark Theater building was much wider before the Ozark Theater building project. The city sold the developers the Ozark Theater building for $20,000.00 on the express condition that they would do a major renovation, as part of that renovation the city gave up, I think, approximately 20 or more feet to the project in order to make the parking work so that the project could work. This building does not work without the parking, 350 spaces in my opinion, is a minimum to make this project work and still have some available parking for public uses. The reason we can turn the building the other way are several fold, one is, we made a commitment to keep the historic character of the existing buildings on Center Street, and in order to turn the parking north to south, you would have to destroy those buildings. As an economic model, those buildings -- we had to purchase those buildings in order to make the project work because you couldn't close the alley unless you owned those buildings, and you couldn't move the utilities unless you owned the whole site, so this is a very restrictive site. It simply does not work unless you have the amount of parking that we have. There is historical precedent for the city giving up right-of-way or property. As a practical matter we gave up more than two to one our building space, which we could have grandfathered on College in order to Planning Commission November 14, 2005 Page 39 make the sidewalks and setbacks, humane and safe. Well, I think we gave up 38 hundred square feet or more on College. We are asking for approximately 17 or 18 hundred feet on Mountain, so this is not something that at this hour we believe you could -- I mean, the problem with this process is we have to come with the plan. That plan in this instance took many years to develop. We are some several million dollars into it and this is the best we could think of. To redraw that at this point would be a practical impossibility and I don't know that I could -- I don't want to ponder the possibilities of doing this project without adequate parking, so in additional to that, the parking as it is drawn is consistent with the Dover Kohl Master Plan. They project whole buildings projecting out into and over the sidewalks, I presume they meant public sidewalks, usually sidewalks are public right-of-ways, so the Dover Kohl Master Plan envisions such a case where the building projects out over the right-of- way by way of a colonnade and the street frontage is set back under the colonnade, and made to look like a commercial or street frontage as opposed in this instance, but otherwise would be a parking deck. So I would suggest to you that there is precedent, I don't know of other precedents. Certainly, the city was the prime mover, you know, us contemplating this project, this is a project that would only exist and will only exist because of the efforts of the city by way of the TIF District and other tax incentives that we have brought to bear. The 350 -space parking deck, as Rob said, most 350 -space parking decks are two levels, that's because that's the most economic way to do that. Now, the way you get to do that is you go out on the bypass and you bulldoze everything, and do a two-level parking deck and it looks like a parking deck. When you're trying to fit to a parking deck into a downtown -built environment, you are severely restricted by the space that you have to deal with, and so we were encouraged all through this process by the fact that the city was encouraging this process. And I know that it is asking something of the city, but I think the city also gets back something, and we are also dedicating frontage that we did not have to dedicate, we could have built our buildings out to the old line, but we chose not to. That in itself was a very expensive proposition in terms of the value of that land along College Avenue, so that would be my point. Ostner: Thank you, sir. I'm still not convinced that this entire project, part and parcel, hinges upon this parking deck protruding into the right-of-way. Alexander: It does as far as I'm concerned. Ostner: We're here tonight -- Alexander: I'm the guy that puts up -- Planning Commission November 14, 2005 Page 40 Ostner: We're here tonight to talk about the specifics. The city has to grant a waiver and we're simply discussing that waiver. No, I appreciate that. I'm just saying from the developer's perspective it is -- Ostner: I understand that, however, we are discussing the waiver of giving right- of-way to a parking deck. ?: And I was only trying to -- Ostner: I just want to clarify. ?: No, I was only trying to give -- Ostner: I'm not discussing whether this entire project should be thrown out the window. I'm merely discussing one part of it and that's all we're talking about. I'm in favor of this project. I think a lot of us are. And I don't think talking this part of the project is, per say, threatening to deny the entire thing. Big difference, big difference. ?: No, no, that wasn't my point. My point was -- Ostner: A tiny part of the -- a tiny variance, entire project. So, I'm only talking about -- ?: It's not -- It's not -- I call only tell you from the developer's standpoint it's not a tiny point. Ostner: I understand that. ?: That's what I'm saying, it's not a tiny variance, it's a very major variance. Ostner: We've heard you very clearly. ?: Thank -- Vaught: Mr. Chair. Ostner: Yes, Mr. Vaught. Vaught: On that, because I've wrestled with this as well, allowing the developer to use, you know, the public right-of-way for part of their structure, that's why I asked the question about public parking. I feel that if, as we as a city, are allowing a variance we need to gain something from it in ways, Planning Commission November 14, 2005 Page 41 and I think allowing public parking on the deck is a key for me to looking at a variance that would be required to build above the colonnade in the public right-of-way. The public parking is desperately needed, we're giving up 11 spaces, but they're going to leave a whole floor of it for public use, and I would hope that that -- I mean, I know it's a promise, I don't know if it's in the conditions of approval or in anything the city has, but to me that's a key for this project, is providing not only parking for this project but provide parking for people in downtown, for shoppers, for people attending events in this area, I think that's a key for me in allowing that tradeoff, that public-private tradeoff in a way. I'm more worried about the lack of parking than I am the intrusion in the right-of-way in this instance. I think that, you know, we're giving up 11 spaces and getting an entire deck of a parking deck in a way -- as the public this city won't own it. I know we worked on that, but due to some technicalities in the law, we can't own a condominium -type space in a building. Actually, "I've dug the dirt," I believe, it what was said. Williams: Yes, with the way the ordinance was drafted by the city a long time ago to start that parking authority -- are you through? Vaught: I think it's something we need to look at, because I think that would be a key to a public/private partnership in the future when we do see things like this and I want to hear more about that too, but to me it's not a precedent - setting event, it's a variance we grant, which is a case by case issue and we always have the right to, you know, approve or deny those on the merits of every single case. So I will say that as far as a precedent setting, because it is something you don't want to start pushing (inaudible) of the street, and that's the main concern. But as I said, I think there's some benefits we gain as a city and that by allowing it in this case as long as there is some public parking available for the use in downtown. But I don't know if Mr. Williams wants to elaborate on the parking -- Williams: If I can, Mr Chairman? Ostner: Absolutely. Williams: I actually think that condition of approval number four needs to be changed to some extent, the waiver needs to be said, "as variance" instead, but there needs to be a final sentence, I believe, on Condition Number 4, which says "that this condition is subject to City Council approval of a narrowing of Mountain Street and allowing a structure to be built over the city right-of-way." Because, obviously, the Planning Commission cannot allow that. That's just -- you can grant a variance assuming the City Council wants to do the final act to actually allow this to go forward, so I think under Number 4, you need to have that under Number 3, and it Planning Commission November 14, 2005 Page 42 would be somewhat similar condition to "subject to City Council approval allowing construction over the city right -of way," and that's just over the alley, which is really not much of an issue, I think, to anybody, but I do think that both of those require City Council approval, and cannot be actually approved unilaterally by the Planning Commission. Ostner: Thank you, Mr. Williams. Mr. Nock. Nock: Mr. Chairman, if I may, just address Mr. Vaught's comments. This is a privately -owned deck, but it's a cash flow business model and we anticipate 150 spaces to be used, and I want to correct something that I said earlier, there's 147 rooms mentioned for the actual hotel, it's actually 153, it's a minor difference, but we're calculating at least 150 spaces needed for the hotel on nine convention days, which means we're going to have a surplus, which means that every time those parking sit empty there's less cash flow coming in to pay the maintenance and the deck service on the project, so it's absolutely our intent to have public -available parking for downtown. We're anticipating that those spaces will be gobbled up based upon the talk, the rumors, the discussions the downtown area talks about. I also understand from the recent study that the city did, based upon monthly parking versus daily parking, it's actually a better revenue generator to have daily parking or hourly parking situations, and so we have an incentive, an economic incentive, to have that rather than monthly setup for the various vendors, restauranteurs, or business people, and also condo owners, but also the public at large that want to go out to the retail shops in and out of this project to have hourly parking areas. And so not only do we want or going to allow it, but please broadcast it and tell your friends and neighbors come and park here, and it's not free but it's certainly available parking, just like the city doesn't have free parking or won't before long, it will all be for some available cost. One other thing I want to point out is this packet that was prepared, I don't want to beat this issue to death here, (inaudible) if you have this, a couple of the things that you need to consider is that we're not asking like they did in Fort Worth, which was built, a parking structure completely over a street. There is one example in here where you actually drive your car under a parking deck under -- the parking deck is built right over a top of a street that you drive over, we're not asking for that, what we're simply trying to do is to make the situation safe, useable, as well as -- and I like what Mr. Sharp mentioned, we started with a constraint that seemed to be problematic, and I think the resolution was something that's actually a benefit to the Square. The sculpture of the stairs will be aesthetically pleasing, as well as the functionality of the project will only work with a parking deck that's functional, and I do appreciate the concerns. I think what Chairman Ostner has brought up, as well as others, this was not a light subject, we spent as much time on this egress access as well as Planning Commission November 14, 2005 Page 43 availability for parking, as any other point on this project. Because if we don't have adequate parking our project is going to have a handicap from day one and we know that every other project there has lacked success, and if you go back and look at the issue why they lacked success, they're pretty apparent. So we started first with failure and let's get as far away as we possibly can, and so, yes, it is a major request and we appreciate you listening to us. If you will be able to make this issue come together and whatever legal means we need to be done as well. We are considering what we are trying to do on College as a offset to still impact the public in a positive way, but we absolutely appreciate it. We know it's a major concern and we know it doesn't come lightly, it was part of our discussions that were not light as well, but we do appreciate it and we would consider you looking at this alternate that we've seen in other cities, and being a major proponent of the Downtown Master Plan, we're trying to consider what it has and go to the spirit of what it gave as opportunities. Thanks. Ostner: Thank you, Mr. Nock. Trumbo: Mr. Chair. Ostner: Mr. Trumbo. Trumbo: Question for staff. Don't we vacate rights-of-way all the time in the city? Pate: The City Council, yes. Trumbo: Yeah. So essentially we would be basically doing the same thing. I mean, as far as precedence concerned, we get requests for vacations pretty regularly by builders or private users, is that right? Pate: That's correct. Trumbo: Okay. Well, I feel that -- I don't have a problem with it as a citizen of Fayetteville. I think it's fine, so that's my two -cents there. Pate: Mr. Chair. Ostner: Yes, Mr. Pate. Pate: I do just want to clarify. It's not a vacation request, it will remain city right-of-way. Trumbo: Sure. Planning Commission November 14, 2005 Page 44 Pate: It's similar in the fact that it would be utilized -- the private structure would be located on the property, but it is not a vacation request, and all these conditions of approval are subject to City Council approval because this is a Planned Zoning District, so everyone of them are subject to potential change if the City Council so chooses. Ostner: That leaves me to my question for Mr. Williams. The land -- well, the structure built in this right-of-way, if it is built as drawn, does not fall on their land. This portion falls on someone else's land. Williams: The city right-of-way, that's correct. Ostner: What issues does that touch on in the form of -- what I'm trying to get at is -- we're losing 11 parking spaces along the street and they offering to have paid public -access parking in their deck. At what rate and will those rates be -- since we had the 11 on the street, let's assume they put the meter heads back on there, I'm not sure if they were meter heads or not -- are these offsetting spaces going to be offered at the same rate, and that's not a question for you, but for the applicant. But the second question is, if they are not at the same rate, does the fact that the -- part of these other spaces that are in the public area, but not on private land, does that present any sort of legal issue -- conflict? Williams: Well, it certainly probably presents some legal issues. I don't think that, you know, this is a very unique situation and a strange situation. I would rather them to have been able to build their parking deck feasibly and not encroach upon city right-of-way. It will certainly be a big issue for the City Council to determine whether or not that their arguments are convincing enough that we would give up our right-of-way to a point and then allow them to build on top of our right-of-way for their own private profit. That's certainly something the City Council will look at. I think that one thing that the City Council can also look at was pointed out by Mr. Alexander. Is in fact, what we're losing on Mountain Street, we are more than gaining on College, and I did have my office for 14 years in the Arcade and I parked in the old Mountain Inn, and you did not walk down that sidewalk next to College. I looked for the traffic and then I would kind of sprint down there because the curb is about 2 inches, so there was no place to go if a car just didn't pay attention. So if they were not granting the city, kind of compensatory right-of-way, this would cause me a lot more problems, but since they are -- I still have a little heartburn over it from a legal point of view, but I do think that it's not nearly as bad because of the fact that they are granting us additional right-of-way on College Avenue where it's sorely needed. Planning Commission November 14, 2005 Page 45 Ostner: Thank you. I wish the applicant would address the question of parking rates. Is there anyway to know or to share if the rates will be similar or close to the public parking rates that we have and will have in the future? ?: As I understand the city's parking structure is currently under review and it's, I guess, a matter of ongoing debate, but I think to answer your question directly, we are going to, this is, again, a business model, it's going to be what the market will bear, and you have a half a block away, city parking, that you can do for half the price of a third of the price, or three-quarters of the price, of what would be in the parking deck, our parking deck would be empty. And so because the market determines these things, and not what we wish that we could get or what someone hopes they might be able to get as far as a price goes, it will be based upon what the market will bear. And so I'm assuming that if the city comes back, and I've heard two different numbers -- 50 cents an hour, I also heard a dollar per two hours, I think that number is the same if you split it up, then I would assume that our numbers would be somewhat similar. Now, there is an added benefit that we are covered parking, it also is a case that it's secure parking, assuming it will be behind a gate as we're anticipating, and also there would be other amenities available, just as the city parking, on street is different than if you park in the Town Center covered parking deck. And so I hate to use the phrase, but I think it's very true that the market will decide that, if we're too high it will be empty and will lose revenue and cannot pay our deck service, or at least we'll not be making the intended revenues, and if it's too low, well, then we won't have any room for our guests for the hotel. And so I think it will be a happy medium that the market will ultimately decide, and ultimately, that's the way any type of project should work. In fact, I think if the city rates are too high, that doesn't mean that we have to be too high, we might be lower than the city rates. But ultimately it's a matter of the function of the project and that's not a direct answer, because we've not considered exactly what those rates should be. We will have -- obviously, our hotel consultant as well as the parking consultants working on they will ultimately tell us that, but that's going to be something they make up either. It's got to be what the market would decide. Ostner: Okay. Thank you. I'm still wanting to ask for 11 spaces at whatever the rate the city is charging on this street as a fair exchange. I understand there is land being exchanged for the degree of encroachment into the right-of-way, however, there are degrees of encroachment and I believe this is a 15 -foot swath, and I'm not sure if they're stepping back the equivalent area on College, which is a appreciated, that will make it a humane place to walk, as I believe, the applicant has mentioned. So I'm just going to mention that. The last question for Mr. Sharp. This parking deck situation -- 90 -degree parking is the widest section of parallel Planning Commission November 14, 2005 Page 46 Sharp: parking, angle parking reduces the section tremendously, how was that considered and why did it not go forward? On angle parking, what happens is the width gets narrow, but the linear space you need for each space gets more, but the worse is you can come in -- say you want to try to get a parking space, you come in, you can only go one direction, and so let's say you park on the second floor, then when you go out you can't from the second floor back to the ground floor, you have to go all the way up to the top because it's only allowed a one-way flow. Ostner: Well, I'm not talking about a single -lane of angle parking. Sharp: No, two lanes -- if you have two lanes of angle parking, it only allows one-way flow for the parking because of the lane width, and so you would have to go all the way up to the top, you would have to make a three-point turn, and then come all the way back down. Ostner: And there's no way for the lane width to wider to allow two-way? I mean, I'm just asking. I mean, this is, you know, the heart of the issue. Sharp: Right -- true. Again, it's a -- we looked at it and it doesn't -- didn't seem to work. Ostner: Okay. Sharp: And I tell you that in complete honesty. I mean, I'm not saying this is first thing we did was -- we really did work this over, and you know, that's way the, like, the new deck on Harmon Avenue worked so well, was that they've got four parallel travel lanes. They can do angle parking, they can have express ramps, it really -- you know, that's how far they got to work. You know, we're trying to put an automobile situation in a really intensely pedestrian environment. It's just -- it's tough. Ostner: I guess I'm still not seeing your answer, but you're telling me you've tried to do it and I guess I'll stop questioning you. Mr. Vaught. Vaught: I have a question on the revenue real quick, while we're on it -- just because I'm drawing a blank. Does the city get -- will the city generate any revenue from this parking deck at all in sales tax? Is sales tax charged on parking or -- I know they've recently amended the rules for a number of services and I don't know them all. Williams: I don't have my statute with me. Planning Commission November 14, 2005 Page 47 Vaught: I'm trying to think. I mean, we are giving up 11 spaces with 11 -- with some revenue, which albeit is minimal, I think that there's other (inaudible) that add to it. I didn't know if the city would benefit financially from that. I know we have other -- another lot on Dickson we approved where the city is operating it for a percentage of the revenues. Williams: The city at this point is not operating that other parking deck -- or parking area. Vaught: Okay. Well, that was what we had seen and -- before us, but anyways. Alexander: Well, I don't want, you know, take our focus off the parking, but this whole project generates millions of dollars in revenue for the city of Fayetteville, and that was the whole intent that the citizens as well as the council approved the TIF project, because it would ultimately pay back the investment made by the citizens and we believed that when we presented it, so I think your question is a good one. I think that the seven or 11 spaces is a good look from the beginning, but in the end, if we're talking about -- I mean, this is not, you know -- in the press I read, and I wish the press was always right, because they said that is was only a $20 million dollar project. We're well over now, with Katrina and everything else going on, we're well over 30 million on this project, and so the revenues generated off of this, every dime goes back to pay back the debt service and have a fairly good economic model for the project. Now, that's not your concern at this point, although, you want everything to work for the city of Fayetteville, as well as economically as anything else. But I think that what we're really talking about is we're servicing debt on the parking deck of $4 and a half million dollars, currently, and that's including using the screening, and as Mr. Alexander pointed out, we did go in excess of half a million dollars due to that screening, and so there are a number of things that we are certainly paying additional dollars for that those seven parking spaces or 11 parking spaces, were not really in our equation. In other words, when we talked about doing valet drop off and that type of thing, we didn't consider, "Well, the city is going to lose two extra spots." What we thought about is this is going to be more convenient for people coming to visit Fayetteville to use the Convention Center, to go to the university, to spend money at the other restaurants and hotels around the city, thereby generate our economic picture personally, as well as the economic picture on a microbasis for citizens of Fayetteville, and so I know the parking deck is an important issue. But we're talking about such a large project, that how this figures into it, we had to deal with that as well, and it's a much more micro -picture, and so I would be more than happy to debate this many times. I mean, and one thing that Mr. Sharp didn't mention is that we hired engineers, other consultants, not just Rob has looked at this. I mean, he's our in-house, if you will, here locally he's Planning Commission November 14, 2005 Page 48 our city's in-house, you know. Looking at things, we've hired consultants all over the country to deal with this very issue, and so this was not a casual issue at all, I want to reiterate that again. And I don't know if you can -- I see where you're going and I can appreciate your wanting to protect those spaces, but there are conditions, I think, where we might even not have any spaces for parking, just for drop off, or we might have requested that, but we've not, we tried to consider each one of those where they were appropriate and where they were not. You know, one of the problems before -- remember you could park all up and down Mountain Street, but no one ever used it. In fact, for the longest time those spaces were available for the taking and even on Center Street, and as well as just nine months ago those spaces were available for the taking. We hope that's not the case and where we hope those 11 spaces will be readily available in the space that were building, but we hope that your concern would only be valid in the fact that they can actually be used in the future, whereas, for a long time when this blight was there, they were not being used at all. So the big picture says it will work. Osmer: Thank you. Vaught: I was not finished -- real quick. And I was going to say -- upon that I think that the -- the 11 spaces do not bother me. I feel the HMR tax on one room will make up for what we would have generated off of those 11 spaces in a year, so to me the 11 spaces wasn't that big of a deal, and like you said, the benefit the HMR tax revenue -- lots of hotels, lots of restaurants make a difference. Ostner: Okay. Anthes: Mr. Chair. Ostner: Commissioner Anthes. Anthes: I guess I'd like to say I've been in support of this project for a long time. I've attended numerous TIF District meetings in support of this design team and this developer, this development team, -and so I'm somewhat discouraged that instead of discussing the project's considerable merits, we are reduced to discussing some of these more mundane aspects. But I feel like I have to weigh in on the parking structure as well. There's something that's a little confusing about this project, in that it's somewhat developed with the Downtown Master Plan in mind, and yet we haven't adopted any ordinances related to that. So the colonnade is being sold to us as a precept of the Downtown Master Plan, yet the height restriction of the Downtown Master Plan is not being discussed The height restriction would limit this building to twelve stories and yet the proposed building is Planning Commission November 14, 2005 Page 49 sixteen. I also have to refer to Page 11 of your report: I'm looking at the rationale about the colonnade and I can't find that the Downtown Master Plan actually does support bringing the principal facade of an edge of a building to the sidewalk. It very clearly states that there's an 8 -foot minimum from the principal facade to the inside face of any colonnade required, that colonnades shall be constructed only where minimum depth can be obtained, and that colonnade shall occur forward of the principal facade, etc. I don't see any way that we can use the Downtown Master Plan to justify bringing the principal facade of the parking structure forward. I have no problems with the aesthetics of the deck. I think it looks great. I appreciate what you've done with it. I think the rounded corner helps to minimize the intrusion onto the street, and it's functioning the way you would want. I hope we get to determine the improvements, Condition of Approval Number 1, because we're not there yet, although I'm in complete support of the waiver request to allow the construction of the pedestrian bridge over the alley, and, obviously, find that the building meets commercial design standards. I guess, I'm looking at this and I'm thinking, you know, I'm glad that you guys provided those views to us, the deck pulled back and the deck projected forward, and what those comparisons may be. I'm particularly looking at Figure 13 viewed from the Square, and the projection does give the deck prominence over all of the structures on East Mountain Street and I feel it will block the view from the sidewalk to the historic building. One of the things we have to look at in a PZD is view protection and it says in our ordinance that the Planning Commission shall have the right to establish special height and or positioning restrictions where scenic views are involved and shall have the right to ensure the perpetuation of those views through protective covenant restrictions. Obviously, we have another historic building at the terminus of Mountain Street, and while this view is taken from the center of the street, I'm thinking about the pedestrians' point of view. If you are on the sidewalk walking adjacent to the bank building, I believe that the parking structure and colonnade will indeed obscure the view of the historic building at the end of the street. All this is leading to a question -- also I appreciate the views of the decks from Fort Worth. I think this one is a positive -- this one is also Fort Worth, is it not? ?: Yes. Anthes: Obviously, the retail space at the bottom makes a lot of sense, but I believe this building is also in line. The principal facade of this building is in line with the principal facade of the adjacent buildings, not projected forward of it. My question is -- and Rob, I think you said earlier that you looked at this, but I don't see it in the packet -- I appreciate that you guys are wanting to maintain the historic character of the businesses on Center Street, the existing buildings, but it occurs to me, though, that taking 20 Planning Commission November 14, 2005 Page 50 foot off the back of those buildings does nothing to mar the historic appearance of those buildings along Center Street, indeed I don't believe it would be perceived at all, and yet it would alleviate the concern, because it would give up enough room -- wiggle room, to also accomplish a continuous principal facade on Mountain. Have you looked at that? Sharp: Yes, and then -- Alexander: Yeah, I'd like to address that. Frankly, that's as much an economic issue. The buildings were bought as existing buildings that (inaudible) ... million dollars to the project, becomes a very expensive proposition. We would have loved nothing more than to have not encroached on the city right-of- way. In fact, I approach every project from the proposition as a developer that would like to ask for no variances, no setbacks, and no conditional uses, so that I know what my project is ahead of time. It just wasn't possible in this case in order to control the alley, control the accesses, we had to buy those buildings on Center Street. That's only an economically feasible proposition if you retain those buildings when they were sold at such a price they weren't tear downs, it wasn't an issue where you buying something at a discounted price and you could just go in and tear it down. So there's two issues there, one is the expense, the other one is, you know, again, trying to build over one of those buildings and still retain the historic (inaudible). I think there's two things, I think if you're going to tear them down, you might as well tear them all down, you might as tear the whole thing out to the street. Then you've done two things, you've enhanced the cost of your project by about 5 million dollars and you've pissed off all the people that you wanted to maintain the historic character of the buildings, so at this point it's not feasible for us to do that. I'd like to address one thing, also, that you mentioned in terms of the height. The height is also dictated by economics, an eleven -story is the minimum we can build on that site to allow for the number of room, 155, which is the minimum required by the companies that we're seeking to franchise in order to have a brand-name hotel, the minimum you can do with the companies we were talking to is about 155, frankly, they're like 250, which would be a greatly taller building. The condominium portion of the project, which is the height of the building from eleven stories to fifteen stories, is also an economic necessity in that the profit derived from the condominiums at present under our current arrangements with our banks is directly applied to principle, which is what made the loan palatable to the financing institutions that want to finance this project, in other words, they would not do the project but for the condominium aspect which allowed for equity and cash to be repaid on the loan balance. The top floor of the project is the arboretum, that's the sixteenth floor, that was required in order to apply and get the tourism -- state tourism tax credit -- two parts of that you had to have convention facilities of above 12,000 feet in some Planning Commission November 14, 2005 Page 51 other aspects, a botanical garden, a water park or something like that, so all of those things are dictated by the project. It's not something like we just thought of and said, "Oh, let's have sixteen stories." Also, at the time we started the project there were no height limitations in C-3. Those were -- those were being contemplated. They have not been decided upon. They may be twelve stories, they may be not. As Kit said, that has not been -- those regulations have not been passed. In terms of referencing the Master Plan, we were trying to anticipate what might be passed and used, the Arcade and the request to bring the building out over the street, used the Master Plan as a reference, we're not basing it on that, we're straight up asking for permission to build that over, whether or not that meets the Master Plan or not, we're asking for sixteen stories whether or not that meets the Master Plan or not, we're doing that because we think that the project dictates it. We referenced the Master Plan as often as we can to show that we hope that what we build will be somewhat in the spirit of the Master Plan, but the Master Plan may not even be adopted, so we're not basing it or trying to sell it to the Planning Commission on the Master Plan, or the city, we're straight up asking for permission to build over the right-of-way independent of the Master Plan. We are requesting sixteen stories because we think we have the right to. There are no height restrictions in C-4 currently. I don't believe there will be height restrictions by the time this process winds its way through the City Council, so I want to make clear we're not basing it on that. Thank you. Ostner: Commissioner Anthes, you still have the floor. Anthes: I just have to say that I don't believe that removing the back 20 feet of a building constitutes removing a building or demolition of the entire structure. Sharp: Can I make one comment about that? Anthes: Uh-huh. Sharp: The way those buildings are laid out, a lot of the electrical services, utilities, and restaurant kitchens, are in those zones and so it's a pretty expensive area to tear down. Also the buildings are load-bearing masonry, so it's really hard to make a clean cut and just pull it away, sort of -- it's like a -- it's a fairly aggressive surgery and it's also something that we certainly looked at and studied, and tried to make work, because, again, the last thing we want to do is come here and ask for 13 feet, but it's -- it did -- I mean, it's truly something that's been looked at. That back part of the building is very difficult to get in and dig those out. Anthes: That's a better answer from my perspective, thank you. I guess the -- you know, as Mr. Alexander pointed out, we are working under a C-3 and Planning Commission November 14, 2005 Page 52 under a current C-PZD ordinance, and I am concerned with Number 14 about view protection. And I also would like to know about other commissioners' comments on Condition of Approval Number 1, whether we think the determination of improvements as listed by staff meet the same kind of rational nexus is other developments within our community. Vaught: Mr. Chair. I'll comment on that. Ostner: Mr. Vaught. Vaught: I think that the improvements all along the length of Center Street are very important, especially, if we have a colonnade over part of the Mountain Street area, I think that helps offset. They get a lot more usable space and I think continuing the improvements down Center is a minimal cost, you know, the developer is not building any roads. I know they have a number of expensive improvements they're making, but it seems like that could be one of the least of them redoing that portion, because there are some really bad sidewalk and bad curb from a number of years of use with all the parking there. So I feel that important that's staff is recommending -- that improvement staff is recommending is important. Osmer: Thank you, Mr. Vaught. I've got a comment about that. I agree. I think these are important improvements along Center Street, however, we are talking about views and the Downtown Master Plan, it's just a sketch, it doesn't exist, per say, but it got me thinking and I think it got a lot of people thinking about views in this town. The view toward the Courthouse along Center Street is unbelievable and it is underutilized. Dover Kohl pointed out that we need to make that a two-way street, because you're always leaving the Courthouse, and when you're a half a mile away you get a look at it. Cities will kill for that kind of terminus. The old jail at the terminus of Mountain is the other rare coveted view. I believe the parking deck pinches that view. I believe the proposed trees on Center Street also erode that view. I never thought I'd see the day where I would say this developer should not plant trees. I don't think trees should be planted on Center Street. I think they should be planted at a better place, possibly instead of that expenditure, maybe another expenditure somewhere else that would be a similar amount, maybe a portion of a sidewalk on the other side of Center Street, I'm not sure. I think those two views are critical and those are the heart of my comment here, so -- I think Mr. Nock wanted speak. Nock: This was a new item that staff had recommended, at least it was to me, about wrapping the sidewalks all the way up and down Center, as well as Mountain. We certainly anticipated and agree with, and want to improve the conditions that are existing on the sidewalks currently, that match the Planning Commission November 14, 2005 Page 53 footprints that we're dealing with under this PZD. We are doing other improvements along Center Street, that although some of us are the same participants in that, they are different legal entities, with different framework, different time lines, and I think that our thought would be, initially, just to do what is connected to the PZD. Now, we ultimately want the whole thing to be done, but I think that was our only difference from staff, and I usually don't like to differ with staff in a public meeting, but that would be an additional consideration. We would feel that you would be asking for if we do additional sidewalk improvements along the westward piece of Center Street up to the alley, which does not currently front this PZD. As you recall, we pulled those aspects out of this PZD process, and so that would be our thought there, but we would certainly be willing to consider that as an option, but it would be an additional consideration. Ostner: I think as a Planning Commissioner, we often have to rationalize how much does this development, basically, deserve to pay. I mean, we all would like to think how much impact it has, but at another point when we're trying to stretch out off-site improvements, we have to stop short. I believe Mr. Williams calls it a rational nexus. How much can we fairly, in our minds, qualify to lay on him? I'm not sure where that figure falls, but I do know that this is a very tall building with terrific frontage improvements, however, it is so big, I believe, a little bit extra could pass rational nexus for me to go to -- to wrap around to the westward part of that building on Center Street that Mr. Nock is referring to. It is not part of this project and possibly on the north side of Center Street. Nock: Let me just reiterate. I'm not saying that we would not be willing to do that. That was a new consideration brought to us this evening that I heard for the first time here and so it would be an additional consideration that we would have to look through and agree to it if it was necessary, just like we've already agreed to do something on College by pulling the buildings back. It does impact the budget in the total project. I'm not saying that we wouldn't be open to that, but I was just saying that's a new issue, and so perhaps, just as we're talking about other issues benefitting the city or benefitting us, or costing the city or costing us, that might be one of the things that we will need to consider as well. Ostner: Thank you, Mr. Nock. Graves: Mr. Chair. Osmer: Yes, Mr. Graves. Graves: In line with the comments that have been made and with the request of Commissioner Anthes on the other commissioners' views on these points, Planning Commission November 14, 2005 Page 54 it is my opinion, with respect to the findings on Number 1, that all of the recommendations of the planning staff ought to be adopted. I think that the impact of the building, the request for variances with regard to the alleyway and the colonnade on the street, and the impact that it's having in the sidewalk, the pedestrian areas, and the parking areas along Mountain Street, I don't think that it's too much to ask and in fact, I think it's extremely reasonable and there is a reasonable connection in asking for the improvements along Center Street along the entire length as proposed by the planning staff. I also agree with the comments by the chair with regard to the tree plantings and I'm concerned about all of them, in fact, I'm concerned about the ones along Mountain Street, and I'm concerned about the ones along Center Street for the impact on -- that they may have on the views of historic buildings. I'm concerned about the ones, especially on the corner of College and Mountain Street, with how that might affect the view of drivers rounding that corner to try to drop folks off in front of the hotel there, that's kind of a pull -in area there that's being proposed and traffic could kind of back up the edge of that comer, and if there's trees there that would block a driver's view as he or she was attempting to round that corner as well. I'm concerned about that from a safety standpoint and so I have some concerns with that particular recommendation of staff on Number 1, with regard to the tree planting and whether those are really appropriate with regard to this particular PZD, and I don't have any better ideas for where they ought to be or whether they ought to be, but I feel pretty strongly that I don't like where they are on the plan. With regard to the other discussions, I believe that the applicants made a more than adequate case that there is an undue hardship with this particular set of circumstances under the facts that have been presented. I don't think that it means that every building that comes along or every proposal that comes along downtown is going to be allowed to build a colonnade over the sidewalk, and I think that, in fact, this should serve as a caution that they're probably not going to be allowed, unless it's an extremely special situation. But those buildings behind where the parking deck is proposed, do have a lot of kitchens and things of that nature, electrical wiring, and everything, those are all restaurants for the most part, to just go in and chop off the back end of a hundred -year-old building or however old those are, I'm not sure that that would really work from a structural standpoint for those buildings without a whole lot of expensive effort to try to hold on to them. Then you're dealing with -- if you except that, then you're dealing with sort of a squeezed space there in order to make this parking deck work. And so from that standpoint, I'm influenced to grant the variance because of the tradeoffs that are being made, because we would get the improvements along Center Street, because we're getting some additional square footage of public right-of- way along College Avenue, and because of the efforts that I believe the applicant has gone to to try to not make this happen, and so from that Planning Commission November 14, 2005 Page 55 standpoint, I think the variance is appropriate. I think there is an undue hardship. This is a unique situation and that the variance ought to be granted with regard to the parking deck. With regard to the pedestrian bridge, I think the variance ought to be granted there as well, I think I haven't heard any controversy tonight over whether that ought to be granted anyway, so I'll just leave it at that. It seems appropriate to connect those two buildings from a walking standpoint, especially, if we're going to kinda cut into the sidewalk down below on Center Street with some colonnade, it might help foot traffic to have that connection over the alleyway a different way. I know the colonnade stops at the alleyway, but you never know how shopping and things like that, and traffic down below on the street, it might be good to have a connection, and especially from the parking standpoint as well, that's where people are going to park and they will be able to go direct across without having to go all the way downstairs and then go over to the other building, and then go upstairs. And then on the commercial design standards, I think those have been met, especially with the building and with the parking deck, now that they've explained what -- how the corners of the buildings look and the stairwell, that the commercial design standards are met there as well. So those are my two -cents and other than the tree plantings, I'm inclined to vote in favor of the project and forward it on to the City Council for approval as recommended by staff. Anthes: Mr. Chair. Ostner: Thank you, Mr. Graves. Commissioner Anthes. Anthes: I have a question for Mr. Pate. I know that you have served as tree and landscape administrator in the past, and would like to call on that expertise in relationship to the trees. I'm looking at the landscape plan that we were provided, and it looks to me that along Center Street the applicant has proposed a Thornless Honeylocust, which I believe has a very tiny leaf and is pretty airy and open. Could you elaborate on that? And then also before you start, -- I don't know what a Hophornbeam is. Could you tell us what that species looks like; it says that those trees are to be limbed according to AHTD standards, which I assume is limbed up pretty high, so a pedestrian or someone in a car should be able to pass those. So if you could just comment on those items. Pate: Sure. Both of those tree species have been utilized in the downtown area. One on Spring Street, I believe, and the other -- the honey locust, I believe, was one of the species utilized on Dickson Street. From a personal perspective, I think it would be a mistake to not utilized trees in the downtown areas, but they do have to be done appropriately. Our Urban Forester did review and comment on these plans, and I believe one Planning Commission November 14, 2005 Page 56 of the conditions of approval states that they're subject to approval -- further approval at the time of construction because there is a requirement in the condition for structural soil to be utilized, structure soil as was utilized on Dickson, (inaudible) to be installed prior to the installation of the concrete of the sidewalks, and so it will be a similar situation as the project right now in front of the Terminella Building. It will a tree grate, a larger sidewalk located appropriately along College Avenue. As you mentioned, their HT will have to approve any tree species along that area and they will have limbed appropriately. No irrigation is allowed within the right of way, so there would have to be certain means to accommodate that. Those are challenges that we've had to address along the Highway Department right-of-way in recent pasts as well. Again, with the Terminella project just to the north, so those are issues that we will look through the construction plan process. With the regard to the tree species, again, there both utilized in the downtown area. We've seen them in the downtown area before, if there are more appropriate ones, our Urban Forester is certainly versed in looking at those and would recommend something appropriate, but she has looked at these so far and has recommended approval of the plans. Anthes: So, in your opinion, the views through to the back along Mountain and Center to the east, to those two buildings that those streets terminate to will not be adversely affected by -- Pate: I think Mountain is fine. If you look at the tree plantings there, they're no closer in to the street than the actual structure. Obviously, there will be some canopy, but they are there on the sidewalk. Along Center Street, I don't believe -- there are a few trees, I guess, the far west along the Continued Education building, but I don't believe there are any others in that locale right now. The primary view is in the street. All the photographs you saw from Dover Kohl is standing in the middle of the street, actually, looking at the structure, that's where you really get that terminus view. If it does go two-way, I think that the width -- the right-of- way is there to accommodate that as well as these wider sidewalks and street tree plantings, so I don't believe, again, my opinion, I don't believe it would ruin that terminus. A lot of times when you plant street trees on both sides, it actually starts to help focus that viewpoint as well. So they will be limbed up much like the ones on Dickson Street. So it will be a situation where the city would likely take means of those. Anthes: Thank you, Mr. Pate. I believe with that comment that I would be in support of actually planting the trees per the landscape plan. I would also like to comment that perhaps the city might like to go back and discuss the irrigation with the Highway and Transportation Department a bit more. I Planning Commission November 14, 2005 Page 57 happen to know that a big, big, project that has a lot of irrigation in the highway right-of-way. Pate: We've had different answers on different highways, interestingly enough, so -- Anthes: I have a contact I can get you. Pate: Mr. Chair. If I may, also. We would like to request you remove Condition Number 6. It's -- actually Number 5 takes care of it. The elevations they are showing on the structure shown on Center Street are indicated in your drawings and don't therefore need to be reviewed again at the time of construction by the Planning Commission. Ostner: Okay. Thank you, Mr. Pate. Clark: Mr. Chair. Ostner: Commissioner Clark. Motion: Clark: I am -- first of all I want to commend the applicants, because this parking deck for those of you who didn't see it, in its first manifestation at Subdivision, has come a long way. I think the screening has added to its appeal. I don't think there's any way you cannot go into the city right-of- way, but I think tradeoff is well worth it and I think this will be an exception to our general rule and anybody else who wants to build in the right-of-way should tread lightly, this is a once in a lifetime thing I think, so I commend the developers for all the thought they've given to the parking deck, and let's be serious, without the parking deck this does not go. Not only does this not go, but several other things we have approved in this body don't go, like the condominiums on top of the Bank of America. I hope that the public parking is preserved and encouraged, because I think finding a parking place downtown is a license, sometimes, to hunt, and you don't -- you're not overly successful. So I sincerely hope that it remains affordable and remains obtainable. Having said all of that, here we go. I will would like to make the motion that we forward Commercial PZD 05-1610 with the following -- how many are we down to Jeremy? Pate: 20, if you remove Number 6. Clark: 20 Conditions of Approval, finding in fact in all stated staff recommendations, including the trees, including the develop -- the Planning Commission November 14, 2005 Page 58 improvements, off-site developments, straight through. I think Commissioner Graves stated it best and I thought he was going to make a motion. Ostner: Okay. We have a motion to forward as written. Graves: I have a point of information, I guess, it would be for the motioner. Would that include the language changes to Numbers 3 and 4, suggested by the city attorney? Clark: Yes, to insert the language that the city attorney suggested in Conditions 3 and 4. Ostner: I took a note of that insertion. At the end of each Condition 3 and 4, Mr. Williams suggested we add, "this condition is subject to City Council approval of a narrowing of the right-of-way on either Mountain Street or the alley connecting Mountain and Center." Clark: Yeah. Williams: It's kind of actually you're just -- Number 3 is just allowing the construction over the right-of-way, and then the fourth one which, of course, is the most controversial, "is allowing the narrowing of Mountain Street and allowing a structure to be built over the city right-of-way." But they're basically the same -- just -- Graves: Mr. Chair. I also believe he changed the word "waiver" to "variance." Williams: That's correct. Ostner: Thank you. Williams: And I would actually say instead of determination that you're granting the variance and then it's up to the City Council to take the next step and actually allow them to do it. Clark: I will accept all of those (inaudible) and you all can figure it out. ?: Yes, I'll second. Ostner: Okay. Allen: Mr. Chair. Ostner: Yes, Commissioner Allen. Planning Commission November 14, Page 59 Allen: Ostner: Pate: Lack: Ostner: Lack: ?. Vaught: Lack: Clark: Williams: Lack: ?: 2005 I have some concerns about the right-of-way and the building height regarding these like have been expressed by other commissioners, but I am not an architect or an engineer, nor do a play one on TV, so I will leave this to the paid heads, and I feel overall this is a good project, and I will be in support of the motion. Thank you, Commissioner Allen. We have a motion to forward and a second. This is the -- does staff feel secure with the form of our motion? Yes, sir. Mr. Chair. Yes, Mr. Lack. I did have one question that I overlooked earlier with regards to Item Number 3 and the walk over the alley. I would like to have some input from engineering as to whether there should be a minimum height proposed, a minimum (inaudible) height proposed to this within this motion, or is that something that we have some standard regulation for. I'd have to refer to the applicant on the height of that. Mr. Chair. A question for Mr. Lack. Are you referencing so the utilities can access the easement for repairs or -- Utilities as that is, that remains a traffic -able alleyway. So a truck doesn't hit us. I guess you're asking what's a drive -under height. The minimum will be 14 feet, so we can -- it's like an overpass on a highway. It's not like 10 feet above our heads, it's up to the second story of the Bank of America, which they've got a very tall first floor, so there's a lot of clearance underneath there. With that slope, I'm concerned even at 14 feet, that a 55 foot trailer is going to clear that. And I don't know that we need to access that right now, to make me comfortable, I'd just like to call it to the attention of engineering and ask that that be coordinated to make sure that we maintain Most tractor trailer rigs are around 14 feet, 4 inches, I think, clear. 13-4, to 13-6, I figure. Planning Commission November 14, 2005 Page 60 Lack: Right I think there is a significant amount of slope from the alley to the street which will increase that high angle. And again, I don't need a number to make me comfortable at this point as long as we do maintain a traffic -able alley. Ostner: Thank you. We have a motion to forward and a second. Anthes: Mr. Chair. Ostner: Commissioner Anthes. Anthes: I'd just like to state for the record that I do support this project, I'm just sorry that we have to have this intrusion of this deck by the 17 foot (inaudible) on the Mountain Street facade. And I would ask the City Council to be very clear when they describe the private use of the public right-of-way, so that we understand how they mean for us to apply that if we get future requests. Ostner: Thank you. I'm also in support of this project. I wanted so badly to not see that building stick out into public space. Because we'd be on to the next fourth issue, we wouldn't have had anything to say, I believe. This is an important project not just for the applicant to do his project and carry on with his living, but for the city this is a good example of partnerships. A lot of discussions have gone on between this applicant and the city officials to allow us to even get to this point, and I appreciate your efforts. I think this is good for Fayetteville and for the Downtown. Those are my comments. Are there further comments beyond that? Will you call the roll, please? Roll Call: The motion to forward C-PZD carries with a vote of 8-0-0. Commissioner Myres is absent. Ostner: Thank you. ?: Thank you. Ostner: Good luck. We are going to take a short break. It is 8:07, we will reconvene at 8:15. Planning Commission November 14, 2005 Page 61 LSP 05-1755: Lot Split (PARK WEST, 208): Submitted by MEL MILHOLLAND for property located at HWY 112 N. OF I-540, E. OF DEANE SOLOMON. The property is zoned RSF-4, SINGLE FAMILY- 4 UNITS/ACRE and contains approximately 19.86 acres. The request is to divide the subject property into two tracts fo 13.716 and 6.144 acres. Osmer: May we have the staff report, please? Morgan: The property is located on Highway 112 and Deane Solomon, and the applicant is proposing a property line adjustment as well as a lot split to create Tract C of a 7 -acre tract, as well as Tract B, Tract A is the residual left through the property line adjustment. Staff is recommending approval of this tract split, with a total of 10 conditions. These include dedication of right-of-way on Deane Solomon and Highway 112 by Warranty Deed as well as dedication of a 70 -foot right-of-way for the future extension of Salem Road. And I believe the applicant has something to address with regard to this. Osmer: Thank you, Ms. Morgan. If the applicant is here, if he could introduce himself and give us his presentation. Jefcoat: Yes, Tom Jefcoat, Milholland & Company. And I know you're asking yourself why we took this off the consent agenda. We have signed the conditions of approval and we do recognize and accept the conditions, but so as -- maybe be the first to set a new precedence on other regards, in pulling this from the consent agenda to address a couple of issues -- not real issues, but to add some additional information for clarification. (Inaudible) to Condition 3, and Condition 5, there are some extenuating circumstances that sort of need to be explained and the filing of -- or the recording of this lot split will coincide with the approval of a development plan that would be coming through at later date, so we'll coincide the approval with the filing of this so that some of these conditions will address themselves in that process. The dwelling on the -- that exists is on the proposed property line, that is true, but we do not intend on kicking that tenant out and we remove them from that residence until we record this plat so we won't alert her and that that's not our intention, although, all the existing structures on this site will be removed at development, none of them will remain. The 70 -foot right-of-way on Salem Road, part of that roadway has already been dedicated off of a piece of property. There is a Master Plan Development coming through for a PZD on Park West, the main part of Park West, which is setting some roadway standards that if approved on that PZD, we would like to cavy through on this, so it is our intention to provide right-of-way and provide Salem Road with a Master Street Plan through there -- just that it needs to coincide with approval of other projects so that the standards are maintained Planning Commission November 14, 2005 Page 62 through the entire right-of-way. And then also there is no problem with the dedication along 112, that's standard, the dedication for Deane Solomon -- the present location of Deane Solomon may be relocated to a new location, so it is our intention to provide the full right-of-way width for Deane Solomon extension, it's just that the relocating of it would be in a different location than the present right-of-way, so dedicating right-of- way now at that location would have to be undedicated and redone at a new location. So if we coincide both the approval of the development plat along with this, all those issues should be resolved, and we just want to go on record so that there was no misunderstanding, and staff understands this, but the public may not understand that, and didn't want you to preconceive that what's stated is not exactly what happened, so we just wanted that clarification and we appreciate you hearing us, and look forward to your approval. Thank you. Ostner: Okay. Thank you, Mr. Jefcoat. At this point I will call for public comment on Lot Split 05-1755 for Park West. Seeing none, I will close the public comment section and bring it back to the Commission. Mr. Jefcoat, I think I have some questions. I'm not entirely understanding -- Jefcoat: I figured you wouldn't. Ostner: Hey, wait a minute. Are you asking for some of these conditions to be changed? Jefcoat: No. Osmer: Or are you just adding to -- Jefcoat: Well, we're just clarifying -- we're just clarifying the intent behind the conditions. Yes, there will be additional right-of-way on Deane Solomon Road, it's just that when the development plan comes through, Deane Solomon won't be located where it is now. Ostner: Okay. And the same with -- did you mention the same for Salem? Jefcoat: Salem Road the same way. Ostner: A similar situation, okay. Pate: Mr. Chair. Osmer: Yes, Mr. Pate. Planning Commission November 14, 2005 Page 63 Pate: If I may, I think to get to the meat of it, there will likely be some vacation requests coming forward with the preliminary plat in the future and though this lot split is required to meet the Master Street Plan requirements, now we're actually looking at their development relocating Deane Solomon Road to the east to get it out of that curve, so there will be a dedication right-of-way potentially a vacation forthcoming, so we wanted the Planning Commission to understand that. I believe that's what you -- Jefcoat: And then that's -- just so that you understand it. Ostner: Thank you. I waited a long time for that. Graves: Mr. Chair. Ostner: Yes, Mr. Graves. Motion: Graves: I'll move to approve Lot Split 05-1755 as clarified on the conditions of approval. Ostner: Thank you. I have a motion to approve by Mr. Graves. Clark: Second. Ostner: A second by Commissioner Clark. Is there any discussion? None. Will you call the roll? Roll Call: The motion to approve LSP 05-1755 carries with a vote of 8-0-0. Commissioner Myres is absent. Jefcoat: Thank you. Ostner: Thank you. Planning Commission November 14, 2005 Page 64 CUP 05-1804: Conditional Use Permit (JONES, 526): Submitted by DAVID MURPHREE for property located at 70 S. KESTRAL. The property is zoned RSF-4, SINGLE FAMILY -4 UNITS/ACRE and contains approximately 2.00 acres. The request is to allow a tandem lot. Ostner: The next item on our agenda, I believe, is a conditional use. Have I got that right? Conditional Use 05-1804 for Jones. If we could have the staff report, please? Pate: Yes, sir. This property is located at 70 South Kestral. It's currently zoned RSF- 4, Residential Single Family, four units per acre, and contains approximately 2 acres. The request is to allow -- with a tandem lot to be created which does require a conditional use permit. A property line adjustment is in the process of being reviewed and approved to also allow for this tandem lot to be created. Staff has made the appropriate findings as required by the Unified Development Code and finds that granting this request of conditional use will not adversely affect the public interest. This lot is similarly sized or larger than of the Tots in the adjoining subdivision, which is Sequoyah Preserve. Access is required, obviously, to the property and is granted by way of a public access easement from the west off of Kestral Drive -- Kestler Drive, which is a private street within the Sequoyah Preserve neighborhood, and there are eight conditions of approval, as you see on your first page there, most of which are standard for a conditional use request for a tandem lot. And I will be happy to answer any questions. Ostner: Okay. Thank you, Mr. Pate. Is the applicant present? If you could introduce yourself and tell us about your request. Murphree: David Murphree. We're seeking approval on both these applications towards the building permit, which we submitted on August 30th for a single-family residence of about 4,200 square feet for Tom and Ramona Jones. We've just -- seeking approval to proceed with the construction as soon as possible. Thank you. Ostner: Okay. Thank you, Mr. Murphree. Is there public comment on Conditional Use 05-1804? Yes, ma'am, please introduce yourself. Wallner: Hi. I'm Ann Wallner. I live -- the adjoining property, as a matter of fact, an acre of that used to be our land. The thing that has disturbed some of us, is what is meant by a tandem lot? It sounds as though there is going to be a lot split with two lots, is this the case? Why is it tandem? Planning Commission November 14, Page 65 Ostner: Wallner: Ostner: Pate: Ostner: Anthes: Ostner: Motion: Anthes: Osmer: Graves: Ostner: Pate: 2005 No, ma'am. A tandem lot is lot basically behind a lot that does not have a public street connected to it. So an access easement, sort of a driveway, is going to be granted or could be granted, through this -- So tandem just means that it doesn't have direct access. Okay. Thank you. That's all, right. Is there further public comment? Did I answer that correctly, Mr. Pate? Yes, and I would just also mention that the lot -- there is only one tandem lot allowed. You can't have a tandem lot behind another, behind another, so by ordinance there is only one allowed, and also one single-family residence is allowed on any tandem lot regardless of the zoning. So I just wanted to further clarify that. Okay. If there is no more public comment, anyone? I'll close the public comment section and bring it back to the Commission. Mr. Chair. Ms. Anthes. I move for approval of Conditional Use 05-1804. I have a motion to approve conditional use, is there a second? Second. A second by Commissioner Graves. I do have one question. In our packet - - I understand this is steep terrain. Paddock Street is to the east of this parcel. It looks to be -- I don't know -- 50, 80 feet, a hundred -- part of the reasons, part of the allowances in granting this is -- the terrain is proposed - - the terrain of the area in which the tandem lot is proposed is such that, subdivision of said area and to standard block, is not feasible. I'm asking if right-of-way has been looked in to, to be extended to touch this lot? Actually, you will see a planned zoning district at the corner of Paddock and Happy Hollow, in the very near future, that's in our process right now which will provide a street stub -out likely to the west. I would also mention that when Kestral -- the Sequoyah Preserve subdivision was approved, it was approved without connectivity, this is part of the Mount Sequoyah area in which connections across cannot be granted. At that Planning Commission November 14, 2005 Page 66 point, staff was recommending for connections or early stub -outs, but that was granted without those connections by the Planning Commission as a planned unit development. If you also look at your map on Page 13 of 14, the actual darker shade is a much larger parcel. I believe, the Wallner's property you see there, the smaller two acres that you see sort of to the southwest corner of that is the subject two acres. So it's quite a bit further from Paddock than it is Kestral. Ostner: So the map on Page 13 of 14, isn't entirely accurate. Pate: It is, it just includes other property for which the property line adjustment is also being processed. Ostner: Okay. So what you're telling me, is that, yes, it's been scrutinized that right-of-way cannot be extended to this parcel currently. Pate: Feasibly, perhaps, we haven't looked into the topography, but, again, we're not looking at a development proposal, per say, we're looking at a single-family home, property line adjustment, so a right-of-way isn't required. Ostner: Okay. That answers my question. We have a motion and a second. Is there further discussion? Will you call the roll, please? Roll Call: The motion to approve CUP 05-1804 carries with a vote of 8-0-0. Commissioner Myres was absent. Ostner: Thank you. Planning Commission November 14, 2005 Page 67 CUP 05-1785: Conditional Use Permit (SMITH TWO-WAY RADIO, 324): Submitted by MICHAEL SMITH/GARY COCHRAN SMITH, SMITH TWO-WAY RADIO for property located at 2434 DEANE SOLOMON ROAD. The property is zoned RMF -24, MULTIFAMILY- 24 UNITS/ACRE and contains approximately 0.13 acres. The request is to approve a cell tower on the subject property. Ostner: The next item is a conditional use permit request. Conditional Use 05- 1785 for cell tower, Smith Two -Way. If we could have the staff report, please? Fulcher: Yes. This is actually just southwest of a proposed cell tower that was reviewed by the Planning Commission that was denied a few months ago. That proposed location was on Moore Lane, just behind the Total Document Solution building. This proposal is, like I said, to the southwest of this on Deane Solomon Road, at actually 2434 Deane Solomon Road. The property is zoned RMF -24, it contains approximately 0.13 acres. The applicants are requesting -- or proposing to erect a 150 -foot -tall monopole tower, with an area at the base for the wireless equipment. The exact location is at the back property line or the eastern property line of the Morningstar Church of the Nazarene, which abuts the very western property line of Williams Ford Tractor, which has its frontage and entrance on Shiloh Drive. The following ordinance requirement notification by certified mail was provided to all property owners within the 500 -foot radius for the center of the proposed tower. The type and height of the tower is in accordance of Chapter 163.14, B-1 and 2, the tower is not located within a 150 feet of a residential structure and the applicant did provide all documentation required by Chapter 163.14. The applicant has stated that there's issues -- and I'll grab item that the applicant submitted to us, and I'm sure they can go in some more detail with this. It does show two -- the existing tower in Johnson and the existing tower on Dinsmore Trail, and the proposed location of the tower here in black -- those are (inaudible) a good signal, and I believe they will go into a little more detail on that than I can give you, but you see the change in here from the yellow and green, to this covered in red which is - - from what I understand where they're going for in that area. Basically, they're requesting this location because of that difference -- the southern tower at Dinsmore and the northern tower at Johnson, leaves that void in the middle of those two, I believe, based on their information there. From this location, either one of those two current tower locations is one and a half miles and that's caused some tower to tower handoff issues, and also capacity issues. The applicant did present some information with other locations, this problem with an area out here is that there is no other towers other than the two that are a mile and a half away. No tall structures, other than one that's further down the bypass. There's a list within the staff report, Lander's Auto site, Washington Regional Medical Planning Commission November 14, 2005 Page 68 Center -- they've given reasons as to why those locations, you know, wouldn't provide the cover for -- cover the area that they need to have. So upon review of their submittal and all the documentation that's required, staff has recommended approval with nine conditions, all of which are standard within the wireless communication section of the ordinance. We have may have discussion as we did last time on the type of camouflage or the Stealth technology that should be utilized. Based on what was approved out of the design on the Crossover Road location that's recently been erected. I don't know if any of the Commissioners have seen that. We feel that's done a fairly good job, it's really not as noticeable as maybe, thought prior to a new one of those monopole being erected with the two-tone color on it, so that is within Condition Number 5, your determination of those Stealth technologies that should be used. And if you have any more questions, I'm sure myself or the applicant can help out. Ostner: Okay Thank you, Mr. Fulcher. If the applicant is present, if you could please step forward and introduce yourself, and give us your presentation. Reynolds: Hi. I'm Dave Reynolds, Smith Two -Way Radio service here in Fayetteville. Let me go ahead and hand these out. We've -- some of the letters we received and some of the community responses for the notification letters that we've sent out there in the permitting process there. With that I'll try and be fairly brief about all this. Staff mentioned in their report, and I'll try not to go over too much of it, basically we came to you a couple of months and basically needed to find a new location that was a little further away out of the 540 Overlay District, and a little farther away from the proposed development in the wetlands areas. We found place, moved 1,200 feet away -- farther away from the previous location, and got 1,200 feet out from the bypass, so that will put us out of the Overlay District there, sort of accomplished both of those objectives. Had a little bit of a response there from the community in that area. We had one person turned back a dissenting vote there, it's the first one in that package, it's from Collin Haynes and Legacy LLC group. They didn't site any concerns, just that they objected to it. I tried to contact them a couple of times, they -- the last meeting they added, they aren't here this time -- I don't know any further information than that. But in the package that we brought to you, just new information on that, last time we had quite a discussion about bird strikes and some of the environmental issues. In the package there is included a Best Practices from U.S. Fish and Wildlife, a list of them, we meet all those best practices, and basically are the type of tower that they want to see at 150 foot monopole with, you know, any slimness that it can be done. With that -- in this -- and we've worked with staff as far as the landscaping, the placement of the screening, vegetation, trees, the Loblolly pines, junipers, (inaudible) that kind of thing. I think Planning Commission November 14, 2005 Page 69 we've got a pretty good solution on that so far, but however that needs to works out, we're certainly amenable to. The tower will be, you know, as you can tell by the drawings and things in the package, it will be a twin to the tower that was approved on 265 and Zion, it will be available for * location. Right now we have one carrier that's on it, as was the previous - - well, previous meeting. One carrier that's signed and ready to go, we've had discussions with several others, so this will be very quickly populated, if you will, it won't linger out there and just serve one, and it will have plenty of room for others. As far as the camouflaging issues, we proposed a transitional paint scheme that we had at 265, Zion. I have to give credit there with the city staff. I don't know how many of you have seen that, but it really works, that paint blends and works quite nicely, so we would certainly wish to continue in just that fashion. Lets see -- you can see -- I guess the -- it's Page 26 in your booklet there, there's an area topographical map and then the page after that is the coverage map here that we supplied. You can see the, you know, the -- on the topographical map on Page 26, you see, you know, basically where the tower lower is. There's huge amounts of growth going on in that area. It's kind of a -- familiar with the terrain, but it's in a bowl between basically the City of Johnson, the hills going into Johnson and then hill to Highway 62, what we call Dinsmore Trail and Millsap Mountain. The location where we've chose to put the tower there is actually a small rise there along the highway, what that allows us to do is it gives us the extra elevation we need to cover back down the valleys to the -- I guess it would be to the west, and also to help us reach over a little bit more towards the Washington Regional Medical Center and around into that area, and also take some of the traffic off of the two existing towers that are covering the interchange and along Highway 16, and 540. What this will do, it will cover those areas and it will take some of the traffic off of the existing systems, because currently -- at least with the carriers that we've talked with, and in fact, all the carriers we've talked with, are at those two locations on either end already, and they just can't cover in the middle. And what's happening, is due to a lack of appropriate coverage and the accelerated growth, those sites are becoming overloaded, so when you travel from one to the other, it drops basically, drop calls, breakup calls, that kind of thing. Another issue that we've addressed and has come up -- has been some of the E-9-1-1 services and things like that, that would also be located on this tower, you know, through -- I mean, in cooperation through the carriers and through the Washington County Department of Emergency Management, they are anxiously looking forward to this to be able to serve their -- the -- basically the stronger the signal and the more towers that your cell phone can be located by, at any time when you call 9-1-1, will speed a response and accuracy of the location. If you turn over to Page 27 there, that's the coverage map, you can see, basically, it's -- the legend, if you will, is red, orange, yellow, green, and blue, kinda from hot Planning Commission November 14, 2005 Page 70 to cold, if you will. And you see there along the bypass and the Mount Comfort Road area, there's a large section of blue and those are areas of basically no coverage, definitely no in -building coverage, probably no outdoor type coverages, or limited, and if this system is loaded at that, it's a large difference too in the type of reception that you would get in that area. You know, it covers -- it doesn't just the little circle there, that's basically a mile and a half area that's mostly -- 99 percent of the change there will occur within that circle, but you can see on the edge of it down at the bottom, we've located the -- there a new elementary school being built there that -- the Fayetteville Boy's and Girl's Club, things like that. They have bad indoor coverage there, as indicated by the green area. With this new tower things like that will help improve also out at -- I believe it's Holcomb Elementary or Holcomb Middle School, I'm not sure. That's also in the coverage area, so it will be improved with this. Like is said, I don't really want to dwell on this or take too long, or become too technical up here, so at point I think that kinda concludes my presentation, if you will. I'm sure that there are several questions. Ostner: Okay. Thank you, Mr. Reynolds. Reynolds: Thank you. Ostner: Okay. I will call for public comment, but I believe no one is here, except the applicant, and all of us, so I'll bring it back to the Commission for discussion. Graves: Mr. Chair. Ostner: Mr. Graves. Graves: I previously had concerns about this particular proposal when it was at the previous location, which was a lot closer to the interstate and something that you could really see as you drove into town from the north, and it was also, I believe, more on a hilltop than it is now, and so it was extremely intrusive, I think, to what you would see as you drove into town. This location seems more palatable to me and he used the magic word of "bowl," because I think that was the justification of allowing one to be 150 feet at Zion Road, is that it was in a depression -- a geographical depression, and the reason that I opposed a 150 -foot -tall tower when then was at the hilltop location closer to the interstate, because we had just heard one that they needed 150 feet because it was in a depression, and then they turned around and asked for 150 feet on top of the hill. And so I had a concern about that, obviously, but with this being more than a depression, and more off the beaten path, I have less of a concern about it and I would the request for the conditional use. Planning Commission November 14, 2005 Page 71 Ostner: Thank you, Mr. Graves. Anthes: Mr. Chair. Ostner: Commissioner Anthes. Anthes: Question of staff. Usually in the back of our staff report there is a map that is generated by GIS -- it has the wetlands and things shown on it-- but I didn't get that on this report. Do you have one? Staff, what is the distance between this proposed location, which I must agree with Commissioner Graves, that it's much better than the previously proposed location, but what is the distance between it and the Audubon area in the C-PZD? Pate: I believe this request is about -- I believe the applicant said about 1,200 feet from the last one, which is almost across the street from the -- well, actually that's from the Springwoods' PZD, the actual Audubon area is quite a bit further north, because there is a subdivision and other properties between the two. Anthes: Well, there -- I'm looking at Page 34, under the migratory bird treaty act, and it's very clear that it says, "towers should not be sited in or near wetlands, other known bird concentration areas, e.g., state of federal refuges, staging areas (inaudible) and known migratory or daily movement flyways or habitat or threatened or endangered species." And it just occurred to me that we're building, you know, a significant area for bird populations that's quite close to this, but I don't understand how those birds move and what impact that this location will have on that pattern. Pate: Honestly, I couldn't further elaborate than what you already have. I don't know the migratory patterns at all. And further down that same page it also talks about power designs using guy wires for support -- Anthes: Right. Pate: -- which I believe in the last -- that last application, one of the concerns was the bird strike with guy wires, and just to reiterate, these are monopoles, there is only one pole, there's no guy wires helping to hold these up, so that does reduce, I guess, some of the potential bird strike in that area. Anthes: I would agree that the applicant has met a lot of those intentions of what we've asked for beforehand, and I'm just looking at the United States Department of Interior's guidelines, and I don't understand how these Planning Commission November 14, 2005 Page 72 Pate: movements are affected — we're setting aside a large piece of property for Audubon Arkansas, and with the specific intent of creating habitat, and we have something that's in contradiction to that, but I don't know how the flight patterns work and I really would like to know in order to evaluate this. That would likely not come from our office. I would -- actually, you were to ask that question I don't know if those studies have been done by Audubon as part of their review of whether or not to take this property and establish the nature center or not. I'm looking through this a little bit more too, and it talks about the applicant should be strongly encouraged to co - locate, obviously, is which is what our ordinance says. If co -location is not feasible, and a new tower were to be constructed, they strongly encourage construct towers no more than 199 feet, and do not require guy wires, both of which, I guess, would meet our ordinance. It also says they should be sized with an existing antenna arm, we don't do that here -- before I came here from Colorado, that's what they do a lot, they have a lot of antenna arms, where there are just numerous towers antenna there, but we don't really practice that here in this city. The lights -- the lightings is not utilized, I believe that's usually a condition of approval, yeah -- unless mandated by FAA, which I don't believe they are, and that's down in the fourth of fifth paragraph, so lighting should not be an issue. I guess, looking through this particular case, four out of the five criteria -- they're getting there. I understand the concern. Anthes: Yeah, they're getting there in all sorts of ways, but it's just that we have a special condition that's very close to this site, and I'm afraid I don't have the information to evaluate those flight patterns and whether we're right smack dab in the middle of them or if they're passing right by with no effect whatsoever to this pole. Reynolds: This is our EPA reports and our environmental phase one assessments. In this, it addresses specifically wetlands and our location to wetlands, basically says that we're not in the wetlands -- I mean, they say that we're not in the vicinity. Just for your information, also the guide lines there -- Ostner: Could we see that? Reynolds: Yeah, sure. Ostner: I don't think we have a copy of that. Reynolds: I'm sorry, here you go. (Inaudible) Our report was done by a Dr. Jim Porter, from the Peragrain Environmental, he's also a member of a -- a member of the U.S. Fish and Wildlife Board, and the working group that Planning Commission November 14, 2005 Page 73 adopted those best practices guidelines. He's is also actually the person that surveyed the site earlier last month, he did that and his report will state we're not endangering any (inaudible) to any appreciable sense, also the bird strikes, things like that, they occur -- 99 percent are large transmission towers, big towers, and the world of towers, what we're building is actually small, it's quite small, it's only 24 inches at the top, that's roughly twice the size of that column. It's not a great service area for this animals to run in to. With that -- Anthes: I'm looking at the report and I see where it specifically talks about not being in a wetland area -- Reynolds: Yes. Anthes: -- but it doesn't talk about, that I find, about proximity to bird concentration areas, which is the question I have just based on the fact that we're creating this area real near here -- and maybe they're not there yet -- I just know that site has been watched very closely by the citizens of the city and a lot of people feel very protective of that land that's been set aside there. Reynolds: Well, I agree with them and it's -- if I remember correctly, in the report states that we're not in a wetlands area or in a vicinity. Pate: Mr. Chair. Ostner: Yes, Mr. Pate. Pate: Page 10, of the booklet that you have that was passed out, it shows a mile radius, and then you can see where the -- how the creek actually comes through. It gives you a little bit better idea of kinda where that -- where that's located in relationship to the mile radius circle. Anthes: So, basically, it looks to me that the Audubon preserve area was -- is within the one -mile radius of this tower. Pate: Correct. Ostner: Well, I'll pass this around if anyone is interested, but Mr. Jenkins -- with Paragrines Environment, I can't him addressing the migratory bird act. I see him addressing another act that we've already been down the road, but no, this tower does not exist in wetland, but the migratory bird act, I don't him addressing that in this report, and that's where the proximity, for me, issue comes in, that birds -- well, that's already been stated, so -- Planning Commission November 14, 2005 Page 74 Reynolds: Okay. I mean -- surely they just don't stay in the wetlands, they don't observe that kind of boundary or anything like that. I guess, if I understand your question, what is near. I mean, you see there where -- pretty close to a mile away and that's -- Ostner: No, actually, it's much, much closer than that. Reynolds: The main area of the preserve is up near that elbow, -- three-quarters of a mile, this is the main area of the preserve right here -- Graves: And the tower is here? Reynolds: Yeah, it is. Ostner: The preserve is -- Reynolds: Well, there's (inaudible) run along the creek here, but the majority of it is in this area. ?: I understand the majority of it is in this area. Graves: And there's multifamily between -- Reynolds: -- between three-quarters of a mile and a mile, depending on what side of the wetlands you look at there. Clark: I have a question for Jeremy. Ostner: Yes, Ms. Clark. Clark: Given this proximity map, can you guesstimate where the Audubon preserve is going to be? Pate: I can. Clark: Jeremy is coming. Trumbo: Mr. Chair, I have a question for Jeremy. Ostner: Mr. Trumbo. Trumbo: Was the Audubon Society notified of this tower coming in? Do we give them notification as -- they were here last time, I remember. Planning Commission November 14, 2005 Page 75 Pate: I doubt it -- right. Well, Audubon, I believe, well, they haven't taken ownership of that property, it's still under the ownership of the (inaudible) or the (inaudible). Trumbo: There was a representative here? Ostner: I believe, last time Audubon was not present. There was a man who was familiar -- ?: I think Mr. Hanklin? Ostner: No, Mr. Hargess was his name. He was very familiar with the project and he simply, I believe, came as citizen, I don't think he was representing any interest. Pate: Ostner: Pate: Mr. Tarvin and Mr. Hargess were here representing Legacy LLC. Okay. Excuse me. Well, I would mention that we don't require EPA reports as part of our conditional use requests. That's something that they have to go through as part of their due diligence in getting all the required state and federal permits for these. They argument, Mr. Williams, could probably attest to this, that argument is not really part of the conditional use application. It's more left to the state and federal authorities. Ostner: Yes, I understand that, but our charge is appropriateness, and when, for me, when I see a migratory bird act, that I'm not sure this satisfies, my gauge of appropriateness is diminished, I'm just not sure. I would like to see more. I think Mr. Graves said it well, I'm really glad this has moved southward away from the old site, but it hasn't moved much in my mind. Maybe it's moved enough, I don't have enough information, this -- I believe on Page 32 or 34, you list the migratory requirements, but then you basically just end it there and leave it to me to see whether you all meet them or not, Page 35 -- 34, 35, 36, I believe Ms. Anthes read a bunch of the caveats, the requests, some of which you all meet. It asks for towers to not be taller than 199 feet tall, you meet that. It asks that you not go do the clusters -- well, Mr. Pate read several of these. However, this report, this proposal you all have given us, does not address the birds in the proximity, so -- Anthes: Mr. Chair. Ostner: Commissioner Anthes. Planning Commission November 14, Page 76 Anthes: Reynolds: Anthes: Reynolds: Anthes: Reynolds: Anthes: Reynolds: Anthes: Graves: Ostner: Graves: 2005 What I'm looking at is that the person that objected in the letters was the developer that will be developing the land that contains the Audubon property. Yes. If you guys would like to go and talk to Audubon, and have them look at this and say, you know, "boy, this is outside of where we expect anybody to go," and is willing to talk to us about that, I'd love to hear it. Well, we would be glad to do stuff like that and we would have actually invited Dr. Porter and Mr. Jenkins, they're presenting papers tonight someone else, they could not be here. We've had several conversations with him, like I said, he's been to the site and assessed it, and, you know, says that it imposes no environmental danger. And who is that again? This Dr. Jim Porter and his assistant, Larry Jenkins, they're -- Dr. Porter is with Arkansas State University and Larry Jenkins is with the University of Oklahoma. That's the report you just gave us? Yes. The problem with that report is that it didn't cite the act that we're asking about, nor did it address anything about migratory bird patterns. It only talked about wetlands and invader species. Mr. Chair. Okay. Mr. Graves. I'm concerned, and I would invite the city attorney to comment, I'm concerned about straying too far a field of what the Planning Commission is charged to do. We are charged to determine whether this is appropriate -- an appropriate use in that area, granted, but I don't think any of us are qualified, will be qualified, could be qualified, to know whether migratory bird patterns, how they work, and whether this is going to -- whether this is going to present a problem, any more than I know how to go and assess whether there's underground storage tanks there or what other environmental affects it might have. We -- on every project we pass, rely on the state regulators or county regulators, or even the local planning staff, city engineering, to perform their functions and to make sure that Planning Commission November 14, 2005 Page 77 these projects meet the regulations and the laws in the State of Arkansas, the city of Fayetteville, the Washington County, so on and so forth, and I'm not sure that we even know what to ask for or that the applicant would even now what to do if we told them we need to know more about migratory bird patterns. We know that it's a federal law. There's a condition in there that says they must comply with federal law in constructing and using this tower, and I'm confident that our federal regulators will fulfill their responsibilities in performing that analysis. I'm not sure that there's anything -- I'm not sure I would even understand what it was they were presenting it to me if they figured out what it was to present, and I'm not sure I want to hear about it anyway. I'm concerned about birds, as everyone else is, I'm concerned about the particular piece of property to the north, but I don't understand, and don't want to research what "near" means in a federal regulation on migratory birds, and I don't think any of us here are qualified or charged to do that. The question would probably be more general in my mind, is it appropriate to have a cell tower, given that there's a C-PZD with a conservation area -- a nature conservation area on it in proximity on the one -mile map from a planning standpoint, and from a standpoint of whether federal regulations and other regulations are met I think that we just need to put a condition in there as it is and allow other people to do their jobs, like we're trying to do ours here, and I'm not trying to be little anybody's position or argue with anybody, or anything of that nature, I just -- I'm not sure that we're qualified or could be qualified, and I'm not sure what it is that we would be asking this applicant to try to do. And I'm sure of one thing, that it would be really expensive in relationship to the construction of a cell tower. Clark: Mr. Chair. Ostner: Commissioner Clark. Clark: So, Larry Jenkins, is that the one in Oklahoma? Reynolds: Yes, ma'am. Clark: So probably didn't have any idea that Audubon was developing any type of -- Reynolds: Actually, we've had -- yes -- he does. We've had numerous discussions with him on this project. He's been here on this and we've talked specifically about this issue. And that's in one of the ways that they've been involved in this process for almost a year in this site, and moving it, and then moving it again, and now where we're at. Planning Commission November 14, 2005 Page 78 Ostner: I'm still not -- excuse me, go ahead. Clark: I'm just a little concerned about how the Audubon -- what their take would be, the Audubon folk's take would be on the proximity, I mean, they were here last time, they spoke last time. I don't remember exactly how far away they wanted it to be and I don't know that this movement would satisfy their criteria. You know, I use cell phones, I drop calls there all the time, exactly the part you're talking about. Reynolds: Sure. Clark: So, I feel your pain, but I'm not sure I have enough information in terms of how far away this is from an area we're going to be inviting a whole lot of birds to come and live. I don't know. I wish it was further away. Ostner: Thank you. I do too, and I don't think we're asking that much. There are qualified people -- Mr. Jenkins is one -- Reynolds: Yes. Ostner: -- is (inaudible) answer our question, he has not. He gave us a nice report answering the environmental question. Reynolds: Yes, he answered all the questions that have been asked of him. Ostner: That's right, he was not asked about migratory birds, he was not asked about this migratory bird treaty act, and I would like for you to ask him, and I wish I had that in my hand, and I bet I would vote for your conditional use. Reynolds: Sir, I don't know what to tell you, other than he's been to the site, he's approved that, and he's one of the co-authors of the rules that you're reading there. Williams: I have not heard any evidence whatsoever that there's any violation of migratory bird act here. I've heard no one say that this is in the flight way or endangers birds in any way. To turn down one of these requests for a cell tower, you actually have to have facts to support us, or else what we're doing is probably not legal under the federal regulations and the federal law, which does give us a little bit of leeway on cell towers, and I think that probably the last time with it being so close to the wetlands, I think there was much more of chance that we were in the right to consider that. Now they have something that's almost a mile away with no evidence that birds fly in that direction. You know, there might be a way that you could legally table this to find more facts, but it really would be Planning Commission November 14, 2005 Page 79 up to the city to show that there is a problem more than them trying to prove there can be no problems. I certainly think we don't have any facts that I've heard tonight, I've heard concerns, but I've not heard any facts that would justify voting no on this conditional use in relation to migratory birds. Just because there is some land that has been set aside for an environmental group, probably the Audubon, but not necessarily, but some environmental group -- nonprofit group, to manage the wetlands in there. So that concerns me a little bit I think that you could possibly table this to try to see if there's some way some body could come up with some evidence that this could possibly endanger migratory birds, but I certainly don't think that we have any fact before us tonight that would justify a no vote. Anthes: Mr. Chair. Ostner: I appreciate that Mr. Williams, however, on our allowances, our ability, our authority, 3 (b.) says that the granting of the conditional use will not adversely affect the public interest. I believe there has been public input, public push, public involvement through the Council to create that tract of land that Audubon will be obtaining and putting under their tutelage. And all I'm asking for is further evidence, further facts, because I'm not convinced. You're right. I have not heard facts saying that this tower will ruin migratory birds. There are several, several items listed here in this migratory bird treaty act that are wide open, that have not been addressed at all. The proximity to wetlands, a wetland is very near by in my mind, maybe it's not nearby to others, so I'm really a little confused. Even if this migratory bird treaty act wasn't in front of me, I would still be very hesitant to vote for this, simply because I'm not convinced of the planning principles involved in the way we build our town. Anthes: Mr. Chair. Ostner: Commissioner Anthes is next. Anthes: Again, I just want to state for the city attorney that I agree with you. We haven't heard any facts, and that's what I'm concerned about. That the citizens of Fayetteville have had a lot of input into what was a very controversial project that's very nearby here, and I just want to make sure that we've asked the right questions and that we get enough answers, and hopefully those answers say, "it's nowhere near here, it's plenty far away, it's great," and, you know, then we can all feel real good that we've done right by the citizens of Fayetteville by asking the right questions in being able to vote for the project. That's what I was hoping to get, I was hoping to get enough information that would allow me to be very clear about my positive vote. Planning Commission November 14, 2005 Page 80 Vaught: Mr. Chair. Ostner: Mr. Vaught. Vaught: I'd like to ask the city attorney or the applicant. Who -- the migratory bird treaty act, who enforces that? Is it the FCC? Reynolds: Yes, this would come under approval of the FCC and the U.S. Fish and Wildlife. I believe the U.S. Fish and Wildlife would be the enforcement -- Vaught: So you -- Reynolds: -- agency. But they -- FCC and industry people -- several people went into the writing of these rules. Vaught: So how do you -- how does that process work? Reynolds: I'm sorry? Vaught: How does the approval process under this act work? Reynolds: This is not currently an act, this is a best practices -- this -- if you'll notice in the page before, this will be incorporated at a future date into a director's manual, but as of now, this is not any kind of an act or an official anything, this is a best practices. Vaught: I guess what bothers me is this isn't a federal law, it's not a state law, it's not a city law, yet we're putting so much weight on it, and that's my main concern, is -- that -- I don't know if the city attorney wants to elaborate on that all. Am I in the right in saying that? Or -- we don't have a law saying we must follow this act, this federal government doesn't have that law, so I'm concerned we're treading on -- treading too far a little bit in putting all of our eggs in this basket. You know, I'm probably going to get crushed, and I understand your point, and I don't know -- in my opinion I don't know what additional information they'll come up with in two weeks to change anyone's mind. I mean, if there's not some easily assessable study, they're not going to go do a study on migratory birds in this area in two weeks so we know the answer, and that's what my main -- another one of my concerns, is what information do you guys want in the next two weeks to change your mind? What would do it? And it's probably going to be the writer of that report, I forgot his name, is it Mr. Jenkins? Reynolds: Yes. Planning Commission November 14, 2005 Page 81 Vaught: Or one of the other people that he -- or who is in the same profession and coming forward and saying "in our opinion, there's no birds." And then we're at the same place as what the report said -- pretty much. So, that's one of my main concerns with this. And I understand your public interest -- the Audubon has not taken ownership of that land yet, and they really might not, there might be another nonprofit, so -- but we don't know what's going to fully become of that land other than conservation and (inaudible) wetlands. Ostner: Since I'm put behind this I would sort of like to respond. I'm not seeking for the migratory bird treaty act to be enforced. It is a list of suggestions. If we can get off the act for a second, if there were a list of suggestions from a bird guy in front of me, I would similarly want this applicant to respond to them. Reynolds: Okay. Ostner: So you've got a specialist, you've got a list of suggestions from the Department of the Interior, they've got to come together for me, and I do believe that's being responsible, I don't think it's thin ice. I think it's answering to our town, our fellow citizens, so that's where I stand. I think it's very simple. We almost failed a conditional use because of noise. I mean, they're -- we have broad discretion here, not unlimited, but we do have the ability to turn down conditional uses when it's against our better judgment. I'm hesitate, I would like to vote for this, I need more facts. Graves: Mr. Chair. Ostner: Mr. Graves. Graves: I would just carry the discussion that Commissioner Vaught had just a moment ago just a step further. I'm not even sure if you commission a study of some sort -- right now I don't even know if migratory birds live out there, or if they will live out there after this becomes the nature preserve that it's suppose to be. I don't know how those migratory birds would be affected whenever the Springwoods PZD phases start going into place. I mean, everything that goes in in that area could potentially affect patterns of birds, so even if you took a snapshot of what birds are doing right now, I don't know that it would mean anything six months from now, and I just don't think it's within the purview of what we do to get into that type of an analysis, any more than it is for us know what type of joints are going into the construction of the frame of a building. I just -- I have a real problem with us becoming bird enforcers and I don't think that's what we do, I don't think we know how to do it, and I don't know that anything that this applicant came up with would even mean anything Planning Commission November 14, 2005 Page 82 in a short period of time because of what's going on in this area. And it's somewhat instructive to me that Audubon is not here, just because those two gentlemen couldn't be here, that doesn't mean that someone couldn't have been present, or whoever, whatever environmental group. We had several people with concerns with the last location and they were here, and they made comments, and with respect to this site. Apparently the interest and the excitement about this particular location is not as great because they're not here, and I don't think it's because they left early, they're not here, and there are plenty of environmental watch dogs in this community, as we know. And I'm not saying that's a 100 percent weight here just because somebody doesn't come, but it seems somewhat instructive to me that we had people with various concerns about the last location, and a number of people that were present for that hearing, and we don't tonight. And again, I don't know that it's appropriate for us to try to figure out what those patterns are or what they might be at some point in the future. And I don't think it's incumbent on us to require an applicant to try to put into practice practices that haven't received the stamp of federal law, or whatever law, apparently this maybe an area that's still up for discussion or -- as to what's appropriate to be legally enforced, because this hasn't even been enacted into law. But I just think even if it had been a law, that we -- we all the time rely on other departments and divisions, and regulators to do their jobs just like we do ours. And this just seems to be - - it seems to me to be not a good reason to hang this conditional use up. And I think we're asking them prove a negative or prove something that can't be proven, or if it could be proven it's going to change anyway, and it just seems really unfair to me. Vaught: Mr. Chair. Ostner: Mr. Vaught. Vaught: In addition or response to your comments. On the current conditions -- the previous conditional use we were tying it to a law that we have on the books, the noise ordinance that you cited, and that's the difference for me. These are some best practices guidelines, which some of these in our code we tried to address, no taller than 150 feet. One of them -- they say nothing of over 199 feet. Maybe it's something that we need to look at in our current code if we want more controls in this area and try to implement some of these best practices. But right now I just don't see our in using that as a reason to deny the conditional permit -- conditional use. I'm not saying, I'm not addressing the other things, but I'm saying on that issue I don't see our ?. That's my concern. I feel like we need to give some valid reasons if we want to vote against this. Planning Commission November 14, 2005 Page 83 Ostner: Thank you. The noise was one of many reasons I voted no on a conditional use. It was not my only reason. Vaught: It was one you had brought up. Ostner: Conditional use gives us broad discretion and not the only -- we don't have to hang our hat on one reason. Vaught: Mr. Chair. I believe that the city attorney last time addressed the FCC has passed some regulations concerning cell towers and their conditional uses that specifically come into play here where we don't have as discretion on them as we do on other conditional uses. Is that correct, Mr. Williams? Williams: Yes, they have restricted the city's powers in this particular area. We still have some and that's why we have a conditional use, but we don't have unbridled discretion which in some conditional uses you almost have unbridled discretion if you think it's not good for the public interest, you just vote no, and you don't have to be very specific. In this particular area, since they have rights too under the federal law, the people wanting to build these cell towers, because it's public policy of the United States to promote this. We have to have actual facts showing why it is inappropriate to build in this particular location and you have done that in the past, there have been some locations accepted, some locations rejected. But the problem I'm having as your legal counsel here, is that I, you know, we have expressed some concerns, but there have not been any facts that anybody has expressed from the city that would support those concerns. They're just -- they might be valid concerns, but we have nothing to support and that concerns me, and that's why I said -- I was not saying you had to vote for this. I said I would not recommend you voting no, you may vote to table, or you may pass this, but I've heard no facts that I would be able to get up in court and say "we shown that building a tower there, the Planning Commission turned it down because it would be in violation of the migratory bird act." There's nothing here to show that a single bird would be endangered, and therefore, we don't have a factual basis at this point to turn it down. I'm not saying that you have to vote yes, you can still vote to table if that is your desire and say we want some additional facts, but please give me something if we turn it down that I would be at least able to argue that we had a factual basis to turn this down. Ostner: Thank you, Mr. Williams. So the caveat on our -- in our packet does not really apply, that under 3 (b.) quote, that the granting of the conditional use will not adversely affect the public interest? Planning Commission November 14, 2005 Page 84 Williams: That is one of the parts of the conditional use that's in for every conditional use. That is just one of our general terms that we use in everything, but I think when you're talking about cell towers, we are held to a standard where you better establish some facts to show that it is in violation of the public interest. Yes, the public interest is considered in every conditional use, but in this one in this area of the FCC and cell towers, and the public policy of the United States for most cell towers, we have to have particular facts so that we will not be determined to be arbitrary and capricious, because, yeah, we're having concerns and we don't have anything supportive, but we have concerns. And I don't think that -- that might not be enough. I don't want to say too much that will be quoted back to me by the judge, but I would be much more comfortable if we actually had some facts in this case before anybody would vote no. Ostner: So would I. I would love more facts. Clark: Mr. Chair. Ostner: Commissioner Clark. Motion: Clark: I move that we approve Conditional Use 05-1785 with conditions as stated. Ostner: I have a motion to approve conditional use -- Graves: Second. Ostner: -- by Commissioner Clark. A second by Commissioner Graves. I was going to move to table for more information. Williams: That's still in order. A motion to table takes precedence to the primary motion. Motion: Ostner: I'm going to offer a motion to table this conditional use. Williams: Is that to a date certain? Ostner: To the next possible meeting. Anthes: I'll second. Planning Commission November 14, 2005 Page 85 Ostner: Okay. Vaught: Mr. Chair. Ostner: Mr. Vaught. Vaught: On the motion to table, the reason I will not support -- Ostner: Mr. -- applicant had one question, if you don't mind? Reynolds: I do have a question, and that is if this motion to table is passed, what information do you want to see? I've answered every question you have on every checklist that's four pages long, included in the first four pages of this booklet. We've applied with every federal law. We've done everything we can all the way down to producing an expert to stand here where I am saying here is 1,000 feet. Vaught: Mr. Chair. Ostner: For me -- for me, since I made the motion, this gentleman you've hired -- Mr. Whomever, with Paragrain, if he could write a letter and say, "I have looked at best practices with migratory birds, or I'm a certified bird guy, or I'm affiliated with Audubon, and I know something about this bird pattern, and I can say this is safe, this is fair, this is not impeding something." Someone who's smarter than me, as Mr. Graves has stated, we are not the experts, but there are experts out there. That's all I'm asking. Reynolds: Okay. Anthes: Mr. Chair. Ostner: Well, I believe Mr. Vaught was interupted. Vaught: Like I said, the reason I will vote against this is because I don't know what additional information can come from in two weeks, and I don't know if just a letter from him stating some of the same facts he probably has in his report, but most of us can't probably understand, we don't understand migratory patterns of birds, or a lot of these things, will do any good. I don't know if -- to me they've met the code, the requirements they're supposed to, they've met the federal requirements, they've met our requirements. I don't know what, until we can change my mind on that, I don't even know if they come in and say it will kill thousands of birds a year, if -- if we turned it down on that, if he still couldn't sue us and win. Because -- in my -- in my limited understanding, and the city attorney can Planning Commission November 14, 2005 Page 86 clarify me on this, I don't know if that's something we can take into account if it's not a law. Williams: Though, I think if he would come in and say this is interfering with the migratory bird act, and is violating it by building it in their flight way, then I think that, probably, that would give us pretty strong grounds. I guess, the biggest problem that he might have is, have these migratory bird flight ways been so narrowed and defined in this area, that he's going to be able to say anything besides that, usually these migratory flight ways are very, very wide, and, you know, if you get near some of the places down in near the Delta where they -- where there's preserves for the waterfowl, then I think you could be pretty clear. But when you get out into the areas like we have here, I wonder if they have any of these mapped out, and if they don't have them closely mapped out, then I don't know what -- how that's going to help us. Ostner: It sounds like you might be the expert tonight. Vaught: Can I follow up -- the migratory bird act is not a federal law? Williams: Well, I don't know. I think that, you know, it depends how far the facts go. Right now we don't have any facts. I think if we had -- you know, if he came back and said it was going to kill thousands of birds, I think that we would have something to base it on that maybe -- and if then if he said if you moved it, you know, a half a mile it wouldn't, but I don't -- I just don't know if any experts going to be able to say anything like that. Vaught: And that's my point, I don't know in two weeks if we're going to know that. And I don't know who can say that in two weeks. Ostner: Neither do I. Reynolds: If I may? I mean, the whole phenomenon of bird strike, I mean, it's a highly subject thing as Mr. Williams says, no one can even tell you what definitively why the birds flies into a tower, you know, why does a dog howl? I mean, they say that with the phenomenon of birds strike that it's based on a possible of two principles, one is the period of the red light kinda almost like a bug to a bug zapper, that it will see the red light and the period of the red light will attract them, and it will fly into it at night. Another theory, especially with the * broadcast towers, is that it affects the -- all the bird's natural compass whenever large, very high intensity radio frequencies pass over the guy wires that support those kind of towers and it creates a very localized, strong, magnetic field around that wire that affects the birds sense of direction, if you will. I mean, both of these -- both of these explanations sound plausible and not plausible at the same Planning Commission November 14, 2005 Page 87 time. But our tower doesn't include either, doesn't have any of these things. The only thing it is, is within 2,000 feet of a wetland that going to be surrounded a 122 -acre commercial and residential development. Trumbo: Mr. Chair. Ostner: I'm not sure the applicant is finished. Trumbo: Excuse me. Reynolds: I mean -- that's -- and I said, other than to define mere* I don't know what other proof I can bring you, or information you can request. Ostner: Okay. Mr. Trumbo. Trumbo: I'd like to call the question. Ostner: Mr. Trumbo called the question. Will someone call the roll on calling the question? Clark: This is on tabling? Ostner: No, this on calling the question. No more discussion. There is a motion to table -- Williams: On -- well, actually the tabling question is what we're calling now, we're voting on now. You know, you can move for an immediate vote, and if you do and someone seconds it, then you take a motion and then you take a vote on whether you have an immediate vote. You don't just -- Ostner: So there's no vote -- to table? Williams: The other thing you can do is you say, "are we through speaking" even before you ask for that motion, and if everybody says you're through speaking, then you don't have to go ahead and take a vote on that. So, it's up to you, it's to the -- Trumbo: I would like to go ahead and vote, but -- if there is more people that would like to speak -- that's certainly fine. Allen: ?: That means that we're -- We're voting to call the question. Allen: Right. But -- Planning Commission November 14, 2005 Page 88 Williams: Only if it's been seconded -- you can also just say we're all through talking, and go ahead and vote on the motion to table if you want to. Graves: I second whatever it is that Sean just did. Williams: Okay. Ostner: The way I understand it, we should all vote now whether we should call the question. Williams: Yes. Ostner: Okay. Allen: But I have a question about calling a question. Ostner: That's a point of order. Point of order is allowed -- Allen: That if we vote to call the question, does that curtail all the rest of our conversation regarding -- Williams: Only on the table. Only on the motion to table. Allen: Okay. Ostner: Then we'll immediately vote on the tabling issue. Williams: It requires a two-thirds vote. It requires six affirmative* votes to pass. Ostner: Okay. All right. Mr. Lack? Lack: Yes. Osmer: Ms. Clark? Clark: Yes. Ostner: Ms. Anthes? Anthes: No. Ostner: This is on calling the question. I will vote no to call the question. Allen: Yes. Planning Commission November 14, 2005 Page 89 Graves: Yes. Vaught: Yes. Trumbo: Yes. Williams: It passes. Ostner: Okay. The question has been called. So we will now vote on whether we shall table. Williams: The motion to table. Ostner: The motion to table. Mr. Lack. Clark: (inaudible) mean. Allen: Without conversation? Ostner: No, no conversation. The question has been called and -- Williams: This is just a motion to table until the next meeting. This is -- Clark: And what vote does that require? Ostner: A majority. Williams: Just a majority. Five votes. Roll Call: The motion to table CUP 05-1785 fails with a vote of 2-6-0, with Commissioners Lack, Clark, Allen, Graves, Vaught, Trumbo voting no. Commissioner Myres was absent. Williams: Okay. You now have the original motion to approve the conditional use, is before you. Ostner: So the motion to table fails. So -- Anthes: Mr. Chair. Trumbo: Mr. Chair. Ostner: Commissioner Anthes has been waiting. Trumbo: Go ahead. Planning Commission November 14, Page 90 Anthes: Williams: Anthes: Williams: Anthes: Allen: Ostner: Allen: (Laughter) Allen: Clark: Ostner: Graves: 2005 The statement that I wanted to make before was that I wasn't asking the applicant to go to any more trouble. I believe the applicant had a full report. What I was wanting to do was have the two-week break to allow the person who gave us the negative comment, the Audubon Society, and staff, to come up with some way to answer our question, and if they couldn't, then we would have a statement of fact that attorney Williams would allow us and that's it. So, I have a question for the city attorney. I don't feel like I have enough information to vote yes for the tower, but from what you're telling me it's also very difficult for me to vote no. If that's the case and I really would like more information, do I abstain from this vote? You could either do that, you could try to express why you would want to vote no, or vote yes. I really don't want to vote no. I want to have the right information that will allow me to vote yes. Then you can abstain if you feel like you can't. Okay. Mr. Chair. Commissioner Allen. Just to through another little kink into the works, the last time that we talked about a cell tower, we were talking about great big huge (inaudible) pine trees and enormous clocks -- -- and at time I mentioned that I figured that some day technology will make cell towers be extinct, and so I wanted to ask the motioner if she would except a amendment to the motion to -- Condition Number 4, that if that kind of technology is ever developed, that they would alter the tower, it will be modified to adjust to the technology. Absolutely. Does the seconder accept the -- Sure. Planning Commission November 14, 2005 Page 91 Ostner: Okay. So maybe Condition Number 4 might read an extra sentence. If in the future new technology allows a shorter pole or possibly no pole, but this pole will be shortened or eliminated to meet the new technology. Clark: Absolutely. Ostner: Does that sound fair to the applicant? Graves: Mr. Chair. Ostner: Thank you. Yes, sir. Graves: There's actually some language in the migratory bird treaty act that says, on Page 35, towers no longer in use or determined to be obsolete should be removed within 12 months of cessation of use. Might I suggest the use of some type -- (Laughter) Ostner: I will remind you that these rules are suggestions. Graves: I hear you. Ostner: They do not -- do not bind anyone. (Laughter) Graves: No, they're not binding. Ostner: (inaudible) confirming to Ms. Allen. Vaught: It may be a good way to phrase the condition. Graves: I was suggesting the phraseology. Ostner: Thank you, excuse me, I misunderstood you. (Laughter) Clark: (inaudible) superior -- Allen: Williams: The first notice will be amendment. I thought mine was quite adequate, but (inaudible). Planning Com November 14, Page 92 Clark: Ostner: Williams: Pate: Ostner: Reynolds: Ostner: Reynolds: Ostner: Reynolds: Ostner: Reynolds: Clark: Pate: Ostner: mission 2005 Even it's accepted (inaudible) -- accepted as a friendly -- Yes. All right. If that's okay with the people that wrote the conditions. Yes. Okay. Since the applicant is curious, I'm also interested on Page 32, you've asked me specifically what you need to do in two weeks. That second large paragraph, service personnel, which I'm thinking is you. Yes. "May become involved in this review -- in the review of proposed tower sightings and or in the evaluation of tower impacts on migratory birds through national environmental policy act review," specifically, sections 1501.6, opportunity to be a cooperating agency, and 1503.4, duty to comment on federally licensed activities for agencies with jurisdiction by law, in this case the MBTA, or because of special expertise. This is basically, instead of making the law asking for a voluntary compliance, that's happening a lot. There are a lot of other rules doing this too. Would you look into that? I will. If you could do something voluntarily with this, I might just be convinced. But your participation in these rules would be very helpful. Okay. We can certainly do that. Okay. So I would echo Commissioner Anthes, that I would like to vote for this and I think that's a great idea that people with the adjoining piece of property, I believe his name is Mr. Haynes, speaking for Legacy LLC, if he could clarify in a letter why he is not happy or what would be required for him to be happy, or something. That's -- I mean -- Didn't we just vote down tabling it? Yes. What if it fails? Planning Commission November 14, 2005 Page 93 Allen: Are you asking him to volunteer to do this regardless of the -- Ostner: Yes, I am. Reynolds: And -- and (inaudible) we most certainly (inaudible) Ostner: Thank you, thank you. Clark: Mr. Chair. As we sit here at a quarter of 10:00, I believe anybody in the city of Fayetteville had time to get here and comment on this. (Laugther) Clark: So I'm going to call question. Graves: Second. Ostner: All right. We need to vote on calling the question again. Roll Call: The vote to call question is 8-0-0. Commissioner Myres is absent. Pate: Vote for recommendation of approval. Ostner: All right. Yes. Roll Call: The motion to approve CUP 05-1785 carries with a vote of 6-1-1, with Commissioner Ostner voting no and Commissioner Anthes abstaining. Commissioner Myres was absent. Ostner: Motion carries with five, I believe. Williams: Yeah, it was 6 to 2. Ostner: Thank you. Reynolds: Thank you. And we will look into that. Ostner: Okay. Allen: Thank you for doing that. Ostner: Are there any announcements? Pate: Yes. The agenda session scheduled for Wednesday, November 23rd, if you will remember, has been moved to Tuesday, November 22nd, Room Planning Commission November 14, 2005 Page 94 326 of City Hall. That will be followed by the working session for the Downtown Code and adoption and amendments, and just wanted to let you know that. Ostner: Thank you. Clark: Is that open to the public, Jeremy, that work -- Pate: It is. We will not be taking public comment and we've circulated petitions, and things of that nature, but it will be a working session for the Planning Commission. Any one is invited to attend and observe. ?. Ostner: The beat goes on. On that same note, at that same meeting we were -- I believe Mr. Vaught - Vaught: Yes. Ostner: -- was requesting of our staff to have also have Hillside. Vaught: At the next meeting? Ostner: Yes. Vaught: I was talking about moving the Downtown Master Plan. Osmer: Excuse me, that's right, that's right. Mr. Vaught made a request to move the Downtown Master Plan forward -- with that working session will be without further staff information. It will be our working session with what we currently have in front of us -- staff is -- on Master Plan. Vaught: On specifically -- and on specifically, I believe, the use unit or the -- Pate: Scheduled -- and whatever is deemed as -- we'll schedule the first day's activities (inaudible). Ostner: We have plenty to do, however, staff has informed me that they will not be presenting new information. Vaught: I still think there's (inaudible). Ostner: Oh, there's plenty to do. I'm just responding to your request. Clark: How we don't specifically consider approving the zones? Planning Commission November 14, 2005 Page 95 Osmer: We are welcome to without any further new maps or information from staff. I mean, we look at that, but specific requests have been made. Graves: Mr. Chair. Ostner: Yes, Mr. Graves. Graves: I think what Commissioner Clark was referring to, that we had talked in terms of looking just at the particular different -- Clark: Uh-huh. Graves: -- the four zoning classifications and the use units that would be allowed within those, and wouldn't need maps or anything for that necessarily. Osmer: Yes, absolutely, there's a lot we can do. Is there any further announcements? Okay. We're adjourned. Thank you guys. Graves: Thanks.