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HomeMy WebLinkAbout2006-02-13 Minutes (2)MINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on February 13, 2006 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN LSP 06-1912: Lot Split (LINDSEY, 259): Page 3 VAC 06-1914: (JOHNSON, 256) Page 3 MDP R-PZD 05-1636: Master Development Plan Residential Planned Zoning District (WELLSPRING, 400/401) Page 4 Approved Approved Forwarded CUP 06-1893: (SMITH 2-WAY/LEVERETT, 405) Failed Page 10 R-PZD 06-1883: Planned Zoning District Forwarded (ABSHIER HEIGHTS, 407 Page 26 ADM 05-1839: Administrative Item Failed (BY-LAW AMENDMENT) Page 65 CUP 06-1913: (PENGUIN ED'S, 523) Approved Page 62 ADM 06-1937: Administrative Item Approved (ARCHIBALD YELL BOULEVARD ROW DEDICATION VARIANCE) Page 62 Planning Commission February 13, 2006 Page 2 MEMBERS PRESENT Nancy Allen Jill Anthes Sean Trumbo James Graves Christian Vaught Audi Lack Christine Myres Alan Ostner Candy Clark STAFF PRESENT Jeremy Pate Suzanne Morgan Brent O'Neal Jesse Fulcher Brent O'Neal/Engineering CITY ATTORNEY: Kit Williams MEMBERS ABSENT STAFF ABSENT Andrew Garner Planning Commission February 13, 2006 Page 3 Welcome to the February 13, 2006 meeting of the Fayetteville Planning Commission. If we could have the roll call please. Roll Call: Upon the completion of roll call Allen, Anthes, Clark, Graves, Myres, Lack, Trumbo , Ostner, and Vaught are present. Ostner: The first item on our agenda is the approval of the minutes from the January 23, 2006 meeting. Anthes: I have a couple of comments to submit. Clark: I make a motion to approve. Myres: Second. Roll Call: The minutes are approved by a vote of 9-0-0. Ostner: Our consent agenda consists of two items: LSP 06-1912: Lot Split (LINDSEY, 259): Submitted by DAVE JORGENSEN for property located at 3141 DOYNE HAMM RD. The property is in the Planning Area and contains approximately 8.59 acres. The request is to divide the subject property into two tracts of 6.34 and 2.25 acres. The second item is VAC 06-1914: (JOHNSON, 256): Submitted by MCGOODWIN, WILLIAMS & YATES, INC. for property located at E OF ROM ORCHARD RD., N OF OLD SKILLERN RD. The property is zoned R- A, RESIDENTIAL -AGRICULTURAL and contains approximately 0.33 acres owned by Johnson and Rice. The request is to vacate a 20' utility easement. Ostner: If any member of the audience or any commissioner would like an item removed from the consent agenda, please speak now. I will entertain motions to approve the consent agenda. Allen: I move for the approval of the consent agenda. Vaught: Second. Ostner: Any discussion? Will you call the roll, please. Roll Call: The consent agenda is approved by a vote of 9-0-0. Planning Commission February 13, 2006 Page 4 Old Business: MDP R-PZD 05-1636: Master Development Plan Residential Planned Zoning District (WELLSPRING, 400/401): Submitted by Critical Path Design for property located at Rupple Road and Hwy 16. The property is zoned RSF-1, RESIDENTIAL SINGLE FAMILY, 1 UNIT PER ACRE AND R -A, RESIDENTIAL AGRICULTURAL, and contains approximately 152 acres. The request is to approve a Master Development Plan - Planned Zoning District for a mixed-use community of residential and commercial uses, not to exceed 1,175 dwelling units and 548,000 square feet of non-residential space. Pate: This item was presented at the last Planning Commission meeting on January 27`h, I believe. The item had to be tabled because of notification requirements. There have not been a lot of changes since that time, although you do have new packets in front of you. The primary change occurred in the planning area entitled "Market District" which is the only planning area that runs onto Wedington Avenue. The square footage of that usage did expand somewhat as well as the planning area that was requested by the applicant also at the time, and made note to the Planning Commission at the time that this item was tabled. There were also some other comments that Staff had placed within the Conditions of Approval that have also been cleaned up and revised per Staff recommendation. With that Staff if recommending forwarding this R-PZD for Wellspring to City Council with a recommendation of approval. Ostner: Is the applicant present? If you would introduce yourself and give us your presentation. Jacobs: Good evening, my name is Todd Jacobs with Critical Path Design. I would like to take a few minutes — I have some slides that I'd like to go through - the main ideas or the design of what we are talking about with Wellspring. Initially, Wellspring was designed around the idea of marketing towards the baby boomers. The concept is to provide density form, walkability and low maintenance, houses that require low maintenance, the POA takes care of the yard; condos, townhouses. From our pro forma, that is the way the market is likely to be going, this is what this community is designed for. The first slide is clustering of the units. As you can see, starting up here with town homes cluster, and garden homes for individuals who want more of a garden home than a town home. These are four-story condos and it shifts down to mixed use with commercial on the bottom: offices on the second floor and living above that, and down to purely office space. The idea behind the density is the walkability to the main street to the mixed use area. From this area here to that area is a quarter mile walk. On the outside of the green space farther out, it is a third of a mile. Between a third of a mile and a quarter, you either have access to the main street or to the trails or corridors that can Planning Commission February 13, 2006 Page 5 give you access throughout this site. This site is 152 acres. Of that 26% is left as open space. We have really tried to work on how we can buffer the existing residential area and work with the site amenities to keep them more for what the people are looking for — a natural setting. Basically we are trying to design a site that provides for a place to live, work and play, all in the same area without generating as much traffic as possible. These are some of the elevations that show the typical idea of what they might be: The garden homes in red are in the northwest corner; they are separated by tree preservation area which is the natural drainage coming through over to Bryce Park. The town homes are in the orange in the northwest corner of the property here and along here facing onto the community green space. Condos are in the brown surrounding the outside. We pushed the parking into the interior where it is not visible from the road and public streets. We provided setbacks to bring the condos closer to the road, to give that sense of space and feel to the project and the streets. The fourth slide is the market district — PA 6, which is the only piece which will face onto Wedington. A few slides that show the main points, the backbone of what we think this project is, the highlights. One, this is the main street, facing onto Rupple Road, comes along here and faces on Wedington. With that, these are the types of mixed use buildings that potentially you would see — they are three and four-story facing onto this road. Also, in the booklet, what we have done to keep control of this project if it leaves our hands, or potentially sold, in the booklet we show the build -to line, the right-of-way section, cross section, that we proposed when it comes back through under the preliminary plat or large scale. This type of section here, the buildings facing onto the road, ten foot, twelve foot sidewalk, on -street parking, a boulevard in the middle, and bike lanes. To help control that idea, in the booklet, for the setback is a build -to line vs. a 15' setback that we couldn't control what the project might look like in the future. This brings out all the green space for the project. What we are looking at here is a total of 40 acres, part of it park land dedicated to the City, part of it is community green space that the POA will maintain. This is eight acres here; this is a community green space that the town homes will face onto. Right here is the high point of the site, this has scenic views down to the pond and large trees. So we have tried to keep this area open to provide views down to the pond. This would be a clubhouse, more of a civic use for this neighborhood and it connects to the trail system. There are 21 acres of public park that will be dedicated to the City when it comes through as a preliminary plat. It comes down buffering the residential to the east, right through here — the public park, this is the clubhouse where the trail will come through going north and ending here. Hopefully with the realignment of Rupple Road, there will be a connection, but this trail will continue down to Hamstring Creek and make that connection, coming all the way through into Bryce Davis Park. Along with that, this area right Planning Commission February 13, 2006 Page 6 here is a total tree preservation. We have tried to work our design around keeping as many trees as possible with the lowest impact. That area is tree preservation. This northern half here where the drainage is and the trees you see, that is tree preservation that will be dedicated in the conservation easement. We do have a clubhouse on 1.4 acres. With the trail connection coming through, we hope that this will serve as a hub, with the trails from Bryce Davis coming all the way through Hamstring. We can have public restrooms and have access into the condos and mixed use. Once this ties into Bryce Davis Park, there will be fifty acres of public green space within the City. To clarify what we are going to do as far as road improvements: what is highlighted in blue is what we are committed to building in Phase 1 of this project. What you see in blue is Rupple Road from our property going all the way to the north. In our booklet we have clarified that our developer is committed to paying his share, his half of the boulevard. There is a potential of two traffic signals, one here, one here; four entries onto Rupple. The smaller roads here will also be built in Phase 1 to help prepare the infrastructure for future development. As far as Rupple Road goes, from right there to the end is 3/4 of a mile. To give you perspective of how much road we are going to be improving, from Wedington to where it ties in to Mount Comfort is a little over a mile. With this project we will be building 3/4 or .7 of that, which is a large impact and one of the reasons it pushes a little more towards the density to help pay for this project. But with that, we have tried to work in where we have boulevards through our project and hierarchy of public roads and alleys to help to create a grid system to move traffic and people through to the green space and mixed use. That's the presentation. Osmer: Thank you. At this point I will call for public comment. Seeing none, I will close the public comment and bring it back to the Commission. Anthes: Question for Staff — on page 20 of the Master Development Plan booklet, there is a street cross section or site section through the mixed use area. Is that cutting through the parking lot or is that a street section? Jacobs: The mixed use, that is proposed to go back to what that cross section would look like. The three and four story buildings with the build -to line is what this cross section would show you. Anthes: But what is in the space between the two buildings? Jacobs: That would be the main street. It would be this section here. Anthes: Is this to scale? Planning Commission February 13, 2006 Page 7 Jacobs: No it is not. This is just a conceptual drawing to show you the three stories, four stories. Anthes: If that is supposed to be a street section, it is way too wide. Question of Staff, this being a Master Development Plan, we are looking at rezoing in a basic site configuration of phasing. With approval of the MDP, does that mean that's the street we get and the connectivity we get, or are those things up for review in the large scale process. Pate: The more detailed comments, issues to address like connectivity, exactly what street cross section, those are all things that we look at at the time of development. Those are actually reflected in the Conditions of Approval, alternative cross sections for instance, as with Park West. We don't have cross sections that would meet our Master Street Plan requirement so we actually had to address that at this time, that alternative cross sections may be proposed at the discretion of the Planning Commission to review and approve at the time of development. The same thing with connectivity to other properties, north, south, east, west; actual access and locations; does it line up to the property to the west. Those are the types of things that we would look at time of development. Anthes: If our comments are about connectivity and streets, we have another chance to address those. Pate: You will, yes. Vaught: I have a couple of comments and two things I would like to see when it comes back through. First, I appreciate the work the developer has gone to. I think this is a great idea and a great potential use for this property. I also appreciate the willingness to put substantial infrastructure on the front end, the phasing, the time limit could bother me, somewhat, but knowing that they are going complete a good number of the streets and connectivity and also the park lands, I think it guarantees that they will have an interest to finish out the project. One thing I will be looking for is I would like to see on -street parking in the area around the public park. I think that is a great asset to have on that side of town. We have nothing like it. I would like to not have a situation like Gulley Park where the parking is so limited around that area, and hopefully this will be a park that the whole west side of town can use. Also, I didn't know, I'm sure we haven't explored the possibility of a southern connection to the development to the east, through the tree preservation area. It looks like there is a cul-de-sac stubbed out and with a project this big, looking for another east -west connection could be something of importance. I'm sure that is what Commissioner Anthes was going toward. I wanted to say those things for the developer to know some of the things we might be looking for. Planning Commission February 13, 2006 Page 8 Allen: Nock: I would like to ask the developer what efforts, if any, that you have made in your project to bring about some attainable housing in this development. Good evening, John Nock representing the development group. Particularly the price points on these homes, and if you are familiar with the Fayetteville market, you will know that our pro forma is always subject to change as things continue to move. We are looking at price points from $130,000 all the way up to $230,000, but the whole idea is not to try to be on the high end as far as quantity, size, but instead be able to do quality, and also smaller units. Because this is such a mixed use, you have an opportunity for a work/live/play situation which occurs - a lot of the units are designed where you could live upstairs and actually have a business below or you could have a situation where it is retirement, you could live in one of the flats and own it instead of rent, so the whole idea is designed towards what is not being met in the community right now. Ostner: Is that $130 per foot. Nock: I'm sorry, it is $135,000 to $235,000. Our last number was $134,900 if you want to have the exact number, but those could go down or up depending on what the actual sizes are, because as you know, when you are at this stage of a PZD, you don't know exactly 100% what the size will be, but you have a range. Allen: I certainly understand that, but I wondered if you were making efforts to try to have some of the units in the lower end, so they could be attainable. Nock: I think the word attainable is one I like to use, because right now in Fayetteville if you look at those units that are on the market, there are none in this price range and if there are, there are very few. In the $200,000 range, I'm thinking below $200,000, there are very few out there. There are no new ones that I see coming on the market. We hope it doesn't get flooded all at once, but I certainly would like to keep Fayetteville a diverse community, and the only way you are going to do that is to have all prices and quantities that you can get people into. Osnter: I have a question for Staff. On page four on this nice packet they have offered us, the roads highlighted in yellow will be built in Phase 1. Is that the complete section for Rupple Road? It was called out earlier as boulevard, double..... Pate: That would depend entirely upon whether the City Council at that point wants to build the other half and what development is going on along with Planning Commission February 13, 2006 Page 9 Clark: Pate: this development. It really depends upon exactly the environment in which this is being developed. I have a question. They stub out directly onto Wedington in the southeast comer. How far is that going to be from the stoplight that is at Rupple Road and Wedington? I believe it is over the requirement for — HTD's requirement is 1,000 feet minimum. I believe it does meet that requirement. It also is designed to try to align with the drive across the street, Ozark Electric. They have a lot of trucks that go in and out of there and so it is an attempt to align with that section. Clark: I think this a very good R-PZD and it is going to offer some diverse housing. Those baby boomers better come with some bucks if it is going to be priced. But it is large and anything that empties out onto Wedington concerns me in terms of traffic volume. It looks like you have some other entrances to the west which are great and I will look for some stub outs to the east as well, to try to funnel as much away from Wedington as possible, at a non -signalized entrance. That is my question. Anther 1 move that we forward MPD R-PZD 05-1636 to City Council. Clark: Second. Ostner: Any further discussion? Please call the roll. Roll Call: MDP R-PZD 05-1636 is forwarded by a vote of 9-0-0. Planning Commission February 13, 2006 Page 10 CUP 06-1893: (SMITH 2-WAY/LEVERETT, 405): Submitted by SMITH 2 -WAY RADIO for property located at 1250 N LEVERETT AVENUE. The property is zoned I- 1, HEAVY COMMERCIAL/LIGHT INDUSTRIAL and contains approximately 2.04 acres. The request is for a wireless communications facility on the subject property. Morgan: This site is located north of North Street on Leverett Avenue. The applicant requests approval to construct a 150' cellular tower in this location. It is somewhat of a unique site — the property is designated as mixed use on the General Plan 20/20 and it is currently zoned Industrial, although it is surrounded on the south by a bit of C-1 property and surrounding that RMF -24, and even further east of Gregg and west of Garland, RSF-4, with single-family residential developments. This particular site is located in the flood plan, therefore it is the low point in this valley. As you can see on the topography or the terrain profile handed out by staff, you can see the difference in the elevation between this property and the surrounding hillsides as well as where a 150' tower would fall in relation to these points. The applicant has indicated that Cingular has requested this monopole be located in this location. In 2002 the applicant requested, based on Cingular's need, a cell tower in a similar location in the northwest corner of Garland and North Street, or Garland and Wedington. This application was recommended for denial by Staff at the time due to the prominence of this location and the impact that a 150' cell tower would have. The item was tabled and then withdrawn by the applicant. In this application, it was stated that this was the prime location for coverage in this area. For this application, the applicant has stated that capacity is the primary reason for the request of this cellular tower, that the population has grown and an additional tower is needed. We do have a coverage map provided by the applicant in the booklet which shows how this cellular tower in this location would potentially alleviate some of the coverage needs in this area. Staff is recommending for a tower in this location; however at a lower height of 100' and we find that there are potential co -location capabilities. There has recently been approved a six - story master development plan at the former location of the corner of Garland and Wedington which may be able to be used in the future for additional towers which may help the coverage area in this location. Additionally, there may be other sites useful for additional capacity. With regard to screening, the applicant is proposing a vegetative screening around the pole. There is nothing on the site, no natural screening on the site as it is developed for industrial use. The camouflage isn't very practical in this location with regard to a flag, steeple, or some sort of clock tower. The applicant has proposed a painting scheme from green to sky blue so that it will blend with the sky as well as the proposed vegetation. Additionally, there is discreet 60' radio tower on the property that the applicant has proposed to remove with this request. Staff is recommending approval with the tower at 100' and twelve Conditions of Planning Commission February 13, 2006 Page 11 Approval. We have had five responses from those neighbors living within 500' feet which are all positive and we have not, as of yet, received any negative feedback. Ostner: Is the applicant present? If you would introduce yourself and give us your presentation. Reynolds: Dave Reynolds representing Smith 2 -Way Radio. Let me pass out some of this stuff here. The first single page that I passed out there. We met with Steve Mansfield this afternoon and talked to him about several different options about co -locating at his facility and inquired about the possibility of building a tower at his facility. After we talked about some of those things and looked at the property and discussed it, he has decided that he would decline at this time any interest in a cell tower co -location at his new facility. The second package is the responses to the notifications of the citizens in the affected area there. I think we received eight back and no negative responses. This is zoned industrial, it is surrounded by C- 2, RMF -24 and 40, above Gregg Street within a half mile radius, there are some single-family homes. But it is primarily in a long-standing industrial area. It will be screened on three sides at the base of the tower; two sides completely by industrial buildings, the third side will be behind a car wash that is there on Leverett Street, currently not used. This comes with all our standard things, the vegetation according to the City plans, the ten -foot wood privacy fencing and screening, all the things you looked at before. Staff mentioned the camouflaging paint scheme with this. I leave that up to you. I think this one might better be left gray since it is the industrial area and won't break the skyline on a couple of the sides. Whatever you feel that should be, we are amenable to that. With this we asked for 150'; Staff's recommendation was 100'. There is a little bit of a difference on this between us. This is one of our sticking points. We originally asked for 150' feet. In your package there, there is a letter from LeAnn Fager, the real estate and construction manager of Cingular Wireless/Oklahoma. They came to us a couple of years ago, 2002, and looked at the site there behind Harps and that seemed to be quite a problem with our application. We found a better spot here, in the meantime, since that withdrawal happened, a lot has happened in three or four years. The population has gotten bigger, more cell phones. So this issue with capacity at the VA water tower has become a real problem for them. She states in her letter that this is the busiest site in Arkansas. It has the highest percentage of call blocks of any site in Arkansas. They need some way to relieve this capacity issue. To do this, they need a site in the same proximately of that one, as close in elevation as they can achieve with that and still cover the specific area. It is kind of hard because the water tower is on top of a hill with a very steep drop down on Gregg Street there. We have talked with them and since Staff's recommendation has come out, we talked with Planning Commission February 13, 2006 Page 12 them in the few days. We have been in consultation with them. They say they can work with 130'-140' if we had to give some, they would still do it. It doesn't leave us a lot of room for co -locations. Cingular is there, Sprint/Nextel, Cricket — there are four major carriers that are in this area, are now on the water tower at the VA. They all have the same problems - we see a definite possibility of co -location with multiple carriers on this. There are no other towers in that area. There are some facilities at the University that are in use now. We explored several other areas around there, the North Street Church of Christ. They declined to have anything put on their property, as it is up for sale. They are moving out to Mt. Comfort Road. This would not be a very good thing for them at this time. Tune Concrete, we looked out there and it puts us further and even closer into the flood plan and discussions with Staff indicated there was a future biking/walking trail going to be in that area. So we wanted to stay away from that. With this we looked for a spot that we could do some good. We could definitely clean up this area that is there; we can move an existing tower that's already there. With that, you have some of the photographs and things; this is the same pole we built at Zion and 265 in the Deane Solomon. It is a twin engineered pole, as far as the number of carriers and things like that. I don't know if you are interested in having the photos displayed or have any questions for us. But we definitely want to use this pole and have had interest in co -location already. It is the same as the packet. That is our presentation. It looks like a good location, it is zoned industrial and we need a spot in that area — I couldn't think of a better one. Ostner: Thank you Mr. Reynolds. At this point I will call for public comment on this conditional use request — CUP 06-1893. Seeing none, I will close the public comment section and bring it back to the Commission. Anthes: A question for Mr. Williams. Can you comment on our current ordinance, I understand that a lot of the standards for broadcast structures are based on 1996 laws and our current ordinance and I understand that the SIEIATIA 222G is coming on line. Can you comment on what the changes that provision will make and if we can consider those at this time. Williams: I cannot comment exactly what those changes are and if it is not part of the law yet, then it is not something we can rely on; in fact I think you should remain guided by our current ordinance. My advice would be exactly like it was in 2002 when I talked about what the law of standards were and the minutes were included in here; I just reread them to make sure it had not changed. Basically, the law says that the City cannot prohibit or expressly prohibit but have the de facto result of prohibiting wireless communication facilities within the City. You cannot discriminate against various wireless companies. As long as you have not Planning Commission February 13, 2006 Page 13 done that, and I don't think Fayetteville has done that. Fayetteville has approved many, many cell towers throughout town. I think there is full coverage in this area. I haven't seen any of the coverage maps like I had seen in the one tower proposal for College Avenue that was recently rejected by the City Council. That showed that there was not a lack of coverage, but a lack of capacity. I don't think the Federal law necessarily requires cities grant unlimited capacities to cell phone companies. They must allow, not blanket coverage, but there is a case that said that if there was a two-mile gap in coverage, that the city went too far in denying a cell tower. I don't know how small a gap these courts would go down to, but if there is no gap in coverage, I don't think that would trump the City's power in deciding for aesthetic and property value rights to deny a cell tower. Anthes: I believe our ordinance also states that if City property is located anywhere near a proposal, that should be marketed as land for cell tower. Is there City property in this area and has that avenue been explored. Williams: I'm not sure. I would have to refer to the Planning Department for that. They must look at that. It might be inappropriate land, too, or it might be fully occupied, but they are supposed to look to co -locate, if possible. I will turn it over to Jeremy about whether or not this happened. Pate: I'm not aware of any City property in this vicinity. I know that obviously there is University property and those do carry cellular antenna, the wireless communication antenna on some of the structures. Hopefully, more are coming in the future as we see growth at the University. But I am not aware of any City properties. I have been copied on e-mails recently of another carrier coming to town and we are actively discussing them and placement of their antenna on the water tower. It is something we are involved in, but for this particular application I can't think of any properties in this particular vicinity. Anthes: Jeremy, I would like to continue with you. Can you tell us what the General Plan shows for future use in the area adjacent to this tower? Pate: I believe it is mixed use. Anthes: Mixed use and residential — with the residential area being more to the north or on this side as well? Pate: I believe it is more to the north and west for residential use. There is a lot of mixed use in this area in the General Plan, most likely due to the nature of its current mixed use. Being zoned industrial, I believe all the Planning Commission February 13, 2006 Page 14 properties currently zoned industrial are shown as mixed use on our General Plan 2020 at this time. Anthes: On the other towers we have seen, the height that had been requested is often referred to — that at lower heights you can put fewer carriers, but if you are going to add more and more carriers, they ask for the additional height. In your Staff report, you say that in fact Cingular was the only carrier that had responded to Staff that there were current concerns with capacity in the area. If I'm looking at maps in the book and, not that I'm an expert at reading these maps, but it seems to me that the coverage area is pretty complete there. Can you speak to that and the height that is requested? Pate: Sure, the coverage maps in what we understand them as well, we aren't professional in looking at these either, but understanding the color graphics, it looks like most of the coverage problems are more to the west where the original tower was proposed in 2002 around the Wedington Circle, Harps -Garland section. I did want to clarify that Staff probably wouldn't be supportive of a cell tower on that site either, but antennas on top of those structures that are concealed much as many of the structures are currently; in the downtown area, one of those you wouldn't know there were antenna, unless you simply knew that. That is part of recommendation in limiting the height, is that that site is approximately 50' higher in elevation than this current one. If you look at the terrain models and extrapolate the 1400' elevation line across with the 100' tower, I believe that the capacity concerns could be alleviated simply because more antenna could be placed on the six -story structures located around the Wedington Circle area. That was one of the impetus of our recommendation for lessening that height, Additionally, if you also take a look at the elevation to the east of this property, it does rise quite significantly. I think we have the high point at about 1440' in elevation. The 150' tall tower would basically get over that height; however, in our opinion, the visual impact would exceed, the detrimental visual impact would exceed the positive gains, by having potentially a smaller tower and co -location in other areas. In our opinion, coverage issue was not as big of an issue as stated in 2002 in the record of minutes by Cingular as it was capacity in trying to hand off some of those, split off some of those calls at certain times, peak times; so we felt it was appropriate to recommend a lower height at this time. Additionally, it is simply hard to camouflage a tower here. You are at the low point elevation, there is no other structure that is high, there are no trees in this area to try to camouflage. Anything that is above two stories in this area, is simply going to be out of place until future development catches up to it or simply out of place now and in the future. Planning Commission February 13, 2006 Page 15 Anthes: It seems like the 100' is still extremely tall given the conditions here. It seems to me that you also have stated that there are some other locations that you think would take care of the capacity issue, because it doesn't seem that coverage is the big issue. I believe that our ordinance states that we cannot deny coverage, but we can capacity. Williams: That is true. I will say that the Federal courts, when you are faced with this kind of decision, do require that there be some substantial evidence before you, aesthetic problems or issues, especially from the neighbors, people that would directly be affected by this, arguments that their property might be devalued or something like that. I am somewhat concerned that in the public comment section, we heard nothing from any neighbors making any kind of concerns. That is something that does make me somewhat concerned; in this case it seems like there was notification and yet none of the neighbors have communicated to my knowledge. Have they communicated besides being here tonight? Pate: We have not heard — we have spoken to the church, I believe, but that is part of why we have a process of conditional use. You just don't submit and come to the meeting next time. It is to allow for that time, for us to hear from any neighbors' concerns. It is part of that process. Anthes: But correct me if I am wrong, but the majority of the property in this area is multi -family and therefore you have contacted perhaps the property owners, but not necessarily the residents. Pate: That is correct. Anthes: Is the radio transmitter also going to be located on this tower, or is it cell only. Reynolds: This will be a cellular type site only. Anthes: Is there radio business on the existing poles in that area? Reynolds: At the Johnson Heating and Air location there, they have some of their own service there. We have talked with them about removing it and picking it up in other avenues. That tower existing could come down without any detriment to the business. Vaught: My only concern is that I do worry about the 150' in this location being too tall and I also think that in our booklet, in the photo section, the first photo is the predominant view of the site and you are going to be looking down on it, it is going to be backed by trees, so I do worry about leaving it the gray. I fear it will stick out more from that view. I know when you Planning Commission February 13, 2006 Page 16 are next to it, it will look funny when it is green, but I think that corner of Wedington and Garland is a major intersection of town. You are coming from a higher elevation from almost every direction except north to this site, so I would like to see some kind of paint camouflaging of this site and I would be wanting to lower it. Whether we stick with the 100' or go to 125' is something we can discuss, but I do think 150' is too tall. I would like minimal screening of this because you are coming in top of Wedington and look down, you are going to see a big blue pole in the middle of a bunch of trees. I am not opposed to it; I understand coverage is a very important component to their business and I want to be amenable to that. I do think that there will be locations to the west of this that will be necessary in the future. I don't necessarily think the 150' is necessary. It looks like to the west of this site, they start to have coverage gaps. I foresee a site somewhere west of Garland along Wedington in the future, as we look at those coverage maps. I don't know where it will be or what it will be; I know the response from Mansfield said they don't want a cell phone pole and we weren't suggesting a cell phone pole, we are suggesting locating on the building which could be something once the buildings are built, they listen to, if their residents have bad coverage. I am not opposed to this site, I am opposed to the 150'. Osmer: Mr. Reynolds, is this picture — is this the full 150' that you are proposing. Reynolds: It is close. Yes. Trumbo: Question for the applicant. If we have coverage, but not enough capacity, sounds like to me that some people aren't going to have coverage. What is the difference between coverage and capacity? Reynolds: The VA water tower is an excellent site. That is why it has been there for such a long time and been in such heavy use. But now what's happened is the population of cell phones in that area that is covered by the VA water tower, it is a huge area because it is so tall. It is a prominent feature in town. Well, since that time, the influx of cell phones into that area has overloaded the capacity for calls. If it contained X, it is at X + a number almost all the time. Trumbo: So we have coverage, but not enough capacity. Reynolds: This is coverage issue. What is does is that when the site is full and X + 1 calls, they get a fast busy and they don't receive service at that time. They want to split into two to three sections. This is the first of those sections. Trumbo: Question for Jeremy. The six -story building, is that the Mansfield building we are talking about? Planning Commission February 13, 2006 Page 17 Pate: Yes. Vaught: One additional question for the applicant. Are there not additional possibilities to add more antennas to the VA site and achieve the same goal? Reynolds: No, that's where they are now and that is stated in the booklet, at least from Cingular's point. They went as far as to state it. The rest of them have talked about the co -location there. But they can add no more at that site. I did want to clarify that when we spoke with Mr. Mansfield, we did talk about roof mounted, side mounted antennas, all the options there. It wasn't just to build a cell tower. I asked Mr. Mansfield after our meeting if he would quickly write something to bring to you to show that we did speak with him and had these conversations. We can clarify that later if need be. Vaught: If you look at this coverage map, there are already areas that look like they are lacking coverage, just to the west of this. I do think another tower is going to be eminent somewhere along that stretch, especially with the PZD we just approved, that is going to add a lot of people to that side of town. I foresee additional tower applications to fill those holes coming. Lack: That illustrates a concern that I have. When I first looked at the site, I thought it is not a terrible place for a cell tower, as places for cell towers go. But when I look at the map, when we are approached with a cell tower, I am used to seeing a dramatic change between the current map and the new map. When I look at this map, I had to look for the change. There is a change to the west, but the change is actually to the west over a ridge from where the cell tower location is to be. To the east, I 'm really not seeing any change. Reynolds: With this capacity issue, that is right, there is adequate coverage. If you take your phone there you will receive four bars. What makes this important and unique is that to split the traffic off of this site, it has to have a second site in proximity to the water tower that will draw the traffic away from the water tower. It needs to be a good site to draw the traffic off, have strong coverage and compete against the water tower site. After they start to draw the traffic off the water tower site, as they state in the letters there, they will shrink the coverage area of the water tower down, so it is more compatible geographically with the number of phones. That way they can eliminate this call blocking issue and they can continue on. There are several other things in the plans, in the works, and we have talked with Staff about this, but this is the main concern for these carriers Planning Commission February 13, 2006 Page 18 Lack: at this time. They are constantly blocked at this location and they can't improve it any more and this is where the problem is. And I think that my view of it, it would seem to be prudent to be farther west with the tower, with the understanding that you might lose some direct proximity, therefore some direct signal, power to the VA tower. Certainly I would anticipate that this would not be a total loss, that moving away a quarter mile, a half mile, something of that nature, to the west to get better coverage wouldn't totally dissolve the benefit of pulling off of that tower. And the other concern, I guess, is that we have talked a little bit about — Mr. Pate has mentioned to us that you have a presentation of multiple sites, multiple areas, that you are looking at and that you mentioned to me. I think that is wonderful, that is a good proactive approach to facilitating cell coverage in Fayetteville which I think we all need to do. That is something I look forward to, to work through. I think that it would help provide a good feeling, a warm fuzzy, for this site if we had had that meeting and I wonder if the timeframe would allow a review of the full needs of the City before having to determine this site. Reynolds: I understand what you are saying and we have worked with Staff on that. We have talked with Cingular Wireless and Oklahoma Wireless Association to get the other carriers to divulge their plans. These are four or five very vicious competitors in a small market business; they don't like to tell each other where they are going to be next year. But they see a need in Fayetteville to get facilities. If you look around at the tall buildings in downtown there are cellular tenants there; if you look at the University, there are five cell sites; there is a cell site in Bud Walton, there are three at the football stadium. Those general areas generally take care of themselves with the capacity and coverage issues that they have. As far as being able to delay this until we can come up with - well, we call it a comprehensive plan, with this, it would be my druthers not to but if we need to, we can I suppose. If Staff would be willing to help us and whatever we need to do to facilitate these meetings and show everyone what's there and what is planned. We'd love to do that. Trumbo: A follow up with Mr. Lack. What would be involved as far as Mr. Lack's plan? Who would have to be involved in that and how would it be done. Reynolds: We would need to involve the Commission or representatives, some sort of task force. I've attended some of the Hillside Task Force meetings, almost the same type as that. I suppose some industry representatives, carrier representatives, builders or developers. There is not only us, but SBA and other tower people. See what their plans are and see if we can define what is a good spot. That seems to be the question we have every time is why does it have to be this high and why does it have to be here. Planning Commission February 13, 2006 Page 19 We are willing to work any solution we can work. You guys are tired of seeing me so anything we can do with that, we would be glad to do that. But I do want to stress that this is an immediate problem with this application. Every day I get a phone call. Clark: I need to back up and go to Cell Tower 101. Smith 2 -Way Radio owns the towers. You lease the spots for these cell phone representatives to have their equipment. Reynolds: Yes. Clark: So it would be in your vast best interest to have this task force so we could force these carries to divulge their business plans. You are still going to put up towers and profit over carrying their signal. Reynolds: Yes. Clark: So every time you are before us another on of your customers has called to complain about their specific coverage. Reynolds: Yes, usually more than one. Clark: So if we did the task force like Mr. Lack was recommending, we would in fact be forcing these companies to come in and tell you where all their expansion goal is in the future. Reynolds: No, it wouldn't be just us; it would be open to any person who would want Clark: I see you a lot, Mr. Reynolds. Reynolds: Yes, you do. You see me because we are local and in town, our market. Clark: So one of your carriers is having a problem in this valley with not coverage, but capacity. Vaught: I think that this task force is great in a hypothetical world, but as we all know, I don't think we can hold up specific applications on a task force that doesn't exist with an unknown time frame. I think that is not fair to the applicant and not fair to the company, or the citizens of Fayetteville that are the areas that may need coverage. I kind of draw a caution sign at that and ideally it would be a co -location, but the buildings we suggest they co -locate on don't exist. I have a real issue with that. I think we need to look at the specific site and the conditions that exist and make a decision on that. With that, I would even be, I don't know if we can do Planning Commission February 13, 2006 Page 20 this, but set a time limit on the conditional use so we could review, and if other sites in the west could be developed this one might be taken down in five years. I do think it if it's an issue with capacity, it could be resolved as more cell phone towers develop to the west, so setting a five-year time limit on it and limiting the height below 150' for sure I think could be an avenue of compromise for us to let them have time to develop these plans and possibly have a task force that looks at it, and it might be done in five years at the way things go. I guess that is a question for Staff and the City attorney on the time limit, if that is something available under conditional uses. Williams: I have not seen that before that a conditional use would just run out. I would think that the applicant would be agreeable to it, so if the apps can actually agree to a time limit then I guess it would be possible to do it. I really don't think that the plan for cell towers in Fayetteville would take a very long time to do and I don't think it will be totally industry driven. I think the City of Fayetteville needs to look at sites that they will believe should be used exclusively primarily the water tank sites that we already have, although I have a couple of those next to me and wish we didn't build here then. I do think that probably if we aren't not going to have many, many cell tower sites throughout town near residential areas, then the City itself needs to be proactive, work with the cell tower industry, but not be driven by the cell tower industry. Say these are the sites that the City of Fayetteville will allow and primarily the ones we can control and the ones that already have water tanks on them which are already to some extent aesthetically "damaged' So I don't think it would be a very long process. It always takes longer than you think; I will agree with that, no matter what you try to do. I don't think it would be years long. I have seen some maps Smith 2 -Way Radio has already in hand and looking at that, and working with them — I'm not saying we would not work with you and the other cell companies who are interested here. I still don't think it would be totally industry driven. This should also be what we want — what we want our town to look like. Lack: I think the idea of task force and the perception that we have in the City of Fayetteville about task force and the time frame, is a post generation of the idea that I presented. What we were presented with from Staff was that there is a map currently of proposed cell tower locations around the City that will come before us soon. And I would hope that rather than piecemealing these in, that we could look at these as a comprehensive plan. I would hope that this is a one meeting, two meeting endeavor and that is what I was hoping for. I think that there is one carrier who has already divulged that and that is where this plan is generated from with possibly more than one carrier. Planning Commission February 13, 2006 Page 21 Reynolds: We have worked with several and talked with some. They are in the process of putting together their plans or deciding what portions of their three and four-year plans they want to divulge. We've gotten one and two that look very likely in the next month. Vaught: I think it is easy to isolate coverage problems, but capacity is an issue and I think it is an issue that is legitimate for carriers to have. It would be really easy for us to say — there is a blue spot on the map — they are probably going to put a tower in this area. I wondered how detailed those plans are — I doubt they are identifying specific pieces of property rather than areas, which we could do by looking at a total coverage map of the town and there is no way to identify capacity which is an issue. As cell phones become more and more popular and we get more density in some of these areas, it will become more of an issue. Hopefully, we will be able to co -locate, because with density comes height, usually. But I don't know how we can plan for that. That's an issue that is out there, I don't think it's an issue we had ten years ago with cell phones. But now a days we do. I believe that capacity is an important issue to look at with these carries as well as coverage. I think they are two separate elements that are just as important — it is important to the City, not just the carriers to have that availability. If businesses can't get their coverage, it is going to affect Fayetteville and residents. Ostner: And to be clear, we do have an application before us. We really only have a limited mobility in our reasons in turning it down. There are some very valid things we can say about it. There are reasons to vote against it. The ad hoc committee, as they used to be called, idea aside, what shall we do? Trumbo: I'm going to go ahead and make a motion — I think you said 130' feet would work? Reynolds: That would work for the carrier's needs at this time. It doesn't leave a lot for co -location, but it will solve the immediate problem. Trumbo: I'm going to recommend 130' as a compromise between Staff's recommendation and the applicant's request. Also, based on the fact that we haven't had any public comments against this. I understand there are renters there. So with that I will make a motion for approval of CUP 06- 1893 with the change to finding #5 changing that the tower shall be no taller than 130'. I don't know about the painting, I'm not good at that. Allen: Let's just call it a transitional paint scheme that would blend the tower into its background. Planning Commission February 13, 2006 Page 22 Trumbo: That's fine with me. And finding in agreement with all of the Staff's other 12 conditions of approval. Osmer: Does the motioner have any wish to talk about the five-year replacement scheme that has been discussed. Trumbo: No, not at this time. Vaught: I'll second. I have a question for Staff, too. In the past we have added a condition at the end of these, that somehow read that if the technology becomes obsolete, the tower will be removed. And I hope that would also be included, if it is obsolete because of need or coverage. But I'd like to at least add the condition of obsolete technology, they will remove the tower. Reynolds: We have done that on all of them. That is fine with us. Trumbo: I think that should be standard, too, if we can craft something that states that. Ostner: So the motioner agrees to add a condition #13 that if the technology becomes obsolete or easier replicated at another site, he will agree to dismantle this. Reynolds: That's fine. Ostner: We have a motion and a second... Allen: I would like to make a comment that pertains to the fact that we didn't have any comments from neighbors, but I think that sometimes in less affluent neighborhoods that there is some intimidation with dealing with the City and I think it is our responsibility to look out for them, too. Just a comment in general. So I don't think the fact that we didn't hear from anyone, doesn't mean that they don't care. Anthes: I am reading the Staff's report and I think it was well written and well prepared. They put a condition of approval that said that the tower should not be taller than 100' and I would tend to agree with that, if we should have it at all. I'm looking at our ordinance and our ordinance definitely states that it is not coverage but capacity that we can talk about; about denying aesthetic reasons, I think we are talking about putting this tower in an area that right now appears to be an eye sore, but is prime for redevelopment in our general plan and a very tall tower in that specific location may hamper that redevelopment potential in the adjoining property. I am also looking at Staff's report where they say Cingular is the only carrier that has responded to the problem, so I don't think the co- Planning Commission February 13, 2006 Page 23 location issue requiring additional height on the tower is as much of an issue as we have seen in other parts of the City. I also am referring to findings of fact that states that there may be additional sites that are actually better suited, that possibly there is an opportunity to erect two smaller towers within the large property that would be more easily screened, and also the visual impact would be great to any property within the valley. And with all the reasons and for answers to questions I asked earlier, I am going to vote to deny. Ostner: I probably am also going to vote against this proposal. I was considering the 100' tower, with the current motion, I will vote against it. I do think there is a visual difference between 100' and 150'. I just don't see the evidence that the extra tower or coverage is vital to this application. Myres: I am going to concur with commission Ostner and Anthes. I would have considered approving 100' or less, but even at 130' I think it is too tall and I live about three blocks from this site, and I was outside the area of people that needed to be contacted, I certainly was never asked about my feelings about the impact. And because the valley down there is relatively flat, it is not going to encroach on my view shed particularly, but every approach you make to that part of town is from a higher elevation and I think it is going to stick out terribly. The only reason I am not supporting your motion is because it is 130', not 100'. Vaught: I would suggest that if that is the issue, if several people feel that way, you can always amend the motion on the floor to be what you want, or make the proposal. Myers: Are we just trading yea votes for yea votes? Trumbo: I'd like to point out that the reason it is 130' is the only person who deals with this daily is asking for 130' because he is telling us that is what he needs; 100' — we can put a 20' pole up but it sounds like 130' is what it is going to take. I don't know — I have to take his word, based on his needs and requests. That is where the 130' comes from. It sounds like 100' isn't going to solve anything except have an ugly 100' tower that can't be used. Reynolds: I want to stress if I may, that it is not just our word; it is Smith -2 Way's word that I know I can sell co -location on this pole at that height, at that above 130', but you have a letter there from the construction manager and RF engineering manager, and real estate manager from Cingular Wireless stating that the tower needs to be as close to the height to the VA water tower that it can be. Planning Commission February 13, 2006 Page 24 Ostner: I appreciate your perspective. I suppose my reason that I'm probably going to vote against it is that it is a balance for me between what they need and my interpretation or my voice of the people, so to speak. We don't represent the people, we are not elected, but our UDC is the document that protects the peoples' interest and I think it is a balance. And I think between the limit of how much this the City can take. I don't understand a better way to say it, but I think we could take 100' as a City and if it isn't going to work for the applicant, I think I'd look for another place. I think there are other options open. I'm not trying to say whatever you want you can't have, I'm saying.... Reynolds: I'm sure there are several other people who would want a 130' tower there as well. The people of the City who would like the service, those who are having problems as well. I understand your point and appreciate it. Ostner: Okay, we have a motion and a second. Is there any further discussion? Graves: I'll move just for the sake of discussion — I will move to amend Mr. Trumbo's motion to change condition #5 to 100' as Staff suggested. Ostner: Okay, we have a motion to change condition #5. Allen: I will second it. Ostner: Is there any more discussion? We are just going to vote on the one amendment. Graves: And I will discuss the reasons why just for the record and that is aside from the discussion, I think that it sounds like from the applicant's comments that he wants a higher level primarily to co -locate additional carriers, but this level still may serve the actual purpose that is needed which is hand-offs of calls for Cingular. That is the reason for the amendment. Ostner: Is there any further discussion? We are going to vote on this amendment first. Will you call the roll please, this is for 100' on #5 only. Roll Call: The amendment to change #5 passes by a vote of 7-2-0. Vaught and Trumbo vote no. Ostner: The condition #5 is now phrased that the tower shall be no taller than 100' including all antennas, arrays and other pertinences. There is a motion on the floor currently to approve this conditional use request. Is there any other further discussion? The motion is now phrased at 100' maximum Planning Commission February 13, 2006 Page 25 with the other things that Mr. Trumbo talked about, the paint scheme stands and I sort of phrased #13 about dismantling it in five year. Trumbo: When it becomes obsolete. Ostner: If it becomes obsolete. Will you call the roll. Roll Call: CUP 06-1893 fails by a vote of 4-5-0. Anthes, Allen, Myres, Clark and Ostner vote no. Planning Commission February 13, 2006 Page 26 New Business: R-PZD 06-1883: Planned Zoning District (ABSHIER HEIGHTS, 407): Submitted by 112 ENGINEERING, INC. for property located S OF EVELYN HILLS SHOPPING CENTER ON ABSHIER AND HILLCREST. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 4.11 acres. The request is for a Residential Planned Zoning District with 30 multi -family dwelling units. Fulcher: This item was heard at the last Subdivision meeting. It was voted 2-1 to forward this item. Consensus was not reached on the findings for this PZD. There is a significant amount of background with these two vacant pieces of property behind Evelyn Hills Shopping Center on Hillcrest and Abshier. In our Staff report, we did go through the timeline of those issues. Also in the Staff report are letters from neighborhood members and family members who have brought up some of these issues also and may be discussed further tonight. The Staff reviewed this as a master development plan, large scale development on a C-2, Thoroughfare Commercial. That was the proposal we reviewed. As proposed it is a multi -family development, it is an eight building proposal including 30 residential dwelling units, consists of 22 multi -family and eight two- family units. The eight two-family units will be located in the northern four buildings along Hillcrest and the 22 multi -family units will be located in the remaining four buildings, three facing the green space off of Abshier and one off of Hillcrest. The overall density will be 7.3 units per acre. The existing canopy on this site is 17.9%; the proposal will bring this down to 17% with that .9% being removed for location of the detention ponds. The Parks Department voted to accept money -in -lieu in the amount of $13,086. When Staff looked at this again, we had to make a great deal of findings for this site. We looked at items such as current zoning, adjacent zoning, creating a transition between the C-2 zoning district and the RSF-4 zoning district is what they proposed, using the topography of the site to blend the buildings in and retain as much of the canopy on the site as possible to again, allow for the natural barrier or buffer to remain there. I know that some of the comments that Engineering may need to touch on are water and sewer. There were comments made at Subdivision Committee and within the letters about water pressure. And within the report, it has been stated that both of the systems will be studied. If improvements need to be made, the applicants or developers will be required to do those improvements. Looking at the General Plan, the compliance or compatibility with the General Plan — the General Plan calls for these two lots to be regional commercial. Looking at that obviously this request for residential units does not meet that, but again Staff looked at this as it would be better to see this with residential development in there to create a more effective transition between the Planning Commission February 13, 2006 Page 27 commercial development and the single-family neighborhood, as what we see in other parts of town where you would have a dense commercial development, a medium density residential and into our single-family developments. So looking at all those findings, the transition that we saw that was trying to be created here, Staff has recommended that this item be forwarded to the City Council with a recommendation for approval with twenty conditions of approval. I want to touch on a couple of those: #1 — looking at Planning Commission determination of street improvements. We are requesting 14' wide street from centerline from Abshier Drive which would be 14' of pavement, curb, gutter and storm drains, and a 6' sidewalk; installation of 14' wide street from centerline on Hillcrest Avenue, including the same improvements — 14' from centerline, curb, gutter and storm drains, and a 6' sidewalk. Although we are recommending looking at the location of the sidewalks on both of these streets to be reviewed by the Sidewalk Coordinator and Urban Forester at the time of development so we can maintain the 17% of canopy that this development is proposing; to work the sidewalks around there, to work with what is there between the topography and the location of the trees — have those worked in further into the development. Condition #3 — the structures will be constructed as presented the PZD meeting the architectural design standards established herein. As I stated, the Park fees in the amount of $13,086 shall be paid, an access agreement for the drives off of Abshier and Hillcrest cross another property. We will need those access easements for the driveways. Items #14 and #15 refer to existing canopy and proposed canopy to be planted or interspaced in between a requirement for planting trees every 30 linear feet. If this were to be approved, any existing gaps within the canopy would be infilled with more large species trees to again create that natural buffer between these two developed areas. If you have any more questions, please ask. Ostner: Thank you. Is the applicant present? If you could introduce yourself and give us your presentation. Cooper: I'm Tim Cooper with Cooper Architects. I would like to touch on a few bullet points without speaking about the same thing that Jesse did. He did a good job of describing the project. These units will be sold for $200- $250,000 a unit to individual users. These will be sold. I think it is fair to say that the C-2 zoning — we feel the owner (developer) came to us and looked at the project that was C-2 and the developer said we want to down -zone this. We were like, wow, this is going to be a great project, because you don't normally hear that. We thought it was a great opportunity. We worked very hard at this site on this project. There is a huge amount of fall in the property. This project was actually mined out forty years ago for Evelyn Hills and use in that project, so we are only going to be probably a foot off the existing grade with our finished four Planning Commission February 13, 2006 Page 28 slabs, maybe two feet. So the grading that is there is already done, so there will be very minimal grading. Also, I will point out that 17.9% is existing and there is going to be 17% left — that means we are saving 95% of the existing canopy on the site. That is including the streets, building the footprints; we have worked very hard to accomplish that. In doing that, the tree preservation area is basically a 30' span that goes all the way up Hillcrest and kind of wraps around the top of the property and then back down the other side, so it is right around 30' or so up that side of the property. The neighborhood as a whole, architecturally, there are houses from medium to large, the styles vary — there are 50s and 60s ranch -style all the way to eclectic modern. I think this gives the neighborhood a healthy diversity and our project will fit right in. We take in materials that as you can see some of the images we handed out, those are houses that are in the neighborhood — brick used different ways, siding used different ways, metal panels and metal wall panels on some of the residences; metal roofs. So we have taken some of those and used them throughout our project. We think this is a great infill project, dealing with the hillside ordinance, and feel that the grading is already there, was a great opportunity, along with the existing services the City has to offer there. They are already in place. There may be some upgrade and so forth; but Fire and Police both said that the services were there and would be no problem. The difference in density — we are proposing 7.3 units per acre and actually the single-family is 4 units an acre. So it is not that huge when you consider the transition between a single-family residential and C-2 commercial, a fairly large shopping center. I think that is a really good transition. We have looked over the conditions of approval. There is only one condition that we would like to discuss and try to work out something with Staff. This is the trash pickup. We had hoped we might be able to have rollout service; that might be an issue we would like to take a look at and discuss. All the other conditions of approval we have no problem with. The owner, David Chance, is here if there are any questions you would like to ask and also Tom Hannely with H2 Engineering is available as well. Ostner: I am sure we will have some questions later. Before we go any further, I would like to ask Staff to adjust the temperature — some of us are freezing up here. It is hard to concentrate. So, shall we hear from the public. Please step forward and give us your name. I am going to ask that we not repeat comments and let's be brief when we can. Wicks: I'm Rob Wicks, 1314 Hillcrest. First, we sent you a letter, have you received that? Ostner: Yes. Planning Commission February 13, 2006 Page 29 Wicks: Did you receive the engineering report, a letter about the engineering issues that also went out at the same time from Robert Alguire. Ostner: Yes. Wicks: Did you receive the addendum to that? Ostner: Yes. Wicks: And did you receive a list of our speakers tonight? Ostner: Yes. Wicks: Thank you very much. First, I'd like to say that we have spent a lot of time in the community talking about this. We are not against development. We think the density is too high and people are going to address that tonight. But first I'd like the neighbors that are opposed to please rise for a moment. Tonight we are going to present five speakers and we won't be redundant. We are going to address issues that we feel are very important. These issues deal with legal issues that go back to the 1960s and attorney Rebecca Hoss will deal with those. Also, we have an architectural issues. We have a specialist, a professor of architectural history here tonight and that is Kim Sexton. Shay Hopper is going to be talking about the engineering issues and that is in the absence of Professor Alguire who had to go out to Arizona unexpectedly and resident, Gus Jones, will also talk about the nature of the neighborhood, the character of the neighborhood and the historical significance of her home. The order is going to be slightly different tonight. We are going to start with Kim. Hoss: Good evening, Commissioners. My name is Kim Sexton and I live at Juanita Avenue, two blocks south of the proposed development. I am here to address two points regarding the proposed the Abshier Heights project. One, its inappropriateness as infill for this particular site, and two, its violation of privileged space that surrounds the E. Fay Jones residence, a home designed by Fay Jones himself in 1956, one of four of Fay's buildings listed on the National Register of Historic Places. The development offers the opinion that the proposed PZD rezoning would be a great transition between the commercially zoned C-2 Evelyn Hills Plaza and our residential zoned neighborhood. As an infill project, we feel that the proposed transition fails on the account of neighborhood continuity and scale, whereas our residential neighborhood made of traditional single-family detached houses on individual lots. The proposed Abshier Heights development squeezes thirty families housed in eight buildings between the hillside and the service area behind Evelyn Hills. We fail to see how a concentration of thirty families, regardless of the units per acre constitutes any transition at all between a neighborhood of lower Planning Commission February 13, 2006 Page 30 residential density and commercial space to the northwest. We believe if anything there should be fewer families the closer one comes to a commercial zone. Whereas our neighborhood is made up of diverse housing styles ranging from the AIA Gold Medalist designed to Lowes kit houses, the Abshier Heights housing development proposed a monolithic and uniform facade and practically wall, offering what they call vaguely modern and contemporary feel. We don't have a question about the style, we find it not diverse like our neighborhood. Whereas our neighborhood of single-family houses is home to diverse people ranging from families with young children to octogenarians, the proposed Abshier Heights development will not be suitable for elderly because stair access is the only access to and within the houses, nor will the development be safe for children because the only play areas are the side of a steep, rocky hill, twenty-five feet proposed between that and Evelyn Hills. The proposal does point to the existence of Gregory Park a quarter mile away, but this can only be reached by steep, hilly roads without sidewalks. Thus, we believe the population of the Abshier Heights units will be uniformly young and single, probably students, probably two to four to an apartment, each of whom will need their own car because Evelyn Hills is not served by Razorback Transit to campus. Hence, we think the proposed infill brings an inappropriate density for the site, a monolithic style and offers no transition whatsoever and what would become a trash can versus a trash dumpster situation. For all these reasons, we maintain that Abshier Heights is not a true and appropriate extension of our neighborhood urbanistically architecturally, socially or historically. On the second and more unacceptable is the affront proposed by the Abshier Heights development on the architectural and personal legacy of E. Fay Jones and his historic residence at 330 Hillcrest. Both Thorncrown Chapel and E. Fay Jones house were listed on the National Register of Historic Places on the same day, April 28, 2000. And why the house? According to the National Registrar, "the E. Fay and Gus Jones house is exceptionally significant because with this house Jones expressed the guiding principles of his personal, organic design philosophy including sensitivity to natural setting, honest use of materials, and an appreciation of interplay of light and space. The construction of this house jump started Jones' career". The City of Fayetteville, we hold, must protect the E. Fay Jones residence from any encroachment that will compromise this exquisite statement of Jones' Ozark style that is his residence. As you all know, Jones' unique appreciation for site and environment demand that nature, light and air be invited in to penetrate the building, reinvigorating its inhabitants. But if the Abshier Heights development is permitted to be built on this site, what will be let in will be traffic, noise and pollution from exhaust from thirty families trying to live behind Evelyn Hills. We all, citizens of Fayetteville cannot be misled by promises that this mostly untouched line of trees, this buffer that should not be affected by Abshier Heights units are going to be Planning Commission February 13, 2006 Page 31 sufficient to preserve the special sanctuary that cradles the Fay Jones house. For these reasons and many more, we citizens of Fayetteville must move to protect the E. Fay Jones house, the house which in the mind of the National Register of Historic Places is paired with Thorncrown Chapel. Indeed upon hearing of Jones' passing, the American Institute of Architects president eulogized Fay saying, "the loss of his personal presence leaves a large void that can only be filled by the incredible legacy of the architecture he has so graciously bestowed upon us". We neighbors of Gus Jones tell you, the members of the Fayetteville Planning Commission and stewards of Fayetteville's cultural heritage, that safe guarding the E. Fay Jones residence is not your burden but is your privilege and we beg you to rise to it. Thank you for the opportunity to talk. Hopper: My name is Shay Hopper and my husband Dave and I live at 1224 N. Hillcrest and I'm sure you have heard from all of us in the past several days about our concerns. If I could also share this easel. Some of our neighbors took some time to take digital photos to illustrate some of the issues we are going to discuss. I did mail you all my comments on a very preliminary basis, but I have updated those and if I could pass this to you. Ostner: Yes, you can pass those to me. If you could move those. There is a television camera that is trying to catch all of this. Hopper: I'll go ahead and begin. Thank you for taking the time to hear our concerns this evening. Certainly my neighbors are not planning or developing experts, but we have all made great attempts to research this situation thoroughly in hopes of presenting a clear and valid view of our concerns. I do want to thank the City staff, Mr. Fulcher has been very accommodating in answering all of our questions and providing us with the information we have needed and I appreciate that. This has been a big learning experience for all of us. I will be very brief, address 11 specific issues. I am not going to read them to you. Number 1 is water pressure. This has been an issue in our Ward for a significant amount of time and we are very concerned about this, not only because we can't take a shower and wash our hands at the same time, but because we are concerned about City services. I've not seen any documentation or official statement from the Fire Depaitment or Police regarding City services that this is an appropriate water pressure. I'm not an engineer and don't know about water pressure, but do know what is in my house, or lack thereof. I quoted from the proposal that the developer plans to tie into our existing line and we are very concerned about that. We have all had City Water Department employees out to our homes to check our water pressure and they have all said that there is very little or nothing that can be done at this particular point, because it is one of the oldest grids in the City, so it Planning Commission February 13, 2006 Page 32 would have to have extensive rebuilding, extensive reconfiguring to accommodate our particular concerns as they exist now prior to any further development. So water pressure is a tremendous issue. I have quoted some page numbers and such from the proposal. The second thing that Dr. Sexton discussed is neighborhood continuity. We are not at all opposed to development or infill. We are very much for it, because this space is unused and in limbo. We appreciate the green space and appreciate the buffer. We are not opposed to infill at all, but we want it to be appropriate. We are very much in support of neighborhood continuity. We want to continue the historic flavor of our neighborhood. Certainly not opposed to appropriate development in this area. As Dr. Sexton said, as proposed, it is a trash can versus trash dumpster situation and it is not a good fit. Development density is not compatible with our neighborhood. Again, in trying to squeeze in thirty families or thirty units with three or four students. I was a student once here; I know I might have not had as much respect for my neighbors as I should have so I'm a little concerned about that. Number 4 on my list of comments is that City services, and this is something I'd like to address a little bit more specifically. Hillcrest is a dead end street. We have a tremendous amount of cut -through traffic as it stands now but it is a dead end street. The developers have initially presented this to us as using Evelyn Hills as an entry and exit point to this new development and we just feel like that is not feasible. There is no other neighborhood in our community that counts a shopping center as an exit and entry point into their community, so we don't feel that that is a reasonable proposal. We are concerned also about our sewer service, again, I've addressed this specifically on the handout that I gave you. We are concerned that if a fire truck does have to come into our neighborhood, or a police car, the congestion at North and Hillcrest and the congestion at Abshier and College might limit that. Certainly I don't think a fire truck can tear through Evelyn Hills. I don't know that, but I don't think that seems reasonable. Number 5 — we have not yet addressed that. Traffic is critical in our neighborhood. If I had a child, I would be very concerned about that child being out in my front yard as we stand today. There are only two official ways to exit our neighborhood, North and Hillcrest which is an awkward stop sign situation with an obscured view and College and Abshier, which is also an obscured view and you are dealing with extra traffic from Rick's Bakery. I teach school. When I leave at 7:15-7:30 in the morning, it is a nightmare tangling with the donut folks, so that is already kind of scary. We are very concerned about the extra traffic that will be brought on by this development. I don't know if this is appropriate, but we would really like someone to investigate the traffic situation and study that before we move forward with this development. There are parking concerns. When the original proposal was made to the neighbors, we were told there were would be sidewalks that came off the eastern side of the development. These would be elevated walkways. Planning Commission February 13, 2006 Page 33 They go nowhere but to Hillcrest. So to me, it seems like my sidewalk that went into my townhome/condo/ duplex came off the street, that is were I'd park my car. I know for many of my neighbors who live on lower Hillcrest, if they tried to back out of their driveways and there are cars along there, they couldn't safely get out. That is something we are also very concerned about. Number 6 — the retaining ponds that have been discussed in the proposal. Several issues — will they be fenced to prevent small children from harm, will it attract mosquitoes, are they aesthetically appropriate? On a piece of property were it is necessary, it seems that if you have to build three retaining ponds on a piece of property, is that piece of property substantial enough to sustain this type of development. Water seepage in this area is tremendous. There are natural springs on this property and that has not been addressed in this particular proposal. There are lateral cracks up and down Abshier Avenue that water seeps through frequently. It creates a black ice situation in the winter even if we don't have snow and ice because the water that seeps up through the street freezes. Our neighbors have taken some pictures of the rear entry driveway of Evelyn Hills. It is at the southeastern corner of Evelyn Hills. The proposal states that this is going to be one of the access roads to the development. We have taken pictures of the significant cracking that exists in this particular driveway. We have taken pictures of the standing water on this piece of property and this was taken yesterday. Other than the recent freezing precipitation that we have had, we have been in a drought situation, and there has been water standing at various spots in this particular piece of property since Thanksgiving. It is wet constantly because of the springs. So that is something we are concerned about. My understanding and I have just learned about this in the past few weeks, that this is a full scale PZD and it requires the applicant to have every aspect and every detail of this project fully engineered. And we feel that there are still some questions that as neighbors that we don't understand. We had a meeting at Cooper Architects on January 26`h. We were not presented with a materials board where we could actually see the materials that will be used in this development. There is some question about the current owner of the property. There was an owner stated in the proposal - courthouse records do not reflect that to be correct, so I don't know if there is just a lag time in paperwork being filed or what the situation is there. There is an interchangeable use in terms in the proposal between condos, town homes and I certainly understand what a duplex is, but we couldn't get clarification in our meetings as what a condo is and what a town house is. If you live in this neighborhood, this is important for you to understand that. So we would like some of these questions answered and certainly as neighborhood members we may not be privy to all information that the Planning Commission may be, but we are a little bit concerned about some of those issues. The price per square foot, on the January 26th meeting at Cooper Architects, we were told that these units Planning Commission February 13, 2006 Page 34 would be sold for $200 per square foot. Tonight it was stated that these units would be sold for $200-$250,000 per unit and in my very quick calculations, that works out to be $80-$100 a square foot. If I understand a full scale PZD at all, which I may not, we might need some clarification as to what the plan is there. I know that many people in the neighborhood have talked to realtors and mortgage brokers in our community and asked about potential sales price of these units, and they have all felt that the initial price of what we were told, $200 a square foot was not feasible at all. During the February 2nd City of Fayetteville Subdivision Committee meeting, Commissioner Ostner suggested that the architecture firm continue to meet with and to continue to communicate with the neighbors as we moved forward. It was a suggestion, but that has not been done. We have not heard back from the developers or the architecture firm since the original meeting in January. We had a lot more questions. City Staff has been great in communicating with us but we haven't heard anything else from the developer. So that is a concern. Another concern is market saturation. Fayetteville unfortunately seems to have a glut of condos in the high-end price range. We are concerned about that and concerned about these units sitting empty — a potential for fire hazard or crime. We are concerned about, in conjunction with the price of each unit, that they may not sell. I don't know that I would want to pay $200 a square foot to look at the service entries of Evelyn Hills businesses. We are concerned that they may sit empty and be subject to vandalism or fire or crime. Real briefly, historic relevance is certainly important, Dr. Sexton addressed that with the E. Fay Jones home and I completely support those comments. Also, this issue was brought before the Planning Commission and City Council in 1991, a very similar issue to develop duplexes on this property. That did not pass for many of the same reasons that we are talking about this evening. We do have copies of those minutes as well. Due to the steep slope and grade of the land, we have a lot of concerns. As neighbors, we have all driven through there, walked through there. This is a very steep piece of property. It is deceptive because of the existing tree canopy. But it is very steep. These edges off of Abshier are very steep and even our pictures don't really do it justice. Dr. Alguire's report has some of the specific grade percentages listed and certainly you can review that. There is an existing retaining wall on the northwest corner between Evelyn Hills and the northern boundary of the property. I can't imagine that there wouldn't be extensive retaining walls needed because of the drop off Abshier. I appreciate your time. Ostner: I have a quick question for you before you leave. You mentioned there was an owner not on the list or has been overlooked. Who is that? Hopper: According to our research, we are under the impression that the property is owned by Nona Askew of Little Rock and the particular proposal that we Planning Commission February 13, 2006 Page 35 have from 112 says that it is owned by Smith 2 -Way Radio. We weren't sure. We looked up courthouse records and unless paperwork has been filed that hasn't been posted, there is some confusion. Clark: Before we go forward, Jesse, can we get copies of what was just passed out — they only went to the left, not the right. Hoss: My name is Rebecca Hoss and I live at 1414 North Hillcrest. I have been asked by neighbor, Dr. and Mrs. Woo, who couldn't be here tonight, but they wanted to express their disapproval of this project as well. I think that brings it to at least 90% of the neighbors. I have a few quick issues. Number one, I brought up notice at the Subdivision meeting that there were two signs placed on this really long piece of property and because of brush, the signs could not be seen from College, and because of brush the lower sign, if was possible to come down Hillcrest and cut through the arch at Evelyn Hills and never see a sign. Since the meeting, there was a sign put up on Dickson and also for the first time, in a number of years from people who have lived there a long time, the City came out and cut some of the brush, making the signs more visible. I argue that that doesn't cure the issue of notice - complete notice and visibility should have been from the beginning, before that planning meeting. Ostner: Was that sign put on College? Hoss: I saw a sign on College. Ostner: You said Dickson. Hoss: I apologize. The second issue is another procedural issue. On the Code Ordinance 166.06, it says that someone who applies for a PZD needs to be the owner or the registered agent of the owner. My understanding is that Chance had H2 Engineering do this and if they don't have the owner, then they are not allowed to make this and are not in a position to bring this proposal because they are not even a owner. So I bring that issue up. Number 3 — looking at the General Plan 2020 and 2025, section 918 talks about the National Register. I know that this has been brought up, but you want to preserve and protect these significant structures. We have two concerns which have already been brought up by Ms. Sexton that the Fay Jones exists in a large space and if you put walls around it, you don't have what Fay Jones was. So it is necessary to protect the street, and the areas immediately around that house. There is a second concern. This is a small street, there are no curbs or gutters, no drainage. We don't really have a problem with that street as it exists. If you widen the street, add curbs and add a sidewalk and drainage, then you are going to cut into some of the rock work and the ivy and the entry ambiance of the Fay Planning Commission February 13, 2006 Page 36 Jones house. There is also a sculpture that could possibly been a problem. Widening that street is not going to help with the traffic issues and it is going to hurt the character of the neighborhood. The traffic issue is the next point. Talking about circulation in 920 Sub R, one of the things that the City wants to head towards and consider as you look at these things, is to require new developments to demonstrate that they will be adequate road capacity before approval or issues of permit. I know that is not a requirement, but it is something you need to consider. The traffic capacity is going to increase the exit on Abshier and the congestion north of Hillcrest, which is an interesting intersection to say the least. You are going to more that quadruple the traffic trying to go in and out. Looking toward the fact that developers need to begin to address road capacity and to be able to ensure you that there is adequate road capacity before they are allowed to develop. That has not been done here. The last thing I want to bring up is that at the Subdivision meeting there were a lot of questions about the history and a lot of questions about this space and there is a lot of history to this crescent, this narrow area. I did a little research on the title of this property and found that there is a restrictive covenant which they alluded to a little bit and here are copies of the actual restrictive covenants. That was in the sixties. We filed for record and it was signed by all the owners. It is six pages long, full of legal ease but basically this addresses, this starts out that Evelyn Shopping Center's covenants with the Abshiers who owned the twenty acres, that they are ready to develop this area and they are concerned about what they are going to do as a buffer. The created these restrictive covenants and it talks about the Planning Commission telling them to do something so that this buffer would remain a buffer. And it is interesting that H2 talks about the fact that this is a nice transition. Well, frankly, ladies and gentlemen, we have a nice transition already — it is called a buffer. It works very well and it has worked very well for a number of years. This buffer was created in these restrictive covenants. It talks about the whole twenty acres. The owners filed a petition with the Planning Commission of Fayetteville, seeking to rezone from R -1A to C-2, the following described premises. This is a 150 -acre strip — this is almost all of the land, it is 158 -acre strip that runs north and south parallel to Hillcrest. And what they want to do, what they seek to do with these covenants is to create a multiple layer buffer there. They talk about the first twenty feet that now exists between where Hillcrest currently ends to the west, a twenty foot strip that they want to preserve as a buffer and not have any ingress and egress, that they want this to be beautified by Evelyn Hills and maintain, the City has a right to come in and maintain if Evelyn Hills doesn't. Evelyn Hills did in fact plant the trees that are there now as this buffer. Then, that leaves a 130' strip that runs north and south and that strip has further restrictions on it that no commercial building, and again these people were visualizing that this would only be commercial buildings because it was zoned Planning Commission February 13, 2006 Page 37 Jones: commercial, would be built within 80'. So you have 20' and another 80' where they won't build anything and they allowed them to put parking there, but the parking has to be 8' below grade in order to preserve the view from Hillcrest. Then it talks about further west you can build, but the height restrictions have to be such that it can't be any taller than Hillcrest. This goes toward the history of the land. Now I understand that restrictive covenants may not always be considered at the Planning Commission, but this does go back to the history. This talks about when this land was first developed that there was an understanding from the topography that there needed to be a buffer, that there was going to be a residential area, there was going to be a buffer, and there was going to be a commercial area. This buffer was reasonable then because of the topography, because of the springs, because of the narrow width of it and as part of the deal, if you would... oh, another thing about this covenant it specifically states that it would last for twenty years and would automatically self renew every five years. So this covenant has not expired by operation of law. It can also be novated by the owners along Hillcrest and I assure you that none of the owners along Hillcrest have signed any novation of this buffer area. I think as a matter of law you can't build on it, but here you are trying to decide if you want to issue a permit and history is important, green spaces are important and this is a perfect piece of property to maintain green space. It has springs, it is thin, it perfectly divides commercial from residential. That is all I have to say. Thank you for listening. I have one more thing to say. There is also, after this restrictive covenant in the sixties, in 1991, there was a bill of assurance by the owners of Evelyn Hills. This is from the abstract company but I do have a copy for you. This talks about the fact that in '91 the City developed an ordinance that all residential areas had to have a sidewalk. Well, the current owners, even in '91 — this just didn't disappear and go away in the sixties, Askew who owned the land recognized that this was supposed to be an undisturbed buffer. They asked for and received from the City the right not to build a sidewalk so that this land would remain undisturbed. This history continues down as you look through the title. I am Mary Elizabeth Jones and my late husband and I lived at... I am sorry, this is more embarrassing to me than you know. We have lived at 1330 Hillcrest since we built our home there in 1956. When the change of zoning for this aome up, the question was when it came up years ago, whether or not to build Evelyn Hills Shopping Center there. There were quite a few meetings like this one with opposition to the shopping center. The neighborhood residents worked out a compromise of buffer zone of either side of Abshier and Hillcrest Avenues. The buffer zone remained. We were promised the agreement would be in promiscuity. Tonight I am asking that you honor this agreement we made in full faith. Planning Commission February 13, 2006 Page 38 Wicks: My name is Jan Wicks and I live at 1314 Hillcrest Avenue, next to Mrs. Jones and I will make the final comments for our neighborhood. In summary, we would like to point out that first off, that there are numerous clarifications and we are not planners and engineers but it seems like this PZD is not as complete as it should be, given what it is supposed to be. Also, we have folks that have asked, we need clarification on things like where will the street widening be, will it be to the east or west of Hillcrest, north or south of Abshier. This among all of the other questions and inconsistencies we have been concerned about. A serious problem of water pressure exists here. We have come in masse to try to point out that is our opinion, there is not going to be enough water here to have this built. We also think is extremely important to have neighborhood continuity and to preserve Fayetteville's historic neighborhoods. This is an important part of the City Plan 2025 and we say that this is not a reasonable transition. It is not going to be luxury condos, it is highly likely to be student rentals which will destroy the character of this neighborhood. We also note limited access. Realistically you can only get in and out of the neighborhood through College and Abshier, North and Hillcrest. Both are quite busy already. We have issues of ice when the road freezes; safety when cars slide down into the hill sometimes. That hasn't been addressed. The legal issues that were brought up in terms of a promise that may be made and maybe existing. Problems of drainage and springs on the site. Devaluating the property values in the area. And above and beyond all of that, as Mrs. Jones did not complete her statement, I would like to add some points. We would like to reiterate that the Jones residence is irreplaceable and unique. We would like to point out that this may be a future educational or architectural destination, an architectural tourist destination. As Mr. Jones is not longer here, only what exists can speak for him. So, if this becomes a future tourist destination, by compromising this area, we maybe compromising future revenues that can be generated for the City of Fayetteville for something that was seen as so important that it was put on the National Register early and seen as his primary residence, and his first and primary interpretation of what he does. It could in essence destroy irreplaceable potential revenues for the City of Fayetteville in the future from tourism and interest in this area. And what is really important here is if this development is approved and goes through, it is gone, the character of the neighborhood is gone, and the character of the Jones residence is compromised. If we are coming in 14' feet from center, it is quite likely that the landscaping and the sculpture in front of the home will be compromised and that's that, so to speak. So finally, we want to say that we respectfully submit that the City's precedence and principles in the City Plan 2025 what you've done in the downtown square and Dickson, landscape ordinance, the preservation of Washington Willow and Lafayette Street neighborhood, is Planning Commission February 13, 2006 Page 39 Ostner: also very important here, and we would ask that you please follow these precedences and principles and preserve a unique architectural integrity for the City of Fayetteville, its residents and potential visitors in the future. Again, thank you all for your time. I would like to call for any more public comment. I think I speak for the entire Commission when I say thank you very much for organizing so well and covering so many items thoroughly and in an organized manner. I am going to close the public comment section and bring the topic back to the Commission. My first comment is that I would want to remind everyone here that we merely forward these issues, the City Council will have to hear it three times to rezone this piece of property. When they do that, development rights will be attached if they approve it. If they approve it three times, it could get done. They will hear it thoroughly. Their docket is at least two weeks away from ours, so I want all of your questions to be answered. I'm not certain they can all be answered tonight. I want to assure you that there is a lot more opportunities to resolve this issues. Vaught: I think we need to start by having Staff and the City attorney address the restrictive covenants and our consideration in those. I know they are important to the neighbors, but we are limited a lot of times in what we can consider on that. I wanted them to address those issues for us. Williams: I just looked at these quickly and saw that these restrictive covenants do run in favor of the citizens who live along the street there. Many of them are here tonight. It specifically gives them rights to enforce the restrictive covenants — they run to their benefits. The City has no rights to enforce restrictive covenants and so this is really a personal matter between the citizens that adjoin that street and any potential developer. I would say that we should not base our decision on interpretation of the restrictive covenants. That is best left up to the courts to determine exactly what they mean. But certainly the citizens have the right to petition the court to prevent any building that would be in violation of these restrictive covenants. I would say on another point, that I think it is up to the applicant to establish that they are the owner, or if not the owner, the agent of the owner. I think that is up to them to present some evidence of that, because that is a clear requirement of our PZD ordinance, A2 ownership. It is right there at the start of our PZD ownership. Jeremy, was some evidence provided that you are aware of in this particular case, that they are either the record owner or the authorized agent of the land owner of record? Pate: We do have copies of a warranty deed filed at the County office that indicates ownership, I believe in the Fall of 2003 to Mike Smith of Smith Planning Commission February 13, 2006 Page 40 2 Way Radio and obviously H2 Engineering is acting as their representative. Williams: That satisfies that particular issue. Vaught: To follow up on that, and I assume the applicant can speak to this. I assume there is a contract on the property, contingent possibly on an approval - that is why we are seeing two names here? Hanelly: My name is Tom Hanelly with H2 Engineering. The property is currently owned by Smith 2 Way and the application was signed and authorizing us to represent them. The contract with David Chance, who has employed us to design the project for him is, I believe it is contingent on the approval of this. Allen: I have an awful lot of concerns about this project. The restrictive covenant is one, the traffic is another, the compatibility with the neighborhood, the water pressure, using Evelyn Hills as an exit — what if Evelyn Hills decides to close off that particular area and not make it open to through traffic? It is my opinion that this item has come to the Planning Commission prematurely and I would like to move to table it. Myres: Second. Ostner: Is there any discussion? Vaught: I would respectfully disagree. I think that this has been through several levels of Staff review. I don't think Staff would forward this to us unless they felt comfortable with it. It has been through Subdivision where it was forwarded to us. I believe there is sufficient information in our packets. Not all that information was either received or understood by the residents. I know they had lots of questions on street improvements, I would hope they have access to the plats where they could see that they are on the side of the development, that won't encroach of the other neighbor's properties and things like that that were brought up. I believe that a lot of these questions can be answered by the developer, if not tonight, then by the next meeting of the City Council. I don't believe it would be here unless there was sufficient evidence for us to vote on this tonight. I will vote against tabling. Graves: I, too, will vote against tabling this. We discussed that at the Subdivision level as well and it was a 2-1 vote as Commissioner Clark has indicated. At the time, Commissioner Clark's concerns, and she can speak for herself, but it was primarily density and exit and entrance to this property. Those are certainly things we are prepared and capable of taking care of Planning Commission February 13, 2006 Page 41 and addressing tonight. Some of the other items that were listed such as these restrictive covenants are things that our City attorney has told us that we are not supposed to consider. Staff has had another eleven days to research the history of this and I assume they have turned nothing else up that would be of concern. There was quite an extensive history provided to us with this piece of property at the Subdivision level and I didn't see anything that had changed since then. So we are confronted with a piece of property that is zoned commercial and is proposed as a PZD and nothing is going to change no matter how long we table that. Anthes: Correct me if I'm wrong, I think Commissioner Allen's questions have to do with infrastructure and availability? I guess I would like to give Staff an opportunity to answer those questions before I vote either way, and see if they have adequate answers to those. My questions have to do with, let's start with water and sewer capacity. O'Neal: As with many developments, the downstream capacity of any sewer system that they are connecting to is required to be studied. There is an issue with sewer capacity further down stream. I was curious to know from some of the adjacent people if there were any sewer capacities up Hillcrest. Most of the system is going to be going to the north and I believe there is a capacity question to the north of this site. So the applicant will be required to study, to see what improvements, if any, would be required for the sewer system. To the water side of it, with this development, if it is approved, they would be required to make a connection with the existing water system that is in Evelyn Hills. Currently it is at a dead end line that comes from Hillcrest through underneath the canopy actually, that splits into two portions at Evelyn Hills and is just dead ending. With a development that was approved and was constructed at the northwest of Evelyn Hills Center, that developer extended a portion of the main toward this dead end, so this development would be required to make this connection. The problem is these are on different pressure plains. If you can see it here on your plat, there is an existing 2" water line on the east side of Hillcrest and 2 1/4 " that dead ends somewhere on Abshier from Hillcrest. The existing 6" if I remember correctly, does move to the north which is not shown here and goes back to North Street. This connection that I mentioned earlier may or may not help the residents there. That remains to be seen. I don't know that the pressures and the flow of the existing fire hydrants, but I'm a little bit limited on the knowledge on exactly what issues could be resolved with this offsite connection. Anthes: Could I follow up that same question with Tom Hanelly.... Planning Commission February 13, 2006 Page 42 Hanelly: I would like to add that it has always been the policy of Fayetteville to improve the infrastructure through development, whether it is budgetary problems or whatever. There has not been a lot of money to make improvements by the City. Nearly all the improvements that have been done street -wise infrastructure — we are dealing with it on the southeast part of town with the sewer line. Those improvements to the infrastructure would never have been made had development not come to that area. This case is no different. These people experience apparently water pressure problems on the hill. We are going to be required through the International Fire Code and everything else that Engineering requires us to do, to provide adequate fire flows and safe drinking water. And any improvements that need to be made to the infrastructure in that part of town to accomplish that are going to be the responsibility of this developer just like it would be anywhere else. We are prepared, Mr. Chance is prepared to make the investment of time and money to hire us to get this project approved on the assumption that if these infrastructure problems can't be resolved, then everything he spent if for naught. In my mind this is exactly how the process has worked and the ability to approve the infrastructure through this development is no different than any other place that we have developed around town, whether it is sewer or water pressure problems. Engineering is not going to let us make it any worse. We are going to be required to make the improvements and that is really the only way that they are going to be made. Anthes: Mr. Pate, because this is a planned zoning district with development approval and zoning approval, does that engineering have to be completed at this time before we can go forward. Pate: The discussions we are having now? That is typically done at the time of actual construction planning review. Those detailed studies are never presented at the Planning Commission. They would likely not mean much to the Planning Commission and those are typically presented with every large scale development under Subdivision at the time of construction planning review. Anthes: So let's go to the next infrastructure item with is egress and road improvements. Pate: The street improvements for Hillcrest and Abshier both are on the property side, so it is on the west side of Hillcrest 14' feet from centerline and north side of Abshier all the way to College Avenue. Those improvements would be extending a small portion of the pavement, adding curb, gutter and storm drains as necessary. The sidewalk location is something that we are going to work out in the field; we recommend be worked out in the field as opposed to just putting it on the right-of-way at Planning Commission February 13, 2006 Page 43 this time. That improvement alone would require significant removal of trees, and that is obviously one of the components of this project that we are supportive of is that the majority of the tree canopy there along that slope along Hillcrest especially, is not being removed, because we are able to make some recommendations that are not typical. So we will have to locate a sidewalk in the field with both the landscape administrator and the sidewalk coordinator. Anthes: And if I recall, it happens quite often that the sidewalk administrator recommends money -in -lieu of sidewalks in those conditions so that.... Pate: That is one of the options. Anthes: Can we talk about egress. Pate: Access, ingress and egress to the property at this point — if there were no access points, obviously it would be Hillcrest and Abshier. This is the case whether or not it is a single-family residential property, a multi- family residential property or a commercial property as it is currently zoned. However, there are components of Evelyn Hills that do allow for at least two points of ingress and egress. There is the one to the far north which is an existing drive that is utilized, I believe, by their service vehicles to access the rear of the structure. That driveway is to be improved actually. There is a grade change that they have difficulty with now. Additionally, there is one more in the center of the site that goes through directly underneath the canopy I believe, separating the two buildings to a stop sign. You can take a left and get directly to the stop light so that is a signalized intersection controlled access point. It is my understanding that with this development service people utilize those drives at all times and I would see no reason why they would be closing. Anthes: Are those dedicated through the property so they would be there in perpetuity? Hannely: Yes. Before we ever started with this, we got a signed access agreement with Weingarten who currently owns Evelyn Hills, where they would grant us access and we granted access along the north side to allow them, so we could make those grade changes on the drive to facilitate their trucks coming in and out. I know that that traffic in ingress has been one of the hot topics on this project and understandably so. There has been mention made of the ingress/egress points through Evelyn Hills. While they exist, those are not the primary points, certainly the City streets would be the ones. I would like to take the opportunity to introduce Brian Vines with Carter Burgess Engineering. He is with their traffic division out of Little Rock and has done a traffic analysis since Subdivision Planning Commission February 13, 2006 Page 44 Committee on this project so that we could better analyze and get a better idea of the traffic impact and current conditions there. He is available for any questions you may have. Anthes: Well, my next question to Mr. O'Neal was going to be about traffic and capacity on this road. Would you like to hear his report first? Vines: I am Brian Vines with Carter and Burgess. I have a couple of reports I will bring up there for you guys to look at. I don't have enough copies to go around. The one that is in the binder will have more data in it. I made the other copies just before the meeting. Just a quick note. We have not done existing traffic counts out there due to trying to meet the timeframe. So what was used in the report.... Ostner: If this could go to Staff and Engineering, it would help. In the future if the Commissioners could at least ask the Chair before we move around, that would be appreciated. Move around to different discussions. Anthes: I thought I had the floor and could ask any questions that I wanted while I had the floor. Ostner: You certainly can and calling on different people is helpfully organized if it is through the Chair. Thank you. Vines: To get this done for our meeting today, we didn't have time to get the existing counts and get the report prepared, so what we did is go ahead — you have Evelyn Shopping Center, it is a known traffic generator, you've got the residents along Hillcrest and Abshier and then you have Rick's Bakery. It is all in the same area and you can see on the first page, that is our study area. So what we did is use ITE trip generation handbook to develop the trip generation. We went on the conservative side to see what we have got out there. And today I went and sat at the site during the peak hours to see what have we've missed. What I found out there today is we do have a significant cut -through traffic that is not addressed in the report. I do have my laptop and brought it up, analyzed this. The intersection there at Abshier and Hillcrest, we do not have a capacity problem. We are still operating at a level of service A for the northbound left turn and operating at a service level B for Abshier eastbound left and eastbound right. The trucks that I did see out there today are using that south access that cuts under the canopy into the Evelyn Hills Shopping Center. What I did when I updated that traffic model, I went through and took our numbers that we had, put a factor of ten on them to see how that would operate. We still, we are not operating with the existing traffic, we are operating on a conservative side with a visual count today during the peak hours. Some of the items we had addressed. Right now you are operating Planning Commission February 13, 2006 Page 45 a level service A at Abshier and Hillcrest. You've got 24-hour volumes. With the cut -through traffic, you are going to range probably 800 vehicles a day. The report states about 400, but there was significant of cut - through traffic observed during the peak hours. For the proposed traffic for the development, we are looking at a 24-hour volume using the ITE trip generation rates of about 176. Combine that with the existing background traffic there, you are going to have about 1000 vehicles a day, which is very adequate for that intersection. Other areas that we addressed, with the topography, the letter from Dr. Alguire. I have not seen the addition today or the other letter but we did address the topography there on Hillcrest. We have an average slope of about five percent on the north end and from Woodcrest, the south access into the Evelyn Hills Shopping Center. It is about five percent. Then from that access up to Abshier, you have about eleven percent. So it gets fairly steep between that drive and then Abshier. Abshier is about five percent from College, sloping up to Hillcrest. The Evelyn Hills drive, the north drive, is a little over thirteen percent on an average. That's the one they are looking at making improvements to. The south drive is just under fifteen percent. It is fairly steep. The development drives within the development itself on average are under five and a half percent. So access to the development for those inside of the development should be fairly accessible to them in adverse conditions. It is not as steep as the existing roads that are in that area. They will have to cross the south drive there in Evelyn Hills that is fifteen percent or come out on Hillcrest and have about a ten percent grade. Clark: Did you also study Hillcrest up to North Street? Vines: No, not as this time. Clark: So you just studied the Abshier access? Vines: Now what we did, and that is what I am hearing tonight. Everybody is concerned about using Evelyn Hills as an ingress and egress. We did not channel any of the residential traffic or any the development traffic through Evelyn Hills. The only traffic we put into Evelyn Hills was the Evelyn Hills traffic that we generated through the ITE. What we were looking at there is the immediate study area at that intersection. We didn't have the opportunity or time to get Hillcrest, North or Abshier or College. Ostner: This is the addendum that Mr. Alguire referred to. Paragraph Four. Vines: I won't have you wait while I read that. In our recommendations, we recommended to bring the City streets which have been discussed early, to do the half street improvements. They are geometrically to make the Planning Commission February 13, 2006 Page 46 intersection there at Hillcrest and Abshier work, there is no geometric additions that would need to be made ---left turn lanes, right turn lanes, any kind of signalization or stop sign control. What I talked about regarding inclement weather conditions. As everyone knows you don't need to get out. But in the case you do have to get out the internal drive should provide a safer ingress/egress for that area. Anthes: Thank you. Mr. O'Neal, do you feel you have adequate time to review this report or do you need.....I'm trying to address infrastructure in regards to tabling. It looks like you are having to speed read. Pate: If I may respond. A local street, these are local streets in our Master Street Plan, accommodates at a full build -out up to 4,000 vehicle trips per day. This proposal at the intersection which would be the most traffic generated at the intersection, whether you are going out through North or Abshier, you have to go through Abshier and Hillcrest — I believe their numbers came up to a 1,000 vehicle trips per day. Of course it is not developed as a 28' wide street at this time, but this would help with 14' from centerline would allow for better traffic movement in that area. Anthes: Would parking be allowed in that street? Pate: It depends on the width. It entirely depends on how wide the street is currently. Typically with a local street, it would be allowed between the white section but I'm not sure exactly how wide that is. Anthes: I have other questions, but only one other in making a decision to table and that has to do with the capacity for development on this site. I am assuming that when the hillside was cut for Evelyn Hills that there may be some issues there and also the stated comments about the seepage and the soil conditions. I guess I'd like to know what Staff's comments are about that. Pate: I can at least respond to the capability of this property being developed a little bit. I know that there proposals generated by Evelyn Hills I believe in the 1970s to utilize this for parking on this particular site. That was discussed in our minutes on the research on this project. So the evidently felt at that point in time that it would at least sustain parking area. Of course that did not occur. As we noted in history as well, there have been other development proposals including duplexes in the early 90s. Hanelly: I'd also like to add to that that there bas been some talk about the ground water. They have been referred to as springs. I'm not sure they fully qualify as springs. They certainly do emit water from the ground. It is not uncommon around here or Mount Sequoyah or any of the other hills Planning Commission February 13, 2006 Page 47 Ostner: O'Neal: Osmer: O'Neal: Hannely: Osmer: Williams: Ostner: Allen/Myres: Roll Call: around here to have ground water coming out of the ground and those problems are easily handled with curtain drains and that type of thing, French drains for the road construction to properly be able to drain the subgrade and the foundation of these buildings as well. I would also like to offer the possibility of having a traffic count available to incorporate North and Hillcrest available by City Council. And that we would have a report available for Staff review and make a recommendation on if that was agreeable. So, there is a motion to table and a second. The questions I have before we vote. I know Mr. Hanelly talked about the probability that the water pressure and flow issues will most likely be solved if this development is approved. My question is for Staff. How many of the neighbors' problems will be solved through those solutions. I know you are going to build your own properly. I did mention the off-site connection, may or may not help the neighbors. It is unclear. That is the one connection that I know needs to be made and whether or not there are other connections that need to be made, I do not know at this time. I guess my point is that if there is not a solution to this problem, then the development goes away. I don't really consider, and I may be out of line saying this, but I don't really consider the issue of whether or not we can solve a connection for a water main at this meeting significant enough to approve or disapprove a project on. That is certainly something we have to have an analysis of this system done and provide a responsible solution that will either improve or not deteriorate the problems that exist on that hill. Any other comments on the tabling issue. Will you call the roll. This is to table this issue. I assume that every time there is a motion to table is not specific, it is to the next meeting. If you don't want to make it to the next meeting, then be specific, otherwise it will always be to the next. Does the motioner and seconder understand that? Yes. The motion to table fails by a vote of 7-2-0. Planning Commission February 13, 2006 Page 48 Clark: I have a question for Staff or the developer. How many houses are there totally along Hillcrest? Pate: There are ten between Hillcrest and Abshier intersection. I do not know. Clark: 1 think there are 21 or 27. From Abshier, how many are there? Pate: North of Abshier there are ten. Clark: I will go ahead and put my issues out on the table. I voted not to table this so I could vote against it. I probably will keep on voting against it because nothing I saw in Subdivision has changed my mind at all. I think density is absolutely inappropriate at 30 units on this site. That is the reason I counted houses. There were either 21 or 27 from one end of Hillcrest to the other. So you have 21/27 single-family homes and you are going to put 30 more dwellings there. It just doesn't make sense to me in terms of making traffic or anything else work. And water is an issue and it sounds like H2 Engineering may be able create great water pressure for the folks in this development, but I'm not sure what that is going to do for the neighbors. And having lived on that street and when I turned on my water I knew when my neighbor turned on their water. It is just nonexistent. My biggest issue is density, the second issue dovetails into it is traffic. Although I respect that we brought in a traffic engineer, if you don't look at Abshier and College, if you don't look at Hillcrest and North Street, you are not really looking at the two primary methods of entrance and exit out of this entire area. Hillcrest dead ends to the north. It empties out onto North Street to the south at an intersection that is "take your life in your hands" and I've never figured out the right-of-way there, even not living on that street. It is very dangerous. Abshier empties out onto College. It is not just Rick's Bakery folks, it is a very dangerous intersection. So if you don't look at those two, you are really not looking at the issue. To widen that street disturbs me greatly; at 14' you are going to take out a lot of significant street trees that are very pretty or you are going to take money -in -lieu of, which I have a philosophical problem with. In terms of a transitional zone, I said this at Subdivision. When you can spit across your transitional zone, it is not really a transitional zone. I don't think it is appropriate. I think the buffer is still very much appropriate for the neighbors to look at, green space and then commercial, not into somebody else's backyard. Legal issues, I'll let you all take that to court and more power to you. Architectural compatibility with the neighborhood — I like the pictures but I don't think it is compatible at all with the single-family residences that dot that area. There are some very unique and eclectic houses there but it won't dovetail in with your development. Evelyn Hills has an entrance and an exit. That disturbs me greatly. The picture depicts Planning Commission February 13, 2006 Page 49 what the southern entrance looks like and that is on one of its better days. I am worried that there aren't easements through Evelyn Hills itself. If anyone is taking this cut -through, you have to stop at a pedestrian crossing within Evelyn Hills. Okay, neighbors, how many of you actually stop there? You kind of look and go straight through. And now you are going to put 30 more units with potential of 60 or more new cars going through there? That just strikes me as incredibly unsafe. Neighborhood continuity? I don't think so And finally, I think the special space around the E. Fay Jones house is by far one of the most compelling arguments to me. It is special, it is reflective of the heritage and the history of our City from one of our most distinguished citizens, and I do not want to minimize that in any way, shape, form, or fashion and I know we can make promises, pledges, we can swear whatever oath you want to swear, but if you change it, it changes it. So I cannot support any type of high density development of this scope in this space. I said this at Subdivision and I still say that. I wish you all the best of luck. So I'll be voting against it. Vaught: I understand Commissioner Clark's points, but I would disagree with her on a number of them. I think that this type of development is what we think of when we think of transitional. Seven and a half units an acre is not a high density development, historically. We have RSF 8 districts all over town which we made and we don't call them high density development. It's a historic type of density. So I don't think 7 1/2 units per acre is necessarily high. I understand the concerns surrounding the Fay Jones house and it is important to consider. One of my reservations is that I don't know if we have any ordinances on the books, and no one has pointed to one saying we cannot let a separate property owner develop their property because of what is across the street. I think that this developer has been sensitive and I even believe they are talking about deeding some property to Mrs. Jones to possibly help protect the area across the street, if I'm correct. Hanely: I'm sure that offer will be on the table. Vaught: I think that is on a proposed donation to Mrs. Jones. Cooper: There is a little red box in the corner, an area that is denoted on your site plan that shows this little area. Vaught: To me, this site is an unusual site as well, in its location backing up to a C- 2. This site is C-2 and they could come in and here and do something with far more impact than what this is proposed. To me that is a big issue. I feel this development is a good compromise. It doesn't mirror what is on the other side of the road, these types of development are what we ask for in the downtown area, in fact we are rewriting our code to promote some Planning Commission February 13, 2006 Page 50 of these, to produce the density around services that exist. Evelyn Hills is a service, in fact by locating this type of density nearby, you could reduce vehicle trips in some ways. You've got lots of different activities within walking distance — you've got a bakery, groceries, work-out facilities, restaurants, and one bar with a dance floor, in fact I think that these are very compatible uses, in fact I feel that this is the type of use we are asking for all over town and hoping to see. The architecture of the neighborhood is eclectic. As you look through the pictures of the homes surrounding and you drive down that road, they definitely can compliment. I would like the architect to speak to one of the concerns — the uniformity of the design of the buildings. Are these the elevations we will see on every building, are they repeated, will they vary at all? Can you address that concern. This is something we look at in a PZD. Cooper: There is a variation. We alternated some of the garages to whether they were single car, two car garage, to change the elevations. We also have differences in balcony — some are open, some are more enclosed. Some project out and others project in. The garages are actually recessed into the units so they are kind of hidden. No garages facing the residences in the neighborhood. It is all internal. One of the other comments about the bridges. We felt that that was a nice gesture for the inhabitants of these units — that they could actually walk out on Hillcrest from their living floor. There is not going to be any parking on that street; if they need to be eliminated, we can eliminate the bridges. That's no problem. On this drawing you can see what this will look like if you cut through Hillcrest, you really only see the top level, you don't see the bottom because it drops about 8-10' on average. There is a lot of variation. As far as the presentation goes, we try to do everything we can to give as much information as possible as early as possible. We would be willing to get more information and more drawings and renderings if we could for City Council. Vaught: I do think it is important that these buildings address Abshier and Hillcrest. All the other homes address them. I don't want those to become de facto rears of the buildings. It is an important feature that they address Hillcrest as their main facade and the private road as a secondary - not a secondary, it's a main facade, too. I think you have two main facades that need to be addressed. I like the bridges and the idea that there could be front doors onto that street to keep that residential feel instead of driving down looking at the back of a condo building. I feel that is an important feature on these homes. More than likely guests might enter through there. But I do believe if you have garages provided, the residents will probably use the garages, for the entrance to their home. I also understand all the concerns about infrastructure, but it is a fix as you develop type system in the City and that is what we promote. I have faith that Planning Commission February 13, 2006 Page 51 Engineering and the developer will figure out what needs to be done and I think that it is important to stress to the residents that if these problems can't be overcome, they won't get their permits. This developer has a long way to go to address the issues in this area and possibly a lot of money. Hopefully, it will be a solution that improves everybody's. I don't think what was said tonight was the developer is going to take care of themselves only. I think the solution is that if this helps this developer, it is going to help those residents, since they are right across the street from each other. Any kind of pressure increase that goes to this development I would assume would affect everyone. I'm not an engineer, so I won't say that exactly. I don't think that is the approach the City takes when we are looking at improvements — let's just take care of this development. It is what can be done to adequately serve this area. If the residents on Hillcrest and Abshier have inadequate service, than this development won't happen unless it obtains adequate service which would hopefully spill over and provide adequate service. I think Engineering is looking out for what's best for the City not the developer in these situations. I'm in support of this project; I think it is a good compromise. The zoning of C-2 is a very important factor in that right now. They could come in and build some commercial buildings here and that is their right. We don't have a right not to let this developer develop this property. They have certain rights as the attorney who spoke earlier knows and you guys have certain rights. And I think your covenants that you have, I don't know if they are enforced or not, I don't know the condition of that legal battle, but is certainly something you can pursue. I think the City attorney said it is not here. Even with those, I don't know if this developer isn't meeting them, since this is a residential development, but I would encourage you to continue to work with this developer and with your attorneys if this goes forward and figure those details out. We can look at what we have before us and judge it against our codes only, and in my opinion, this meets the requirements set before us in creating a transition. In transitions it is typically, as we look at our downtown map, in the last week, you want to step down in zonings, and this is a small area, but even in a small areas, it can be effective. Hopefully you won't be looking down at the tops of buildings. You will have an attractive development across the street from you. It is not a C-2 project that they come in and do. Hannely: I would like to add one more thing that hasn't been discussed. When we did have the neighborhood meetings, one of the concerns brought up was the truck traffic from Evelyn Hills primarily from Ozarks Natural Foods and their loading dock at the northeast corner of the shopping center, pulling out and pulling through on Hillcrest and using that as ingress and egress. Part of what we have done in exchange for these access easements is agreed to make grade changes on that northern drive so that those trucks, particularly the smaller trucks (we may not be able to help Planning Commission February 13, 2006 Page 52 extremely long trailers — 60' trailers) will be able to pull up and back around and pull back out. It doesn't prohibit them from pulling out on Hillcrest, but it certainly encourages them and provides them with easier access than they have right now to go back straight out to College the way they came in. That is one of the things we have tried to do. There has been a lot said about why this thing doesn't need to go in here, there has been progress made in the things we have tried to do to improve the situation and understanding that there are problems. Commissioner Clark, I know the water pressure up there is a situation and if we are able to make that connection and provide adequate pressure there, the connections will improve, if their houses are connect to this same grid, and there is no reason for me to think they are not, they will improve the water pressure they have. If it doesn't improve it, it means they are hooked to a different grid, and we would have to go and make improvements to the infrastructure that has nothing to do with our project and that our project had no impact on. By making these connections, it will do nothing but improve their water pressure. Osmer: I have a few questions, this has been a lot of talk on one issue. I would hope that the answers could be yes, no or maybe or a short answer. Are there going to be fences around these retaining ponds? Hannely: This are going to be dry ponds and yes, they will be eyesores and yes they probably to promote mosquito growth, but we are required to put them in and if we made them wet ponds, we would certainly consider fencing them. But for the period of time that these things will have any water at all, we will not fence them. Ostner: I understand the EPA has rules and we cannot vary those. I would tend to disagree with the mosquitoes. If it is built properly, and the plants are appropriate, it should not be a mosquito problem. On the materials board I would encourage the applicant and your group to get with the neighbors and try to get some sort of tactile representation. And the Council would appreciate it, too. I don't believe it is required, but it does seem that a short palette would help. On the condo versus townhouse, Jeremy, correct me if I'm wrong, but on a condo, you basically own the interior what you see and a townhouse you basically own some dirt, possibly some outside dirt. Hannely: I think $125 is what I used for the lower end in case he chooses to sell them for that. $125 a square foot for a property is still a nice property. Ostner: I have to take offense to some of the comments, the trash can versus the dumpster analogy, tends to go too far. There are situations throughout this town where single-family uses abutt multi -family uses. That is not a Planning Commission February 13, 2006 Page 53 terror. That is the way this town is. That statement tends to go too far into the fact that they are not welcome here, that we are welcome here. I would take offense at that. The fact that they are dumpsters versus trash cans really doesn't really make any difference to me, in fact I think it is a good thing. Mixtures are what make this town interesting. We've been here a lot talking about that. On the comment on the "privileged place", I would tend to greatly disagree, I'm sorry, the comment period is over. The Jones property is privileged, it is important to me. I appreciate the applicant's efforts to give land or to participate to promote a solution with that interaction to where your property runs near the Jones property. I'm not sure how that solution will come about, but I think it is a good step in the right direction. Since I was at that Subdivision Committee meeting, I did vote to forward this, but in my opinion, Subdivision is sort of a nuts and bolts step. We rarely talk density and larger issues at Subdivision, because there are only three commissioners and all nine of us are here tonight. I appreciate everyone's comments. I voted to forward this because I thought it was mechanically intact, that the minimums were being met to come forward, not because I thought it was appropriate that I would vote for it per se. I don't think any of our votes at Subdivision are a precursor to our votes tonight. But density is a concern to me. Seven units per acre on a map from a distance, when it is two inches wide, do look good. There is low density in the neighborhood. There is heavy commercial use. What a great buffer. But, on the slope and with the situation of this lot, the way it is shaped, I'm thinking seven is too much. This is not an easy decision for me, because there are so many parts of this project that I like. I really wish it were around six units per acre. I haven't done the math, if that comes to four or five or eight units being withdrawn from the 30 units, I would probably be in favor of it. I would wish we had more information, I understand this is not an engineering board or a math, or a water pipe board, but we do often sit here at this level and require off-site improvements. It is generally streets, things that we can see and measure, obviously that don't require extensive engineering. If off-site improvements are required to make it a good fit or a fair balance, as Mr. Hannely has spoken to, I would really hope that those off-site improvements to get installed and do benefit these people who are adjacent to this project. I do understand that some could say that no detriment, zero impact is a fair statement. I'm not sure that is the best way to look at it. And my last question, is there a stub out to the north? There is a large 10-12 acre vacant tract. Pate: Stub out from this development? Ostner: Yes. Planning Commission February 13, 2006 Page 54 Pate: There is a access drive that is east/west adjacent to the north portion of this property. Ostner: Is it truly adjacent to the property line? I don't have the details. Could that be a stub out in the future? Pate: There is a street stub out from Hillcrest that actually continues north from this direction. Hannely: I believe Hillcrest actually bounds the eastern edge of that property that is adjacent to our northern property line. Ostner: That appears to be a driveway as I drove through there. That is public right-of-way? Hannely: A portion of it is. Ostner: That answers my questions. Cooper: There is a letter attached to the back of the handout that addresses the trees that are just below this property that the guy in charge, O'Bannon, of the company that handles Evelyn Hills. He just addressed the issues and their take on that land. You might take a look at that. That is what you asked for at Subdivision. Ostner: Yes, thank you. Just to comment, the representative of the Weingarten Group says that the area on our map, the area between the green door and the southern part of this project, they have no plans and they don't foresee any development along that green space. Clark: Pate: Clark: Pate: Clark: You mentioned north to Hillcrest, is there potential for it to further tie into Ash or whatever? I thought they built a house square in the middle of that. These maps.... Yes, there is potential and if there is ever redevelopment in that area, it looks like from our maps, the right-of-way extends on further north than this property. I know there is a house back there but thought there is another one where you come into that curve — Sycamore or Ash. There is one there, yes. It won't ever connect or the likelihood.... Planning Commission February 13, 2006 Page 55 Hannely: If I could just add one more thing — mention was made of water study, sewer study, off-site improvements, and in the findings section, and I'm not sure exactly how they compare to conditions of approval, but the finding is "public sewer will be provided to the project site pursuant to City Code, to study the downstream system shall be conducted by the developer. Substantial improvements to the sewer system may be required which includes other off-site improvements" So we are already being held to that and the exact same verbiage is used in the water system as well. As part of the approval, if I am understanding this right, we are going to be held to these standards. We are going to study this and whatever off-site improvements need to be made as determined by Engineering, will be required. I invite you to include the traffic as well. We would conduct a traffic study and whatever conclusion was come to for, after those traffic counts were done and those critical intersections were analyzed, the improvements that needed to be made to facilitate good traffic flow around this development, would be included as part of this development. I know that it is kind of an usual area and there has been some emotion involved, but in my mind, Mr. Chance is still being held accountable to every other criteria that every other developer is being held to. You are not approving something that gives him the opportunity if the traffic study comes back and it has a negative impact, the ability of him to develop it without doing the needed improvements. Everything I have read here comes back to that. I know this may be trivial, but your comment about the trash can versus dumpster brings me back around to our initial dispute with one of the conditions of approval that we would like to take and discuss with Solid Waste, the ability to either have roll out or if they are not agreeable to have rollout service on the trash, that we would provide a centralized location. But we would like to have the opportunity to at least discuss that possibility. Allen: Primarily, because of my concern about the density along with compatibility with the neighborhood, along with outstanding concerns about the covenants that I'm still not clear about, and the water pressure. Also concerns about egress, I am going to move for denial of R-PZD 06- 1883. Myres: I'll second. Trumbo: Addressing Commissioner Allen's concerns, for those exact reasons, I am going to vote against the motion to deny. I've heard enough to have confidence in Staff. This isn't their first development, these aren't the first time we've had these issues. Quite frankly, I'd like to move this forward to the City Council. This debate needs to be had at the City Council. That is where something is going to get done one way or another. So I will be voting against denial of this. I think it is time to move it forward. Planning Commission February 13, 2006 Page 56 Vaught.: I have a procedural question for the City attorney. If we vote to reject the denial, we can then make a motion to approve, is that correct or should be have a motion on the motion? Williams: Well if the motion to deny fails, then there should be a motion to approve following it. Lack: I would like to clarify one thing with Staff. Would you tell me what is the current street width? I was unable to read it on the plat that I have. Pate: There is actually a dimension on the plat — 19' wide. Does that sound about right, Tom? Hannely: It was between 19' and 21'. Lack: So if we say that there is an average of 20' wide, you have a 10' drive lane. It will go to 14' on the one side with curb and gutter, that will give us a 24' street, that parking would not allowed. Is that correct? Pate: Lack: It likely would not be allowed, because it is not improved on the other side; there is no curb or gutter there to maintain that asphalt edge. So most likely it would not be allowed. Transportation Division typically makes those decisions. That was one of the concerns of the neighbors I'm not sure we addressed, or if we did, I may have missed it. I think that would be pertinent in that they are backing out of steep driveways onto this street. Mr. Hannely, can you tell me if you have addressed that, or be willing to address that. Hannely: We have in fact already addressed that. If you go by the parking code, Jeremy, I think our parking by standard code for the facilities we are proposing is over what was recommended. That was part of the PZD, we wrote our own parking requirements. The reason we did that was so that we could discourage on -street parking on Hillcrest. We have parking provided on the drive lanes, the west side of both, the northern and southern parcels. Both have parallel parking which is above what would normally be required by the Code. We did that for that exact reason — to encourage people to park when they had people over, or whatever, to park in the area that we were trying to designate as parking as opposed to parking on Hillcrest. I don't know what the mail situation is out there, but the walkways that are being proposed are nice for getting your paper or mail, if mail was being delivered on Hillcrest. That was part of the rationale behind them, but we did not intend to allow on -street parking. Planning Commission February 13, 2006 Page 57 Lack: Generally, I am an advocate of on -street parking, but in this location and with the neighbors concerned, I would hope that would be prohibited in this area. When I first heard the proposal of this that was going to come before us, I was very alarmed and concerned in that my perception of the area, and I have been through that area numerous times, have been a cut - through traffic person, and have enjoyed viewing and understanding different houses in that area. After that shock, I did go and drove through the neighborhood and I have to say that the area that I have not recognized before, because I had looked at the houses, is the area that of a wide bench that this development would sit on, and I think the engineering items that I have seen and that have been presented, I feel comfortable, can all be handled. I think that the development, while not directly in the same appearance at the existing structures, can benefit the neighborhood in that these structures, while they are more modern and dense than what it there, will clean the area considerably and in my opinion, will held the overall appearance of the area. I think that it is of great concern that the Fay Jones house is there and that we respect that. I think that what happens across the street from this should not affect the potential for this to be the great destination that it will be. I have traveled across the country to visit the homes, studios and buildings of architects directly as a destination to visit those and there is always a diversity of the neighborhoods they are in. There is always a context that they sit in and that context does not necessarily make up the importance of that structure or demean the importance of that structure. I wanted to find out about the street width and record some opinions why I will be voting no for the denial of this. Graves: I have a question. We have discussed density a lot as it is zoned right now, density by right. I know they can build something commercial there, but what residential could they build there? Pate: Vaught: Pate: The C-2 Thoroughfare Commercial allows up to 24 units per acre as an accessory residential use. What kind of controls - PZD gives us a number of controls — what kind of controls to we have on that development when it came through? It was far less than the PZD, would it not? It would, there would not be the compatibility discussion with the adjacent neighborhood, because it is zoned so there are specific rights that are allowed. We would have the same discussions about infrastructure as with any development. That would have to be addressed. But as the code states, the developer can only be required to install off-site improvements where the need for such improvements is created in whole or part by the large scale development. So improving existing problems do not necessarily have to be borne by the developer. It is nice when it is, and Planning Commission February 13, 2006 Page 58 that is how we get improvements realistically, in a lot of ways, looping water lines, connecting sewer lines and things of that nature. It is not necessarily the responsibility by code of the developer. If it were residential as part an accessory use, there are no residential design standards with our current code. The same thing with single-family - there are no residential design standards either. They commercial components of it would have commercial design standards in effect. Anthes: I would like ask the City attorney a question about the significant or landmark structure. This is a conversation we are having in regards to the downtown code as well. I wanted you to comment if there are any factors we can take into account around historical or significant structures. Williams: I am not aware of anything in our code that speaks to that for actual protection of historic structures. There are probably some State law issues. I don't know if this is on the Historic Register or not. Anthes: It is. Williams- Mine is, too, but I don't know if I have any particular rights to control development that occurs on someone else's property across the street. I am not aware of any, but there might be some, but I don't know what they are. Ostner: I have basic understanding and when a building is on the National Register, basically the only protection that I am aware of is that any Federal monies must go through extra studies before they are expended. That is a cursory understanding. Pate: The only thing that I know of in our code is the view protection section under Planned Zoning Districts and if the Planning Commission establishes special height or position restrictions where scenic views are involved, you would have to qualify it as a scenic view. Anthes: I'd like to echo a lot of Commission Lack said. When I first heard about this proposal, I too had this perception of where are they going to put it and isn't it steep and the other issues we brought up this evening. Then I went and spent some time here. I use that street regularly to go to Pulse Fitness. I drive through the neighborhood and go to the Co-op. I had never really taken note of these particular parcels going through there, because I am looking at the houses or the Jones House. I was extremely surprised when I went by and saw there was quite a large piece of property and a large amount of flat area, flat, buildable on that parcel. We are seeing more and more of this kind of situations as Fayetteville grows because the easy to develop property is done, most of it is taken. That is Planning Commission February 13, 2006 Page 59 why every issue, hillsides is coming up and we are looking at these kind of infill sites. Tonight the City 2025 process was referenced. Obviously we don't have any recommendations for that yet, we have just had two public meetings (I attended both on Saturday), and every single map that came out of those two meetings, unfortunately there is a meeting going on tonight that we are missing. But every single one of those maps I saw had generated by the 100+ people that attended, had colored dots representing density and they all run up and down College Avenue. People in this City seem to be saying we want to infill our City, we want to add density in our City center and we want to add density close to transportation infrastructure and we want to redevelop College Avenue. We have a situation where we have a C-2 zoning that would allow 24 units per acre with very little restriction on the design. It seems to me that this proposal is much more in keeping with the neighborhood. There is more control on it and in fact, I would submit that because of the elevation and we are looking at how this sections work that the elevations along Hillcrest will approximate a single-family one story residence because that is all you are going to see is that top story along that street. They are going to retain the tree buffer. I don't see that a vote for this proposal would be out of keeping with what we are consistently approving in this City in infill sites and as transitions between commercial and single-family residential neighborhoods. If we are looking at voting consistently as a body, it would seem to warrant a yes vote for this development. I am also looking at access in this area and ways in and out and I have to look at what you are saying about the numbers of homes and the number of people here. We are regularly approving subdivisions that have many more car trips and many more people, even on hillsides going in and out of even fewer exits and entrances than are available on this piece of property to these cars. Because these units each have a garage that front on a street that is off of the steep streets, actually on the flat areas where the roads are proposed, I would support a roll out service for this, if the City were able to pick up at those interior streets, which I think would be more in keeping with the area. Ostner: I have a question for Staff. Before I vote for this, I need to know if the fire truck has access to go through Evelyn Hills in an emergency. I know they have certain maps when they make calls and certain areas are off limit and certain areas that they are allowed to go through. Do you know if there is a fire in the far northern unit, it obviously much quicker to stay on College, turn at the gas station and go flying dead east to get there the fastest, instead of weaving through this development. I don't want to impinge on private property. I wonder what that situation is. Pate: Honestly, I would hate to answer for the Fire Department. I'm sure they have criteria by which they measure where the access a structure. I'm sure Planning Commission February 13, 2006 Page 60 the truck that is sent is a factor, the length of it, the wheel base, and radius. I'm sure their time of response and the easiest way to get to that particular structure is involved in that analysis. Obviously, if there is a fire in the north structure, the Ozark Natural Food at the rear of that structure, they would probably access through Evelyn Hills and whether they would continue on up to Hillcrest from there, I am not sure. Ostner: I think that is crucial for the Council to know. If the Ozarks Natural Foods is on fire, it is its own property that the fire truck goes through. Fire trucks generally don't run through the next door neighbor just to get to that guy; I know they can, they can do a lot of things in an emergency I think that is important for the Council to know. I'm surprised I skipped this. When a multi -family is next to a single-family the connection is crucial. Often there are rules in our books that say, put up a fence, put up a buffer, block it. I think that is totally counterproductive. Those fences do not make good neighbors. The bridges proposed here are crucial. If I vote for this, I would hope the City Council does not remove those. When those neighbors have that bridge to walk to Hillcrest or Abshier, they can become a part of this neighborhood. Without those bridges, they completely face the other way, they don't have access to the green space or the public right-of-way, newspaper, jogging, being friendly. That's when the problems occur, when we wall things off. Those bridges are a great design element and I wish that with the City Planning people here that they could help rewrite our codes, that different developments need to interact instead of being walled off. We do have a motion to deny this. Any further comments and the second. Call the vote to deny. Roll Call: The motion to deny R-PZD 06-1883 fails by a vote of 3-6-0. Vaught: I will make a motion that we forward R-PZD 06-1883 to the City Council finding with the Staff on the road improvements and the caveat that the sidewalk placement will be studied. I think it is very important we maintain those trees on that side and I would even be in support of money - in -lieu if that was the Administrator's best option. I don't know what condition it was that addressed solid waste — it be changed to read coordinate with Solid Waste for the best option of centralized pick up or roll cart which ever they deem feasible. I think that is a flexibility that I don't think would hinder or deter anybody and could be a good option, and all other conditions as stated. I would echo the comments on the architectural designs that I said earlier — I feel the bridges are important so that these buildings address these streets and don't wall them out. Graves: Second. Ostner: Any more comment? Call the roll please. Planning Commission February 13, 2006 Page 61 Roll Call: The motion to forward R-PZD 06-1883 carries by a vote of 6-3-0. Planning Commission February 13, 2006 Page 62 CUP 06-1913: (PENGUIN ED'S, 523): Submitted by ED KNIGHT for property located at 230 S EAST AVENUE. The property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 0.56 acres. The request is to approve an existing non- conforming use of a restaurant (Use Unit 13: eating place) in the R -O zoning district. ADM 06-1937• Administrative Item (ARCHIBALD YELL BOULEVARD ROW DEDICATION VARIANCE): Submitted by Planning Staff for property at 230 S. EAST AVENUE, Penguin Ed's B & B Barbeque requesting a variance of the Master Street Plan right-of-way for Archibald Yell Boulevard (State Highway 71 Business) in the manner indicated to allow the existing building footprint to remain within the right- of-way. Pate: These two items are associated with Penguin Ed's which is located 230 East Avenue. The property is currently zoned R -O Residential Office and contains approximate .5 acre. Staff is recommending approval of a conditional use on this property to allow for the existing use which is a restaurant. That property is never had a conditional use permit granted and the applicant is wishing to expand on the property. Any expansion of a non -conforming use requires a conditional use permit. There are eight conditions of approval, most of which are pretty standard. The applicant also went through the Board of Adjustment because the existing structure encroaches within a building setback. A similar requirement requires that if you have a nonconforming structure that does not comply with setback requirements, zoning requirements, you also have to get a variance issued by the Board of Adjustment. The third issue in the next item is the Archibald Yell Boulevard right-of-way dedication. This structure is currently within the right-of-way so it is actually located within Arkansas Highway and Transportation State right-of-way. This is not a request to vacate that right-of-way, it is a request to alter the Master Street Plan in this location because it does require 55' from centerline for Archibald Yell. The request is to reduce that and the recommendation is to reduce that from 55' to 35' and that meets with the current Staff recommendation that the Street Committee is discussing to reduce streets rights-of-way along College Avenue and Archibald Yell. This item would have to go before City Council, the conditional use would not; it is approved or denied at the Planning Commission level and with that Staff is recommending approval of both of those items. Ostner: Thank you Mr. Pate. Is the applicant present? Knight: Ed Knight, I really have nothing to say other than I, too, go through Evelyn Hills myself. I'll answer any questions you might have. Ostner: I will call for any public comments. Seeing there is no public comment, I will close the public comment section. Planning Commission February 13, 2006 Page 63 Clark: Mr. Knight, have you read over these conditions of approval and do you agree with them? Knight: Yes I have. Number #4 — the building permit process, a full landscape plan. Basically it asked me to plant trees where there are trees already or to plant trees on Archibald Yell which one of two conditions exist if we did that — one, it would hide the driveway and the view of people coming out creating a safety problem, or two, if I put some trees up there, which I'm not opposed to doing, according to some proposals to do Archibald Yell improvements, call for some tree plantings, I might not be planting the right trees. I'm glad to plant trees; I've planted some along there already anyway. I'm not sure to the south — I own all the property on the south side there any way and basically right now it is lots with trees on them. Am I to believe that I would need to plant some additional trees there? Pate: Actually, we had a couple of neighbors come in and asking about this request. They evidently live to the south of this property. This is not actually part of the conditional use process, but it is allowing the applicant to know all of these conditions. Any time you have a building permit, you are expanding a building, and you have a nonconforming parking lot, that percentage of expansion also requires improvements to parking lot which may be one, two, three or four trees, it is 18% evidently of the gross four areas. Knight: There would be no place for me to plant a tree between the edge of my building and the edge of that parking lot. I'd have to tear out the parking lot. Pate: That is something we can work out on site with you. Clark: I would like to make a motion to approve CUP 06-1913 with the stated conditions as indicated. Myres: I will second. Trumbo: Just a quick question for the record. You realize that this is still in the State's right-of-way? Knight Yes, actually a corner of my building — there is a four foot section of the comer of my building that basically we don't own it. Trumbo: I just wanted to make sure that you knew we weren't vacating that as well. Planning Commission February 13, 2006 Page 64 Knight: They can have it back any time they want. I clearly understand that. Ostner: Any further discussion? Will you call the roll please? Roll Call: The motion to approve CUP 06-1913 carries by a vote of 9-0-0. Ostner: The tandem item has already been presented, item ADM 06-1937. Clark: I will make a motion to approve this item. Myres: I will second. Ostner: Any comments from the applicant. Any more discussion? Will you call the roll, please. Roll Call: The motion to approve ADM 06-1937 carries by a vote of 9-0-0. Planning Commission February 13, 2006 Page 65 ADM 05-1839: Administrative Item (BY-LAW AMENDMENT): Submitted by Planning Staff to amend the Planning Commission bylaws to specify the amount of presentation time for both citizens and the applicant. Pate: You have in your packet in the numbered pages the brief Staff report. This has obviously been tabled several times dating back to late 2005, last year, and also there was a request for several different jurisdictions and what those jurisdictions do. Those were compiled for you two meetings ago. Additionally, I passed out after we realized the actual by-law amendment, the draft of the by-laws was not in your packet. That should be before you, I passed that out at the agenda session last Thursday. At this time the request by the Planning Commission essentially is to review a by-law amendment to insert in Article 3, Subsection H, the following language, "Presentation by an applicant shall be limited to ten minutes, a speaking time limit of three minutes per citizen shall be enforced by the Chair. Extension of speaking time for either the applicant or a citizen shall only be allowed by unanimous consent by the whole Commission". That is the last we left it, we have discussed several different alternatives and I'll let the Planning Commission discuss further. Ostner: Thank you Mr. Pate. Commissioners, who would like to speak? Clark: I have a question for Mr. Williams. Is Subsection H of our by-laws, it reads, among other things, that the Chair shall, etc. etc. and also the Chair can limit or regulate the scope of the inquiry. Does that mean what type of evidence the applicants can present, or can limit the scope of inquiry also have ability to put time limits in? Williams: I think he could limit the amount of a speaker's time, if the speaker gets redundant and repetitive, so I think that is almost an inherent power that a Chairman of the Planning Commission or the Mayor would have regardless of what the rules say. I think the Chairman has a right to keep people on point and to limit irrelevant and repetitive statements. Clark: Allen: Because I noticed that the honorable Lionel Jordan when he was acting as Mayor last session put a time limit on summations, and said let's keep them at ten minutes. And I thought that was a limiting..... I just wanted the definitions. I know the Council doesn't do that often, but it was very effective. I'm hoping this is the last time to make comments on this, because I hope we vote on this one where the other this evening, I think very clearly we have met the enemy and it is us. We are the ones that talk a long, long time -as the old person on the Planning Commission, I know that many more things are coming through the Commission than did six years ago, Planning Commission February 13, 2006 Page 66 but I also look at minutes of old meetings and the discussion by the Commission grows and grows and grows. I don't believe it is the applicant, I don't believe it is the public. I don't think we have the right to, obviously we have the right, but I disagree with the idea of curtailing time limits for the public. I think we can suggest that they not be repetitive, but people go away from situations feeling better whether their item went the way they wanted it to or not. If they feel like they have had an opportunity to say their peace. I also think as the workers for the Council, that we obviously can change our by-laws, but I don't want us to be precedent setting. The Council hears these items and I feel it is our responsibility as Planning Commissioners to do the same. I will oppose this and any amendment thereof. Vaught: I was going to propose an amendment. I think the one thing that most people do not like, one of the things, is the unanimous consent to extend time. I think that is something along the lines of a simple majority like a six -vote approval would be a better solution. I don't know how we would word that, by a six -vote or majority is fine to extend time. I think that this type of rule has lots of precedent. I don't view it as curtailing speech. Most people, as the folks we saw here tonight, exercise many means of communicating with us. A lot of the presentation was somewhat redundant to what we had already received, in fact they read a lot of what we already received. I don't know if I need that stuff reread to me. It is our job to listen to them, but we can have policies to help expedite. I think this Subsection is a lot stricter than what we do. A lot of material that was presented was not essential, a lot of conversation was bridged into about price per square footage. There were a number of things that were bridged and were discussed that I'm not comfortable with, because they are things we should not consider and are not essential. I don't think that it is the Chairman's job to interrupt someone ten times to tell them that. I think that if we have a formal policy, it will help expedite the process and help them stay on point. So I would vote for this amendment. I am not opposed to it. I think it could be a productive thing for this body and as Fayetteville grows and more and more stuff comes before us, it becomes more important. It is not curtailing the public, it is free speech; it is just one means of speech. They have ten other ways to communicate with us and communicate with the public. Myres: I just want to be redundant and say again what I said the last time.... If we are going to curtail the time that the public and applicants have to address us, I think we should curtail the amount of time we have to reply. Because Commissioner Allen is absolutely right, when you go back and read the minutes of the meetings, it is us. We met the enemy and he is us. And now I am doing it. So having said that, I can't vote for the amendment as stated. Planning Commission February 13, 2006 Page 67 Graves: I was just going to say that, for example, on the project on Hillcrest, we were presented with a document that said that they were going to take 14- 20 minutes and it took 47 minutes for them to make the presentation, most of which, as Commissioner Vaught has stated, was repetitive of things that they had deluged us with in writing, in the mail, it was in our packet already. That's not to say that we don't take a great deal of time and consideration because we are the decision-making body, and I don't think it curtails speech, what it does is make them more efficient in making their presentation. The way it is stated right now, it puts the Chair in a bad position of have to subjectively decide when something has gone on too long and making it more objective is actually a better position for the City to be in. Vaught: I want to respond to Commissioner Myres statements about our conversation versus the public's. I think a lot of our conversation takes place because we are charged with making the decisions and there are a lot of details and with every new ordinance we pass, there are more issues to discuss. Our conversation is essential, so is the public's comment, but not necessarily in a verbal presentation that goes on for an hour on an item that we have had weeks of hearings and have received ample information. We are working through facts most of the time, we are coming to conclusions, we are asking the questions for the public and the City to make those decisions, so I believe that part of our prolonged discussion goes to new ordinances like PZDs which opens up more things to be subjective to our decisions. I roll off this Board in a couple months, I guess it doesn't necessarily affect me greatly, but as a member of the public, I'll be back if something is going to affect me. I find that if I was a member of the public, like Mr. Knight was on that last issue and I'm required to stay until 11:00 at night because comments from a prior subject ran on for two hours, I would be frustrated because I wouldn't feel like I had or if I was a member of the public wanting to speak on an item. I think we owe it to them. We are actually limiting their speeches in ways just as we moved Mrs. Jones' item on Abshier forward so she could speak. A number of people can't last to the end or can't make that kind of commitment to sit here for five hours. So I believe that this ordinance doesn't limit it, but could actually give more people a voice, not limit the voices that are heard. Allen: I can agree with everything you have said except I still think that if you look at the cell tower discussion tonight, there was no public comment on that. The entire hour and five minutes was our discussion again about the pros and cons of a cell tower which we have had before. So we are guilty of being redundant. This is a forum, sometimes the only time people get to hear what we have to say or the public has to say or the applicant has to say, or the people who object to it is what they see on television. It is a Planning Commission February 13, 2006 Page 68 public forum for discussion. If we are going to limit the amount of time people have to speak, then I think we should be careful about the time we take to reply or respond to that. That is the only thing I am saying. Ostner: I am going to say something on that. Yes, we should be careful. I'm not sure minutes per item is productive. More than details, I come here to hear what you all have to say. We are supposed to get the agenda, technically, and not go figure it out. This is where we figure it out. We are supposed to go on and on. Now, we are not supposed to be blowhards and way too far. I don't think we do that too much. The cell tower went a long time; I let the applicant go a little bit too long. I learn something from you guys. I think that is a great idea. A lot of new ground was covered. We really ought to have a plan, a two -meeting task force, coverage issues. On the other side, I have been an applicant before and when the public speaks, yes, they are speaking. I want these guys to talk more. When they sit there and it is quiet, quiet, no, I'm thinking, great, what do I know. I don't know anything about how they value things, how they perceive their code, how they perceive their City; I don't know how to develop there because they won't let me in to their thought processes. We are not shy, we don't suffer from that at all, but I do think that is off the point. If we are going to stop at 10:00 every night no matter who is on the docket, now that is a motivator for us to get it going and them to get it going. Several of these in there do that. They say, I forget which city Mr. Pate brought in here....Fairfax County, VA meets 75 times a year, that's twice a week. They are done at 9:00 because they meet twice a week. So, I think we need to discuss more, more carefully, but if we are going to talk about them being limited, we really have to think about power points and we have to think about what is that applicant going to do. These neighbors were pretty well organized. We have some applicants that go way too far and if I am going to stop them, I don't know if he is really half way into his presentation or if he is done with it and wasting time. He didn't have any criteria before tonight, so I would like something for those people, the public and the applicant to gauge how much to I write down when I am going into that Monday meeting. Right now they do whatever. Graves: Basically, I am in agreement with you on that, because for example, on the cell tower, probably about half of the time allotted the cell tower was the same presentation that we have seen on every other cell tower. The fact that an applicant comes in here knowing they have a certain amount of time to make their presentation, is going to make them efficient and organized in making that presentation and getting through it. There has been such outrage and concern over this by-law change, that we have had precisely no one from the development community or the public show up at any of the numerous times it has been on our agenda to discuss it. So I expect that all the hand wringing over what it might do to the public's Planning Commission February 13, 2006 Page 69 ability to make comments and to the developer's ability to make their presentations, is probably our own self delusion and not reality, because they are not here complaining about it, and they haven't been. And that is why I am going to support it. Ostner: Are you saying you think we are more important than we really are? Graves: Potentially. Lack: I think I would concur with the idea of the majority vote to extend time. I think having been an applicant, ten minutes is plenty of time, more than enough time for some projects and not nearly enough time to explain some projects. That would be one method to be able to bridge that gap, to make that more user friendly and the same could go for the public speaking — they could ask for more time. I would be agreeable to increase the timeframes to 4-5 minutes for the public and 15-20 minutes for an applicant. In that we know that sometimes that timeframe is not enough and I think what we really want to do is knock out the few people that really go overboard and really ramble. So maybe the limitation of three minutes and ten minutes would be a little short, but I think I would like to ask the City attorney if there would be any concern for liability to the judgments that we render and if the timeframe was not strictly managed. Williams: I think as long as you are setting a reasonable timeframe, someone can explain themselves that I don't think that would be a real problem. I think you can set times. What I would suggest on this unanimous consent or majority vote, I would say that you should probably, if you want to amend that, you should say that time can be extended by unanimous consent or majority vote. The reason I said unanimous consent so you won't have to have votes all the time. The Chairman looks around and says can we extend time, everybody nods and then you go on, instead of let's call the roll again. But if you want to amend it to just say by unanimous consent or majority vote, that way hopefully you won't have to constantly be voting up here to give someone another minute. Lack: My concern was that if an applicant took an extra three minutes and the Chair just didn't happen to catch him that time, our system of timekeeping, which is a concern with this, if that were not handled exactly properly on certain occasion, could that be means for somebody to question the ruling in that the proceedings were not handled by ballots. Williams: I couldn't tell you that people would not challenge that and try to use whatever they can if they are on the losing end of a vote. I think as long as you are taking reasonable measures to ensure fairness to both sides, I don't think that would be something the courts would look at. The court Planning Commission February 13, 2006 Page 70 would probably demand there be some public comment, although I have, some city councils for a long time did not allow public comment during the agenda items. They would allow public comment before or after — I think the Quorum Court was like that, too. That was not grounds that I've ever heard of to challenge what the Quorum Court had done or that the City Council had done. In Fayetteville, we go beyond many other bodies allowing public comment. I think that is good so I don't think by setting some reasonable time limits that we would have legal problems. Lack: But if we didn't adhere to that? Williams: As long as it wasn't slanted in one way or another. I don't think the courts are going to look real carefully at whether or not we gave somebody three minutes and somebody four minutes. I just don't think that, as long as someone has the opportunity. Allen: Since I am leaving the Commission, I could hire on with a gong. Anthes: I have listened to both sides of this on several occasions and I go back and forth and you know what it really boils down to, to me, is that if people know the rules and what is expected of them, they generally police themselves and behave accordingly. And I think what we are missing the boat on is that most members of the public or the applicants don't read our by-laws; they have no idea what is in them, they don't know what we are expecting. To me, it seems the best thing to do is leave our by-laws alone and print a sheet of paper that goes out there on the podium with the agenda that says or on our website, or whatever, that basically says, we would encourage you to do X,Y and Z, because of these reasons. And I would really like on the bottom on page 5 of our Staff report — just the last two paragraphs — "in order to minimize repetitive testimony, organizations are encouraged to have only one person speak for the group with the other members of the organization standing to show their support. Each person may testify once." It kind of gives rules and an outline for it. I also think we could some things that might be able to expedite our process, because we generally have a sign -in sheet, someone walks up, and we wait for them to sign their names, they introduce themselves. And if we wanted to, if we thought it would help us along, what Douglas County, CO does which provides a sign-up sheet at the front of the speaker area, so that people are queued up, signed in and ready to go. Sometimes happening, they are on their way up here and we minimize those kind of lag times in between when people are speaking. If we stood back from the legal terminology of the documents, what can we do to be helpful to help people understand what it is we expect them to do and tell them why, we may have no need to sit up here with a clock. Planning Commission February 13, 2006 Page 71 Clark: I like that idea. That is the best idea that we have heard. I would even go so far as to say that if we are going to change the way we do business, why does the applicant speak first? I'll ask that question simply because we have sat through agenda, Staff has shown us everything, some of us have been at Subdivision and seen material boards. We certainly see material boards at agenda. The project has been discussed and typically we have the Staff report again at this meeting, the applicant then tells us all over again and then the public speaks raising concerns or whatever, and then the applicant speaks again to address the specific concerns. Why can't we have the applicant follow all the concerns? And amplify on the project and answer questions, much more on point. Our Staff gives us thorough, thorough presentations about these proposals. If it means the applicants turn in more drawings, more elevations, more material boards, then go over them in agenda, then hear the public, then hear the applicant. I'm concerned about who is going to enforce this, who is going to run the stopwatch, are we giving the applicant ten minutes to do both, because typically we let the applicant speak several times. I think if you get too rigid, we are going to miss something. For example today, in the Abshier Heights, if they hadn't sent us all that stuff, absent all the e-mails and letters (you are right, I don't like to be read to), but absent that, have they not sent us all of that stuff and giving their presentation which I thought was well developed and well organized, moved swiftly, who would you have cut off? The Chair is supposed to be the referee and say we have already read this, move on... I'm an old speech teacher from way back and I just seem some fundamental issues here. If you tell people they have ten people, some of them will take ten minutes, even if they say two minutes worth five times. How are we going to do it? I like giving them expectations at Planning, tell them how it is going to work, get organized, and I like a Chair, who I will support, saying you being redundant, move on or you are blatantly out of order. Ostner: I think part of the awkward situation of applicants making a presentation again and then everyone is wanting to respond again, seems completely unfair but somebody earlier tonight, this is a forum. The public is speaking to that developer as much as to us. He's getting it, he's not always doing as they say, but that is why this has to be the clumsy forum for everybody to throw it out there again in a somewhat efficient manner. I think we have improved a little bit and reopening some public comment when that used to be absolute never, ever before I was Chair, even for the past six months before that. I think that is a step in the right direction. I did that because of you all, by the way. I would like to see all of these things happen some how. They need better direction, early on in planning by this sheet. It needs to be sitting out there, but if there were a green light that turned to red, believe me, I'm the guy. Don't worry about who is going to do it, I'll gladly do it. And I will do it easily because there are Planning Commission February 13, 2006 Page 72 bodies and there are rules and agreements supporting me. There is not, Mr. Chair, you've got to be kidding me, I'm listening. It's a big disagreement. I'll do it. We will put the green/red light...I don't know the mechanics..... Graves: I agree with both Commissioner Clark and Commissioner Anthes that speakers and presenters tend to do what you allow them to do and what you educate them on. And I agree that they don't read our by-laws, but I don't know why the same little sheet couldn't be modified that they have four minutes to speak, or fifteen minutes to present or whatever we decided on. And again, they would tailor their presentations to be sure they were efficient. If they were making a two -minute presentation five times, hopefully, the second time, I'm not proposing we emasculate our Chair, our Chair still has the ability to cut off redundancies, if they are making a short presentation and repeating themselves. But this at least educates them that at the most this is how much time you have — you have ten minutes or fifteen minutes or whatever we decided on to make your presentation. The other things are good ideas. I think it is a good idea to put those time limits in some sheet that they get so they do read it. I think it is a good idea potentially to change it so that the applicant comes after the public comment. The applicants would probably tailor some of their presentation to the comments they are hearing rather than presenting them in a vacuum. From that standpoint, I don't know what our ability is to change the order of business, it seems like that might not be a bad idea to allow the public to comment right after Staff makes their report and then allow the applicant to make one presentation and they are able to work on the "fly" and address the comments which they are having to do any way and make whatever presentation that seems relevant to what came up during Staff report and public comment instead of trying to guess what might come up in public comment. Ostner: So you are suggesting that basically we switch and after Staff, then the public, then the developer and everything else stays. Graves: And still put time limits on it, because I still think that when you say words encourage and recommend, people think, aha, I don't have to do that. Williams: I just want to say one thing — that this is not going to be engraved in stone. You can try it, if you don't like it, you can change it, throw it away, add time, do whatever you want you want to do. This is not an earthshaking decision you are making tonight. Graves: We can always go back to what we have now if we don't like it. Planning Commission February 13, 2006 Page 73 Clark: Mr. Williams, can we change our older procedure without formally amending these until we find something we like? Williams: You tell Jeremy what you want to do and I'm sure he'll do it. Pate: The City Council order is that after the Staff makes a presentation, the Mayor calls for public comment. Public comment involves the applicant, involves the public, whoever wants to step up to the podium first and speak. So sometimes the applicant comes right in the middle, sometimes at the end. At lot of times they do come at the end. A lot of times they come first, too. Williams: What he does before that is asks for City Council comment, and I don't recommend that. Go with the public first and then come back and comment. Clark: If you do the public first, then the applicant, then we could also ask the applicant questions at that point. We do ping pong, we go back and forth a lot. Vaught: I feel it is important that if you are going to try to limit or encourage limits, that you need to have them defined, because the term arbitrary and capricious in our decisions could be thrown about quite a bit. If I feel we are subjected to more of those things that Commissioner Lack was concerned about it we don't have a set time limit, if we telling people they are being redundant or telling people to cut it off, I think we have more trouble and legal ground than we do if we have a defined policy that everyone has to play by, that it is a fair playing field. That's the main thing. We have encouraged people in the past and I can think of one a couple weeks ago where she said "I just don't care" and she went on for thirty minutes, when we had asked her to be short. That's the thing about recommendations. And then the next person gets up and well, they went on for ever, so I'm going to go on forever. If we are going to encourage, we need to have a limit. If we are not going to encourage, then let's not. If we are not going to have a limit, I don't necessarily want to tell them to keep it to three minutes. I would rather formally amend. I'm all for changing the order, but if we are going to have a time limit, we need to have a time limit. I don't like the suggestion box; I think that is more trouble than not. What happens if someone gets up and abides by your arbitrary three-minute time limit and then the next person gets up and speaks for ten minutes. What is the person that cut off their comments going to do? Clark: What happens if we amend it? You have the same situation either way. What is someone keeps talking. Planning Commission February 13, 2006 Page 74 Vaught: I'm saying, what if someone got up and had fifty things to say and we asked them to keep it short; they cut themselves off after three minutes, they go and sit down. The next person says I don't care what you say, I'm going to speak as long as I want. We can't tell them to sit down, though. Ostner: Sure we can. It is not arbitrary at all. If it is clear up front... Vaught: I'm saying if you don't have a defined limit, though. I'm saying like it is right now, if you don't have a time limit and you ask someone to try to keep it short, and someone does keep it to three minutes. The next person doesn't care and speaks for thirty minutes, the person that cut off could be really mad because they didn't get to finish what they wanted to say. Clark: But if we do this without amendment, are you open to that? Vaught: But we can't. Clark: Sure we can, he just said we could. Williams: I'm talking about the order of business. Vaught: We can't have a time limit without an amendment. Ostner: Look, we can amend this now and we can re-amend it next week. We can constantly change — they are our by-laws. Allen: I would like to set the time limits to fifteen minutes for the applicant and five minutes for the public. Williams: But that is not germane to his amendment. Once you go with one amendment, then go onto yours next. Osnter: Why don't we vote on Christian's amendment first. Allen: Would you restate your amendment. Vaught: It is changed to be allowed by unanimous consent or majority vote. Ostner: Okay, presentations will be limited to, he is talking about ten minutes, we'll get to her fifteen, speaking time is three minutes per citizen, shall be enforced by the Chair, extension of said time limit shall only be allowed by majority vote or unanimous consent. Williams: If someone is opposed, you have to vote. Planning Commission February 13, Page 75 Ostner: Clark: Ostner: Roll Call: Ostner: Anthes: Clark: Ostner: Graves: Roll Call: Anthes: Clark: Ostner: Allen: Vaught: Osmer: Anthes: 2006 Right, if someone is opposed, we do. So we are voting on that. Further discussion? What type of a vote does this need to pass? A simple majority, I believe. This is only to amend the amendment The vote is 6-3-0 to change the wording of the amendment. Commissioner Myres is proposing fifteen minutes presentation by an applicant maximum and five minutes per citizen maximum shall be enforced by the Chair. Is she also limiting the time of the rebuttal? There is no rebuttal according to this. Any discussion on that. Change it to fifteen and five. I will second. I do have a question. I am for lengthening the time for the applicant if we are changing our order of business as we discussed. I'm just asking - are we doing it? Otherwise I am keeping it at ten minutes. The vote is 6-3-0 to change the time limits to fifteen and five minutes. It could be 100 people at five minutes, as many as can get in here.... Five or less, they don't have to speak that long. What are we going to do for neighborhood associations who have a representative who wants to speak for everybody and there are fifteen of them? And they all stand up and speak again. We have spoken a half hour on this proves my point that we are the enemy. But who is going to figure this out and in what form? Hot dogs and democracy — they are both nasty products but we all like the result. Because there are some questions about what happens if someone is representing a group, I just want the Commissioners to look at Brunswick, MD on page two and they say that public comment, they have a time per Planning Commission February 13, 2006 Page 76 individual or have a lengthier period of time for an organization; therefore, if people elect a representative to speak for them, that representative is given more time. Ostner: Personally, since often they elect an individual and there are people in their group who disagree, they are going to get up and speak anyway, so I would rather stick to the extension system. Graves: If they say they are going to bring ten speakers up at five minutes a piece or we want this one person to speak twenty minutes, I think we will get a unanimous consent and let the one person speak for twenty minutes. Ostner: Then when they all change their mind and want to follow him, we might not allow it. Vaught: In our little pamphlet that we put out front, we can say extensions will be granted if one official is elected to speak for the neighborhood. Ostner: 1 don't think anyone has made a motion for this entire thing yet. Vaught: I will make a motion that we pass the amendment to the by-laws as amended this evening. Graves: Second. Trumbo: Mr. Chair, where are we on the changing of the order? Graves: We have already done that. Trumbo: That's going to solve most of this. The applicant gets up and a wide range, trying to anticipate problems. We let the audience air their concerns directly to the applicant, and the applicant addresses them, I think a lot of this goes away. I'm essentially voting against it because I don't think we need it. Ostner: Any more discussion? I would like to ask the motioner, I'm not certain this has to be included in the by-laws, but a sheet that is absolute law that gives people hints, here, Planning, website. Vaught: 1 would like to see it on the bottom of the agenda. Ostner: It is at the bottom of the agenda now and nobody sees it. It needs to be at the top. Planning Commission February 13, 2006 Page 77 Pate: The third page in your agenda has the entire, how the meeting is supposed to be handled. Graves: Can we put the time limits at the top? Ostner: I would like to suggest that the format be scrutinized, a separate sheet or at the top of the agenda or a blue copy. I would even be willing to help. We are voting for the entire thing. Please call the roll. Roll Call: The motion fails 4-5-0. Ostner: Those who voted no, I want a straw pole — how content are you since we have made no changes; nothing is going to change because we have not changed it. So you must be perfectly content. Clark: Can we not change the order of presentation? Vaught: But that is not going to solve these problems. Anthes: I think we have made changes; we have done two things. We decided to change the wording and the suggestions to where it is in our handout, and we have also decided to change the order of the business of the meeting. We will try both of those. Clark: Mr. Williams, before you sneak away, in your capacity as City attorney, can we without amending these by-laws come up with rules of the chamber that would set some type of time limits, without being amended? Williams: No. Anthes: We could draft something about what we would like people to do. Ostner: We are adjourned.