Loading...
HomeMy WebLinkAbout2007-01-08 MinutesPlanning Commission January 8, 2007 Page I of 97 MINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on January 8, 2007 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN FPL 06-2394 (BELCLAIRE ESTATES, 169) Approved Page 4 ADM 07-2413 (FALLING WATERS PZD) Approved Page 4 VAC 06-2204 (BUNGALOWS@CATO SPRINGS, 600) Approved Page 4 VAC 06-2400 (BELLAFONT, 175) Approved Page 4 LSP 06-2342 (WINKLER, 562) Approved Page 4 PPL 06-2233 (HIGHLANDS AT RUPPLE, 205/206) Approved Page 4 LSD 06-2298 (POPEYE'S ON 6TH, 559) Approved Page 4 VAC 06-2365 (POPEYE'S CHICK & BISC., 559) Approved Page 4 ADM 07-2423 (UNDERWOOD PLAZA) Approved Page 4 ADM 06-2379 (OUTDOOR LIGHTING ORD AMEND) Approved Page 7 CUP 06-2128 (S. HILL CHURCH OF CHRIST, 561) Approved Page 27 RZN 06-2399 (CITY OF FAYETTEVILLE) Forward Page 30 Planning Commission January 8, 2007 Page 2 of 97 ITEMS DISCUSSED CONT. ACTION TAKEN ADM 06-2383 (METROPOLITAN NATIONAL BANK) Tabled Page 46 ADM 06-2410 (ROCKCLIFF APPEAL) Approved Page 48 PPL 06-2302 (WEDINGTON CIRCLE PZD, 404) Approved Page 68 CUP 06-2386 (COX DEVELOPMENT, LLC, 400) Approved Page 82 CUP 06-2387 (MALCO THEATRE, 134/173) Approved Page 86 CUP 06-2397 (ARBORS AT SPRINGWOODS, 286) Approved Page 94 RZN 06-2396 (BRISIEL, 363) Forward Page 96 Planning Commission January 8, 2007 Page 3 of 97 MEMBERS PRESENT MEMBERS ABSENT James Graves Jill Anthes Candy Clark Hilary Harris Andy Lack Christine Myres Sean Trumbo Lois Bryant Allan Ostner STAFF PRESENT STAFF ABSENT Jeremy Pate Andrew Garner Suzanne Morgan Jesse Fulcher Matt Casey/Engineering Glenn Newman/Engineering Ron Petrie (for Rockliff Appeal) CITY ATTORNEY: Kit Williams Planning Commission January 8, 2007 Page 4 of 97 Anthes: Welcome to the January 8, 2007 Planning Commission meeting. Please turn off all cell -phones and pagers. Listening devices are available for those who have difficulty hearing in this room. You can contact a staff member at this front table if you need a headset. Will you call the roll? Roll Call: Upon the completion of roll call, Ostner, Myres, Graves, Lack, Harris, Clark, Trumbo, and Anthes are present. Bryant came in after roll call. Anthes: We have ten items on Consent tonight. The approval of the November 14, 2005, December 12, 2005 and November 27, 2006 Planning Commission meeting minutes. I have forwarded my comments to Jeremy. FPL 06-2394: Final Plat (BELCLAIRE ESTATES, 169): Submitted by N. ARTHUR SCOTT for property located at NE OF HWY 112 AND HOWARD NICKELL RD. The property is zoned RSF-4, SINGLE FAMILY, 4 UNITS/ACRE and contains approximately 39.86 acres. The request is for the final plat of a residential subdivision with 96 single family lots proposed. ADM 07-2413: Administrative Item (FALLING WATERS PZD): The request is for the extension of the approval of Phase I for the Falling Waters Planned Zoning District. VAC 06-2204: (BUNGALOWS @ CATO SPRINGS, 600): Submitted by MCCLELLAND CONSULTING ENGINEERS for property located at N OF CATO SPRINGS RD., W OF CLINE AVE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 5.52 acres. The request is to vacate an access easement and drainage channel access easement. VAC 06-2400: (BELLAFONT, 175): Submitted by H2 ENGINEERING, INC. for property located at the SW CORNER OF THE BELLAFONT DEVELOPMENT. The property is zoned C-3, CENTRAL COMMERCIAL and contains approximately 1.63 acres. The request is to vacate a portion of a utility easement. LSP 06-2342: Lot Split (WINKLER, 562): Submitted by STEVE & MICHELE WINKLER for property located at 466 W 11TH, 1079 AND 1041 S SCHOOL AVENUE. The property is zoned I-1, HEAVY COMMERCIAL/LIGHT INDUSTRIAL and contains approximately 0.70 acres. The request is to divide the subject property into two tracts of 0.35 and 0.35 acres. PPL 06-2233: Preliminary Plat (HIGHLANDS AT RUPPLE, 205/206): Submitted by HGM CONSULTANTS, INC. for property located at RUPPLE RD., N OF HOLCOMB ELEMENTARY SCHOOL AND S OF HOWARD NICKLE RD. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 39.11 acres. The request is for a residential subdivision with 146 single family lots proposed. LSD 06-2298: Large Scale Development (POPEYE'S ON 6TH, 559): Submitted by CEI ENGINEERING ASSOCIATES, INC. for property located at 2190 W. 6`h St., south of Ramey Jr. High School. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains a lease area of approximately 0.85 acres. The request is for a 2148 s.f. restaurant with associated Planning Commission January 8, 2007 Page 5 of 97 parking. VAC 06-2365: (POPEYE'S CHICKEN & BISCUITS, 559): Submitted by MEL MILHOLLAND for property located at SANG AND 6TH ST., BETWEEN THE PAWN SHOP AND THE OLD SHAKE'S SITE. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 0.17 acres. The request is to vacate a 50' street easement of Sang Avenue N. of 6th Street, along and inside the E property, W of the former Shake's site. ADM 07-2423: Administrative Item (UNDERWOOD PLAZA): Submitted by SHARP ARCHITECTS for a waiver from lighting requirements. Anthes: Would any member of the Commission or audience member like to remove any of these items to be heard tonight? Mr. Davis, if you would come to the microphone. Davis: I have not requested that any items be removed; however, I did want to make a comment on numbers 8 and 9, the vacation of the Popeye's development. The Large Scale Development and also the vacation of the Sang St dead end between the property that I own at 2050 W 6"' St and the Popeye's development. I have sort of caused a problem here because the notification that was sent out to me on 10/11 was sent certified, but it was returned. I didn't get any other notification of any meetings until Tim Conklin contacted me on the next to the last day of the year, on December 281h, that you had had a meeting on the 28'h. So I was contacted on the 29`h. But, Jeremy and Tim and John Goddard met with me the next day and so I was informed what was going on. But the problem it has caused me is that I have a contract with a person who is interested in buying my property and developing it. And they don't have much time to work here before this vacation takes place. CEI Engineering is doing the large scale development for Popeye's, and they are also working for the person who I have the contract with to develop my property. And if that doesn't work out I will be developing it myself just as I originally intended to do. But I wish there were more time for them to do their due diligence and work with CEI to work out a design that works well with Popeye's and this other property owner. So I am not objecting to the Large Scale Development, but if there is any way to slow it down before the street vacation takes place I would like to see that. A couple of things that need to be done there as I understand it is that a shared parking agreement and access easements need to be worked out between the two property owners. So I assume that will have to take place before it is approved by the City Council. That is all I have to say. If you have any comments on that I would appreciate. Anthes: Thank you, Mr. Davis. Mr. Conklin, since it seems that you are familiar with what transpired can you tell us if proper notification was made and whether we should hear these items tonight? Pate: I can respond to that better than Tim can. As per typical requirements, we look at Planning Commission January 8, 2007 Page 6 of 97 the county records to determine where addresses are and it was sent to that address. Unfortunately that is the business address there that Mr. Davis does not check, evidently, so it was returned by certified mail. The applicants did meet their requirements. I would mention to Mr. Davis though the vacation has to go forward on to the City Council, so it will be another two and a half weeks before this actually gets to the City Council level and there are three readings at that level as well for a vacation request. So there will be some time to get through this process still. Anthes: So it's staffs recommendation that we go ahead and leave these on consent and give Mr. Davis time to get with CEI Engineering and work through any issues that may pertain to the vacation request prior to City Council? Pate: Yes, Ma'am. All the issues, the access easement and the shared parking, those are all conditions of approval for this project, both the vacation and the large scale. So I think we have addressed all the issues as much as the Planning Commission can. Anthes: Ok. Thank you, Mr. Pate. I will now entertain motions to approve the Consent Agenda. Motion: Graves: Madam Chair. Anthes: Commissioner Graves. Graves: I will move for approval of the Consent Agenda. Ostner: Second. Anthes: Motion to approve by Commissioner Graves with a second by Commissioner Ostner. Will you call the roll? Roll Call: The motion to approve the consent agenda carried with a vote of 9-0-0. ADM 06-2379: (Outdoor Lighting Ordinance Amendments): Submitted by Planning Staff to Planning Commission January 8, 2007 Page 7 of 97 amend the City of Fayetteville Unified Development Code Chapter 176: Outdoor Lighting. Anthes: Alright. We have two items on Old Business tonight. The first is Administrative Item 06-2379, the Outdoor Lighting Ordinance Amendment. Can we have the staff report please? Olson: Good evening, Madam Chair, Members of the Commission. The Planning Commission tabled this item at your December 12 meeting and requested that staff look at some other cities and what they have done with architectural up - lighting, addressing neon on architecture, and prohibiting blinking or flashing types of lighting displays. Staff has researched peer cities. It appears that the majority of cities will either explicitly exempt or they will explicitly prohibit architectural up -lighting in neon. A handful of cities we found do some different things. I put those in your staff report. Planning staff recommends the ordinance as it is drafted, however if the Planning Commission feels that it is necessary to regulate such uses as neon or up -lighting I have provided some examples for you. So if you have any further questions I would be glad to help you and answer those. Thanks. Anthes: Thank you Mr. Olsen. Would any member of the public like to speak to this item, the Outdoor Lighting Ordinance amendments? Seeing none I will close the floor to public comment. And since the applicant is the city, we will move on to discussion. Commissioners? Harris: Madam Chair. Anthes: Commissioner Harris. Harris: This weekend I spent some time at www.darksky.org, which for those listening to this conversation is a sort of resource site for general principles animating that sort of dark sky movement and various municipalities that have ordinances that reflect dark sky. If that is not a contradiction in terms. I guess I am left with some questions because when this has come up, when outdoor lighting has come up in the last couple of sessions that we have talked about it dark sky is floated. I hear that term dark sky, and I guess I would like to begin by just understanding what are the standards by which we are needing to measure these revisions? My questions are this, because obviously I am a barely educated layperson on this topic. So I am still left wondering after my explorations on darksky.org are is there a template for a dark sky ordinance, or is it a sort of ad hoc collection of things we have here, the purposes of this chapter? And what I am really asking there is just, again, what are the standards by which I need to be measuring these revisions? If I may open that up for conversation. Anthes: Would you like staff to respond? Harris: Sure. Planning Commission January 8, 2007 Page 8 of 97 Olson: I think it depends on the technical level that you want to develop an ordinance to. Some cities have very technical ordinances where they talk about the types of lamps, the types of fixtures, the output in lumins or watts. We don't have the technical resources at the city to really adequately administer an ordinance such as that. So this ordinance is developed in a way that staff can administer it by looking at technical cut -sheets of the fixtures proposed and making sure they meet the requirements of the shielding and lighting of our ordinance. And that is how we administer it now. I think every city goes about it a little bit differently, and if you look at outdoor lighting ordinances from around the country they are all very different. Dark sky does, I think, provide a template to use for cities trying to develop the Dark Sky Ordinance. But again it just depends on each municipality and how they are going to administer it and what they are really trying to address with their ordinance. Out west where you have astronomical, I mean any city where you have observatories; they tend to be very much more restrictive because they are really trying to reduce the amount of sky glow in the atmosphere. Harris: I guess that is in part my question because you point out West and you point out the City of San Diego. And they of course have a major observatory there and that was one of their concerns too. I suppose what I am really getting at is the level of our intention here. How dark a dark sky are we attempting to have here? And how do we the address what would seem to be some, I don't want to say contradictions, but some sort of glaring examples of very non -dark sky elements in the City of Fayetteville. Just down the road from here would at the stadium. So I am trying to understand, again, how to contextualize this so that I know what I am speaking about. Conklin: The complaints... Tim Conklin, Planning Department. The complaints that in the past we have received have been around flood type lighting where it was cheaper, less expensive, to put one pole up and try to illuminate a parking lot and not have down lighting that is shielded and directed downward. So typically, at least from my memory, most of the complaints were just improper light installation where you had light spillage going across property lines. So the intent of the ordinance, I think when we started out, was to try to eliminate the very bright lights. Now, with regards to sports field lighting there is a whole science behind that too, and standards that we referenced within the ordinance of proper lighting of ball fields. We had a lot of discussion regarding that. So I guess with regard what we were trying to accomplish with the ordinance was to eliminate flood lighting that was impacting neighbors, and be able to adopt standards that city staff and the development community could read and look at without going out there and measuring foot candles or lumins Or type of light fixtures. So that is where we started at. Harris: I appreciate that, thank you. Anthes: To follow up on that, I am reading the purpose statements and trying to figure out Planning Commission January 8, 2007 Page 9 of 97 the very thing that you were asking Commissioner Harris. On Purpose Statement A, it says that we are trying to protect the privacy of property owners by limiting the potential for glare and light trespass from outdoor lighting fixtures located on adjacent properties. And that makes me wonder why in the next section, 176.03 A we have exempted single and two-family residential uses from this ordinance. Being that people can put flood lights on their property that actually do trespass onto adjacent property owners. And then of course we are trying to protect all people in B from the glare of non -vehicular light sources that can impair travel, and that is, to protect both pedestrians and cars. And then E says, "reduce atmospheric light pollution." But that is a really generic statement and I am not quite sure to what degree we are trying to do that. So when I read this ordinance, I kept trying to measure whether any of the things we were changing were actually contributing to or taking away from those goals to any measurable degree. What I am concerned with is any kind of up -lighting on landscapes and buildings that are not captured or stopped by any kind of architectural element. For example, on the Boulder, Colorado ordinance they allow upward aimed building facade lighting, but they say it should be fully shielded (and fully confined) from projecting into the sky by eaves, roofs, or overhangs, and mounted as close to the wall as possible. So they are kind of getting both worlds. They are allowing the up -lighting, but they are making sure that it is mechanically cut off at a building line or by a particular kind of fixture. I am afraid that our ordinance, the way it is written, is not insuring that particular kind of cutoff. And I go back to look at our purpose statement about reducing light pollution. We don't allow that up -lighting right now, so by adding the allowance for the up -lighting we are actually working counter purpose to the goal of reducing light pollution. Myres: Commissioner Anthes, are you speaking directly about 176.03 3? Ground mounted accent lighting? Anthes: Yeah, and the landscape lighting as well. Anything that is allowing lighting to go up onto a surface or an object. Myres: The way I have been reading that number 3 about ground mounted accent lighting, it says very clearly both in the illustration below it and in the text itself, "direct light emissions shall not be visible above the roof line or beyond the building edge." Anthes: Right. And that is something got at last time a little bit. I am afraid that these, you know when you mount these lights in landscape a lawnmower can hit them, all sorts of things can happen to adjust them. And if there is no actual physical thing on the building that stops it other than just... Myres: The way it is pointed? Anthes: I am worried that even slight adjustments are working counter purpose to the ordinance. Planning Commission January 8, 2007 Page 10 of 97 Myres; I guess I am not so worried about something like this because I am assuming that somebody who knows what they are doing, because we are talking about public buildings not private structures. Anthes: Private...? Myres: Well, commercial structures not residential structures. It says that this doesn't apply to residential structures. Anthes: Oh yeah, it is exempting residential, but I would question that. Myres: You would have somebody doing your lighting layout for the landscape that knew what they were doing. Harris: May I ask a question of staff? Forgive me, for I think you may actually have addressed this earlier in another session, but could you tell me where you are adding this now, responding to just a sense of fair play or is there a sort of pressure within the developer community that maybe this is something that is needed for buildings? Or from us? Olson: I think we have seen a lot of examples, architects and lighting designers coming to staff and saying "well, what we want to do is use a sconce to up -light this architectural element", and we can't approve that. And it may be a lighting element that would be attractive and would not be detrimental in staff s opinion. So it is just one of those things when administering it, it's difficult and time consuming on the part of staff, or the part of the development community, architects, lighting designers. We were trying to clarify with these amendment changes to allow it in such a way would minimalize the impact of it and still allow for it. So that is why the language was drafted that way. Again, the majority of cities will prohibit it, or they will exempt it. So I think you have three options: You can prohibit it. You can exempt it. Or you can try to define it in such a way to minimize its impact. We have tried to define it in such a way that would minimize its impact. That is what we are proposing. That is what staff is proposing. Harris: May I ask just a follow up on that? Do you have the staff power to administer this sort of third option? I mean, should we just... Olson: Yeah. I mean, they would show us the fixtures with cut sheets, we would look at a lighting plan, and then at the time of certificate of occupancy staff would go out there and insure that the installation meets what was approved with their plan. Harris: A follow up to by follow up? Violations to a lighting ordinance in particular, how do they... So if somebody feels like they are experiencing light trespass? Planning Commission January 8, 2007 Page 11 of 97 Olson: They would call the Planning Office and we would put in a work order. And somebody, I don't know that we have had complaints since the Lighting Ordinance was adopted. You know, everything that was pre-existing prior to the ordinance is grandfathered in. So we are just looking at new developments with this ordinance. Harris: Thanks. Lack: Madam Chair. Anthes: Commissioner Lack. Lack: I think that was the ground mounted accent lighting and the landscaping lighting, ground mounted, was the one element of the revisions of the ordinance that I also had some pause with. I stated it the last time we met on this item that I had gotten comfortable with them. I do respect your thoughts about the idea of the fixtures being bumped or moved or some alteration creating a noncompliance issue. I think that is something that we deal with in pretty much every ordinance that we have. There is always potential that we will have a situation where it will be either be unknowingly installed out of compliance or will be altered to be out of compliance. That can go with signage, that can go with many things throughout a building project. I wonder if some added verbiage would help other Commissioners to gain that same sort of acceptance of this idea, in that not all fixtures are what we see from the cheap fixtures that have a loose neck or something. There are actual ground mounted fixtures that are sealed, that are tamper resistant. Basically the housing locks on them. They wouldn't be subject to lawnmowers or other sorts of inadvertent redirection. If that were something that we could compromise to, to have something that wouldn't' be so subject to a redirection. So when a project is reviewed for approval at certificate of occupancy then we would have some assuredly that we would keep what we had. I throw that out for a compromise. Anthes: Do you have any suggestions for that language? And what do you feel about the last sentence on the Boulder, Colorado ordinance? You are talking about defining how it happens on the ground and locking that in. And then the Boulder ordinance, at the end, talks about how it will be terminated at the top. Is there a way to combine those issues? Motion: Lack: That might... The wording of the Boulder, Colorado ordinance might more directly state what the revision to our ordinance is stating in that we do say that the direct light emissions shall not be visible above the roof line or beyond the building edge. There is an inference that the building shall stop that illumination, but the verbiage in the Boulder Colorado ordinance could move beyond that implication and state that more clearly. So if we can add to this that upward Planning Commission January 8, 2007 Page 12 of 97 aimed (unclear) facade lighting and landscape lighting shall be shielded and fully confined by eves, roofs, overhangs and that the fixture would be tamper resistant, sealed to maintain a direction of light beam. Anthes: Is that a motion to amend? Lack: That would be a motion to amend. Anthes: Was that a should or a shall? For tamper resistance? Lack: Shall. I don't like shoulds. Anthes: OK. We have a motion to amend. The section is 176.03. I guess it is K-3? To add the language or revise to more closely follow the last sentence of the Boulder Colorado about the shielding and the confining of the light beam, and also adding that ground mounted fixtures shall be tamper resistant and sealed to maintain the light beam. Do I hear a second? Ostner: Second. Anthes: It is a motion by Commissioner Lack with a second by Commissioner Clark. Is there discussion? Commissioner Ostner. Ostner: Did the added language include the 900 lumins? Lack: No. Ostner: It did not. Lack: No, I think that this ordinance has directly tried to stray away from what we had looked at in previous lighting ordinance, which is something that I think staff would be able to expound on even more. But I know from viewing Planning Commission and City Council meetings through the administration of the previous lighting ordinance it seemed terribly cumbersome. I think there were a lot of calls, at that time, and complaints and a lot of measuring foot candles at property lines. I think that is something that the actual foot-candle or lumins directives have been taken out. I would stay with that. Anthes: Point of clarification for Commissioner Lack. I believe when you stated your comments you said building and landscape lighting. So that would also make this language apply to K-1. Is that your intent? Lack: I did say that. Actually the roof overhangs would not likely come into play with that. I will strike the landscape.... Anthes: But the sealed part? The sealed and maintained beam part could be added to that. Planning Commission January 8, 2007 Page 13 of 97 Lack: Well, I will strike that from this amendment because that is another section for landscape lighting, is it not? Anthes: It's K-1 and the building is K-3. Lack: Yes, so we can address that one separately. Anthes: Okay. So Commissioner Ostner, are you satisfied? Ostner: Well... Yes, I am satisfied with my question. Anthes: Is there further discussion on this amendment? Clark: I have a question. I am the seconder, but Commissioner Lack did you want to strike any of the language in 3 currently? I don't want to be redundant so I am not thinking we need the sentences, "Direct light emissions shall not be visible above the roof line." That whole line can go away and your line can go in there. That would be cleaner. Lack: I don't mind to leave it in there just for a theory in the back. Clark: Ok. Then I don't mind seconding it. Anthes: Is there further discussion on the amendment? Myres: I need to ask staff a question. Is staff, particularly Mr. Olson, okay with the language? Ostner: Yes. That is fine with us. Sure. Myres: I just didn't want you to have to do something that you weren't prepared to follow up on. Ostner: I think we will all be fine with that. Absolutely. Myres: Ok. Anthes: We have a motion to amend section 176.03 K-3 as previously stated. Will you call the roll? Roll Call: The motion to amend section 176.03 K-3 carries by the vote of 9-0-0. Myres: Madam Chair. Anthes: Yes, Commissioner Myers. Planning Commission January 8, 2007 Page 14 of 97 Motion: Myres: I would like to move for approval of Administrative Item 06-2379 Amendments to the Outdoor Lighting Ordinance as amended. Anthes: We have a motion to approve by Commissioner Myers. Do we hear a second? Trumbo: Second. Anthes: Second by Commissioner Trumbo. Mr. Conklin? Conklin: I just wanted for clarification. We amended K-1 landscape for tamper resistant seal and maintained beam. Anthes: No we only amended K-3. Conklin: We only amended K-3. I just wanted to clarify. Clark: Funny you should ask. Madam Chair. Anthes: Commissioner Clark. Motion: Clark: I would like to go ahead and amend K-1 as well adding the fixture shall be tamper resistant and sealed to maintain the light beam as well for K-1. Anthes: So, Commissioner Clark, you are okay with the fact that up -lighting on landscape elements may be contained by the summer months but in the winter months you will have a tremendous amount of light leakage from those fixtures? Clark: Well, yes. But we are going seal them. We are going to make them tamper resistant. And I am also going to insert, this is just for discussion, another statement that says that up -lighting of, accent lighting of landscape elements shall not be located in such a way to have the bulb or lamp visible from the pedestrian on vehicular egress. Which means they may have to shut them off in the winter. Anthes: Are there comments? Or is there a second to the amendment to 176.03 K-1? And that is to add the tamper resistant and visibility sentences. Myres: Can I ask a dumb question all the way down the line here? Tamper resistant? What do you mean by tamper resistant? Because that to me means non- vandalizable. That you couldn't actually destroy the fixture or get access to the lamp inside to knock it out. I think what you want is something that can't be redirected or inadvertently knocked out of its aim. Planning Commission January 8, 2007 Page 15 of 97 Lack: Right. And I think that to me when you say that it is tamper resistant and sealed to maintain the direction of beam, then that is the particular part of the tamper resistance. Myres: So it has to be fixed in place. Lack: Right. It may be a subterranean, or it may be a buried ground fixture with just a lense. Myres: But it could also be on a pole? Lack: It could also be on a pole. Myres: I just wanted to be clear about that. Anthes: The motion is by Commissioner Clark. Is there a second? Trumbo: Can we hear the motion again? Clark: Fixtures shall be tamper resistant and sealed to maintain light beam, as we did in the last one. And shall be mounted in a manner, in such a way that the bulb or lamp is not visible from pedestrian or vehicular egress. Graves: Madam Chair. I'm sorry. Can we make sure that the motion, that the language being used on tamper resistant and so forth is consistent with whatever change was just made to K-3. That we stay consistent with the language. Clark: Oh, absolutely. That was my intent. Thank you Commissioners. Graves: So that is the motion. I'll second it. Anthes: A procedural question. We had a motion on the floor to approve the entire thing as it was written. In further discussions we are looking at motions to amend. That's okay, right? Okay. We have a motion to amend 176.03 K-1. Is there discussion on the amendment? Harris: Madam Chair. Anthes: Commissioner Harris. Harris: Commissioner Clark, is the intent of your language to...? There was some conversation between you and Commissioner Anthes about in the winter somebody might have to shut the light off. Anthes: Or redirect it. Planning Commission January 8, 2007 Page 16 of 97 Harris: Is that language that needs to be specifically written into the ordinance? And/or, if I may go back to Mr. Olsen, is having folks redirect their lighting in the winter is that an administrative reality? Is that something that you can actually police in some way? Or is this going to be a suggestion? It would be driven by complaint, wouldn't it? Conklin: Since the last Planning Commission meeting, I am sure many of you on that Commission may have done this, but now when I look at a building I look at up - lighting. So First Baptist Church, Central United Methodist, other things. I haven't looked at the landscape lighting, so I am not sure how big an issue that will be. I guess that's my point. Whether or not it is going to be possible to... I think it is something we are going to have to determine once we are driving around the community. I have not looked for how much landscaping is being up - lit in Fayetteville. I just don't know at this time. Harris: So the intent of the language? I want to make sure I am understanding this. Are we talking about up -lighting a tree, for instance? Up -lighting in a tree. And in the summertime we have canopy so we don't see it above the tree line. And in the winter time we don't want it to go above the top branch of the tree. Is that basically...? Clark: Or into the street. Harris: Or into the street. Ok. So we don't want it to go beyond the tree? I would have assumed that this was a complaint driven process. So if you are driving along and get blinded by one of these lights you can complain and we can redirect it. That is my intent. There may never be a complaint. Anthes: Are you finished? Harris: Well, no. There is something in my head, but I don't know how to bring it up. Alright, so this is interesting. Do other cities do this? This part of it? I mean the tree part of it. Anthes: And some cities prohibit up -lighting all together, and some allow it. Harris: Ok. Alright. I appreciate it. Anthes: Personally I would rather say that we are anticipating the sustainability goals being developed by the City of Fayetteville. That process is supposed to start this month. And that we're not only reducing atmospheric light pollution but reducing it to a great degree. And for that reason I am probably going to vote to deny this entire ordinance no matter how we work through these conditions because I don't agree that we should allow up -lighting that isn't currently allowed. I don't think the change meets either the goal that we currently have - Planning Commission January 8, 2007 Page 17 of 97 which is reducing atmospheric light pollution - or anticipates the sustainability goals that we are going to work on as a community. I don't think it makes any sense to undo an ordinance that we already have that protects that, but I think this is a good amendment to the current draft. Harris: Well, what you are just saying is really why I started my thinking this evening with just asking about the larger goals that we have. Because I am not really sure what the point is to sort of go through on a point by point basis with particular revisions if there is a larger dark sky goal that we have here that ultimately these revisions would not pass the test. Anthes: All we have right now is, "reduce atmospheric light pollution." Harris: OK. Anthes: Unless we change the purpose statement of the Lighting Ordinance. Harris: Commissioner Anthes, what you seem to be suggesting is that these revisions would actually reduce our dark sky. That we are actually adding to light trespass and light pollution. Anthes: Because we are going to be more permissive than the lighting ordinance as it currently exists. Harris: Mr. Olson, may I go back to you again? Just how do you respond to Commissioner Anthes' concerns about that? Olson: I think that all those goals are great, and stated goals. We are trying to administer an ordinance that works, that is easy to understand, that allows for lighting that we feel is appropriate. It is subjective. So I don't think by allowing architectural up -lighting you are necessarily diminishing the impact or the effect of this ordinance. I think that 90% of our lighting problems and our atmospheric light pollution are caused by street lights and parking lot lights that are either bad fixtures or they are not installed properly. So in the big picture, I think if you can take care of those items you are going adjust the bulk of it. Anthes: Then why are we exempting street lamps? Olson: That is just my opinion. Anthes: Then why are we continuing to exempt street lights in this ordinance? Olson: When the utility companies have street lights that meet the ordinance and they have those parts available we would certainly go back and look at that. The issue with street lights is for a number of years they have used three different fixtures. Those are installed all across the city. When SWEPCO or Ozarks gets a call that Planning Commission January 8, 2007 Page 18 of 97 a street light is out, they have those parts in stock and they go fix them. Until the utility companies decide that they want to replace those fixtures with fixtures that are marked more dark sky oriented or efficient they are going to continue to fix them. Again it is just something that at this time we don't feel is a realistic objective of the ordinance. We are trying to be realistic. Anthes: Hasn't SWEPCO added fixtures to their menu of options that are cut off? Olson: I think they have. So in new development those fixtures can go in. Anthes: And because the fixtures that are already installed are grandfathered in (from your staff report at the beginning), couldn't it be that we would not exempt street lights now? And things that currently exist...? Olson: If you would like to remove street lights from being exempted, we can certainly do that. Anthes: Is there further discussion on the motion to amend 176.03 K-1. That motion by Commissioner Clark with a second by Commissioner Graves. Commissioner Harris. Harris: Madam Chair, a procedural question. The vote on this motion is prior to a vote on Commissioner's motion? Anthes: Yes. Harris: Ok. Thank you. Anthes: Will you call the roll? Roll Call: The motion to amend 176.03 K-1 carries with a vote of 9-0-0. Graves: Madam Chair? Anthes: Commissioner Graves. Graves: I have a question with regards to section 2. We have now amended K-1 and K-3. But we haven't addressed K-2. I am just asking, especially maybe Commissioner Lack, whether there is anything in K-2 that maybe needs some similar language to what was proposed in K-3? It seems like, if for nothing else, consistency's sake. If we were taking about ground mounted accent lighting of a building, then maybe building mounted accent lighting of a building should be addressed in a similar fashion. But maybe the language already takes care of it. I don't know. Lack: It is my impression and interpretation that it would be inherent in the building mounted lighting. The sconces or other fixtures that would be used for that, that Planning Commission January 8, 2007 Page 19 of 97 they would be less susceptible to redirection. Graves: The main reason I asked is when we look at the Boulder, Colorado language, which was what you borrowed some of, it actually also seems to address building mounted lighting when it talks about mounting things as flush to a wall as possible. Some of the language you used and also some of that last phrase which I think we didn't use in K-3. It could be used in K-2. Lack: I read that as when you say that it should be mounted as flush to a wall as possible that they are directing in that, that a ground mounted fixture be mounted as close to the wall as possible. Graves: Ok. Instead of the light portion being as close to the wall as possible on a building mounted. My other concern is granting the purposes that we stated in the purpose section, and listening to the discussion tonight including the most recent comments by Mr. Olsen regarding street lights. If that is the main source of atmospheric light pollution and we are trying to reduce it, it is my experience that no one does anything until they are prodded to do so by and ordinance. I would doubt that we will ever see a stock set of lights that reduce pollution from the utility companies unless that is what they have to put in by ordinance. As long as they can keep using the old stuff they've got laying around they are going to keep doing that unless they've got to do otherwise. I like to believe in good will and all, but it doesn't always happen that way. I would be supportive of an amendment striking that exemption. But I don't know how the other Commissioners feel about that and I don't want to beat it to death for 30 more minutes either. Motion: Anthes: I would be happy to move that we strike 176.03 B from the language. Ostner: Second. Anthes: Motion by Commissioner Anthes, second by Commissioner Ostner to strike 3-13, the exemption for street lights. My understanding is that the existing lights are perfectly fine and can remain. The intent is that any new fixtures that are installed be cut-off and shielded and directed downward as per our regular language. Is there discussion on this item? Will you call the roll? Harris: I'm sorry. There was. I just didn't get my mouth open. When we discussed this at some other time I think Mr. Williams said that he... Am I remembering this correctly? That you believe that that exemption should remain so that the city could decide if it were cost efficient, I guess, to have those poles changed out? Anthes: I think that was in reference to the Downtown Master Plan Decorative Street Lighting which is Item I, which remains exempted. Planning Commission January 8, 2007 Page 20 of 97 Harris: Ok. Williams: I do think, though... I haven't researched this recently, but I do believe that there is a State statute that the Legislature passed in the last session to try to require street lights around the state to actually conform and be cut off. That might have been the reason why Planning didn't go forward with this. That ordinance will probably take effect. I mean, that statute is already in effect I would think. So I think we will start seeing improvements on these street tights because of that State statute, unless it has of course changed in this latest session. Anthes: Will you call the roll? Roll Call: The motion to strike 176.03 B from the language carries with a vote of 9-0-0. Motion: Anthes: The other is the neon and light emitting lighting. We had some discussion about it at the last meeting. I would move that we add Item 176.03 K-6 E to state that the neon or LED would be limited to less than one linear foot per linear foot of facade to a maximum of 75% of the total linear feet of the building footprint. Olson: Madam Chair, could state that one more time so I catch the end? Anthes: Yes. Olson: One linear foot per linear foot of linear building facade... Anthes: Per facade with a maximum of 75% of the total linear feet of the building footprint. Clark: I'll second. Anthes: Motion to amend by Commissioner Anthes, second by Commissioner Clark. Is there discussion on this item? Harris: Commissioner Anthes, if I could just ask you. The percentage there? Is there a reason for that particular percentage? Anthes: Well, I was looking at the way these other communities had done it and referring to some question that we had at our last meeting about encircling buildings with neon. I think that what I am trying to say is that we can put a line of neon or LED along the top of the building and on principle facades to the full length of the facade, but that that combined total may be less than the entire building footprint so that the non -principle facades could have a little relief. Planning Commission January 8, 2007 Page 21 of 97 Lack: Madam Chair. Anthes: And, you know, if you guys have a different suggestion for that percentage that would be fine. Commissioner Lack. Lack: One question on the wording. Is it your intent that that definitely would be a linear band of neon in stating one foot per linear foot? Or can it be an accumulation? Is that a calculation method that would be one foot per linear foot? Anthes: Calculation method. If it wants to be a squiggle or a loop or whatever they want to do, that's great. Just so there is some cap on the amount. That seems generous enough. Lack: Ok. Thank you. Pate: Madam Chair, just for clarification. If you have 1,000 linear feet of the building, 750 feet of neon would be the maximum permitted with this. Anthes: Right. And per facade 100% of the length of that facade. Okay. Will you call the roll? Roll Call: The motion to amend the language in 176.03 K-6 E carries with a vote of 8-1- 0. With Commissioner Lack voting no. Clark: Madam Chair, I have a question for staff. Anthes: Commissioner Clark. Clark: Since we are talking about exemptions, why are single and two-family residential homes exempted? Conklin: We thought from an ability to look at people putting up lighting in their backyard when they go to a home improvement store. It would be very difficult to monitor that and enforce that provision. In the past that hasn't been the real issue. It has been non-residential adjacent to residential. So we did not attempt to try to restrict the type of lighting on single family or two family. Anthes: Is there a procedure now where if an adjoining property owner in a single family to single family situation, if there is a bright light that is directed at their home and they are experiencing problems, is there a way for them to get resolution to that? Conklin: I think they can contact their neighbor and ask... Planning Commission January 8, 2007 Page 22 of 97 Anthes: If their neighbor is unwilling, we'll say. Conklin: Is their neighbor is unwilling? Not that I am aware of Kit, do you have anything? Williams: At that point they need to contact their lawyer because that would be a private nuisance. Anthes: Okay. I just wanted to make sure people had some recourse. Is there further discussion? Does your motion still stand to forward as amended? Myres: Yes. I believe it said forward with amendments so I think it is perfectly fine the way it is. Ostner: Madam Chair. Anthes: Commissioner Ostner. Ostner: I do have a question. Staff's offer on their recommendations on page 2 of 8 on architectural up -lighting, staff has said "Staff recommends adopting this language... [etc, etc]... however if the Commission finds up -lighting detrimental this section could be removed and all up -lighting could be prohibited.". I am uneasy with up -lighting. Given the three options that Mr. Olsen mentioned, I believe that prohibiting up -lighting is the choice that benefits this city. I am not willing to vote for this revision for the Lighting Ordinance if allows up -lighting. Also, on that same note, I think the heart of most people's perceptions comes down to brightness. We can measure where the light falls, and we are doing everything we can to keep the light from going here and there, but it is really bright lights that people complain to me about, at least. I am sure that staff does not enjoy measuring lights. And I wouldn't either. But when these other cities use that as a regulation I think it speaks that it is part of how a lighting ordinance is successful. I think our lighting ordinance is pretty sufficient as it is. It might need to be better. But I am not convinced that architects and developers who complain are necessarily right. They do have lots of great points that we need to consider. I don't think I will vote for this as it is worded right now. Anthes: Is that a motion to strike the up -lighting clauses? Motion: Ostner: Well, I haven't heard anyone talk about it. I'll just make a motion that we remove the up -lighting verbiage. It is kind of put in here and there.... Maybe staff could help me find the places where up -lighting.. Olson: I think it is K-1, 2, 3, and 4. And if that amendment were to pass I would recommend that in section 176.06 we removed that to prohibited lighting Planning Commission January 8, 2007 Page 23 of 97 installation. Specifically prohibited in that section. Ostner: Prohibited in the very last...? Anthes: Mr. Olsen, if I could understand it would be 176.06 B, would state all up -lighting landscape and architectural features shall be prohibited. And then you would strike any language allowing that within the ordinance. Is that right? Olson: 176.06 B, yes. And then we would strike everything back here. Ostner: So yeah, that will be my motion. We will see what you all think. Anthes: I'll second it. Ostner: Adding 176.06 V as is stated and staff can be responsible for changing the specific verbiage before that. Anthes: We have a motion to prohibit up -lighting of landscaping and architectural features. That motion is by Commissioner Ostner seconded by Commissioner Anthes. Is there discussion? Harris: Madam Chair? Anthes: Commissioner Harris. Harris: Commissioner Ostner, may I ask given the revisions that we have done, the amendments, my understanding is that at this point the up -lights would be cut off, the light field would be cut off either by the building line itself or some mechanical means. But you would prefer not to even... Am I correct? You don't want to have any up -lighting. And may I just ask what, if we are protecting light trespass by the building or by other mechanical means, what is the rational behind prohibiting up -lights all together. Ostner: Well it is not just trespassing in my book. It's the general look. You can really, really pump up a building when you start up -lighting. Some of these resort, tourist areas just pump up the up -lighting. Your building can absolutely glow when you start to do that. And there might not be any trespass but your building is absolutely glowing. You have shut your doors and you have gone home at five and your building is glowing and it is doing work for you. But I don't think that's appropriate in here in this town in my opinion. So, right, that is the point. Harris: So, just so I understand, that is not a matter of aesthetics for you. Rather, if we had to attach it to one of our purposes as this chapter is intended to, would that be something like B? The glare of a non -vehicular light source. I mean, I am just trying to attach that beyond just you're not wanting a pumped up building. What we are really attaching that to in terms of purposes we are trying to accomplish Planning Commission January 8, 2007 Page 24 of 97 here. Ostner: Well, you know, B talks about glare which is the actual bulb. Looking at a bulb. And that is not what I am talking about. Harris: Ok Ostner: I just think you can light your building sufficiently without using up -lighting. I just don't know how else to say it. But when you start up -lighting everything changes. And we have done a lot. If the Council did want to allow up -lighting I think, you know, we've done a lot to diminish it. But I don't think that it is a good path to go down. Myres: Madam Chair. Anthes: Yes, Commissioner Myres. Myres: I want to withdraw my motion until we are through with the discussion. Anthes: That's fine. We have a motion to... Lack: Madam Chair. Anthes: Yes, Commissioner Lack. Lack: I would just like to say that I will vote against this amendment in that I think the purpose that we are looking for is shielding and blocking the light. I think it is irrelevant whether the fixture does that or buildings in other parts of the build environment. I would just like to state that. Anthes: Thank you, Commissioner Lack. Is there further discussion? Commissioner Clark. Clark: I have a question, and you might be able to answer it. Up -lighting of landscaping concerns me much more than up -lighting of buildings with the amendments we have put in. Can't a building have the same problems you discussed from non - up -lighting? Just regular lighting, lighting? Anthes: Yes. It can. Ostner: It can, sure. But you've got to work a lot harder. Clark: Unless we restricted the amount of the neon. I think I would be more inclined to support your motion if it was just landscaping. Up -lighting in landscaping gives me lots of problems. Especially when landscaping dies, the trees lose their leaves, you have a lot of big light. There is a lot of glare. But I am Planning Commission January 8, 2007 Page 25 of 97 uncomfortable. I think we put in some good amendments. I understand your objection. And I am more concerned about Anthes' objection about truly where we are going. If we are going towards dark sky or just the reduction of atmospheric light pollution. Ostner: Well, on that note if I can speak to that? Clark: Go ahead, yes. Ostner: Just because you shield it on all sides from direct light doesn't solve your dark sky. Clark: True. Ostner: There is, you know, the building can glow. That contributes to the light trespass significantly. Since it is so much easier to light a building up -light. You can get it a lot brighter since we are not going to regulate brightness. Which, by the way, if we were doing up -lighting I would strongly recommend looking at lumins. The Boulder rule. It doesn't have to be direct for it to be a dark sky problem. Clark: I see your point. Anthes: I respect staff's comments about administering a technical ordinance, and I agree that we are doing our best to achieve the intent without looking at numbers that are hard to..., you know, go out there with light meters and figure things out. But it is difficult when you really think about light because you also have to think about contrast. And when consider safety, the guidelines that are out there right now give an average foot candle level that is pretty darned high. And to achieve it you get a series of lights (tape flip). And then when you are walking or driving what you get is a bright, bright pool of light and then a dark area, and then a bright, bright pool of light. And your eyes don't compensate for it. So when you are in a dark area it is really dark, and when you are in a bright area it is really bright. If you could look for a lower average illumination level, that means that the brightness is cut way, way down and there is much more consistency between the bright areas and the dark areas, which is a lot safer. But, you know, I think that is a lighting design issue and the Illumination Society is looking at changing their recommendations in that respect. And I think, that we just have to do the best we can with describing how to contain the light that is provided by each project. Well, we have a motion to prohibit up -lighting on landscape and building. Will you call the roll? Roll Call: The motion to remove the up -lighting verbiage was denied 2-7-0. With Commissioner Bryant, Commissioner Myres, Commissioner Graves, Commissioner Lack, Commissioner Harris, Commissioner Clark, and Commissioner Trumbo voting No. Planning Commission January 8, 2007 Page 26 of 97 Anthes: Commissioner Myers, are you ready? Motion: Myres: I will reinstate my motion to approve Administrative Item 06-2379 for amendments for our Outdoor Lighting Ordinance with all the stated amendments, or all the approved amendments. Anthes: Commissioner Trumbo? Okay. We have a motion to forward to Ordinance Review and City Council, the Outdoor Lighting Ordinance Amendments as we have discussed and amended this evening. Is there further discussion? Will you call the roll? Roll Call: The motion to approve ADM 06-2379 for amendments for our Outdoor Lighting Ordinance carried with a vote of 7-2-0. With Commissioner Trumbo and Commissioner Anthes voting No. CUP 06-2128: (SOUTH HILL CHURCH OF CHRIST, 561): Submitted by DAVE JORGENSEN for property located at 1146 S HILL AVENUE. The property is zoned RMF -24, MULTI FAMILY - 24 UNITS/ACRE and contains approximately 0. 17 acres. The request is for a church (Use Unit 4) in the RMF -24 Zoning District. Anthes: Item 12, Conditional Use Permit 06-2128 for the South Hill Church of Christ. Can we have the staff report Mr. Fulcher? Fulcher: This item was before the Planning Commission in July of 2006. It was tabled at that time at staff's request so the applicant could work on the building elevations of this church a little bit more to try to create a more residential type use, or design in this neighborhood. Originally it was predominately metal structure other than the front facade. And there are color elevations in your packets. They have added brick accents on all of the other three sides and maintained the stone and dry wood look on the front facade of the building. Specifically this property is at 1146 Ellis Ave. It was formerly Hill Ave which is why it is called the South Hill Church of Christ and not the Ellis Avenue Church of Christ. It is zoned Planning Commission January 8, 2007 Page 27 of 97 RMF -24. It was constructed in the 1950's on this property. It was demolished and rebuilt on the same property, just relocated to meet the current setbacks of the time in the 1960's. At that time it was a permitted use. So currently the existing church facility is a nonconforming use in this zoning district. The applicants are requesting to construct an activity center as part of this church development on the lot just adjacent on the south. There is an existing home there that they are proposing to tear down to build this structure. It would have a fellowship hall, office areas, storage, and play areas for the church. Also they would be constructing a parking lot with 11 spaces for the new facility. There is an existing gravel parking lot for the original building with 21 parking spaces. They are proposing with this redevelopment, among other improvements to the two properties to pave that parking lot and bring it into conformance with current standards. Given the duration that the existing church facility has been in this neighborhood, and this neighborhood has been there as long as the church facility has, which is back to at least the 1950's. It appears to be quite a compatible use, an acceptable use within this neighborhood. So staff is recommending the approval of a conditional use to allow for the expansion of the church facility on the adjacent lot. We have also requested that you look at and recognize the existing church facility as a conforming or permitted use since it was constructed as a permitted use, but no longer is in the RMF- 24 zoning district. We are recommending approval with eight conditions. Item number2. Since there is going to be a parking lot adjacent to a residential district on the south of this new lot, among many of the landscape plantings that they are planning on putting in to provide a screen of shrubs on the south side of the lot as required by ordinance. And then also Item number 8 which is just referring to restricted hours. We weren't trying to restrict the normal operating hours of the church facility. Just to kind of put a cap on it. Especially on the week nights just so that those services don't run too late given the proximity to the single family homes in the neighborhood. If you have any questions, please ask. Anthes: Jesse, before you sit down? Fulcher: Yes, Ma'am. Anthes: Do you know how solid waste plans to service this site? Fulcher: We put a condition in there. Right now they are using....? I did not see a dumpster on the property when I was down there. I believe they are using a residential cart. I would expect the same. The applicant may be able to provide information on that. If a dumpster is requested or required they will have to screen that with materials compatible with the building. Anthes: And have you received public comment? Fulcher: No, I have not. Planning Commission January 8, 2007 Page 28 of 97 Anthes: Thank you. Would any member of the public like to address this Conditional Use Permit 06-2128 for South Hill Church of Christ? Seeing none I will close the floor to public comment. Would the applicant like to make a presentation? Jorgensen: Hi, I'm Justin Jorgensen with Jorgensen and Associates. I am here for the church. Jesse pretty much summed everything up. To address your question, Ms. Anthes, there wasn't going to be a dumpster. They weren't planning on being a dumpster. So everything is going to be kept inside. It's just a 3200 sq ft activities and fellowship center. They are going to have their church meetings and, I guess, social stuff in there. If you have any other question I would be happy to try to answer them. Anthes: Commissioners? Motion: Clark: This church has been here for a very long time. It's trying to expand. I think it meets all the requirements. I will make the motion that we approve Conditional Use 06-2128 as stated, recommendations as listed, with determination that it is compatible. Lack: I will second. Anthes: We have a motion to approve by Commissioner Clark and a second by Commissioner Lack. Is there further discussion? Will you call the roll? Roll Call: A motion to approve CUP 06-2128 as stated, carried with a vote of 9-0-0. Planning Commission January 8, 2007 Page 29 of 97 RZN 06-2399: REZONING (CITY OF FAYETTEVILLE): Submitted by Planning Staff for properties located west of Double Springs Road. The property is zoned R -A, RESIDENTIAL AGRICULTURAL and contains approximately 1,419.30 acres. The request is to rezone 39.62 acres of the subject property to P-1, Institutional, 3.93 acres of the subject property to C-1, Neighborhood Commercial, 55.33 acres to RSF-4, Residential Single Family -4 units per acre, 232.06 to RSF-1, Residential Single Family -1 unit per acre, and maintain the R -A, Residential Agricultural -.5 units per acre zoning for the remaining 1,088.36 acres. Anthes: Our first item of new business is Rezoning Request 06-2399, Westside Annexation. Ms Minkel. Minkel: Good evening Commissioners. On November 21, 2006 the City Council approved and ordinance to attach and incorporate approximately 1400 acres into the City of Fayetteville after a majority of citizens voted in favor of annexing the property during a special election held on October 10, 2006. At that meeting that entire property was zoned Residential/Agricultural, and I think you are all familiar with where the subject is located, but it consists of approximately 1,088 acres of undeveloped agricultural land and 287 acres of residential development or residential development that has been approved prior to annexation. The surrounding properties are mainly undeveloped and agricultural in nature. That land use is depicted in Table 1 of the staff report. Staff is proposing the following Planning Commission January 8, 2007 Page 30 of 97 rezoning: For approximately 4 acres, which are two lots at the corners of Harmon Rd and Highway 16 in the southeast and southwest corners, Staff proposes zoning it neighborhood/commercial. For approximately 55 acres Staff proposed a rezoning of RSF-4, Residential Single Family four units per acre. It is a platted subdivision at the southeast and southwest corners of Harmon Rd and Highway 16. Staff is proposing that approximately 232 acres be zoned Residential Single Family one unit per acre. Those are the remaining platted subdivisions at Highway 16 and Rocky Ridge Lane, Forrest Hills Drives, and along Harmon Rd South. We are proposing that 1,088 acres be kept Residential/Agricultural and that the property owned by the University of Arkansas, which is approximately 40 acres, be zoned to Institutional P-1. I will just review the infrastructure report as well. With any future development in this area, the existing streets will be evaluated to determine the improvements necessary to meet the demand of the development. The City of Fayetteville provides water to the neighborhood at Wedington Drive and Rocky Ridge Rd, but the annexed area is predominately served by the Washington County Water Authority. Residential and commercial structures have either individual septic systems or community septic systems, also known as decentralized sewer systems. The Fire Department supports the proposed zonings. The public services are not available to greater densities in this area. It is the opinion of the Fayetteville Police Department that this rezoning will not alter the population density and create an undesirable increase in the load on Police services. The subject areas are located the western edge of the city and will increase the response time for calls for service. The rezoning will not create an appreciable increase in traffic, danger, and congestion in this area, and there is a letter from Captain Brown in this report as well. The City Plan 2025 Future Land Use Map designates this site as rural and residential. The proposed rezoning is consistent with the Future Land Use Map, except for the limited neighborhood/commercial area at the corner of Harmon Rd and the corner of 16. The residential subdivisions approved prior to annexation suggest that there will be a population large enough to utilize some commercial services. And those two subdivisions are: Somerset, which had a preliminary plat approval, and their density on that preliminary plat was around 2.3 units per acre. West Ridge subdivision had a final plat approval, and their average is about 2.7 units per acre. The residential areas along Highway 16 east of Harmon Road South and the Future Land Use Map have a proposed rezoning of Residential/Agricultural. The development along this corridor includes a wide range of uses, which are all grandfathered in and make a residential rezoning inappropriate at this time. I will just read through the findings of the staff. These designations reflect the existing land uses, which makes the proposed zoning consistent with the Future Land Use Map. Additionally, City Plan 2025 states that the City will discourage suburban sprawl. The proposed zoning for this area discourages that sprawl by keeping the majority of the land at rural densities until there are sufficient public services and population to support more urban densities. The proposed zoning would reflect current circumstances and make a majority of the current uses conforming. No development pressure or city policy currently creates the need for rezoning to higher density than those proposed. The zoning will not increase traffic on Planning Commission January 8, 2007 Page 31 of 97 Highway 16 or other roads as the zoning mainly reflects development that already exists and was approved prior to annexation, and you already had the Police findings in terms of the traffic congestion. Lastly, I just want to mention that the intent of the proposed zonings was to identify the current uses and make a majority of them conforming to our codes. We also looked at areas that were fairly large where we could apply consistent zoning for that large area. Of course, property owners of smaller parcels can always request for a rezoning. Over 300 letters went out to the property owners in this area as well as adjoining property areas. We fielded a number of questions in the past two weeks. Mainly they were just to clarify what the rezoning meant. However, we did receive a petition from the Forrest Hills Subdivision and some surrounding neighbors regarding the residential single family four units per acre proposed rezoning in that area, which is attached to the report. And I would be happy to answer any questions. Anthes: Before you sit down, I would like to clarify the 55.33 acres to RSF-4. The final plat approval was from Washington County? I'm assuming? Minkel: That is correct. Anthes: And that was Westridge, and that's 2.7 units per acre and that is on the east side of Harmon south? Minkel: Yes, that is the southeast corner. Anthes: And then the hatched area on the west side of Harmon South is Somerset, which a preliminary plat has been approved by Washington County? Minkel: That is correct. Anthes: For the 2.3 units per acre. Ms Minkel, can you or the Zoning and Development Administrator tell us whether there is any process at all by which the City of Fayetteville can now review those subdivisions, and if there is any leeway at all in the density of those areas? Pate: Those subdivisions that are already approved will have their preliminary plats honored by the City of Fayetteville and their final plats as well. So as of right now the project to the southeast of Harmon and Highway 16 there are homes there. However, any future homes have to get building permits and will be inspected through our building safety office. For the project on the west side, southwest side, the final plat would be coming though the City of Fayetteville. So with their preliminary plat they would simply install those improvements that were required and we would review those as we have in the past. Anthes: So for the public that is here tonight, I am trying to make it clear that those plats have been approved at that density and that those plats will be honored by the City of Fayetteville. And so the only zoning designation that we have on the Planning Commission January 8, 2007 Page 32 of 97 books is RSF-4, the only one that will bring those approved plans into compliance? Pate: Yes. Based on the lot size. It is not really based on the actual density, but based on the lot size that was approved that's our... It is larger than what we typically have in RSF-4, but it is the only zoning designation that would meet. Andres: Thank you Mr. Pate. Thank you Ms. Minkel. Would any member of the public like to address this rezoning for Westside annexation? Please come forward. We will ask you to sign in and then state your name and give us your comments. Bay: My name is Alvin Bay. I live at 13361 Forrest Hills Drive. I am the one that has that position of objecting to the rezoning. In addition to those 41 names, I have another 63 names here with me tonight that are simply saying that we don't feel that this is at all appropriate. I'm hearing something quite surprising, and that is that maybe we don't have any say in this. We have had a lot of surprises. We are newcomers in the city by way of annexation fairly recently. We feel that it is quite inappropriate in character with the country community that exits up there to zone something RSF-4. Beyond that, our personal wishes on that, if we take a look at that from the standpoint of the 2025 Plan. I know you are calling that an exception, but it certainly understand that the West Ridge Subdivision has to be RSF-4 because it already exists. The acreage on the west side of Harmon Rd, certainly could have another designation. And our proposal is that it be the RSF- 1 or R -A. Right across the road from where I live in Forrest Hills, it's R -A and if we look at the traffic, at the possible drainage problems from putting 2.3, whatever it is, houses per acre, we see that as a big influx and certainly not appropriate for transportation off of that road at the present time. The same goes for the zoning of he commercial on that corner. We know that city sewer does not come out there. I don't know if it is even appropriate. It seems to me that on the West Ridge side right now the sewer system is backed up right to where the commercial designation is. Maybe even on it. I'm not sure just how that is set up. It certainly does not seem appropriate to start putting commercial out in that part of the county. I mean, the furthest extreme as far as the city is concerned. And we hope that something can be done to make that at least RSF-1, and our preference would be R -A. That would be much more in-line with the houses and subdivisions that are out there now. I am almost certain that if I went to all of the people in that neighborhood a very high percentage, 95% or more would be very much in favor or restricting this and changing the rezoning as you have done. I was quite pleased when I was here at the hearing where the 2025 Plan was presented and it showed it all as rural, or RA. And so, when we received this letter it was quite a big surprise for us that someone decided that that had to be changed. So I hope you give us due consideration. We are the newcomers in the city. We want to be part of the city and be heard. Thank you. Andres: Thank you, Mr. Bay. I don't know if it would help for staff to clarify the process that has already happened before additional people speak. I know that what you Planning Commission January 8, 2007 Page 33 of 97 see out there on the ground is an open field, but the county has issued development approval on some of those sites. From what we understand, because those have been issued, we have no power to overturn that development approval. The zoning that staff has recommended only brings what has already been approved into compliance. If Mr. Williams or Mr. Pate would like to make that more clear than I can, please do. Williams: Well, I do think that Jeremy is absolutely correct that plat that was issued by the county when that land was in the county gave the owner of that land certain rights to develop under that plat that the city has nothing we can undo. The issue here, of course, is rezoning. Staff has attempted to get the zoning that would fit the plat that has already been approved. But even if that did not happen, the plat would still be built because it would be grandfathered in. The only concern I have with the proposal for the RSF-4 is that that does give further rights to the landowner. So maybe they would come back with another plat that would be more dense, closer to the four units per acre and say, "Well, I've got properly zoned land now and I want this plat approved." So it might be... Eventually we want the land out there, the people who own the land, we want their homes to be conforming with our ordinances. We don't want them to have non -conforming structures because that gives them problems for insurance and everything else. So it should be zoned to what is built out there. But I wonder if on the 55 acres, I think what it is for the RSF-4, if maybe what we should look at is for the city to protect the neighbors more is maybe either not doing anything on that initially and wait for it to be developed. And then we are a little bit more protected. We know what is going to go in. They can't just change something on paper and come back with more units. More else, even choose a slightly less dense zoning like an RSF-2, which at this point won't conform and eventually will have to be changed in the future. But I am a little concerned about the RSF-4 because that does give the landowner a right to come back and ask for a new plat. We would have the limits at that point to reject it. If it conformed with the zoning then we must approve because the land owner has rights. So that might be something that we want to think about on just the 55 acres. On the commercial that is out there, again we want to make this a conforming property rather than leave it nonconforming. And so that is something you probably ought to go forward with. I am not familiar about the sewage situation up there. Obviously we would want commercial on city sewer if possible. I am not sure exactly where the city sewer main is. But we do have to honor the preliminary plat that the county issued. We can't undo that. The landowner has the rights that he obtained from county, and our annexation can't undo those rights in my opinion. Anthes: Mr. Pate or Ms. Minkel? Do you have anything to follow up on that? Or Mr. Conklin? Conklin: If the developer goes forward and does develop the plat, in order for us to... Of course we will see the final plat. But in order for us to issue building permits it would be problematic not to have the zoning in place, just from a city perspective. Planning Commission January 8, 2007 Page 34 of 97 So I'm not sure if the developer is here tonight, but whether or not you move forward and you don't provide a zoning that would allow the city to actually issue building permits, our City Attorney is suggesting that we would be able to issue building permits within this without the zoning because that is one of the main reasons we were trying to bring these plats into compliance in order to, so when they walked through the door there was a zoning that allowed us to issue a permit. Williams: Well I just know that we had another preliminary plat come through that a developer wished to, it wasn't part of the annexation done by annexation but it was part of the island annexation I think, and that particular builder actually offered a bill of assurance that he wasn't going to build more than a certain number of units, which would be another way that would safeguard us. If we had those kinds of assurances from the developers. But at this point there are no assurances and so that does give me some concern about what might actually eventually go out there if we just adopted like this with nothing to stop even more dense development out there on our outskirts. Graves: Madam Chair, I have a question probably for Jeremy. Remind me again, the one that has already started building; it has been approved at how many units an acre? I think it is in the initial report. Pate: 2.7 I believe. Graves: And then the one that is just platted? They haven't started building yet. What was that? Pate: That was at 2.3. Graves: And when we approve something at RSF-4 it normally doesn't end up at... I know it doesn't end up at 4. But do you have an average of what it ends up? Pate: Sure. On average we are usually looking at 2.8 to 3.4 is probably pretty typical for RSF-4 zoning district. Anthes: Let's go back to the public comment. Please come forward. Coch: Good evening. I am Ricky Coch. I live at 14891 Cedar Ridge Lane which is in the newly annexed area of Fayetteville. I am here to speak about the rezoning of that area. I guess I will go in the order of the way it was brought out. The commercial pieces there at the corner of 16 and Harmon road on both sides. On the west and the east side, I would like to make a comment that just about a quarter of a mile down the road is Wedington Fire Department and a defunct gasoline station business. It is out of business. Probably for a reason. There is not enough people that were moving out that way. There is just not a lot of business coming that way. I don't see the need for commercial property right at Planning Commission January 8, 2007 Page 35 of 97 that intersection at this time. I can see where you may want to make plans for it, but at the rate of development I would think that it would be best left at some other designation. With regard to the acreage at the southwest corner the 55 or 58 acres that is being zoned for four houses per acre. It is definitely without a doubt with our neighbors that it doesn't fit. The part that is already being built doesn't fit. Unfortunately we were at the Town Council meeting in Farmington, although at that time it was Farmington growth area. For whatever reason they pulled out of that and it did get approved. It did get developed and they are trying to sell it. It is done. But when you look at what Fayetteville likes to have, they like to have a lot of trees and green space. We have a lot of trees and green space in Forrest Hills Drive and that subdivision. I think I have one of the smaller lots, about an acre and a half. Some of them range up to 5 and 6 acres, but most are about 2 to 3 acres. Most of it is woods, except for the first drive in. To put homes in that density, I am disappointed to see that happening. And I know that we cannot stop what the Washington County has already approved. I know that Washington County at the time, just at the time they approved this did come back and say that for these regions that they were doing high density in the county that they wanted to stop this for a time being to reconsider because of the drain of resources to the rural Fire Departments. So I don't know if that is a way for us to reconsider that zoning. I also know that there is a for sale sign on that property. Whether it is not updated and being sold, but obviously the person who originally wanted to develop it did not exercise their option from the farmer who owned it and now has it up for sale. I don't know that that gives us anyway to back off of this density. I hope that you will support me in keeping the density in this area more rural than urban. When we get into homes that are spaced that closely you don't have a lot of room for trees. They do landscaping and it looks nice, but it is not the aesthetics that I moved out to that area and bought the lot 3 years ago and built the house 2 years ago. I would appreciate it if you would look out for my interests. (Unclear) And if you have any questions of me. Anthes: Thank you very much. Coch: Thank you. Anthes: Would anyone else like to speak? Higgs: Lloyd Higgs. I am a property owner in what I believe to be the annexed region. My question is, or rather my statement is, it says on this mailing that on October 17, 2006 voters chose to annex 1,419.3 acres to the City of Fayetteville. My question is, were the property owners in this region notified of this vote? And if they were, how were they notified? Conklin: Would you like me to respond? Anthes: Sure. Planning Commission January 8, 2007 Page 36 of 97 Conklin: Under State law the Washington County Clerk notified, correct me if I am wrong Kit, the Washington County Clerk notified qualified voters of their ability to vote on the annexation election. Higgs: I'm sorry? Conklin: The Washington County Clerk sent out notifications regarding qualified voters their ability to vote within the election. Higgs: I don't recall receiving any such information. But I did receive this. Thank you. Anthes: Thank you. Would any other member of the public like to address this rezoning request? Good evening. Montgomery: I'm Jeff Montgomery and I owned that property that we are discussing. Two years ago I sold that to a group of developers who developed West Ridge. But due to financial difficulties they reneged on the 40 acres. But the City of Farmington Planning Commission, the City Council of Farmington, the Washington County Planning Commission, approved the platting of that piece of property as four units per acre. Now I have it for sale again. I have a contractor on it to sell it if these folks can build at least four houses per acre. I bought that in 1958. I farmed out there for nearly 50 years. I raised my family there. We are a family of farmers. I have my grandson right back there who wants to farm. His future depends on whether I can sell that property and it be developed. About a week or ten days ago the City of Fayetteville wrote in the Northwest Arkansas Times we all know that we need affordable housing. Everyone knows that. But if you limit the number of houses that can be put on an acre out there then folks can't buy. And I had my (unclear) back there go through and run up some numbers that I would like for him to present to you to show you what happens when the price of a house goes up. Anthes: Mr. Montgomery. We cannot consider economics in our development review. So I am sorry, but I can't allow those comments. Montgomery: Ok. Ok. Thank you. Knight: My name is Ed Knight, and I rise in defense of the zoning/rezoning of the area in question here. With respect to all the speakers who talked about how the area used to be and the trees. It is, as I understand, where the population of this city is moving. Right after court someone told me that the population center of Fayetteville in seven years will be at the intersection of 540 and Wedington Rd. Does anybody know that or is that just crazy? At any rate, I drive out in that area and there are already and incredible amount of rooftops out there. It is the reason we are placing our new restaurant out there at Double Springs Rd. That would be in the noblest sense to serve the neighborhood of that particular area without them having to drive all the way across town and into the melee that can be 540 and the Planning Commission January 8, 2007 Page 37 of 97 Mall area and such and such. Whereas, part of it doesn't seem green, part of it can. I mean, everybody could have just a short jaunt to the services that they need out there with some of the neighborhood commercial things that could be built. I have a piece of property along with a partner about 1,000 ft. from the intersection of Wedington Rd and Double Springs that I will probably ask for a variance to have a piece of commercial property made into a commercial property in as much as it sits across from a large implement dealer and a large church and other businesses like that. So that is the selfish part of it. But I also think that the neighborhood area would be well served with some commercial things and appropriate businesses that service that local area. Thank you. Anthes: Thank you, Mr. Knight. Williams: Madam Chair. Anthes: Yes. Williams: You are right when it comes to development that economics can't be considered, but this is a rezoning request, and for rezoning by statute, there are several things that the statutes talk about: the appropriate and best use of land, the efficiency and economy in the process of development, why is it an efficient expenditure of funds. So actually, economics can be considered to some extent for rezoning among many, many other factors. But you are right when it comes to development that that is not in our unified development code and we can't consider it then. Anthes: Okay. I am a little confused because I believe when Mr. Montgomery presented that question, he said he wanted to talk about the economics of the development that they wanted to place on that property. Williams: But the decision that we are looking at is rezoning, and so you can consider economics, efficient use of funds, in a rezoning request. You have a much broader discretion and much more, many more factors that you can consider in a rezoning. Anthes: Then Mr. Montgomery, if you want to send your person up, you can. Colly: My name is Michael Colly, I am an executive broker with ReMax Associates here in Fayetteville. And I guess these are economics, but basically I ran a listing of price listing of homes that have sold in Fayetteville in the last year, a 12 -month period, January first through today. It is a year and eight days. Price range of 100 to 150 there were 306 homes sold. Price range of 151 to 200,000 there were 214 homes sold. Price range of 201 to 250,000 there were 123 homes sold. Price range of 251 to 300,000 there were 69. 301 to 350,000 39. 351 to 400, 33. And 401 to 450, 14. And as the price goes up those numbers go down more significantly. So when we talk about the highest and best use of the property, Planning Commission January 8, 2007 Page 38 of 97 four homes per acre would probably really be in the affordable housing range that is for the demand that is being asked for in our community. We have a lot of high priced homes sitting out there in subdivisions that aren't selling, but the homes in the 100 to 200 to 225,000 price range, 250, are selling. And they are selling at 2 and 3 times the price of the more expensive homes. So that basically is what Mr. Montgomery wanted me to present to you is that what is the highest and best use. If you restrict that to one house per acre, then you are looking at homes in the $500,000 and up to be able to build on that land by the time you look at the cost of the acreage, the cost to develop one acre, and the price per square foot to build the house on. Thank you. Anthes: Thank you. Would any other member of the public like to speak? Good evening. Reardin: My name is Glennis Reardin. I am a resident of Forrest Hills Drive. I was one of the ones who collected some of the signatures from our neighborhood, and all the neighbors I spoke to, we are not opposed to a subdivision out there. That's fine. We want something comparable to what we moved out there for. We moved out there for the country setting. We tried to move away from the big city, close subdivisions. Yes, where West Ridge is legally two houses, or a little over two houses per acre, there are four houses per acre. Those are quarter -acre lots. The reason it is two house per acre in that subdivision is because they have a huge septic system that is sitting on several of the acres. So therefore, yes, the subdivision is this big, but the houses are sitting on this, and the septic system is sitting on this. So yes, the density for the whole acreage of the whole subdivision is 2 point something. We agree with that. However, the actual, if you measure the acreage the actual houses are on, it is closer to 4, 3.75. I don't know the actual statistics. I know when we were at the Farmington meetings where the, I believe it's the Somerset, the undeveloped property, again, the plat was for quarter -acre lots with a large drip field for a community septic system. So again it is going to be four houses per acre according to this plat. So none of the people that I spoke to are opposed to a subdivision. I don't think we are even arguing half -acre lots. What we are arguing, or what we don't want to see, is quarter -acre lots because when the city sewer system does come out there in 10 to 15 years or whenever the sewer system comes out, that drip system will be taken out and it will be put in four houses per acre. That is what we are concerned about. And yeah, you have a good 2025 Plan, and if you need affordable housing put it where you have planned to have the higher density problem. We don't have any problem with that. Thank you very much for listening. Anthes: Thank you, Ms. Reardin. Would anyone else like to speak to this item? Seeing none I will close the floor to public comment. The applicant is the city in this case, so I guess we go on to discussion. Could somebody clarify what is happening with these large annexations when it comes to extension of sewer systems? Williams: Well, the city's position has remained that the sewer mains shall be extended by Planning Commission January 8, 2007 Page 39 of 97 the developers to serve their subdivisions or their developments. The city does not extend the sewer mains itself out to reach development. That is the responsibility of the development themselves. Anthes: Right, and generally with development of any property within the City of Fayetteville we request the sewer line to be extended. In these cases, with these large annexations, there might be a considerable distance between an existing line and the development. In that case, what happens? Williams Well, as you are aware, from some of the plats that have come through it has been extended. There was a preliminary plat that was approved by the county using a drip field and then they came through the city so they could have a few more lots and get rid of the drip field. And that was approved at an RSF-2 level. They agreed of course to extend the sewer main to this particular plot. Now, I am not sure exactly where this other land is in relation to the nearest sewer main, but I would think that any developer would look very carefully at the cost to extend a sewer main as opposed to using all that land for a centralized sewage system which is problematic in the future about how long it is going to last and be effective. Hopefully, the developers will be extending sewer mains out to their developments instead of doing these decentralized sewer systems. Anthes: Mr. Pate, do we know where the sewer line ends in this case, and is it within a reasonable distance of these properties? Of the 55 -acre properties? Pate: Our City Engineer is here. Anthes: Hi, Mr. Petrie. Can you enlighten us? Petrie: Yes. Good evening, Madam Chair and Members of the Commission. The closest sewer line is basically Double Springs Road, with the exception of what is built in the Silverthorn Phase 1 subdivision. So it is a substantial difference. In regards to the decentralized systems, that is something we have avoided and will continue to avoid. We are currently working on an ordinance to be very specific that we do not allow them. Obviously we will have to inherit some with this annexation, so we will also deal with the issues of how are they maintained. Did I answer your question? Anthes: In your opinion, basically the distance between Double Springs Road and the development of the 55 acres at either West Ridge or Somerset is too great a distance to be economically viable? Petrie: I believe so. The length is obviously a concern and really you have to do it twice because it is all downhill heading out to the west. So you will have to gravity west, put in a large pump station, pump it all the way straight back to the east. So I would say that at this point it is not feasible economically. Planning Commission January 8, 2007 Page 40 of 97 Anthes: Thank you, Mr. Petrie. Petrie: Sure, you're welcome. Clark: Madam Chair. Anthes: Commissioner Clark. Clark: I have a question for staff. In this 55.3 acres that you are recommending that we designate RSF-4, was that recommendation given because the plats had already been approved by the county? Minkel: Yes. Clark: Ok. Mr. Montgomery just said that that is not going to happen now. So if I understood him correctly, the patted neighborhood, you've got it for sale and you are hoping to do something else with it. But the neighborhood that was platted is no longer going to be built. Is that what I just heard said? Unknown: (The plat stands. The property is under contract.) <- away from the microphone Clark: And there is no recourse for us to do anything with this? Because it has already been approved by another body? Pate: The developers in that case went through all the proper channels and legal requirements that they were required to do to meet the requirements within the jurisdiction in which they were located at that time. So they did everything right. The City of Fayetteville simply by election annexed that area after the fact. Clark: And apparently they did it before the county amended their zoning to RSF-I. Well, that bites! And I have said it before. There is another subdivision that we have been in the exact same position on. We cannot do a darn thing to it because it has already been approved. I think that is incredibly regretful, especially in this situation because I don't think RSF-4 is compatible at all. I don't think it ought to happen, but I don't think we have a darn thing we can do about it. I don't know when it passed the county, and I don't know what notification is in the county. But the time to raise voices is unfortunately not with us now. And that is very frustrating. I think most of the Commissioners will share your concern and your argument and find it very logical and rational. And yet recourse is impossible if I'm understanding our attorney correctly? Williams: What the situation is, is I think if they want to build that preliminary plat that was approved then yes they can do that. However, if you grant them RSF-4 you are granting them something in addition. You are granting a forever rezoning for that. Even if that plat does not get built, then they can sell it to someone else and do something else. Planning Commission January 8, 2007 Page 41 of 97 Clark: So would it be appropriate for us to amend that to RSF-2? I know you don't want us to get sued, so I'm asking you. Williams: The only concern I would have about being sued would be if we tried to stop the landowner from building the plat that was approved. Beyond that we don't have to do anything else, I think, as a city. We have to acknowledge and not stand in the way and not try to invalidate the county's approval. Clark: So how do we make the zoning that allows that plat to be built, but not give the extra rights for further development. How do we make it fit on this little bitty chart for these 55.3 acres? Williams: Well, one way you can do it is simply remove it from this particular recommendation from this ordinance. And if the owner wishes to have his land rezoned to ease his obtaining permits then he can be like any other citizen and come forward with the rezoning that would allow that plat to be built just like in the island annexation. That landowner came in and got the rezoning changed through your permission and did it individually as opposed to having it as part of the giant block of land here. Other than that, because if we go forward with this only, we are going to be granting more rights to that landowner than that landowner currently has now. Motion: Clark: And the argument that I heard from one of our speakers resonated very strongly. Part of that land is going to be drip field. If we give it RSF-4, when sewer gets out there, it can then be developed with four units per acre and that would just be compounding the situation. I have no problem with the commercial. If it doesn't develop commercial then they will ask for rezoning and something else will come through. If it does develop commercial you may have some services in the western part of the city, which I think are needed given the growth. So I am going to make a motion that we approve rezoning 06-2399 with the exception of the 55.3 acres designated to be RSF-4. My motion is to remove that completely and approve the rest of the rezoning request. Minkel: Madam Chair. Could I just say something? I just want to clarify. The southwest comer, which has only had the preliminary plat approved, that is 37.69 acres. West Ridge, which has had the final plat approved and where there are homes being built is 17.63 acres. Combined it is the 55 acres. I just wanted to clarify. Maybe you already knew that, but I didn't know if the Commission wanted to address only Somerset. Clark: No, I didn't because it is not in my report. The information about the county action is not in my report. And my maps are reprehensible. They are incredibly difficult. In case the public is interested in what we are seeing, this is where you Planning Commission January 8, 2007 Page 42 of 97 all live but this is what we see. I am thinking the city in the budget cycle might think about a better copy machine for short-term planning. A lot of the rest of that information was not in your report and I am still going to let my motion stand. Ostner: I'll second. Anthes: We have a motion to forward the rezoning request with, I guess...? Is it removing or actually, saying that the 55.33 acres would remain R -A because it is already R- A? Clark: I guess it would remain R -A. Anthes: Okay. And that motion was by Commissioner Clark with a second by Commissioner Ostner. Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Graves: I guess I have a question for the City Attorney. We've already been told that if it is nonconforming they have difficulty getting a building permit. I am hearing that our legal concern is that they be allowed, that they have got to be allowed to build what they have been allowed to build by the other political Subdivision of the State, by Washington County. If we have left them under -zoned, so to speak, and they are ready to build... I mean, I understand what has been done in the past. Things where they have offered, we're only going to build a certain number of units in order to get the up -zoning, but we are also not allowed to require that. Aren't we effectively requiring them to do that in order to get a zoning that allows them to build, when at the same time we are being told that they have got to be allowed to build, if we leave them under -zoned right now? Williams: I actually don't think that. I think that what I would.... What my opinion to the Planning Department would be, if they are grandfathered in with these preliminary plats that have been approved already, then we have to issue building permits to them according to the preliminary plats that have been issued even if our regulations or ordinances normally say you have to meet the zoning. Because at this point, the county preliminary plat has trumped us and so we must do that even if they don't come back in. The cleaner way is obviously for them to come back in and request the kind of zoning that would be in conformity, and I would urge them to do that because even if they don't do that, then they are going to have what appears to be nonconforming structures out there everywhere and that is not good for their homeowners. So it would be much better for their homeowners to come in and get everything cleared up, get it zoned appropriately, and so that is what I would encourage them to do. But I would think if they don't want to do that we will still issue building permits for them. Planning Commission January 8, 2007 Page 43 of 97 Graves: I don't disagree with that approach. I just wanted to make sure that you were comfortable. That that wasn't de facto doing what we are saying we can't do, which is force their hand on something where they have to come in and offer something which we normally say we can't require a builder to offer. I didn't want to be in a position of de facto requiring it by doing what we are doing tonight. Otherwise, I don't have a problem with having heard what we heard tonight. If the city is required, and it is going to be the city's advice to the Planning Staff that those building permits have to be issued regardless of what their zoning may be and they then have the opportunity to come clean up that zoning. But they can build whether they clean up that zoning or not. Then my concern is removed and I am in favor of the motion as stated. Lack: Madam Chair. Anthes: Commissioner Lack. Lack: Putting aside whether I would think that four units per acre would be appropriate at that node or that corner, I think we have a plan. We have talked a lot about the fact that we are required to allow them to work with this preliminary plat and final plat in the other subdivision, which are already approved. Which are approved in a nonconforming manner. In our city, and in our ordinance we have a method of gaining approval for subdivision that is not conforming to the rest of our ordinances, and that is the R-PZD. I wonder if it would be possible, and the question is for staff, to rezone a post -facto R-PZD for this property. Specifically for the preliminary plat that we are bound to adhere to having being approved by a higher body? Pate: I don't know the answer to that question. I think it would be extremely difficult for us to customize a zoning for a property owner that is not necessarily agreeing with that zoning now. Now, legislatively, the City Council can just rezone the property. Offhand, I don't know the answer to that question. It has not been posed before. Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Graves: Wouldn't they then have to comply with all the PZD requirements which require open space and park planning and all that. I mean, if you are in the same position and they are allowed to build what they are allowed to build regardless of whether you stick that PZD on them or not, and they'd have to comply with all the requirements of the PZD ordinance at that point. Lack: But that PZD would have tied to it a total number of units for the developer. Planning Commission January 8, 2007 Page 44 of 97 Graves: But they are still nonconforming with the PZD ordinance. I guess it doesn't... I don't know if it solves the problem. Lack: But they would have... And, well, I would certainly listen to more explanation of the different guidelines of the PZD. They would have greenspace, they have a drip field that I suspect would be green. Graves: Oh, I was thinking more along the lines of like Conditional Use. If there was a way to do it through the Conditional Uses process. That they were somehow conditionally allowed to build X number of units despite what the normal zoning was. Pate: I think my concern would be, with the Residential Planned Zoning District and trying to enact that on a property that you would be making conditions of approval and essentially contracting them to meet those conditions of approval. And contractual zoning, of course, is very difficult if not illegal. I think I would certainly have pause with that particular application. You can't request a bill of assurance that says here is the number of units. I think if (unclear) request a rezoning that does exactly the same thing. Anthes: We have a motion to forward by Commissioner Clark with a second by Commissioner Ostner. Is there further discussion? Just to be clear on the motion the 3.93 acres as C-1, the 55.33 acres as RA, the 332.06 acres as RSF-1, the 1,088.36 acres as RA, and the 39.62 acres as P-1. Conklin: Madam Chair. Karen Minkel did bring up the issue of West Ridge subdivision. I know in your staff report under table 2 it says platted subdivisions at the southeast and southwest corners of Harmon Rd and 16. Just for the record, West Ridge is developed. It has homes on it. They are not all built. I understand your motion, however if you go along with that we will forward that to Council, but there are homes at a RSF-4 zoning already developed. Anthes: I think we understand that. I think the recommendation is that those individual property owners come through with their own rezoning request. Will you call the roll? Roll Call: The motion to approve RZN 06-2399 with out any RSF-4 carried with a vote of 9-0-0. Anthes: We will call a short recess. We will be about 10 minutes. Planning Commission January 8, 2007 Page 45 of 97 ADM 06-2383: (METROPOLITAN NATIONAL BANK): Submitted by McClelland Engineers for a major modification to the approved LSD 06-1993. The request is to shift the curb cut to accommodate existing utility equipment and to adjust the building footprint for grading purposes. Anthes: We will now reconvene the meeting. Our next item is Administrative Item 06- 2382 for Metropolitan National Bank. Mr. Fulcher just informed me that the applicant would like us to table this item. Is that until next regularly scheduled meeting? Fulcher: I hope to have... I am working with the applicants later this week. I hope to have it for the next available Planning Commission meeting, but I believe it being an Administrative item we can just table it indefinitely. There are no notification requirements. Anthes: And can you tell us the reason they want to table the item? Fulcher: Typically these Administrative items, especially for a major modification to a site plan are fairly straight forward. Although with the relocation on the drive which is ultimately the request, working with the applicants to make sure there is a safe traffic situation created at the entrance since it is going to be offset from the curb - cut across the street. We are working with them and also having to work through the Arkansas Transportation Department for any proposed improvements to Mission Boulevard at that point. So it is really just the difficulties of getting on the same page, all three groups on the same page. So, it was a decision by staff and the applicants to table this now. Anthes: Thank you, Mr. Fulcher. Would anybody... If there was any member of the public here to speak to that item will you raise your hand? Okay. It seems like we have no public comment, so I will entertain motions to table. Myres: Madam Chair? Anthes: Commissioner Myres. Planning Commission January 8, 2007 Page 46 of 97 Motion: Myres: I move to table Administrative Item 06-2382 for the Metropolitan National Bank, indefinitely. Anthes: A motion to table by Commissioner Myers. Do I hear a second? Harris: Second. Anthes: Second by Commissioner Harris. Will you call the roll? Roll Call: A motion to table ADM 2382 Metropolitan National Bank, indefinitely carried with a vote of 9-0-0. Planning Commission January 8, 2007 Page 47 of 97 06-2410: Administrative Item (ROCKCLIFF APPEAL): Submitted by JEFF ERF, an appeal of the City Engineer's interpretation of Ch. 171-01 of the UDC, regarding a retaining wall at 620 Rockcliff Road. Anthes: Our 15`h item tonight is Administrative Item 06-2410, 620 Rockcliff Rd. Appeal. I will recuse from this item. Commissioner Graves, if you would run the meeting please? Graves: Can we have the staff report on this item please? Pate: This property is Lot 9, phase 1 of Highland Park subdivision address at 620 Rockcliff Rd. It is zoned RSF-4 and located partially in the Hillside/Hilltop Overlay District. It is the issue of a permit for the construction of a single family dwelling on June 28, 2004. In August of 2005 approximately a year later it was discovered that the building was constructed not in accordance with the plans. It was action encroaching into a utilities easement and a retaining wall was constructed over a sewer main adjacent to the road. Work on the structure was halted and a hold was put on the (unclear) until an issue of occupancy until these issues have been resolved. Most of these issues, if not all, have been itemized in a letter from the City Engineer. It is included in your packet. The work was accomplished. The applicant gained, or obtained a vacation of utilities easement on the west side of this property. The sewer line was relocated, and all the work was accepted by the City of Fayetteville. A certificate of occupancy was released, the hold was released, on this property. The petitioner is appealing to the Planning Commission, the decision of the City Engineer to issue a permit for the retaining wall which is located adjacent to the right-of-way. Chapter 171.01 C, retaining walls near sidewalk or right-of-way permits the City Engineer to permit a retaining wall closer than two feet from the right-of-way. Most retaining walls are located a minimum distance of two feet away from the right-of-way or sidewalk. However, City Ordinances do allow in those cases where it seems near to approve those within those two feet. The petitioner contends that the wall is a safety issue for pedestrians and vehicular traffic, and I am sure... Mr. Erf is the petitioner in this particular case. He would like to explain his petition himself. I believe we still have the City Engineer here. He can explain the permitting process and how that goes about. But essentially that is what this item is going to discuss. Planning Commission January 8, 2007 Page 48 of 97 Graves: Thank you. Do we have any public comment on this item? Please step forward and give us your name and give us your comments. Flackus: My name is Janet Flackus. You have letters from us in your file. Janet A Flackus and my husband Bruce Dickson. October 3, with this is also attached September 19. The reason we are here, I'm sure you know, is that Highland Park doesn't have sidewalks. And so as a member... We are actually adjoining this particular house and the retaining wall, but that is not important. Both my husband and I, and many of the people in Highland Park exercise and walk their dog on the street which is the only way we can do it. In fact, we go back this retaining wall both down hill and back, and our concern is safety. We measured this retaining wall. It is 4ft high, but it is only 12 to 13 inches from the inside of the sidewalk. It is on the down hill which is curved. You can't see the traffic as you are going by this retaining wall. If somebody is on the cell -phone and they are just a little over on the road there is no place to go and you will be squished between the car and the retaining wall. So our concern for members of Highland Park and people who use the road, children who have to walk by the retaining wall to get the bus, is that the retaining wall is a safety hazard. As you will hear from Tommy Tiller, this is a request by the developer made after the wall was in place, not before the wall was put in place. We have a safety concern. I wish I had a schematic to show you how this wall sits downhill in a curve. And the retaining wall is here, and if you are walking by the retaining wall and two cars happen to be going by and one person doesn't leave enough room so the car has to move toward the side, there is no place for a pedestrian to go. I mean, I'm not... Maybe you all can jump on top of a 4ft retaining wall, but I myself cannot do this. So we are concerned about safety. I am not sure how the existing retaining wall could be changed to move it 211 back from the road. But if it were moved 211 back from the road that would give us a place to jump off the road when the cars in the road are going to run into us. And believe me, maybe it is because we are all older in this subdivision, we are all exercising in the street as well as little kids walking to the bus. We go right by this retaining wall. And because it is on a curve and it is down hill I am terribly afraid that if the retaining wall is not moved somebody is going to be seriously hurt. But I told the Chair, I would be quick and I appreciate you all listening to us. We do have letters in the file that I am sure you have read. Thank you very much. Graves: Thank you. Is there any other member of the public? Please come forward and provide us with your name and give us your comments please. Tiller: My name is Tommy Tiller and I am the President of the Highland Park Homeowners Association. The reason I am here, and I don't know how much weight it would carry on your decision that you make, is kind of what I see as a standard operating procedure from the developer in general from what I have seen. One, there is some question about whether it actually meets the covenant requirements of Highland Parks as far as putting a wall right there so close to the Planning Commission January 8, 2007 Page 49 of 97 road without the yard easement. Graves: Honestly, the covenants are between the landowner and the original, the property owners association. So we don't really hear that information on that. But I appreciate the comments. Tiller: I have found that since the developer started the project it seemed like they just went forward with anything they wanted to do and then cleaned up the mess afterwards. It started right away with the development going in and not having port -a -potties for their workers. I had calls from... Graves: I, again, I'm not going to try to give you a hard time, but lets stick to the issue at hand and not get into the other issues. Tiller: Again, I get to where you are getting them a variance of something that is already in place, and I am just trying to make a point that it seems like that is the way they do it. And we are just giving it to them on a platter now instead of them making abide by the rules that everybody else does. I would just like you consider that because I have talked to other developers and seems like you hold everybody to a high standard but you are letting something like this just go right through. So I would really appreciate y'all thinking about that. Graves: Thank you. Clark: Mr. Chair. Graves: Are there any other members of the public who would like to comment on this item? Erf: Does the applicant go last? Clark: The applicant goes after the public. Graves: Ok. Clark: Can I have a point of order then? I want to know what our jurisdiction is to hear this. It seems to me that the City Engineer acted via ordinance right. The ordinance would seem to be a policy document. The Council deals with policy documents and has the authority to undo or do what action has been taken through policy. So what is our jurisdiction as the Planning Commission to hear this? I am not trying to put anybody off, I just want to make sure that if we make an action it is legal and binding or there is an action we can make. Because we have no jurisdiction over the engineer doing his job by ordinances. Seems like that is a policy makers choice, and we are not policy makers. Williams: Well, that's true. You are not policy makers. The Unified Development Code Planning Commission January 8, 2007 Page 50 of 97 does have an appeals chapter, obviously. So you can hear different appeals from a staff interpretations or actions. In looking at that chapter, if you look at 155.06 Appeals from Staff Interpretations and Actions in subsection C3, it says that City Engineered grading requirements, any person aggrieved may appeal the decision of City Engineer related to grading requirements. There is nothing in the appeal section that talks specifically about retaining walls. And as you know, the chapter that we are talking about here is streets and sidewalks 171, and not the grading chapter itself. However there is some question about whether or not Mr. Erf really had the right to appeal this. In trying to be as fair as possible to the citizens and aggrieved persons who sought to do an appeal we felt like, and correct me if I am wrong Jeremy, that we would ere on the side of granting him an audience before the Planning Commission here to explain his side as well as giving the City Engineer an opportunity to say why he in fact recommended the permit be allowed here in this particular case. I think that Jeremy is looking at redoing this particular appeals section because it doesn't cover all of the issues that probably it should. And so we were in a little bit of a quandary when this appeal came forward. So I can't give you a definite answer. I am concerned also about the precise right or not right or Mr. Erf to appeal this decision. But many times there are decisions that staff makes that do come before you or could come before you. I know you haven't heard that in the past. Clark: I don't have a problem, Mr. Erf, contesting anything. It is just contesting it to the particular body. This wall is there. I am not sure that we have any... I think the appeals process is kind of intended to appeal before and action is taken, i.e. building a wall. But that is irrelevant in this issue because the wall is there. So that is my question. What jurisdiction do we have? Mr. Erf has all the right in the world to question this, and I will listen to it if you say we need to. But what can we do to help settle this issue? What jurisdiction to we have to do anything other than to just sit here and smile at everybody and let them talk? Graves: Mr. Williams, I guess I have a similar question because when I am looking at the provision that we have been provided on page 3 of our report, we are talking about section 171.01. There is a specific section there on retaining walls near the right-of-way. I am not sure it even allows for interpretation. It just says that you can't do it unless you get a permit. IF there is not a permit and they did it, then I am not sure what we can do. I look at the next section, gated streets are not allowed in residential subdivisions. Well if they were coming here now and there was a gate around a residential subdivision I am not sure we would have the authority to say that is ok. They might be allowed to appeal the determination that they couldn't do it, I guess. But that seems more within the party of the City Council to me too. But then again, I am not going to argue with you if you tell us we need to listen to it. I just don't know that we really have any authority. Williams: Well, the issue would not be whether or not to build the wall. Obviously the wall has been built. I guess it would go into whether or not the City Engineer was correct in being able to approve it after the fact where the ordinance, the code Planning Commission January 8, 2007 Page 51 of 97 sections says before the wall is built. Often though, as you are aware, something can be ratified after the fact even if you didn't get permission ahead of time. I think that ratification can sometimes occur afterwards. But that could be a judgment call itself. Graves: But would the Planning Commission have even have been involved at all if he had, before the fact, wanted to get a permit to build this wall? Would the Planning Commission have been involved in that decision or that determination in any way? Williams: Only if this is related to grading requirements, and I think there is at least some argument that you do a retaining wall here as part of a grading plan in order to hold your soil in place. That is the only link to this appeal section that gives the agreed person the right to question the interpretation of action of the City Engineer in front of the Planning Commission. I think that because it was related in some extent to grading, even though it did not come out of the grading chapter, that is why it was allowed to be brought before you. It is a very unique situation, and I don't know that we are going to see it very often, but I would ask you to hear the appeal at this point in time. Graves: Ok. Thank you. Myres: Mr. Chair. Can I ask a question? Graves: Commissioner Myres. Myres; Was there a permit obtained first to build the wall? Williams: Why don't you... Let's let the engineer explain the facts. Myres: Ok. Williams: Well, first, we are kind of getting in a strange order here and I apologize to the applicant. But there have been a number of questions so we are going to go ahead and do this. Petrie: First time it occurred to me that the photograph that you have in your packet is actually what the retaining wall looked like when we determined that there was a violation. So today we went and took some photographs so you have them up to date. So I apologize for that fact. Graves: Do you have any extra copies to give to the two members of the public who spoke? Petrie: There are plenty of extras. Planning Commission January 8, 2007 Page 52 of 97 Graves: Just so they can see what we are looking at. Thank you. Petrie: So the copy that I passed out is what it looks like today. It is significantly different than what was originally built. They originally built something that I would have never issued a permit for. But it was built before any permit was issued. We required them to do many things in order to get this into a form that was acceptable to the Engineering Division. I think I heard a comment a minute ago that this went right through. Actually this house sat vacant for close to a year while they waited for us to approve something. Beyond that, having to move a sewer line at probably a cost of 25 to $30,000. Having to go through the processes of vacation where it actually went through the Planning Commission and the City Council. I really thought that this issue would have been discussed in those forums also. Nothing went right though, I can assure you of that. It was changed significantly from what was originally built. If you look at the whole process, I can tell you that this is the perfect example of how not to build a house and what can go wrong. You had somebody who came in with a building permit who said no they were not building a retaining wall. No this is not on a slope of 15%. And that right there triggered all the problems that you see before you. We were notified in the dates that were in your packet, but we were notified long after the house was getting close to occupancy. The retaining wall was built. There was very little that we could do at that point. Unfortunately that was the way it happened. The person who built the house and partner in the construction of the house is dead. That occurred and very soon afterward we found out about the violation. So I think I have documented in my letter the requirements that they needed to do in order for us to sign the permit. Obviously nothing went right through. I would be glad to answer any questions. I know you guys have been here for a while and I don't want to keep talking. But I would be glad to answer questions. Graves: Was there any other member of the public that had any comment on this item? Would the applicant like to make any kind of presentation? Please step forward and give your name and provide us with your presentation. Erf: Good evening, my name is Jeff Erf. I live at 2711 Wood Cliff Rd. First I just wanted to thank Jeremy and the Planning Commission for allowing this hearing tonight. It is appreciated. What is being passed out to you is a brief chronology of select events related to the retaining wall at Rockcliff Rd. I won't go though all of it. I will presume that you have looked at some of the material in your packet, and the additional material I handed out at the Agenda Secession. Just a couple of quick comments, however. You should note that it took a couple of years to resolve this issue. My initial complaint, if you want to call it that, was November 8, 2004. I think I will just leave it at that. I think as far as the chronology goes, I guess the bottom line for me is are you going to let the builder get away with it. Because if you let this stand as it is you are going to be sending the wrong message that it is easier to beg forgiveness than to ask for permission. This is a project where the wall... I think Ron admitted that, I don't believe the Planning Commission January 8, 2007 Page 53 of 97 City would have drawn a line on the site plan and said that they wall goes 1 ft from the curb. I don't think that is where the wall would be. And I think that it just sets a bad precedent. And I don't know if the Planning Commission is the appropriate forum for this. You have raised some good points about that and I do appreciate that. I was following the ordinance, and it came to you. I guess I'm not sure what I'm asking for, what motion is required and what the vote is. But what I would like you to do is override or not sustain the City Engineer's determination that permitted the wall. If that makes sense? I won't go into the safety issues. I think those are pretty obvious if you have seen the wall. It's been a long night already, I'll leave it at that. If you have any questions, I'm here. Graves: Thank you. Erf: Thank you very much. Graves: Commissioners. Clark: I am not sure what we are supposed to do. Myres: Yeah. Mr. Chair? Graves: Commissioner Myres. Mryes: I am of the same mind as Commissioner Clark. I don't believe, as a body, we have the authority to overturn a determination by the city employee who is basically given the right and the ordinance to make some of those determinations. Although it does say "first". My inclination is to throw the ball at City Council and let them make a determination because they have a great deal more latitude than we do. I know that the City Attorney is looking at me like he wants to say something. Would you like to respond to that? Williams: I just note again that under the appeals section the Planning Commission is given the right to determine whether or not the City Engineer abused his discretion in making a decision related to grading requirements. It doesn't say the City Council has more discretion than this Planning Commission. They don't on appeal, they gave the identical discretion that you do on any appeal. They have the identical discretion on Commercial Design Standards with the Divinity as the Planning Commission. They could just consider just exactly the same things you could consider and nothing else. So they don't have any more discretion on that. They have a discretion to change the ordinance in the future if they don't like the way things come down, or to change the appeal section or something like that. But they have no more discretion than you do. They must follow the Unified Development Code just like you have to do until it is changed. Graves: Mr. Williams. Does this go onto the City Council automatically? I don't think it does, does it? Planning Commission January 8, 2007 Page 54 of 97 Williams: No, it would not. Graves: Well, I accept Mr. Williams determination that this is an appropriate body to hear the appeal. I had questions about it and we aired those out. Mr. Williams has advised us, as the legal advisor for the city, that this is the appropriate place for the appeal to land and the appropriate body to consider it. My feelings on this appeal are that there is a reason that we don't allow that type of grading or those type of walls within that right-of-way. It is for safety, partly. It is for access by utility companies, partly. And when I look at those photographs, even as it has been changed it is still too close to the street and it is not safe. I am inclined to determine that the City Engineer has abused his discretion and has furthermore not acted in accordance with the Streets and Sidewalks provision which says that you can't do that without having a permit first from the Mayor or an official designated by the Mayor. Which didn't happen here. So I would be inclined to sustain Mr. Erf s appeal, and overturn what the City Engineer has done. I can make a motion to that affect. I would like to hear what other Commissioners think, maybe, before I make the motion. Myres: Well, we can still discuss it even after you make the motion. Motion: Graves: Alright, I will make a motion to the extent of what I just said. Ostner: Second. Graves: There has been a motion by Commissioner Graves and a second by Commissioner Ostner. Is there further discussion on this item? Ostner: Mr. Chair. Graves: Yes. Ostner: I am going to vote for this if it keeps on intact. My issue is that I believe that if we overturn Mr. Petrie's call the landowner will say "fine, I'll just make the dirt come straight up off the curb. I've got to support that driveway. I've got to have a car getting in that garage." That is they way it was approved when they were granted a permit. The house is too close to the street to allow a vehicle to get in that garage. So I would just like to say that. I think that so many mistakes have been made, that I believe removing the wall and overturning Mr. Petrie is only a drop in the bucket towards solving the actual problem. If you are walking in the street and there is a hillside going up next to you, you can't jump up on it to get out. It won't be a nice, level, dirt area. That's what they are going to have to do. I think I understand where Mr. Petrie made his determination. He probably looked at it, and I don't mean to put words in your mouth. In my opinion, if I Planning Commission January 8, 2007 Page 55 of 97 were in his shoes, I would look at it and say you know what, I am going to make this wall safe. I am going to make them take part of it down and get and engineer, not CEI but another outfit to certify that it is built properly. And a lot of these walls are not. A lot of these mortar less retaining walls don't have the fiber. They just tilt and tilt and tilt as the years go by. This one is built properly or us under the height where those back nets are required. I can understand why this determination was made from the public safety stand point. But I am going to vote for this motion. Clark: Mr. Chair. Graves: Commissioner Clark. Clark: I am a little confused. Not surprising. If we vote for the motion that is stated, that the decision in this instance was wrong, does that imply that we are saying tear down the wall? Or are we just issuing an opinion on the action of the engineer? Williams: The decision, I think, that is under appeal is the permit that was issued by the City Engineer after the fact. Not totally after the fact because I think they did something to the wall afterwards. So I am not sure if this was totally after the fact or not. I think Mr. Petrie probably needs to clarify that. The wall was originally built before any permit. We know that. But I am not sure exactly what happened after that. So that might have some baring on some of you all's decisions. So I think you need to find out exactly the facts of that. But what you would be doing if you vote to approve the appeal here, you are denying the permit. So the wall would be no longer permitted, and I guess would have to be removed. It would be an illegal wall at that point and time. Graves: Perhaps what I would like to hear from the City Attorney was the permit that you permit that you issued issued in between when the first photographs we have and the second photographs we have? In other words, was the permit issued before the fact on the wall that is out there now? Petrie: It was certainly issued between the two. Or actually, after it looks like that was when we issued the permit. So we would not allow it to be issued until it got to a point where we found it somewhat acceptable. It is obviously backwards from what you would want. The only think I ask, and I am not arguing about your decision because we make thousands and thousands of decisions, but give us some direction. Since they tear it down, what do I tell them? That they can move it back a foot and it is going to get re -appeared? Or move it back two feet and somebody else will appeal it. They will appeal it. Graves: I'm not sure that I am clear on the answer to my question which is, was the wall that is out there now, was there a permit issued for that before, as it sits out there now, for that design of that wall before they began to build it. Planning Commission January 8, 2007 Page 56 of 97 Petrie: No. No there was not. Graves: So they were already constructing the wall as it stands now, or....? Petrie: From what was there originally, really what you are looking at was just taking blocks off the existing location. It didn't come all the way down, they rebuild it, and then we issued the permit. Graves: The wall as it sits out there right now, if I go out there right now and look at it, the permit came after it looked like that. Petrie: That's correct. Graves: Ok. Petrie: But using that thought I could have told them to go take down every block, I issue the permit and put it back just the way it was, and it still would have been appealed. So believe me, I was in a no win situation on something that was definitely going to be appealed no matter what I decided. Graves: Well, in the motion that I am making it is not a personal attack or criticism on the decision that was made. It's more an interpretation or reinterpretation of the ordinance that you were looking at. We have been told by our City Attorney that we are supposed to look at those ordinances and determine whether we think that you interpreted it correctly. I understand the situation factually as it was out there, but the ordinance says what it says. And my motion, I am still inclined obviously to vote in favor of my motion, because I think that it was done the wrong way. And if you're wanting guidance, I think it needs to be back the appropriate number of feet from the right-of-way which would have been a requirement before a permit was issued. Petrie: Ok. Graves: And so the fact... Petrie: If you do it by ordinance, the driveway and garage... The driveway would have to come out, because if you look at how close the actual house is to the road you cannot use the garage. The driveway will have to come out. I am not sure you fully understand what... Graves: No, I understand that. And I also understand that there are a number of structural difficulties in that neighborhood, past and present, because things weren't built the right way to begin with. The reason there are ordinances are to make sure they are built the right way, and I am not inclined to reward a developer after the fact just because they did it wrong in the first place. I am not inclined to help Planning Commission January 8, 2007 Page 57 of 97 them out. It ought to be... If it needs to be torn out and done the right way now, then it needs to be torn out and done the right way. Is there any further discussion? Lack: Mr. Chair. Graves: Commissioner Lack. Lack: I do recall that we see on too many occasions people who have built over a line, over an easement, over a right-of-way. And in some cases that have been extreme we have required that a portion of the structure be removed. That has been a sever and seldom occasion that the viability of the structure has been removed by a preexisting condition. Now, with the ordinance, I don't think it has respect for all of the background of the development of this particular house and the original builder that started and the subsequent owners that have tried to work with the house and make it a viable property. I do think that we see a retaining wall that our City Engineer would say was a safe condition. I would like to ask Mr. Petrie if he knows what the grade would be adjacent to the driveway to the curb if they removed the retaining wall and only had sloped grade? Petrie: I could only guess, to be honest. I haven't looked at exact calculations. I think it is safe to say that it is steeper than a 45% angle or one to one slope. I am not sure of the exact number. Lack: Ok. Which certainly is not a viable option and would not allow the driveway. I would be inclined to say that the modifications that were required do bring the wall and the conditions at road edge into a level at which an engineer who is more qualified to speak to that has accepted and worked with the owner of the house to reach a compromise and reach a product that is acceptable. Much like when we have granted variances for houses after the fact that were built over the setback. And with that I will decline to vote with the motion. Trumbo: Mr. Chair. Graves: Commissioner Trumbo. Trumbo: To me this is a safety issue, and it doesn't look from my perspective on these pictures that it is safe. So I don't really know what kind of, what we can do as far as having to remove. I guess what I am hearing is that if the wall wasn't there it is going to be a steep slope anyway. But I agree with Commissioner Graves. If it wasn't done properly in the first place, this isn't just a roof overhang or part of a house or utilities. This is something that involves public safety. I think we have to look our for the public safety with the ordinances, and I believe that is a big part of the reason that they are there. I am going to vote with Commissioner Graves on this because I do not believe that it is safe. Planning Commission January 8, 2007 Page 58 of 97 Harris: Mr. Chair. Graves: Commissioner Harris. Harris: It seems complex to me, this, because if I am understanding Commissioner Lack correctly I have some sympathy with this position. In that the process my not be what we would desire it to be, but is the final decision as good as we are going to get? That is to say, would this developer come through with a variance or something that would have been approved. And I know that is all hypothetical, but what I am getting at is simply this. If it is a public safety issue, and I recognize... I mean, it is not hard to see where that is a concern. Just on the other side on the other part of Rockwood Trail where I walk virtually every day, there are two houses side by side, and they both have retaining walls. One is appropriately setback, and the other one is obviously much older. Graves: This is Rockcliff. Harris: Rockcliff, I mean to say, yes. That is right on the curb. And I only say that because we obviously have retaining walls sitting on curbs in difficult places around town. So my question really to my fellow Commissioners is, are we going to make a bad situation worse by asking this to be relocated? Is there remedy worse than the original injury? And I guess my second question is, this is partly what I think we have been asking, the set of remedies here.... Do we need to know exactly what has to be proposed for this to be remedied? That is if we find that the City Engineer's decision making process was not in accord with the ordinance, do we have to approve or not approve what happens next at this time? That is, how it is corrected? Graves: My answer to those questions, or my understanding would be that first of all that we didn't get the opportunity to determine if a variance should have issued there because they didn't do the right thing in the first place. Maybe a variance would have issued, maybe not. They still would have been trying at the time to build over a utility. They still would have had to offer to relocate utility and things of that nature as it stood at the time. That opportunity wasn't provided. Mr. Lack made reference to some situations where we have allowed some of those situations to go on, and a lot of those cases it was somebody coming in wanting to build an addition on a house in the historic district or something like that where it was clearly something that was nonconforming or something that had been built at a point and time when maybe setbacks were different and things like that. I suspect that maybe some of the retaining walls that might be close to the road along Rockcliff, some of those may have been built prior to the current setback rules. So the fact that there might be a retaining wall out there that is a foot away from the street, that doesn't necessarily mean that it was issued a variance or that it was something that a Planning Commission determined was ok. Mr. Williams or Jeremy can correct me if I am wrong, I don't think that it is part of the appeal process. The appeal process would be to determine whether the ordinance was Planning Commission January 8, 2007 Page 59 of 97 correctly interpreted and the permit issued in the manner that it was issued. I wouldn't be to determine... If we were to determine that it wasn't and we sustained the appeal it wouldn't be at this point our job to determine what the right thing to do would be to correct it. That would still be, at this point, in the Engineering Department. They would come up with a grading plan for that piece of property that the Engineering staff would review and determine if it was appropriate and permit. Williams: You would be basically just revoking the permit for that wall. Graves: Right. But with respect to Commissioner Lack's concerns, I think a lot of those are situations where they predated the current setbacks. Or we have had some situations where there were street right-of-ways and homes were built because they thought it was an empty lot and there wasn't anything without going and checking the plat at the county when you bought your house to determine that your home set in part of a right-of-way for a future street. And then when someone was coming forward wanting to build that street we were determining whether or not we were going to allow that street to be built. And in those cases we determined that there was a hardship that the vast majority of people don't go check the plat to determine if there might be a street that is going to be built right next to their house when they see an open space between two houses. Lack: If I could, Mr. Chair? Graves: Sure. Lack: I would like to be clear that my statements were not with historical reference, but with house that were built when the ordinances and the platted land restrictions were in place. Graves: Ok. Clark: Mr. Chair. Graves: Commissioner Clark. Clark: I remember an example of what Commissioner Lack is talking about. I think it was on the west side of town when a young couple had built a house and it was on the corner, and it was like 4511 in the right-of-way. They had to move their garage, and they came to us asking for a vacation of some right-of-way so they could at least maintain part of their house. But they came, they shut down building and came to rectify the situation before they went any further. So at that point we did have a voice in what happened. In this situation strikes me as 14 kinds of wrong. I mean, and where do you start pin pointing where it went wrong. I don't know. And I still don't know what the heck we are supposed to do about it. Because I think an appeal to us should have happened when the permit Planning Commission January 8, 2007 Page 60 of 97 was given before the wall was built so we could decided if the wall should have been built or whatever. So, I am still going to support the motion. I am going to vote to sustain the objection because I think there is a huge safety issue here. I also, it resonates very strongly with me not to reward a developer bad... for doing things and then asking for permission. But more importantly, I am going to vote for this motion with the sincere hope that it does get appealed to the City Council where policy makers can actually look at this and look to see what can be done to rectify it, hopefully for the future. And they may well overturn us. They may well look at it and say that we need to make some amendments to the ordinance. Who knows. But I think that is where the actual decision making on this particular instance has to be made to have any substance to it. So I am going to support the motion. Ostner: Mr. Chair. Graves: Commissioner Ostner. Ostner: I would just like to point out that when the very first mistake was made that the builder, or whomever came down and applied for a building permit, and he said "no it's on flat land" and "no I'm not building a retaining wall" shortly thereafter a city inspector went out there to look at the trenches for the footings. The first inspection had to be passed. Currently, the way I understand it these inspectors don't bother with silly little stuff like this. I know a lot of this has changed. Setbacks, all that, that was approved down at City Hall. I am looking at that footing, is it safe. I've got one job. I've got several things to look at and that is not one of them. That is a big part of this. He was just the first. There were lots of other times he was there. He had to look at framing, he had to look at all these things. And he never.... He had to climb up a plank to get to this place! That has got to change. That has got to change. Early on in the process he has to say "look, something is wrong with your application. I know your trenches are dug and you are ready for the concrete truck. It's sitting right there. Don't do it. This is not happening." And that is a big problem. That is larger than these two offices. It goes over to building safety. Those guys have got to look at more stuff. This could have been averted two years ago. We wouldn't be here. The applicant wouldn't be here. I just want to say that. So if the City Engineer is looking for direction, I think the wall needs to be back at the right-of-way. I know the driveway is going to have to partially come out and be rebuilt. I think a vehicle can still get in there. I do not think a one to one slope coming off the curb is appropriate. That's my two bits on that. That's beside the point, that is just because you asked. Harris: Mr. Graves. Graves: Commissioner Harris. Harris: I have to acknowledge that I am really a little confused about what we are Planning Commission January 8, 2007 Page 61 of 97 supposed to make a determination here on. Because if I just simply read 171.01 "It shall be unlawful for any person to construct retaining wall without the permit within 2ft." It seems clear that both of those two provisions have not been complied with. So it seems to me at that level it is quite clear that the City Engineer or the developer did not do what needed to be done. My only question would be, I guess back to the City Attorney, in a sense why this would even come to us because the language seems very clear cut. Is there any grey area here that the City Engineer had some discretion? And what we are really determining is whether or not his discretion was appropriate. Williams: Yes, I do think the City Engineer has discretion. I don't think it was the intent of the City Council to totally remove his discretion when there has been a problem prior to him understanding or learning of it. Which is the construction of this wall. Initially the wall was certainly unlawful. It was begun without any permission. But I don't think that totally ties the had of the City Engineer to go to the site and go to the builder and say look this is not allowed under the ordinances. This is what you must do in order for me to issue a permit. And that is what he did in this particular case. He would not issue the permit until they changed the wall to meet what he felt was safe. After they did that they he issued a permit. It did not exactly comply with what the Unified Development Code said, because of course it says that you've got to get a permit ahead of time. That is always the smart thing to do. That is what is should read. It should read that you get the permit before you build the wall. But in this particular I don't think the City Engineers hands were totally tied because they initially violated that section. I think he had the right to go to them and say you much correct this if you want to get a permit. If you don't have a permit it is going to be against the law. What you all are doing tonight if you grant the appeal you are now saying that the permit has been denied. And there is no more permit for the wall, so the wall is not illegal. Harris: Ok. Well, I need to go back and make my further point a little clearer. If that is what we are doing then I don't feel as if I have enough information yet. Because while I recognize that this ordinance says that it has got to be beyond two feet. But in part what the City Engineer has been saying is that, and I am not sure that this is what you have been saying. Is it possible that if the wall has to be moved and the driveway relocated, is it possible that we will create a driveway situation that is more hazardous for the people coming out of that house or people turning in to that house than where the retaining wall is right now? Petrie: In my opinion, yes. It will be significantly higher. It will be adjacent to an area that someone frequently backs up and moves a lot of traffic movements and they do it many times during one day. There will be significant danger built that way. And in addition to that, if they did build it at the right-of-way, it would take a variance from this body. In my opinion any wall over 4ft would have to meet some very different guidelines. Planning Commission January 8, 2007 Page 62 of 97 Harris: So may I just ask again, I think you answered it, but I want to make sure I understand. In your best professional judgement to move the wall and move the drive way would create a more hazardous situation than where the wall is and where the driveway is right now? Petrie: Yes Ma'am. Ostner: Well, to the right-of-way mark. There is a difference. Harris: To the right-of-way mark. Ostner: There might be 8ft between right-of-way and the wall. It might be 10. There are a lot of points to choose from. Harris: Well, do you agree with what Commissioner Ostner is saying? Petrie: There was another drawing in your packet. And you can see how the driveway lines up with the right-of-way. It is more or less the same point except where it starts to curve down. A lot of that driveway is in the right-of-way. Harris: All I am getting at here is that I am not an engineer. Again, I am just a little confused. I feel as though I am being asked to determine right now if in fact the City Engineer has the discretion to say one situation is better than another. It is not just shall or not shall. And he has made that determination, and his best professional judgment, Commissioner Ostner may disagree with that, but Commissioner Harris doesn't have any idea what -so -ever. All I can do is go by what the ordinance is saying and listen to you of course. But normally we defer to the City's engineer. So again I am just a little confused about what I am supposed to be doing here. Williams: The ordinance says that it can't be built within two feet of the right-of-way unless the City Engineer approves it. So those are the two things. So if it had been built beyond that the City Engineer would never have even had to look at it unless it was too tall. But because it was not that is what requires the City Engineers approval which he eventually gave for this. Graves: I'll be clear where my motion is coming from, and probably I ultimately disagree with Mr. Williams about how much wiggle room we may have on this issue. And it is not whether the City Engineer has the authority or discretion on grading in general. But when we look at this specific ordinance it only deals with retaining walls built within 2ft of the right-of-way. It doesn't deal with retaining walls in general. It doesn't deal with grading in general. It deals with retaining walls within 2ft inside of the sidewalk or the right-of-way. That is all it deals with. And it says "it is unlawful to construct one without first getting a permit." And that did not happen here. In my opinion the ordinance was violated and you can't go back after the fact and fix it. And so I don't see the discretion that Mr. Planning Commission January 8, 2007 Page 63 of 97 Williams sees there and that is the basis of my motion. I as a Commissioner, having been advised by Mr. Williams that we have the authority to hear this appeal, feel that I have the authority to make that determination that the ordinance was not complied with. It is a very specific ordinance. You can't build it within 211 without FIRST obtaining a permit. And that didn't happen. And that is the basis of my motion. It is the only basis of the motion. Harris: Commissioner Graves, I certainly appreciate that. And then of course, I have to go back to the City Attorney has said that there is wiggle room here. And I assume that is based on history? Williams: Well, yes. Just based on the nature of the beast in development ordinances that sometimes you are going to run upon something like the City Engineer did in this particular case where he could say just tear it all down and start all over and ask for a permit before you do anything. Or he could say, which I think is also reasonable, that I am not going to allow this to stand. You have to modify it in this way before I will issue a permit. Now, that is, maybe he should have told them to remove all the blocks, now issue a permit, and put all the blocks back in. But I think that isn't absolutely required of the City Engineer to do that. Harris: Alright, I am going to say this then. I absolutely understand the neighborhood's concern here. At the same time the City Engineer has determined that this is the better option. Or that it is an adequate solution before he issued the permit. So I don't feel as though, in that context, I can vote for the motion, Commissioner Graves, at this time. Graves: Is there any further discussion? Myres: I just wanted to say one thing. Graves: Commissioner Myres. Myres: I have waffled back and forth with every argument pro/con, pro/con. And I am not sure that we are not overstepping our bounds a little bit. I have to go back to Commissioner Graves' arguments. When in doubt just fall back on what the letter of the law says. Because I guess you can't... No, that is not true. I was going to say that you couldn't go wrong doing that, but you can. But given the fact that I really don't know what to do the only recourse that I feel that I have is to look at the ordinance and say that the ordinance was not met and vote for the motion. Incidentally, I do think that the ordinance needs to be amended. And I think that it needs to provide some factors for when it is appropriate to issue a permit to guide the engineering staff on when it is appropriate to allow a retaining wall within the two feet. And I also think that, while I appreciate the City Engineer's safety concerns with regard to moving the retaining wall where at least it should Planning Commission January 8, 2007 Page 64 of 97 be built under the ordinance, I think there are certainly safety concerns raised by the neighbors here tonight to that support the decision that if the motion passes would support that decision. There is no where for them to go out there right now without sidewalks. If there were sidewalks this might be a whole different discussion tonight. Is there any further discussion? Ostner: Mr. Chair. Graves: Commissioner Ostner. Ostner: Well, I was going to say that if the City Engineer determines later, I am assuming that this might pass tonight, if the City Engineer determines that building the wall right on the right-of-way line strictly following the rules is not the safest way to go, I would suggest requiring the property owner to move the retaining wall 3ft uphill to allow for 511 off the backup curb as a middle ground on this issue. There appears to be maybe l Oft where the retaining wall is not and the right-of-way line, add on the 2 to strictly follow the rule and that is maybe a 12ft move. The wall would be a lot taller. I just want to say that. He is still going to have to permit some wall to be built safely, and for vehicles to back up they put the house too close to the street for this to be done safely. I suppose they could do a guard rail. That seems, well, the whole thing seems silly. So that is just what I would like to suggest. Simply allow a double spot like a sidewalk. In fact, there should be a sidewalk. Make them build a 4ft sidewalk and I think that would suffice. Graves: Is there any further discussion by any Commissioner? Trumbo: Mr. Chair. Graves: Commissioner Trumbo. Trumbo: Considering that the City Engineer felt that this was safe, my reasoning for voting along with your motion was safety all along. It doesn't appear to be safe to me, but if we are going to move it which I hope we would, I agree with Commissioner Ostner. I would rather see it come back. And if it is going to be, if we are going to have to come back and ask for a variance, I would rather grant a variance to allow it to be taller than what we would normally allow but it still have more room for the pedestrians to bail out. I'm glad I am not the City Engineer. This is a tough, tough, tough way to do (unclear). I understand why he went this way, but if I was going to remedy it - not as an engineer- I would go with Commissioner Ostner. Clark: Mr. Chair. Graves: Commissioner Clark. Clark: We have talked about looking at ordinances, and I would also want on record my Planning Commission January 8, 2007 Page 65 of 97 request that the ordinance on appeals be looked at. What City Attorney Williams read us in terms of our jurisdictional rights were not in our packet. None of us got a chance... I didn't look it up in the code book, but I think it assumes an appeal before something is built. Not after the fact which is what we are dealing with now. I think maybe that ordinance should have some sanctions put in it to punish a developer who does something that they no to be wrong. They go ahead and do it and then come back and ask for permission. Tearing down the wall seems an absolute extreme, but there might be other incentives factored into the ordinance to make sure everything is built in an orderly fashion and we have the right to have this discussion and dialogue before a mistake is made. But I will also say that in the three years I have served on the Planning Commission I have never had an issue with Engineering. I think Engineering does a great job and this is certainly a unique situation which I have never seen. I don't know if anyone who has been here longer than me has seen? But it is certainly the exception, not the rule. So I sincerely hope we don't personalize this this evening and think that it is casting aspersions on the whole interior department easily. Ostner: I agree. Graves: I compare this to the Tree Ordinance where we had somebody cut down one tree at the Ramada Inn on the site, and that was 100% deforestation and they were going to be required to plant a new forest out there. It is a sort of a unique situation here and an after the fact remedy is hard to fashion. Is there any further discussion? Bryant: Mr. Chair. Graves: Commissioner Bryant. Bryant: I have one quick question of the engineer. Back on January 14, of 2005 is says the wall will need to be removed and reconstructed in accordance with an approved alternate design and location. Do you know if this was ever done? Petrie: Not only was it changed from what you saw before. I can tell you that predated me as the City Engineer by the City Engineer two years ago. So that was a requirement from the previous City Engineer. Graves: Any further discussion? Jeremy could you call the roll? Roll Call: The motion to approve the ADM 06-2410 Rockcliff Appeal carried with a vote of 6-2-1. Commissioner Anthes recused. Commissioner Lack and Commissioner Harris voted no. Planning Commission January 8, 2007 Page 66 of 97 PPL 06-2302: Preliminary Plat (WEDINGTON CIRCLE PZD, 404): Submitted by MEL MILHOLLAND for property located NW OF WEDINGTON DRIVE AND GARLAND AVENUE. The property is zoned R-PZD 05-1776, RESIDENTIAL PLANNED ZONING DISTRICT and contains approximately 6.13 acres. The request is for a preliminary plat of a Residential Planned Zoning District with 6 mixed-use lots proposed. Morgan: This property contains approximately 6 acres and is located north of Wedington Planning Commission January 8, 2007 Page 67 of 97 Drive and west of Garland Avenue, west of the Harp's on Garland. Just a little history, on February 2, 2006, the City Council approved a Master Development Plan for this property which would allow the creation of six developable lots with residential and commercial allowed. Residential development being approximately 48 units per acre and about 17,000 sq It of commercial. At this time, the applicant requests an approval for a preliminary plat to build the infrastructure in order to serve these lots and to create these lots. At the time that this was reviewed for Master Development Plan it was stated that all the infrastructure and tree preservation would be reviewed in detail at the time of preliminary plat approval and consideration. In review of the recommended or proposed streets, we find that they lack in four criteria to meet our street requirements in terms of grading, as well as the interior circle drive, and some other items that are listed in your staff report on page 8. In light of those, staff is recommending that this interior drive be private and this does require a waiver of Chapter 166.06, which requires that, "....any street connecting one or more public streets shall be constructed to existing City street standards and dedicated as a public street." In addition to the street waiver there is also a request for Planning Commission determination of a variance or waiver of Chapter 177.05 which requires that those sidewalks in which street wells or tree wells are planted or established shall be ten feet and the applicant proposes is 8 ft sidewalks with tree wells. Staff is in support of this request finding that 8 ft is adequate size for tree wells. Finally, I would like to touch on street improvements. Staff recommends the closing of Mount Comfort Road between Garland Avenue and North Street with this development, to include the installation of curb and gutter, sod, and landscaping where appropriate, as well as the installation of one traffic calming street table on James Street. We have looked with the applicant for the establishment of additional street tables as each large scale development comes through on the lots that are proposed. If you should have any other questions please let me know. Anthes: Thank you, Suzanne. Would any member of the public like to address this item? This is PPL 06-2302 Wedington Circle PZD. Good Evening. Wilson: Hello, I am Glen David Wilson, I own several pieces of property over near the Wedington Circle development. A couple of items I'd like to talk about. The first one being the closing of Mount Comfort Road between Garland Street and North Street, that is inside this packet here, and I guess one question I had is, I understand that there have been some accidents, that section of Mount Comfort Road onto Garland Street. I don't know, in fact, there are more accidents that has happened there than any other place around that area, because there is a lot of traffic around that area. The other, another question I might have would be Mount Comfort Road, what about the businesses on Mount Comfort Road? The businesses there depend on Mount Comfort Road for access. About 50% of their total access is on Mount Comfort Road. And what will happen, even if fact, you close Mount Comfort Road? You might, just to give a little heads up, because I know you have to squint to read those minutes, Mount Comfort Road, if you are Planning Commission January 8, 2007 Page 68 of 97 traveling west on North Street, there is an exit that goes off on to Mount Comfort Road, on your right. And that goes on for about 100 yards more or less before it intersects Lindell Street. Lindell Street also has access to North Street. Then Mount Comfort Road continues to a slight angle and intersects with Garland Street. Lindell Street runs, as I said, Lindell Street runs and intersects Mount Comfort and then goes into Oak Plaza. So that's the layout. If we are talking about closing that road, I am wondering if in fact, any of the people in Oak Plaza received notification about this hearing and what about all the other people who use Oak Plaza around and have business interest there? The other kind of question I have is considering that Wedington Circle location, why do we have to do something over on Mount Comfort Road, that is such a distance away from Wedington Circle? If you do end up closing this section of Mount Comfort Road how is that going to be a benefit? I am anticipating the response might be that all the traffic than would be routed down Lindell Street coming off North Street and Lindell Street. Directly into Oak Plaza. I believe that's the only entrance into Oak Plaza, that and Mount Comfort Road, that exists except for the one maybe Garland, then on the west side of Oak Plaza. So, if you end up closing these two entrances, the one that is on Garland Street, these two entrances to Mount Comfort Road, the one that is on Garland Street and the one that is on North Street, then you will funnel all the traffic in that area down through Lindell. There are two properties there, one on either side of Lindell Street that I own. I own both of them. They each have access to Lindell Street and to Mount Comfort Road. So, if you close Mount Comfort, then all the traffic will have to funnel out directly onto Lindell Street, not many feet from people where they are trying to turn in mass now, down into Lindell Street from North Street. So, you will have a big flow of traffic down Lindell Street from North Street. People trying to come and go from these restaurants, with in a few feet of that turn. To me, it also seems like Oak Plaza traffic and interest in Oak Plaza would be decreased, because of the access of Oak Plaza has decreased. I would like to see a list, statistics about the accidents, not only at the Mount Comfort entrance to Garland Street, but for all other entrances in the area to Garland Street, to North Street to see, if there is in fact disparity. If the issue is to safety, the question is how relative is safety? If you decide, that in fact, Mount Comfort Road access to Garland Street has to be achieved, you will have to put a barrier there. One solution would be to leave the rest of Mount Comfort, that section of Mount Comfort, intact. So, there would still be access from North Street down to Mount Comfort. That it is from North Street down to Mount Comfort, at the Mount Comfort intersection of North Street. And there would be additional access in Lindell Street. So, at least the traffic would have a chance to be divided up and not forced into an area where there's competing traffic already. If you have any questions, I would be happy to respond. Anthes: Thank you Mr. Wilson, we appreciate it. Wilson: Thank you. Planning Commission January 8, 2007 Page 69 of 97 Anthes: Would any other member of the public like to address this item? Okay, the public comment section is closed, would the applicant like to give a presentation? Jefcoat: Tom Jefcoat with Mel Milholland and Company. This project has been in the process for some time, several years. There have been numerous Ward 4 meetings, meeting with neighbors to get us to this point. It's a very intricate, difficult site. As you all well know, and design we just got this through PZD process and now through Phase 1 development preliminary plat for the infrastructure. The staff recommendations on the street and other recommendations, we have accepted and worked very diligently with staff to reach an agreement on all the items and all the conditions of approval. The character and make-up of the streets dictated by the owner, developer, and architect, character wise, we accept that being a private street and we will move forward with the design, making that street to two public streets and being private. The tree wells, we've talked with the Urban Forester and we have worked out the arrangement and they have asked for that, and staff supports that. And the speed table on James Street is definitely a condition we will accept. The closure of Mount Comfort, all I can say to Glen Davis's comments, are that those came from City Engineer recommendation and is part of master plan for the revamping of that whole entire intersection. So, this is just one step in the City Master Plan for that whole intersection to be redeveloped and by no means is the end of what's going to happen in that area. Anthes: Thank you, Mr. Jefcoat. Let me clarify a couple of things with staff before we start on our discussion. Has staff verified the 8 ft sidewalk width in the original proposal, and do they concur that that's what was originally shown? Pate: The original proposal was conceptual development level, so we did not get into that type of detail. That's something that we have consistently recommended. It's actually probably something we should change in our ordinance. When we drafted the landscape ordinance, we utilized the 10 ft sidewalk and we realized that the grates that the City utilizes would be ADA compatible, so the separation would meet our ADA requirements for a 8ft sidewalk with a 411 grate. So, it's something we would probably be bringing to you as an amendment to our ordinance. Anthes: And the development phase will come through as a separate large scale? Pate: That's correct. This is for only infrastructure. Anthes: And, can you explain to me why this street is all these varying widths? I assume that it's this one street. We are questioning it meeting City standards and therefore wanting to make it a private street because of its varying widths. That's what is said in the staff report? Pate: I think the street widths are primarily related to some sides having parallel Planning Commission January 8, 2007 Page 70 of 97 parking on both sides; some have one parallel parking on one side. So, that would change the actual width of the street. I think it's more about the waivers that are being requested from our Street Design Standards, including the jog, the slope. I think the question at agenda session was slope and I believe from approximately Wedington down to the round -a -bout, is around 10%, I think maximum slope. So, there would be several instances here that would not meet our minimum Street Design Standards for public streets. So, we are recommending that this be owned and maintained by the developer, but just have a public access easement around it. Anthes: So when you say that this street is varying in width, you are talking about the pavement section, but we are not talking an inconsistency in the drive aisles, are we? Pate: I don't believe so. Jefcoat: No, No, it's the actual paved width. Some areas you have parking on one side, parallel parking on one side, and some on two sides. The right of way is the same width all the way. It's that the City standards do not permit for parallel parking at this time. And also, the circle feature in the middle does not meet standards. The grade - it is all the aspects of the streets are standard except and meets City code except for the parallel parking and circle feature in the middle. Anthes: I was just concerned that the street actually was varying in width as far as the drive aisle, and it's not. Jefcoat No. Anthes: Good. And one last question. Sometimes this street is referred to as James Street and sometimes it's St. James Street. Which is correct? Pate: I believe it is James. This street, I don't believe, has received approval of that name yet. That would happen at time of final plat, so we can call it street number one, if we need to. Anthes: Okay, great. Commissioners? Commissioner Myers? Myers: Yes, I have a question about the closure of Mount Comfort, I am assuming that that's being closed until improvements can be made and then reopened or is that not the case? Pate: I can respond to that. That is something new since the Planning Commission saw this Planned Zoning District and came about as a requirement by the City Council when they reviewed this Planned Zoning District. This item went to City Council, and they returned it to the Street Committee to look at improvements in this area. It was determined and recommended by the Street Committee that this Planning Commission January 8, 2007 Page 71 of 97 closure occur. The drawings that you see conceptually on the last page that show the closings came from that Street Committee meeting and forwarded to the City Council. So, approval of this [PZD] was contingent upon the additional condition of approval for that street closure. What will likely happen, based on the City Council review, is that vacation of properties - those individuals that want to vacate adjacent properties would be forwarded to you. But at this time, that's what the Council decided was the more safe instance in this situation. Clark: So, condition of approval number one is not really up to us, it's already been decided? Pate: Well, the actually improvement has been decided by the City Council. The timing of it, however, has not. And so we are recommending with this preliminary plat that that closure occur and, as it states, with each large scale development proposal for the development of each lot, there may be additional traffic improvements based on that. Myers: Ok, I'm really confused now. Because this is, maybe I'm not listening clearly - closely enough, but the section of Mount Comfort is on the east side of Garland, the development is on west side. Pate: That is correct. Myers: The way that this is worded it sounds as though the installation of curb, gutter, sod, and landscaping is to occur on that section of Mount Comfort Road between Garland and North Street. And then the road is going to be closed? Pate: Yes, if you look at the exhibit that you have, that's the curb, gutter, and sod installation. So, in your packet, there's an exhibit on the very last page that shows the closure requirements. Jefcoat: If I may? Anthes: Yes. Jefcoat: Just to clarify, the entire length of the street in that section you are referring to is not being closed; it is the entrance at the acute angle and the termination at Garland so it's no longer a cut through. So, there will be the length of that street remain open, its just the cut through, or the entrance coming off that angle and at the very end is going to be closed. I believe it is Lindell? Pate: Lindell. Jefcoat: Lindell will remain open and also the extension of Oakland Avenue, I believe, will connect to North Street also. Which is more to the east near the triangle part of the intersection. Planning Commission January 8, 2007 Page 72 of 97 Myers: Well, it's between Elenita's and Mr. Burger, which cuts right into the parking lot here. Anthes: Ok, were the adjacent property owners notified before that discussion at the Street Committee? I mean, are they aware that this is going to happen? Pate: I'm not sure what notification was provided. Obviously, the project was being discussed in public hearings several times. Clark: But they never tagged it to this development, right? Pate: Yes. Clark: The Street Committee did? Pate: Yes. This was the reason that these improvements came up - it was as a review of this Planned Zoning District. Lack: Madam Chair? Anthes: Let's see if Commissioner Myers is finished. Myers: I'm just trying to figure out how to get home without having to go to the comer and tum at the light. Yeah, and then I can cut through the parking lot. Ostner: Not good. Myers: Not good. No, I'm was just muttering, I'm sorry, it's late and I'm tired, I'm done. Anthes: Commissioner Lack? Lack: Ok, I thought this was a strange request also, and that has shed a lot of light on it to me, that it came through that process. I'm still uncomfortable with this far-off site requirement for closing the road. I'm unclear about whether the adjacent land owners where the road is to be closed were notified or know anything about, would rightly know, anything about this closure. Just for a kind of a simple question for clarity, to the west is this to stop or is this to be cul -du -sac at the end? Newman: It is to be stopped at the end. You are talking about the intersection of Garland and Mount Comfort, where at the end, it will be stopped. I only have one colored copy, it was from earlier. But, I can pass this. Anthes: Please do. Newman: To let you look, and maybe give a little bit clarity to what we are talking about. Planning Commission January 8, 2007 Page 73 of 97 And, as reflected earlier, this is part of more improvements that will be happening at Garland. Lack: My concern with that is simply that the section of Mount Comfort that extends west from Lindell is a longer street section than I would think we would probably allow without a cul-de-sac. Right now, it's probably the same free-for-all that it is going through the parking lot, and the reason that City Council wants this section closed. I don't disagree with the idea of closing the street, I'm just not sure that I'm comfortable with it, kind of under this preceding and under this development. Certainly, the intersection of Oakland to Garland and Mount Comfort would be enhanced by closing the little spur of Mount Comfort. I'm a little uncomfortable with the rest of how it's being done and I guess I would ask staff if it's possible to remove this item from this development of requirement. And I guess we're making a determination about whether these street improvements are appropriate. I guess we are, it's just a matter that City Council has already asked that these modifications be made with this development. So, what do we do? Anthes: I understand your dilemma Commissioner Lack, because when I'm looking at this, I sympathize with a lot of what Mr. Wilson stated and I think that we're affecting a lot of commercial properties with this closure, and those property owners that may or may not understand that this was going to happen. And they would certainly not have shown up for this hearing tonight. The other thing is that I feel like that little piece of Mount Comfort Road is one of those special conditions or quirks that makes communities interesting. I think it's a pretty good distance between the intersection of North and Garland, and Mount Comfort and Garland. I've driven that stretch for years, and I've never had a problem. I've never seen an accident there. I'm not saying that they don't happen, but just from personal experience I haven't seen it. I feel like it's such a separate issue from this project that it needs a separate hearing. This change affects a lot of property owners, and that last thing in the world that I want to see is a cul-de-sac terminating a City street in urban downtown area. It's just absolutely the wrong typology. I would be all for striking it, at this time. I mean, if City Council wants to make an assessment for something like the speed table on St. James and staff feels like it there is appropriate amount of infrastructure that needs to come with this project and they want to apply an assessment, that's great. I hate to give the assessment away if there's some other way we can use it, but I personally am not comfortable with using it for this purpose, this stated purpose. Clark: Madam Chair? Ostner: Madam Chair? Anthes: Commissioner Clark, I believe was first. Clark: I've got to agree with everything you just stated. And add my concern of the Planning Commission January 8, 2007 Page 74 of 97 availability of the shopping center, Oak Plaza. If you terminate on both ends, that's making Oak Plaza just kind of sit there, isolated. Myers: Oh no, there will be plenty of people making a short cut through the parking lot. Ostner: Yes. Clark: But, I also have concern that if we do that, Lindell goes into Mount Comfort and that's just a very uncomfortable corner, to turn left or right on. People are still going to come off of Oakland; I just have real reservations about this particular configuration, especially attached to this particular development. I think if we have other streets in the vicinity - I'm reminded that there are not a lot of sidewalks coming off of James or St. James. There are not a lot of sidewalks in that whole area to the north, where this private road is going to terminate. Perhaps that might be an off-site improvements we can ask for this developer, but I would truly support removing condition number one. If we can. Pate: Then that's my point exactly. The Council has - you have made a recommendation to the City Council. They changed that condition of approval and required these improvements. So, you have, as a recommending body of policy and rezoning action, you've done your job and made the recommendation to the City Council. They revisited this issue and made a different decision which is entirely with in their right as the legislative authority and policy -makers for the City as elected officials. So they have made a determination in this particular matter through their Street Committee, which was a public meeting. I know there were property owners there at that public meeting discussing this improvement. I have spoken with Mr. Wilson myself about these closures, many, many, many months ago when this was a Planned Zoning District being approved through the City Council process. So, I don't think this is something new at this meeting, it's something simply that the Planning Commission as nine members appointed here have not seen, but has been vetted and discussed at length through the City Council process. Anthes: So, why does the condition of approval state, "Planning Commission determination of appropriate street improvements?" Pate: If you would like to remove that Planning Commission determination and put City Council determination we can certainly do that. If you want to modify that condition. Ostner: Madam Chair, I have a little bit of a different take on this than Jeremy. Yes, the City Council did require this when the PZD, when the land was rezoned. However, it has never come before us. I do not think that they sit us here for decoration. I think we are within our rights to say, "You know what, we are going to pass this, but we are going to change this, Mr. City Council," and they can change it again. But, we have not seen it. Tonight is when we are reviewing Planning Commission January 8, 2007 Page 75 of 97 it for the first time. We're not overstepping our bounds. We can be changed again. I'm firmly of the opinion that this body is valuable knowledge. Excuse me, I don't go to all the Street Committee meetings. Maybe I should. I didn't know that was part of what a Planning Commissioner did. So, I think we have a lot more latitude here. I don't think the Council will be offended to change what we determined again. Maybe they will stop and go "Wait a minute, wouldn't traffic calming be more appropriate there?" Traffic could flow just slowly, choke it down, choke it down to 20ft. Do an offset. You can have an angle of curb on one side and angle of curb on the other and people, it looks like it's getting narrower and you have to slow down to a stop. Cities do this all the time. Clark: Is that an amendment? Anthes: I think that is interesting, because I have written down here, "Narrow? Calming?" Ostner: Choke it. Anthes: It just looks to me like we can use the same amount of money from this developer that council requested for off-site improvements and use it towards narrowing Mount Comfort on that section or putting a speed table on it or something like that to discourage the cut through action but still let the access, which is appropriate in a urban area, to remain open. Ostner: It seems clear to me, that the Council saw that the access was important. They only blocked the very ends. There are two public streets still leading to Lindell and Oakland leads up to it. You know, they're not trying to choke off the shopping center. I just think they might have made a mistake. Graves: Madam Chair. Anthes: Commissioner Graves. Graves: I don't disagree with anything that anybody said. We've, Commissioner Harris, Commissioner Clark, and I, we're on the Subdivision that looked at this. We were told basically the same thing. That first of all, the City Council had already looked at this, and this is what they wanted to do to. And second of all, that the developer was ok with it. I don't think that we are here for window dressing either, but this is one condition out of twenty eight, whatever, that they have asked us to look at and make determinations on several of them, specific factual determinations. And including whether to approval the plat and we do approve it at this level. So, the City Council won't see this. Normally we're groping for what City Council wants us to do on a situation and this particular case, we've been told what the City Council wants to do. Whether we personally may like it or not, this is something they looked at and something they want to do. I don't know what the notice requirements are for the Street Improvement Committee or for changes to streets. But, I know that this is something that the City Council has Planning Commission January 8, 2007 Page 76 of 97 looked at already and something that if we vote on it tonight and strike that condition out, assuming we have that authority, under the circumstances, they don't see it again. Because it's a preliminary plat and we approve it here. So, I'm not inclined to strike it for that reason, whether I personally want to close that little street off that I've cut through for 20 years now. I'm not sure if that's relevant to the situation. Anthes: I have a question of staff to follow up on that. Obviously this is written as a determination that Planning Commission is supposed to make, and I feel like I'm charged with making that determination to the best of my ability, whether or not it conflicts with a prior situation. However, I also understand completely that there has been some ruling made. Is there a way to structure the condition of approval to say, that the Planning Commission, assuming we all agree, that the Planning Commission does not recommend the closing of Mount Comfort Road between Garland Avenue and North Street, but would accept a narrowing or other speed control on Mt. Comfort as an off-site improvement and ask that the Street Committee revisit that item with our comments intact? We may have thought of something that they didn't. Pate: Certainly, we can put that in there. I mean, it's up to them. Anthes: Then, they can decide to say "no way," but it gives an opportunity for them to talk about it again. It doesn't change the amount of work the developer would have to do or the amount of money they have to spend to do it. It's just asking, once again, for clarification on how that configuration should happen. Graves: So, are you wanting to go ahead and vote on this tonight but some how delegate the ultimate decision on that to the Street Committee with our comments? Anthes: Yes. Graves: Ok Anthes: To try and sort of get both. This way, the street committee and council can have our comments, and we can make a determination. Then they can review it. But, the applicant doesn't have to show back up at a Council Meeting or go through anymore rig-a-maroll; they can get their development approved. Graves: Madam Chair. Anthes: Yes. Graves: I just have a question for Jeremy then. Do we, are we even legally authorized to make a delegation like that? Pate: No, because the Street Committee does not make decisions for the City Council, Planning Commission January 8, 2007 Page 77 of 97 they only make recommendations to the Council. What can happen though, is that the Street Committee could put this on an agenda and discuss it, if they want to discuss it. They may feel like they already discussed this enough and made their decision and may not change it. So, in my opinion, what we use conditions of approval for are to hold the developer accountable for those conditions that are listed therein. So, I would ask that the City Council determination, which we can change that, "City Council determination as part of the approval of R-PZD 05- 1776 is the following and those are the conditions that listed, because those are directly out of that ordinance. The Planning Commission has recommended a different street improvement consisting of narrowing the entrance from Mount Comfort onto Garland or other traffic calming measure and requests that the Street Committee revisit this issue." And that's something we could get right out of the minutes and put in a condition, if you like. Motion: Anthes: Perfect. I would like to move that we amend the condition of approval to be what Jeremy just stated. Jefcoat: I would like to add just one comment for you to consider. You're not seeing the whole picture that the Street Committee did. There's a whole realignment of Mount Comfort to the west side of the street. There's a tot of different configurations on this. This is just one element of their entire plan. Anthes: I understand that. Is there a second? Ostner: I'll second it. Anthes: A motion to amend by Commissioner Anthes, a second by Commissioner Ostner is there further discussion on condition of approval one? Myers: I would like, please, if Jeremy would restate the statement, if he can. Pate: I would strike "Planning Commission determination of appropriate street improvements" and state: "City Council has determined appropriate street improvements for this R-PZD 05-1776 as part of the approval and requires the following: the closing of Mount Comfort Road between Garland Avenue and North Street to include installation of curb and gutter, sod, and landscaping, installation of one traffic calming street table on James Street." And that further, "with each large scale development proposal for development of each tot, additional traffic improvements or traffic calming shall be added." Further, addition of "the Planning Commission does not recommend the closing of Mount Comfort, however recommends traffic calming or narrowing of the street intersection of Mount Comfort and Garland Avenue be provided and request that the Street Committee of the City Council revisit this issue." Planning Commission January 8, 2007 Page 78 of 97 Clark: Pretty good. Myers: Thank you, can we be assured? We can't. Anthes: No, they might not choose to hear this, but it's a request. Myers: Ok. Ostner: Madam Chair. Anthes: Yes, Commissioner Ostner. Ostner: In the condition that Jeremy just read to us, it closed out with narrowing of Mount Comfort, I don't want that to be confused with simply narrowing the street the whole way down. Anthes: Right, right. Ostner: I want to choke it or off -set. Anthes: I think narrowing it all the way down might be a good start. Ostner: It's a good start, but I don't think that satisfies traffic calming. Clark: I think it needs to really emphasize traffic calming. Anthes: Right. Ostner: Right. Lack: The north edge of that street would probably be one of the largest problems with the street, maybe more than the intersections. The fact that it's open to the parking lot the whole way, I suspect that's the reason City Council has looked at this to close that street. It seems as though it's a drive aisle within the parking lot, so we have a parking lot, we have a strip center with out lots. Ostner: I think there is a curb. Myers: Part way. Lack: There's a retaining way for a short section and then it's open to the parking lot. Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Planning Commission January 8, 2007 Page 79 of 97 Graves: I have a question for Jeremy. Hypothetically, assume the Street Committee did decide that they will look at again and decide that some of these other comments that were made ought to be something that's incorporated in. Can they do that? What is the formal process and is that something that can then be incorporated into a conditional of approval for the developer? Because the developer is wanting to walk out of here tonight with a preliminary plat knowing what he is allowed to develop. Pate: True. Ultimately the answer is "I don't know." To back that up, I think the Street Committee can do one of two things: either forward on a recommendation to amend the over-all PZD to the City Council, which would not really take, I don't think much more work on the part of the developer; it would simply at construction time be a different plat that they submitted. Or conversely, they could return it to the Planning Commission with a recommendation that we change that, so I think either one of those two things could happen. Or, they could simply refuse to hear the request and just remain as they original approved it. So, I think those are the three alternatives. Graves: I guess if I was the developer, I would want to know when the dust settles then, how long would I have to wait before I know that my preliminary plat is settled. Jefcoat: Yes, we would like the preliminary plat approved so that we can turn in construction drawings for the development itself. That particular item could be, could come at a later date. I mean, we're not disagreeing with an assessment or doing some off-site improvement. What that off-site improvement is, can be determined at a later date. But, we need approval of the preliminary plat so we can turn in construction drawings for the development of the project itself, yes. Graves: Ok. Anthes: Alright, we have a motion to amend, will you call the roll. Roll Call: The motion to amend condition of approval number one as re -stated by Mr. Pate was approved by a vote of 5-4-0, with Myres, Graves, Lack and Harris voting no. Motion: Anthes: I will move that we approve PPL 06-2302 as amended and with the other conditions as stated, finding in favor of the waiver which requires, well it's about condition number two with the access waiver easements and the private street and accepting the variance on the street tree planting plan. Graves: Second. Anthes: Motion to approve by Commissioner Anthes with a second by Commissioner Planning Commission January 8, 2007 Page 80 of 97 Graves, is there further discussion? Will you call roll? Roll Call: The motion to approve PPL 06-2302 carries with a vote of 8-1-0, with Myers voting no. CUP 06-2386: (COX DEVELOPMENT, LLC, 400): Submitted by DAVID FAUCETTE COLDWELL BANKER CORPORATE OFFICE for property located at NE CORNER OF WEDINGTON AND MEADOWLANDS DR. The property is zoned R -O, RESIDENTIAL OFFICE and contains approximately 5.09 acres. The request is for an assisted living facility to be built out in two phases. The applicant is proposing a Phase I with 60,000 s.f. and Phase II with 40,000 s.f. and 122 parking spaces. Anthes: Item 17 is Conditional Use Permit 06-2386 for Cox Development, LLC. Jesse. Fulcher: Yes ma'am. This is a property located at the northeast corner of Wedington Drive and Meadowlands Drive. This is undeveloped Residential -Office property. And if the Planning Commission remembers there was a rezoning recently to the north of this. It also had frontage on Rupple. It made the property to the north RMF - 12, I believe, which is reflected in the staff report. The applicants are requesting a Conditional Use Permit for an assisted living facility which is use unit 4, a conditional use request in this zoning district. This will allow for the use of the property for the assisted living facility. Obviously the applicants would have to come back for further development review based on the size of the project and the size of the property, it should be a large scale development that went through Subdivision Committee and Planning Commission for review and approval. This Planning Commission January 8, 2007 Page 81 of 97 facility would be developed in two phases totally 100,000sq ft. Approximately 120 parking spaces with rooms for 120 residents and obviously full time employees that are on a 24 hour rotating basis to monitor the residents in this facility. In looking at the current allowable uses or permitted uses in the RO zoning district is actually very similar to what is being requested in the assisted living facility. If you look at the type of staff and care that is given for this and if you look at what is allowed in an RO zoning district such as Doctors office, Dentist office, office space, all are very similar uses. So staff is quite comfortable, I believe, with the request for a conditional use. A lot of times I think we see uses that are not at all like what is allowed in the zoning district and that is why it is a conditional use. Rather, this time I think that the conditional use request is very similar to what would be allowed and what could be constructed by right in the RO zoning district. So we find that the requested use is quite compatible and this use or really any use allowed in the RO zoning district will create a very effective and appropriate transition between Wedington Drive and that recently rezoned property to the north, and the developed subdivisions further north of that property. With that staff is recommending approval with eight conditions. Planning Commission determination of compatibility for condition number 1. Condition number 2 is just to outline the fact that this does not guarantee building permit approval or site design approval. They have given preliminary drawings. All this will have to be reviewed for compliance with all requirements under the Unified Development Code. And then also, in condition number 3, which again would be most likely a condition within a large scale development, but just to go ahead and point out the fact now that with the potential for residential development on the north property line that would be more appropriate for pedestrian type scale lighting rather than some of the allowable parking lot lighting that is allowed under the ordinance. If you have any specific questions please ask. Anthes: Yeah, Jesse? Am I to understand from reading this that the parking reduction will require a separate CUP? Fulcher: Meeting with the applicant, and I will also let him go into this a little bit more, it was something that we discussed and something that I wanted to mention in the staff report, but his comments were that a facility like this where the residents are being assisted with their day to day activities, they are not driving a lot. And he had questions about whether this amount of parking would be required. We told him that at the time of development we would look at that, and if he wanted to request more or less parking with any development then a conditional use could be applied for at that time with the large scale. They could go together to the Planning Commission and be reviewed at that time. Anthes: Are there fees associated with that? Fulcher: Fees associated with...? Planning Commission January 8, 2007 Page 82 of 97 Anthes: With the request and the additional CUP? Fulcher: For a totally separate CUP, yes. How we would apply the fees for this being a conditional use for use unit 4, his request or the request would be a separate conditional use for additional parking, whether we would treat those as two conditional uses with two separate fees, I am not sure. Anthes: To tell you the method for my madness here, I am questioning whether if we've got somebody who's building doesn't need as much parking as our requirement states and might ask for a parking reduction, which I think is good for a lot of reasons. I mean, less impermeable surface out there. We certainly don't want to force someone to pave a bunch of land that is never going to be used. But I think that by requiring a separate CUP, and not figuring out a way to make it easy, they might be inclined just to pave it anyway because it is going to be the path of least resistance. So I was just trying to understand what our requirements were. Pate: If this were submitted at the same time we would have to look at these as two separate, individual decisions. You are authorized under entirely separate chapters to issue a conditional use permit for each of these separate things. So we would have to look at that additionally anyway. The part, the conditional use permit fee is not normally expensive. $100 for an application, so... Anthes: Cheaper than asphalt. Pate: Yes. And it is something that we would certainly, probably support because I think justification could be provided. We simply don't know the site design yet. We want to be able to look at that and make sure it looks before we get to that point. Anthes: Okay. Sorry. Thanks. Fulcher: You're welcome. Anthes: Would any member of the public like to speak to this Conditional Use Permit for Cox Development? Seeing none we will close the public comment section and ask for the applicant's presentation. Good evening. Cox: Good evening. I will be very brief. Cox Development had looked at this piece of property and we felt that it was a good application for what the Health Department had asked for. In Washington County there is an approximately 130 bed need in the Washington County area. We have done preliminary designs, very preliminary, to see the reception of the Planning Committee. Do you have any questions? Anthes: Alright. Thank you. Sir? Planning Commission January 8, 2007 Page 83 of 97 Cox: Yes. Anthes: May I ask what's your name? For the record? Cox: Kent Cox, excuse me. Anthes: Thank you Mr. Cox. Commissioners? Clark: Madam Chair. Anthes: Commissioner Clark. Clark: I have one question. I am all for this, but when we do conditional uses for things like daycares, isn't there always a condition of approval that says you have to get State certification? Does anything like that have to happen with an assisted living facility? Anthes: No. That is very specific to daycares. Motion: Clark: Then I will make a motion that we approve Conditional Use 06-2386 with the recommendations of staff as stated. Myres: I'll second. Anthes: A motion to approve by Commissioner Clark with a second by Commissioner Myres. Is there further discussion? Okay then, call the roll. Roll Call: The motion to approve CUP 06-2386 carries with a vote of 9-0-0. Planning Commission January 8, 2007 Page 84 of 97 CUP 06-2387: (MALCO THEATRE, 134/173): Submitted by MCCLELLAND CONSULTING ENGINEERS for property located at the SE CORNER OF JOYCE BLVD. AND STEELE BLVD. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 12.92 acres. The request is for additional parking for the approved movie theatre. Anthes: Item 18. Conditional Use Permit 06-2387 for Malco Theatres. Suzanne. Morgan: The application for a Large Scale Malco Theatre, approved in March of last year, and has since gone through two major modifications. At this time the theatre is approved with 12 screens and 2,012 seats. The applicant submitted a conditional use permit request to allow them to construct more parking on this property then allowed by ordinance. The applicant is requesting for 47% more than the required amount of spaces. The ordinance allows for 30% more without conditional use approval. The applicant has gained the additional spaces by adding another row of parking as well as another drive isle along the southern property line extending the drive aisle adjacent to the southern property line and removing the 5ft required greenspace between parking lots and the property line, also utilizing compact spaces and decreasing the length of those spaces in order to fit an additional 87 spaces on the property. The applicant has submitted a letter stating that at high peak volumes or hours, Saturdays, Fridays, and holidays that they expect approximately 1800 of those 2,012 seats to be filled. With the turn over or change over times where people would be coming in early while some theatres were still filled, they estimated that they would need 720 parking spaces and an additional 20 spaces for employees with an approximate standard of 2.5 Planning Commission January 8, 2007 Page 85 of 97 persons per vehicle. In looking at this request staff finds that this is the first development in a large area. They do not have any opportunity to share parking with other developments at this time. However, we do find that this area and this parking area would be an ideal situation for the other developments that come in later to the north and south of this property to share with this large parking lot. Staff is recommending approval of the request with four conditions. Number 3 specifically addresses the shared parking and states, "due to the unique nature of a movie theatre that has significant peak hour traffic and continuous operation and change over of customers at set times, staff is in favor of the proposed request. However due to the large nature of the parking area which will not be utilized at other times, staff recommends that the parking lot on the subject property be available for shared use as shared parking for future development in the area including the proposed lots in the north and properties to the south. Approval of this Conditional Use Permit by the Planning Commission shall require the subject property owner to permit shared parking to meet excess or peak hour demands." And there is also a Planning Commission Determination request of a waiver of the requirement for the 511 green space between property lines and the parking lot. Staff is recommending in favor of this request. Anthes: Thank you, Ms Morgan. Would any member of the public like to address this Conditional Use for Malco Theatre? Seeing none I will close the floor to public comment and ask for the applicant's presentation. Suneson: Good evening, Commissioners. My name is Chris Suneson. I am with McClelland Consulting Engineers. I am before you once again representing Malco Theatres. As Suzanne stated there is going to be some anticipated peak demands for the amount of parking. I believe we have met most of the codes, if not all of them, that are required and we appreciate any support that y'all can give us. Anthes: Thank you. Commissioners? I have a couple of questions. Suzanne, what are the dimensions of the full size spaces on this site? Morgan: Full sized parking spaces are 911 wide by 19ft in length. Compact spaces are 7 Yz ft in width and 15ft in length or anything in between that size and the standard size. So I believe that the applicant has shown that the compact spaces meet the width requirements for normal standard spaces being 9ft in width, but they are 15ft in length. Anthes: So 9' by 15' is what is proposed? Morgan: I believe so. Anthes: Is that correct? So we are talking about an additional 87 spaces that are of a length that is a compact car length, but is the regular width? Planning Commission January 8, 2007 Page 86 of 97 Morgan: That is correct. Anthes: Is it realistic to think that only compact cars will want to use the shared parking? Morgan: The shared parking that is referred to in number 3 doesn't necessarily identify any particular space on the parking lot. The shared parking could be to the north where there are potentially two out -lots, or to the south. Anthes: With the normal behavior of people to park closest to where they are planning to go. I mean I have absolutely no problem with saying that 87 additional spaces on this sites makes since, particularly if they are shared parking and everything else. I am just wondering if there is any way to resolve making them full sized spaces? Or at least more of them full sized spaces than compact? I mean, every time I ever see compact spaces they have big SUV's and minivans and all sorts of stuff pulled in them and it's just.... compact spaces are sort of ludicrous. I know that we have this big area that is coming down the front that is green space, and we have some other things and then there is kind of an island in the space just north of this. Is there any way we could just sort of absorb that island and make these real parking spaces? Has that been considered? Suneson: Part of the Conditions of Approval for the site plans are that there be some sort of connection to the street, and the path that you are speaking about is actually sidewalk from the theatre to the street. So I don't know that that would be a workable solution. Anthes: So this band right here that I have highlighted is a sidewalk? Suneson: I don't know if that accurately represents everything, but very close. Yes, ma'am. Anthes: It doesn't look like it. It looks hatched, but I don't know. Suneson: It is hatched. Anthes: It's hard to tell. I don't know. I mean, you watch people walk through parking lots, they walk through the drive isles. It would almost be safer to me, and I hate to say this because I am a sidewalk girl, but on a site like this it seems like that is not in an orientation that a lot of people are going to use, and it may be safer to scrunch that together and let people walk in the drive aisles and actually provide a real length parking spot. Clark: It is a 611 sidewalk. Anthes: 6ft. So we would have 3ft to add to either side of those compact spaces which would make them 18ft. 9 by 18, which is pretty darned good. I don't know. Just throwing that out there. Planning Commission January 8, 2007 Page 87 of 97 Clark: Madam Chair, who...? Chris did you say that it was one of our conditions of approval to put the sidewalk there? Suneson: It either came out of this body or from the engineering review of the project through the planning process. Clark: Because I see the sidewalks on the entrances, and those are more than understandable. But I am only seeing a 611 sidewalk on that southern aisle. And that just seems to be kind of strange to just have one 6ft sidewalk down one parking aisle. Pate: Well, that connects to Steele Boulevard all the way. Clark: Pardon me, Jeremy? Pate: It connects to Steele Blvd. You can see the crosswalk there shown in the hatch, and then it continues along that main drive which is where a planned traffic signal is located. Anthes: Okay. Clark: You can jog up, sort of. Pate: Exactly. Anthes: Where does it connect to the east? Pate: I don't think the hatch is shown there for the crosswalk, but when it goes to the east across that last drive aisle it would connect across to the actual theatre. That crosswalk is not shown here. Ostner: This sidewalk diverts north towards the theatre entrance. Trumbo: Come into the property and easily get access back out. Anthes: Well, I like that. I think the sidewalk that follows from Steele moving east along the throat of the entrance and coming all the way into the site to that first crosswalk makes sense. But that other piece of it? I mean, realistically people are going to then angle and beeline to the front door. They are not going to come down here at an angle and then go along. I don't think? Commissioner Myers? Myres: Madam Chair, I think there are also exits in the back. Are there not? Graves: Madam Chair? Myres: Because I sometimes come out of the movies coming out the back door or side Planning Commission January 8, 2007 Page 88 of 97 doors. Maybe they are on the side. I don't remember. Suneson: There are exterior exits on all building sides. Myres: So we don't really need that sidewalk in the back? Anthes: I don't think so, unless what Commissioner Graves [which was inaudible] just said. Is there an ADA issue with that walk? Graves: Not having a sidewalk anywhere in the parking lot. Pate: I'm not sure. Ostner: Madam Chair, if I might? I believe what happened here.... I recall us discussing the parking lot and there was a different drawing with a longer throat, as I recall. Almost a street coming toward the building. There was all this talk about pedestrians and we said you got to have a sidewalk from the building to Steele. Clark: But this didn't.... Well, it was all different then. Ostner: Yeah. Graves: Didn't we have spaces oriented the other way, too? We were worried about not being able to have clearance back to the building. I think that was the case. Ostner: Was the parking turned the other way against the natural flow earlier? Suneson: You know, I believe they have always been oriented north/south with the east/west drives. Clark: But that last road to the south is new, is it not? Anthes: Yeah, that's the... Suneson: That is what they are wanting... (Many people speaking at once) Clark: It comes back to me. This was the border. This was the edge of the property. Trumbo: That's right. Anthes: Yeah, it was the buffer. Pate: The previous plat is the sheet right before you. Which is showing the same thing, another drive aisle. Planning Commission January 8, 2007 Page 89 of 97 Ostner: Well, on a different note I suppose. If I might? This conditional use is building parking offsite or on the property next to it. Suneson: Very close, yes. Ostner: So more parking than our rules allow is being asked for. Suneson: Correct. Ostner: On your building you have these nice comer cutouts. Is there any landscaping or anything up against your building? Suneson: No, sir. Ostner: So in these nice big `ole corners you could park a car? Is that just solid concrete? Sunneson: Solid. Ostner: That's just concrete. Suneson: That is concrete, yes sir. And as you may recall from previous iterations of this plan, the idea at some point in the future is to expand to the south of the building. That is why most of that concrete and asphalt is where it is located. Ostner: Well, I guess I am talking about the little cutouts at all four corners. What a great opportunity it would be for some sort of evergreen base planting. Just to a simple base planting so it wouldn't be a building hanging in concrete like a Lowe's or something. So there isn't any landscaping at the base of your building? Suneson: The closest area would be on the north side of the building where we have some tree islands planted. Ostner: Ok. I could see adding the parking. I would almost like to ask for a basic foundation planting up against these cutouts to help mitigate. How many cars are we talking about? Anthes: Didn't we discuss that at the original approval? Foundation planting versus no foundation planting? Pate: Yes. We have had this discussion twice now at Planning Commission. It was decided against in all cases. Ostner: Really? Pate: Yes. Planning Commission January 8, 2007 Page 90 of 97 Ostner: We never discussed parking more than our legal limit. Pate: That is correct. And I do want to make clear for the Chair to ensure that any requirements placed on the project are specific to the parking and having to do with that and not anything else. Anthes: Well, I understand Commissioner Ostner. I mean, when you reconfigure and ask for a conditional use you can have some landscaping happen. I just was trying to remember because I recall us hashing through that a few times, and the determination was made not to do it. I just can't remember the discussion. Ostner: Well, it has grown significantly, too, since we have started discussing it. Myres: That is true. Anthes: I am wondering about the scale of a foundation planting next to that behemoth of a building. It may look like little turkey frills. I don't know. Ostner: You can do it. You can do a foundation plan, I assure you. It doesn't have to be like that. Anthes: Well, if you would like to propose it. Ostner: I'll let people... If there are any other considerations. Myres: Madam Chair. Anthes: Commissioner Myers. Motion: Myres: I'd like to move for approval of Conditional Use 06-2387 for Malco Theatre with the four conditions of approval as stated. Clark: I'll second. Anthes: We have a motion to approve by Commissioner Myers with a second by Commissioner Clark. Is there further discussion? I understand wanting to get this thing through and approve the parking. Can I ask one more time if anyone is interested in removing that sidewalk and getting more of these spaces to be regulation size? Clark: Yes. Myres: I wouldn't be adverse to that. I just wanted to move the process along. Planning Commission January 8, 2007 Page 91 of 97 Anthes: Well, then I will move to amend. I don't know quite how to do this, but.... Would staff be amenable to that change? I didn't even ask that part. Pate: I think with the amount of parking that is proposed on this site our preference would be to have the sidewalk. On reason is because the Mud Creek Trail is located just to the south of this which would provide a big connection of trails in this area. Anthes: Okay. Well, I asked about the connections earlier and that wasn't brought up. Pate: I'm sorry. Anthes: Okay. I will let it go. Myres: I'm fine with that, too. Anthes: The whole idea of a compact space, particularly an enormous bank of them rather than them being a special circumstance at the corner of something, or something to make it fit, just seems like a misuse of that exception. Okay, I'm done. Is there further discussion? Will you call the roll? Roll Call: The motion to approve CUP 06-2387 with four conditions of approval as stated carried with a vote of 8-1-0. With Commissioner Anthes voting no. Sunneson: Thank you, Commissioners. Planning Commission January 8, 2007 Page 92 of 97 Planning Commission January 8, 2007 Page 93 of 97 CUP 06-2397: (ARBORS AT SPRINGWOODS, 286): Submitted by THE ARBORS AT SPRINGWOODS/ SPRINGWOODS LEISURE LIVING LLC for property located at 2178 W. MOORE LANE. The property is zoned COMMERCIAL PLANNED ZONING DISTRICT (C- PZD) and contains approximately 25.23 acres. The request is for a temporary sales office trailer for the Arbors @ springwoods development on Lot 2 of the springwoods C-PZD Anthes: Item 19. Conditional Use Permit 06-2397 for the Arbors at Springwoods. Andrew. Garner: Yes. This property is located in West Fayetteville. It is north of Moore Lane, and east of Dean Solomon Road. The site is identified as Lot 2 in the Springwoods planned zoning district. The Arbors at Springwoods large scale development was approved for 122 multifamily dwellings on the property by the Planning Commission in March of this year. The applicant is requesting a conditional use permit to allow temporary real estate sales trailer to be on the property for six months. Staff does find that this trailer would be compatible with the surrounding property. It would simply be in place during the construction of the development and would be removed after six months. That is what they are proposing at this time. We are recommending several conditions of approval. The first one stating that the trailer shall be removed within six months from approval of the conditional use or when the first permanent dwelling unit is constructed and ready for occupancy, which ever occurs first. Also we are recommending condition number 2 that evergreen shrubs be planted and maintained along the southwest and east sides of the trailer for any parking associated with the real estate office. Other conditions of approval are pretty straight forward. Just let me know if you have any questions. Anthes: Thank you, Mr. Garner. Would any member of the public like to address this Conditional Use for the Arbor at Springwoods? Seeing none I will close the public comment section. Would the applicant like to make a presentation? Marley: Madam Chair, I'm Don Marley, I'm the developer and I am just here to answer any questions. Anthes: Thank you, Mr. Marley. Commissioners? Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Motion: Graves: I move approval of Conditional Use Permit 06-2398 for the reasons stated by staff with the four conditions of approval stated. Clark: Second. Planning Commission January 8, 2007 Page 94 of 97 Anthes: Motion by Commissioner Graves with many seconds, but I think I heard Clark first. Is there discussion? I don't think so. Would you call the roll? Roll Call: The motion to approve CUP 06-2398 with four conditions of approval stated carried with a vote of 9-0-0. RZN 06-2396: (BRISIEL, 363): Submitted by JORGENSEN & ASSOC for property located at 2783 MT. COMFORT RD. The property is zoned P-1, INSTITUTIONAL and contains Planning Commission January 8, 2007 Page 95 of 97 approximately 2.19 acres. The request is to rezone the subject property to RSF-4, Residential Single Family, 4 units per acre. Anthes: Item 20, our final item this evening, is rezoning request 06-2396 for Brisiel. Will you give the staff report? Fulcher: Yes, ma'am. This is for just over 2 acres of land located south of Mt Comfort Road and west of Maple Valley subdivision. This is a recently completed subdivision. The majority of the houses are built here where Maple Valley is located. It was land formerly owned by the church which is the 2.19 acres that we are looking at tonight. It still contains two of the church structures on that property. The Maple Valley subdivision was created from that land that was formerly owned by the church. It was rezoned to RSF-4 in 2004 and is finishing construction now. The applicant is requesting to rezone the 2 acre tract which is currently zoned institutional and where the church is located to RSF-4. Looking at the current zoning districts, everything around this is RSF-4. That includes across the street, land to the west, south and east. So this is a very compatible rezoning request and will allow the applicant to subdivide the land to create lots which are compatible with those around it at this time. So, staff is recommending in favor of this, making all the required findings for the rezoning. And if you have any specific questions I would be more than happy to answer them. Anthes: Thank you, Mr. Fulcher. I will call for public comment, but I don't see any public. So, lets move on to the applicant's presentation. Good evening. Thanks for staying up with us. Brisiel: Hey, I appreciate you listening. My name is Tim Brisiel and I am the owner and developer of this piece of property. I developed phase one and had tremendous success with that phase and am basically requesting rezoning of this property in question basically to do a small phase two to the Maple Valley subdivision. I think Jesse basically said everything. I will answer any questions that you might have. Anthes: Thank you very much. Commissioners? Commissioner Clark. Clark: Was there any public comment on this at all? Fulcher: No, ma'am. I have not received any letters or phone calls. Motion: Clark: Seeing that it is like everything around it, I'm going to make the motion that we forward Rezoning 06-2396 with a recommendation of approval. Graves: Second. Planning Commission January 8, 2007 Page 96 of 97 Anthes: We have a motion to forward by Commissioner Clark with a second by Commissioner Graves. Are there any comments? Will you call the roll? Roll Call: The motion to forward RZN 06-2396 carried with a vote of 9-0-0. Anthes: Are there any announcements? Pate: Yes. There is a Subdivision Committee on Thursday morning for Commissioners Anthes, Bryant, and Trumbo. So I hope you all got your packets today. We also started including a synopsis of those items that were tables so that at least you will know what the Planning Commissioners have discussed and what issues were outstanding. So hopefully that will be of help to you. Anthes; Thank you very much. Can we have a brief, very brief updates on the four committees? Lack: Our Committee has met three times and has proceeded through the section of the architectural design standards for downtown. I think we have made great roads into developing an ordinance that will be clear and understandable with well set guidelines. We have had a lot of discussion about whether or not the ordinance regulates style. I think that has been a healthy debate that I will look forward to passing on to City Council with the hopes that they can make it through that debate as well. I think there are a lot of facets of the ordinance that are easy to pass on even beyond any disagreement that we might have about style and about whether the ordinance regulates style. So I'm very pleased with the committee that we have and the dedication and the knowledge of the members of this committee. Anthes: Thank you, Commissioner Lack. Commissioner Clark? Clark: The Cultural Arts District Committee has met once. It was a very productive meeting. We should have a rough draft within a couple of days - Except I am on Jury Duty so go figure, and I got called for tomorrow, for Wednesday. So that will be a little postponed, but hopefully by our next meeting we will have a rough draft done. Anthes: Thank you. Commissioner Myers? Myres: Did you say my name? I'm asleep. Sorry! The Landmarks Committee which is charged with just identifying ways in which other communities have identified their landmarks and significant structures are busy collating and sharing information. I am planning to schedule at which more of us than two can meet, and also allow public to attend. We're going to try to do that in the next couple of weeks. We don't have anything physical to present yet, but I would hope by maybe not the next Planning Commission meeting but the one after that we will have a rough draft. Planning Commission January 8, 2007 Page 97 of 97 Anthes: Thank you. Commissioner Graves? Graves: Well, we've voted to expand our jurisdiction and ban all digital and non -digital... (lots of laughter) Anthes: All presentations are banned? Graves: I am working on a draft. And right now we are deciding whether we need a public meeting or whether it is something that can be circulated and then this can serve as the public meeting. That has occupied probably as much time as a draft of the actual presentation. So we probably should have just met and gotten it over with. Pate: For the record, too, the Committee for Digital Presentations sent out an email, I have gotten no interest or response from anyone. So I have also done some research that... Graves: I bet if we threw in the non -digital it would generate some... Myres: Well, please let me know if you are going to ban all presentations before I make my presentation! Anthes: Thanks to each of the Commissioners that are serving on this, because all of you have been tapped for Committees and you are doing a great job. I guess that's all. We are adjourned.