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HomeMy WebLinkAbout2007-04-09 MinutesPlanning Commission February 12, 2007 Page I of 62 MINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on February 12, 2007 at 5:30 p.m. in Room 219 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. ITEMS DISCUSSED ACTION TAKEN CCP 06-2389 (BELLAFONT II A, 175) Approved Page: 4 CCP 07-2429 (PROCTOR & GAMBLE, 175) Approved Page: 4 VAC 07-2439 (CENTRAL UNITED METHODIST CHURCH, 484) Approved Page: 4 ADM 06-2383 (METROPOLITAN NATIONAL BANK) Approved Page: 4 RZN 07-2471 (JENNINGS PLUS NEIGH ASSOC. DOWNZONING) Tabled Page: 5 ADM 06-2410 (ROCKCLIFF APPEAL) Denied Page: 7 VAR 07-2472 (CRUZ BAY,LLC) Approved Page: 28 CPL 07-2473 (MORNINGSIDE PARK CONCEPT PLAT) No Action Page: 25 ADM 07-2483 (MALCO THEATRES) Approved Page: 37 CUP 07-2437 (CALLAHAN TOWER JOINT VENTURE, 255) Approved Page: 41 VAC 07-2422 (FLETCHER AVENUE R -O -W, 524) Denied Page: 46 RZN 07-2436 (E.W. JONES, 213) Denied Page: 56 Planning Commission February 12, 2007 Page 2 of 62 Jill Anthes Lois Bryant Candy Clark James Graves Hilary Harris Christine Myres Sean Trumbo Alan Ostner STAFF PRESENT Matt Casey Jeremy Pate Suzanne Morgan Jesse Fulcher Glenn Newman Andrew Garner CITY ATTORNEY: Kit Williams MEMBERS ABSENT Audy Lack STAFF ABSENT Planning Commission February 12, 2007 Page 3 of 62 Anthes: Good evening and welcome to the Monday, February 12, 2007 meeting of the City of Fayetteville Planning Commission. I would like to remind audience members and Commissioners to tum off cell -phones and pagers. Listening devices are available if you have trouble hearing in the chamber. A staff member can provide you with a headset if you need one. Jeremy, will you call the roll? Roll Call: Upon the completion of roll call, Ostner, Myres, Graves, Bryant, Harris, Clark, Trumbo, and Anthes are present. Commissioner Lack was absent. Discussion of Digital Presentation Guidelines Anthes: The first item this evening is a discussion of digital presentation guidelines. As you know, we appointed a committee to look over how to provide assistance to applicants wanting to make a digital presentation at Planning Commission. Those recommendations have been provided to us. One thing I would like to say is that this would be published on the City's website and would be given to people that were interested. This is not a bylaw item. Are there any comments or suggestions for the draft? I had one minor thing. On 3A it might be useful to say no more than one slide for each minute. Just insert the word slide. Also, the very last item probably ought to come all the way out to the left hand side. It is not actually a subset of 6, right? Does anybody else have any other comments? Do we require a vote or do we just ask you to publish this? Pate: I don't believe so. We were really just looking for feedback from the Planning Commission on those guidelines. If these look acceptable we will put them in a format that is supportable on the website and add that page as a link to our website as well. Anthes: Alright. Thanks, Jeremy. Thank you, Commissioner Graves. CCP 06-2389: Concurrent Plat (BELLAFONT II A, 175): Submitted by H2 ENGINEERING, Planning Commission February 12, 2007 Page 4 of 62 INC. for property located N OF JOYCE, W OF LINDSEY OFFICE BLDG., and E OF VANTAGE. The property is zoned C-3, CENTRAL COMMERCIAL and contains approximately 12.84 acres. The request is for a concurrent plat within Beltafont Phase II with 7 commercial lots proposed. CCP 07-2429: Concurrent Plat (PROCTOR & GAMBLE, 175): Submitted by MORRISON SHIPLEY ENGINEERS, INC. for property located at 1303 E. JOYCE BLVD. The property is zoned C-2, THOROUGHFARE COMMERCIAL and contains approximately 14.22 acres. The request is to subdivide the property into 3 commercial lots. VAC 07-2439: (CENTRAL UNITED METHODIST CHURCH, 484): Submitted by JORGENSEN & ASSOCIATES for property located at 6 W. DICKSON. The property is zoned MAIN STREET CENTER and contains approximately 6.02 acres. The request is to vacate a utility easement and alley on the subject property. 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: Our consent agenda tonight has five items. First is the approval of the October 23, 2006 Planning Commission Meeting minutes. I have forwarded some comments to Jeremy. Second is concurrent plat for Bellafont II A. Third is concurrent plat for Proctor & Gamble. Fourth is a vacation request for the Central United Methodist Church. And fifth is an Administrative Item for Metropolitan National Bank. Would any Commissioner or any member of the public like to remove one of these items from consent? Motion: Anthes: Hearing none I will entertain motions to approve the Consent Agenda. Trumbo: So moved. Anthes: Motion by Commissioner Trumbo. Ostner: Second. Anthes: Second by Commissioner Ostner. Will you call the roll? Roll call: The motion to approve the consent agenda carried with a vote of 8-0-0. RZN 07-2471 (Jennings Plus Neighborhood Association Downzoning): Submitted by ALAN OSTNER for property located S OF 18TH STREET, ARROWHEAD AND CUSTER LANE. Planning Commission February 12, 2007 Page 5 of 62 The property is zoned RMF -24, RESIDENTIAL MULTI -FAMILY, 24 UNITS PER ACRE. The request is to rezone the 67 subject properties to RSF-8, Residential Single Family, 8 units per acre, the owners of which signed a petition in favor. Anthes: The first item of Unfinished Business is rezoning request 07-2471. I am under the impression that the applicant has requested that this item be tabled. Will staff please tell us why that request has been made? Pate: Sure. In looking at this application and formulating staff reports, we got the maps back. This is a neighborhood generated petition. In looking at that it created some difficult situations for staff recommendation. Some spot zoning issues. One parcel in an entire block separated by other parcels. So we wanted to take a look, hopefully a little more comprehensively. As you know, as part of our City Plan 2025 staff has the responsibility of bringing forward to the City Council some neighborhood plans for consideration. Complete neighborhood plans. So this is a contender, I guess, for one of those spots. So we will be taking a look at this to see if this is an applicant or a possibility for that spot in the future. Anthes: I just wanted to see if any member of the public is here for that item? If you would, would you raise your hand? Okay... (someone speaks from the public) Anthes: This is for the Jennings Plus Neighborhood, our first item on Unfinished Business. Okay. Unknown: 07-2422? Anthes: No, 2471. Unknown: Okay. Anthes: Okay. Clark: Madam Chair? Anthes: Let me just ask Mr. Pate. Do we need to hear a staff report or anything then? Or we can just go straight to table? Pate: Just go straight to table. Anthes: Okay. Commissioner Clark. Motion: Clark: I move we table rezoning 07-2471 indefinitely. Planning Commission February 12, 2007 Page 6 of 62 Myres: Second. Anthes: Motion to table by Commissioner Clark with a second by Commissioner Myres. Will you call the roll? Roll Call: The motion to table RZN 07-2471 indefinitely was approved by a vote 7-0-1. Commissioner Ostner recused. ADM 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. This item is being reconsidered. Anthes: I will recuse from items 7 and 8, and Commissioner Graves will take over, please. Planning Commission February 12, 2007 Page 7 of 62 Graves: I will wait for you to leave and then I will get started. Ok. We are on Administrative Item 06-2410 the Rockcliff Appeal. If staff would give us their report? Pate: This is a reconsideration of the decision by the Planning Commission to approve the appeal of Mr. Jeff Erf who is in the audience tonight. This is for property located at 620 Rockcliff Rd. The City Attorney wrote a memo to the Planning Commission asking for that decision because the property owner was not notified to be here to present their point of view with regard to this item. As a reminder, this is concerning a permit that was issued after a retaining wall was constructed along Rockcliff Rd. At that address 620 Rockcliff Rd. Staff has provided the Planning Commission with all the materials received to date on this item including the full staff report that you saw last time. Additionally we have submitted the materials that Mr. Erf submitted at the Planning Commission meeting as well as notification from City Engineer and City Planning offices to the applicant by email, phone, and mail out that we typically send and notified him of the meeting today. The City Engineer, unfortunately is not at this meeting. I believe he is in a Street Committee meeting right now. So he is not going to be able to present his points again. But I would just remind the Planning Commission that they are the same points that were considered last time. There is no new information with regard to that. The City Attorney also asked the Planning Commission to visit this site. A few of the members that (unclear) in this section, we did go take a look. And I know that several of you have driven out there, and followed us out there to take a look at this particular retaining wall that is being constructed. Staff still does not find it to be a danger to pedestrian or vehicular safety and would recommend that the permit stand as issued. But that is for the Planning Commission to decide. If Mr. Williams has anything to add I would ask him to do so. Williams: Thank you for reconsidering this because we have never done anything like this before, so we didn't get any notice out. The code doesn't require us to notify the property owner, but since this would have a big impact on the property owner it was only fair that they would be able to be here and provide their side. I see that they are here in the audience tonight. I would just ask you to listen to them, listen to the applicant, and of course use your own judgment and whatever you saw when you went out and looked at the wall. Graves: Thank you. Is there any member of the general public who would like to address this item, 06-2410 Rockcliff Appeal? Williams: That would be everybody, right? Except for Jeff Erf? Graves: I think that it would include.... I don't think that we would.... We wouldn't have the person who made the appeal either, I don't think. We wouldn't have the property owner or the person who made the appeal speak yet, right? Planning Commission February 12, 2007 Page 8 of 62 Williams: We've never done this before. Graves: Well, I would seek the guidance of staff. I don't think that we have a non - property -owner that has actually made the appeal. And then we also have a property owner. Obviously they are both, quote/unquote, interested parties so I would think they wouldn't be included in the general public for comment purposes. But anyone else that wants to address this issue other than the person who filed the appeal and the property owner, please come forward now and speak your peace. If you would give us your name. Flakkus: I am Janet Flakkus. You have heard from me before, and unless you have questions I will sit down. Graves: Ok. Thank you. Is there any other member of the public who would like to address this item? Seeing none I will close it to public comment and will move to the applicant. I will allow the applicant to present first. That would be the person who filed the appeal. Erf: Good evening. My name is Jeff Erf. I live at 2711 Woodcliff Rd. I guess the only thing I want to do this evening instead of repeating a lot of what was said at the last Planning Commission meeting, I just want to stress a couple of the items that I included on my chronology of events that I handed out. You should have a copy. I am referring to the most recent one that you handed out at your agenda session last week. First thing, and this could also be a question. I just want to make sure that it is understood that the owners of the property, at least my understanding is, that when that wall was built there were three owners. It was Kirk Elsass, Chris Adams who is now deceased, and Daniel Mason. I want to make it clear that there have been three owners, or two owners of this property all along. Also when they filed the building permit application, I just want to indicate again that they indicated that there were no slopes greater than 15% and that a retaining wall was not going to be constructed. And that was what happened in June 2004. I will just skip right to my first inquiry regarding the wall. I guess you could call it a complaint. It was five months after the permit was issued and two or three weeks after the wall was built. This came up at the last discussion. The driveway had not been poured or was even close to being ready to be poured. The wall was up, but the house was closed up. It was still being constructed and the driveway had not been put in. I just want to make sure that is clear. I am assuming you read the notes on the violation regarding the wall. I just want to read the property owners' response to that just for emphasis. That was an opportunity for them to indicate that perhaps they had made a mistake on that building permit. In fact, maybe that they wanted to say that there was slopes greater than 15% and that they were going to build a retaining wall. But instead of responding that they had made a mistake they indicated that they thought that there was a misunderstanding as to the concrete landscape stones located at the edge of the property. That is what I think we are all referring to as a Planning Commission February 12, 2007 Page 9 of 62 retaining wall. "These stones are not a retaining wall but were designed to add to the aesthetic appeal of the lot without having a big amount of dirt in front of the house." I guess that is it. There are safety issues. Those have been addressed already. I think this would set a bad precedent allowing that wall to be where it is based on City Ordinances. I think you have all discussed that. I just think it is a bad precedent and I will leave it at that. Thank you very much. Graves: Thank you, Mr. Erf. If the property owner would come forward and address this item please? Just introduce yourself. Elsass: Yes. I am Kirk Elsass. I am the property owner. There is a little more history to that. Not only is Mr. Adams deceased, but so is Mr. Mason deceased. They had a company called Northwest Custom Framing. They were the general contractor on this job. I am a real estate agent by trade. I have been read in the papers, being a developer at times. I don't consider myself a developer. I am a real estate broker. They pulled the permit on this, and all these issues that have been pulled up by Mr. Er£ I am really confused why we are really here. I felt really shocked when I got the first email from the City Engineer after the last Planning Commission discussion of this because I had never been given any notice what -so -ever that there was even an issue. When I did get this email I was shocked. These people, between Jeremy and Tim Conklin and Ron Petrie, we have all dealt with an extremely bad situation on this property. I had several of them. And not to go into the details and the saga of why things happened the way they did, but the bottom line is that the house is built on a utility easement. The house was built too high up and not far enough down. There are a whole lot of issues here that we have worked our way through. I have spent something in the range of $65,000 and one of issues that we had complaints in some of the neighborhood people earlier. You know, that we were in there and that construction was going on. We talked with the head of the Homeowners Association. They said please be considerate of the neighbors with your equipment because it is an established neighborhood and those types of things. We did the best we could with the situation, and here we are back again talking about doing something differently than what was done. I can assure you that that staff that we have at the City of Fayetteville is as good. I have dealt with Fayetteville, Springdale, Rogers, Bentonville, all of them. And they worked diligently to try to work something out with this. It was a bad deal for me. It was a bad deal for them. It's a bad deal in general. The situation the way the driveway is now is not a good situation. It is still not good, but there is no choice. Ron asked me what our choices are. We hired an engineer to look at the grade and what we can do. There is no choice. If you take that wall out of that property the way it is now, the only choice that I can see that you could do is come in and build another one closer in which is going to put a steep drop-off even worse than it is now. We have looked at every alternative that we can find. If someone has got one, I would be more than happy to cooperate. I have worked diligently with Ron. Another thing, too, is when the City Engineer when out with me and looked at this property we knew we had this issue. We resolved the utilities easement. We resolved any of the other easements. We had a complaint that something wasn't Planning Commission February 12, 2007 Page 10 of 62 cleaned. One of the neighbors said that (unclear) construction. We moved the sewer line. The City Water made us move the sewer and cost me about $45,000 to move it. I didn't want to do that. If I had had a choice of driving up the driveway a different way I sure would have done it. The wall being built the way it was, when it was. I mean, we can argue all day long those points that Mr. Erf is trying to make. But the bottom line is what's the alternative? What can we do? I didn't create this problem. I am the owner. These people were owners at the time. I entrusted them to build this. And hey, they are both deceased so what can I say? I got the property. I am trying to make a good thing out of a bad situation. Ron (Petrie) worked very hard to make this right. If you will read his permit letter that he sent me, he went down detail by detail how he looked at this and tried to analyze it. So, anyway, I have tried to fix the problem the best that I can. I don't know what else to do. I really just don't see any other alternative in this situation. I really don't want to go back in there. We have several more lots in there to build on that we are trying to go back in with the plan. I obviously have a different builder now. These things are going to be all addressed and done right the first time. I brought (name), my attorney, with me today. I brought him with me because like Mr. Williams said a while ago, I'm kind of confused here. I have never seen a situation like this. And from the information I heard I didn't know that I had some type of appeal process to do, so I just felt like having some kind of representative here for me. In this particular case it was a wise move. So that is really all I've got to say unless you have any questions. Graves: Thank you. There might be members of the Commission who will wish to talk to you. This is a little bit of an unusual procedure since we've got an applicant who is different than the owner. But because that is the case, if the applicant has any items they want to address after hearing the property owner speak you are more than welcome to do that now. Otherwise I am going to move on and allow the Commission to discuss it. Erf: That is fine. Graves: Ok. Thank you. Then we will just move to a Commission discussion on this Item. I will state at the onset, just to reiterate what we said the last time we considered this, this does not seem to be to me the appropriate forum or body to consider this item. I know this is how it reads in the ordinance. The ordinance needs to be changed, in my opinion. Planning by its nature is looking forward not looking back at mistakes that have already been made and trying to fix them. It just doesn't seem like this is the right place to address this particular item. We were uncomfortable with it a month ago when we looked at it and I don't think anyone has changed their mind about that. With that said, while I appreciate the comments from the property owner, my position has not changed from the last time. That is because the ordinance reads the way it reads. If you want a variance or a waiver for how far from the street that you want to build a retaining wall you have to do it in advance. You can't do it after the fact. It is a "shall" not a "should" in the ordinance. And so if there is a possibility for you to get City Planning Commission February 12, 2007 Page 11 of 62 Council member to sponsor this at the City Council level and let them consider it at that point and whether they want to grant some kind of hardship clearance under their ordinance and the way it reads right now that is fine with me. I am already uncomfortable at hearing it at this level anyway. I am certainly not comfortable with then granting some kind of hardship from the way the ordinance reads that governs this item. We are using that ordinance to hear it in the first place and I sure don't want to go around what the ordinance says. You know, in making a decision. So from my stand point I am not going to change my vote from what I voted a month ago. Other Commissioners may feel differently, so I'll open it up to other Commissioners. Harris: Commissioner Graves? Graves: Yes. Harris: I respectfully disagreed with you last time. I think I am going to again. Although I have the same sorts of confusions, productive confusions maybe, that I had last time. Tonight the debate seems to be focused. Last time the debate seemed more multi -faceted. Were we discussing whether or not the City's engineer's process was appropriate? Or was the result of his decision making process something we could live with? And tonight it seems more on this other side, the latter side. Is the result of this retaining wall something that the Planning Commission can live with? But I go back to my conversation with the City Attorney last time in which it was my understanding that it was fairly clear that the City Attorney had the leeway... Williams: City Engineer. Harris: I'm sorry. I keep saying that. The City Engineer had the leeway to make the decision he made in the time frame in which he made it. Is that an accurate characterization of that? Williams: I do think that is correct. I just should note for the record that in the memo I sent to you asking you to do a reconsideration of this I had reviewed very carefully the appeals process in our Unified Development Code. Appeal from here could not go to the City Council. It would have to go directly to court. I did not find anything in the Unified Development Code. And I'll ask Jeremy if he could find anything that would allow your decision to be appealed to the City Council. Unless Jeremy has found something that I haven't then you should deem this as the final decision in this particular case. That is point number one. The second point is that it does say that it shall be unlawful for any person to construct any retaining wall within 211 of the inside of the sidewalk in the city. Or if there is no sidewalk within 2ft of the platted line of the city right-of-way without first obtaining a permit to do so from the Mayor or the official designated by the Mayor which would be the city engineer. So it was unlawful when this occurred. There is no question about it. This does not say that a permit cannot be issued at a later time to remedy the Planning Commission February 12, 2007 Page 12 of 62 situation. I think that is what in fact happened in this case. The developer, I don't know if it was the owner or if it was the builder, but someone was notified that the first attempt at the wall was not acceptable. The wall had to be changed. Had to be lowered, I think. Had to be moved. It was specified by the City Engineer what had to be done in order to grant a permit on the wall. After that he grated the permit. So we were really looking at his procedure and whether or not the City Engineer could do that. Or is it your interpretation of the Unified Development Code that the City Engineer, once a wall is built without getting a permit first, does that mean the City Engineer has no right to say "take off these blocks and move the wall this way and I will give you a permit", or does the City Engineer need to say that the wall must be totally removed and then come back and I can grant you a permit at that point in time to rebuild the wall to these other specifications. It seems to me that the Unified Development Code would not require the total removal of the wall if that is not what is going to be necessary in order to satisfy the City Engineer. That there is not a safety issue or that there is not some other violation. That is really the issue before you. Does the City Engineer have to have the developer totally remove the wall and then grant the permit? Or can he say if you make this alteration to the wall, I will grant the permit? That is basically the issue. Graves: Mr. Williams, just for my clarification, I think if you look at the ordinance while it doesn't say... It says "shall". I don't see anything in there that says that after the fact anybody has authority to do that. Now maybe that is implied. But the ordinance doesn't say that after the fact the Mayor or his designee has the authority to come in at their discretion and do that. I think it should. I think the appeals process that brought this to this body in the first place needs to be amended. I think the ordinance that deals with this type of structure needs to be amended as well to allow specifically that staff can go in after the fact and do that. But addressing the procedural aspect of it, even assuming that they had that authority, I think that our City Engineer stood up here a month ago and said that if the wall hadn't already been constructed then he wouldn't have approved it this close to the street. The only reason we are approving it this close to the street is because it was already there. Because there was already a violation. I think that is the hang-up that I have with the whole thing. Harris: Well, I would say again... Commissioner Graves? If I may speak? Graves: Sure. Harris: Again I need to go back and revisit our first conversation. Mr. Williams, at the time I believed also, speaking of what Commissioner Graves is addressing right now, that while there may not be an explicit passage in our ordinance it had been customary that the City Engineer did have the authority to retroactively issue a permit for something that here she might not have done so in the beginning. Is that correct? Planning Commission February 12, 2007 Page 13 of 62 Williams: I think that is probably correct. Not only in this kind of case but in other cases where someone might have started grading or doing something that you "shall" get a permit before you grade. That is how most of our ordinances are because we make them required to get a permit before you do this or do that. Then usually the project is stopped when we find out that a violation has gone on. That someone has not gotten their permit. But that doesn't mean that they can't then apply for a permit and get a permit even though initially they were in clear violation of the Unified Development Code and had to be stopped. In fact, I think that they were basically stopped here. When the engineer went out and said "this is not acceptable. You can't do that." and then specified what they had to do in order to get a permit. So I think that it was clear that it was unlawful what they did originally. Just like if you grade without a permit or you cut down trees without a tree permit, those are unlawful acts. You can actually get prosecuted for them. You can certainly have your project stopped dead in the water if you do them. But it doesn't mean that you can't come back within compliance with the UDC by following the City staff s recommendations and the ordinances. I am going to let Jeremy... He gave me a message, but I am going to let him give it to you. Pate: This is not my chapter to administer so that is kind of why I have been absent from the conversation. The closest thing that I can liken it to is our Board of Adjustment. It is actually a body that is set up to review variances. Most of the time it is after the fact, to be honest. Most of the time you have a structure that is being constructed and it is not.... Clark: Why aren't they doing this then? Pate: It is part of a structure that is in a building setback that has been there for 80 years. It is after the fact and they go back and look at if it is a dangerous situation. To see if it is incompatible with the neighborhood. Things of that nature. So those are only variances with building setbacks and zoning violations, however, so it is not really applicable in this particular section. Maybe it should be at some point in the future. Actually we have already redrafted this. It simply hasn't gone forward to the City Council. But that is the closest thing that I can liken it to in terms of a zoning action. The Board of Adjustment is simply a board that reviews items like this ever agenda. Harris: If I may make just a final comment? Myres: No, I was just going to ask the same question that Commissioner Clark just asked. Harris: I think that is an appropriate question and I will ask it. The question of course is why are we hearing this? We all are very uncomfortable that we are hearing it. Having said that, however it is ours to deal with tonight. I suppose I would just sort of conclude how I am feeling at the moment by saying that it seems to me that it actually strengthens the City's power to make right. To have a position that in this instance is called City Engineer who has the skills and the authority of the City Planning Commission February 12, 2007 Page 14 of 62 to go in and make a bad situation perhaps right. Or perhaps simply less bad. That is something the City can live with. My understanding is that the City Engineer acted within the purview of his authority to do what he did. My second understanding is that the wall has been determined by the Planning staff at least to be something that does not adversely impact pedestrian or vehicular safety. For that reason I believe that my vote will stand on this tonight from last time. Graves: Thank you, Commissioner. I guess my response to staff comments, my lack of comfort with the whole thing is again apparent in your description of your comparison here to the Board of Adjustment. We are not a look -back commission. We are a look forward commission. We are being asked to try to look back. And especially when the City Engineer would not have approved this wall if they were coming in and asking him for this permit up front. If they had come in and no wall has built yet, his comments at the last meeting were that that.... That what he is willing to approve right now is not something that he would have approved then. So then we get to the only reason that it was approved is to try to fix a bad situation that was created by the owners in the first place. If it was a situation where the engineering staff was coming in here and telling us "Well this is a wall that we would have approved in this shape. We would have been recommending that you guys grand a variance in the first place. All we are doing now is doing it after the fact." That might seem more in keeping to me with the implicit power that the City Attorney is describing. More so than something that the Planning staff would have completely rejected. Or the City Engineer would have completely rejected. But he is only approving it now because he kind of feels sorry for where the owners find themselves at this point. That is the problem that I have. We are interpreting an ordinance strictly to say that this body is the body that needs to hear this. But then it seems like we are being a little loosey-goosey with the ordinance that governs approval processes for retaining walls and reading in a power that is not in that ordinance. I guess I just can't get comfortable with that. Williams: Can I read Section II of this ordinance that you all are considering? The ordinance is C, retaining walls near sidewalk and right-of-way. One is what I just read to you. Permit. Number two says establish line. "In all cases where permit is required", and one would be required in this case, "under terms of this section the City Engineer shall establish the line upon which the retaining wall is to be built." I think when he wrote the letter saying that you have to do this and the wall can be built there, he established the line. I think he has clear authority under Unified Development Code in that section even though it was built originally before he established the line. I think he has authority under that section to say that that this is the line. If you build it no taller than what it is now. If you build it the way I have it here, then that line is alright. I think that was the decision that the City Engineer made even though that is maybe not what he would have made in the front end. Just like the Board of Adjustment would not grant people the right to be onto setbacks and things like that a lot of the time if they saw it in the front end. But you have a house that is built and you don't always force the person to cut off Planning Commission February 12, 2007 Page 15 of 62 part of the house. Graves: But that is what the Board of Adjustment does. This body is not really charged with that. Williams: We are going to try to take this off. This is the last appeal like this that you should hear. Graves: It is the first one that we have ever seen, too. I guess the implicit authority that we have been discussing, despite the description that this is something that happens all the time, this is the first time. I've been on here for four years and I have never seen anything like this before. Williams: Well, grading permits... I think people acting without permits does happen frequently. It has just never been appealed. This is the first time that someone has tried to appeal the granting of a permit. Graves: Anyway, I guess I am not comfortable reading those two sections in isolation and would probably read them together if it was up to me. And say the City Engineer is responsible for directing where that line is going to be as part of the process of the advance approval of the permit. Anyway, I have talked my position. And it is not for lack of sympathy for the property owner. I think I have described my discomfort with the entire procedure that we have going on here. Myres: Mr. Chair. I will be brief, if I can. I have to agree with Commissioner Harris. I think what we are dealing with here is trying to make the best of a bad situation. We have a decision to make. We have to make some kind of decision regardless of what went on in the past. Regardless of what should have happened we have a situation where certain events occurred. And it seems to me, especially hearing Section II of the ordinance, that the City Engineer did have the leeway or the authority to make this kind of judgment. As you quoted, to pick that line and to set up that line. I can't remember how I voted last time, but I think I am going to have to find in favor of the City Engineer and support his decision. Graves: Thank you, Commissioner Myers. Myres: Thanks. Graves: I do have one question for the property owner. Did you actually...? Where you one of the owners back in 2004? We have been provided a time line that indicates that that is the case. Elsass: Yes. Graves: You were? Planning Commission February 12, 2007 Page 16 of 62 Elsass: Yes. Graves: Ok. Elsass: They lay the house on the.... Graves: Sir, please approach the microphone. Elsass: One of the things that happened was that they went out and started three houses at one time. I think from the discussions that I have had with the City Engineer about what you have brought up that he wouldn't approve that was that first of all the house should never have been built at the altitude it was built at. There should have been an engineering grading plan done. That was not done. I was one of the owners so I guess I am responsible but you kind of hope when you hire a contractor that they would follow the rules of what the City has and the inspection process. Also, this was during a time in `04 when I recalled the applicants for a building permit it had that 15% grade on it. But it has been going on, and has been going on for years, where a lot of people wouldn't go and get the City engineers because of additional cost and process. It was about that time when I think... And I think that staff and engineering will tell you that they started clamping down on that making that an issue. I think this one kind of flew under the radar. The builder got it under, got it in. Well, if it had been engineered it never would have been done that way. I think that is what Mr. Petrie is saying. If the house would have been dropped at least 5ft from where it is then the grade from the driveway down to get out... That subdivision doesn't even have sidewalks. It would have been worse if it did. But you wouldn't have that steep grade like they did on the west side of town on the driveway. The reason the wall got built was because there was really no way to get into the house. What Ron told me was that he sees no alternative here. Board the house up? I mean, you are not going to be able to drive a car up into that driveway at all. It is very limited getting into and out of it now. I sure wouldn't have wanted to spend that money, but yes I am one of the original owners. I am the one that bought the property originally from Mr. Lindsey. I put it in this partnership. That was an agreement that they were going to be the builders and I was going to be realtor. Trumbo: Mr. Chair. Anthes: Commissioner Trumbo. Trumbo: I voted against the engineer last time and I was very uncomfortable about doing that in the first place because I am not an engineer. But we were presented with something in our packet and we had a picture. To me I was sitting here and saying "Is this safe?" I was thinking safety only. I don't care how we got here or whose responsibility it was. I was being asked if this was safe because the neighbors felt that it wasn't safe. In looking at a piece of paper it did not look safe. It didn't look like there was room to get out of the roadway onto the right-of-way by the Planning Commission February 12, 2007 Page 17 of 62 wall. I wanted to vote on the safe side. Even though the engineer said it was safe and the staff said it was safe I wasn't comfortable with it. After going and looking at it I realize now that there is room to get out of the road and off out of the right- of-way. It is safe. I feel like it is safe. I agree with staff and I agree with the engineer. If we had both sides a little bit before and we had had time to go see it I wouldn't have voted against it. So I am going to change my vote and vote in favor of Mr. Petrie's decision. Graves: Thank you, Commissioner Trumbo. Clark: Mr. Chair. Graves: Commissioner Clark. Clark: Typically I would say that somebody dropped the ball on this, but I don't think that everybody was even playing in the same game so that analogy doesn't really hold true. This house certainly has a legacy, however I can't sympathize with whoever ultimately owns it. I would like to know, for the record, what are the repercussions of how we vote? I agree with Commissioner Graves that we are typically a forward looking body. We don't look behind and scrutinize or review actions in the past. I don't think that is what we are supposed to do. I agree with everybody up here who feels incredibly uncomfortable even hearing this. Especially when you say the only recourse now is to go to court. That is not recourse. That is a line in the dirt that I don't think we should force any citizen, regardless of what side they are on. So I want to know, if we affirm the engineer what the repercussions are. And if we don't affirm the engineer what the repercussions are? I don't care which one of you answers that. Williams: You want to answer that? Clark: I would like to know what I am voting for and against here. Pate: I believe, and this is reflected in Ron's email to Mr. Elsass, I believe the answer to that question was discussed at the last meeting. I will just read from Mr. Petrie's email. "The City of Fayetteville Planning Commission has revoked the permit for the retaining wall that was constructed at 620 Rockcliff. They have determined the retaining wall must be removed and an alternate plan will have to be prepared and submitted to the Planning Commission for approval. Please let us know when this plan will be provided for review and approval." That was at least the point at which the repercussion discussed at the last meeting. To my knowledge it would not have changed. Clark: Ok. So if we affirm the engineer then everything stays the way it is. Do the petitioners have recourse at that point? We know the owner can go to court. Is that their recourse as well? Can they appeal to the City Council? Planning Commission February 12, 2007 Page 18 of 62 Williams: No, they cannot appeal to the City Council. I don't think that they... They could go to court possibly. It would depend on whether or not the court would find that they have standing. The property owner would obviously have enough interest in this that they could go to court. Whether neighbors had enough standing to appeal, they might. And they might assert that and want to go to court themselves. That would be their only recourse. Just like really rebuilding the wall or going to court is the only recourse of the home owner. Clark: It would appear to me that the only true positive that could come out of this is to rewrite the ordinance so that it is much clearer and we don't ever find ourselves in this position. If that can happen then maybe there will be some good here. I am still incredibly uncomfortable regardless of how I vote. So I am open to hear other opinions. Ostner: Mr. Chair. Graves: Mr. Ostner. Ostner: I am somewhat uncomfortable, but I am not going to dwell at that. I think we have to make difficult decisions all the time. I don't see ... we have affected hundreds of people's home ownership and property in one vote. We make big decisions like that that we have to forward on to City Council. Sometimes we are the end like with conditional uses, etc. It's peculiar how this has come to us but I am not really going to dwell on that. I would respectfully disagree with Mr. Trumbo. I don't think it is safe. We do have the authority to sometimes overrule staff. We vote against Jeremy and his fine coworkers all the time. We don't have to be engineers to overrule Mr. Petrie. It is written into the ordinance that when citizens bring forth a petition we are given that power. We don't have to be professional planners like Mr. Pate to vote against his staff's opinions sometimes. I believe Mr. Petrie was very open to that. Last time we were here he said "Hey, I was making the best of a situation. My ruling is not perfect." He wasn't saying "this is right", he was saying that it was going to be appealed either way. I believe I am quoting him. "It was going to be appealed whether I made them tear it down or whether I supported it. I chose to have them shorten it. Let's just go with the appeal. Let's just minimize the expense now because something big is going to happen after it was appealed." So I believe the wall should be changed. I don't think it's right and I don't think the neighborhood and the situation on the street is safe. I know there are lots of problems with the driveway and the house. I can only look at so many things at once. Maybe the courts can look at all the issues. The wall, I believe, should change. I said it at the last meeting. At least I think the wall should be moved back. Even 2 feet, I believe, would increase safety tremendously. I know it is not cheap. With all due respect, that is the way I see it. I would vote to again overrule the engineer and affirm the appeal by Mr. Erf. Graves: Thank you, Commissioner Ostner. Planning Commission February 12, 2007 Page 19 of 62 Motion: Myres: Mr. Chair, I would like to make a motion. I would like to move that we.... I am trying to think of how to word this... Ostner: Well, either approve or deny the appeal. Myres: Ok. Thank you. I would like to move that we deny the appeal on Administrative Item 06-2410 and support the original decision of the City Engineer. Graves: Is there a second? Motion fails for lack of a second. Harris: I'm sorry. I will second that. Graves: OK. Harris: I'm sorry. Graves: We are going to deny the appeal. And the appeal is Mr. Erf's? Graves: It was appealed by Mr. Erf, not the owner. Trumbo: This isn't the owner appealing? Graves: No. Trumbo: Ok, got ya. Myres: And this supports the original decision by the City Engineer. Graves: We have a motion by Commissioner Myers to deny the appeal and sustain the City Engineer's original ruling and a second by Commissioner Harris. Is there any further discussion? Will you please call the roll? Roll call: The motion to deny the appeal on ADM 06-2410 carried with a vote 4-3-1. Commissioner Ostner, Bryant, and Graves voted No. Chairman Anthes recused. Graves: Thank you. Planning Commission February 12, 2007 Page 20 of 62 VAR 07-2472: Administrative Variance (CRUZ BAY,LLC): Submitted by EB LANDWORKS for a variance from the ten -foot sidewalk width requirement utilizing urban tree wells. Graves: Next Item on the agenda is 07-2472. A variance request for Cruz Bay, LLC. If we could have the staff report please. Ostner: Excuse me, Mr. Chair? Graves: Yes. Ostner: I have a point of order. That was a simple majority, 4-3. Often issues like this require five positive votes. Williams: This one does not. And in fact, if it required five affirmative votes, that would be five affirmative votes to sustain whatever you are trying to do whether it be a conditional use or a rezoning. Not to deny it. But this, I don't think, was one of the ones that is required under your rules to have five affirmative votes. So it is simple majority in this particular case would prevail. Ostner: Thank you. Williams: Thank you. Elsass: I truly am sorry for putting you all in this position. I was involved in it and I tried to make it right. But I appreciate it. Graves: Thank you, Mr. Elsass. Fulcher: This is property located off Fifth St between South School and Locust Ave. Many of you probably remember some vacations that were requested for these properties and adjacent to this property. This request is simply a variance of Chapter 177.05 which is the Street Tree Planting details within an urban streetscape which requires a 1 Oft wide sidewalk for those tree wells. The applicants have requested in this case for 811 sidewalks along Fifth St and then reduce that to 611 along an existing Sycamore tree. Which if you have been to the site you are very aware of which tree that is along Fifth St. Also an 811 sidewalk request along Locust, again where l Oft sidewalks are required. Staff is supportive of this reduction. The 8ft sidewalk provides adequate room for the street tree wells to be put in and allow for adequate tree growth. Also it allows ADA access around these trees on the 8ft sidewalks. The 6ft sidewalks would not actually have the tree wells put in at that location and no on -street parking. That would allow for the sidewalk to meander around that existing tree, but again would allow for ADA access in that portion of the sidewalk. Staff is recommending approval of these waivers with two conditions of approval. Condition One is preservation of the Sycamore tree which the intent of Planning Commission February 12, 2007 Page 21 of 62 that sidewalk meandering is to preserve. Our condition is such that if the Urban Forrester determines at the time of development or during construction review that the Sycamore tree cannot be preserved that the 8ft sidewalk with on -street parking would be provided where the 611 sidewalk is proposed. Also, Condition number two is referring to the improvements, specifically the sidewalk on the north side of the road would be located outside of the right-of-way. That is due to the fact that when Walgreen's was constructed on the south side of the road they did their full improvements to provide the street section, the ST -40 Street section and the 8ft sidewalk minimum. That is going to require it to be constructed outside of the right-of-way. The only other option would be to remove all the improvements on the south side and totally reconstruct the street. Staff is recommending that as a condition also. Just to be within a pedestrian access easement or additional right- of-way to be dedicated. Graves: Thank you. Are there any public comments on this item, Variance 07-2472? Seeing none I will ask for the applicant to come forward and make their presentation. Bunch: Good evening. My name is Mandy Bunch and I am here representing Cruz Bay, LLC this evening. I know that you will recall our previous request to vacate Fifth St that we did not do. So when we backtracked we tried to use Fifth St in its existing state and match the new City Downtown Street Section requirements. What we have found is that even 811 sidewalks 2 to 3ft within our property in this area. And as I also understand it Central United Methodist has had this variance approved and it is also under consideration to just be rewritten altogether to just go with 811 sections rather than 1 Oft sections. So we are respectfully requesting this variance this evening. I am here to answer any question you may have. Graves: Thank you. Bunch: Thank you. Graves: Commissioners? Clark: Commissioner Chair? Graves: Commissioner Clark. Motion: Clark: Having heard the doom and gloom predictions when we denied that original vacation I am very pleased to see the creative minds that have been at work to try to hammer out a wonderful solution to this problem. I would be more than happy to move that we approve Administrative Variance 07-2472 with the two conditions as listed. And to remind myself never to listen to the engineer who says doom and gloom when they don't get what they want the first time. Planning Commission February 12, 2007 Page 22 of 62 Myres: I'll second that. Graves: We have a motion by Commissioner Clark and a second by Commissioner Myers to approve this with the stated conditions of approval. Is there any further discussion? Ostner: Mr. Chair. Graves: Commissioner Ostner. Ostner: I will be voting for this item but I do have a few basic questions. On the condition number two, am I understanding correctly that in a perfect world the southern curb would have been a little bit more to the south so that the entire street and sidewalks would be in the right-of-way? Pate: Actually, no. The curb would be located exactly as the street section calls for. The right-of-way would simply be expanded on the north side instead of the south side. Ostner: I see. So the right-of-way is a little bit smaller in order to meet the rules. Ok. I think this is a great looking project. I believe the sidewalks as they stand, 811 and at the tree wells they're going to be 6ft wide at that point? The tree wells? Pate: They're 4ft. Ostner: They are 4ft at the tree well and 8ft otherwise? Pate: Right. Ostner: I believe that is ample. It is a good urban form. I am very pleased about the Sycamore. That is a great tree. A good part of the neighborhood. So thank you. Graves: Thank you, Commissioner Ostner. Is there any further discussion? Trumbo: Mr. Chair. Graves: Commissioner Trumbo. Trumbo: It's a clarification. We are not... They are building this on their own property boundaries this time? Pate: Yes. There is a vacation of an alley right-of-way that was recommended by the Planning Commission going before the City Council, but it is all outside of the Fifth St right -of -away. Planning Commission February 12, 2007 Page 23 of 62 Trumbo: Ok. Thank you. Graves: Any further discussion? Would you call the roll please? Roll call: The motion to approve VAR 07-2472 carried with a vote 7-0-1. Chairman Anthes recused. CPL 07-2473: (MORNINGSIDE PARK CONCEPT PLAT): Submitted by H2 ENGINEERING, INCJURBAN COLLAGE for property located west of Morningside Drive, Planning Commission February 12, 2007 Page 24 of 62 south of Huntsville Road and north of 15`h Street. The request is to review a conceptual plat for a future Planned Zoning District on 69 acres, containing a mixture of uses. Anthes: Item 9 is a Concept Plat for Morningside Park. Let's have the staff report. Pate: This is a Concept Plat. We do not see many of them. There are actually no motions or rulings. It is simply for informational uses only. It is part of our Unified Development Code for when a developer or property owner wishes to potentially develop their property and are seeking input from the Planning Commission specifically with regard for something that might result in denial or changes to the plat. Obviously this is at the concept level so we are going to hear a lot of detail that have not been worked through. Also, the time frame for review is quite short, so we have had about a little less than a week to review this for your consideration. But as noted there on page one the purpose of the concept plat is a process to allow all interested parties an opportunity to provide the developer with their requirements before the developer invests a great deal of time or money in the preparation of the detailed plat. What we have done is provide you with a description of the project, which is well done actually in the booklet that was submitted. The property is currently zoned RSF-4. It contains approximately 69 acres at the Eastern Morningside Dr between Huntsville Rd and Fifteenth St. It does have frontage on both of those streets. It is probably a future planned zoning district because it is a mixture of uses on the overall property. Primarily residential, however. The potential land uses are identified there in your plans. Open drainage ways, park land dedication, tree preservation are listed on one of the diagrams. So what we have done is essentially asked staff to comment very briefly on issues. So you have comments there listed on page 2 from our Urban Forrester with regard to tree preservation. That, as typical with Planned Zoning Districts, at least 25% of the existing canopy would be required to be preserved. Park land, Park and Recreation staff would recommend likely looking at park land dedication in this area and coordination with Park staff and our Trail's coordinator would be recommended. With regard to drainage our City Engineering staff stated that the developer would be required to conduct a detailed flood study for this property and show no rise on downstream property. Connectivity we did look at connectivity. Especially to the east to properties that are developing or are under consideration for development. Seven Hills Transitional Shelter is to the east as well as other property owned by the City Of Fayetteville and others. To the north is Sixth St or Huntsville, and to the south is Fifteenth St and to the west is Morningside Dr, so conditions are indicated in all of those cases. With regard to the street layout staff has also made some comments there as well and recommendations to better facilitate traffic movement in the area. For a true block and lot layout the City Engineering staff would recommend tighter turning radii and a tighter grid or tighter network of streets if that block and lot layout was provided. However, there are some situations here that place too much emphasis on alleys. Too much traffic generation on alleys in our opinion. We were just requesting that the applicants look at that. City Plan 2025, Mr. (unknown name)'s map identifies this area to be developed as city neighborhood area which is dense Planning Commission February 12, 2007 Page 25 of 62 than residential neighborhoods but contains primarily residential urban fabric which is the case here. Mixed and low intensity nonresidential uses are usually confined to corner locations which is also the case with this particular location. Staff has made some other comments there, but I believe the applicant would appreciate any comments that you as a Planning Commission have in your Concept review of this project. Anthes: Thank you, Mr. Pate. Mr. Mihalevich, do you have any comments to add from a staff perspective? Mihalevich: From the perspective of the Trails Master Plan, Morningside is shown as an on - street linkage. So that would be important to have a bike facility, a bike lane along that road. We are also looking into some of the inner trails within this green corridor down the middle, sort of a greenway. Conceptually at this point that is something that is positive that we are looking at. Anthes: Thank you. Would any member of the public like to address this concept plat, CPL 07-2473 for Morningside Park? Seeing none I will close the floor to public comment. Would the applicant like to make a presentation? Murray: I spent all weekend and most of today building a really beautiful power point presentation for you guys but the laptop wasn't going to cooperate with me. Anthes: Mr. Murray, could I get you to introduce yourself, please? Murray: Yeah. I am David Murray. I am on the design team for the project. I am also a member of the development team. I have been working primarily with Urban Collage out of Atlanta, Georgia on this project on the design side. Also with H2 Engineering as we have moved forward in to plotting it out and getting the survey and tree survey and things like that. I will try to be brief. When we saw this piece of property we though it was really special. As close to town as it is and seeing how it was designated as a city neighborhood area we thought it was a really great opportunity to create something that is going to serve ordinary people. What we have been trying to do is create a project that is going to serve both the membership of that community and the people and neighbors that live there, but also the surrounding communities and really become a part of the fabric of southeast Fayetteville. We have tried to target a little bit of a lower price point. I don't think that that necessarily is part of your decision making. But we feel really strongly that if we are really creative we can create something that is affordable and that is really special. That is what we have really tried to do with this piece of land. I guess me personally I feel like land is really the one thing that we have been made stewards of here. We're stewards of the earth. I really like that Fayetteville is going in the right direction to discourage sprawl and to make the best use we can of our infill properties. This being less than a mile from the square I think this is just a great opportunity to create a neat community that is probably going to drive mass transit to some extent. Also just to provide a great place for Planning Commission February 12, 2007 Page 26 of 62 lots of working class families. I don't mean to use the word class, but... We have also tried to create a wide variety of unit types to accommodate a large sector of home buyers. We have tried to create things that would appeal to anything from seniors all the way down to recent college graduates that may only need 600 sq ft. But maybe seniors that need a layout that is all on one level. We have tried to create in each one of our unit types an outdoor courtyard type area where maybe people don't have as much yard but they have a higher quality space they can use. It actually adds to the space that they use similar to the way that they use the house. It is like an outdoor room that we can provide to them at a much lower cost than actually indoor heated space. So I guess starting with the least dense and going to the most dense we have these courtyard homes that surround a community courtyard. We have beautiful pictures of developments in the United States that have those. Several in Charleston South Carolina. Some in Southern California. The idea of the courtyard is to provide a safe place for small scale community activities. Providing a safe place for kids to play on the lawn but also providing a way for a little bit more density around lawn area. Also providing a way for it to face the street. If you look in the handout and you find some of the pictures, there is one picture from street level what it might look like to look into one of these courtyard areas. It is really accessible. I think it would encourage some pedestrian traffic. It does face the street. I know that one of the comments from staff was that we don't want any units backing up onto public streets. The closest that we come to that is having sides facing the street. I am sure that you guys are aware that there are ways to design the side of a home where it is actually inviting and not something that is closed off. We haven't made use of fences around the perimeter or the side or anything like that. We are not trying to separate this from the rest of the community out there. We are really trying to tie it in. At the same time it has been a little bit of a challenge because we have a wide array of uses around the site. We have RMF -24 zoning to the west. We have Seven Hills and Habitat for Humanity going on to the east. We have a trailer park to the southeast of this site. We have light industrial to the southeast and southwest of the site, so there is a wide array of types around the site. There are big parking areas and churches and heavy apartment use. But we are really trying to tie it in and just let it become a fabric and make it very accessible to all the neighbors around the site. Anyway, I think that is it for the courtyard homes. To move on with the courtyard theme we have tried to create courtyard town homes where parking would actually be the interior of the courtyard. But we would also provide either a green or a paved pedestrian courtyard are. For the neighborhood to be able to gather, for the children to be able to play. We are trying to create a way for those motor court or auto courts to be very pedestrian friendly. And then on to the live/works. They would be maybe the next dense use. Live/work units, I am sure you guys are familiar with this, the idea is to create a very flexible unit type that allows people who work from home or people who need to have an office where they can meet the public from time to time on the lower level of their home to be able to do that. I think there is a real need for that, a real demand for that market that is not being met. There are some developments that are coming on line that are going to try to meet that. But the price is going to be pretty high. We are trying to create a Planning Commission February 12, 2007 Page 27 of 62 smaller unit type. Possibly with a studio type dwelling above to where we can really supply a wide array of square footages and therefore a wide array of prices. It wouldn't be viable to put a bistro right there beside that greenway tomorrow. But maybe in five years somebody could apply for a conditional use. We are trying to provide ways for someone to be able to run an organic bakery or to sell some crafty things out of their house, some pottery or whatever in our conditional use language. That is the live/work situation. We have a little bit of light retail on the southwest corner of the site and on the northwest corner of the site tying into some more live work opportunities and possibly some lofts above retail and commercial on the southwest corner of the site. We also, at the behest of some of the membership of the Planning Commissions of other places, they are saying "we don't really have a garden apartment unit type in Fayetteville." And I agree that there is a real opportunity there for both college students, recent graduates. But the whole site is based around being owner occupied. Of course, any unit type can be sold, can be rented. After it sells originally it is pretty much the owner's prerogative as to how they use it. But we are trying to target owner occupied because we feel like we are providing something we really want the average buyer to be able to come and afford. I think that is pretty much the full range of the unit types that we have on that site. We have just tried to... I know that there are some questions about the linkage of some of the roads. We are trying to use, for instance, on the northwest corner as you see when you are coming south from Huntsville on the first interior road. There is a little bit of a turn on that road that comes back from the east and then back south. The idea is to calm traffic. We are trying not to take too many straight shots right through the site. We don't mind people driving through the site, but we don't want it to be used as a thoroughfare type of connection. We are not so concerned about driving traffic interior through the site. We are concerned about connecting to the exterior and allowing people to come in. We didn't design it to be really a thoroughfare and with that flood plane down the center of the east part of the site it is kind of hard to do that anyway. We had to find a creative way to make a boulevard around that. It is not a fully wet flood plain. It is just a little ditch. But we are trying to find a way to improve that and make a series of ponds that would go down through the site. They would be used for fishing, cycling around, walking obviously. We are really trying to provide something that will be special for the residents and also for the surrounding community. I think we have made a lot of strides but we are really looking for input and direction. We are definitely open. I really appreciate your comments, Jeremy. We are just trying to take it in the right direction fro Fayetteville. We are not married to it. We are looking forward to what you guys have to say about it. Anthes: Thank you, Mr. Murray. Hennelly: I am Tom Hennelly with H2 Engineering. In looking at this from an engineering standpoint, of course one of the first things that struck me was that greenway that runs right up the middle of it and the advantage we will be able to take of that existing flood plain. I don't believe there is any flood way through there. There Planning Commission February 12, 2007 Page 28 of 62 may be at the very southern portion of it. In a lot of developments like this that is really a detriment to the property. I think this is an opportunity to use it to really enhance the development as a whole. Urban Collage did a great job in laying this out and really diversifying the uses and that type of thing with the entire property. They are not a familiar with some of the criteria that is required here in Fayetteville so there are some changes that we will have to make to the geometry of it and that type of thing. Particularly I think the use of some roundabouts and the realignment of some of the streets to really enhance the flow of the traffic within the development rather than having traffic that would be generated by a piece of property this large being developed with that development out on Morningside or Huntsville or Fifteenth St. Really trying to maximize the circulation of the traffic within the site. There are so many different uses in there whether it is the recreational or the commercial or the live/work for people who live there to never have to leave that site for their daily errands or that type of thing. The ones that don't work there will have to leave. We fully expect to have to make the improvements to Morningside, Fifteenth depending on the status of the improvement there, as well as Huntsville. We have discussed with Matt the connections with the Master Trails Plan from the south up to the square and the benefits of being able to route some recreational bike traffic through the development. People who use a bike as their main mode of transportation to incorporate a bike lane along Morningside. For a more direct route the commercial development down there on southwest really takes advantage of the high traffic count that is at the intersection of Morningside and Fifteenth St already and takes advantage of the signalized nature of that intersection that will be coming up here pretty soon. Other than that, other than some minor changes that I think, some staff comments that we will need to address through the approval process, I think overall this project would be a shot in the arm for that part of time. I know when we brought through some rezoning for property adjacent and nearby it; a lot of the people in the area were concerned about more apartments coming in. Something that I guess they considered to be more transient residents than permanent owners of properties there. I think this is really a fantastic blend of getting some of he density that a lot of the land prices require for development now a days and still be able to provide that ownership at a level of quality that we can assure you through the PZD process in the construction that you are not going to have.... You know, we have proposed, I think south of here, in previous project that we are prepared to make some bills of assurances on construction and that type of thing on an apartment complex that we are proposing there. We heard it loud and clear. They don't want any more apartments there. We ended up getting that property rezoned. Instead of RSF-6 to RSF-8. The level of construction may not be guaranteed in the way you would have in a PZD like this that will really be able to show you the materials and the style of construction and that type thing. Really incorporate some of those residential design standards that you guys have been working on. We can answer any question you may have about it. Anthes: Thank you, Mr. Hennelly. Commissioners. And this is here as a Concept Plat. We will not have motions or a vote, but we need to discuss any strengths of the Planning Commission February 12, 2007 Page 29 of 62 plan and express any concerns so they can come back with a plan that responds to those comments. Commissioner Myres. Myres: I have just a few. First of all, I am so grateful that there will be a development that has some cohesion. That stretch of property could so easily have been piece- mealed. I agree with everything that you said about that part of town not really needing any more of that apartment complex here there and everywhere. I used to live right up the hill from this piece of property. When I first moved out there, there was nothing in that stretch all the way along until you got to Happy Hollow. It has certainly grown up a lot in the last ten years. There are so many things that I like about this project. I really would like to get your emails so I don't have to detail them all now. But I just think that this mixed use, emphasis on green space, emphasis on community is a wonderful concept. I think all of you have done a great job of planning this. I know, of course, that there will be refinements that have to take place because of City code and that kind of thing. I especially like the use of water throughout the site, particularly down at the corner of Morningside and Fifteenth. It is so typical that when you've got a busy thoroughfare like that that certainly in an urban area you want buildings on the street front. But in this part of town I don't think that is necessarily the optimum thing to do. That green and water introduction at that corner is a nice soft way to move into the rest of the site. I looked over the materials over the weekend and I just got more and more engaged with the overall concept of it. I congratulate you. I hope it comes out even half as good as it looks right now on paper. I have nothing negative to add. Anthes: Thank you, Commissioner Myers. Any further comments? Clark: Madam Chair. Anthes: Commissioner Clark. Clark: I have several. I know we will get into more of the substantive things when the Large Scale Development comes through, or the PZD comes through. But off the top, my company has property in the industrial park across the street from Fifteenth. I can tell you that this is a much needed mixed use development. I am very happy to see that people are realizing that southeast Fayetteville opens a lot of advantages in terms of development. This is exactly the type of quality development that I think that whole area needs. Of course we will talk about traffic, and we will talk about sidewalks, and all the other stuff that comes with the PZD. But off the top I think this is a great attribute to the area there. Plus it is bringing permanence instead of a temporary transit type of development like an apartment complex would. I am very pleased also to see that you have called out some of the major trees that are on the property currently. I hope you can continue their right to exist and plan around them. There aren't many trees on that property. I drove by it all the time. But there are a couple that are true beauties and I see that you have called then out on the plat already, which is admirable. I love the fact that there is a lot of green space. I also like the fact that you are going to make Planning Commission February 12, 2007 Page 30 of 62 some trail connections off of it going different directions into the city. Along that, I have a question for Matt if he is still here. Mihalevich: Yeah. Clark: I am seeing on the context map that they have given up, to the north you are showing a trail connection going over Mt Sequouyah. Is that in the Fletcher right- of-way that we are going to deal with tonight? Mihalevich: Yes. Clark: Are you going to stick around? Mihalevich: That's why I'm here, yeah. The main reason. Clark: Ok. I am very pleased that these two things are coming at the same time. Thank you. Mihalevich: Yeah, it worked out well. Clark: Because it is really difficult to find any kind of pedestrian transportation from the Industrial Park. I think this is going to really shine a light on an area of Fayetteville that needs to be respected to this degree. I really do commend that. I think it is going to be a true, true attribute to that whole area. I know we are going to have our bumps along the road. No pun intended! But I think it is going to be a fun project through, and I appreciate you bringing the concept plat to us. More importantly I appreciate you respecting the property, the terrain, and the people who call that home not just the folks who are here with us only for a couple of years in an apartment and then move out. I think this is going to be a really cool development. Anthes: Thank you, Commissioner Clark. Commissioner Ostner? No? Trumbo: Madam Chair. Anthes: Yes, Commissioner Trumbo. Trumbo: I too like this project. The mixed use, the commercial, I like it. It makes sense where it is. I consider this a definite spot, an area for infill like we are talking about. I foresee a lot more projects, hopefully with the mixed use down here like this. So I look forward to seeing it come through. I agree with the other comments. Harris: Madam Chair. Anthes: Yes, Commissioner Harris. Planning Commission February 12, 2007 Page 31 of 62 Harris: Very briefly. Just to give feedback, I too am thrilled to see this. I think it is exciting. I think the materials you have given us suggest a kind of commitment because they themselves have such a high quality. I look forward to what you bring forward. I do hope that it is possible within the particular economy you are working in to remain committed to levels of affordable housing. Thank you. Clark: And that bistro shouldn't be five years away. There is only one in the whole area. I think the folks in the Industrial Park especially that really have no alternative will appreciate it. I think the mixed use is wonderful and the commercial will be successful. Anthes: Are there further comments? Ostner: Madam Chair. Anthes: Commissioner Ostner. Ostner: I too think this is a great project. That has been a big piece of open land that many have seen as basically industrial and not worthy of a first class development. I think this could be a first class development. With a lot of projects like this it's all going to be about the buildings, I believe. The buildings are going to make it or break it. By my estimates right now, I understand these are just sketches, but you have roughly nine units per acre if you spread it all out. I think that is perfectly acceptable. I think it dovetails nicely with the lower density to the west. Those people to the west are very worried about this. I will just be blunt. They are very worried. They are used to a rural setting. They are used to a pasture. It seems like you are aware of that. The intersections along Morningside I believe are important to help calm that traffic. I would even suggest traffic calming mechanisms on that street. You will have to hammer that out with Planning. I know that is listed as a collector. I don't really see it carrying that kind of volume or speed. That traffic, that is a race way and it's unnecessary because it is a neighborhood street. The way you have laid out green spaces and you have packed a little bit of density here and it is open here, it's a great method. The mixed use is terrific. Here again, it is all about the buildings. When you put a commercial building in a neighborhood if it doesn't look right it's not going to be right. Now, in your packet that you have given us, your examples of commercial buildings look good. They fit. You mention bistros and small businesses. I could see that in these sketches. Which is what they are, this isn't a proposal. I believe the neighbors deserve more than a red sign stuck out in a hay field. I believe most of the people living there thought that tonight's meeting was more of a rudimentary something engineering that didn't really effect them. That's not your fault, but I would suggest going to a ward meeting and just standing up and putting these up and just telling people what you are doing. We have all seen that defer lots of problems. We don't want problems. Y'all don't like problems. That helps avoid lots of conflicts. I would strongly suggest that y'all do that early on. It is a great way to make in roads. I Planning Commission February 12, 2007 Page 32 of 62 appreciate your drawings. That is the end of my comment. Anthes: Thank you, Commissioner Ostner. Are there further comments? I have some questions. I would like to start with staff. You know, we've had a lot of discussion lately about Huntsville Rd. But as we look at City Plan 2025 and how the city is redeveloping and how we expect... Where our commercial loads are and the improvements that we are making leading to Fifteenth St. How do you believe the focus will be split between Fifteenth and Huntsville as far as commercial activity? Pate: I think it is likely that Fifteenth will see more commercial activity just because of the improvements that the City and the State are putting into traffic movement and capacity on Fifteenth St. The recent improvements at the intersection at Huntsville and Fifteenth where it curves around, I don't think it has come to its full fruition yet because the act of full connection has not been made. There is a new Fire Station going in. I think there is a lot of property that is currently zoned industrial that is not within the Industrial Park that could see other uses. But there could also be very big industrial uses that could still flourish in that area. So I think in terms of looking at it purely from the planning perspective, I think Fifteenth St because of its connections through all the way to the interstate and 540 will likely see more commercial activity. Anthes: Good. I think that I would agree with that assessment. You certainly know more about it than I do. I like to see that the amount of mixed use is greater on the Fifteenth St side than the Huntsville Rd side. Have you had any kind of a retail market analysis done for this project? Are you confident about the amount of mixed-use or retail that is shown in your project? Actually, could you come to the microphone? Murray: (Speaking away from the microphone).... had a proper detailed analysis of this site done. Maybe this is a little comparison. I think Ruskin Heights is targeting around 45,OOOsq feet of commercial for their site which is 28 acres. This site is actually a total of around 69 to 70 on the north side of the road. We have a couple of acres on the south side of the road that we are not addressing at this time. We are in the range of 45,000 of commercial as well. So we have about three times the property but about the same amount. As far as the mixed use are concerned... I'm sorry, the live/works wouldn't be taken into account because I guess we feel like they are a little bit lower impact commercial. If they do get used for commercial they are home/office. They may be like an organic bakery of some sort, but they are not hardware stores and groceries. They are not highly trafficked restaurants and such. They are really light duty. I guess that is why we really like the flexibility of a live/work unit because maybe next year there is a use for a small bistro in one of those, but maybe for nine years those remain completely live units not work below. But we are providing for the flexibility where they can be sold as fully lived in units. They can turn over into a store front at some point in the future when that area gentrifies or when there is enough demand for that sort of Planning Commission February 12, 2007 Page 33 of 62 thing. We anticipate, hopefully we will be able to drive a lot of pedestrian and bicycle traffic up and down that green way and getting lots of walkers wanting to window shop. If so, maybe it happens quicker. But we have provided enough flexibility for the site so that we are not so concerned about present demand because we feel like the property can respond to future demand. We can go a little light on current demand and let it grow as the area grows. So that was my original thought. If I can respond to one more thing that was spoken? Is that possible? Anthes: Sure. Murray: I just want to say, Alan, that we did meet at a Ward One meeting on February 3 and there were a lot of really intelligent questions, good questions. I am actually meeting with the neighbors that were more active and more interested and asking more questions tonight after the meeting at 8:00 on Morningside Drive. Ostner: Terrific. Thank you. Murray: I really enjoyed it. Like I said, the questions were intelligent, well informed, and they were very receptive for the most part. So it was cool. It was good. Anthes: I think that one of the strengths of this plan is that it does acknowledge that Fifteenth St is changing, and that a commercial node centered there is appropriate. I like that in the plan. I think that the level of connectivity that is being achieved in this project is exceptionally good. It is mixed very well into the lot and block pattern that is platted in South Fayetteville. Obviously this project is going to be asked to do improvements on the surrounding streets with the Large Scale, with the PZD. I guess staff and engineering will evaluate that. I did go look at the cross sections in the booklet and I believe that 12ft travel lanes are shown on the interior streets? If that is true, if I read that correctly, I would like you to look at that and see whether you could do something less than a highway section as far as a travel lane there. I think Alan answered that (unclear). Is that about what you guys had calculated? It seems suitable. The biggest flag that I saw here... There were two things that staff commented on that I would like to flesh out a little bit if we can. There was a comment made about too much traffic generated at the alleys... That the alleys were functioning more like streets. I would like to hear a little bit more from staff about that. The other thing is in response to the shear number of these courtyard homes that are being shown. If I am wrong, correct me on that too, but it seems like that is what is generating a lot of the alley configurations. And interestingly enough, I was wondering about these courtyard homes. I am on a listserve, and today this picture came through on the listserve which is of a courtyard home situation. I will put this up so the camera can get it. It is in Sacramento, California. I think this is quite handsome, but what I have noticed here is that the green space in the court directly faces onto the public street. It looks like in your plan that the courtyards are internal, with only a little path going to them. I would suggest that the applicant look at this model with the courtyards that are visible and more a part of the public street rather than that Planning Commission February 12, 2007 Page 34 of 62 internalized courtyard. I will just pass this down among the Commissioners. So, staff, can you talk about the traffic generation at the alleys and your comment regarding the access management and fire access for utilities and maintenance of the courts? Pate: Sure. Some of those will obviously be flushed out in the overall review of the project. I think the Fire Department had some concerns of access on some of the units. It would exceed their maximum 150ft required turn around. A lot of that can be worked out through connecting alleys through much like they have done on Morningside. They don't occur, for instance, on the block there that is east of the north/south street west of the green way. A lot of the alleys don't actually connect through. There are some concerns about not having through traffic that really creates more traffic than necessary on all the alleys. If you look at the functionality of alleys, less than 250 vehicle trips per day is typically recommended. Some of these would just seem to, just counting units multiplied by 10, it would greatly exceed that in some cases. I don't think those are do or die comments. I think it is just a matter of how these are organized and what alleys become through alleys and what alleys loop back to each other. I think that part of the issue is that some of them loop back so they actually generate more traffic and it is generating more of a street system than it is an alley system. But again, it is not something that can't be overcome in my opinion. In terns of access and looking at some of how the streets offset, the one that is most notable is probably to the south there along that green way. The street is offset and we really couldn't find a reason why that would be in that particular case. Maybe there is something more environmentally there that we simply don't know about. But in general we had questions about that. I know Mr. Petrie and City Engineering, Planning Commission, City Council, and Street Committee all of these bodies have been discussing the different traditional neighborhood development type of street standards. In general Engineering staff, and this is a comment that they could perhaps discuss more, but in general a lot of those have not been supported because the true lot and block configuration that distributes traffic and thereby lessens the load and decreases the speed on all streets has not be achieved. I think Ron has been very supportive of projects that have achieved that to a great degree. It is difficult at times when it is in an infill development. We saw this as a Ruskin Heights. You can't really connect everywhere because everything is developed around it and so it is difficult to do that. To a certain degree this is sort of a clear slate in that regard. You've got three streets surrounding you and property largely underdeveloped to the east. So, I think in that particular case. Anthes: Thank you Mr. Pate. I think that concludes my comments. I think there are a lot of strengths to the plan, but the concerns are that we work through the street sections to make sure that they're right. We are not over -burdening and asking more of alleys than we should be. And that those greenspaces have eyes in them, and that they contribute to the overall feel of the development for those that live there or who don't. Is there any further comment? Planning Commission February 12, 2007 Page 35 of 62 Pate: Madam Chair, just one quick comment. It looks like one page is missing, didn't get included. I just want to make sure Tom, David, or someone gets that page that comments on the street improvements. It's not in my packet. I'll make sure it's included. Anthes: If there are no further comments, I'll move on to agenda item 10. We will call a 5 minute break. ADM 07-2483: Administrative Item (MALCO THEATRES): Submitted by McClelland Engineers for a major modification of the approved site plan. The applicant requests an additional curb cut on both Steele Blvd and Joyce Blvd. Anthes: Item 10 this evening is Administrative Item 07-2483 for Malco Theatres Ms Morgan. Morgan: Yes. Thank you. This property is of course located on the corner of Joyce and Steele. A Large Scale Development for Malco was approved some time ago. The approval allowed for two curb -cuts into the development. One on Steele Blvd and one on Joyce Blvd. Both of these are supposed to be... Each of these intersections or curb -cuts are full access. The one on Steele is going to be at a signalized Planning Commission February 12, 2007 Page 36 of 62 intersection in the future. That has been planned for and money has already been collected for a portion of that. The internal layout of the development allows for several points of cross access and larger than typical drive aisles in some locations to allow for a greater flow of traffic. There is some vacant property to the north of the approved parking lot. The applicant has already submitted development proposals for a portion of that vacant property for use of a restaurant. The applicant anticipates additional development. With this additional development the applicant has brought forward this Administrative Item requesting a modification of the approved Large Scale Development for two additional curb - cuts to the property. One on Steele Blvd and another on Joyce Blvd. Both of these are proposed to be right -in and right out only access points. With regard to the curb -cut on Steele Blvd this will... Staff is in support of this proposed curb -cut finding that due to the nature of a boulevard street a right -in and right out only will work and function appropriately and provide for safe traffic movements. I would like to note that both this proposed curb -cut, as well as the proposal on Joyce Blvd meet all distance requirements from intersections and adjacent curb -cuts. With regard to the curb -cut on Joyce Blvd, staff is not in favor of this location nor an additional curb -cut on Joyce Blvd finding that there is inadequate sight distance at this intersection with the slope of the street as well as the volume of traffic as well as the speed limit on Joyce Blvd. We do find that a curb -cut in that location will not likely function as a right -in and right out only. Due to the way that it is proposed as well as other examples in the City and also on this street that have been developed as right -in and right out only and are being utilized for left turns into the property. Cross access is being provided within the property, and we find that an additional curb -cut as the applicant stated might provide cross access. We did not find that would be the case. Finally there are other examples of large retail developments. The Wal-Mart just adjacent to this property functions adequately with one public entrance onto Joyce. For those reasons we are recommending denial of the curb -cut proposed onto Joyce and approval for that which is proposed onto Steele. Anthes: Thank you, Ms Morgan. Would any member of the public like to address this Administrative Item for Malco Theatres? Seeing none I will close the floor to public comment. Would the applicant like to make a presentation? Suneson: Good evening, Commissioners. My name is Chris Suneson. I am with McClelland Consulting Engineers. I am proud to be representing Malco Theatres once again before this body. We appreciate the support of staff with the curb -cut onto Steele Blvd, but we do take exception to some of the comments that have been generated onto Joyce Blvd, particularly. In addressing sight issues, sight distance issues, and the speed of the development of Joyce Blvd, this body has established a precedent with the development of Lot 10 just immediately north of the Malco development. That proposal was two large buildings; I couldn't say how much acreage. Particularly that development was approved with two curb -cuts onto Joyce Blvd. These are full access right -in, left out. You can get a car in there any which way you would like. I believe that the proposal that you have before Planning Commission February 12, 2007 Page 37 of 62 you is an improvement over that development in that we are providing the right -in, right -out movements only. While we cannot control how drivers move into our site from the left turn lane, the presence of a curb there would certainly discourage them. Also, in addition to the first couple of comments under the curb -cuts. Wal- Mart was mentioned in the staff report and I would like to point out that while there is one public entry into the Wal-Mart site onto Joyce, there is a second just immediately to the east of the Malco development that serves as a service drive for large semi traffic. This particular type of traffic would be comparable to the amount of.. We provide that type of service with our eastern curb -cut onto Joyce. What we are proposing with this additional curb -cut onto Joyce is simply car movement rather than any large vehicles. With that said I will open the floor for any questions y'all might have. Anthes: Thank you very much. Commissioners? Trumbo: Madam Chair. Anthes: Yes, Commissioner Trumbo. Trumbo: I suppose we didn't do any traffic study to see whether this would be safe or not. I guess staff is saying that the right -in, right -out on Joyce is an unsafe situation due to the hill? Pate: We did request of the applicants a traffic study before they submitted this. We did not get that so we had to base our recommendation on the information we have right now. Our City Engineer and I looked at this particular request and with that information could not recommend it at this time. Trumbo: Even with a traffic signal there that is going to stop traffic at the top? Pate: At Joyce and Steele? Trumbo: Yes, sir. Pate: That is correct. Trumbo: Ok. Ostner: Madam Chair. Anthes: Commissioner Ostner. Ostner: I think staff has looked into this very thoroughly. I believe a good observation that staff mentioned on their second point. There is a similar right -in and right -out near the intersection of Joyce and Shiloh that serves Nelson's Crossing. Staff observed patrons will turn left onto Joyce from the right -in access without a physically Planning Commission February 12, 2007 Page 38 of 62 barrier. People are going to use that. They are going to find a way to do it. That is just our nature. When we are in our cars we just do dumb things. I think staff has looked at this very thoroughly, and I support their curb -cut on Steele, and I support their disallowance of the curb -cut on Joyce. Anthes: Is that a motion? Motion: Ostner: I'll make a motion we approve Administrative Item 07-2483 as discussed, recommending a curb -cut onto Steele and denying a curb -cut onto Joyce. Clark: Isecond. Anthes: A motion to approve by Commissioner Ostner and a second by Commissioner Clark. To clarify, this is to approve as staff recommended the curb -cut on Steele and to deny the requested curb -cut onto Joyce. Is there further discussion? Trumbo: Madam Chair. Anthes: Commissioner Trumbo. Trumbo: I would agree with Commissioner Ostner. I understand why they would ask for an additional curb -cut here, but we spent a lot of time on Nelson's Crossing trying to hash that out and it's failed. It has just failed. So I am going to have to agree with Commissioner Ostner and vote for his motion. Thank you. Anthes: Thank you, Commissioner Trumbo. Is there further discussion? Will you call the roll? Roll Call: The motion to approve ADM 07-2483 as stated, carried with a vote 8-0-0. Planning Commission February 12, 2007 Page 39 of 62 CUP 07-2437: (CALLAHAN TOWER JOINT VENTURE, 255): Submitted by CALLAHAN TOWER/SMITH 2 WAY JOINT VENTURE for property located at 2979 CROSSOVER ROAD, AT THE SW CORNER OF OLD WIRE ROAD. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 1.46 acres. The request is to approve a cell tower on the subject property (site of Fire Station #5). Anthes: Item 11 is Conditional Use Permit 07-2437 for Callahan Tower Joint Venture. This one is Jesse's. Fulcher: Yes ma'am. This is property located at the southwest corner of Old Wire Rd and Crossover Rd, the site of Fire Station number 5 on property of the City of Fayetteville. It is currently under construction. This requested cell tower would be located just south of that. The applicants are requesting a 15011 tall mono -pine which is somewhat descriptive of what it is. It is a mono -pole cell tower that uses stealth technology to create a pine tree structure. I think there are quite a few drawings in the packet which are in color. The packets the applicant provided show that structure both in black and white and in color. Based on information, the coverage maps that were submitted by the applicant I believe from Cingular Wireless and Verizon Wireless, do show that there is a coverage deficit in this area. There are two existing towers in the somewhat immediate vicinity. They are over a mile away. One to the north, which was one that was approved at Zion and Crossover by this Board, and then the other which is in the County. The storage tower at Oakland and Mission. Some of the carriers that are proposing to locate on this tower are also located on those towers. Also, the applicant, as far as choosing this location... Staff had met with the applicant. He had actually submitted a cell -tower to the north of this site on a vacant field. Staff was not very comfortable with that location. Being an open field there wasn't really a chance for any type of natural vegetation to help screen the tower or to blend in with the surrounding trees or anything like that. With the Fire Station being built on City of Fayetteville property and with the ordinance specifying or requesting that an applicant look into utilizing City owned property for location of a cellular tower, the applicant has come back with this tower on the Fire Station property. Also, to go with that, the Fire Station actually.... If you have visited many of the Fire Stations, they all have either a lattice tower or another type of tower facility to locate their communication equipment for 911 coordination and other types of communication facilities. This tower at this location would also facilitate those needs for the Fire Station. Regardless of a cell tower being constructed here or not, a tower is still going to need to be located on this property. I included, I believe it is on page 15 and page 16, one is just a short email from our GIS division. Page 16 is a contour map that shows the Fire Station site and shows the contours as they leave from the Fire Station site as a line of sight to the communications tower off of Township, which is communication equipment on the water tower. Based on GIS's study of this site based on the elevations and Planning Commission February 12, 2007 Page 40 of 62 what they need. They are the ones that actually have the equipment in their office right now for this tower at Fire Station 5. Based on just looking at the contours, the differences in elevations between these sites, they believe that well over 100ft will be required for any type of tower for that communication equipment to function properly. They have stated that up to 150ft would most likely clear the trees on these different sites. Based on the fact that the applicant has shown that there is an existing coverage capacity issues in this area. That there are no structures to co -locate on other than the two which are located over a mile away that would not actually provide coverage in this area coupled with the fact that the Fire Station itself would have to construct a tower of at least 100ft possibly up to 150ft for their communication equipment, and that the applicant has followed some of the outlined guidelines within the Unified Development Code for utilizing City owned property and also for utilizing stealth technology by using the mono -pine, staff is recommending approval for this request with twelve conditions of approval. I believe the majority of them are fairly straight forward ones that you have seen on previous cellular tower applications, including number twelve which is one the Planning Commission has requested before. I would like to cover a few of these. Number one, if you look at some of the color drawings of the mono -pine structure on other sites around the United States, that is the one that we intend to be constructed if this is approved and not the item showed on page 62. Which is a black and white drawing that pretty much shows a mono - pine with some branches all of the same width coming out of the structure. It doesn't really resemble a pine tree at all. Also, condition number six is as a condition. This was coordinated with the Fire Department. Instead of the typical wood board fence around the base of this tower it will actually be a screen wall constructed out of the materials that are compatible with the Fire Station building. Condition number eight is partly to do with access for service vehicles to this facility. Rather than just constructing a drive which is what we typically see, they will be constructing a parking lot which will serve for a potential trail head in the future for public to park in and also for service vehicles to park in. And then Item eleven is obviously to allow co -location for future carries including the Fire Station and all of their equipment that is needed. If you have any specific questions, please ask. Anthes: Thank you, Mr. Fulcher. Would any member of the public like to speak to Conditional Use Permit 07-2437 for Callahan Tower? Seeing none I will close the public comment section. Would the applicant like to make a presentation? Reynolds: Hi, there. Dave Reynolds, 1519 W Center St here in Fayetteville. I am representing Callahan Tower Joint Venture here this evening. This is a little bit different from what you have seen before as far as cell towers. On this location we felt and staff felt along with us that this is probably the location in town where the tree works. It is bordered on three sides and in a large curve in the road almost four sides with large hills. This will just come up and break the tree line by about 30ft from the tops of the hills surrounding it. So this is the location where we feel this will work. It won't be the tree in the parking lot kind of set up. Planning Commission February 12, 2007 Page 41 of 62 You guys are kind of familiar with the package by now, I'm sure. There are no other towers in that area. Like Jesse said, I don't want to go over it too much of what he has done. We didn't receive any public comment on our responses on any of the notice letters that we sent out. I don't think the City did. Last time I asked they hadn't. You guys haven't, have you? Nothing from the neighborhoods. We have, right now, two carriers waiting to co -locate. We strongly believe there will be a third by the time it's constructed. We are very close. It works out nicely from what I have seen and what we think. We will be able to use some good techniques to tie it in to the Fire Station. We will be able to share a little bit of space with the Fire Station. Save the Fire Department and the City from constructing their own tower. Also we will be constructing a parking lot on the other side that will serve as access and parking for one of the trail heads that are to be developed later. As far as towers, this is kind of everything you are looking for from us. We hope to do a little better this time. The only thing I really do want to stress is that especially with the Verizon system that is just coming into town, this is a very... What they consider and what you can see by the coverage maps, they have no coverage there at this time. There is a letter in your package from their RF engineer Chris Brown. Very strongly they state that this is required for coverage for them. Cingular, although they have coverage around most of town, you can see from the areas there that this is a geographical problem stop. I just wanted to bring those things up. I am sure you probably have question, so that is all I have for you. Thank you very much. Anthes: Thank you, Mr. Reynolds. Commissioners. Myres: Madam Chair. Anthes: Commissioner Myres. Myres: I hope Mr. Reynolds doesn't have a heart attack when we approve this. It is so out of character. But I am really happy to say that I can support this. Maybe not whole heartedly but very enthusiastically. I think it is the perfect place for the pine. So that being said, I am going to vote in favor. Anthes: Commissioner Clark. Motion: Clark: I will make the motion. It has taken three years but I will make the motion that we approve 07-2437 Callahan Tower Joint Venture with the conditions as listed. Anthes: We have a motion to approve by Commissioner Clark. Do I hear a second? Ostner: Second. Anthes: I believe that Commissioner Ostner got in there first so he will be recorded as the Planning Commission February 12, 2007 Page 42 of 62 second. Is there further discussion? Ostner: Madam Chair. Anthes: Yes, Commissioner Ostner. Ostner: Being a Conditional Use I would want to say something other than yes, yes, yes. I am going to vote for this. I believe your rendering really says it all. It is going to look right. I think that is very important. It seems like a good neighbor, the Fire Station. I mean it is not an industrial use but it is a non-residential and appropriate neighbor, an appropriate street. 265 is getting widened. Conditional Uses are a big deal even though this looks easy -cheesy. I will be voting for it. Anthes: Thank you, Commissioner Ostner. Are there further comments? Harris: Madam Chair. Anthes: Yes, Commissioner Harris. Harris: If I were watching this tonight I would love to see what we are voting on. Could we show the camera the mono -pine came, tower? (General talking) Graves: It is a shame it doesn't have a pine scent like in a new car. Harris: I bet we could arrange that! Williams: I don't know if the cell phone company knows what they are getting into. These are much more expensive to build. And after we get a look at the first one who knows what happens next. Ostner: How expensive is it? Positive vote though. Anthes: The thing is I have seen... there is one of these in Hot Springs and I think there are others in some other areas. The branches start way up in the air, and it is not very successful. So I think this one with the lower branch structure is better. I would like to comment that on condition of approval number seven about the landscape buffer that is to be planted around this tower. If we could encourage the Urban Forester to assess the tree species to make this thing look like it belongs in this part of the hills. That might be appropriate. But other than that, as far as where the coverage is needed, and as far as locating it on a City property like the ordinance suggests, and at a height that seems to work in the area. It is in a low lying area. This meets a lot of the criteria that we sometimes stumble over when we are going to approve these. I will support it as well. Planning Commission February 12, 2007 Page 43 of 62 Pate: Madam Chair, one quick comment as well. I think this is one of the first applications we've seen where there are actually three users of this tower who have submitted documentation that they need a use in this area. So I think that supports the actual height which staff typically has a concern with. So that was all important information in this application. Anthes: Thank you, Mr. Pate. Clark: It is nice to know they are listening to us. Anthes: Will you call the roll? Roll Call: The motion to Approve CUP 07-2437 carries with a vote 8-0-0. Planning Commission February 12, 2007 Page 44 of 62 VAC 07-2422: (FLETCHER AVENUE R -O -W, 524): Submitted by Planning Staff for property located from the end of Fletcher Avenue on Mount Sequoyah to Morningside Drive and Highway 16E. The request is to vacate the unconstructed right -of way for Fletcher Avenue. Anthes: 07-2422 for Fletcher Avenue right-of-way. Ms Morgan. Williams: Before she starts. This involves some land that myself and my brothers home, part of it is. I see some of my neighbors out here are going to comment, but I am going to recuse. Anthes: Thank you, Mr. Williams. Morgan: The constructed portion of Fletcher Ave is located on Mt Sequoyah and it creates a north/south street connection between Mission Blvd and Center St where it dead ends into (Lighten Trail?) In the 1990's there was a water line installed from Huntsville Rd north to Rodgers Dr. Then in the 1970's approximately `74 and `75 the City of Fayetteville determined that it was necessary to install a 30in water line from Huntsville Rd north to Center St and beyond. It was during this time that the City began acquiring right-of-way or property for right-of-way and for the location and construction of this 30in water line. Approximately $22,300 was spent to acquire this property which consists of the Fletcher right-of-way. It is approximately 80ft in width. Though a small portion along the northern side of Fletcher Ave does decrease to 60ft in width. There has not been any development of this property to warrant the construction of this street and the property has remained largely as it had in 1970. Certainly design and construction of a street in this right-of-way would be sensitive to the terrain and this is property located in the Hillside/hilltop overlay district. Some of the agreements with the property owners when right-of-way was purchased did reflect that construction of the street would need to be sensitive to this area. On December 19, 2006 Alderman Robert Reynolds presented to the City Council an ordinance to vacate the street right-of-way obtained for the connection of Morningside Dr and Fletcher Ave. Accompanying this agenda request was a memo from the City Attorney who, as you know, family had sold property for the street right-of-way regarding the history of Fletcher Ave right -of way. That memo is located within your staff report and I believe staff has addressed some of the comments that were mentioned in that memo. The City Council tabled this item indefinitely finding it prudent to receive responses from the Utility companies and a recommendation from the Planning Commission; therefore it is before you tonight. With regard to utility comments and City comments none of the utility companies found any objection to vacation of this right-of-way. However, we do have comments from the water and sewer division as well as Trails Coordinator regarding the exiting 30in water line as well as the fact that this right of way is identified on the Fayetteville Alternative Transportation and Trails Master Plan as a connection from Huntsville to the intersection of Fletcher and Rogers Ave. I would like to mention that we have received public comment regarding this vacation. One of Planning Commission February 12, 2007 Page 45 of 62 the property owners who had sold property for this right-of-way is actually somewhat landlocked. And with the vacation of this street it reduces their ability to construct a street if needed for development of this property. I have included a letter from that adjacent owner, Mr. and Mrs. Wade regarding the request to retain right-of-way for Fletcher Ave from their property to the north to allow for potential future street connection. Additionally we have received phone calls and emails from property owners in the area concerned that if a vacation of right-of- way is approved that the property owners adjacent to it could potentially develop their areas with parking lots or other mufti -family uses. With regards specifically to this vacation staff recommends forwarding it to the City Council with a recommendation for denial finding that no justification currently exits for vacating the right-of-way purchased by the City in the 1970's. No development has occurred in this area. If constructed the street could provide numerous parcels with access which now have limited access and could provide for additional connection to the south off of Mt Sequoyah thereby supporting the City Council's policy for connectivity. Anthes: Thank you, Ms Morgan. Is our Trails Coordinator still with us? Mihalevich: Yeah, I am right here. Anthes: Do you have any other comments to add? Mihalevich: Suzanne said it pretty well. It is on the Master Plan. It is an important connection, especially looking at the project that just came in down Morningside down to Town Branch Creek Trail which is going to be the major east/west trail. Just providing that connectivity is pretty important. We just want to preserve it. If it is not a right-of-way then I recommend that it is still maintained as multi -use trail easement. Just like the water easement. Just so at least we keep that easement so we can still do it. But as a right-of-way we can definitely use it as a trail corridor also. Anthes: Thank you, Mr. Mihalevich. Would any member of the public like to speak to Vacation Request 07-2422? Jansma: I'm Harriet Jansma. I live at 900 Lighten Trail. I am glad that you have a memo from Kit, or at least the background information from Kit, because my own property archives go back only to the 90's in my house and I would have had to get into some boxes in my garage to find this information from the mid 70's. When this right-of-way was first proposed and discovered by our neighborhood it was the first time that our neighborhood organized. It was long before the City of Fayetteville had a network of neighborhood associations. But in the 70's our neighborhood had an organization. We collected a small treasury. It disappeared somewhere in a bank because when this proved to be a line on a map and not a real construction project for the city at that time. People lost interest in the issue. They didn't lose interest in the sense that they wanted it to happen. They lost Planning Commission February 12, 2007 Page 46 of 62 interest in the sense they saw any further purpose for the communications that the treasury would have paid for. So the neighborhood did not continue to be organized on a daily basis around this issue. But at the time it was seen, and I believe it is still seen, if it were to become a main roadway as a shortcut between State Highway 45 and State Highway 16. So I think many people in our neighborhood, although they would be thrilled to see it become a trail and especially to connect this new proposed large scale subdivision with the older part of town. I think we would hate to see a roadway through that area. We would encourage you to consider Vacation of the roadway or at least of a full width, I think you said 80ft right-of-way for most of the length of it, right-of-way through that area. I doubt that anyone would have objection to making an exception to that vacation for a small portion of it to serve property that otherwise would be landlocked and undevelopable. But to see it become a throughway it seems to me contravened the whole idea of avoiding roads over the mountain. You will remember the road over the mountain controversy between 1994 and 1996 when the City Council finally voted that no road would be built over Mr. Sequoia without special City Council approval. It was our understanding... Our neighborhood had a map at the time that showed the east/west roadways that were under consideration. But it also showed the north/south roadway that would be just as devastating, it seemed to us, to the central neighborhoods because it would serve to connect those two state highways. That was a concept of connectivity that seemed to serve Planning philosophy in the City at that time. It seemed like madness to a lot of people in the central city. I think the City Council decision resulted in a very sound policy of protecting the central neighborhoods of Fayetteville. I think the vacation of this easement as a throughway, that is as a full width roadway would continue that policy and would be in keeping with that policy. So I want to encourage you to consider this vacation. Not the vacation of the utility right-of-way that is needed for the water or the sewer department or of a trail, a walking trail and a bicycle trail but vacation of a roadway. Thanks. Anthes: Thank you, Ms Jansma. Would any other member of the public like to speak? Mr. Wade? Wade: Good evening. I'm Lynn Wade. I reside at 100 N Sand Ave. We are the owners of something less than 10 acres located north and east of the Walker Cemetery and west of the City water tanks. The unopened right-of-way of Fletcher crosses the northeast portion of our property. That right of way was acquired in 1974 and since then we have looked to this as the access to this property. At the present time the only limited access is over a private drive that enters between the Confederate Cemetery and the Walker Cemetery. Any future infill, I think this is still zoned R-2 or whatever the current designation might be, would certainly be aided by more than one entry for emergency vehicles. We would ask that the right-of-way of Fletcher as unconstructed be retained from its present constructed sites south to our property. I am not asking that it be extended south on beyond our property. Thank you very much. Planning Commission February 12, 2007 Page 47 of 62 Anthes: Thank you, Mr. Wade. Would anybody else like to speak? Good evening. Floor: Hi, my name is Marsha Floor. I am actually here on behalf of my grandmother, Anna Jordan. She is 99 years old. She has owned property that is actually on 16 East and it's actually where the right-of-way is for Fletcher. Her home actually sits 6 to 8ft from where this right-of-way actually is. As a small child I helped my grandmother maintain this property. It was very grown up with sticker bushes and everything else. She has mowed this property and maintained this property for 53 years if I am not mistaken. She really doesn't want to see a walking trail. She really doesn't want to see a street. Her home is so close to the right-of-way of this property. I guess on my grandmother's behalf we would like to see the property just left as is. Earlier in the evening you guys were talking about the addition over on Morningside Dr. I don't know how often you people drive that road but unless some major highway construction is done it is not going to be a safe place to provide a walking tail from that property across the street. Across Highway 16 there or Huntsville Rd or whatever you want to call it. I guess it is Huntsville Rd. It is a very dangerous intersection there. I guess what I would like to petition is that the property be left as is. It is definitely not a great place for a street unless some major developments can be done for the street. And the walking trail I just think that.... Earlier, Ms Clark you mentioned that the neighbors, it is an older neighborhood. Like I said, my grandmother is 99 years old. Having people walk in her back door, because that is basically what they would be doing. Riding bikes in her backdoor. I think would scare her to a certain extent. Especially when it is 6ft from her backdoor. I think some consideration should be taken into the fact that she has maintained that property. She cleared the property. She keeps the property mowed every two weeks. It looks like a park there. And once you get up past her house the property is not maintained. I don't know how far up past her house it is not maintained, but she has maintained the property for 50 some -odd years. I guess my request is that she is 99 years old and I would just appreciate that the property be left as is for the time being. At least until she goes on. I just would hate for anything to interfere with her life as she has known it for 52 years. Thank you. Anthes: Thank you. Mitchell: Hi. I'm Greg Mitchell, 428 N Willow. I am speaking to you as a trail user. I am so excited about starting to use the trails more and more. A trail that goes nowhere doesn't do anybody much good. That just seems like such a critical... Matt said very important. I would say critical part of the trail network. Network is the word. If it is not a network then you might as well stop now as far as I am concerned. I have to agree with some of the other speakers that it doesn't especially appeal to me to have a road through there. But that is my main concern is that we do maintain a trail through there. So that I is my hope. Thank you. Anthes: Thank you, Mr. Mitchell. Would anybody else like to address this vacation request for Fletcher? Seeing none I will close the floor to public comment. I Planning Commission February 12, 2007 Page 48 of 62 guess the City is the applicant in this, so we can start our discussion. Graves: Madam Chair. Anthes: Yes. Commissioner Graves. Graves: In looking at this item it seems like the main justification or thrust behind the original proposal to vacate the right-of-way was that the original corporate purpose for the right-of-way being obtained was no longer there, that is to construct an extension of the street. However there still exists some corporate purposed to retain the right-of-way to that strip of land. Although I think we could carve out some exceptions to retaining the rights to develop trails or for access for the water and sewer and still accomplish the vacation. We don't usually take vacations of City property lightly and given that there is a corporate purpose whether it was the one that was the original corporate purpose or not and given that the proposal was brought about because there was a feeling or sentiment at the time that there was no corporate purpose any more I am going to lean with staff on this and vote to recommend a denial of the vacation. Anthes: Thank you, Commissioner Graves. Are there further comments? Trumbo: Madam Chair? Anthes: Yes, Commissioner Trumbo. Graves: I want to echo an agreement with Commissioner Graves' comments. When we were talking about the development south of this that we just saw, the concept, is infill. This is an area with infill. We may need a road there someday. I wouldn't completely say no to that either. This is the area of town where we need to build. I am going to vote against the vacation request as well. I think we need it. Anthes: Thank you. Commissioner Ostner. Ostner: Madam Chair. Yes, ma'am. I will probably vote against this vacation request. Fire safety is one of my concerns. There is a new Fire Station not far from this and this connection could save lives on Mt Sequoyah. They could get up that hill without having to go all the way down to Willow and weave, stop signs, and steep grade, cars, people. We have heard from the Fire Department. I believe that the Chief just left. Three minutes is the difference between a burn that is out of control and "we can stop it". So that right there is enough for me. I would love to be able to tell the residents that this won't be a cut -through. I don't think it will be a cut -through. This is steep. This is not convenient. It is faster to zoom up to 71 and go north on 45, and vice versa. When you have to weave and stop and climb through that neighborhood, you do that once and then you say "man, forget it. I am going to say on 45, 71, Huntsville." I believe. I don't think this would promote cut -through traffic. I think the people on the mountain would benefit. I Planning Commission February 12, 2007 Page 49 of 62 really do. They could come down to this terrific mixed-use development. I don't know if you all where in the room when we looked at it. Just south of here. I think the perception is backwards right now. I really think this could be a great connection for the people on the mountain. I don't think it should be perceived as all those people are going to cut through here. I don't think it will be convenient and convenience is what cut -through is all about. Thank you. Anthes: Thank you, Commissioner Ostner. Clark: Madam Chair. Anthes: Commissioner Clark. Clark: I have a question for Matt. If we retain this right-of-way and it does become a trail is there going to be any type of screening that you do to separate the trail from any type of residential? Mihalevich: Absolutely. Yeah. We do that. A lot of times we can work out an agreement where we build a fence or even vegetation with property owners that are concerned about people... I mean, security fences are common. Clark: In this trail development, if it is going to happen it is not going to happen immediately or in the near future? Or...? Mihalevich: Yeah. I don't see it in the near future. We are working on Scull Creek Trail primarily. Potentially a soft surface nature trail could be built with relative ease if there was a big push for that or more of a volunteer effort or something like that just to make that connection. Motion: Clark: Because I think a soft surface trail would be absolutely appropriate. But I also understand the rights of the homeowners that are near that trail. If we do have a policy that will help separate and protect them from intrusion from anybody on the trail I think that is a very worth while objective. I am kind of amused. The City is our applicant but Planning is recommending that we not do what the applicant wants us to do? I love this town! I think there is a use for this right-of- way. We paid for it. It's there. It is not going to be developed any time soon. I am not going to get into the debate about street over now the north/south over Sequoyah but I think that is a discussion that we are going to have eventually. I do think the trail is a very worthwhile objective even though it will be a good challenge to get people to cross that street. Huntsville is dangerous. I travel it every day 14 and 15 times. But I think you can do it. Matt is very inventive as are the folks in the Trails. I will move that we deny vacation of 07-2422 as recommended by staff. Planning Commission February 12, 2007 Page 50 of 62 Trumbo: Second. Anthes: I have a motion to forward with a recommendation for denial. That motion is by Commissioner Clark with a second by Commissioner Trumbo. Are there further comments? Myres: Yes. Anthes: Commissioner Myers. Myres: Matt? Mihalevich: Yes. Myres: I understand that the existing right-of-way is 80ft wide. A typical trail, even if it is a bike and walking trail would be how wide? Mihalevich: Our typical is 12ft wide for a paved trail. Now this would be sort of a different situation I think on this trail. Myres: Right. Ok. So we are talking about.... What is the even percentage of that? It is 115 of the actual width that would be taken up with a trail. Anthes: Water and Sewer needs to retain 60ft of easement. Myres: Right, but the actual useable part of it would be 12 to 15ft probably which is a whole different proposition than a street. I see the impact of a trail even if it were a paved trail to be much less of an impact than a paved street with two lanes. So 1 don't have any reservations in supporting the denial of this vacation. Anthes: Thank you Commissioner Myers. Commissioner Ostner? Ostner: A point of order. This Item gets forwarded even if it is denied? Pate: The City Council actually recommended that this come back before you so we will forward this on the City Council for a final decision. Ostner: Ok. Anthes: It's kind of a strange one in that it went to them first and they sent it back to go through Utilities and Planning Commission. Ostner: The odd thing about that is, and maybe it goes without saying, the Councilman who brought this forward is no longer an Alderman. If an applicant isn't here, if the staff or the applicant, the staff would have formulated it so that they wouldn't recommend denial of their own item. It is just very awkward and I would hope Planning Commission February 12, 2007 Page 51 of 62 that this happens differently next time. I am not sure how. But if an Alderman wants to come through proper channels, I wish he were here giving his pitch instead of us all looking at each other. Pate: I think that essentially the City Council is your applicant. They have just asked you for recommendations. So that is really what they are seeking. Your input and guidance and whatever you recommend they will take that into consideration. Ostner: I understand. Anthes: Thank you, Mr. Ostner. I just had a couple of questions. Unfortunately one of them may be legal. Has staff researched, or do you know what consideration is given to property owners who maintain City right-of-ways? Pate: I am not aware of that, no. In most cases property owners do maintain their City right-of-way. Part of your front yard, by ordinance, is City right-of-way and you are required to maintain that. In this case it sounds like it is more the side yard or portion of the yard that has been maintained even before it was City right-of-way and purchased for that reason. So I am not exactly sure what the ramifications of that are. Anthes: That is what I was trying to find an equivalent for and I just keep thinking of the space between your curb and wherever your real property line is. Each homeowner maintains all the way out to the street even though that is City right- of-way. That seems to be a pretty regular occurrance and the City is allowed to take that at any time or dig it up and put in their sewer line or whatever it is they want to do. I would assume that if it was decided by Council that a trail would go through this easement that the alignment could be adjusted to deal with the topography of the site and existing structures and that you would tend to locate that trail as far away from existing homes as possible. Is that the case? Mihalevich: Yeah. If there was a flexibility with the adjacent property owners. I know there is interest with one of them, a larger one, at looking at maybe just not taking that route with the trail but following the contours more closely. We could get a less steep trial and just less impact on the hillside potentially. So yeah, those options will all be there still I would think with this. We could just do that as an easement, a mulled -use trail easement or something like that. Anthes: And as I understand it, the easement is currently 80ft wide. Or the right-of-way is 8011 wide? Pate: In most cases. It does narrow down to 60ft up closer to Center. Anthes: And 6011 is the minimum that Mr. Jurgens needs for his sewer line? Is that correct? Planning Commission February 12, 2007 Page 52 of 62 Pate: Yes. Anthes: And, obviously, it is possible for the trail and the utilities to coexist in the same easement. So really it is a 20ft difference that we would be talking about if there is any compromise between what is absolutely needed at this point in this vacation request. Pate: Right. And I think that part of that is simply because of trying to have the flexibility to construct this street as best as possible. As less steep as possible. So that 80ft gives a little flexibility. And in the staff report, if you read the agreement, there was even conditional contractual language that said we might even shift this even more at some point if the street is constructed to help lessen the impact on Mt Sequoyah. As Suzanne mentioned in her report, those are all good things and supported by even the policies we have adopted as of last year in the hillside (unclear). Anthes: And there was a comment made, I believe, at agenda session about whether or not this trail appeared on the bond issue. There are a lot of trails that are in our FATT plan that don't. FATT, isn't it? Mihalevich: Yeah, it is a FATT plan. Anthes: I love that. Our exercise areas, our trails, are part of the "FATT Plan". (Laughing). There are a lot of easements and projected locations for trails that are in that plan. Far more so than are in the Bond issue. Mihalevich: That is correct. We focused them on the near term project for the Bond. Primarily Scull Creek Trail. Anthes: Okay. Because of the time of year it is, obviously we didn't take a hike on agenda session and walk this easement. Has staff evaluated constructability of a road in this area? Pate: Not to a great degree. I know Matt has been out on the site to walk to see the constructability of a trail. That was asked at the City Council as well. I don't think we have actually gone out and looked to that degree. Again, part of the reason we didn't find there was justification at this time to vacate that street is that there is simply no development proposal. There is no pending pressure to develop that street. It may never happen. Obviously it has sat here as right-of- way since 1974. It may continue to do so. In our opinion, as Mr. Graves has mentioned, a corporate purpose may still be there. Just trying to hash it out right now is a little more difficult. Anthes: I think that is where I am headed to with it. I thought about talking about what the alternate configurations could be, but at this point there is not particular pressure for that. I think it is something that we can't really know tonight, but we Planning Commission February 12, 2007 Page 53 of 62 can know that there is a purpose that exists. And that is for sure that the water line needs to be there and that waterline requires 60ft of this 80ft easement. And therefore I am going to vote in support of the motion. Is there further discussion? Will you call the roll? Roll Call: The motion to deny VAC 07-2422 carries with a vote 8-0-0. Clark: I have to recuse on the last item, unfortunately, and leave you. RZN 07-2436: (E.W. JONES, 213): Submitted by HUGH JARRATT & LINDSEY MANAGEMENT for property located at THE NORTHWEST CORNER OF N. MARTIN AVENUE AND E. ALICE STREET, EAST OF 71B ON THE SOUTH SIDE OF MASONIC DRIVE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 1.24 acres. The request is to rezone the property to C-2, Thoroughfare Commercial. Anthes: Item 13 is Rezoning request 07-2436, E.W. Jones. It looks like Suzanne is giving Planning Commission February 12, 2007 Page 54 of 62 the report. Morgan: This property is located on the corner of B East of College Ave on the south side of Masonic Dr. The north side of the property fronts Masonic Dr and the southeast corner of the property is located at the corner of Martin Av and Alice St within the Maplecrest subdivision. It contains approximately 1.24 acres. It is adjacent to several different land uses. Commercial directly to the west with a Nissan car dealership and residential to the east. The applicant requests to rezone the property from RSF-4 to C-2. The applicant has indicated to staff that they anticipate the property will be used to expand the Nissan car lot into this property. Currently the property is utilized for one single-family dwelling. Staff recommends denial of the rezoning based on findings that are discussed in the staff report. While a use more intense than a single-family residential may be appropriate in this area which on the City Plan 2025 future land use map is designated as an Urban Center area, staff does not find in favor of rezoning this site to C-2 thoroughfare/commercial. The proposed zoning would not be compatible with the adjacent zoning and established single-family residential neighborhood land uses to the east and south. Furthermore, expanding potential for strip development to this property staff finds that it will disrupt the residential type of neighborhood. In the Urban Center area it is identified as more of a mixed use which would allow for things more than single-family or a difference from just commercial. Therefore, although again as I stated, it may be more appropriate to have something other than single-family staff does not recommend increasing the C-2 and heavy commercial are into this more residential type neighborhood. Again, we are recommending a denial of this proposal. Anthes: Thank you, Ms Morgan. Would any member of the public like to address this rezoning request? Seeing none I will close the floor to public comment and ask for the applicant's presentation. Jarratt: Good evening. My name is Hugh Jarratt. Just to clear up a deal on this agenda it says that this is submitted by me and Lindsey Management. I do work for Lindsey Management and Mr. McReynolds who is the daughter of the owner has worked for Mr. Lindsey for a long time. He asked me to help with this but the company has no interest in this piece of property. I have something I would like to give you real quick. I'll just start. Here it is. Anthes: If you would pass it to Mr. Pate. Jarratt: The subject property, I have a picture here, is owned by Ms McReynolds's mother is that entire piece that I have outlined up on the screen. However, this portion that is highlighted there, that is platted in the Maplecrest subdivision. The Maplecrest attached to the handout I just gave you are the restrictive covenants for Maplecrest. Maplecrest prevents any of the lots there for being used for anything but single-family detached housing. The way those are set up are every ten years it comes up for a vote. So if we even wanted to try to bust the covenants Planning Commission February 12, 2007 Page 55 of 62 here we can't do it except for every ten years. If you look at the very back page it was enacted in 55 which means the ten year time was `05. It is going to be eight years until if somebody wanted to try to bust the covenants they could do it. There are 75 houses in the subdivision so you would have to get 37 or 38 votes to do it. That is going to wait for eight years. That is a 100ft lot there. Most of the other lots in the neighborhood are 75ft so there is going to be a bigger buffer between the proposed commercial as it stands now than the lots themselves. So this would be bigger... Anthes: Mr. Jarratt, can I just remind you that subdivision covenants are not binding to this body. They are binding between property owners. So a rezoning request to us needs to be reviewed as a rezoning request for the entire parcel and the covenants are a separate issue. Jarratt: Yes ma'am. That parcel I was showing you is not part of our request. That is actually separate and it not part of the rezoning request. I just wanted to show you that it is owned by Ms McRennolds and no existing single-family is going to have commercial jump right next to it. There is going to be commercial, if it gets past, before the single-family goes there. This is a (unclear) plat survey that shows where the line through Maplecrest goes. It is right next to the existing single-family house so again it shows there is 100ft between the proposed commercial and the single-family. There is also a right-of-way that is shown on the bottom right hand corner of the plat. We are in process of trying to vacate that right-of-way. We would ask that anything that is forwarded to the City Council be made subject to use vacating that right-of-way within a certain amount of time. We just couldn't get the legal description for the parcel. We couldn't get that going to make an application for today. But we are ready to make our application to vacate that right-of-way. There are no utilities and there are no other real uses for that street. The utility companies wouldn't have an interest there. Again, that is a closer look at how the lot is actually laid out. This is a current zoning map as it stands now. Where C-2 comes up, the portion we are talking about is the residential that kind of sticks out by itself. The C-2, that is Athletic World Advertising that is to the south of that property. It comes up. There is the Nissan dealer that is our intended buyer. We have no real estate contract together but they are our intended buyer. That letter there shows that they have interest in purchasing the property. We have C-2 again on the north and there is a RO zoned building. However, if you are familiar with the site it is more of a C-2 building. They just have a building and stuck it up to the parking lot so really in effect you have C-2 along three sides of the property. We have met the two most impacted neighbors. We have actually met with them. We had a public meeting and invited everybody within the notification area. The gentleman that lives to the south of the property right behind Athletic World below the easement is Jerry (name). We met with him. He came to our public meeting. He had no problem with what we are looking to do here. The people who live directly east of the property that would be next to the remaining lot... They were actually here this afternoon. They didn't come to our meeting. They didn't get notice in time. But Planning Commission February 12, 2007 Page 56 of 62 I spoke to them outside. Again, they had no problem with what we are intending to do. So none of the neighbors have a problem with the plans we have proposed for this area. I just took some pictures of what is to the north and the south of our property. The pictures to the left are to the north. That is what is zoned R -O but in my opinion that is more of a C-2 type of building. So it is not like we are coming up and jumping into the middle of a neighborhood. Again, this is Athletic World Advertising to the right. That is directly south of use. That is taken at the corner of our property back behind Athletic World and that is a picture of the front of their building, the commercial to the south. This is the existing city wide zoning map of Fayetteville. The staff has indicated that they have a problem with the commercial bumping right next to a single-family. However, if you look at the right side of College nearly down the entire length commercial does abut right next to single-family. So it is not like it is going to be any different than most of College. And again we are not going to be jumping right next to an exiting home where suddenly if our wishes are made somebody has a car lot right in their backyard. If what we are proposing goes through there is going to be a car lot and then a single-family home and then the existing single family. So this would be, in my opinion, a better buffer than an office or a multi -family or whatever you could put there. A single-family home would probably be a better buffer than anything you could come up with other than a vacant lot itself. This is how the lot is laid out with the City Plan 2025. It actually is exactly what we intend on doing with it. The purple comes back out and follows are parcel that we are seeking to get rezoned. Really as it stands now the logical extension of the commercial would go straight up the line behind Athletic World Advertising straight to Masonic. We are talking about a 40ft wide strip that you see come back to the east between the residential. That is the only real issue we have that keeps zoning from being logical and just shooting a straight line up to Masonic. That is just how the parcel lines meet up right now. It makes sense that that strip as it is planned in 2025 goes to a little bit heavier use. Tonight when y'all have been addressing other applications y'all have said infill several times. What we are basically doing here with the Urban Center is infill. The Urban Center indicates that Fayetteville is seeking to maintain a retail center and something that would draw retail people into the community. Well what is a car dealer? It is a retailer. They can't put their products behind a store window but they are a retailer. To my knowledge I am not sure if there is one in Bentonville, but they are the only Nissan dealer that is anyone around. They are landlocked now. They have a deal with the guy across the street to park across the street. This is just a logical extension of their business to keep them growing. If they can't grow they are going to have to go somewhere else. That is going to be more suburban sprawl and they are going to go somewhere with a bigger lot. They want to stay here. They want to use the property that is currently available. It seems like the logical extension of an existing business as it stands now. This is the City wide, the Future Land Use Plan. Again it shows the parcel that we are seeking to rezone as Urban Center. Again, if you look at the City if you are going to have a car dealer where are they going to go? They are not going to go in the blue. That is the neighborhood commercial. That is the less intense zone. The purple, as the Planning Commission February 12, 2007 Page 57 of 62 City Plan says, is the most intense zone that they have. It is seeking to be a retail center and that is basically what we are seeking to do here. We are talking about basically 1.2 acres that is a logical extension of an existing business which would allow them to stay put and grow with Fayetteville. Again this is just out of the City Plan 2025. It indicates that Urban Center areas recognize conventional strip development. Now, I know that staff does not want to see a car lot there. Andrew Garner said that they don't think a car lot would fit in Urban Center. Well again with the earlier map, where are you going to put a retailer like a car lot? Is anybody going to be allowed to do anything other than a mixed use store on the bottom apartment up top development in Urban Center? I mean, they made provisions for special situations such as this. They recognize that some things are going to have to break the mold of store on the bottom apartment up top, the thing that the City staff are really pushing for hard now. But things like car dealers do not fit in that. You can't put cars below apartments. So the City Plan really took this into account. We are in Urban Center. This is the most intense zone as the City Plan says. The entire strip of C-2 that exists now, in the Future Land Use Plan is Urban Center. So basically you have taken Urban Center and replaced C-2 with it. Again in the plan it shows this parcel that we are seeking tonight as urban center. We would ask for you to vote favorably on our request. The neighbors have. Are there any questions that you have? Anthes: Thank you, Mr. Jarratt. I think we will get back with you. Jarratt: Alright. Thank you. Anthes: Commissioners? Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Graves; Ordinarily one of the first things I do whenever I look at a rezoning request is what's around it. This one obviously has some C-2 around it but we have been pretty consistent in trying to keep heavier commercial uses from encroaching into existing neighborhoods on what are considered to be kind of side streets instead of out on the main thoroughfares. You've got C-2 that borders this piece of property but it is primarily out on College Ave or 71B. What is it down there? School St? I am not sure what it is that far south. Itis 71. There is also not a guarantee that this will be a (tape flip)... And that is the intent. But C-2 is C-2 and anything that is allowed in C-2 can be built there if it is rezoned at that intensity. For those reasons and for the other reasons stated by staff in their report I am going to vote to deny this, or whatever the motion is. I won't be in favor of rezoning this piece of property to C-2. Anthes: Thank you, Commissioner Graves. Commissioner Ostner? Planning Commission February 12, 2007 Page 58 of 62 Ostner: I would agree with Commissioner Graves. The sort of domino effect can happen along these neighborhoods. I understand that this is an expansion of a car lot. I would not view a car lot as development. It is really a temporary. In the world of development it is pennies. It could have a building on in next week. With all due respect it is a temporary development. A car lot is a prime place for a building and I am not in favor of handing the development rights to this piece of property to increase it with what C-2 allows. Pate: Madam Chair? Anthes: Yes. Pate: Just for the record so that Mr. Hudson does know, did you all get a copy of the public opposition to this permit? Anthes: Yes. We had on our desk when we got here tonight a letter from Jacob Hudson. He has identified himself as a resident and homeowner in Summerhill subdivision which is nearby. His concerns are that.... I don't know if you have received a copy, but we can get you one. He understands the assumption to expand the Nissan dealership onto the property, but as Commissioner Graves and Ostner pointed out, the C-2 zoning has permitted uses that would be allowed by right if this were done. He has called out his concern for these; gas stations, adult live entertainment club and bar, liquor store, hotel/motel and amusement, and as conditional uses sexually oriented businesses, and outdoor music establishments. The first group, of course, would be by right with the rezoning. But anyway, you have a copy of that now. Jarratt: Yes, ma'am. Trumbo: Madam Chair. Anthes: Yes, Commissioner Trumbo. Trumbo: Question for staff. If this is not approved will they be allowed to come back through as a C-PZD within a year? Pate: Yes. You cannot apply for the same zoning within one year of that decision. But you could apply for any other zoning district. Trumbo: Which would allow a car dealership possibly? Pate: Certainly. Trumbo: I, too, have concerns with the flat out rezone this close to the existing neighborhoods there but I will possibly look at a C-PZD and probably be more favorable depending on the buildings and how they address the neighborhood and Planning Commission February 12, 2007 Page 59 of 62 the parking and all that. If a C-PZD, and just following Mr. Ostner's line of thought, if we approve a C-PZD it's build and it 25 years, let's say, it is ready for redevelopment. What is the zoning if that use goes away? Does it go back to....? Pate: No. It retains its zoning for perpetuity. So if they wanted to redevelop they would need to come back and rezone it to whatever they would need to redevelop it as. Trumbo: So it would stay commercial even as a C-PZD? Pate: It would be limited to the development plan that they had. So let's say they wanted to do something.... Trumbo: Right Pate: It would fit under how it is zoned. If they could come back as a C -I or a C-2 or whatever it is in 25 years. Or another planned zoning district. It would take another rezoning on the property. Trumbo: Ok. I am just curious about that. Harris: Madam Chair? Anthes: Yes, Commissioner Harris. Harris: I appreciate Commissioner Ostner's language on this about consistency. I think that is extremely important. I voted recently for Ruskin Heights even in the face of quite a bit of opposition by the neighborhood and fellow commissioners because I believe that it is consistent with City Plan 2025 and our Land Use Map. I do not think this rezoning, because it does confer development rights into perpetuity, I do not think it is consistent. I think it is inconsistent with City Plan 2025 and for that reason I would not be able to support it at this time. Anthes: Thank you, Commissioner Harris. Are there other comments? Trumbo: Yeah. Madam Chair, one question. According to 2025 where would we recommend car lots to be? Pate: Typically you find those types of uses in thoroughfare/commercial environments which we have quite a few of, obviously. That is probably the most suitable location. It tends to be more of a regional commercial activity. A car dealership tends to be located near by-passes and areas where there are a lot of access, ingress and egress opportunities. As you all know, the one that recently moved.... Well, not recently I guess. In early 2000 out toward the bypass area. So I think those would be potential locations for those types of activities. Planning Commission February 12, 2007 Page 60 of 62 Trumbo: Thank you. Anthes: I had a couple of comments. We toured this site at agenda, and what I was struck by is the visibility problem at the intersection of College and Masonic Dr. I appreciate what Mr. Jarra t showed with the purple lines and what we have planned to do and how to transition to those neighborhoods. I think what is different is that most of those properties and that C-2 property fronts College Ave not Masonic Dr or Alice Dr. That ingress and egress off of College is more easily managed, I think, than off of Masonic because of that problem with that visibility at that intersection. So I struggle with this a little bit actually because a car lot isn't going to provide the kind of traffic coming in and out on Masonic as even as something.... You know, often between residential and commercial uses we say, "well, gee, multi -family or some kind of transition zoning like that really makes a lot of sense. It is a good buffer and mediator between commercial and residential uses." but I would kind of hate to see a lot of people that want to pull out on College have to go to that intersection because I think it is really dangerous. So in some ways a car lot is a lesser impact even though the zoning is higher. I would follow maybe what Commissioner Trumbo is talking about in that the straight rezoning is problematic and that it may introduce an unwarranted amount of traffic onto Masonic that we can't handle well. I don't know, with redevelopment staff might recommend some sort of improvements to that intersection or something to handle that. But it is very difficult. We had a hard time seeing when we were pulling out of there. So perhaps a PZD where we could better understand the use and the traffic in that area would be appropriate. Obviously we have an existing business there. It has been there a long time, and I hate to lose those type of things out of hand if it can be accommodated in a way that would be amenable to the neighbors and would provide an adequate transition. But the straight rezoning is difficult. Myres: I agree. Anthes: Are there further comments? Yes, Commissioner Ostner. Ostner: Madam Chair. Jeremy, does R -O allow a car lot by conditional use? Pate: It would not. Ostner: Do any zoning districts? C-1 would allow a car lot wouldn't it? Pate: No, it won't. Ostner: Oh, it won't? Pate: I don't think it would. Ostner: Ok. Planning Commission February 12, 2007 Page 61 of 62 Myres: Even by conditional use? Pate: Under conditional use Unit 17 trades and services or automobile dealerships ..... not by conditional use in R -O or C-1. Myres: So C-2 is the only one. Graves: Madam Chair. Myres: So a C-PZD really might be the best choice. So, thank you. Graves: Madam Chair. Anthes: Yes, Commissioner Graves. Motion: Graves: I want to move that we forward with a recommendation for denial on the rezoning request 07-2436. Anthes: Motion to forward. Is there a second? Myres: Second. Anthes: We have a motion to forward with a recommendation to deny by Commissioner Graves with a second by Commissioner Myres. Is there further discussion? I guess I would just say to the applicant( if I am counting correctly) that I don't think that there is wholesale opposition to your application. I think we are just trying to be prudent in how we confer development rights. There may be an alternate route you could take and accomplish your project. Ok? Jarratt: I appreciate it. Pate: Just for the record, too these don't get forwarded automatically. So if it is denied you would have to appeal that to City Council. Anthes: That's right. Motion: Graves: I'll make a motion just to move to deny it. Anthes: Will you call the roll? Roll Call: The motion to deny RZN 07-2436 carries with a vote 7-0-1. Commissioner Planning Commission February 12, 2007 Page 62 of 62 Clark recused. Anthes: Thank you. Are there any announcements? We are adjourned. Oops! Sorry! Pate: We have a Subdivision Committee Thursday morning.