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HomeMy WebLinkAbout2008-09-08 MinutesPlanning Commission September 8, 2008 Page I of 18 MINUTES OF A MEETING OF THE PLANNING COMMISSION A regular meeting of the Fayetteville Planning Commission was held on September 8, 2008 at 5:30 p.m. in Room 219, City Administration Building in Fayetteville, Arkansas. ACTION TAKEN MINUTES: August 25, 2008 Approved Page 3 LSP 08-2991: (BRYAN REED, 569) Approved Page 3 ADM 08-3091: (COBBLESTONE CROSSING PPL) Approved Page 3 ADM 08-3092: (COBBLESTONE CROSSING FPL) Approved Page 3 PPL 08-3072: (TWIN CREEKS VILLAGE, 172) Approved Page 3 R-PZD 08-2898: (SOUTHPASS DEVELOPMENT, 632) Forwarded Page 4 ADM 08-3021: (UDC CHAPTER 157, NOTIFICATIONS) Forwarded Page 11 ADM 08-3094: (UDC CHAPTER 164.04, ANIMALS & FOWL) Forwarded Page 12 ADM 08-3054: (UDC CHAPTER 178, SIDEWALK CAFES & VENDORS) Forwarded Page 15 A DVD copy ofeach Planning Commission meeting is available for viewing in the Fayetteville Planning Division. Planning Commission September 8, 2008 Page 2 of 18 MEMBERS PRESENT Jill Anthes Lois Bryant James Graves Jeremy Kennedy Andy Lack Christine Myres Sean Trumbo Porter Winston STAFF PRESENT Jeremy Pate Andrew Garner Jesse Fulcher Dara Sanders Glenn Newman/Engineering CITY ATTORNEY: Kit Williams MEMBERS ABSENT Matthew Cabe STAFF ABSENT Planning Commission Chair Sean Trumbo called the meeting to order. Commissioner Trumbo requested for all cell phones to be turned off, and informed the audience that listening devices were available. Upon roll call, all members were present with the exception of Cabe (Commissioner Myres arrived after the consent agenda). Planning Commission September 8, 2008 Page 3 of 18 Consent: Approval of the minutes from the August 25, 2008 Planning Commission meeting. LSP 08-2991: Lot Split (BRYAN REED, 569): Submitted by DAVE BEVIS for property located at 4497 E. HUNTSVILLE ROAD. The property is zoned RSF-4, SINGLE FAMILY — 4 UNITS/ACRE and the Planning Area and contains approximately 5.70 acres. The request is to divide the subject property into two tracts of 0.60 and 5.08 acres. ADM 08-3091: (COBBLESTONE CROSSING PPL): Submitted by DAVE JORGENSEN for property located NORTHEAST OF CRYSTAL SPRINGS SUBDIVISION, EAST OF GYPSUM DRIVE. The property is zoned RSF-8, Residential Single Family 8 units/acre and RSF-4, Residential Single Family 4 units/acre and contains approximately 60.28 acres. The request is for a modification to the previously approved subdivision phasing for Cobblestone Crossing Preliminary Plat (PPL 07-2612). ADM 08-3092: (COBBLESTONE CROSSING FPL): Submitted by DAVE JORGENSEN for property located NORTHEAST OF CRYSTAL SPRINGS SUBDIVISION, EAST OF GYPSUM DRIVE. The property is zoned RSF-8, Residential Single Family 8 units/acre and RSF-4, Residential Single Family 4 units/acre and contains approximately 17.40 acres. The request is for a modification to the previously approved Cobblestone Crossing Phase I Final Plat (FPL 07-2683). PPL 08-3072: Preliminary Plat (TWIN CREEKS VILLAGE, 172): Submitted by MCCLELLAND CONSULTING ENGINEERS for property located at THE NE AND SE CORNER OF GREGG AVENUE AND VAN ASCHE DRIVE. The property is zoned C-1, NEIGHBORHOOD COMMERCIAL and contains approximately 20.71 acres. The request is for a commercial subdivision with 6 commercial lots. Motion: Commissioner Graves made a motion to approve the consent agenda. Commissioner Winston seconded the motion. Upon roll call the motion passed with a vote of 7-0-0. Commissioner Myres arrived. Planning Commission September 8, 2008 Page 4 of 18 Unfinished Business: R-PZD 08-2898: (SOUTHPASS DEVELOPMENT, 632): Submitted by APPIAN CENTER FOR DESIGN for property located WEST OF I-540 AND SOUTH OF HWY 62W AND NW OF CATO SPRINGS ROAD. The property is zoned R -A, RESIDENTIAL AGRICULTURAL and contains approximately 910.36 acres. The request is for Zoning and Land Use approval for a Residential Planned Zoning District with 809 single family lots, 2,881 multi -family units, 630 condominium lofts, 344,000 square feet of non-residential space, 240 acres of preserved open space, and a 200+ acre regional park. Andrew Garner, Senior Planner, gave the staff report and discussed information presented since the last meeting, specifically traffic, potential future local street connections, etc. He recommended forwarding the Southpass PZD to City Council with a recommendation of approval, based on findings within the staff report, and with conditions as listed in the staff report. He made a revision to strike the last sentence of condition #2 and to add language under condition 4G that "Future development shall be reviewed for compliance with the access management ordinances of the City of Fayetteville". He discussed conditions #5 and 6 (Master Street Plan Amendments to Shiloh and Cato Springs). He also discussed that the buffer adjacent to offsite properties, Condition #14, has been incorporated into site plans. He also called attention to Condition # 19, view protection, noting that staff is recommending some additional design standards to preserve scenic views. Jeremy Pate, Director of Current Planning, discussed supplemental materials and maps that were included in the Planning Commission packets. Austin Rowser, applicant, stated he was the design engineer for the project. He discussed that it has been stated by some in previous planning commission meetings that this is a suburban sprawl project and not compliant with City Plan 2025. However, this site and the area are shown as a Future Growth Area on the Sector Map on the City Plan 2025. The Future Land Use Map also from City Plan 2025 shows this area as City Neighborhood, Residential Neighborhood, Civic/Open Space, and Natural Areas. We've attempted to conform to the goals of the Plan, stay consistent with that throughout the site. We heard from Parks Department at the last meeting that this site was chosen for a major regional park, mainly because of its easy access to I-540 ramps. He discussed traffic generation of Southpass by phase and the total for each phase, as estimated by the traffic engineering through fall build -out. There are three primary routes out of site: Cato north, Cato south, and future Shiloh Road extension. He discussed that access to I-540 and Fulbright Expressway are provided by right-hand turning movements. He discussed the vehicle capacity on Cato and subsequent reduction in traffic when Shiloh is opened. He understands that the impact from traffic is real, and the improvements are real and will be sufficient. Richard Alexander, applicant, stated he would like to address something Commissioner Graves mentioned about the size of the property increasing from that included in the original contract. He discussed that the selection process for this site began by the City in 2002. This has always been a cityproject. The Cummings family would not sell just 200 acres, only 800 acres. City sent out an RFP for a private developer to purchase the property and give the city 200 acres, a $10 million gift. In order to make the project work with the 800 acres, the developer purchased an additional 83 acres Planning Commission September 8, 2008 Page 5 of 18 to accommodate the major elements of the park, into the center of the development. This allowed development to occur not on the hillsides. Twenty-five acres were also available on Kessler Mountain Road and have been included in the project. That's where the extra 100 acres came from. When you take out the 33 acres of landfill and 10 acres of water tank, the total project is 860 acres. By doing this, we were able to not disturb the majority of greenspace. Total undisturbed area (by development) is 53%, or 482 acres. Most of the area of the project is parks and greenspace. The driving force for most of the development was siting the park, not vice versa. The master plan design was then wrapped around the park. The location of the park was determined appropriate by the Parks staff and the Parks and Recreation Advisory Board. Public Comment: Maryann Connetka, citizen, stated she was a Fayetteville resident and has spoken before, but has come up with some other reasons to delay this project. She asked about sprawl and discussed vacancies of housing in Northwest Arkansas. She also wanted to refer to an article in the NWA Times, where the City Attorney Kit Williams discussed that it is not fair to compare the Renaissance Building to Southpass. I did not know it was the City Attorney's job to promote developers. Barbara Moreman, citizen, stated she brought a letter for the Planning Commission to read. She is in direct impact path to the north of Southpass. Why has an informal environmental study of the land in question not been completed? She discussed potential impacts of Southpass including access, quality of life, and environmental impacts. She read from a landfill study (1996) that there were impacts to local water quality. No one has said anything about the landfill until someone wants to make money on it. I feel it has been dealt with irresponsibly. There has been no formal needs study. I realize that one is not required. There has been no complete economic analysis. There is no signed cost share agreement between the City and the developers. There is no statement of what the whole cost of project is going to be. Taxpayers need to know what our burden is going to be, clearly defined. I also feel there are some exceptions that have been made for proponents of this project. State legislation has been passed to exempt responsibility for the landfill. The requirements for PZD development in the Hillside (Hilltop Overlay) district have been or reduced or exempted. A PZD maybe approved with less % of undisturbed acres. Instead of lighter regulations for a project of this size, the restrictions should be tighter. I don't think you have studies in hand for his project, you should table or deny the project. Commissioner Trumbo asked that comments be directed to the project. We, as a Planning Commission, cannot consider who the developer is, what projects they have done, how many houses are empty in the City. We are bound by the criteria we have to review. Connetka asked who will review that? I have nothing further. No more public comment was received. Commissioner Trumbo asked City Attorney to discuss the landfill again. Kit Williams, City Attorney, discussed landfill closure, the post -closure trust fund, and city liability. The City now owns landfill; which has already been decided by City Council. I hope I'm not Planning Commission September 8, 2008 Page 6 of 18 viewed as a proponent of the developers. The UDC is the language we use to consider a project. A developer, good or bad, cannot be considered in the context of the review of a development application. Our code does not allow the performance of a developer to be considered, in favor or against. Commissioner Graves stated he had a couple of questions regarding the definition of urban sprawl, development of landfill, environmental or economic analysis. Pate stated that urban sprawl was defined as unplanned growth at the edge of the city; he discussed the population of Fayetteville will increase by 40,000 by the year 2025. This is a greenfield development, however it meets all the goals of City Plan 2025. The landfill is not in an active portion of the site and will likely be capped and used for passive recreation. There has not been an environmental or economic analysis of this project. He stated that this project has to meet the PZD ordinance, hillside ordinance and greenspace requirements. He discussed that much of the west side of the project will be in a conservation easement and/or used for passive recreation. He said that the methodology for economic analysis of large annexation was not agreed by council and therefore an analysis has not been conducted. Commissioner Anthes discussed the landfill. Are there any corrective measures that might be required, any idea of timeline for remediation? Williams stated there was no idea on the timeline at this time. Commissioner Anthes asked when the City Council sees this project, conceivably they could direct staff to go forward with remediation? Williams stated he was not sure who initiates that, City or State. It could work well with remediation when the initial development was occurring. Commissioner Anthes asked if any run-off will be present in the park from the landfill. Rowser described the drainage patterns, which shows that the drainage from the landfill does not go through the park. Commissioner Anthes asked if the drainage from the landfill will go into the Millrace portion of Southpass, which incorporates storm drainage as a water feature. Rowser stated that, yes, one of the drainages going through the landfill would be diverted into the Millrace. Commissioner Anthes asked about the developer's stance on the landfill. Alexander stated that he hopes the city and ADEQ will undertake whatever it takes to remediate, if anything. The City will deal directly with ADEQ. Commissioner Anthes stated that she hopes that with the development and the regional park, Planning Commission September 8, 2008 Page 7 of 18 everyone involved would begin putting pressure on state officials to deal with the landfill, in anticipation of the public coming here. Alexander stated he understands it is relatively benign. When we started this process, we made it clear that we would not be responsible for the landfill. Commissioner Anthes asked if the development team listed in the contract has changed. Alexander stated the development team has changed and it is now Hank Broyles, John Nock, and himself. Commissioner Anthes asked if the school district issues have been resolved. Alexander stated he hoped to have taxes generated from this go to the Fayetteville School District. They have concentrated most of development within Fayetteville School District. We can't control the school district issue as private developers. They hoped to have the City take the lead on that. Williams stated it was understood in the context of the contract that the City doesn't control where school district boundaries lie. He believes the City has suggested to the school districts that the area for this project be placed within the Fayetteville School District, and the City has now fulfilled that portion of the contract. That issue is in Greenland's court, and is their decision. The developers were aware that the City didn't control the school districts at the time that language was placed in the contract. Alexander stated he thought that was correct, and stated again that they designed the project for most of the millage to go to the City of Fayetteville. Williams stated his understanding was that any of the contingencies could be waived by the developer, as we don't control that. Commissioner Anthes asked what portions of the site the developer plans to go vertical with. Alexander discussed that they anticipated constructing Phase I, then seeing where it went from there. Commissioner Anthes discussed that landowners have the right to develop their property, and the developers have prior determination by the City Council for development on this site. Williams stated that was absolutely correct. City Council did know the general scope and location of the project. As you stated, property owners do have rights; they have to meet certain regulations, or the UDC, and this should be used in your consideration. City Council has approved the project in size and location, but did not determine that it was compliant with UDC. Commissioner Anthes asked that when this site was assigned a Growth Sector/City Neighborhood designation in City Plan 2025 — staff and City Council were anticipating the Southpass project, correct? Planning Commission September 8, 2008 Page 8 of 18 Pate discussed that yes, City Council had previously made a policy decision for the Southpass property on this site and staff reflected that decision in our recommendation with the City Plan 2025. Commissioner Myres asked about the 3 -lane and 5 -lane sections. Pate described the sections, transitions and the break to a rural section south of the site. Commissioner Lack stated the breakdown of traffic by phase was helpful. He does have an issue with condition #19, regarding view protection. He respects staff's viewpoint on this, but disagrees. I read this as protecting views of Old Main, scenic corridors from building mass and form. He is not comfortable with the restrictions in this condition. Motion: Commissioner Lack made a motion to strike condition #19. Commissioner Graves seconded the motion. Commissioner Anthes asked if staff could explain its position. Commissioner Pate discussed staff findings and the recommendation, and referred to scenic views on and offsite that would be protected by this condition. Commissioner Anthes asked the applicant if they were happy with condition #19. Alexander stated that if it makes you happy, we're happy. Commissioner Anthes stated that she does not find the condition overly restrictive. Commissioner Graves stated that the his only problem with the condition is a precedent. He is not sure what criteria to protect. It is too fuzzy for my taste, no criteria. Upon roll call the motion failed with a vote of 4-4-0, with Commissioners Bryant, Winston, Anthes, and Myres voting no. Commissioner Anthes discussed sports park lighting. She hopes that the park division will ensure that the park is sensitively lit due to its visible location and due to its proximity to surrounding development. Connie Edmonston discussed at the last meeting that earthwork may be done as in- kind for the $lmillion, but the contract adds $1 million in cash. Is that up for discussion? Williams stated it was more appropriate for City Council, it may be looked at then. Commissioner Trumbo asked to go through determinations. #1? No comment. #2? Commissioner Lack stated agreement with these conditions. Planning Commission September 8, 2008 Page 9 of 18 Commissioner Trumbo asked about #3, connectivity. Commissioner Anthes stated that because we will be able to review future development as a Large Scale Development or preliminary plat, she is comfortable with the condition as worded. The potential connectivity maps provided by staff do show potential for local roads that will ensure the connections can be made. Because I know other connections can be made, to north, east, and even Rupple Road, that helps me a lot. Would we at a future time be looking at a Master Street Plan amendment for Rupple Road? Pate stated not at this time, it would have to be looked at later. Commissioner Anthes stated she finds in favor of connectivity, with conditions as they read. Commissioner Graves stated he doesn't like depending on other jurisdictions such as Greenland for access. The thing that confuses me is the parking, and the fact that it will be reviewed in the future for connections and stub -outs. In general, this type of annexation and development is what the Planning Commission asks for, instead of small pieces one after another, we can see the development as a whole and can plan accordingly if we know what the input is and can plan for it. He is also in support of #3. Commissioner Trumbo asked if there are any other comments on any other conditions. Commissioner Anthes stated she wanted to reiterate what she would be looking for with the Large Scale Development: 1) additional street connections; 2) the man through street route identified; and 3) encourage that scenic overlooks be identified. I am still concerned about the costs of the infrastructure necessary for the park. This development will require everyone to drive to a regional park. This is a decision that has been made, but I hope our neighborhood parks will remain a priority in our parks system, within a walkable distance of homes. Commissioner Myres stated it was typical to give a reason why not supporting a project, but I can't offer a new one. Partly because of the transportation issue, it bothers me a lot, and the centralization of parks. I can't think of any reason legally I can't support it, but I can't in good conscience vote yes. Motion: Commissioner Graves made a motion to forward the request to City Council with a recommendation for approval, with conditions as listed. Commissioner Lack seconded the motion. Commissioner Anthes stated that she struggled with the scale of this project. I got to thinking about it, and realized that when our City decided to move the Boys and Girls Club to the west side of town, development was driven to the area. The resulting pattern of acre upon acre of RSF-4, cul-de-sac development and strip commercial — often in floodplain areas — is relatively unsuccessful in building community and is unsustainable. While I have publicly questioned the idea of building the equivalent of a small city that empties onto only one major roadway, I also acknowledge that planned and managed growth in compliance with PZD criteria, City Plan 2025, Planning Commission September 8, 2008 Page 10 of 18 the future land use map, the HHOD, and the UDC is preferable to blanketing vast amounts of land with a monotony of low-density, single -use, residential development with strip malls along the commercial corridors. While the size of this project is overwhelming, the land does carry development rights. By planning 910 acres are at once, we are able to conserve 53 percent of that land in parkland and open space — which goes a long way towards our goal of creating an enduring green network. This is not possible when developing 20 or 40 acres at a time. Planning on this scale allows for better hillside preservation as well. For these reasons and others, I will vote to support the project. Upon roll call the motion passed with a vote of 7-1-0, with Commissioner Myres voting no. Planning Commission September 8, 2008 Page 11 of 18 ADM 08-3021: (UDC CHAPTER 157, NOTIFICATIONS): Submitted by Planning Staff, an amendment to the Unified Development Code, Chapter 157, Notification, to create consistency in City and applicant notification requirements for all projects, and proposing several amendments. Jeremy Pate, Director of Current Planning, gave the staff report. Planning Commission meetings require public notification for certain development items. For subdivision committee (SC) and planning commission (PC) meetings, some items require 7 days, some 10, some 15, etc. We are trying to simplify this and create the same time frame, 7 days prior to SC, 14 days prior to PC, which is the minimum timeframe. Three types of notification are required in the current ordinance: (1) written notification (project description, date and time of the meeting, contact info); (2) posted notification (red sign placed near the project), and (3) published notification (only the City publishes in the newspaper). The goal is to make notification requirements more consistent. The biggest change in the ordinance is that staff is proposing the applicant post their own signs instead of city staff. This change will save the city time and money. The applicant will pick up the sign with their revision submittal, post it on site, take a photograph, and sign a certificate of posting. Staff may perform spot checks. Another thing we have done is in the UDC chapter for Notifications, there was a section about side setbacks that had no place there; it has been removed and added to chapter 164 as appropriate. Commissioner Trumbo invited public comment. No public comment was received. Commissioner Anthes asked about 157. 10, Fire Protection Code, about notifications for blasting. The Code currently requires applicants to notify residential property owners located within 200 yards of the site when for applying for a blasting permit, but does this mean they are not required to notify commercial property owners? Pate stated that since Planning does not use the Fire Prevention Code, they have not proposed to alter it. Motion: Commissioner Anthes made a motion to forward the request to City Council with a recommendation for approval. Commissioner Winston seconded the motion. Upon roll call the motion passed with a vote of 8-0-0. Planning Commission September 8, 2008 Page 12 of 18 ADM 08-3094: (UDC CHAPTER 164.04, ANIMALS & FOWL): Submitted by Planning Staff, a request to amend Chapter 164 of the UDC, Unified Development Code, Animals & Fowl. The proposed amendment would permit 4 hens to be kept within residential districts, subject to several restrictions to achieve compatibility with adjacent land uses. Jeremy Pate, Director of Current Planning, gave the staff report. The proposed amendment for consideration was requested by a City Council member, to address a citizen's request. Currently the City's zoning regulations do not permit any type of barnyard/agricultural animals within residential districts. These determinations have occasionally been tested, and interpreted consistently. The reason for the regulation is most likely associated with nuisances that come about from intensive farm uses: odor, noise, and sanitary issues. Staff has discussed potential issues with Jill Hatfield from the Animal Services Division and also did research with other cities with regard to allowing chickens within their city limits. There are many across-the-board requirements that other cities have that we are proposing: no roosters; a maximum number of hens, which is often based on lot area; we have decided on four hens maximum. In addition most cities have requirements for enclosures, which we have decided must be above the ground, kept sanitary, and that Animal Services could inspect. Another concern was that we wanted to limit this to single-family residences, despite the zoning. This will potentially allow chickens to be kept in multi -family zoning districts, as long as it is single family home that occupies the property. Another stipulation we are proposing is that the hens must be kept in the enclosure if the owner is not present, but they may be allowed out so long as they are kept within a fenced back or side yard area. The enclosure must be kept 25 feet from any residential structure. This ordinance would not be applicable to R -A districts, where it is a use by right. Staff recommended approval of the request. Commissioner Trumbo opened the floor to public comment. Steve Nolan, 2154 Manor Dr., I have lived in Fayetteville since 1951. Three items I would like to consider tonight. First, everyone in Fayetteville has the potential of residing downwind or downhill from these birds. Twenty-five feet in new neighborhoods will place them directly on the property line. Second issue is health. Poultry have diseases that may be transmitted to humans. We would not be able to control these chickens like we control our dogs with vaccinations for rabies, etc. Third, due to the diversity of Fayetteville we feel that some might interpret this to mean that other domesticated animals could be raised on their property. I encourage you to vote no on this ordinance. No additional public comment was received. Commissioner Graves stated that one of his concerns was the selection of one species of animal and allowing that but not others. I can think of people who have pot bellied pigs as a pet kept in the house. Under this ordinance, it would not be allowed while chickens would be. Mr. Nolan is correct in the commercial farming aspect; there are a lot of commonly transmitted diseases, and nothing here that would include disease control for these types of animals within municipal limits. Why are we carving out an allowance for this one type of animal when it seems to be more appropriate as an agricultural use and left well enough alone? Planning Commission September 8, 2008 Page 13 of 18 Pate stated that the first reason they were raising the issue was because it was brought to their attention by a City Council member. Keeping chickens on residential property is also associated with the sustainability movement by allowing more direct access to food and resources. Many subdivision covenants would prohibit them. In my time with the city we have processed at least five or six violations for chickens, and the outcome is that they have always had to be removed. This ordinance wouldn't necessarily prohibit any other animal than we already do. Commissioner Graves stated that although he understands why the ordinance amendment is being proposed, he doesn't understand why we would make an exception for chickens and not ducks, pigs, or rabbits, which might also contribute to sustainable agriculture. Commissioner Trumbo stated he personally knows some current violators who use the chickens specifically for their eggs. He recognizes that it is catching on, it is grassroots, done cleanly, and there are only 3 or 4 birds at these places. He understands why people would want this passed. Commissioner Winston asked if the chickens are penned and somebody builds a house within 25 feet of the chicken pen, would the pen or the house need to be moved? Pate stated that the enclosure would be required to be moved. Commissioner Anthes asked whether it was the secure enclosure, or the fenced area the chickens could be let out to that would be the area that must be 25 feet from a structure. Pate stated it was the enclosure. Commissioner Anthes asked if staff would be amenable to a distance greater than 25 feet. Pate stated it was certainly up to the Commission for consideration. Kit Williams, City Attorney, stated that we might also look at the property line as opposed to the next structure to avoid what Mr. Nolan was talking about, where you could put it on the edge of the property as long as the house was 25 feet away. It might be that you would want to look at the property line as opposed to the residential structure, as it would ensure that it would be further away, because of the setbacks also. Commissioner Pate stated that the reason we did not go with the 25 feet from adjacent property lines is that on a 50 -foot wide lot it would essentially not be permitted, because you could not be 25 feet away from each property line. Commissioner Anthes stated she was thinking that the minimum distance from a property line should be five feet, which would prevent putting your coop directly on a property line. Motion: Planning Commission September 8, 2008 Page 14 of 18 Commissioner Anthes made a motion to forward the request to City Council with a recommendation for approval, changing line 3 on pg. 2 to read "the enclosure must be kept 40 feet from any residential structure, and must be contained within the parcel's buildable area— outside the setback line." Commissioner Myres seconded the motion. Commissioner Anthes stated the language needs to be placed in the chapter under #5, so in addition to altering the staff report, it would need to be rewritten in the language. Commissioner Kennedy stated he agrees with Commissioner Graves in that he does not understand why the amendment allows only chickens and not any other barnyard animals, and that he will vote no. Pate stated that the Planning Commission requires five votes to forward the amendment. Upon roll call the motion to forward the request passed with a vote of 6-2-0, with Commissioners Graves and Kennedy voting no. Planning Commission September 8, 2008 Page 15 of 18 ADM 08-3054: (UDC CHAPTER 178, SIDEWALK CAFES AND VENDORS): Submitted by Planning Staff, a request to amend Chapter 178 of the UDC, Unified Development Code, Sidewalk Cafes. The proposed amendment would adopt sidewalk vendor and outdoor mobile vendor regulations. Jeremy Pate, Director of Current Planning, gave the staff report. The request is to amend an ordinance governing Sidewalk Cafes. The existing ordinance, passed in 2006, was to encourage restaurants to feature sidewalk cafes, but unfortunately there have been no applications for that use. What we are doing to this ordinance is adding a section on sidewalk vendors, to be located on public property, and mobile vendors, to be located on private property. Outdoor mobile vendors on private property are already something we permit, but it is not yet in the Code. This would help establish a procedure for those applicants, pursuant to state law. § 178.03 Sidewalk Vendors is a proposal to allow an applicant to submit application materials to allow them to set up a cart or mobile device on a public sidewalk. There are specific regulations established so every applicant knows where they can be located, signage, etc. The permit would be required to be renewed each year. This way, if a vendor does not do business anymore it would open up the space for other vendors. There are several things listed in the ordinance that would be required for mobile vendors: proof of application of HMR tax to the City of Fayetteville, means to be conducting the business including site plan, drawing/specification of cart. Two specific locations in the City will be allowed by right: north and west sidewalks in front of the Walton Arts Center, and interior sidewalks in the downtown square area. Where there is a special events permit already established at any time in the future, that will supercede any permits established for these uses. Two products will be allowed to be sold: cut flowers and foodibeverages. The sidewalk must leave at least 5' clear for pedestrians, has to located in a permitted area at all times, be attended to at all times, cannot lead to or cause congestion of pedestrian traffic, cause undue noise or odors, cannot allow vocal hawking of wares, and must be a specific distance from a street intersection or adjacent businesses. This ordinance allows the use of public property for private use and so it is critical that whatever the Council adopts is very clear and can be upheld. Commissioner Trumbo opened the floor to public comment. James Schumate, Arkansas Department of Health, discussed four type of permits they issue: permit for food service for a fixed location, mobile food service permit that can operate anywhere the cities will allow them. They also have a pushcart permit limited to hotdogs and drinks, and a temporary permit where we allow a temporary 90 -day special event or celebration, and we work with the City on that one, the only place we allow it is on Dickson Street. We have a problem in Fayetteville with people opening restaurants and we don't know about it. Joseph Price, stated he was very much in favor of the proposal, but has concerns. He would like to have a mobile kitchen which would be larger than is allowable to fall under the part of the policy that would allow it to be on public property, so I would have to be on private property to have the business. However, the way it is stated, it has to be renewed every 90 days, and I can't understand the usefulness of forcing that type of business to move to a new location every 3 months whereas a pushcart vendor could be in the same spot for an entire year. These types of businesses often run with the idea that their clientele expects them to be in a specific location. It seems crazy to make Planning Commission September 8, 2008 Page 16 of 18 someone move; if my kitchen would be smaller than I would not have to move. I understand part of it has to do with compliance with State laws, and that the transient laws ask for a renewal of the permit every 90 days. Cody Yancey, stated he would want to operate a hot dog cart on Dickson Street and encourages changing the cut-off for hours of operation from 2AM to 3AM to allow for serving bartenders, etc. He would encourage the City to guide the applicant through the process since it is a lot to remember, in order to avoid future citations. No additional public comment was received. Pate discussed Price's questions. Mobile vendors on the street remove their business every day, and it is likely they will not be there every day, but it is not a permanent establishment. A lot of the contention to these types of ordinances across the country is from the business community, because of the costs involved with running a brick and mortar business and the potentially unfair advantage this gives to mobile businesses without these costs that offer a competitive product. Pate discussed the fact that permanent businesses must meet design standards, must install public improvements (landscaping, sidewalks, water/sewer), while a temporary business does not. Commissioner Trumbo asked about the designated areas in the city. Is there something that regulates the number of vendors who can be in these spaces? Pate stated that the space would be designated by staff, a site plan and spaces would be drawn and vendors could choose from those spaces. This would be based on how much sidewalk is available, plus the 40 sq. ft. for a space. There will be a limited number of spaces. Anywhere else in the city besides the two designated spaces would be a conditional use permit request. We felt these new permits would be appropriate for administrative approval, since there is nothing subjective about it. We would rather not need to make a judgment call about the placement of businesses based on use, type of sales by adjoining businesses, etc. Commissioner Graves asked about the definition of special events. Pate stated that special events such as the Gulley Park summer concert series has not traditionally come under our transient merchant licenses, and this past year was the first time someone has been out there selling food, to his knowledge. We are working with the Parks department on that for future years. Commissioner Anthes asked about the Conditional Use Permit for sidewalk vendor/pushcarts. Would it be prudent to add bus stops, truck loading zones, taxi stands, or competing businesses as a way to evaluate a potential Conditional Use Permit? Pate encouraged the discussion of that and believes it will be discussed at City Council as well. The reason we did not include that is we did not want to give the impression that there could be a favorable recommendation for one business over another. Our position in this recommendation was that we would like to see this ordinance passed and see what happens. Planning Commission September 8, 2008 Page 17 of 18 Commissioner Anthes stated she feels the sidewalk pushcarts are fantastic. She feels this can be an amenity to the Cultural Arts District. It is a tremendous economic opportunity for potential business ventures. She is concerned about somebody locating within a certain proximity to a competing business. She questioned item #7, the 90 -day occupancy, and wondered if there was something that would allow a mobile kitchen owner that would probably only operate 2-3 days a week to not have to come back and renew the permit every 90 days. Maybe outdoor mobile kitchen could be a separate section that could be developed outside the standard transient merchant license. She asked to hear more from other commissioners about the possibility of mobile kitchens being a separate section. Commissioner Trumbo stated he does not see a problem, as long as there are no complaints, why a person should have to come back every 90 days and renew the permit. Commissioner Anthes stated there were two points she wanted to make that could blend the cart ordinance with the outdoor mobile vendor ordinance. Mobile kitchens are mobile, so that business could be removed nightly, eliminating that objection. She sees them as an opportunity for an existing brick and mortar business to operate while they are closed. Commissioner Graves agreed that mobile vendors should not be required to move every 90 days, but at the same time feels that vendors should not be able to set up camp with a semi-permanent structure competing with an adjoining brick and mortar business. He has difficulties with attempting to determine what a vendor's primary product is and whether or not they would be defined as competition to an established brick and mortar business. Commissioner Winston asked if the annual permit expiration date could be changed from January I" at 12 AM to 3 AM. Pate stated that could be changed. Commissioner Winston asked if the business fails, but has a permit, what is the process for someone else coming in and getting a permit for that space? Is the permit transferred from the failed business? How do we know the business is no longer there and the space is again available? Pate stated that was one of the reasons for establishing the limited time frame. What we've stated in the ordinance is that they are non -transferable. However, if a permit owner decided the business was not working, we could rescind the permit and work something out with another potential vendor. Motion: Commissioner Anthes made a motion to forward the request to City Council with a recommendation for approval, with the following conditions: removal of item (B) under 178.01 Purpose, altering 178.03(C) Permit Application to read: "each permit will expire at 3AM January ls` following the year issued," and altering #7(G) hours of operation from 5AM to 3AM. Commissioner Myres seconded. Commissioner Graves asked if it is better to forward the request with a recommendation of Planning Commission September 8, 2008 Page 18 of 18 approval if we think we are going to change condition #7? He doesn't want to leave it open where it's not regulated, but he doesn't know how long it will take staff to come up with a draft that addresses some of the issues discussed with regard to a mobile kitchen. Commissioner Anthes stated that her motion would be that the transient merchant language under 178.04 remain as -is and what we would be doing is developing a special section for mobile kitchens that would be in addition to this language, so this language with #7 intact would remain for all those other uses that we already regulate under the county enforcement agency. Commissioner Graves stated that he understands that is the motion, but is instead asking Mr. Pate if that's the way we should do it to pass something, and then come back and supplement/amend it. Pate stated it would be okay to move forward, and staff can evaluate the effectiveness of the ordinance and any potential amendments, if it is adopted. Upon roll call the motion passed with a vote of 8-0-0. All business being completed, the meeting was adjourned at 8:34 PM.