HomeMy WebLinkAbout2002-02-11 - Agendas - Final AGENDA FOR A REGULAR MEETING OF
THE PLANNING COMMISSION
A meeting of the Fayetteville Planning Commission will be held Monday,February 11,
2002 at 5:30 p.m.in the City Administration Building, 113 West Mountain Street,Room
219, Fayetteville,Arkansas.
The following items will be considered:
Approval of minutes from the January 28,2001 meeting.
New Business:
2. RZN 02-5.00: Rezoning(Bayyari, pp 363) was submitted by Shawki al-Madoun, PE of
Northstar Engineering Consultants, Inc. on behalf of Fadil Bayyari for property located
west of 1-540 and south of Point West Phase I and east of Pine Valley Phase 1. The
property is zoned 1-1, Heavy Commercial/Light Industrial and R-2, Medium Density
Residential and contains approximately 14.84 acres. The request is to rezone to R-1.5,
Moderate Density Residential.
3. LSP 02-6.00 Lot Split(Farrell, pp 283 & 322) was submitted by Shawki AI-Madoun,
PE of Northstar Engineering Consultants, Inc. on behalf of Earl and Carolyn Farrell for
property located north of Mount Comfort Road and north and west of Holt Middle
School. The property is zoned R-1, Low Density Residential and contains approximately
182.22 acres. The request is to split into two tracts of 143.03 acres and 39.19 acres.
4. CUP 02-4.00: Conditional Use (Superior Federal Bank,pp 557)was submitted by
Glenn Carter of Carter Consulting, PA on behalf of Superior Federal Bank for property
located at the southwest corner of Hwy 62 West and Finger Road. The property is zoned
C-2, Thoroughfare Commercial and contains approximately contains 1.46 acres. The
request is to allow 16 more parking spaces than allowed by ordinance.
5. LSD 02-2.00: Large Scale Development(Superior Federal Bank, pp 557)was
submitted by Bill McClard of Lindsey& Associates on behalf of Bennie Westphal and
Matthew Cobb for property located at the southwest corner of Finger Road and Hwy 62
West. The property is zoned C-2, Thoroughfare Commercial and contains approximately
1.46 acres with a 2,891 sq.ft. branch bank building proposed.
6. ADM 02-5.00: Administrative Item (Tanglebrair/Applebury)was submitted by
Karen Rose and Dennis Becker for the portion of Applebury Drive that intersects
Rockwood Trail. The request is to change the name to Tanglebrair Lane.
7. ADM O1-47.00: Administrative Item (Revision of General Plan 2020)to update
census data;the community facilities section: add an annexation policy, and reorganize
for easier use.
8. ADM 02-3.00: Administrative Item (Liquor Store) was submitted by Planning
Division for Planning Commission consideration of an ordinance amending zoning,
Chapter 160 of the Unified Development Ordinance of the City of Fayetteville to remove
the use of a liquor store from use unit 16 and allow that use as a conditional use within
the C-1,Neighborhood Commercial zoning district, while remaining a permitted use by
right in the C-2, C-3 and C-4 districts.
9. ADM 02-6.00: Administrative Item (Fayetteville Public Library, pp 523)was
submitted by Kip Guthrie of Garver Engineers on behalf of the Fayetteville Public
Library for property located at the southwest corner of Mountain Street and School
Avenue. The request is for a waiver from Section 169.06(D)(1) of the grading ordinance
to not require terracing for an earth cut of greater than 10 feet in height.
10. ADM 02-4.00: Administrative Item (Rough Proportionality) was submitted by Kit
Williams, City Attorney for an ordinance to amend Chapter 155 of the Unified
Development Ordinance to add an appeal right to the Planning Commission.
Old Business:
1. ADM 01-36: Administrative Item (Fee in Lieu of Construction of Sidewalk) was
submitted by Kit Williams, City Attorney to revise the calculation method for
determining the fee in lieu of construction of sidewalks for a single-family lot, duplex lot
or lot split. The amendment also adds a list of factors for the Sidewalk Administrator to
review when considering waivers for the construction of sidewalks.
All interested parties may appear and be heard at the public hearings. A copy of the proposed
amendments and other pertinent data are open and available for inspection in the Office of City
Planning (575-8264), City Administration Building, 113 West Mountain Street, Fayetteville,
Arkansas. All interested parties are invited to review the petitions. Interpreters or TDD for
hearing impaired are available for all public meetings. 72 hour notice is required. For further
information or to request an interpreter,please call Hugh Earnest at 575-8330.
ORDER OF PLANNING COMMISSION MEETING
A. Introduction of agenda item - Chairman
B. Presentation of request- Applicant
C. Public Comment
D. Response by Applicant/Questions & Answer with Commission
E. Action of Planning Commission(Discussion and vote)
NOTE TO MEMBERS OF THE AUDIENCE
If you wish to address the Planning Commission on an agenda item, raise your hand when the
Chairman asks for public comment. He will do this after he has given Planning Commission
members the opportunity to speak and before a final vote is taken. Public comment will only be
permitted during this part of the hearing for each item.
Once the Chairman recognizes you, go to the podium at the front of the room and give your
name and address. Address your comments to the Chairman, who is the presiding officer. He
will direct them to the appropriate appointed official, staff member or others for response. Please
keep your comments brief, to the point, and relevant to the agenda item being considered so that
everyone has a chance to speak.
Please, as a matter of courtesy,refrain from applauding or booing any speakers or actions of the
Planning Commission.
2002 Planning Commissioners:
Bob Estes - Chairman
Lorel Hoffman - Vice Chairman
Lee Ward- Secretary
Nancy Allen
Don Bunch
Sharon Hoover
Don Marr
Loren Shackelford
Alice Church
AGENDA FOR A REGULAR MEETING OF
THE PLANNING COMMISSION
A meeting of the Fayetteville Planning Commission will be held Monday, February 11,
2002 at 5:30 p.m. in the City Administration Building, 113 West Mountain Street,Room
219,Fayetteville,Arkansas.
The following items will be considered:
Approval of minutes from the January 28,2001 meeting.
Old Business:
1. ADM 01-36: Administrative Item (Fee in Lieu of Construction of Sidewalk)was
submitted by Kit Williams, City Attorney to revise the calculation method for
determining the fee in lieu of construction of sidewalks for a single-family lot, duplex lot
or lot split. The amendment also adds a list of factors for the Sidewalk Administrator to
review when considering waivers for the construction of sidewalks.
New Business:
2. RZN 02-5.00: Rezoning (Bayyari, pp 363) was submitted by Shawki al-Madoun, PE of
Northstar Engineering Consultants, Inc. on behalf of Fadil Bayyari for property located
west of I-540 and south of Point West Phase I and east of Pine Valley Phase I. The
property is zoned I-1, Heavy Commercial/Light Industrial and R-2, Medium Density
Residential and contains approximately 14.84 acres. The request is to rezone to R-1.5,
Moderate Density Residential.
3. LSP 02-6.00 Lot Split(Farrell, pp 283 & 322)was submitted by Shawki Al-Madoun,
PE of Northstar Engineering Consultants, Inc. on behalf of Earl and Carolyn Farrell for
property located north of Mount Comfort Road and north and west of Holt Middle
School. The property is zoned R-1, Low Density Residential and contains approximately
182.22 acres. The request is to split into two tracts of 143.03 acres and 39.19 acres.
4. CUP 02-4.00: Conditional Use(Superior Federal Bank, pp 557)was submitted by
Glenn Carter of Carter Consulting, PA on behalf of Superior Federal Bank for property
located at the southwest corner of Hwy 62 West and Finger Road. The property is zoned
C-2, Thoroughfare Commercial and contains approximately contains 1.46 acres. The
request is to allow 16 more parking spaces than allowed by ordinance.
5. LSD 02-2.00: Large Scale Development(Superior Federal Bank,pp 557)was
submitted by Bill McClard of Lindsey&Associates on behalf of Bennie Westphal and
Matthew Cobb for property located at the southwest corner of Finger Road and Hwy 62
West. The property is zoned C-2, Thoroughfare Commercial and contains approximately
1.46 acres with a 2,891 sq.ft. branch bank building proposed.
6. ADM 02-5.00: Administrative Item (Tanglebrair/Applebury) was submitted by
Karen Rose and Dennis Becker for the portion of Applebury Drive that intersects
i
Rockwood Trail. The request is to change the name to Tanglebrair Lane.
7. ADM O1-47.00: Administrative Item (Revision of General Plan 2020)to update
census data,the community facilities section: add an annexation policy, and reorganize
for easier use.
8. ADM 02-3.00: Administrative Item (Liquor Store)was submitted by Planning
Division for Planning Commission consideration of an ordinance amending zoning,
Chapter 160 of the Unified Development Ordinance of the City of Fayetteville to remove
the use of a liquor store from use unit 16 and allow that use as a conditional use within
the C-1,Neighborhood Commercial zoning district,while remaining a permitted use by
right in the C-2, C-3 and C-4 districts.
9. ADM 02-6.00: Administrative Item (Fayetteville Public Library,pp 523)was
submitted by Kip Guthrie of Garver Engineers on behalf of the Fayetteville Public
Library for property located at the southwest corner of Mountain Street and School
Avenue. The request is for a waiver from Section 169.06(D)(1) of the grading ordinance
to not require terracing for an earth cut of greater than 10 feet in height.
10. ADM 02-4.00: Administrative Item (Rough Proportionality)was submitted by Kit
Williams, City Attorney for an ordinance to amend Chapter 155 of the Unified
Development Ordinance to add an appeal right to the Planning Commission.
All interested parties may appear and be heard at the public hearings. A copy of the proposed
amendments and other pertinent data are open and available for inspection in the Office of City
Planning (575-8264), City Administration Building, 113 West Mountain Street, Fayetteville,
Arkansas. All interested parties are invited to review the petitions. Interpreters or TDD for
hearing impaired are available for all public meetings. 72 hour notice is required. For further
information or to request an interpreter, please call Hugh Earnest at 575-8330.
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
113 W. Mountain St.
Fayetteville;AR 72701
Telephone:(501)575-8264
PLANNING DIVISION CORRESPONDENCE
TO: Planning Commission
FROM: Shelli Rushing,Associate Planner
THRU: Tim Conklin, City Planner
DATE: January 24,2002
ADM 01-36: Administrative Item (Amendment to Section 171.12 Regarding Contribution
of Fee in Lieu of Construction of Sidewalk)to revise the calculation method for determining
the fee in lieu of construction of sidewalks for a single-family lot, duplex lot or lot split. The
amendment also adds a list of factors for the Sidewalk Administrator to review when considering
waivers for the construction of sidewalks.
BACKGROUND
In Spring 2001,the City revised the sidewalk ordinance to allow a developer to pay money in lieu
of building an unfeasible or impracticable sidewalk. Prior to adoption of this ordinance, if
sidewalks could not be built due to topography or other natural conditions,the property owner
could seek a waiver not to build the sidewalk. Without a waiver,the sidewalk would have to be
built. In order to make it fair, the ordinance was revised so that all property owners contribute to
sidewalks,whether one can be constructed on their lot or not. The fee was based on the rate of
Three Dollars ($3.00)per square foot of the sidewalk that normally would have been required.
In August 2001, a woman building a home on an infill lot in Fayetteville was assessed$4,212 as
a sidewalk fee in lieu of construction pursuant to the recently revised city ordinance. The City
Attorney became concerned over the constitutionality of the sidewalk ordinance based on the
impact to this property owner. The legal basis for concern was whether the City was complying
with the Supreme Court's rough proportionality standard. Rough proportionality is the
determination that the dedication or exaction is proportionate to the development's anticipated
impact.
On October 8, 2001, the City Attorney presented a draft ordinance revising Section 171.12
regarding the fee in lieu of construction of sidewalks. The Planning Commission elected a
subcommittee to review the issue. The subcommittee met on Tuesday,Nov. 6, 2001 and
Thursday,November 29, 2001 and reviewed research on other cities with fees in lieu of
construction for sidewalks. The subcommittee is recommending amendments to the current
ordinance as presented in the attached ordinance.
RECOMMENDATION
Staff recommends that the Planning Commission approve the ordinance prepared by the Planning
Commission subcommittee.
Planning Commission
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ADMOI-36 Sidewalk
Page 1.1
FINDINGS
The Planning Commission subcommittee reviewed sidewalk codes from six cities: Austin, TX;
Iowa City, IA; Champaign, IL; Lawrence, KS; Columbia, MO; and Overland Park, KS. The
research showed that the City of Columbia had the most similar ordinance to Fayetteville.
Columbia allows for a variance, conditioned on the property owner paying the city an amount
equivalent to the cost of construction of a standard sidewalk.
Recently, Columbia had been legally challenged on their sidewalk fee ordinance. They are in the
process of drafting new policies and ordinances to address the challenges. The draft policy
resolution recommends that City Council review the request for a variance and must conclude
that there is a reasonable relationship between the activity of the landowner and the construction
of a sidewalk. They also established factors that have to be reviewed when considering a
variance. The research indicated that other cities that did allow a waiver had criteria or a
checklist to be reviewed when granting a waiver or variance.
The subcommittee agreed that the ordinance should state that a property owner can request a
waiver to subsection 171.12 A that requires sidewalk construction. They agreed that the Sidewalk
Administrator would benefit from having a list of criteria to use when reviewing requests for
waivers and adapted the criteria used in other cities. The subcommittee recommended that the fee
in lieu of construction be based on the minimum street frontage required for the use as set forth
in the_zoning ordinance,rather than the sidewalk that would have been required. The proposed
ordinance is attached.
Planning Commission
H.IUSERSICOMMONIShelliWtaffReportsUDM 01-36 Sidewalk Feel Sidewalk Fee Report.wpd February 11, 2002
ADM01-36 Sidewalk
Page 1.2
ORDINANCE NO.
AN ORDINANCE AMENDING SECTION 171.12 PROPERTY OWNER
TO CONSTRUCT SIDEWALK UPON RECEIPT OF NOTICE
REGARDING WAIVERS AND CONTRIBUTION OF
FEE IN LIEU OF CONSTRUCTION
WHEREAS,the current sidewalk ordinance occasionally required the construction of a sidewalk
in an isolated and impractical location, and
WHEREAS, it would be beneficial to use the resources that would be wasted building such an
impractical, isolated sidewalk to build a needed, useful sidewalk nearby,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1. That 171.12 Property Owner to Construct Sidewalk or Contribute to Cost of
Sidewalk be hereby amended as follows:
Material to be deleted in sttikeon ; material to be added underlined.
171.12 PROPERTY OWNER TO CONSTRUCT SIDEWALK OR CONTRIBUTE
COST OF SIDEWALK
A. Requirement.
The owner of any property abutting a public street or highway for which a
sidewalk is required by the City's Master Street Plan shall construct a sidewalk
along said street or highway upon receipt of notice from the mayor or his
designee. Said notice shall be issued at the time a building or parking lot permit
for the property s issued or a lot split is approved.
1. The property owner shall construct the sidewalk in accordance with
section 171.13 Sidewalk and Driveway Specifications.
2 . A property owner may request a waiver to subsection 171.12 A
requiring sidewalk construction. If the City's Sidewalk
Administrator determines that construction of the sidewalk would
be unfeasible, impracticable, or otherwise unsuitable at the
property's location,then the owner has the option to construct the
sidewalk any Yvay or contribute money in lieu of construction as set
forth below.
A. For all development except a single-familyln lex lot
and lotsplits a cash contribution in lieu of construction
H:\USERS\COMMON\Shelli\Staff Reports\sidewalk fee ordinance.wpd
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.3
shall be at the rate of Three Dollars ($3.00)per square foot
of the sidewalk that normally would have been required.
B. For a single-family lot a duplex lot and lot splits a cask
-- - contribution in lieu of construction shall be at the rate of
Three Dollars ($3.00)per square foot. Square feet shall be
figured by multiplying the required sidewalk width by
minimum street frontage required for the use as set forth in
the zoning regulations.
C. The cash contribution amount per square foot shall be
reviewed every three years and may be amended by the City
Council.
D. Contribution in lieu of construction of sidewalks shall be
paid or construction of the sidewalks shall be completed
before , filing of a lot split, or
issuance of a Certificate of Occupancy.
E. Contributions must be expended within three (3)years
within the quadrant of the City in which the unbuilt
sidewalks are located.
F. Contributions shall be used to construct sidewalk projects
selected by the Sidewalk Administrator
3. The Sidewalk Administrator shall grant the waiver based on a review of
the following factors: . .
A Pedestrian traffic generators such as parks and schools in
the area;
A. the existence of a sidewalk network in the area,
B. the density of current and future development in the area-,
C. the amount of pedestrian traffic likely to be generated by
the proposed development: and
D. whether the terrain is such that a sidewalk is physically
feasible, and the extent to which trees ground cover and
natural areas would be impacted by the sidewalk.
H:\USERS\COMMON\Shelli\Staff Reports\sidewalk fee ordinance.wpd
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.4
B. Application of Provisions.
The provisions of this section shall only apply to the following property.-
1.
roperty:1. New Structure. On which a new structure is being built;
2. Existing Residential Structure. On which an existing residential
structure is being modified so as to increase the number of
dwelling units located therein or to change the use to a
nonresidential use.
3. Parking Lot/Garage. On which a parking lot or parking garage,
having a minimum capacity of five automobiles, is constructed or
enlarged.
4. Lot Splits. Division of land into two or more pieces of property,
regardless of size.
5. Additions. Additions of 2,500 square feet or larger.
6. Conditional Use.Any development which requires conditional use
approval.
Section 2. This ordinance shall be in full force and effective from and after its passage.
PASSED AND APPROVED this day of 2001
APPROVED:
BY:
DAN COODY, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
HXSERSTOMMOMShelli\Staff Reports\sidewalk fee ordinance.wpd
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.5
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
113 W. Mountain St.
Fayetteville,AR 72701
Telephone:(501)575-8264
PLANNING DIVISION CORRESPONDENCE
TO: Lore]Hoffman, Sharon Hoover,Don Bunch,Kit Williams, and Chuck
Rutherford
FROM: Shelli Rushing,Associate Planner
THRU: Tim Conklin, City Planner
DATE: November 19,2001
RE: City of Columbia Sidewalk Fees and Variance
Sidewalk Fee Subcommittee Meeting
Thursday,Nov.29
12 p.m.
City Hall, Room 111
At the Sidewalk Fees Subcommittee meeting on Tuesday,Nov. 6, the committee asked staff to
provide additional,research on cities that require a fee in lieu of sidewalk construction. Columbia,
MO was the only city researched that had the requirement. Due to recent legal challenges,the
city is making changes to their subdivision regulations regarding sidewalk fees. Related
documents are attached.
To summarize,the City of Columbia is currently reviewing an ordinance that states that the
payments collected in lieu of sidewalk construction are to be used solely to construct or improve
a sidewalk or other pedestrian infrastructure that benefits the property for which the payment was
collected.Also, granting a variance does not limit the power of city council to later install a
sidewalk at the location and levy a special assessment against the property for construction of the
sidewalk.
Additionally,they are creating a policy resolution for requests for variances for construction of
sidewalks along unimproved streets. The City Council reviews the requests and there must be a
reasonable relationship between the activity of the landowner and the construction of a sidewalk.
A variance can be granted without conditions only if it determines the sidewalk is not needed or
the development does not justify the requirement. It also establishes factors that have to be
reviewed for requests for variances. If the council finds that the sidewalk is needed,the variance
will be approved only if an alternative walkway is provided or if the property owners pays the
City for the construction. The payment is based on the equivalent cost of construction of a
conventional sidewalk, defined as the City's average cost of construction of portland cement
concrete sidewalks by public bid during the two calendar years prior to the year in which the
variance request is submitted. The policy also indicates when the payment should occur.
Planning Commission
!i'IUSERSICOMMONIShellilCorrespondencelSideivaik Subcmte.wFebruary 11, 2002pd ADM01-36 Sidewalk
Page 1.6
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS 4L/
KIT WILLIAMS,CITY ATTORNEY
DAVID wmT"ER,ASST.CITY ATTORNEY
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE
TO: Planning Commission Subcommittee on Sidewalks
FROM: Kit Williams, City Attorney
—
DATE: November 6, 2001
RE: Sidewalk Ordinance
As City Attorney, I became concerned over the constitutionality
of our current sidewalk ordinance upon learning of its financial impact
on a builder of a single family home on a dead end street. I had also
become concerned over what our ordinances seemed to require for lot
splits. In both of these situations,my legal research indicated our
development ordinances were probably requiring more than was
constitutionally permitted.
To give you a brief explanation of the legal basis of my concerns, I have
attached my memo of August 81hto the City's Sidewalks and Trails Committee
which was also provided to the Planning Commission on October 4th. Also
attached is my memo of October 18th to the Planning Commission to further
explain why portions of §171.12 could violate the Fifth Amendment if we enforce
those particular provisions (regarding lot splits and single family homes on infill
lots) and to answer earlier questions about whether the City must abide by the
Supreme Court's rough proportionality standard.
As you are probably aware, any impact fee or exaction required by the City
for a development permit cannot exceed the "rough proportionality" of the
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.7
x • ,
r
impact of the new development upon the City's infrastructure or services.
Basically, a developer can only be required to pay for the additional needs his
s,developmentlaces upon the Ci (the impact).
Thus, the City can charge a green space fee based upon a new family's
needs for additional or improved parkland. We can also charge an impact fee for
a new fanuly's demands placed upon the water system and our wastewater
treatment facilities and their need for eventual expansion. The City can also
require new subdivision developers to build all improvements within that
subdivision (streets, sewers, water lines, sidewalks) as the impact of building that
subdivision created a need for all such improvements.
What the City cannot do is to require a home builder to pay more than
what the rough cost of the impact of the family living in the new home will have
on the city infrastructure like sidewalks. New development can be required to
pay its own way, but a new homeowner cannot be forced to pay more than his
fair share. This is the"rough proportionality" test required by the Supreme
Court and the United States Constitution.
The Northwest Regional Planning Commission directors learned about this
issue from the news media and told me they agreed with my analysis regarding
the need to require rough proportionality for any permit requirements.
Our impact fee consultants were contacted by a woman building a modest
home on a dead-end street in Fayetteville who was assessed $4,212.00 as a
sidewalk impact fee pursuant to our ordinance. I have attached an E-mail from
Mr. Clancy Mullen of Duncan and Associates concerning her inquiry. Mr.
Mullen agreed the owner had "good reason to complain" and that any sidewalk
fee "should be proportional to her demand." Mr. Mullen concluded that "the
City should change this policy."
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.8
J
1
ORDINANCE NO.
AN ORDINANCE REPEALING SECTION 171.12
PROPERTY OWNER TO CONSTRUCT SIDEWALK
UPON RECEIPT OF NOTICE, AND ADOPTING
A REPLACEMENT SECTION 171.12
WHEREAS, the current sidewalk ordinance occasionally required the
construction of a sidewalk in an isolated and impractical location, and
WHEREAS, it would be beneficial to use the resources that would be wasted
building such an impractical, isolated sidewalk to build a needed, useful sidewalk nearby.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That 171.12 Property Owner to Construct Sidewalk Upon Receipt
of Notice; Subsection A. Receipt of Notice; Subsection B. Application of Provisions of
the Code of Fayetteville shall be deleted and the following inserted in its stead:
171.12 Property Owner to Construct Sidewalk or Contribute Cost of
Sidewalk
A. Requirement
The owner of any property abutting a public street or highway for
which a sidewalk is required by City's Master Street Plan shall
construct a sidewalk along said street or highway upon receipt of
notice issued at the time a building or parking lot permit is issued or a
droved
1. The property owner shall construct the sidewalk in accordance
with section 171.13 Sidewalk and Driveway Specifications.
2. If the City's Sidewalk Administrator determines that
construction of the sidewalk would be unfeasible,
impracticable, or otherwise unsuitable at the property's
location, then the owner has the option to construct the
sidewalk anyway or contribute money in lieu of construction as
set forth below:
A. A cash contribution in lieu of construction shall be at the
rate of Three Dollars ($3.00)per square foot of the
sidewalk that normally would have been required.
B. Contribution in lieu of construction of sidewalks shall be
paid or construction of the sidewalks shall be completed
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.9
before receiving final plat approval, filing of a lot split, or
issuance of a Certificate of Occupancy.
C. Contributions must be expended within three (3) years
within the quadrant of the City in which the unbuilt
sidewalks are located.
D. Contributions shall be used to construct sidewalk projects
selected by the Sidewalk Administrator.
B. APPLICATION OF PROVISIONS
The provisions of this section shall only apply to the following
property:
1. , em, . Previous Approved Development. OnwhAslt
built.a new stfuetufe is being Any building in a previously
approved large scale development or subdivision in which
sidewalks are required.
2. Existing Resident-id . Multi-Unit Apartment. 8a
1*hisll An- existing residential str-aetffe is being medified se as
. Construction ofMulti-
Unit Apartment of at least three(3) units and additions of at
least 2,500 square feet or larger to multi-unit apartment
buildings.
3. . Commercial Building. Glawhieh a
parking let er paAdng ,
five , is . Construction of
Commercial Buildings and alterations or additions of at least
2,500 square feet to commercial buildings.
4. Let Splits. Institutional Buildings.
e.prep°..,.. regardless a foie. Construction of
Institutional Buildings and alterations or additions of at
least 2,500 square feet to institutional buildings.
5. Additions. Parking Lot/Garage2,500 square
€eeterlarger. Parking lots or parking garages, having a
minimum capacity often automobiles.
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.10
6. Conditional Use.
use approval. Construction of sidewalks may be required as a
condition for approval of a conditional use.
PASSED AND APPROVED this day of 12001.
APPROVED:
Alt
BY:
DAN Y, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.11
ROUGH DRAFT OF POSSIBLE ORDINANCE
WITHIN CHAPTER 155
APPEALS OF UNIFIED DEVELOPMENT ORDINANCE
155.06 D. 5. Required Dedications And Improvements
(a) An owner or developer who is aggrieved by the
requirements of the Unified Development Ordinance for land, right-
of-way or easement dedications, construction of on-sight or off-sight
improvements, or payments in lieu of any dedication or
improvement, which are in excess of the "rough proportionality" of
the impact of the development upon the city's infrastructure or
services may appeal such requirement to the Planning Commission
as a part of the submission of the Preliminary Plat, Large Scale
Development, Subdivision, Building Permit, Lot Split, or other
development permit, within ten days of notification of such
development requirements. The appeal must be presented to the
Planning Department in writing and state the grounds or reasons for
the appeal.
(b) The Planning Commission shall determine after public
hearing whether the required dedications and improvements meet
the "rough proportionality" of the impact of the development on City
infrastructure and services. If the requirements are in excess of the
"rough proportionality", the Planning Commission is empowered to
modify or reduce such requirements to achieve "rough
proportionality."
Planning Commission
February 11, 2002
ADMOI-36 Sidewalk
Page 1.12
LLE '— —�
THE CITY OF FAYETTEVIIEE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST. CITY ATTORNEY
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE
TO: Sidewalk & Trails Committee
FROM: Kit Williams, City Attorney —
DATE: August 8, 2001
RE: Sidewalk Ordinance
Although the City improved its Sidewalk Ordinance in the
Spring by allowing a developer to pay money in lieu of building an
unfeasible or impracticable sidewalk, I believe we need to review our
requirements to ensure they meet the constitutional dictates of the Fifth
Amendment to the United States Constitution.
According to the controlling Supreme Court decisions, the City
can only require an owner to dedicate land or pay money in "rough
proportionality to the impact that construction of his project causes
the City. Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 2320
(1994).
The City can certainly require sidewalks (as well as streets, utility
easements, etc.) for new subdivisions because before a subdivision is
built there would be no need for sidewalks. It is only because of the
new houses and new neighborhood that sidewalks are necessary. Also
the sidewalks in the subdivision will be primarily used by the
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.13
homeowners who ultimately pay for them. Therefore, in new
subdivisions there is certainly a "rough proportionality" of the impact
on pedestrian traffic of the new development and the cost of
constructing sidewalks therein. Those developmental requirements
have been found constitutional by the Supreme Court. Pennell v. City
of San ose485 U.S. 1 (1988).
With the construction of a single family home or duplex on a lot
that was platted before the City required subdivisions to build
sidewalks (or do almost any infrastructure improvements), the "rough
proportionality" of the pedestrian traffic impact of a single home or
duplex is probably not great enough to justify what could be three or
four thousand dollars to build a sidewalk or pay money in lieu thereof.
It is these "infill' lots that would usually fail the rough proportionality
test. Lot splits also would have insufficient impact to justify requiring
an owner to build or pay for a sidewalk.
Planning staff and my office are working on a modification of the
sidewalk ordinance to ensure we remain within constitutional
boundaries in our desire to build more sidewalks in Fayetteville. We
shall present this ordinance to you at your next meeting. As you know,
Fayetteville is currently contracting to build almost a million dollars of
multi-use trails.
We all like sidewalks which certainly serve a public benefit, but
we should remember why the Fifth Amendment to the United States
Constitution was adopted.
"In addition to the requisite nexus, the
(Supreme) Court went on to require that
the city demonstrate that the degree of
the extractions demanded in the condition
bears "rough proportionality" to the projected
Planning Commission.
February 11, 200002
ADM01-36 Sidewalk
Page 1.14
impact of the applicant's request. This
requirement ensures that the conditioning of a
discretionary benefit does not force "some people
alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a
whole" in violation of the Just Compensation
Clause." Pennell v. City of San Tose, 485 U.S. 1, 9
(1998) (citations omitted); Goss v. City of Little Rock, 90
F.3rd 306,309 (8thCir.1996).
• Planning Commission
February 11, 2002
ADMOI-36 Sidewalk
Page 1.15
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE ---
TO: Fayetteville Planning Commissioners
FROM: Kit Williams, City Attorney
DATE: October 18, 2001
RE: "Rough proportionality" requirement for development
dedications and fees/Sidewalk ordinance
Thank you for your comments and advice during the last
Planning Commission Meeting. I deliberately chose to.present the
proposed change in the Sidewalk Ordinance to the Planning
Commission before consideration by the City Council because of your
expertise and experience with all our development ordinances.
Because of your years examining development after development
occurring in Fayetteville, you have good insight about how our UDO is
functioning.
In light of your desire to look at the "rough proportionality"
appeal ordinance I had suggested to Planning in August, I have
attached the Rough Draft of it to this memorandum.
As you may be aware, I have included the term "rough
proportionality in this proposed appeal ordinance. I did so because
this has become a legal term of art when the United States Supreme
Court selected it in Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S. Ct.
2309 (1994).
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.16
"We think a term such as "rough proportionality"
best encapsulates what we hold to be the requirement
of the Fifth Amendment. No precise mathematical
calculation is required, but the city must make some
sort of individualized determination that the required
dedication is related both in nature and extent to the
impact of the proposed development." Id.
Requirements to pay money in lieu of building a sidewalk in order to
obtain a building permit would be termed a "monetary exaction."
"The exaction is the concession sought by the
government, or the condition upon which granting the
permit depends. The government may seek land,
money, or other concessions in return for the permit."
Garneau v. City of Seattle, 147 F.3d 802, 809 (9thCir. 1998)
The 1999 United States Supreme Court case, City of Monterey v. Del Monte
Dunes, 526 U.S. 687, 119 S. Ct. 1624 (1999) expressly held that the "rough
proportionality" test applied to questions "whether dedications demanded as
conditions for development are proportional to the development's anticipated
impacts."
"It was not designed to address, and is not readily
applicable to, the much different questions arising
where, as here, the landowner's challenge is based
not on excessive exactions but on denial.of
development. We believe, accordingly, that the rough-
proportionality test of Dolan is inapposite to a case
such as this one." City of Monterey v. Del Monte Dunes,
supra at 703.
Planning Commission
February 11, 2002
ADMOI-36 Sidewalk
Page 1.17
"Inapposite" means "Not pertinent; unsuitable." American Heritage
Dictionary p. 649 (1982, Second College Edition).
Thus in the only recent Supreme Court case discussing the "rough
proportionality" test created by Dolan v. Cily of Tigard, the Supreme Court
reaffirmed the test's application to exactions (land dedications, required
infrastructure construction, or money in lieu thereof) required as a
condition for development. What the City requires throughout our UDO
would be legally termed "exactions". The Supreme Court held that test
inapposite (or not relevant or to be applied to) a situation in which
development was completely denied rather than made conditional as in
both Nolan and Dolan.
Therefore in the context of requiring sidewalks as a condition for a
building permit or lot split, the proper test remains the "rough
proportionality" test as stated by the Supreme Court.
"('The Fifth Amendment's guarantee ... was
designed to bar Government from forcing some
people alone to bear public burdens which, in all
fairness and justice, should be borne by the public
as a whole'), we have not extended the rough
proportionality test of Dolan beyond the special
context of exactions - land-use decisions conditioning
approval of development on the dedication of property
to public use." City of Montero v. Del Monte Dunes, Id.
The Eighth Circuit Court of Appeals (which includes Arkansas Federal
Courts) ruled against Little Rock in 1998, holding that Little Rock had "failed to
carry its burden proving rough proportionality between the dedication (of land)
and the impact of the proposed rezoning." Goss v. Little Rock,151 F3d 861, 863
(8thCir. 1998). By incorporating a "rough proportionality" avenue of appeal to
the Planning Commission, we should avoid any such problems in Fayetteville.
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.18
im Conklin sidewalk fee Page 1
From: "Clancy Mullen <Clancy@duncanplan.com>
To: 'Tim Conklin (E-mail)" <tconklin@ci.fayetteville.ar.us>
Date: 8/30/012:51 PM
Subject: sidewalk fee
Tim,
Just wanted to give you my two cents worth because I thought it was
interesting:
A woman named Nancy from Fayetteville called me, saying she was required
to pay a$4,212 sidewalk fee on her 3/4-acre single-family corner lot,
even though she was told her lot was in too hilly an area and she was
not going to have sidewalks put in adjacent to her lot. I think she has
a good reason to complain. If the money were to be held in escrow to
eventually build sidewalks for her lot, that's one thing; but a fee for
off-site usage of sidewalks in her area should be proportional to her
demand,which is unrelated to the amount of her lot frontage. I doubt
if she is going to sue, but in my opinion the City should change this
policy. A fee in-lieu of sidewalks should be based on trip generation
rates or persons per unit rather than lot frontage.
Clancy Mullen
13276 Research Blvd., Suite 208
Austin, TX 78750
512-258-7347 x204
fax 512-258-9994
clancy@duncanplan.com
CC: "Eric Damian Kelly(E-mail)" <planatty@home.com>, "Jim Duncan"
<J im@duncanplan.com>
Planning Commission
February 11, 2002
ADM01-36 Sidewalk
Page 1.19
Planning Commission
February 11, 2002
ADMOI-36 Sidewalk
Page 1.20
FAYETTEVILLE
T1 I8 CITY OP FAYE'I I E'V ILLE,ARKANSAS
113 W. Mountain St.
Fayetteville.AR 72701
Telephone: (501)575-8264
PLANNING DIVISION CORRESPONDENCE
TO: Fayetteville Planning Commission
FROM: Dawn T. Warrick, Senior Planner
THRU: Tim Conklin, A.LC.P., City Planner
DATE: February 2, 2002
RZN 01-25.00: Rezoning (Bayyari, pp 363)was submitted by Shawki Ali-Madoun, PE of
Northstar Engineering Consultants, Inc. on behalf of Fadil Bayyari for property located
west of Highway I-540 and south of Porter Road. The property is zoned I-1, Heavy
Commercial/Light Industrial and R-2 Medium Density Residential and contains
approximately 14.84 acres. The request is to rezone to R-1.5, Moderate Density
Residential.
RECOMMENDATION:
Staff recommends approval of the requested rezoning based on the findings included as
part of this report.
PLANNING COMMISSION ACTION: Required YES
O Approved O Denied
Date: February 11, 2002
CITY COUNCIL ACTION: Required YES
O Approved O Denied
Date: March 5, 2002 (Is`reading)
H:IUSERSICOMMONIDAWiV71REPORTSIPC12002_REPOR7SIBAIPAR/RZN02-5DOC
Planning Commission
Febmary 11, 2002
RZN 01-25 Bayyari
Page 2.1
Comments:
BACKGROUND:
The subject property is located along the western edge of I-540 at the south end of Shiloh Drive
as it is now constructed. Shiloh Dr. intersects Porter Road to the north and is the major traffic
artery for this area. To the west lies a residential area which is zoned R-2 and contains a duplex
subdivision. Further west and south of the subject property is a predominantly single family
development which is zoned R-1.5. Between these developments is Wildwood Park that was
dedicated to the City as a part of each of the subdivision proposals. This park land has not been
developed and runs along Hamstring Creek in this location. The subject property as well as the
existing park land both contain areas of floodway and floodplain.
This property is Currently zoned I-1, Heavy Commercial Light Industrial and R-2 Medium
Density Residential. There are nearby industrial developments, mainly the Point West
Subdivision (along Shiloh Drive, north of the subject property) which contains several facilities
for Budget Text (formerly Arkansas Book Services). South of the property is a large vacant tract
of lana which is currently zoned A-1, A«ricultural.
The R-1.5 zoning that is being requested would permit a maximum of 12 units per acre and will
only allow for single, duplex and triplex units. This type of zoning will allow the developer
some flexibility in the type of structures and lots that are created. Lot sizes and frontaee
requirements correspond with the number of units desired for each lot. Apartments (any
structure housing more than three units) are not be permitted in the R-1.5 zoning district. Infill
development will provide for sufficient density to make more efficient use of public
infrastructure. This downzoning will enable greater compatibility with surrounding
developments, provide an opportunity for a mix of different housing types and protect the
integrity of the Design Overlay District by eliminating the potential for industrial developments
in this location.
The applicant has stated in submittal materials that the proposal for this property include the
development of"a residential duplex subdivision complete with water, sewer, electric, gas and
drainage."
SURROUNDING LAND USE AND ZONING
North: Industrial, I-1
South: Vacant, A-1
East: I-540 / Church, A-1 and Apartments, R-2
West: Duplexes, R-2
H.-IUSERSICOMMOMDA WN7IREPORTSIP02002 REPORTSIBA FAR] RZN02-5DOC.
Planning Commission
February 11. 2002
RZN01-25 Bajyari
Page 2.2
INFRASTRUCTURE:
Access to this property is available from Shiloh Drive which is designated a collector on the
Master Street Plan and proposed to be extended to the south through the subject tract connecting
with Shiloh Dr. where it is built near Wedington Drive. Right-of-way exists along the south
property line for Sycamore Street which would allow it to be extended to the east. This proposed
street is located along the south property line of the subject tract. Future access to Pine Valley
Subdivision exists through Riverridge Drive and Pine Valley Drive.
Water and sewer lines are available to this site and would have to be extended at the developer's
expense as needed. A 6" water line is located along the north side of Sycamore Street-and.and 8"
water line is located along the south side of Sycamore Street. An 8" sewer line exists running
north/south along the west side of Porter Road.
LAND USE PLAN: General Plan 2020 designates this site Mixed Use. Rezoning this property
to R-1.5, Moderate Density Residential is consistent with the land use plan and compatible with
surrounding land uses in the area.
FINDINGS OF THE STAFF
1. A determination of the degree to which the proposed zoning is consistent with land use
planning objectives, principles, and policies and with land use and zoning plans.
Finding: The proposed zoning is consistent with land use planning objectives,
principles, and policies and with larld time and, zoning plans. The General
Plan 2020 encourages a mix of housing types which is possible with this type
of zoning designation. (Residential f n.hlernentation Strategies —6.3.g
"Encourage residential units in appropriate specified Mixed Use areas.")
2. A determination of whether the proposed zoning is justified and/or needed at the time the
rezoning is proposed.
Finding: Residential developments in this area are fully developed and do-not.provide
for the mix of housing types that this rezoning will create. A change in
zoning is required in order for the owner to develop this property in a
residential manner.
3. A determination as to whether the proposed zoning would create or appreciably increase
traffic danger and congestion.
Finding: Traffic generation for residential uni4s in this location will total
approximately 11% more than that generated by an industrial development
H.IUSERSICOAfMONIDAHN7IREPORTSIPCI2002 REPORTSIBATAR7 RZN02-5DOC
Planning Eomnassion
February 11, 2002 .
RZN 01-25 Bawari
Page 2.3
on the same property. ITE (Institute of Traffic Engineers) trip generation
calculations for a townhome type development report an average weekday
volume of 1043 vehicles per day (based on a maximum density of 178 units).
An industrial park type development on 14.84 acres would generate 937
vehicles per day according to ITE software. Prior to preliminary plat review,
staff will require a traffic study be completed addressing capacity and safety
issues and any necessary off-site improvements.
4. A determination as to whether the proposed zoning would alter the population density
and thereby undesirably increase the load on public services including schools, water, and
sewer facilities.
Finding: The proposed zoning will alter population density, however it will not
undesirably increase the load on public services including schools,water and
sewer facilities. The status of the City's sewer capacity is of issue as it would
be regardless of the type of development proposed for this 14.84 acre tract.
5. If there are reasons why the proposed zoning should not be approved in view of
considerations under b (1) through (4) above, a determination as to whether the proposed
zoning is justified and/or necessitated by peculiar circumstances such as:
a. _ It would be impractical to use the land for any of the uses permitted
under its existing zoning classifications;
b. There are extenuating circumstances which justify the rezoning
even though there are reasons under b (1) through (4) above why
the proposed zoning is not desirable.
Finding: N/A
H.- USERSICOMMONIDA W TREPORTSIPC12001 REPORTSIBATARIRZN02-5DOC -
Planning Commission
February 11, 2002
RZN 01-25 Bayyari
Page 2.4