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HomeMy WebLinkAboutOrdinance 5420 liiliiflliilliiliiill►Illilillllliiildfiiiililllilliillilillllllllllllllllll` Doc''ID: 014157920003Type: REL Kind: ORDINANCE Recorded: 08/15/2011 at 03:51:27 PM Fee Amt: $25.00 Peas 1 of 3 Washington Countv. AR Bette Stamps Circuit Clerk File2011-00022954 ORDINANCE NO. 5420 AN ORDINANCE REZONING THAT PROPERTY DESCRIBED IN REZONING PETITION RZN 11-3831, FOR APPROXIMATELY 2.64 ACRES LOCATED AT 209 WEST MARTIN LUTHER KING BOULEVARD FROM RMF-24, RESIDENTIAL MULTI-FAMILY, 24 UNITS PER ACRE TO C-1, NEIGHBORHOOD COMMERCIAL. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,ARKANSAS: Section l: That the zone classification of the following described property is hereby changed as follows: From RMF-24, Residential Multi-Family, 24 units per acre to C-1, Neighborhood Commercial, as shown on Exhibits "A" and "B" attached hereto and made a part hereof. Section 2: That the official zoning map of the City of Fayetteville, Arkansas is hereby amended to reflect the zoning change provided in Section 1 above. PASSED and APPROVED this Wh day of July, 2011. APPROVED: ATTEST: By: ' ®O 00-V/e-' By: ���y IO ELD J , Mayor SONDRA E. SNUTH, City Clerk/Treasurer TReq"'. ;FAYETTEVILLE; �''9sL'.9;QkANSPSJ�'F.� e �Oie"NGTONep pa`°• EXHIBIT "A" RZN11-3831 KUM & GO Close Up view —ra �} qk` 1� � aslTrav r:_ � - r�'. r 'i;N7 I lF f� t •r I ~- PRAIRPE ST SUBJECT PROPERTY 19 PRJVATE421 $ g 6 1L ,.T7.7 ' 1 I� elm,_ .e...... ............`''•N9i ONEDR •• . r• y1{ ALLEY 189 i I i MW RW44 • Op { •,'Mutt-Use Trail (EMIS j Pueuceel :r o Future Trails >°y • NnnoNnLsr 11' f „Footprints 2010 - Hillside-Hilltop Ovi rlay, District Design Overlay D€strict Design Overlay Of strict ------ Planning Area Fayetteville 0 M25 soo 750 Looep EXHIBIT `B" RZN 11-3831 TRACT 2 OF PROPERTY LINE ADJUSTMENT PLAT FILED FOR RECORD AT PLAT 23A-000132 AT THE CIRCUIT CLERK'S OFFICE OF WASHINGTON COUNTY, BEING DESCRIBED ON SAID PLAT AS FOLLOWS: PART OF THE SOUTH ''/OF THE SW'/. OF SECTION 16, AND A PART OF THE NORTH '/: OF THE NW'% OF SECTION 21, T-16-N, R-30-W, WASHINGTON COUNTY, ARKANSAS, BEING MORE PARTICULARLY DESCRIBED AS: COMMENCING AT THE NORTHWEST CORNER OF THE NORTHEAST '% OF THE NORTHWEST % OF SAID SECTION21, SAID POINT BEING AN EXISTING IRON PIPE; THENCE S 87004'09" E. ALONG THE NORTH LINE OF THE NORTHEAST '/4 OF THE NORTHWEST '% OF SAID SECTION 21, A DISTANCE OF 5.92 FEET TO THE POINT OF BEGINNING; THENCE S 87004'09" E 418.49 FEET: THENCE N 02°23'10"E 299.42 FEET, TO AN EXISTING ARKANSAS HIGHWAY COMMISSION RIGHT-OF-WAY MONUMENT ON THE SOUTH LINE OF ARKANSAS HIGHWAY 180 (WEST 6T" STREET); THENCE ALONG THE SOUTH RIGHT-OF-WAY LINE OF SAID HIGHWAY N89003'47"W 173.03 FEET TO AN EXISTING AHC MONUMENT; THENCE N89°52'30'1W 17.36 FEET TO AN EXISTING AHC MONUMENT; THENCE S00°06'16"W 5.02 FEET TO AN EXISTING AHC MONUMENT; THENCE N89°40'59"W 45.74 FEET TO AN EXISTING AHC MONUMENT; THENCE N 89°29'27"W 62.28 FEET TO AN EXISTING AHC MONUMENT; THENCE S81°41'17"W 30.03 FEET TO AN EXISTING AHC MONUMENT; THENCE N77°25'50"W 25.70 FEET TO AN EXISTING AHC MONUMENT: THENCE N88°18'00"W 42.21 FEET; THENCE LEAVING SAID RIGHT-OF- WAY S01 044'50"W 153.30 FEET; THENCE ON A CURVE TO THE RIGHT WITH A RADIUS OF 315.50 FEET AND A DISTANCE OF 81.06 FEET; THENCE S16028'01"W 8.54 FEET; THENCE ON A CURVE TO THE RIGHT WITH A RADIUS OF 215.50 FEET A DISTANCE OF 40.68 FEET TO THE POINT OF BEGINNING, CONTAINING 2.64 ACRES, MORE OR LESS, FAYETTEVILLE, ARKANSAS, THE ABOVE DESCRIBED 2.64 ACRE TRACT BEING SUBJECT TO THE RIGHT-OF-WAY OF HILL AVENUE AND ALL EASEMENTS AND/OR RIGHTS-OF-WAY OF RECORD. LESS AND EXCEPT, SIXTH STREET RIGHT-OF-WAY: PART OF TRACTS 1 & 2 OF PROPERTY LINE ADJUSTMENT PLAT FILED FOR RECORD AT PLAT 23A- 000132 AT THE CIRCUIT CLERK'S OFFICE OF WASHINGTON COUNTY, BEING DESCRIBED IN DEED TO CITY OF FAYETTEVILLE#2006-9895,AS FOLLOWS: PART OF THE SOUTH '/ OF THE SOUTHWEST '/4 OF SECTION 16, T-16-N, R-30-W, WASHINGTON COUNTY,ARKANSAS, BEING MORE PARTICULARLY DESCRIBED AS: COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST % OF THE SOUTHWEST '/4 OF SAID SECTION 16, SAID POINT BEING AN EXISTING IRON PIPE; THENCE N86°14'53"W, ALONG THE SOUTH LINE OF THE SOUTHWEST % OF SECTION 16 A DISTANCE OF 46.00 FEET; THENCE DUE NORTH A DISTANCE OF 268.15 FEET TO THE POINT OF BEGINNING; THENCE S 88°18'00"E, A DISTANCE OF 482.55 FEET; THENCE NO2°23'10"E,A DISTANCE OF 20.58 FEET; THENCE N 89°03'47"W, A DISTANCE OF 173.03 FEET; THENCE N89°52'30"W, A DISTANCE OF 17.35 FEET; THENCE S00°06'16"W,A DISTANCE OF 5.02 FEET; THENCE N 89°40'59"W,A DISTANCE OF 46.74 FEET; THENCE N89°29'27"W, A DISTANCE OF 62.28 FEET; THENCE S81°41'17'W,A DISTANCE OF 30.03 FEET; THENCE N77°25'50"W,A DISTANCE OF 26.70 FEET; THENCE N88°18'00"W,A DISTANCE OF 45.36 FEET; THENCE N87°40'49"W,A DISTANCE OF 26.16 FEET; THENCE N87°41'42"W,A DISTANCE OF 40.98 FEET; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1381.79 FEET AND A CENTRAL ANGLE OF 0°50'34", A DISTANCE OF 20.32 FEET TO THE POINT OF BEGINNING, CONTAINING 0.15 ACRES, MORE OR LESS, FAYETTEVILLE,ARKANSAS. I certify thisinstrument was filed on 08/15/2011 03:51:27 PM and recorded in Real Estate File Number 2011-00022954 Bette stamps-Circuit Clerk ENGINEERS ■ SURVEYORS ■ PLANNERS LANDSCAPE ARCHITECTS ■ ENVIRONMENTAL SCIENTISTS 3108 SW Regency Parkway,Suite 2 Bentonville,AR 72712 (479)273-9472 Fax(479)273-0844 www.ceieng.com RECEIVED JUN 02 2011 June 2, 2011 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE Ms. Sondra Smith City Clerk 113 W. Mountain Street Fayetteville, AR 72701 RE: RZN 11-3831: Rezone (209 W. Martin Luther King Blvd.) Letter of Appeal for the June 21, 2011 City Council meeting agenda Dear Ms. Smith: We respectfully appeal the May 23, 2011 Planning Commission's recommendation that the referenced property be rezoned to Community Services - CS (Title XV Unified Development Code, Chapter 161: Zoning Regulations, Section 161.19 Community Services). Pursuant to Title XV Unified Development Code, Chapter 155: Appeals, Section 155.02 Form/Time/Place) we appeal the Planning Commission's recommendation and request the property be rezoned, Neighborhood Commercial (C-1)for the following reasons: 1. The existing zoning in the immediate area (intersection of Hill and Martin Luther King Blvd.) supports C-1: a. Applicant's property is located in the SW corner of the intersection. b. The NW corner of the intersection is zoned C-1. c. The NE corner of the intersection is zoned C-2, Thoroughfare Commercial. d. The SE corner of the intersection is zoned 1-1, Heavy Commercial, Light Industrial. 2. Requesting C-1 is in compliance with City Plan 2025. 3. Staff forced the use of the recently adopted form-based zoning. Neither one of the form-based zoning districts (Urban Thoroughfare, UT or Community Services, CS) are appropriate for the proposed land use. Either form-based zoning district would require the applicant to request a variance. This very fact is completely in violation of the criteria for requesting a variance, specifically, Title XV Unified Development Code, Chapter 156: Variances, Subsection 156.02: Zoning Regulations, Item "(3) Resulting Actions. That the special conditions and circumstances do not result from the actions of the applicant." It is obvious that the variance request would be a direct result of the actions of the applicant, as forced by staff. Thank-you for placing our appeal on the June 21, 2011 City Council agenda. Sincerely, \ Dennis Blind Providing Consolidated Land Development Services /. rJ�l// CALIFORNIA • TEXAS • AR ANSA a LIINNESOTA • G O GIA PENN Y � IA CC tvt7�1, �ef�6y1. �ycrlar�/�glat7�c�. a��YYC �7��11 'Y 0--11 J (6/2/2011) Sondra Smith - RZN 11_3831: Rezone(209 W. Martin Luther King Blvd.) Seile 1 From: <DBlind@ceieng.com> To: <ssmith@ci.fayetteville.ar.us> Date: 6/2/2011 11:05 AM Subject: RZN 11-3831: Rezone (209 W. Martin Luther King Blvd.) Attachments: Kum & Go- Letter of Appeal 6-2-11.pdf Ms. Smith Attached is our letter of Appeal for the June 21, 2011 City Council meeting. We will also submit an original of our letter to your office. Thanks Dennis Blind Project Manager CEI Phone: 479-273-9472 "We will continually set the national standard for land development services, and we are committed to the growth and success of each other." Arizona I Arkansas I California I Florida I Georgia I Minnesota Pennsylvania I Texas This message could contain confidential information. Unless you are the addressee(or authorized to receive for the addressee), you may not copy, use, or distribute this information. If you have received this message in error, please advise Dennis Blind immediately at 1-479-273-9472 or return it promptly by mail. • 1 F � I A THE CITY OF FAYETTEVILLE, ARKANSAS �` DEPARTMENT CORRESPONDENCE Aflfl ANShS CITY COUNCIL AGENDA MEMO To: Mayor Jordan, City Council Thru: Don Marr, Chief of Staff Jeremy Pate, Development Services Director From: Jesse Fulcher, Current Planner Date: May 30, 2011 Subject: RZN 11-3831 (Kum and Go)—Appeal of Planning Commission decision RECOMMENDATION Planning Commission and staff recommend approval of an ordinance to rezone the subject property from RMF- 24, Residential Multi-family 24 dwelling units/acre to CS, Community Services. Staff and the Planning Commission did not recommend approval of the applicant's original request to rezone the property to UT, Urban Thoroughfare. BACKGROUND The subject property is located at the southwest corner of Martin Luther King Boulevard and Hill Avenue, and is undeveloped, containing approximately 2.64 acres. The applicant originally requested to rezone the property from RMF- 24, Residential Multi-family 24 dwelling units/acre, to UT, Urban Thoroughfare. The applicant has stated that the intent is to develop a portion of the subject property for a Kum and Go gas station. Planning staff did not meet with the representative that presented the application at the Planning Commission meeting, and feel that statements made at the Planning Commission by the applicant were either mis-communicated or inaccurate. However, staff did communicate with others at CEI Engineering about the proposal. A number of zoning districts would allow a fueling station: UT, CS, C-1, C-2, I-1 and I-2, to name a few. However,just because any one of these districts allow for the use that the applicant is pursuing does not make it necessarily appropriate for that area. The existing zone (RMF-24) is a form-based district, requiring buildings to be placed along the street with parking hidden behind. After a review of the location of this property and following the City Council's adopted policy of "making traditional town form the standard," staff recommended that the applicant maintain one of the form-based codes for their future development plan, so that the development plan would be more in keeping with the current districts form-based requirements. In this case, Community Services is the most appropriate for this location, due to the surrounding land use, intensity, and compatibility. Planning staff did not support the applicant's ultimate rezoning request for Urban Thoroughfare, finding that the Community Services district is more compatible and appropriate at this location. The Community Services district will also allow for the development of a gas station and a wide variety of uses that serve the nearby areas.The Urban Thoroughfare district is intended to serve a wider range of population, generally regional in nature. This particular location does not seem to support a regional development pattern, and there are some uses within the Urban Thoroughfare district that may not be appropriate for this location. THE CITY OF FAYETTEVILLE,ARKANSAS Pursuant to Chapter 155.05(A)(1), the applicant is appealing the Planning Commission's recommendation and is now requesting that the subject property be rezoned to C-1, Neighborhood Commercial. The C-1 district is similar in purpose and contains uses allowed in the Community Services district. However, the differences are readily apparent in the purpose statement of the Community Services district that requires "traditional urban form with buildings addressing the streets." The C-1 zoning district is much more of a conventional suburban development model that is no longer encouraged in a location such as this; if this form is acceptable to the City Council at this location, then the C-1 district would be an appropriate request. Staff does not believe this is the direction we have been asked to take in implementing City Plan 2025. In fact, over the last several years, the City Council has denied applications for rezoning to C-I and C-2 along Martin Luther King Boulevard. There was also much discussion about the need for variances related to a development within the Community Services district. As the Council is aware, a specific development proposal may not be considered as part of a rezoning request; while the intent has been stated that a fueling station is planned for this property, there is no guarantee that will occur. Any commercial development would be required to be constructed in compliance with the underlying zoning district, including architectural and site design standards. All form-based zoning districts, which are important to ensuring a traditional town form is accomplished, require buildings to be placed along the street. When there are conditions unique to a property that makes it impracticle to meet all of these requirements, a variance may be requested. In this case, staff discussed with the applicant representatives the topography of the site could make it difficult to place buildings along certain adjacent streets. In addition, the property is made up of many different parcels, not all of which will necessarily be used for the proposed development. Currently, no commercial development is allowed on this property within the RMF-24 zoning, thus the change to Community Services would certainly increase the allowed uses on the property to include commercial, and likely thereby increase the value of the property, as well. Staff would work with the applicant, as we do with all development applications, to get project approval that meets or exceeds the minimum standards of the Unified Development Code. DISCUSSION On May 23, 2011 the Planning Commission forwarded this item to the City Council with a recommendation for approval of the CS, Community Services zoning district with a vote of 7-2-0 (Commissioners Honchell and Hoskins voted "no"). The applicant does not agree with staff's recommendation for Community Services. The Planning Commission did not consider the current request for C-1, Neighborhood Commercial. The staff report and meeting minutes are attached. BUDGETIMPACT None. JAa%- kJ Wlt(ta%4d Ta ' leDepartmental CorrespondenceLEGAL hN5R5 www.accessfayetteville.org DEPARTMENT Kit willinms TO: Mayor Jordan City A11orney .lasun R.Kcllcl City Council t.xsi.stanl(ily ll/nrnei CC: Jeremy Pate, Development Services Director Andrew Garner, Senior Planner -Current Planning Jesse Fulcher, Planner - Current Planning FROM: Kit Williams, City Attorney— DATE: ttorney DATE: June 14, 2011 RE: Appeal of RZN 11-3831 (Kum & Go) DISCRETION OF THE CITY COUNCIL Normally, the City Attorney's Office will take no position in a City Council rezoning decision which almost always rests within the sound discretion and judgment of the City Council. Indeed, I have successfully defended the few court challenges to the City Council's zoning decisions during my decade as Fayetteville City Attorney. Your rezoning decisions have never been overturned in Circuit Court. However, the current appeal ({RZN 11-3831 Kum & Go)) requesting Neighborhood Commercial (C-1) involves a unique situation and potential legal issues for the City. Therefore, I think I need to call your attention to these issues before you decide on the rezoning. The City Council is granted wide discretion by the Courts when deciding zoning issues. Only if a zoning was "arbitrary, capricious, or wholly inequitable," City of Conway v. Housing Authority of Conway, 266 Ark. 40, 584 S.W. 2d 10, 13 (1979), would such a zoning decision be overturned by the Circuit Court. The Arkansas Supreme Court defined "arbitrary" in that case as meaning "arising from unrestrained exercise of ... personal preference; based on random or convenient choice, rather than on reason or nature." The major legal concern I have is that denying the applicant's request for a Neighborhood Commercial zoning in favor of a Community Service zoning might be deemed a "spot zoning" based upon the preference of the City Council for a "form based" rather than "traditional" zoning district. C-1 AND CS: IDENTICAL PURPOSES; SIMILAR USES It is important to note that Neighborhood Commercial (C-1), a very old traditional zoning district has almost the identical express purpose of Community Services (CS) as stated in.the Unified Development Code. The express purpose for Neighborhood Commercial (C-1) is: "(A) Purpose. The Neighborhood Commercial District is designed primarily to provide convenience goods and personal services for persons living in the surrounding residential areas." §161.18 of the UDC. This is the identical language used for the newer Community Services (CS) district: "(A) Purpose. The Community Services district is designed primarily to provide convenience goods and personal services for persons living in the surrounding residential areas ...." §161.19 of the U.D.C. The Purpose section of §161.19 Community Service (CS) adds further language because it allows uses not allowed in Neighborhood Commercial, primarily residential uses. Indeed, every permitted use in Neighborhood Commercial is also permitted in Community Service and every conditional use allowed in Neighborhood Commercial is also allowed in Community Services. Therefore, it would not seem reasonable for the City Council to deny on applicant its requested Neighborhood Commercial zoning district by rezoning to Community Services because Community Services has additional permitted uses the applicant clearly does not desire. Since the purpose and uses of these zoning districts cannot justify denial of the rezoning to the more restrictive zoning district, C-1 Neighborhood Commercial, I believe there remains a single justification for a forced rezoning to Community Services instead of Neighborhood Commercial, that is Community Service's new "build-to zones" and the required 65% street frontage coverage by a developer's building (making it "form based"). 2 BOARD OF ADJUSTMENT Recognizing that this 65% street frontage requirement could cause real development problems for many "permitted uses" in Community Service (CS), such as Unit 18 Gasoline service stations, Unit 15 Neighbor Shopping, etc., Planning staff informed the Planning Commission that an applicant/developer for the Kum & Go rezoning could go to the Board of Adjustment for a variance of this 65% street frontage building coverage for this parcel. At this point the Planning Commission believed and was not otherwise informed that this 2.5 acre rezoning request was for a single parcel with over 900 feet of street frontage. To comply with the Community Services street frontage requirements, the developer would have had to build a building along 200 yards of street frontage, a difficult obligation for a developer wanting to build a gas station, eating place, or convenience store. I expressed my doubts that the Board of Adjustment would or could grant such a substantial reduction in street frontage requirements to make anticipated permitted uses developable. I also pointed out the only appeal from the Board of Adjustment is to Circuit Court. If the City Council wants to facilitate this potential development, it can do so only with its rezoning decision. My review of the four requirements that the Board of Adjustment must find to exist before it can grant any relief shows any variance approval would be almost impossible to legally grant. Thus, the applicant can probably get no relief from the Board of Adjustment. Fortunately, Community Services Director Jeremy Pate has informed me that this 2.5 acre parcel is actually composed of several existing lots. Attached is the map of the property to be rezoned showing the internal lot lines. If the developer wishes to develop only about an acre or so on the corner of MLK and Hill using existing lots, then he would not need to build an "L" shaped building a football field in length along both Hill and MLK. However, if zoned to Community Services a developer would still have to cover two-thirds of the street frontage of this corner lot with his building, an odd configuration for a gas station or convenience store, both of which are allowed by right in both Community Services (CS) and Neighborhood Commercial (C-1). ZONING COMPATIBILITY Zoning ordinances were developed many decades ago primarily to ensure compatibility between differing land uses. The current zoning of all three adjacent corners of the intersection of Martin Luther King Boulevard and Hill Avenue are all of the City's traditional commercial zoning districts. Immediately east across Hill Avenue is zoned Heavy Commercial/Light Industrial (1-1), catty-corner is zoned 3 Thoroughfare Commercial (C-2) and immediately across MLK is zoned Neighborhood Commercial (C-1). I have attached a GIS map showing these zones. South and West of this property to the railroad tracks is a Residential Planned Zoning District with no building within 25 feet of Martin Luther King Boulevard. Attached is another GIS map which shows the zoning, plus photos of structures, etc. A Community Services rezoning would be the only form based commercial zoning at this intersection. Indeed, the whole block along Martin Luther King Boulevard east of the Hill Avenue intersection is Thoroughfare Commercial or Heavy Commercial/Light Industrial with existing warehousing and retail set back far off MLK. The block of Hill Avenue south from the intersection is zoned Heavy Commercial/Light Industrial with substantial existing warehousing. It could certainly be argued that dropping a form-based commercial district within this established traditional commercial and warehousing district would be "spot zoning." SPOT ZONING As I have informed the City Council for the last decade in numerous memos about what can be considered in zoning decisions, I have warned that spot zoning should be avoided. I have quoted this case most recently in my December 15, 2010 memo. " `Spot zoning, by definition, is invalid because it amounts to an arbitrary, capricious and unreasonable treatment of a limited area within a particular district. As such, it departs from the comprehensive treatment or privileges not in harmony with the other use classifications in the area and without any apparent circumstances which call for different treatment. Spot zoning almost invariably involves a single parcel or at least a limited area.' R. Wright and S. Webber, Land Use (1978)." Riddell v. .City of Brinkley, 612 S.W. 2d 116, 117 (1981). (emphasis added) What concerns me from a legal point of view is that all of the other corner lots at this intersection are traditional commercial zones with setbacks rather than the opposite "form based" zones with build-to frontage requirements. None of these other commercial zones must build close to the street right-of-way for any part of the street 4