HomeMy WebLinkAbout114-02 RESOLUTION•
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RESOLUTION NO. 114-02
A RESOLUTION TO GRANT THE APPEAL OF
WASHINGTON REGIONAL MEDICAL SYSTEMS
TO REMOVE THE PLANNING COMMISSION'S
REQUIREMENT TO PAY $71,951.00 TO EXTEND
LONGVIEW STREET TO PLAINVIEW STREET
WHEREAS, the City Council of the City of Fayetteville, Arkansas in 1998
unanimously overturned a Planning Commission requirement that Washington
Regional Medical System had to pay for costs to extend Longview Street through
third parties' property to Plainview Street; and
WHEREAS, the City Council of the City of Fayetteville, Arkansas, still
believes it would be inappropriate and unfair to require Washington Regional
Medical System to pay for a street through a third party's property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby grants the appeal of Washington Regional Medical Systems and
overturns and removes the Planning Commission's requirement that
Washington Regional Medical Systems and/or other developers on the subject
property must pay $71,951.00 or a proportional cost of the extension of Longview
Street across tlurd parties' property to intersect with Plainview Street.
PASSED and APPROVED this the 16th day of July, 2002.
. AYEE��` .?11
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APPROVED:
By:
"Thrvt
NAME OF FILE: Resolution No. 114-02
CROSS REFERENCE:
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07/16/02
Resolution No. 114-02
06/06/02
Memo to Fayetteville Planning Commission Members
06/06/02
Engineering Division Correspondence to Planning Commission
Members
05/11/98
Planning Commission Minutes (Pages 17-21)
06/16/98
Planning Commission Appeal/Washington Regional
06/10/02
Planning Commission Minutes (pages 7-17)
06/20/02
Letter to Heather Woodruff, City Clerk, from Burke & Olmstead,
Attorney at Law
06/24/02
Departmental Correspondence to Mayor Coody and the City Council
§166.05 (Large Scale Development) (Pages 13-15)
03/27/02
Departmental Correspondence to Tim Conklin, City Planner, and Hugh
Earnest, Urban Development Director
07/18/02
Memo to Tim Conklin, City Planner, from Heather Woodruff, City Clerk
NOTES:
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FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
113 W. Mountain St.
Fayetteville, AR 72701
PPL 02-06.00
Page I
PC Meeting of June 10, 2002
Brookstone Subdivision, PPL
TO: Fayetteville Planning Commission Members
THRU: Tim Conklin, City Planner, A.I.C.P.
FROM: Sara Edwards, Associate Planner
Ron Petrie P.E. , Staff Engineer
DATE: June 6, 2002
Project: PPL 02-6.00: Preliminary Plat (Brookstone Subdivision, pp 212) was submitted by
Terry Carpenter of US Infrastructure, Inc. on behalf of Washington Regional Medical System for
property located at 415 Longview Street. The property is zoned A-1, Agricultural and contains
approximately 38.62 acres with 8 Tots proposed.
Findings: This subdivision includes the Brookstone Assisted Care Facility and the
Washington County Health Department. This property was recently rezoned to R-0 to allow for
medical offices. Property to the north is zoned C-2, to the east is zoned R-1 and to the south is
zoned R-2. Currently 64% of the site exists in tree canopy and the applicant is proposing to
preserve 62% of the site until future development occurs. At the time of future development,
each tract will be required to meet the minimum 20% canopy preservation requirement.
Recommendation: Approval subject to the conditions listed below.
Conditions of Approval:
1. Planning Commission determination of any offsite improvements to Longview Street. At
the present there is only one ingress & egress for this subdivision to Wimberly Drive.
The original Planning Commission approval of the Brookstone Assisted Care Facility on
May 13, 1998 required the cost of one-half of this offsite portion of Longview Street be
placed in a surety bond. Subsequently, this requirement was overturned by the City
Council on June 16, 1998.
On March 18, 2002 the City of Fayetteville Street Committee discussed the possibility of
the City extending this street to College Avenue. All Committee members were in favor of
placing this project on the Capital Improvement Program list which would require
approval by the City Council. However, the acquisition of the right-of-way remains in
question.
City Staff has provided rational nexus calculations in the event that the Planning
Commission approves an assessment for this offsite street improvement. The amount of
the assessment was calculated to be $71,957.00. See the attached memo from the
Engineering Division.
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Standard Conditions of Approval:
PPL 02-06.00
Page 2
2. All required improvements including street lights will be required to be installed prior to
final plat approval Street lights may be deferred if payment is made to the electric
company with a certified check and a copy of the check and paid in full receipt is
submitted to the Planning Division.
3. Storm water detention will be required for each tract upon development.
4. Plat Review and Subdivision comments (to include written staff comments provided to
the applicant or his representative, and all comments from utility representatives - AR
Westem Gas, SWBT, Ozarks, SWEPCO, Cox Communications)
Staff approval of final detailed plans, specifications and calculations (where applicable)
for grading, drainage, water, sewer, fire protection, streets (public and private), sidewalks,
parking lot(s) and tree preservation. The information submitted for the plat review
process was reviewed for general concept only All public improvements are subject to
additional review and approval. All improvements shall comply with City's current
requirements.
Background:
The proposed preliminary plat was reviewed at the February 13, 2002 Technical Plat Review and the
May 30, 2002 Subdivision Committee Meeting.
Discussion at the Subdivision Committee meeting included possible offsite street improvements to
Longview Street.
The Subdivision Committee forwarded the Lot Split to the full Planning Commission subject to all staff
comments.
Infrastructure:
a.) Water will be extended to serve this development.
b.) Sanitary Sewer will be extended to serve this development.
c.) Streets. See Conditions of Approval
d.) Grading and Drainage. A preliminary drainage report has been submitted. A final report will be
required prior to beginning construction. The applicant is not proposing any grading on the site.
PLANNING COMMISSION ACTION: ves Required
alb 411
Date:
Comments:
Approved Denied
PPL 02-06.00
Page 3
CITY COUNCIL ACTION:
Date:
Required
Approved
Denied
The "CONDITIONS OF APPROVAL", beginning on page one of this report, are accepted in total
without exception by the entity requesting approval of this development item.
By
Title
Date
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FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
ENGINEERING DIVISION CORRESPONDENCE
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113 W. Mountain St.
Fayetteville, AR 72701
Telephone: 501-575-8206
TO:
FROM:
DATE:
SUBJECT:
Planning Commission Members
Ron Petrie P.E., Staff Engineer
June 6, 2002 (June 10, 2002 P.C. Meeting)
Brookstone Subdivision (PPL 02-06.00)
Longview Street Offsite Assessment
These calculations are provided in the event the Planning Commission determines that an assessment
is required for this subdivision for the extension of Longview Street to Plainview Avenue.
Longview Street is classified as a Collector Street on the Master Street Plan which requires a street
width of 36' as measured from back of curb. The following is the rational nexus calculations to
construct 500.35' of this street from this subdivision's eastern boundary to Plainview Avenue:
Projected Traffic from Tracts 1-5 & 7 -
Assume 50% ingress/egress to the east -
Collector Street Capacity -
5,393 vpd
2,696.5 vpd
6,000 vpd
Percentage of Capacity utilized by Development — 44.94%
From Historical Data, it costs approximately $320.00/ L.F. to construct a new 36' wide
collector street with curb & gutter and underground drainage. The required length to extend
this street to Plainview Avenue is shown as 500.35' on the Preliminary Plat. Therefore, the
total cost to extend this street is computed as follows:
500.35 L.F.($320.00/L.F.) = $160,112.00
Developer's Portion = $160,112.00(0.4494) = $ 71,957.00
Therefore, the assessment for the Brookstone Subdivision would be $71,957.00 to extend Longview
Street to Plainview Avenue.
Brookstone
Summary of Average Vehicle Trip Generation
For 27.84 Acres of Office Park
June 05, 2002
24 Hour 7-9 AM Pk Hour 4-6 PM Pk Hour
Two -Way
Volume Enter Exit Enter Exit
Average Weekday 5393 652 57 117 684
24 hour Peak Hour
Two -Way
Volume Enter Exit
Saturday
Sunday
811 51 14
378 24 35
Note: A zero indicates no data available.
Source: Institute of Transportation Engineers
Trip Generation, 6th Edition, 1997.
TRIP GENERATION BY MICROTRANS
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Planning Commission Minutes
May 1./, 1998
.Page -17-
LSD 98-13.00 LARGE.SCALE DEVELOPMENT (ASSISTED CARE UNITS 212/2131
SOUTH OF LONGVIEW AND EAST OF WIMBERLY DRIVE
This item was submitted by Northwest Engineers on behalf of Washington Regional Medical Services for property
located south of Longview and east of Wimberly Drive. The property is zoned A-1 Agricultural and contains
approximately 39.20 acres.
Staff's Recommendations:
Approval subject to the 11 conditions of approval.
Kurt Jones of Northwest Engineers, appeared on behalf of applicant before the commission. Mr. Jones stated
there were no objections to any of the conditions. They are requesting a waiver of the overhead utilities.
❑ Mr. Odom stated there were two waivers being presented - one for the parking waiver and the other
would be waiving requirement for overhead utilities to be placed underground.
Mr. Jones stated the developer is also requesting that in lieu of building the street past this development to the east
to provide a surety bond in lieu of construction of the street.
Public Comments:
❑ Mr. Odom noted there was nothing proposed by the developer to go to Wimberly.
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Thomas Gill, 3195 Butternut, which is the intersection of Village Drive and Butternut to the south of the proposed
development. He stated he received a certified letter from the engineer and from the City. He stated he attended
the SDC meeting and expressed his concern about opening Village Drive into the project. He stated since that
time he had visited with Mr. Jones and was told this was never proposed, and wanted to know if this was a viable
solution.
❑ Mr. Odom responded the engineer of the proposed project does not always get to say where they want to
build a road, and are required to provide access points. He stated the staff's concerns were of future
access.
❑ Ms. Little stated when subdivisions are platted for connectivity is addressed noted when the particular
subdivision in which Mr. Gill is presently living was considered, the planning commission did plan for a
connection to the north. That particular 50 foot right-of-way was removed from the development for the
purpose of extension to the north. The current staff has the obligation to let the current Planning
Commission know that in the part the staff and Planning Commission felt there was a need for access to
the south. With this subject property being zoned A-1 it could have developed as a subdivision with
residential lots, then there would have been a strong push for connection at that time. The property now
has developed and since then that particular access has been dropped. That option is not viable due to the
way the property has now developed.
Discussion:
❑ Mr. Forney noted the MSP shows connection from Longview towards Monte Painter. Because he had
not attended the SDC he wondered if there was any question to access to Monte Painter.
❑ Ms. Little referred to page 7.7 and noted the consideration was whether to try satisfy the MSP and the
location that was planned which would have connected to Monte Painter and then angle to the northeast to
connect to Longview. The applicant has proposed and staff is in agreement that the collector street be
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Planning Commission Minutes
May 11, 1998
Page -18-
constructed at Longview Street and intersect with Wimberly Drive. One reason this location for the
collector is the County Health facility which has been constructed at the intersection of Wimberly and
Monte Painter. The second reason is that there is a drainage way running along the southern portion of
the 40 acres and if the collector street had been placed in that area this would have necessitated a bridge
or another conveyance. The proposed location is a good location as opposed to the plan's location.
Therefore, you are not abandoning the MSP but merely accepting a street in lieu of the MSP.
❑ Ms. Little noted that off-site directly to the east there is a site for a fire station, which the City has a plan
to connect Plainview from the north down to Longview and this is shown on the map. The new
Longview will connect to the new Plainview and staff felt this would be a good connection.
❑ Ms. Hoffman wanted to address the street connectivity and does feel it would be good idea to require a
50 % contribution at this time which would steer traffic from here and the street be built to the property
line.
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Mr. Jones responded regarding the parking waiver and noted this facility would not require that many parking
spaces and the residents would not have automobiles on-site and the only people utilizing the parking would be
staff and visitors. Therefore, they feel the 55 proposed parking spaces would be more than adequate which was
based on discussions with the developer.
❑ Ms. Little stated staff was in support of the parking waiver request.
Mr. Odom moved to approve the parking waiver for 55 proposed parking spaces.
Ms. Johnson seconded said motion as stated.
Mr. Jones stated he provided some information from SWEPCO and they were not able to prepare a detailed
estimate and gave him a•ball park figure which was half a million dollars. The total cost of the proposed project
is estimated to be $4 million dollars.
Mr. Jones also wanted to discjiss t,e nronosed 50% contribution for the extension and do not feel this would be
appropriate due to the fact they are already building substantial road. He stated to require this developer to pay
for off-site road.
The roll was called and said motion carried on a unanimous vote of 7-0-0.
❑ Ms. Johnson wanted to identify the curb cut issue.
❑ Ms. Little stated this was to be brought to the commission's attention. The normal recommendation is
one curb cut per development. In this particular item in order to provide access to the drop out there the
staff concurs with the applicant's plan. The item concerning the third curb cut is to provide access to the
parking lot. This would not be necessary for the project but since there are no future proposals and with
Longview being a collector street. The particular alignment of Longview Street has been placed where it
veers back to the north to connect to Longview and it veers back to the north to allow buildable to the
south for another development
❑ Mr. Odom stated with this project being a hospital he felt two would be amenable to allow for ambulance
use.
a Ms. Little stated since this was an assisted care facility emergency vehicles would be adequately served
by the two curb cuts. There is no rear access to the building.
Mr. Jones referred to their layout and noted the two in front of the building is for the drive-thru area, and the
third access to the east is mainly to provide service vehicles to the facility without routing through the front of the
building. Also there is a fire hydrant located in that area which would be easier for a fire truck to access the
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Planning Commission Minutes
May 1J, 1998
Page -19-
hydrant and felt these three accesses would be needed.
❑ Ms. Little inquired what their comment would be if they eliminate the middle curb cut.
Mr. Jones stated there would be a lot of drive-thru traffic and their goal is to keep the traffic out of the parking lot
as much as possible.
❑ Mr. Forney inquired about the conclusions the SDC members had.
❑ Ms. Hoffman stated that since Longview may eventually be a private street and therefore supports an
elimination of one of the middle driveways which would still allow delivery vehicles easier access.
❑ Mr. Forney has no objection to three and would support two as well.
Mr. Odom moved to deny the waiver to place existing utilities underground.
Ms. Hoffman seconded said motion as stated.
Mr. Jones stated that the cost is $500,000 for this project which is over 10%n of the overall cost of he
development. He stated one of the factors the Planning Commission is required to consider in deciding a waiver
is the financial impact and burden and if $500,000 is not considered a hardship or burden, then what is, and feels
this amount is excessive.
❑ Mr. Forney stated there are a number of other areas of development going on at North Hills and the
issues of burying utilities and stated it is burdensome to go down and up and would not be cost-effective
for anybody. He referred to the ordinance and feels that the ordinance needs to be followed.
❑ Ms. Johnson inquired if the motion to deny the waiver was approved, could the applicant appeal the
denial to the council and this was affirmed. She further noted if the requirement was not followed to
place the utilities underground in this subject area then when and where would it be required.
Mr. Jones referred to the utility lines on the plat and stated that these utility lines were already on the property,
the developer would be willing to install the new utilities underground, but felt it was excessive to require the
developer to bear the burden of the cost for the existing utility lines.
❑ Ms. Little addressed another item concerning the difference of the line on the north side of the property
and the line on the east side of the property.
Mr. Jones stated according to SWEPCO there was no difference in the utilities.
❑ Mr. Forney inquired of staff regarding Staffmark and the project south of Millsap regarding burying the
utility lines.
❑ Ms. Little responded that Staffmark requested a waiver which had been denied. This is the same line
which is a major feeder which runs up north to Hwy 412. Staffmark eventually came back and would
want to readdress it and accepted to bury the lines underground with the condition to come back at a
future time. Staff has a letter from them and they are going to lay the lines underground. There is
amount of the line that the other project North Park Phase H would have been responsible for. Staffmark
would have their utility lines completely underground and would be putting up a lot of money for that
installation.
• If we grant one developer a waiver and do not have any authority to go to the other developers to ask them to help
this developer.
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Planning Commission Minutes
May 11', 1998
Page -20-
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o Ms. Little inquired concerning the other projects in this area and what SWEPCO's input was.
Mr. Jones stated it makes sense to install the utility lines at one time, but his disagreement is the overall cost to
this developer and it is within the rights of the Planning Commission to grant a waiver due to the financial
hardship. Mr. Jones stated at the present time there were no plans for the rest of the 40 acre site.
o Mr. Odom stated he did feel the amount was exorbitant and wondered if the developer could put some of
the money in escrow to be used when the other property was developed.
o Mr. Forney stated the developer had chosen the route of going conditional use but if the developer had
done a lot split, then the developer would be addressing only the property subject to this development.
The motion was restated by Chairman Odom.
The roll was called and said motion carried on a vote of 6-1-0, with Mr. Ward voting nay.
There was a question concerning the off-site improvement.
o Mr. Beavers stated Mr. Jones provided him with an estimate to extend Longview to the east in the
amount of $152,000 excluding the right-of-way.
Mr. Jones addressed this issue and noted this was a collector street and did not feel the 50% was for a collector
street or a city standard street, but if it was city standard street, the amount would be less. The estimate was
based on engineering and some other factors. This is for this street over to Plainview east of the eastern boundary
of the proposed development. The developer's preference would be for the developer not to be assessed this cost.
o Mr. Reynolds inquired if the city had acquired the land or if it had been donated.
o Ms. Little stated they did speak with Tom Lewis, representative of the Lewis family, and were willing to
consider the dedication, but this has not been formalized and does not anticipate it would be a problem.
She further stated she did not feel it was appropriate to charge this developer for a portion of the
acquisition of this land since the development of the street would directly benefit the owners of land. If
the owners do not want to dedicate the land, the city has the right to pursue this through eminent domain.
The street is estimated to be 500 feet in length.
o Ms. Little stated since the estimate includes the extension of water and sewer, those numbers should not
be in the street estimate numbers which calculation is based on $60/foot for street cost.
Mr. Jones stated the cost for the street is coming out to about $300/foot excluding engineering and utilities which
is not uncommon. He further stated Joyce Boulevard worked out to be approximately $300/foot with engineering
which is a 4 -lane road, and the asphalt cost is $65/foot.
The staff's recommendation came from the SDC and it is not unreasonable to require the applicant to construct IA
of the street off-site and the city contribute the other Si of the street.
Mr. Forney moved to approved LSD 98-13 with the following amendments to the conditions of approval:
1. That the parking waiver is granted.
2. The requested waiver for utility lines be installed be denied;
3. That two curb cuts be permitted;
4. The developer be responsible for building a 28 foot residential street for the length of
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Planning Commission Minutes
May I1, 1998
Page -21-
Longview from property line to property line and 34 of such street from east property line to
connect with the existing Longview.
Ms. Hoffman seconded said motion as stated.
❑ Ms. Johnson inquired about the extension of Longview and the fact that it does not connect with Kenray.
Staff had said Kenray would ultimately be vacated so a future street would go up there and meet with
Longview. She inquired if staff felt the street platted locates the eastern end of Longview where it
should be.
o Ms. Little stated they were in support of this configuration.
Mr. Jones inquired about the request of putting a portion of the cost of the street improvement in the surety bond
addressed in the motion.
Mr. Forney moved to approve the surety bond from the eastern edge of the property line to Longview street.
❑ Ms. Little stated the surety bond would be allowable and the question she would address was when the
street would be built and there are two options:
1. Staff take to council a request the other half of the street be built at public expense;
2. Hold the bond until development of the property to the east occurs, then the developer of that
property builds the other 14 feet and the surety bond would provide for the building of that
street.
There is no preference at this time. With regard to the request the street be built to the entry way and not to the
property line, the staff does not support this request.
Ms. Little stated property to the south is zoned R-1 and houses would be built on this property unless a developer
requests a rezoning.
Mr. Forney moved to amend his motion that the assessment for portion of the road to the east of the property
line could be made as a surety bond.
Ms. Hoffman seconded the amended motion.
Ms. Johnson inquired if the street be built within five years or the developer could come back and request a
refund.
The roll was called and said amended motion and was approved on a vote of 7-0-0.
The roll was called and said motion to approved the large scale development was approved on a vote of 7-0-0.
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June 16, 1998
Schaper voting no and Alderman Young abstaining.
This item remained on second reading.
PLANNING COMMISSION APPEAL/WASHINGTON REGIONAL
Mayor Hanna introduced an appeal submitted by Burke and Eldridge on behalf of Washington Regional
Medical Services for a large scale development off Millsap Road and Wimberly Street. The request is
to appeal the Planning Commissiori's decision to deny a waiver request for the construction of a
standard city street.
Jack Anderson, Administrator of Fayetteville City Hospital, stated this is a Fayetteville City Hospital
project. He stated he was present to ask the Council to waive the portion of the road through
Washington Regional property as well as the monetary assessment for the road across the property to
the east. They are requesting this, because every dollar required made it less likely the project would be
developed. They have an excellent site at that location. They can only afford this type of facility on this
site because Washington Regional has worked with them. If the site development costs are significant,
they will have to look at altemative sites and possibly not continue with the project. The bottom line is
if you take the street development cost off of this four -acre development you'll be taking it off the backs
of senior citizens of Northwest Arkansas. He requested the Council wait until Washington Regional
developed the remainder of the property to require the road to be completed. If it is required now, it
may prevent the project from taking place.
Alderman Williams stated the Council saved the development half a million dollars by taking into
account the need for this facility. However, the normal procedure is for the developer to build the
street all the way through. He could imagine the property on the other side developing and having two
streets within half a block of each other not being finished. He stated he has no problem requiring them
to pay half the cost of extending the street off their property; but he agrees with the Planning
Commission that they do need a street through their property.
Mr. Anderson stated his concern is that the additional cost would make it unfeasible to continue with
the project.
Alderman Williams estimated the cost savings of not running the street through to the property line
would be approximately $75,000.
Kurt Jones, Crafton & Tull Engineers, stated the estimate submitted did not include storm drainage.
He estimated it to be $150,000.
Alderman Schaper asked about further development. He noted the development was sited in the
middle of a forty -acre tract of land.
Mr. Anderson replied that the facility has been situated where it is because it is the least attractive on
the property and could justify this type of facility. They have no plans for other development at this
time.
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June 16, 1998
Alderman Schaper questioned the agreement between this development and Washington Regional.
Mr. Anderson stated it was his intention to purchase this portion of the property from Washington
Regional.
Alderman Schaper stated the rest of the site could be further developed.
Ms. Little stated part of the reason why the master street had not joined Kenray Street was so that there
would be more room on the eastern side for future development.
Alderman Daniel stated she had spoken with Chief Jackson who stated the road was needed for
emergency vehicles.
Little stated it is normal procedure for a developer to guarantee the construction of facilities with a •
bond or cash contributions. The City has not taken bills of assurance for two to three years. They are
very difficult to collect.
Alderman Schaper expressed concern about the developer purchasing a land -locked piece of property.
He asked if they were going to purchase the property, would Washington Medical Center dedicate an
access easement to them.
Little stated they have not discussed a lot split during any of the meetings. It is her understanding that
this is a Washington Regional Medical Center project.
Mr. Jones stated they are not discussing a lot split at this time.
Alderman Williams stated this was Washington Regional property and they would have to have a road
constructed through the property. He could not see a good reason not to required the road.
Alderman Williams moved to grant the waiver not to req •ir -cite road rnnctrucr nn. The
through road would be required Alderman Schaper seconded the motion. The motion carried by a
vote of 6-0-1, with Alderman Young abstaining.
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Mayor Hanna introduced an ordinance amendmg Chapter 33 of the Code of Fayetteville to provide for
the Board of Adjustment, the Plat Review Committee, the Subdivision Committee, the Tree and
Landscape Advisory Committee, and the Board of Sign Appeals.
Alderman Williams moved to suspend the rules and go to the second reading of this item and the
next item, an ordinance deleting Title 15, etc, and adopting the Untried Development Ordinance.
Upon roll call, the motion carried on a vote of 7 to 0.
City Attorney Rose read the ordinances for the second time.
Alderman Schaper asked if editing corrections would have to come back to the Council.
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AUGUST 18, 1998
Alderman Miller stated they would be able to connect to the sewer, if they were annexed.
Alderman Williams made the motion to suspended the rules on the annexation and go to
the third and final reading of the re -zoning. Alderman Miller second the motion. Upon
roll the motion carried 7-0-0.
City Attorney Rose read the annexation ordinance.
Alderman Trumbo made an motion to suspended the rules and go to the third and final
reading. No second motion was made. The re -zoning ordinance was left on the second
reading.
Mayor Hanna called for the vote on the annexation. Upon roll call the motion passed 7-0-0.
ANNEXING ORDINANCE 4114 AS RECORDED IN THE CITY CLERK'S OFFICE.
REZONING LEFT ON THE SECOND READING
WRMC ASSISTED CARE DEVELOPMENT: Mayor Hanna introduced a resolution from
Council concerning a proposed cost -share for the cost difference between construction Longview
as a 36 ft. Collector vs. A 28 ft local street for approximately 1450 ft at the WRMC Assisted Care
development.
Alderman Schaper stated that he did not know if this policy was in the City's best interest.
Alderman Williams replied the reason behind the policy was that it is assumed that many other
people other than that developer and his tenants will be using the collector. We do require a
larger right way.
Alderman Trumbo made the motion to move the resolution as presented. Alderman Pettus
second the motion. Upon roll call the motion carried 7-0-0.
RESOLUTION 113-98 AS RECORDED IN THE CITY CLERK'S OFFICE.
ORDINANCE AMENDMENT: Mayor Hanna introduced an ordinance amending Section
97.016 of the Code of Fayetteville to allow the Mayor or his designee to establish fees for the use
of City Park Ballfield for tournaments.
City Attorney Rose read the ordinance.
Alderman Williams made the motion to suspend the rules and go to the second reading.
Alderman Miller second the motion. The motion carried 7-0-0.
Legend
Subject Property
JJJJJ® PPL02-06.00
Master Street Plan
s. Freeway/Expressway
ae. Prindpal Medal
e a. Minor Medal
O % 0 Collector
eeeee listorio Collector
750 1,000
PPL02-06.00
One Mile View
a 4
BROOKSTONE SUBDIVISION
Overview
Legend
Subject Property Boundary
PPL02-06.00
Streets
Planned
0 0.125 0.25
°N.,..1 Planning Area
Baca%
0000008 Overlay DlsUIU
L _ I City Limits
Outside City
Miles
Master Street Plan
4Z ,Freeway/Expreasway
41.11%.0, Prindpal Arterial
08•16. Minor Arterial
t ♦ • Collector
eeeee Historic Collector
0.5 0.75 1
Planning Commission
June 10, 2002
Page 7
PPL 02-6.00: Preliminary Plat (Brookstone Subdivision, pp 212) was submitted by
Terry Carpenter of US Infrastructure, Inc. on behalf of Washington Regional Medical
System for property located at 415 Longview Street. The property is zoned A-1,
Agricultural and contains approximately 38.62 acres with 8 lots proposed.
Hoffman: Item number eight is a Preliminary Plat for Brookstone Subdivision which
was submitted by Terry Carpenter of U.S. Infrastructure, Inc. on behalf of
Washington Regional Medical Systems for the property located at 415
Longview Street. The property is zoned A-1, Agricultural and contains
approximately 38.62 acres with eight lots proposed. Background is the
subdivision includes the Brookstone Assisted Care facility and the
Washington County Health Department. This property was recently
rezoned to R -O to allow for medical offices. The property to the north is
zoned C-2, to the east is zoned R-1, and to the south is zoned R-2.
Currently 64% of the site exists in tree canopy and the applicant is
proposing to preserve 62% of the site until further development occurs.
At the time of future development each tract will be required to meet the
minimum 20% canopy preservation requirements. There are five
conditions of approval Tim, do we have signed conditions?
Conklin: No.
Hoffman: I will read those into the record. Planning Commission determination of
any offsite improvements to Longview Street. At the present there is only
one ingress & egress for this subdivision to Wimberley Drive. The
original Planning Commission approval of the Brookstone Assisted Care
Facility on May 13, 1998 required the cost of one-half of this offsite
portion of Longview Street be placed in a surety bond. Subsequently, this
requirement was overturned by the City Council on June 16, 1998. On
March 18, 2002 the City of Fayetteville Street Committee discussed the
possibility of the City extending this street to College Avenue. All
Committee members were in favor of placing this project on the Capital
Improvement Program list which would require approval by the City
Council. However, the acquisition of the right-of-way remains in
question. City Staff has provided rational nexus calculations in the event
that the Planning Commission approves an assessment for this offsite
street improvement. The amount of the assessment was calculated to be
$71,957.00. See the attached memo from the Engineering Division.
Standard Conditions of Approval: 2. All required improvements
including street lights will be required to be installed prior to final plat
approval. Street lights may be deferred if payment is made to the electric
company with a certified check and a copy of the check and paid in full
receipt is submitted to the Planning Division. 3. Storm water detention
will be required for each tract upon development. 4. Plat Review and
Subdivision comments (to include written staff comments provided to the
Planning CommissioS
June 10, 2002
Page 8
•
applicant or his representative, and all comments from utility
representatives. 5. Staff approval of final detailed plans, specifications
and calculations (where applicable) for grading, drainage, water, sewer,
fire protection, streets (public and private), sidewalks, parking lot(s) and
tree preservation. The information submitted for the plat review process
was reviewed for general concept only. All public improvements are
subject to additional review and approval All improvements shall comply
with City's current requirements. Is the applicant present? Would you tell
us who you are and give us the benefit of your presentation?
Nierengarten: I am Peter Nierengarten, I am an engineer with U.S. Infrastructure.
Hoffman: Do you have a presentation for us or would you prefer to just answer
questions?
Nierengarten: We can just answer questions. There are some other people from the
hospital here as well to answer any questions.
Hoffman: Thank you very much. Tim, do you want to give us any further
information before we take public comment?
Conklin: Back when the Planning Commission looked at the Assisted Care facility
there was a requirement that Longview Street be completed through this
track of land. They did build the street and did cost share with the City of
Fayetteville to their east boundary line. One of the Planning
Commission's conditions of approval was to put up a guarantee for the
future extension of Longview. They appealed that decision to the City
Council in 1998. The City Council removed that condition from that
approval at that time At this time staff is not recommending to place that
condition on this development. However, once again, the Planning
Commission is the one that will decide what the conditions of approval
would be for this Preliminary Plat. Thank you.
Hoffman: Thanks Tim. Is there any member of the audience that would like to
address us on this item? Seeing none, 1 will bring it back to the
Commission and the applicant for discussion. We have a summary of the
average vehicle trip generation and if I am reading this correctly, Tim you
may want to help me with this but on an average weekday we have 664
vehicle trips per day on page 8.5.
Conklin: Average weekday 24 hour volume is 5,393.
Petrie: 5,393 average vehicles per day.
Hoffman: That number seems really high to me and I was trying to find that.
fillePlanning Commission
June 10, 2002
Page 9
Petrie: It was determined using this standard ITE computer program. What was
inserted into the program was the acreage of the undeveloped tracts so it
didn't include the assisted care facility, it did not include the Washington
County Health facility and that is the item that the computer program asks
for is the acreage and the type of development. Certainly the developer is
in their right of submitting their own calculations. Our general practice is
to use this computer program to make that determination.
Hoffman: Thanks Ron. Do you have any comment on those numbers?
Nierengarten: They do seem high. We haven't done any calculations and have nothing
on paper to dispute them though.
Petrie: I should point out on my calculations of course, I only used half of that
number, half of it exiting to the west and half going to the east.
Hoffman: Ok, thanks. It seems to me that in light of the possibility for high trip
generation that it would behoove the Planning Commission to look again
at the assessment for the offsite street improvements and that is under our
condition of approval number one. Are you prepared to discuss that?
Nierengarten: The $70,000 on here, yes, I believe we are prepared to discuss that.
Olmstead: My name is Tom Olmstead, I am the general counsel for Washington
Regional Medical Systems and I would like to speak really quickly to the
requirement that Washington Regional pay for the cost of extending
Longview to Plainview and ask the Commission to consider the fact that
back in 1998 when this matter came before the City Council, the City
Council unanimously agreed to waive that requirement and at the time did
require us to build a standard city street to the boundary line of this
property, which was done. I think that that fact as we sit here today
creates some significant legal issues on the part of the city if they were to
go forward and request this additional money from Washington Regional
Medical System at this time. Namely I would suggest to the City that
under its ordinances having built the standard city street to the property
line it would seem to me that there is no requirement under the ordinances
that could force Washington Regional Medical System to bare this cost on
an adjoining land owner's property. Also, I would point out that we had a
meeting with the Planning Division and discussed this several months ago.
I believe the City's attorney, Mr. Williams, might be able to advise the
Commission on that issue in a little more detail but would ask that you
consider that in weighing this request.
Hoffman: Thank you Mr. Olmstead.
Planning Commissior�
June 10, 2002
Page 10
a
Williams: I did attend the meeting, I think Mr. Conklin was there also when we
discussed this. Obviously we looked back and saw that in fact this same
issue had been presented to the Planning Commission in 1998 and then
was appealed to the City Council in August of 1998. At that point in time
the hospital didn't really want to build the street all the way to the property
line. The City Council did follow the Planning Commission's
recommendation to require that but the City Council unanimously said
they did not have to contribute any money to any offsite development to
build a road on somebody else's property. In the interim, when we
learned this was being developed there has been some action where the
other property owners involved to the east of this property are attempting
to get right of way that they can dedicate to the city. The City Street
Committee has met and looked at this problem and looked at the situation
and said that they believed this would be proper use of the capital
improvements sales tax to in fact fund the street if the right of way was all
dedicated to the city. They are not going to buy the right of way. In light
of the whole history of this development and the fact that they do have a
collector size street built all the way to the property line, which can really
adequately serve this subdivision, it is a cul-de-sac but it is a very short
cul-de-sac at this point, only through their property. I think that we would
have some potential problems if we tried to require them to donate money
to build a road over somebody else's property but more than that I think
the City Council, who states the city policy has already unanimously said
no, this developer doesn't need to contribute money offsite. I think that at
the City Council that was the policy that was stated unanimously and so I
would be reluctant to challenge that policy at this point in time.
Hoffman: What is the status on the right of way dedication? Do you have any time
frames on that? It sounds like that if we could put it in the CIP budget and
we had the right of way the concern that I would have would be that we
only have one ingress and egress for a rather large tract.
Williams: The whole reason it would be in the CIP is that this is a very needed
project, no question about it. I think it is not going to be slowed up one bit
if there is not any money required of this developer. I think as soon as the
right of way gets approved that the City Council Street Committee, this is
a fairly small project compared to some of the very expensive road
projects. It is not very far, it is in conjunction with the fire station that we
have on Plainview, so it is really in the City's best interest to get this done
and I think it will be moving forward very quickly if the land situation can
be resolved. Of course the land situation is not going to be resolved if you
require them to dedicate any money right now because that is another land
owner or actually two other land owners that are necessary because of the
way the street should be laid out. That is the big problem, we are not
dealing with just one landowner, there are actually a couple of land
owners there.
Planning Commissioif 40
June 10, 2002
Page 11
Hoffman: Thank you Mr. Williams.
Conklin: I just want to make sure that the Commission is aware of this. Longview
Street is shown on our Master Street Plan. When the Lewis Brothers
property is developed they would be required to dedicate right of way. At
that time the determination of building a local street and whether or not
the city would cost share as we cost shared with Washington Regional on
Longview on this piece of property would be made. There is the ability as
the Lewis Brother's property is developed to require the same type of
improvements and right of way dedication when that property is
developed. Just because we don't have it today doesn't mean we can't get
it in the future. I do understand with one way in and out. The traffic
numbers you are looking at include the undeveloped tracts of land,
collector streets are designed to serve up to 6,000 vehicles per day they
have almost that, 5,000.
Church: Have there been other cases where we've required businesses to pay for
offsite improvements?
Williams: We have done that in the past and Tim can list a bunch. We have at the
mall where we have worked with developers to build Joyce and improve
intersections. It is not totally unique. This is kind of a different situation
in that this is on unimproved land, land that is not being developed and
that is a more unusual situation. In fact, we couldn't do anything
originally because we don't have the land. We would just be holding the
money thinking that we're going to get the land and so it is unusual like
that. We do occasionally work with developers, especially in a cost share
situation, and have had offsite improvements. Is that your memory too
Tim that we've done that?
Conklin: Yes, and I would agree that typically they are improvements that benefit
the development immediately if it is an intersection, or taking a curve out
of a street, or lift station improvement, those type of improvements. The
difficult situation here is that the land is privately owned and we don't
have the ability to even begin to build the street in that location.
Hoffman: Ok, thank you. Commissioner Allen?
Allen: I wondered if we had any data that showed the volume of traffic in 1998
as compared to 2002?
Hoffman: Is that based on the same program?
Petrie: Where would the data be collected? On Longview?
Planning Commission
June 10, 2002
Page 12
Allen: Yes.
Petrie: Ok. I am sorry, if we do I don't have that with us tonight.
Hoffman: I remember that discussion but I don't think we used that.
Conklin: Once again, on 8.5 you are looking at acres of office park development
and coming up with a calculation of 5,393 vehicles average a week daily
traffic. A collector street is designed to carry around 6,000 so it is still
within those ranges even with the one way in and out shown on there.
Petrie: I am just doing a real quick calculation with the percentage on acreage and
working that out with 3.59 acres, which of course it is very hard to make
that go back and forth, it would come up with 700 vehicles per day with
just the Assisted Care. Of course, when that came through it was the
whole piece of property. Just as a comparison, acreage wise, that would
account for 700 vehicles per day.
Estes: I have a couple of comments. This of course is a Preliminary Plat, it is
subject to certain conditions of approval. The first condition is our
determination of any offsite improvement to Longview Street. This is a
new matter that is before us and it should be considered as such. Although
it is of course related to a previous matter that we've had before us and the
appeal from this Commission to the City Council, it was during that
appeal that was brought by Mr. Olmstead's law firm, Burke & Eldridge,
that our written material reflects that the statement was made and the
request was given that the Council wait until Washington Regional
developed the remainder of the property to require the road to be
completed. Of course, we are here, the day has arrived and that is what is
before us now is that the remainder of the property is being developed.
We have a high traffic count, average vehicle trip generation has been
presented to us and there is nothing whatsoever in the record to dispute
those figures, that causes me some concern. I tell you though, there are
two additional matters that cause me even greater concern. That is that
there is a fire station that is on Plainview. There is no connectivity or no
cross access from Plainview to Longview. What we're talking about are
medical services, we are talking about assisted care facilities. If there was
any sort of an emergency personnel in vehicles from that Plainview station
would have to travel north on Plainview, turn west and go down Milsap
and then turn back north and come up and then go in. There is no question
in my mind that Longview needs to be connected to Plainview. It is just a
matter of time and who is going to pay for it. There was the appeal to the
City Council. We know that our offsite assessment . on the previous
application was unanimously overturned by the City Council, and now if I
take it correctly, although it has not been specifically stated by this
applicant we're asking to pass on it a second time. First of all, I make the
Planning Commissiofl
June 10, 2002
Page 13
assumption that Longview will be extended and connected to Plainview so
the logical next step is who is going to pay for that and how is it going to
be paid? I think we should very seriously consider the offsite assessment
of the $71,957.
Hoffman: I have a question for staff. Typically when we do offsite assessments we
put a time limit on those. If the CIP project comes through and it is
decided that the city would pay for it and the right of way is dedicated, the
money can be returned to the developer within a specified amount of time
if we put that condition on it.
Conklin: We haven't done that in the past.
Hoffman: I thought we had on Poplar and a couple of other things.
Conklin: Those are funds that we collected for improvements from the developer
for offsite. The five year time period came up and they requested their
refund of that money. It wasn't due to the CIP project.
Hoffman: Could we not put a similar time frame if the Commission does vote on an
offsite improvement assessment for this road. Could we not put a time
frame on it for expiration?
Conklin: You already have a five year time frame for the monies to be spent. If not,
we hold a public hearing and the Planning Commission determines
whether or not the improvement is going to happen fairly soon or refund
the money back to the person that gave us the money or refund the money
back to the individual lot owners within the subdivision.
Hoffman: I am asking that because the development is certainly an important one for
the area. It is going to serve the hospital, it is going to serve a lot of
people coming to the area for medical treatment. It is sizeable enough to
generate this 5,300 vehicle trips a day so it seems to me that it could be
argued the other way that it is feasible that they should pay for the
connection or part of it, of Longview.
Hoover: I just realized that I need to recuse from this issue.
Hoffman: Ok, that gives us seven votes. I am always trying to remember too how
many the issue requires since we're short one Planning Commissioner.
This just requires a simple majority. Knowing that you have seven votes
do you wish to proceed or do you want to wait until we have more votes
here?
Olmstead: Go ahead and proceed.
Planning CommissioIS
June 10, 2002
Page 14
a
Bunch: Mr. Williams, when this went through before and went to the City
Council, possibly some of the reasoning for not having offsite
improvements so that one facility would not carry the burden of offsite
improvements whereas at this point in time we're looking at a potential 28
or 29 acres of development over and above one individual facility.
Previously it was just the Assisted Care facility. Now it is more or less a
commercial development. Was there any sort of thinking like that in the
decisions?
Williams: Actually, I don't think that we bought that particular argument that was
presented to us by Washington Regional at that time. At the time that it
went to the City Council Washington Regional wanted the street only to
be built to the driveway of the Assisted Care Facility. They did not want
the road completed to their property line as the Planning Commission had
demanded. The City Council, including myself as an alderman at that
time, went along with the Planning Commission and required the hospital
to build their road all the way to the property line and that is when they, in
reading what Commissioner Estes stated, we did require them to complete
that road at that time. They wanted to wait and not complete the road until
the rest of the property developed but we said "No, you have to complete
the road to your property line, even now even though only one parcel of
property is being developed." I think we took into account the fact that all
of this land was going to be developed and that is why we required them
to build it to the property line. We simply felt that it was improper to
require them to pay for offsite development on somebody else's property.
We felt that whenever that other property would develop, that developer
just like them, would have to pay to have the road built through. We did
oversize the road and I think part of that would be to insure that there
would be adequate access into this property even prior to the other
extension being completed of Plainview.
Conklin: This was built to collector street standards. Washington Regional Medical
Center paid for a 28' street all the way from Wimberley Drive to the east
property line. They paid the cost of extending that street to the east
property line. The City did a cost share to make that into a collector street
standard. I think the argument that Washington Regional made was they
had to pay for a local street on their property, 28' and then they would be
paying for a street on someone else's property. I think that is one of the
main arguments that was made.
Hoffman: Thank you Mr. Conklin.
Ward: This is either for Tim or Kit. If we required this assessment to be made,
which is about $72,000, which is about $9,000 a lot since there are eight
lots. Could that be collected when they were brought for large scale?
Planning CommissiorS 40
June 10, 2002
Page 15
Conklin: Possibly at large scale.
Hoffman: That would seem to me to be a more equitable solution. I realize that there
is somewhat of an issue of requiring offsite improvements. However, if
the street directly serves that subdivision, I believe that is a crucial issue as
to whether or not we can require the offsite improvement. I think there is
no question that Longview would be not only serving the subdivision, but
a needed ingress andegress point for it. If anybody wants to try to turn
that into a motion I would sure like it. Is there any other discussion? I am
going to try to craft a motion. I will move for approval of PPL 02-6.00 for
Brookstone Subdivision and the first condition of approval would be that a
pro rated system of offsite improvement funding be enacted at the time of
large scale development on a per lot basis and that assessment be divisible
by the sum of $71,957. based on each lot and then with the standard
conditions of approval.
Petrie: Madam Chair, on the $71,000, my recommendation would be we go to the
overall cost and when the developments come through then we have a
better idea of exactly the number of traffic.
Hoffman: I would like to put a not to exceed total number in there though because
we've already arrived at this. Then we could prorate it not to exceed when
the total lots come through the $71,000. My motion would state then that
the offsite improvements be calculated on a pro rata basis per lot not to
exceed $71,957. That is my motion.
Ward: I will second that. With it, I would like to again ask Kit, our City
Attorney, what remedy does the applicant have if we approve it at this
level as far as this assessment, they can still take it to the City Council
right?
Williams: They can do
just like
they did in 1998 and
appeal
to the City Council if
they disagree
with any
of your requirements
for this
plat.
Ward: Is there a chance that the City Council could find money to do this project
as far as this road?
Williams: In fact, the City Council Street Committee, which is basically half the City
Council, has unanimously had a meeting and looked at this project and
said "Yes, this is a project that we feel will be done by the City." Even
though it has not been budgeted yet and it doesn't make much sense to
budget it until we know that we can actually have the property dedicated
to the city, I would anticipate that if the property becomes dedicated to the
City, that it would be a very quick project to be done because as
Commissioner Estes has pointed out, this is a very worthwhile project. It
Planning Commissioi
June 10, 2002
Page 16
a
is close to a fire station. It probably will receive a lot of traffic if it is
completed.
Ward: Ok.
Hoffman: Thank you. Is there any further discussion?
Shackelford: Since we have changed this substantially from what was proposed, could
we give the applicant an opportunity to comment on the changes? You
guys have heard the conversations here. We are now talking about
assessing these fees, trying to pass those on to the cost of the lots as they
are developed, does that change your objection or position at all?
Olmstead: No.
Shackelford: Kit, you had stated pretty adamantly that you were not in favor of this due
to some legal reasons, have you heard anything here in this conversation
that has changed your opinion whether or not we should require these
fees?
Williams: No I haven't. Primarily I guess my feeling was is that even though this is
a different project, as Commissioner Estes stated, I think the general
policy was pretty much established by the City Council in 1998. 1 think it
was close enough to this and enough was required of the applicant there in
requiring them to build a road all the way to their property line, not just to
the project that they wanted to build, that I feel like more from a policy
point of view, that the City Council has pretty much already spoken on
this. However, we have a lot of new members on the City Council, it is a
new City Council so I can't predict what they might do.
Shackelford: Madam Chair, based on that, even though I strongly support this project, I
am going to vote against the motion as it stands. I agree that the street
needs to be built. I have to go with the City Attorney that this may not be
the way that we need to fund it and I want to state that even if we do try to
fund it this way, we are still dependent upon getting right of way
easements from other property owners. I don't see that what we're doing
here is going to facilitate the street being built any quicker. Due to that, I
will be voting against the motion as it stands.
Hoffman: Thank you Commissioner Shackelford. Let me just try to elaborate on my
thinking on the prorating of the funds. The Planning Commission should
be in the business of planning and the fact that we do not have a right of
way and that we do not have the CIP funding at this time is precisely why
I will vote for it. In some way that could possibly help expedite the
building of the road. It is a very short piece, I don't look at it for a tract
this size as an undue financial burden, the developer would have been
Planning Commissioia
June 10, 2002
Page 17
required to build the entire street that surrounded his property anyway.
That is something that he should do and has done and certainly needs to
have credit for that. He has an impact on the adjoining streets with the
high volume of traffic that is going to be generated by the medical offices
so I just wanted to be clear in my reasoning for thinking that we should do
the prorating. Does anybody else have any comments at this time?
Renee, would you call the roll please?
Roll Call: Upon the completion of roll call the motion to approve PPL 02-6.00 was
approved by a vote of 6-1-1 with Commissioner Hoover abstaining and
Commissioner Shackelford voting no.
Hoffman: The motion passes on a vote of six to one with one abstention. Thank you
Gentlemen.
•
BURKE & OLMSTEAD
ATTORNEYS AT LAW
211 N. COLLEGE AVENUE
P.O. BOX 290
FAYETTEVILLE, ARKANSAS 72702-0290
THOMAS B. BURKE(1942-2001) TELEPHONE (479) 443-3896 TELECOPIER
THOMAS J. OLMSTEAD EMAIL ADDRESS • olmsread@malaw.mm (479) 4433889
June 20, 2002 RECEIVED
Ms. Heather Woodruff ►UN 2 (1 ,,;i1
Fayetteville City Clerk CITY OFFAYET(EVILLE
113 W. Mountain CRY CLERICS OFFICE
Fayetteville, AR 72701
Re: Notice of Appeal of Planning Commission Decision PPL 02-6.00
Preliminary Plat - Brookstone Subdivision
Dear Ms. Woodruff:
On June 10, 2002 the Fayetteville Planning Commission approved the preliminary
plat/large-scale development of Washington Regional Medical System ("WRMS") in connection
with its plans to construct a medical office building on Tract 2 of an eight (8) tract property
consisting of 38.62 acres subject to five conditions. The proposed development is for a small
medical office, in particular a pathologist's office, which will employ approximately 15 to 20
individuals and will rarely occasion any visitors.
As one condition of approval, the Planning Commission required WRMS to contribute
one-half the cost, or $71,951.00, to extend Longview Street to Plainview Street. WRMS hereby
appeals that portion of the Planning Commission decision that conditions approval on the
construction of this off -site improvement across a third -party's unimproved real property. This
appeal is requested pursuant to Section 155.05(A)(2) of the City of Fayetteville Unified
Development Ordinance.
In 1998, WRMS was required by the Planning Commission to construct a standard city
collector street across the entire length of its property as a condition to approval of its plan to
construct an assisted living facility on one of the eight tracts. At that time, the Planning
Commission had similarly conditioned approval of WRMS' plat on WRMS advancing one-half the
cost to construct and extend Longview across the same unimproved property to Plainview Street.
Upon considering the appeal of WRMS, the City Council on June 18, 1998 unanimously granted
a waiver of that off -site road construction requirement.
It is the position of WRMS that the decision of the Planning Commission to require
WRMS to contribute one-half the cost for construction of an off -site improvement across a third -
party's unimproved real property is contrary to law as well as the City of Fayetteville Unified
06-20-02PO3:47 RCVD
Ms. Heather Woodruff
June 20, 2002
Page Two
Development Ordinances that pertain to Large Scale Developments. In particular, the cost and
scope of the proposed off -site improvement does not bear a "rational nexus", nor is such condition
roughly proportional, to the development proposed by WRMS. See Unified Development
Ordinance, Section 166.05(C)(7); Constitution of the United States, Amend. 5; Nollan v.
California Costal Comm'n, 425 U.S. 825 (1987); Dolan v. City of Tieard, 512 U.S. 374 (1994).
In part, it is the position of WRMS that the off -site improvement required by the Planning
Commission requires WRMS to bear a public burden which should otherwise be borne by the
public as a whole. Id. WRMS further contends that the Planning Commission requirement that
it pay one-half the cost to construct a standard city collector street across a third -party's
unimproved real property violates the zoning powers conferred upon Municipal Corporations by
the General Assembly. See e.g., Ark. Code Ann. §14.56401 et seq; Ark. Code Ann. §14.56.417;
City of Jonesboro v. Vunacannon, 310 Ark. 366 (1992). Finally, WRMS contends that the City
Council, through its action in granting WRMS a waiver of this very requirement in 1998, has
spoken and passed upon the issue.
On behalf of WRMS,
the
owner of the
subject property, I would appreciate the City
Council scheduling
a
hearing
on
this
appeal at
its earliest
convenience.
Should you have any questions or comments, please do not hesitate to call me.
Yours very truly,
TJO/nm
Cc: Mr.
Steve Lampkin
-President
and CEO WRMS
Mr.
Kit Williams -
Fayetteville
City Attorney
FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Dan Coody, Mayor
City Council
FROM: Kit Williams, City Attorney
DATE: June 24, 2002
RE: Required off -site road improvements
Washington Regional Medical Center Appeal
(scheduled for July 16th Council meeting)
LEGAL DEPARTMENT
The City Council had unanimously rejected the Planning
Commission's previous request to assess off -site road improvement costs
against Washington Regional Medical Center when it first developed on
this acreage less than four years ago. However, the Planning Commission
on June 10, 2002, again decided to require Washington Regional to pay
about $72,000.00 to help build a road through a third parties' property.
Washington Regional has again appealed, so this City Council will have
to decide whether it is appropriate, advisable and legal to require this
$72,000.00 payment for construction costs of a road through the adjoining
property owned by third parties.
As City Attorney, it is not my place to opine about whether it is
appropriate or advisable to require this off -site road construction. I will
only address the legal issues. Even though the 1998 City Council decided
to reject the Planning Commission's off -site road assessment requirement,
you are not legally bound to make the same decision despite the
similarities of these appeals. It may be wise to try to be consistent in your
development and land use decisions and appeals, but you are not legally
obligated to follow previous City Council decisions concerning appeals.
I have attached §16k Large Scale Development m ask that you
read at least Subsection C.7 (page 14) which provides the Planning
Commission the power to require that "the developer shall be required to
bear that portion of the cost of off -site improvements which bears a
rational nexus to the needs created by the large scale development." I
believe this ordinance allowing proportionate assessment against a
developer for off -site infrastructure costs caused by the development is
constitutional. However, there are significant questions about whether
this is statutorily legal in Arkansas.
I have previously prepared three memos on the issue of a road
impact fee and the statutory limitations on cities which attempt to require
off -site road improvements or the payment of money in lieu thereof (as
ordered by the Planning Commission).
My longest memo was the February 14, 2002 one to the City
Council. I included and detailed therein the Attorney General's Opinion
No. 95-091 which concludes that the only legal authority for a city to
charge for off -site projects was A.C.A. §14-56-417 (b) (6). Although this
memo dealt with the proposed impact fees, I noted it was applicable to
"off -site road or bridge constructions, etc."
I explained my analysis of our authorizing statute (A.C.A. §14-56-
417) in greater detail in my March 27 memo. I concluded that a city
probably cannot require a developer to do more than construct and
dedicate required streets "within the subdivision." Therefore, our
ordinance allowing the Planning Commission to require developers to
partially pay for off -site road construction is legally suspect and may
simply be beyond our statutory authority. I have enclosed this short
memo to explain why I am concerned that state law may not authorize the
City to mandate contributions for off -site road improvements.
I also wrote a memo to the Planning Commission on May 10, 2002,
attaching my previous memos and stating, "a generalized road impact fee
is clearly illegal." I am equally concerned that the Planning Commission's
requirement that Washington Regional pay $72,000.00 for an off -site
(proposed) road is on very shaky legal ground.
I
01
§166.05 LARGE SCALE
DEVELOPMENT.
A. Requirement. The development
of a lot or parcel larger than one acre must be
processed in accordance with the requirements
for a large-scale development.
(Code 1991, §160.120; Code 1965, App. A,
Art. 8(11); Ord. No. 1747, 6-29-70; Ord. No.
1999, 5-7-74)
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B. Review and Approval All large
scale developments, not hereinafter excluded,
must be reviewed by the Plat Review
Committee and the Subdivision Committee
and must be approved by the Planning
Commission, after having afforded the
opportunity for public comment, before a
building permit may be issued. Approval by
the City Council shall not be required unless
an appeal is taken and heard.
Cross Reference: Appeals, Chapter 155.
C. Building Permit/Large Scale
Development. Before a building permit for a
large scale development may be issued, the
developer shall:
1. Development Plan. Submit
a development plan to the City Planner for
review by the Plat Review Committee The
development plan shall consist of a black line
site location map drawn to scale and not to
exceed 14 inches by 18 inches, and an
accurate black line vicinity map not to exceed
14 inches by 18 inches. The vicinity map need
not be drawn to scale.
2. Site Location Map. The site
location map shall depict the following:
a. The size and shape
of the property on which the development is to
be located.
b. The location, size
and arrangement of existing buildings, signs,
outdoor advertising, and other improvements,
water courses, ponds and streams, and any
other distinctive or unusual features that will
remain after the development is completed.
c. The location, size
and arrangement of proposed buildings or
additions, parking and loading areas and the
type of surfacing proposed for such areas,
or lmPorrAWT
4/
streets, driveways, curb cuts, community
facilities, pedestrian ways, and open spaces.
3. Legal Description, A
correct legal description of the property
located within the large scale development,
and a correct legal description, certified by an
abstractor or surveyor, of street right-of-way
dedications and vacations and utility and
drainage easements.
4. Vicinity Map. The vicinity
map shall depict the following:
a. The location and
name of any street which abuts or intersects
the large scale development.
b. The location and
name of any other street building or landmark
necessary to clearly indicate the location of
the large scale development.
5. Preliminary Street and
Drainage Plans. (Required only where the
developer proposes new streets or an
alteration in the existing street plan.) Submit
to the City Planner for review by the Plat
Review Committee preliminary street and
drainage plans, showing alignment of streets
and direction of flow of storm and sanitary
sewers in relation to topography. Where an
official street and drainage plan exists, it shall
be submitted for purposes of comparison.
6. Dedication of Right -of -
Way. Dedicate sufficient right-of-way to
bring those streets which the Master Street
Plan shows to abut or intersect the large scale
development into conformance with the right-
of-way requirements of the master street plan.
for said streets; provided, the Planning
Commission may recommend a lesser
dedication in the event of undue hardship or
practical difficulties. Such lesser dedication
shall be subject to approval by the City
Council.
7, Miscellaneous
Requirements.
a. Comply with those
requirements of §§ 166.03 through 166.04
of the Development regulations pertaining to
streets, surface drainage system, water system,
sanitary sewer systems; and, if the
development is multifamily housing, said
requirements pertaining to public parks; and
install a sidewalk adjacent to all abutting
streets or highways in accordance with City
specifications for sidewalk construction.
b. The developer may
be required to install off -site improvements,
where the need for such improvements is
created in whole or in part by the proposed
large scale development. For purposes of this
section, an off -site improvement shall mean
all, or any part of, a street, surface drainage
system, water system, or sanitary sewer
system, which is to be installed on property
located outside the proposed large scale
development. c. Any required off -site
improvements shall be installed according to
City standards. The developer shall be
required to bear that portion of the cost of off -
site improvements which bears a rational
nexus to the needs created by the large scale
development.
d. The Subdivision
Committee or Planning Commission may
refuse to approve a large scale development
for any of the following reasons:() The
development plan is not submitted in
accordance with the requirements of this
section.
(2). The
proposed development would violate a City
ordinance, a State statute, or a Federal statute.
(3). The
developer refuses to dedicate the street right-
of-way, utility easements or drainage
easements required by this chapter.
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(4). The
proposed development would create or
compound a dangerous traffic condition. For
the purpose of this section, a "dangerous"
traffic condition shall be construed to mean a
traffic condition in which the risk of accidents
involving motor vehicles is significant due to
factors such as, but not limited to, high traffic
volume, topography, or the nature of the
traffic pattern.
(5). City water
and sewer is not readily available to the
property within the large scale development
and the developer has made no provision for
extending such service to the development.
(6). The
developer refuses to comply with subsection
7. b. and c. pertaining to required on -site and
off -site improvements.
Cross Reference: Notifications and Public
Hearings. Chapter 157 ; Appeals. Chapter
155.
D. Certificate of Occupancy. No
certificate of occupancy shall be issued until
the improvements required by subsection 7. a.,
b. and c. are installed to City specifications.
E. Completion of Development/As
Built Plot Plan. Upon completion of the
development, the developer shall file with the
City Planner an "as built" plot plan for the
large scale development showing:
1. The location of all
buildings and the setback distance for said
buildings from street right-of-way and
adjoining property lines;
2. The location of any free-
standing signs and the setback distance of said
signs from street right-of-way and adjoining
property lines;
3. The location, number,
dimensions and surfacing of all parking spaces
and of all screens or fences.
4. The location and size of all
water, sewer, gas, electric, telephone and
television cable lines.
F. Minor Modifications. The City
Planner may authorize minor modifications in
an approved large scale development. Minor
modifications shall include, but not be limited
to, substitutions of one approved structural
type for another or minor variations in
placement of buildings in such a way that the
overall limits of approved floor area, open
space or rooms per acre are not increased. In
the event that a developer wishes to make
major modifications to an approved
development, such modifications shall be
submitted to the Subdivision Committee in a
form which compares the approved
submission with the desired changes. After
submission, the Subdivision Committee shall
approve or disapprove the requested
modifications at its next meeting.
G. Excluded developments. The
following large scale developments shall be
excluded from the requirements of this
section:
1. A single-family residence,
an addition to a single-family residence, or an
accessory structure for a single-family
residence;
2. An addition to an existing
structure if the addition will not:
(a). Exceed 10,000
square feet; or
(b). Require more than
25 additional parking spaces under the
provisions of the zoning ordinance; or
(c). Require a change
in existing ingress or egress;
S.,
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FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAICER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Tim Conklin, City Planner
Hugh Earnest, Urban Development Director
FROM: Kit Williams, City Attorney
DATE: March 27, 2002
RE: Major Road Impact Fee Legality
LEGAL DEPARTMENT
I do not believe the City of Fayetteville can legally impose a
generalized road impact fee on new developments,
The Arkansas Attorney General has clearly held: "In sum, it is
my opinion that a municipality may impose an impact fee only under
the authority granted in A.C.A. §14-56-417 (b) (6), and only in
compliance with the conditions and limitations set forth therein and in
applicable case law." (Arkansas Attorney General Opinion No. 95-091;
emphasis added).
A.C.A. §14-56-417 (b) (6) states:
"When a proposed subdivision does not provide
areas for a community or public facility based on
the plans in effect, the regulations may provide for
reasonable dedication of land for such public or
community facilities, or for a reasonable equivalent
contribution in lieu of dedication of land, such
contribution to be used for the acquisition of
facilities that serve the subdivision."
The only power given to cities to require an impact fee is "for a
reasonable equivalent contribution (of money) in lieu of dedication of
land, such contribution to be used for the acquisition of facilities that
serve the subdivision." If a subdivision does not provide "a
community or public facility" such as a wastewater treatment plant,
water reservoir, or park within its subdivision, then a "reasonable
equivalent contribution" is authorized by A.C.A. §14-56-417 (b) (6).
The City can and does require developers to build and dedicate
streets within the proposed subdivision. Not only are streets probably
not "a community or public facility"', the developer has probably met
•his statutory requirement by construction and dedication of the
required streets within the subdivision. Therefore, a road impact fee as
a "contribution in lieu of the dedication of land" cannot be required if
the developer has, indeed, built and dedicated the required roads
within his subdivision.
The Consultants justify their proposed road impact fees as a fair
way to pay developers for improving major roads within or abutting
their subdivisions.
1 The statute specifically refers to streets as "improvements" rather than a "public or
community facility." A.C.A. §14-56-417 (b) (1) (C) and (2) (A). The only Arkansas case I could
find defining "facility" (in a different context) referred to a building as opposed to a road or
means of transportation. Residents of Sevier County v. Arkansas Highway and
Transportation Commission, 330 Ark. 396, 954 S.W. 2d 242 (1997). A.C.A. §14-56-414 refers to
a Community Facilities Plan {(c) (1)} and lists "schools, playgrounds, recreational areas,
hospitals, special education facilities and cultural facilities" as "Community facilities". Streets
are not listed under subsection (c) Community Facilities Plan, but under section (d) Master
Street Plan. Therefore it appears clear that streets are not "public facilities" for purposes of
A.C.A. §14-56-417 (b) (6).
"The proposed road impact fees differ from
the proposed water and wastewater fees in
that a significant portion of the fees would be
used to compensate developers who have
frontage on major roadways and are required
to construct or improve them." (page 8)
(emphasis added)
It is not the place of the City Attorney to judge policy issues such
as whether it is fair and proper to require one developer to compensate
another developer whose property fronts a major street.
However, I do not believe the City Council has the legal authority
to decide such a fairness policy issue either because I agree with the
Attorney General that we are limited to the powers granted in A.C.A. §
14-56-417 (6). That statute does not authorize us to charge a
generalized road impact fee.
FAYETTEVIVILE
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDE
To: Tim Conklin, City Planner
From: Heather Woodruff, City Clerk
Date: July 18, 2002
Please find attached a copy of Resolution No. 114-02 granting the appeal of Washington
Regional Medical Systems to remove the Planning Commission's requirement to pay $71,951.00
to extend Longview Street to Plainview Street. The original will be microfilmed and filed with
the City Clerk.
cc: Nancy Smith, Internal Audit
Kit Williams, City Attorney
Stephen Davis, Budget & Research
John Goddard, Information Technology
Clyde Randall, Information Technology
010 03 City�f Fayetteville 7/23/2002
Update ndex Maintenance , 15:45:09
Document item Action
Reference Date Ref. Taken Brief Description
RES 7162002 114 EXTEND LONGVIEW STREET TO PLAINVIEW
Enter Keywords........: RES. 114-02
GRANT
APPEAL
WASHINGTON REGIONAL MEDICAL
REMOVE
PLANNING COMMISSION'S
$71.951.00
LONGVIEWS STREET
PLAINVIEW STREET
File Reference #......: MICROFILM
Security Class........: Retention Type:
Expiration Date.......: **** Active ****
Date for Cont/Referred:
Name Referred to......:
Cmdl-Return
Cmd8-Retention
Cmd4-Delete Cmd3-End
Press 'ENTER' to Continue
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Yes No
Cc) 1986-1992
Munimetrix Systems Corp.