HomeMy WebLinkAbout151-03 RESOLUTION• •
RESOLUTION NO. 151-03
A RESOLUTION AFFIRMING THE PLANNING COMMISSION'S
APPROVAL OF A VARIANCE FROM THE REQUIREMENTS OF
§167.04, TREE PRESERVATION & PROTECTION, UNIFIED
DEVELOPMENT CODE TO ALLOW ON-SITE MITIGATION IN
THE LEGACY POINTE RESIDENTIAL SUBDIVISION.
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,
pursuant to §156.03(C)(5), Unified Development Code, hereby affirms the
Planning Commission's approval of a variance from the requirements of §167.04,
Tree Preservation & Protection, Unified Development Code to allow on-site
mitigation in the Legacy Pointe residential subdivision.
PASSED and APPROVED this 7th day of October, 2003.
By: yyo,,4,tai,,,,,iL
SONDRA SMITH, • ity Clerk
APPROVED:
By
NAME OF FILE:
CROSS REFERENCE:
Item #
Date
Resolution No. 151-03
Document
•
1
09/24/03
staff review form w/attachments
draft resolution
memo to mayor/city council
memo to
Planning Commission
memo to Craig Carnagey
copy of Variance Petition
copy of Warranty Deed
copy of Arvest Bank letter of credit
Close Up View
One Mile
View
copy of Planning Commission minutes
2
10/13/03
memo to Daw Warrick •
NOTES.
STAFF REii W FORM - NON-FINANCIAL OBLrATION
AGENDA REQUEST
For the Fayetteville City Council Meeting of: October 7, 2003
7)77/03
/51-93
FROM:
Dawn Warrick
Name
Planning CP&E
Division Department
ACTION REQUIRED: p.+.Fiaaaee Approval.
SUMMARY EXPLANATION:
ADM 03-18.00 was submitted by Charles Sloan for the Legacy Pointe subdivision. The request is to affirm
the Planning Commission's approval of a variance of Unified Development Code §I67.04 and for the
developer to provide an alternate method of compensation to the City of Fayetteville for removal of trees
within the subdivision. The method proposed is for the developer to plant, establish, and maintain all trees
required for mitigation planting.
STAFF RECOMMENDATION:
Staff recommended approval and on September 8, 2003 the Planning Commission voted 8-0-0 to approve the
request as submitted in the variance petition.
Gt,D A C. eh
vision l ead
D1 • W ��`�""�
City Attorrfcy
Department Director
Finance & Internal Services Dir.
Chief Officer
/0914 (2070.4r A
Mayor
11181°3
Date
Received in Mayor's Office
/6 -J3 Cross Reference:
Date
Previous Ord/Restt:
.1;.cj
Date Orig. Contract Date:
Date
Orig. Contract Number.
Date
New Item. Yes No
• •
RESOLUTION NO.
A RESOLUTION AFFIRMING THE PLANNING COMMISSION'S
APPROVAL OF A VARIANCE FROM THE REQUIREMENTS OF
§167.04, TREE PRESERVATION & PROTECTION, UNIFIED
DEVELOPMENT CODE TO ALLOW ON-SITE MITIGATION IN
THE LEGACY POINTE RESIDENTIAL SUBDIVISION.
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,
pursuant to §156.03(C)(5), Unified Development Code, hereby affirms the
Planning Commission's approval of a variance from the requirements of §167.
Tree Preservation & Protection, Unified Development Code to allo%#on site
mitigation in the Legacy Pointe residential subdivision. ! r
PASSED and APPROVED this 7th day of October, 2003.
By
ROVED:
By
SO$IDRA S h' IT ' lty Clerk
Mayor
FAYETTEEILLE
THE CITY OF FAYE1TEVILI.E. ARKANSAS
PLANNING DIVISION CORRESPONDENCE
•
CC Meeting of October 7, 2003
125 W. Mountain St.
Fayetteville. AR 72701
Tcicphtne (501) 575-8267
TO: Mayor Dan Coody
Fayetteville City Council
FROM: Craig Carnagey, Senior Planner (Landscape Administration
TIIRU: Dawn Warrick, AICP, Zoning & Development Administrato
DATE: September 16, 2003
ADM 03-18.00 was submitted by Charles Sloan for the Legacy Pointe subdivision. The request
is to affirm the Planning Commission's approval of a variance of Unified Development Code
§167.04 and for the developer to provide an alternate method of compensation to the City of
Fayetteville for removal of trees within the subdivision. The method proposed is for the
developer to plant, establish, and maintain all trees required for mitigation planting.
BACKGROUND
Mr. Charles Sloan has requested a variance from the requirements of § 167.04(F)(1) stating that
the strict application of this section of the ordinance would work an injustice as applied to the
Legacy Pointe Subdivision Development located off Double Springs Road. Currently the city is
not prepared to plant, establish, and maintain the required mitigation trees as approved in the
Tree Preservation Plan for Legacy Pointe Subdivision. Mr. Sloan has proposed an alternate
method to plant, establish, and maintain all of the required mitigation trees. The Landscape
Administrator has determined that this alternate plan does meet and exceed all of the
requirements currently placed on this development to mitigate for tree removal.
PUBLIC COMMENT
There was no public comment on this item at the public hearing held by the Planning
Commission.
CURRENT STATUS
On September 8, 2003, the Planning Commission voted 8-0-0 to approve and forward to the City
Council Mr. Sloan's petition for variance from the requirements of §16704 subject to conditions
recommended by staff.
RECOMMENDATION
Approval of the requested variance with assurances provided by the applicant and all staff
recommendations.
A': tReportst20031CC RAPORTSIOctober meermgslodm03-18_sban_a. memu.doc
• •
FAYETTEVILLE
THE CRY OF FAYETTEVILLE. ARKANSAS
PLANNING DIVISION
TO: Fayetteville Planning Commission Members
THRU: Dawn Warrick, AICP (Zoning and Development Administrator)
FROM: Craig Carnagey, Sr. Planner (Landscape Administration)
DATE: September 3, 2003
SUBJECT: ADM 03-18.00 Sloan Variance Petition Tree Ordinance
§156.03(C)(5) of the City's Unified Development Code states: A developer may petition the
Planning Commission for a variance from the requirements of Chapter 167, Tree Preservation
and Protection, in those cases where their strict application would work an injustice as applied
to the proposed development due to a situation unique to the subject real property; provided that
such variance shall not have the effect of nullifying the intent and purpose of the chapter. The
Planning Commission's approval of said variance must be affirmed by the City Council to
become effective, and a denial of the requested variance may be appealed to the City Council.
Description: Mr. Charles W. Sloan, the Developer of Legacy Pointe Subdivision off Double
Springs Road, has requested an alternate method of compensation to the City of Fayetteville for
removal of trees on the above mentioned property. The method proposed is for the developer to
plant, establish, and maintain all trees required for mitigation planting.
Background: In Accordance with the City's UDC §167.04(F)(1)Tree Preservation All
residential subdivisions requesting tree removal below the percent minimum canopy requirement
are required to contribute to the Tree Escrow Account. During the preliminary plat process the
developer reserved the right to request a tree variance before final plat approval. The Preliminary
Subdivision Plat for Legacy Pointe Subdivision, including the Tree Preservation Plan, has been
approved by Planning Commission. Currently, the developer is required to compensate the City
for 238 (1' caliper) trees at a replacement cost of $175.00 per tree. A letter of credit in the
amount of $41, 650.00 has been deposited with the City by the Developer. Currently, the City is
required to use this money toward mitigation planting on or in the vicinity of the Legacy Pointe
Subdivision.
SloanVariance
• •
Variance Proposal: The method of compensation proposed by the developer for the required
replacement of 238 (1" caliper) trees is to plant, establish, and maintain a minimum of 156 (5-6"
caliper) trees. One tree per single family and townhouse lot will be planted. Each property owner
will be given the choice of either planting one (5-6" caliper) tree or multiple (2" caliper trees).
These trees will be planted by a professional tree company approved by the City's Landscape
Administrator. Legacy Pointe Property Owners Association shall be responsible to the City of
Fayetteville to insure that each tree is planted, established, and maintained for no less than
twenty-five years. The developer shall deposit an irrevocable letter of credit with the City in the
amount of $41,650.00 as guarantee for the establishment of these trees. Upon completion of a
three year establishment period the Landscape Administrator shall inspect the subdivision and
determine whether ninety percent of the planted trees are healthy and have a reasonable chance
of surviving. In the absence of such a condition the City shall request from the developer the
replacement of any dead or unhealthy trees. Failure by the developer to take these remedial steps
within sixty days of a written request will result in the City's right to use the guaranty funds to
achieve compliance.
Finding 1: The square footage of canopy cover of planting 156 (4-6" caliper) trees is equal if not
greater than planting 238 (1" caliper) trees. The base density cover for 238 (1" caliper) trees
equals approximately 42,000 square feet. To meet this same square footage of canopy cover
using only a 4" caliper tree the developer would need to plant 137 of these trees. The minimum
planting scenario offered in this petition would be planting 156 (4-6" caliper) trees. With
property owners having the option of either planting 1 (4-6" caliper) tree or multiple (2" caliper)
trees, the developer is going beyond the mitigation requirements currently approved for Legacy
Pointe.
Finding 2: The City currently does not have the ability to plant, establish , and maintain
mitigation trees. All mitigation plantings have been proposed to be outsourced through the City's
RFP process.
SloanVariancc 2
• •
Finding 3: The combination of the letter of credit the developer has deposited with the City, and
the Protective Covenants on file with the County, provides a high level of guarantee to the City
that these trees will be planted, established, and maintained. This guarantee provides assurance
equal to the City contracting out of house the planting, establishing and maintenance of
mitigation trees.
Recommendation: Staff recommends approval of this variance with the following conditions:
Trees shall be planted during the appropriate planting season between October 15th and April
15th.
Describe the method(s) the applicant will utilize to track development of each individual lot that
will ensure the required trees are planted.
Provide a final date that all required trees will be planted by.
Describe the method used to ensure that maintenance, establishment, protection, watering, and
initial structural pruning of trees. Include the name of an International Society of Arboriculture
certified arborist or an equivalent approved by the Landscape Administrator who will be
performing the work, their contact number, and the date the work is scheduled to be provided for
each tree.
PLANNING COMMISSION ACTION: Yes Required
Approved Denied
Date:
Comments:
SloanVariance 3
FAYETTEVI CLE
THE CITY Of FAYETTEVILLI, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
LEGAL DEPARTMENT
TO: Craig Carnagey, Landscape Administrator
FROM: David J. Whitaker, Assistant City Attorney »Q
CC: Dawn Warrick, Tim Conklin, Hugh Earnest
DATE: September 8, 2003 RECEIVED
SEP 0 8 2003
RE: ADM 03-18.00 Sloan Tree Variance Request PLANNING DIV.
1 have reviewed Mr. Sloan's petition, as well as your findings in response. Paragraph G.
of the Sloan petition states:
"The City of Fayetteville is not yet prepared to meet its obligations in the implementation
of the Tree Preservation [Ordinance] and has not funded personnel or
facilities/equipment to implement the city's obligations to plant, fertilize, water and care
for the trees for a period of three (3) years after planting..."
In your Memo of September 3, you do not address this paragraph with any
particularized findings. This prompts two obvious questions:
1. Is this statement true? and,
2. If it is true, what is the City doing to meet its obligation to fund the equipment and
personnel needed to enforce the Tree Preservation and Protection Ordinance,
particularly §167.04(J)(4)(a)?
Whether at tonight's Planning Commission, or at the required session of the City
Council, I feel certain someone is going to ask about this, so you need to be prepared. If for
some reason the administration cannot fulfill the obligations set forth in the Ordinance, the
particular section dealing with the Tree Escrow Account must be revisited and revised as
quickly as possible in order to avoid a situation in which every residential subdivision has to
come before the Planning Commission and the City Council to request a variance.
•
4
VARIANCE PETITION
TREE ORDINANCE
TO: Fayetteville Planning Commission, City of Fayetteville
FROM: Sloan Properties, Inc. Owner and Developer, Legacy Pointe Subdivision
SUBJECT: Variance from Requirements of Chapter 167• Tree Preservation and
Protection
Developer: Charles W. Sloan Representative:
Sloan Properties, Inc. Attorney Raymond C. Smith
Post Office Box 3811 70 N. College Ave. Suite 11
Fayetteville, AR 72702 Fayetteville, AR 72701
(479) 444-8404 (479) 521-7011
(479) 444-9288 fax (479) 443-4333 fax
Project: Legacy Pointe Subdivision
Double Springs, Road
Factors that bear on the Variance Petition:
A. § 156.03(C)6 of Ordinance No. 4340 provides that a developer may petition the
Planning Commission for a variance from the requirements of Chapter 167 • Tree
Preservation and Protection, in those cases where their strict application would work an
injustice as applied to the Legacy Pointe Subdivision due to situation unique to the
subject real property and,
B. The Tree Preservation Plan for Legacy Pointe Subdivision has been approved and
the Tree Mitigation Form approved by the Landscape Administrator has proposed the
amount of $41,650.00, as the contribution of the developer to be deposited in the City of
Fayetteville Tree Fund, as set forth in §167.04(J)(4Xa) and,
C. The Tree Fund Calculation provides for 236 one inch (1") Caliper Replacement
Trees at a cost of $175.00 per tree or $41,650.00. The variance plan of the developer
LEGACY POINTE S/D VARIANCE PETITION -PAGE
provides for 156 5" to 6" native Arkansas trees at a cost of $350.00 to $375.00 per tree
or between $54,600.00 and $58,500.00, for the 132 single family Tots and 24 town house
lots and,
D. The developer's variance plan will provide a greater canopy coverage throughout
the subdivision at least three years earlier than plan as proposed by the City Landscape
Administrator and,
E The preliminary subdivision plat for Legacy Pointe Subdivision has been
approved, and the developer reserved the right to request a tree variance before approval
of the final plat of the Targe scale development and,
F. Strict application of the requirement for the developer to contribute to the amount
of $41,650.00 to the City Tree Fund would work as an injustice and hardship to the
development of the subdivision since it would delay for many years the objectives as set
out in § 167.01(A) for tree preservation and protection, and prevent the approach and
enforcement of the principle as set out in §167.01(BX2), and
G. The City of Fayetteville is not yet prepared to meet its obligations in the
implementation of the Tree Preservation Plan and has not funded personnel or
facilities/equipment to implement the city's obligations to plant, fertilize, water and care
for the trees for a period of three (3) years after planting; therefore, the Developer's tree
variance plan should be beneficial to and enhance the objectives and provide a viable
alternative, and
H. Some of the Tots within Legacy Pointe Subdivision have existing trees that
already meet the criteria as set out in the Tree Preservation Plan and will remain and
qualify for one (1) Native American Tree in the front yard of the lot.
LEGACY POINTE S/D VARIANCE PETITION -PAGE
2
•
Developer's Variance Plan.
1. The Bill of Assurances and Protective Covenants for Legacy Pointe Subdivision
filed for record on July 8, 2003, provides that the subdivision and building codes of the
City of Fayetteville as such now exists or hereinafter amended shall be and are hereby
made applicable to all lots in Legacy Pointe. The covenants and restrictions shall remain
in effect for twenty-five years and may be extended for successive five (5) year terms if
approved by a majonty of the lot owners.
2. Legacy Pointe Property Owners Association (LPPOA) shall be responsible to the
City of Fayetteville for ensuring the planting, maintenance and protection of one (1)
Native American Tree in the front yard of each lot within the subdivision and for all trees
either saved or planted in the common area of the subdivision. All planted trees shall be
planted under the supervision by a professional landscaper or a tree nurseyman.
3. LPPOA shall have the ultimate responsibility to oversee the planting, maintenance
and protection of the one (1) Native American Tree in the front yard of each lot within
the subdivision and for all trees either saved or planted in the common area.
4. LPPOA will provide to each lot owner within the subdivision proper planting
instruction and maintenance guidance for the planted Native American Tree during the
establishment period to increase the viability of each tree. Developer and LPPOA
recognize the concern expressed by the City of Fayetteville that the larger caliper trees
are not inherently of greater mitigation benefit. However, Developer and the nurseryman
have extensive experience in planting and care of larger caliper trees and this background
will utilize this experience in the development of proper planting and greater and detailed
LEGACY POINTE S/D VARIANCE PETITION -PAGE
3
•
care and maintenance guidance provided to each lot owner.
5. Each lot owner within Legacy Pointe shall be responsible to the Grounds
Committee of the Legacy Pointe Property Owners Association for the health of all
planted trees on the lot and shall be bound for not only for the three (3) establishment
period but also for the entire period of the Bill of Assurances and Protective Covenants.
6. Each lot owner within Legacy Pointe is required to plant and maintain one 4-6 inch
caliper Native American Tree in the front yard before the structure is certified for
occupancy. If the tree is damaged or dies it must be replaced within a two month period.
7. Developer shall deposit with the City either a irrevocable letter of credit or other
surety for the estimated cost of materials and labor for all trees at the time of planting in
the amount of $41,650.00, with said guarantee to be held by the City until the
satisfactory conclusion of the three-year landscape establishment period.
8. Upon completion of the three year landscape establishment period, the City
Landscape Administrator shall inspect the subdivision and determine whether ninety
percent (90%) of the planted trees are healthy and have a reasonable chance of surviving.
Upon such finding, the City shall release the guarantor and surety.
9. In the absence of such a finding by the City Landscape Administrator, the City
shall notify the Developer in writing replace any unhealthy or dead trees, or to take other
appropriate action as approved by the Landscape Administrator to correct the
discrepancies. Failure by the Developer to take remedial steps within sixty (60) days to
bring the lot in compliance with the spirit and intent of the tree ordinance, shall result in
the City's right to use so much of the funds of the guaranty as necessary to achieve
LEGACY POINTE S/D VARIANCE PETITION -PAGE
4
•
compliance. Once compliance has been verified, any remaining funds of the guaranty
shall be released to the guarantor.
10. Developer understands the City cannot enforce a subdivision bill of assurance
and protective covenants relating to the Tree Ordinance. However, it is important to
understand that the Developer has prepared and filed a Bill of Assurance and Protective
Covenants for Legacy Pointe Subdivision. The warranty deed for the lots includes
appropriate language (see attached) that the conveyance is subject to the assurances,
covenants and restrictions in the Bill of Assurances and Protective Covenants. The
covenants shall obligate each lot owner to the planting, feeding and care of one (1) 5" to
6" native American tree for a three (3) year period. In addition, the Restrictive Covenants
for Legacy Pointe require the lot owner to plant and maintain one 5" to 6" diameter tree
in the front yard for a minimum period of twenty-five years. Failure of the lot owner to
replant or maintain the tree after notice by the LPPOA would result in lien levied against
the lot for the cost of planting and maintaining the planted replacement tree.
ADVANTAGES AND BENEFITS TO THE CITY:
-Defer budget and operating cost for the City to augment Landscape Administration
Staff with additional personnel to oversee City's responsibilities.
-Defer hiring of additional personnel by the City to plant and maintain trees as part of
City's responsibility and to oversee City tree nursery.
-Reduce or defer City overhead costs to contract and purchase trees, fertilizer and
other landscape material and supplies.
-Reduce or defer City investment in vehicles and other equipments required if City
LEGACY POINTE SID VARIANCE PETITION -PAGE
5
•
is responsible for planting and care of trees for three (3) year period.
-Defer need for City to establish and maintain facilities for tree nursery and supplies.
LEGACY POINTE S/D VARIANCE PETITION -PAGE
6
•
•
qiow ALL MEN BY THESE PRESENTS:
WARRANTY nFF�
CORPORATION
(With Specific Power of Atto
That Sloan Properties, Inc., a corporation organized under the laws of the State of Arkansas by its
President duly authorized by proper resolution of its board of directors, for the consideration of ten dolars and
non 00— ($10.00) and other good and valuable consideration In hand paid by
grantee(s), the receipt of which is
hereby acknowledged, does grant, bargain, sel and convey unto the sad grantee(s) and unto grantee(s) heirs and
assigns forever the fdbwing described land situated in Washington County. Arkansas, to -wit:
LOT(S) LEGACY POINTE, PHASE I, A SUBDIVISION TO THE CITY
OF FAYETTEVILLE, AF:KANSAS, AS SHOWN ON PLAT OF RECORD IN PLAT BOOK 23A, AT PAGE
53, PLAT RECORDS OF WASHINGTON COUNTY, ARKANSAS.
SUBJECT TO THE ASSURANCES, COVENANTS AND RESTRICTIONS IN THE BILL OF ASSURANCES
AND PROTECTIVE COVENANTS AND RESTRICT)ONS FOR LEGACY POINTE SUBDNISION TO THE
CITY OF FAYETTEVILLE, ARKANSAS.
To have and to hole the same unto the said grantee(s), and unto grantees) heirs and assigns forever, with
an appurtenances thereunto belonging, and grantor hereby covenants with the said grantee(s) that it will forever
warrant and defend the title to said lands against an lawful claims whatever. except easements, special
assessments and restrictions exctnng and/or of record. if any.
That the undersigned officer of Sloan Properties, Inc. by these presents do make cans*uta and appoint,
Heritage Land Title of Arkansas. its officers and authorized agents, our true and lawful attorney in fact for us in
our names. place and stead. and for our use and benefit far the purpose of dosing the sale of the real property
described above.
Sloan Properties, Inc, further empowers, Heritage Land Title of Arkansas, its dicers and authorized
agents, our true and lawful attorney in fad, to execute any and all documents in connection with the sale and
conveyance of the above referenced property, including the execution of settlement statements and other closing
documents necessary in toinection with Me sale of the above referenced property.
And Sloan ProperWs, Inc. hereby ratifys end confirms whatever. Heritage Land This of Arkansasits
officers and authorized agents, shall do pursuant to this power.
In testimony whereof, the name of the grantor le hereunto affixed by its duly authorized President, this 9th
day of July, 2003.
Stat of Arkansas
) SS.
county of Washington
Sloan Properties, Inc., an Arkansas corporation
Charts W Sloan, President
ACKNOWLFfGMFMI
Before me. the undersigned, a Notary Public in and for the aforesaid County and Stale, on this day
personally appeared. Charles W. Sloan. who acknowledged that he was the President of Sloan Properties, Inc..
and that he as such officer. being authorized so to do had executed the foregoing instrument for the purposes and
considerations setforth therein by signing the name of the corporation by himself as such officer.
Given under my hend and official seal this 90 day of Jury, 2003.
My commission expires:
Prepared By: Heritage Land Title of Arkansas
2153 East Joyce Blvd.
Fayetteville. AR 72703
501.442-6400
Notary Public
I certify under penalty of false swearing that at least the legally
correct amount of documentary stamps have been placed on this
document
Grantee or Grantees Agent
AUG -30-2003 SAT 03:43 An
FAX N0.
,QrkVEsT
BANK
75 North East Avenue
Fayetteville, Arkansas 72701 • 479-575-1000
P. 01
IRREVOCABLE STANDBY CREDIT
Beneficiary
CITY OF FAYETTEVII.LE, ARKANSAS
113 WEST MOUNTAIN
FAYE11r-VI11.E, Alt 72701
DATE OF ISSUANCE 07/03/03LotC No. L $86693
Account Party
SLOAN PROPERTIES, INC
3459 KNOTTINGHAM PLACE
FAYKI-lEvLLLE, AR 72703
$41,650.00
07/03/04
*mots t
Expiration Date
Dear Sirs,
We hereby issue this irrevocable standby credit in your favor, which is available by negotiation of your draft(s) at sight
drawn on us bearing the clause: -Drawn under standby credit No. •
Dated of Arvest Bank, Fayetteville, Arkansas, accompanied by the following
documents."
"HE HEREBY CERTIFY THAT SLOAN PROPERTIES, INC HAS FAILED TO COMPLETE THE TREE
IMPROVEMENTS AS REQUIRED BY THE CITY OF FAYEIBVTLLE IN THE LEGACY POINTE
SUBDIVISION IN THE CITY OF FAYETTEVILLE."
PARTIAL DRAWS Ll AUTHORIZED 0 PROHIBITED
We hereby engage with drawers and/or bona fide folders that drafts
drawn and negotiated In conformity with the terms of this credit will
be duly honored on presentation at our counters and that drafts
accepted within the terms of this credit will be duly honored at
maturity.
Yours very truly,
Arvest Bank n
Fayetteville, Arkansas li
CPR�s,i,�.�7
AtariCCMn (4CJ& /1'N�EIL
e8 Signatures Requires
PROVISIONS APPLICABLE TO THIS CREDIT
This credit is subject to the 'Uniform Customers &
Practice for Documentary Credit (1993 Revisions),
International Chamber of Commerce Publ ication, No.
500" and any subsequent revisions except so far as
otherwise expressly stated herein.
1886 695
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Planning Commission • •
September 8, 2003
Page 36
ADM 03-22.00: Administrative (Sloan Petition for Tree Ordinance Variance,
Legacy Pointe Subdivision) Mr. Charles W. Sloan, the Developer of Legacy Pointe
Subdivision off Double Springs Road, has requested an alternate method of compensation
to the City of Fayetteville's Tree Escrow Account for the removal of trees on the above
mentioned property.
Hoover:
Camagey:
Moving on to item number four, ADM 03-18.00 Sloan Variance Petition
for the Tree Ordinance.
Mr. Charles Sloan, the developer of Legacy Pointe subdivision off of
Double Springs Road has requested an alternate method of compensation
to the City of Fayetteville for removal of trees on the above-mentioned
property. The method proposed is for the developer to plant, establish and
maintain all trees that are currently required for mitigation planting. There
are really two issues here. One is whether or not the developer meets the
criteria of Chapter 156.03, which is a petition for a variance from the
requirements of Chapter 167. The applicant, the developer Mr. Sloan, and
David Whitaker will address. The other issue is whether the method that
the developer is proposing to plant, establish and maintain all of these
trees, meets the requirements that are laid out for planting mitigation trees
in the landscape manual. I will give you a little bit of background on this
section. In accordance with the city's tree preservation protection
ordinance, all residential subdivisions requesting tree removal below the
minimum canopy requirement are required to contribute to the tree escrow
account. During the Preliminary Plat process the developer reserved the
right to request a tree variance before Final Plat approval. The
preliminary subdivision plat for Legacy Pointe subdivision, including the
tree preservation plan, has been approved by the Planning Commission.
Currently the developer is required to compensate the city for the removal
of trees at a replacement cost of $175 per tree for 238 1" caliper trees. A
letter of credit in the amount of $41,650 has been deposited with the city
by the developer. Currently the city is required to use this money for
mitigation planting on or in the vicinity of the Legacy Pointe subdivision.
The developer's proposal, the method of compensation, as stated before, is
for the developer to replace the required mitigation trees, establish and
maintain those trees. He is requesting to plant a minimum of 156 5" to 6"
caliper trees, one tree per single family and townhouse lot will be planted.
Each property owner will be given the choice of either planting one 5" to
6" caliper tree or multiple 2" caliper trees. These trees will be planted by
a professional tree company approved by the city's Landscape
Administrator, Legacy Pointe's Property Owner's Association shall be
responsible to the City of Fayetteville to ensure that each tree is planted,
established and maintained for no less than 25 years as per the covenants
of the Legacy Pointe Property Owner's Association. The developer shall
deposit an Irrevocable Letter of Credit with the city in the amount of
$41,650 as guarantee for the establishment of these trees. Upon
Planning Commission • •
September 8, 2003
Page 38
and we start foreclosure proceedings if they don't pay to go through, it is
just like collecting dues. We were already in the process, because it is part
of our covenants, to plant trees before we found out that the situation on
the amount of money that we have up here and what was happening with
having to plant trees back with the city. First of all, I didn't think the city
ought to be in the tree planting business for our subdivision. I dislike the
fact that they are going to wait three years after our subdivision is
established to come back in and plant trees. All we were asking was we
require it anyway. I will put up' the money, which I already have, and it
has to stay there during our construction stage until we get enough houses
in there to plant the trees. Then from that point I have a three year period
additionally that the money has to set up until we meet the three year
requirement of the tree ordinance. One of my questions was if you come
in and plant a tree two years or three years from now in somebody's yard,
after the three year period beyond that time, what can they do with that
tree? They can cut it down if they want to. You can't go back on that
home owner on anything. What we are saying is the trees we plant they
can't cut it down. They have to maintain it. I understand it is very
difficult to chase after a bunch of home owners so I am the guy you chase
after. This whole thing could be handled easily with your tree
administrator, one person, who I will meet with and go out there and I
know I am obligated for a period of time with our subdivision. I feel like
this is a good compromise. It makes it feasible, it is something that we
don't have to go in there and add additional cost to. A lot is already going
to have to absorb the cost of building putting those trees in. I think we
will put a better tree in. We use, we don't go out there and allow the home
owner's to put them in. We have someone that has to install, they have to
buy from a certain place, they have to have that person come and install
them, who will then guarantee the tree anyway for two or three years after
they install it. They usually gives instructions and everything to the home
owners of how to maintain the trees and everything. I feel like we have
offered a good compromise. We need a way for subdivisions to replant
trees. I think I'm the test case. We are the first subdivision on this tree
ordinance. We were all shocked at the dollar amount because I am
basically in a cow pastor. It is not flat land but it rolls but they have raised
a lot of cattle on this land and there is not very many trees. The few that
did have to come down there was just no way of going around it. There
are a few trees and we spent a lot of money working utilities around and
getting variances to put water and sewer on the same side of the street so
we didn't have to take down a few trees. There needs to be some avenue
that a developer is allowed to take down trees and then replant and we are
trying to bring that compromise to you. That is where we are today.
Thank you. We are fine with the conditions.
Hoover: Thank
you. I
will ask if
there is
any
public
comment on this ADM 03-
18.00.
Seeing
none, I will
bring it
back
to the
Commissioners.
Planninp Commission • •
September 8, 2003
Page 39
Bunch: A question for the assistant city attorney. I know you sat in on the
rewriting of the tree ordinance and who is better qualified to tell us about
this? Are we on good legal grounds to accept this compromise?
Whitaker: What I'm going to do is despite my initial billing this evening, you are
going to know that my habit has always been that I am not going to tell
you whether you should or should not grant a variance. I will remind you
that that's a fact based determination that you folks are empowered to
make. What I can say is that under the circumstances here where by
staff's own memos and communications to you the city is at this time not
able to provide the service contemplated by the revision committee when
this language in I67.04(J)(4)(a) was adopted. That could be for you what
would be the unique situation you would require to grant such a variance.
Understanding that it is indeed a variance from, and that is why they are
here, that all residential subdivisions would do it. This is not a complete
surprise. We had anticipated that there would be sections of that rather
hard thought document, that when the rubber hit the road there would be
some adjustments made, this is one of the hardest ones we have hit so far.
I think at some point soon we need to look at some modifications so that
every residential subdivision that comes through in the interim before a
mechanism for the city to plant the trees and maintain them. It doesn't
have to come and request a variance but perhaps there could be an option
of the two procedures, either pay into the tree fund, or as I'm not sure it's
clear from what you've seen, but basically what the applicant and his
counsel have done is drop down one subsection and adopted many of the
provisions that apply currently for on site mitigation and off site
forestation for non-residential subdivisions, simply moving them into the
residential setting and then sort of as an overlay of extra protection,
introducing voluntary measures such as strict covenants and pre-existing
property owners association with very specific requirements for trees and
protections for those trees on each lot. I think that together certainly then
moves into the second prong of what I56.03(C)(5) talks about when it
says "Provided that such variance shall not have the affect of nullifying
the intent and purpose of the chapter." I think with the alternative that the
applicant has provided you accompanied by Mr. Camagey's conditions of
approval, I think you certainly are in a position to satisfy that second
prong and indeed there are those, myself included, who think that if this
can work it would actually afford a better out come than the original
language of the ordinance would have as far as canopy cover in that
subdivision.
Bunch: Thank you. One other question, either for staff or the applicant. On the
sixty days to come into compliance, is that 60 days to file an action to be
taken since obviously there could be more than 60 days before a tree could
be planted, since another part of the presentation by the Landscape
Planning Commission • •
September 8, 2003
Page 40
Administrator gave specific planting dates.
Camagey: That would be sixty days for a response.
Bunch: I just wanted to clarify that, thank you.
Hoover: Is there any other discussion?
Estes: I have a question. The Letter of Credit that is issued by Arvest and the
requirement by the P.O.A. that it will ensure that each tree is planted,
established and maintained for no less than 25 years. How will this be
enforced? Is that Letter of Credit going to sit there for 25 years?
Sloan: I believe the intent of the ordinance, let's say I start this subdivision this
afiemoon and start putting houses in there, let's say it takes a year to get
the houses in there before we get the houses established, then we wilt plant
trees. Those trees, according to what the city was going to do is they were
going to come in and plant trees and maintain them for three years. Now
what my proposal intends to be is I will leave the Letter of Credit up until
that three year time frame is left, all I have to do with the ordinance is the
trees have to live three years according to your ordinance, not my
ordinance. My ordinance they have to be maintained for 25 years to go
along with the covenants. I am only leaving the Letter of Credit up for
three years. If he comes along and looks good, from that date on we
document it and I have three years that I have to leave the money up and
he will come back at that three year period and check to make sure they
are healthy. Once 90% of the subdivision is done then my money is
released at that point. Technically that might be a four, five, or six year
period that I have the money up. Granted, I would love to take the money
off the table at the time the tree is planted but that doesn't meet the spirit
of the ordinance. The ordinance was to try to maintain some kind of, so
the city would be able to enforce that to make sure we keep a tree there for
a three year period. We are just trying to take the city out of being the
ones to plant the trees, come by and water trees for the next three years. I
think that is undue work on the city that we can take care of has home
owners out there and as developers.
MOTION:
Shackelford: Madam Chair, after reviewing this I really like this proposal. One of the
areas of the tree preservation act that I had the most concern with was in
regards to the residential housing development. I like this idea. I think
developers and home owners are always going to have a greater vested
interest and reservation for their property than the city will. Based on that,
and the fact that our own city staff is telling us that we cannot provide this
service, I think that this variance meets the intent and purpose of the
Planning Commission • •
September 8, 2003
Page 41
ordinance as it has been written. Based on that and findings of fact by our
city staff and written conditions of approval, I will make a motion that we
approve this ADM 03-22.00.
Bunch: Not only does this meet but it far exceeds what our city requirements are
and I will happily second it and think that it is wonderful that the private
development community is showing that there is value in this and working
to not only meet our city standards, but to exceed them.
Hoover: Thank you. We have a motion by Commissioner Shackelford and a
second by Commissioner Bunch. Is there any more discussion? Seeing
none, Renee?
Roll Call: Upon
the completion of roll
call
the motion to recommend approval of
ADM
03-22.00 was approved
by a
vote of 8-0-0.
Thomas: The motion carries by a vote of eight to zero.
Whitaker: If you would like, and I think it is important based on this process, which
has actually gone on for more than a year now, with your consent we
would like to go ahead and work with the Planning staff on proposed
language with the jest that should they want to bring in protective
covenants and property owner's associations with the kind of assurance
that Mr. Sloan's project did, that would be an option as well. It would still
allow the tree fund to exist for those who didn't feel like they wanted to be
bothered with that level of commitment.
Camagey: I think it is important that what David is saying is explained. City staff,
personnel may not have the capacity to plant mitigation trees but we
should still allow the ability for applicants to pay into the tree fund and the
city can actually contract that work out. Like I said in my report, we have
an RFP submitted right now for landscape contractors to go in and plant
some of these mitigation trees that we are requiring developments to plant.
Hoover: Thank you. Is there any other discussion? Seeing none, I will adjourn the
meeting. Thank you.
Meeting adjourned: 7:26 p.m.
Subdivision CommitteS S
July 3, 2003
Page 2
FPL 03-05.00: Final Plat (Legacy Point Phase J, pp 435/474) was submitted by
Jorgensen and Associates on behalf of Charles Sloan Properties, Inc. for property located
east of Double Springs Road and south of Owl Creek. The property is zoned R -1, Low
Density Residential and RMF-6, Low Density Multi -family Residential and contains
approximately 36.53 acres with 66 single family and 24 duplex lots proposed.
Bunch: Good morning, welcome to the Thursday, July 3, 2003 meeting of the
Subdivision Committee of your Fayetteville Planning Commission.
Today we have eight items on the agenda. We will start in with old
business, it is FPL 03-5.00 for Legacy Point. This was submitted by
Jorgensen & Associates on behalf of Charles Sloan properties
incorporated. Jeremy, can we have the staff report on this please?
Pate: Yes Sir. The subject property contains 36.53 acres with 66 proposed
single-family lots and 24 proposed duplex lots. The request is to approve
the Final Plat of Phase I to allow for the sale of those lots. Phase I was
approved on March 25, 2002 and revised Phase I Preliminary Plat was
approved on May 21, 2003. Surrounding land use is agricultural and low
density residential. The right of way being dedicated is Double Springs
Road and Persimmon Street and street improvements on Double Springs
Road and Persimmon Street are also required. The Final Plat was
forwarded to the full Planning Commission by the Subdivision Committee
on June 12`° pending a final inspection. The Planning Commission sent
the project back to the Subdivision Committee at it's agenda session and
that is where we are now. We are recommending approval to this Final
Plat with nine conditions of approval. I will read those for you. 1) Label
the park property as lot 134 on the Final Plat. The parking lot for the park
property shall be constructed with Phase 11. 2) The right of way for
Double Springs Road, which varies, and Persimmon Street 70' right of
way for all phases shall be dedicated with Phase I prior to filing the Final
Plat. 3) A variance for the rear setback for the existing house on lot 76 is
required to be approved by the Board of Adjustment prior to issuance of
building permits. 4) A deed for park land dedication in the amount of
3.42 acres must be received before the signing of the Final Plat. 5) A
handrail shall be installed in the outflow structure of the detention pond by
the developer pursuant to Parks Division requirements. 6) Payment of
fees in the amount of $41,650 into the tree fund escrow account must be
received prior to the acceptance of the Final Plat. The developer reserves
the right to request consideration of a variance of this condition, which
must be approved by the Planning Commission. Conditions seven through
nine are standard conditions of approval. That is all I have.
Bunch: Thank you Jeremy. Are there any other staff reports?
Subdivision CommitteS S
July 3, 2003
Page 3
Carnagey: I just received his variance petition yesterday and I haven't had time to
review it but we will take a look at that. He is planning on making the
payment into the tree fund as of today however, so all of his conditions
have been met.
Bunch: Thank you. Parks?
Turner: If you could just let me know when the handrail goes up we will go out to
check it.
Brackett: It's up.
Turner: Ok, thank you.
Bunch: Are there any Engineering reports?
Warrick: We
met with
Mr. Casey yesterday and
reviewed
our staff reports to ensure
that
we were
including his comments.
He is not
available today.
Bunch: Ok, would you all introduce yourselves and give us the benefit of any
statements that you have?
Brackett: I am Chris Bracken with Jorgensen & Associates.
Smith: Raymond Smith, the attorney representing the developer Charlie Sloan.
Sloan: I am Charlie Sloan.
Brackett: Do you all have a presentation?
Sloan: I don't think so. I believe we've tried to meet everything that they needed
done. We got the variance in yesterday on the tree ordinance so we have a
chance to do the request that we would like to do on some of the changes
on the ordinance but other than that I think we're fine.
Bunch: At this time we will take public comment. Is there anyone in the audience
who would wish to address us on this issue? Seeing none, I will bring it
back to the committee.
Bracken: I have a question. The Persimmon right of way I have it shown as
dedicated on the Final Plat, is that sufficient?
Pate: That
is sufficient
for that.
The other will
have to be dedicated by warranty
deed
because it is
a state
highway.
Subdivision CommitteS S
July 3, 2003
Page 4
Brackett: Ok, Double Springs right of way didn't change because of the
improvements to the bridge I believe that the city or the Highway
Department dedicated that right of way. I don't believe we are dedicating
any additional right of way along Double Springs.
Warrick: If that is reflecting the current condition then our land agents should have
record of any acquisitions for the bridge improvements.
Brackett: I will get with them to make sure.
Sloan: I believe some of that was dedicated before I bought the land.
Bunch: Are there any other comments, questions or motions?
Church: Does this go to the Planning Commission then or do we approve it at this
level?
Warrick: You can approve it at this level. It is one of those items identified in your
bylaws.
Bunch: Initially we forwarded this to the Planning Commission to save time
because the final inspection had not been completed and then the Planning
Commission sent it back to us just as a matter of shortening the cycle.
MOTION:
Church: I will make a motion that we approve FPL 03-5.00.
Ostner: I will second.
Bunch: Do we have any additions to the conditions of approval that would address
the verification of rights of way with the land agent?
Brackett: If it requires a deed we will deed it.
Warrick: We just want to make sure
that the documentation is
in our files
so we can
recognize that that is what
the city currently has as
far as right
of way is
concerned.
Bunch: Persimmon Street right of way is addressed on the drawing and then we
need to verify that Double Springs?
Warrick: We will do that before we sign off on the Final Plat.
Bunch: Ok, in that case, I will concur.
FAYETTEVI LJE
lilt CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPOND
To: Dawn Warrick
Planning Division
From: Clarice Buffalohead-Pearman
City Clerk Division
Date: October 13, 2003
Re: Res. No. 151-03
Attached please find an executed copy of the above referenced resolution passed by the City
Council, October 7, 2003 approving a variance of § 167.04 to allow on -site mitigation.
The original resolution and contract will be recorded in the city clerk's office and microfilmed.
If anything else is needed please let the city clerk's office know.
/cbp
cc: Nancy Smith, Internal Auditor