HomeMy WebLinkAbout42-09 RESOLUTIONRESOLUTION NO. 42-09
A RESOLUTION TO AFFIRM THE PLANNING
COMMISSION'S GRANTING OF A CONDITIONAL USE
PERMIT (CUP 08-3 I 58)
WHEREAS, an appeal of the Planning Commission's approval of CUP 08-3158
(Wilkins) was properly brought to the City Council, and
WHEREAS, the City Council conducted a full hearing including comments from the
applicant, neighbors and all interested persons.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL FO THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby affirms the
Planning Commission's approval of CUP 08-3158 (Wilkins) with all stated terms and conditions
of approval.
PASSED and APPROVED this 17th day of February, 2009.
ATTEST:
By:
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SONDRA E. SMITH, City Clerk/Treasurer
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City Council Meeting of February 17, 2009
Agenda Item Number c2 191
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CITY COUNCIL AGENDA MEMO (Prii<in5
To: Mayor and City Council
Thru: Don Marr, Chief of Operations
From: Jeremy C. Pate, Director of Cun-ent Planning
Date: January 26, 2009
Subject: Appeal for Wilkins (CUP 08-3158)
RECOMMENDATION
The Planning Commission voted to approve the subject Conditional Use Penn t request, CUP
08-3158 (Wilkins), with a vote of 7-1-0 (Commissioner Graves voting "no"). Minutes from
the meeting are included in this packet. The President of the Jennings -Plus Neighborhood
Association has requested three members of the City Council to appeal the Planning
Commission decision (see attached letter).
Planning Staff' recommended approval of the requested Conditional Use Pennit, finding that
granting the Conditional Use to operate a small-scale tattoo business (Use Unit 17) adjacent
to Archibald Yell Boulevard, a 5 -lane highway and major north/south corridor in an existing
commercial center, will not adversely affect the public interest and is compatible with the
surrounding properties and businesses.
BACKGROUND
•
In an attempt to resolve a use and sign violation, the applicant submitted an application to
the Planning Division for a Conditional Use Permit to operate a Tattoo Business (Use
Unit 17) on the subject property. In part, because the City does not have a Business
License, the applicant was not aware of the requirements for locating his business at this
address. Staff discovered the use violation on the subject property in August 2008 while
investigating a sign violation on the site.
Prior to the rezoning of the property for the Downtown Master Plan in 2005, the subject
property was zoned C-2, which allowed Use Unit 17 as a permitted use. Due to the high
intensity associated with specific uses included in the C-2 zoning district and the mixture of
existing uses in the area that range from civic to residential, the property was rezoned as part
of the Downtown Master Plan rezoning to the Downtown General zoning district, which
allows uses classified under Use Unit 17 only with Planning Commission approval of a
conditional use permit. Use Unit 17 contains a variety of uses that range from high intensity
uses, such as "Retail Trade Establishments" (car sales/service/repair, used car lots, farm
supplies/equipment/repair, and manufactured home sales), to low intensity uses, such as
"Personal Help" (bindery, rug cleaning/repair, radio/television repair, tattoo services,
taxidermist).
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City Council Meeting of February 17, 2009
Agenda Item Number
DISCUSSION
This item was heard at the regular Planning Commission meeting on December 08, 2008.
The Planning Commission voted to table the request to the next meeting. The item was heard
again at the Planning Commission meeting on January 12, 2009 and was approved. Minutes
from both meetings are attached to this report.
Staff finds that the requested use is a low intensity use identified as "Personal Help", as it
does not produce noise, odor, glare, smoke, dust, debris, large amounts of waste,
vehicular/large truck traffic, vibrations, or any other adverse impacts on adjacent and
surrounding properties. Staff finds that the proposed use will have less impact on the adjacent
properties and surrounding neighborhood than many uses permitted by -right in the
Downtown General zoning district. After a discussion with staff regarding the operation of
the proposed use, an inspector of tattoo establishments from the Arkansas Department of
Health has verified that the applicant's establishment produces significantly less infectious
and contaminated waste than a dental clinic or medical clinic. Upon staff's request, the
Fayetteville Police Department has provided information (included in this staff report)
regarding the use located on the subject property, as well as similar uses in the city limits,
finding there are no specific concerns with similar or larger operations of a similar nature in
the City.
Staff finds that the use is a professional use, requiring apprenticeships, testing, certification,
and licensing by the Arkansas Department of Health. Staff finds that the business is
comparable to a small beauty salon or barber shop, providing a personal service. Staff has
found through additional research that many cities consider and classify tattoo businesses as a
similar use to a beauty salon or barber shop and zone for them accordingly, recognizing that
the tattoo industry has changed considerably in the past few decades and is not associated
with the same negative impact to the community such as vagrancy, fighting, drinking issues,
or criminal activity. Staff does not find it appropriate to categorize this use with other adult
uses, such as bars or other adult establishments, finding that the use merely provides a
personal service for the means of personal expression. While minors are prohibited by State
law from occupying adult live entertainment, bar, lounge, and sexually oriented
establishments, a minor is allowed by State law to occupy a tattoo establishment and to be
tattooed by a certified tattoo artist with parental or guardian consent provided on a State
approved consent form.
Residents have expressed concern with dangerous traffic conditions specific to Archibald
Yell Boulevard. Currently, the site is existing nonconforming, as the property has open
access to Archibald Yell Boulevard and Block Avenue, which does not comply with the
City's current access management policy; however, staff finds that the request to operate Use
Unit 17 in an existing structure does not constitute redevelopment of the site that would
enable the City to require site improvements. Chapter 166.08, regulating access to properties,
only requires improvements to access upon expansion or improvements greater than 50% of
the property value or gross floor area or volume.
Staff finds that the permitted uses in the Downtown General zoning district, including
restaurants, dry cleaners, supermarkets, retail, medical clinics, multi -family dwellings, and
social and welfare agencies, would likely generate a substantially higher traffic volume than
City Council Meeting of February 17, 2009
Agenda Item Number
the proposed use. Furthermore, should any of these permitted uses operate in any of the
existing structures on the site, it is likely that the permitted use would not meet the threshold
established by the Unified Development Code to constitute site improvements and would
further contribute to the high traffic volume carried by Archibald Yell Boulevard unless a
major expansion or major improvements to the building were to occur. Staff finds that the
low traffic volume generated by the use (3 to 5 customers per day) will not create or
exacerbate a dangerous traffic situation in the area.
The proposed use is compatible with adjacent properties and uses given the mixture of uses
in the surrounding area, which include retail, office, personal services (barber shops and
beauty salons), a drug store, restaurants, multi -family dwellings, single-family dwellings, a
child care center, professional offices, civic uses, and home occupations. Staff finds that the
requested use and the operation associated with the use do not pose a threat to the properties,
businesses, and residents in the district; however, conditions of approval have been included
to ensure that the requested use continues to remain compatible with the other uses in the
district. Additionally, staff finds that the State Department of Health strictly regulates the
requested use to further ensure the safety of the public.
Staff finds that the hours of operation, as proposed by the applicant, are similar to the hours
of operation for an eating place, Use Unit 13, a permitted use in the Downtown General
zoning district, which would produce a greater amount of traffic and noise than the requested
use. Staff finds that the hours of operation are compatible with the surrounding area and will
not have an adverse impact. Outdoor music is not proposed for this property, and staff finds
that the operation of the requested use would not produce noise that would affect adjacent or
nearby properties. However, the noise ordinance would apply to the subject property and the
Downtown General district is classified as a residential zone for the purposes of Chapter 96,
Noise Control.
Staff finds that the requested use is lower in intensity and impact than many other permitted
uses in the district, as well as other uses allowed by conditional use pennits that have been
approved in the vicinity. As a point of comparison, in April 2008, the Planning Commission
approved a conditional use permit (CUP 08-2942 Natural State) to operate a message therapy
and acupuncture (a therapeutic practice involving needles) business for property located at
534 Huntsville Road (approximately one-half mile from the subject property) surrounded by
single-family residences. The request was submitted after staff received a report of a code
violation at the subject property for operating a home occupation without a conditional use
permit. The property owners applied for the home occupation in an effort to remedy the use
violation. The property owners were also required to resolve a sign violation associated with
the use violation on the subject property. With the hours of operation approved by the
Planning Commission and the operation described by the applicant, a maximum of 10
patients/clients can be treated at the subject property each day, which far exceeds the number
of customers anticipated by the proposed tattoo shop. The applicant anticipates 3 to 5
customers per day, based on current business.
STAFF RECOMMENDATION
Based on the findings in the staff report, staff recommends in favor of the Conditional Use
Permit, with several conditions. First, the applicant shall comply with the Arkansas State
Department of Health Rules and Regulations Pertaining to Permanent Cosmetic and Tattoo
City Council Meeting of February 17, 2009
Agenda Item Number
Establishments. The applicant shall maintain the necessary Certification required by the
Department of Health for a tattoo and piercing establishment and shall provide proof of said
certification upon request by the Planning Commission. As proposed by the applicant, hours
of operation for the tattoo establishment shall be limited to Sunday through Thursday, 12:00
PM — 9:00 PM, and Friday and Saturday, 12:00 PM to 11:00 PM. Expansion or modification
of the business will require a new conditional use request. Existing and proposed signage
shall be wall mounted and approved by a separate sign permit application. All signage
associated with the requested use shall comply with Chapter 174, Signs, of the UDC. Any
required trash enclosure shall be screened with access not visible from the street and shall
comply with the requirements of Chapter 166.14(D)(4)(b) of the Unified Development Code.
Pursuant to the requirements of the Arkansas Department of Health, all parts of the shop and
its premises shall be kept clean, neat, and free of litter and rubbish by the applicant. Violation
of these conditions of approval shall be considered grounds for revocation of the conditional
use permit.
BUDGET IMPACT
None.
To:
From
Re:
Cc:
Date:
Fayetteville City Clerk
Brenda Thiel- Ward 1, position 2 Council Person
Adella Gray- Ward 1, position 1 Council Person
Shirley Lucas- Ward 4, position 1 Council Person
Alan Ostner- President, Jennings- Plus Neighborhood Association
Appeal of Conditional Use 08-3158 for Lowlife Tattoo Parlor
City Attorney Kit Williams
Friday January 23, 2009
To Whom It May Concern:
RECEIVED
JAN 2 2 2009
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
We would like to present the Conditional Use 08-3158 granted for Lowlife Tattoo
Parlor at the January 12, 2009 Planning Commission meeting for Appeal to the
Fayetteville City Council. We believe the Conditional Use was granted without
Lowlife complying with several requirements of a Conditional Use as proscribed
by Fayetteville Unified Development Code. Some, but not all, of those UDC
sections are:
Sect. 163.02 C 3 (b) "That the granting of the Conditional Use will not adversely
affect the public interest"
Sect. 163.02 C 3 (c) 2 (a) and (b) "That sPc • - wisions have been
made....concerning ingress and
safety and off street pP/1-:
within the district—
Sect. 163.02C\
163.02 C \
other property wi
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In adjoining properties
\ent properties and
The property for L‘
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Thank You
Brenda Thiel
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Planning Commission
January 12, 2009
Page 5 of 17
CUP 08-3158: (WILKINS / S. ARCHIBALD YELL, 523): Submitted by COLLIN WILICINS for
property located at 275-2 SOUTH ARCHIBALD YELL BLVD. The property is zoned DG,
DOWNTOWN GENERAL and contains approximately 0.33 acres. The request is for a Tattoo Shop
in the DG, DOWNTOWN GENERAL zoning district.
Dara Sanders, Current Planner, gave the staff report, discussing findings of economic impact and
compatibility that have been expanded since the previous planning commission meeting. Based on
the application and review of the request, staff recommends approval of the project request, with
conditions as listed in. the staff report.
Collin Wilkins, applicant, discussed traffic issue's brought up at the previous meeting. At the last
meeting it was said that this intersection is a deathtrap. I strongly disagree. The approach is 50' wide
between the curb cuts, there is plenty of room to pull in and out. Visibility is not an issue. I only
have on average 3-5 customers per day, so I don't understand the traffic issue. Regarding property
values, as discussed in the staff report property values surrounding Knight Times tattoo have gone up
since that business has been there. That tattoo shop did not drive down the surrounding property
value, so that's not an issue. Regarding the contamination issue, the only way you are going to get
contarninated is if I use dirty needles. He discussed State health regulations, inspections, licensing
equipment. He discussed disposal of needles; used needles go in a sharps container and are disposed
of at a medical store. The contamination factor is not a factor. He discussed the name, and
originally wanted Southside Tattoo, but it was used elsewhere. He has spent $900 on the name of
business and sign, and can't afford to change it. He is not happy with the look of the temporary
signage on the side of the building and will be removing that regardless of tonight's decision.
Regarding character, he is not sure if they're talking about the name of the business or the clientele.
Going rate for a tattoo is $100/hour, so trouble -makers aren't going to be flocking to my shop
because it's a tattoo shop. I feel this is a form of discrimination on my business, and the comments
don't hold water. In the staff report there is evidence to contradict every complaint made. He
discussed signatures on a petition in the neighborhood that approve of his being there. The facts
disprove these complaints.
Public comment:
Alan Ostner, President ofJennings Plus Neighborhood Association, the neighborhood area is across
the street from Lowlife Tattoo. I was here last time. I won't reiterate everything I said. I had a
petition last time of property owners who don't think this establishment is compatible. I don't know
Mr. Wilkins. I don't have a problem with the establishment, I have a problem with the location. The
Fayetteville Unified Development Code allows Use Unit H17 as a Conditional Use; so it's not a form
of discrimination. Conditional Use Permits get denied all the time. The staff report says there are all
sorts of businesses around it, including restaurants, and auto paris stores, but they're all a quarter -
mile away. I can't see any of that from here. He discussed Bungalow Babies (daycare) one house up
the street. I have concem with Lowlife Tattoo being next door. I have conflicting opinions about part
of the staff report. I appreciate the research on other cities allowing this use as a use by right, but we
don't. Why didn't the City Council and the people of Fayetteville say this use should be allowed by
right in this zoning district? I don't feel it is compatible next to upscale retail establishment that will
be coming in with Mr. Ball. 1 don't feel this tattoo parlor is a touchstone for future development in
Planning Comnzission
Januazy 12, 2009
Page 6 of 17
this site. 1 think this is an incompatible use and 1 wish for you to turn it down it tonight.
Rebecca Latourette, citizen, owns property at 205 W. South St., half -block from thi business. This
business has demonstrated a lack of regard for compliance by starting this business and continuing to
operate without a permit. A person is entitled to call their business whatever they want, but the fact
of the matter is this business is not permitted by zoning. I don't know if this person is the owner of
the building or renting, but it might have made a difference. I understand this business is open until
11:00 PM, which may impact people that live nearby. Whether the signatures on the applicant's
petition are owners or renters makes a difference. I cannot compare this business to Knight Times,
because that's surrounded by businesses. It is not the same with this piece of property, which is
surrounded by residential housing. 1 am asking you to turn down this request for Conditional Use
Permit.
J.R. Ball, citizen, stated he owns building to the southwest at 118 W. South St. I bought the building
in 2008. I have mixed emotions about this. 1 am opposed to it because of what I'm trying to do with
this building. On the surface the business seems clean, and I've seen no problems while we've been
under construction. However, the perception of the public moves me'to be opposed to this. We have
5,000 square feet we are turning into retail/fashion design and art studio, art shows, etc. The
renovations are costing a lot of money. I have to be in opposition.
Dede Peters, citizen, owns an an gallery on Mountain Street. She quoted a study from 2006 showing
that 36% of Americans aged 18-25 have a tattoo, and 40% of Americans between 26-40 have a
tattoo. So tattoos are mainstream and no longer underground. If the City required a business license,
this could have been avoided. I believe tattoo shops, currently considered as Use Unit 17, should be
Use Unit 15, like the barber shop. There are some salons in town that offer cosmetic tattoos and are
allowed under their use unit. Tattooing requires skill, it is entrepreneurial, provides income tax, is a
local business contributing to the local economy. The tattoo industry falls in the creative sector, the
3 rd largest economy in the State. As a person doing business downtown, I feel it's vital to have retail
on the street level, and continue to be hospitable to the entrepreneurial spirit. With the amount of
people that have tattoos today, 1 feel some of the opinions expressed are prejudiced, uneducated, and
elitist.
Richard Russell, citizen, stated he lives at 401 S. College and has seen a lot of changes in the
neighborhood since 2001. I was encouraged when planning got involved in the area. I was a
beneficiary of the rezoning, and the fresh look at the area. During these years, I've seen quite a few
cases of people leaving and coming in, improving the area. I believe we should take some time and
Id the planning take shape into reality. 1 haven't had long enough to see the good that can come
from that careful and extended effort. For some reason, this use is not allowed, so let's be
considerate of that and work with some things that are allowed.
Christy Zweig, neighbor, stated she lives directly behind the building Mr. Ball bought. !have two
tattoos, but still don't think it's appropriate. I have invested a lot of money in my nearby property.
The owner of this business has said he doesn't have enough money to even change the name, so
obviously it's not a thriving business. Regardless of what it is, we don't need a business that's not
thriving. 11 won't be compatible with Mr. Ball's development, with the retail going in there.
Planning Commission
January 12, 2009
Page 70.17
Susan Pocrivnak, citizen, lives on West Fourth Street, discussed earrings coming into style in the
1960's. It was an anomaly then, but now quite common. Things change. She discussed tattoos and
the neighborhood area The tattoo shop looks the nicest in the area. I think "Lowlife" is tongue-in-
cheek and supposed to be funny. It's an art form. She stated that she is in support of the request.
Bob Stack, citizen, stated he was a retired real estate agent. I would like to see this approved. Mr.
Ball is doing a great job with what used to be next door. Tattoo is an art and conforms to the
neighborhood. As for the previous comment about having invested lots of money in nearby property;
when that money was invested, there was an adult novelty shop next door. This didn't just happen. I
think it's compatible. I don't see a big difference between this shop and a barber shop across the lot.
Laverne Cooper, citizen, stated she uses the corridor a lot. I noticed this portion of town was
looking better. A few days later, we see "Lowlife" 011 the building. We thought it was graffiti. I
don't think it's compatible with the neighborhood.
No more public comment was received.
Commissioner Kennedy asked if the needles don't mix with the regular trash.
Wilkins described the needle disposal process. Needles go into the sharps container and never
touch the trash; never go near it
Commissioner Cabe asked if we can hold the fact that he opened a business without a permit
against him.
Kit Williams, City Attorney, stated it is not one of the specific conditions. The major consideration
is compatibility. Once we began the Conditional Use Permit process, enforcement of the violations
were suspended.
Jeremy Pate, Director of Current Planning, discussed business licenses, Certificates of Zoning
Compliance. If businesses apply for a sign permit, building permit, etc., staff requires a Certificate
of Zoning Compliance. It's the best mechanism we've found for catching businesses that are
operating without a Certificate of Zoning Compliance.
Commissioner Cabe asked for clarification about Conditional Use Permits and whether the use is
technically "allowed."
Williams stated that it is not a use by right, where you would automatically have a right to put in the
use. It's certainly not illegal as long as the Planning Commission would grant the use. It's a use
that's questionable, where City Council feels it should sometiines be allowed and sometimes not be
allowed. That's why they make it a Conditional Use, to let the Planning Commission review the
situations. The real issue is general compatibility with adjacent properties and other properties within
the district. It's not defined very precisely because I don't think it can be. It's something where you
have to listen to the neighbors and use your own judgment on.
Planning Commission
January 12, 2009
Page 8 of 17
Commissioner Winston asked if this is in the Fayetteville Arts District boundary.
Pate stated that for the most part it follows the downtown district boundary.
Commissioner Anthes described boundaries of the Fayetteville Arts District as being the downtown
district, plus a finger that includes the Mill District and down eh Street to incorporate some studios
there.
Commissioner Winston asked if the boundary runs down Archibald Yell Blvd.
Commissioner Anthes said she does not recall, specifically.
Commissioner Winston asked about the boundary of the Walker Park neighborhood.
Pate stated that the northern boundary of that neighborhood was along Archibald Yell.
Commissioner Anthes asked about space currently used on the site as storage. Is storage a use
„
allowed in downtown zoning right now?
Pate stated that it was, as long as it was ancillary to another use.
Commissioner Anthes asked if staff has looked into that property.
Sanders stated that they have, and it is an ancillary use.
Commissioner Anthes stated that although Mr. Wilkins may not have done himself any favors with
his neighbors by selecting the business name he did, that the name of the business is a First
Amendmentlight protected by the U.S. Constitution and is not something we can talk about here in
this room. There's a convenience store around here called the Kum -and -Go, and I would think that
might be more offensive to others than Lowlife Tattoo. I thank Mr. Wilkins for knowing how to
spell. The other thing that has been distressing me from the general discussion is the implication that
a tattoo artist is an undesirable that will make neighborhoods lose their value and corrupt their
children. Given that these tattoo artists are licensed professionals, they have apprenticeships, take
written exams, pay license fees, subject to regular inspections by the State Health Department, I feel
we need to take them on that professional level and not ascribe some other perception on them that
may not be correct. There have also been comments made tonight about how the investment in this
small business in this property is somehow unequal to or less than other investments made in the
area. I don't think that is correct, either. We see many Conditional Use Permits come through after
the fact, but I find it's mainly because of not knowing the City procedures, and not a blatant
disrespect for the law. I'd like staff to tell us what all is included in Use Unit 17 besides tattoo
shops, because individual uses aren't called out for as permissible or impermissible, they are together
in a group, and the flavor of that group is what makes it a use by right or a conditional use.
Pate read the uses included in Use Unit 17 from the Unified Development Code. You will often see
Planning Conunission
January 12, 2009
Page 9 of 17
some of the included uses in other Use Units, which often poses a challenge in similar situations.
Commissioner Anthes stated that it solidifies her point. I was one of the Commissioners here who
evaluated the Downtown Master Plan zoning districts, and we went use unit by use unit through this
and made recommendations to City Council about what we thought should be allowed by right and
what should not be allowed. I believe my vote would have been that this was a use unit that
provided an intensity of use that shouldn't be automatically approved in the Downtown General
zoning district, and that intensity of use is tied to things like the car lots and things like the cabinet
shop and car repair and things that would make a lot of noise and may be intrusive to the
neighborhood. I don't think this particular shop with two employees and 3-5 customers per day
meets the kind of intensity that would be too much to handle in Downtown General which is a very
eclectic and mixed-use type of area To not approve this just because you don't like this type of
businesssomepeople don't like lawyers either, but it's not a reason you don't allow them in your
neighborhood. Regarding the findings on compatibility, under our charge here tonight with this
Conditional Use Permit, mostly the Planning Commission, while we do evaluate use, a lot of that use
is tied to building form, issues of traffic and access and development. In this particular case, it's a
business occupying an existing building that's not being renovated over 50% of its value, and for a
lot of the things that we have a lot of leeway with, they don't kick in for this particular project. Can
staff reiterate what the specific findings under compatibility are?
Pate discussed the findings listed in the staff report.
Commissioner Anthes stated she agreed with staff's findings, and as far as general compatibility,
since the building is not being altered but is being cleaned up. For me it comes down to whether a
licensed business subject to regular inspections by the State Health Department can be in this
location, and for myself I find that is yes, and I will be voting to support this application.
Commissioner Lack stated he finds in favor of compatibility with this establishment. The
discussion about the Cultural Arts District enforces that. This use is an enhancement of that district.
Motion:
Commissioner Myres made a motion to approve the request with conditions as listed in the staff
report. Commissioner Anthes seconded the motion. Upon roll call the motion passed with a vote
of 7-1-0, with Commissioner Graves voting no.
Planning Commission
December 8, 2008 -
Page 6 of 9
CUP 08-3158: (WILKINS / S. ARCHIBALD YELL, 523): Submitted by COLLIN WILIUNS
for property located at 275-2 SOUTH ARCHIBALD YELL BLVD. The property is zoned DG,
DOWNTOWN GENERAL and contains approximately 0.33 acres. The request is for a Tattoo
Shop in the DG, DOWNTOWN GENERAL zoning district.
Dara Sanders; Current Planner, gave the staffreport, detailing the background of the site and
previous uses. The business has been in operation since January 2008. A sign violation brought
this use to staff's attention. Finding that the low -intensity use compatible with surrounding uses
and zoning, staff is recommending approval with conditions as listed in the staff report.
Collin Wilkins, applicant, stated that the business actually opened in July 2008, not January. He
apologized for not getting permits, as he is not experienced in the process.
Public Comment:
Alan Ostner, neighbor, president of Jennings Plus Neighborhood Association. When the
Neighborhood Association saw the public notice sign, we took a vote The results were 14-2 that
we wanted the CUP denied. There would have been more votes within the Neighborhood
Association if there had been more time. The staff report findings state that there are no
substantial economic, noise, glare or odor effects. I disagree absolutely. If there are going to be
no economic effects, why isn't a tattoo parlor allowed by right? It is because there are special
circumstances that would allow a tattoo parlor in a neighborhood Off -Street parking and loading
was not thoroughly discussed in the staff report. Everyone who lives there knows that
intersection is a deathtrap. It's a good thing that businesses have not done well there, because
there would be a lot more vehicular and pedestrian problems. If these issues had been discussed
more thoroughly in the staff report, I don't think the determination would be to let this business
continue. The other item (C)(3)(c)(2)(h), last paragraph of staff report, discusses general
compatibility with adjacent properties. The finding is that the proposed use is compatible with
adjacent properties, low intensity use, and the business has been there since January. We have
just learned that it has not been in operation since January, only for a month or two. This
business is not compatible at all. If it were, it would be allowed by right In the applicant's letter
to Mr. Garner in the staff report, he states there would be nobody in the area to bother. Many of
us are offended by this, we live around the business, we drive by on a daily basis, and Mr.
Wilkins is saying that none of us count. This is not the case. We would like to see businesses
that are part of our neighborhood, not ones that go against us. This is not an appropriate use. It
would be a great use in another part of town, where there are grown-up activities going on, a mile
or two north or south on College where there are gentlemen's clubs, bars, bail bondsmen. I do
not have a problem with tattoo parlors, I have a problem with inappropriate zoning that destroys
neighborhood character, a neighborhood that is struggling to improve itself. This summer, 'This
Old House Magazine' published the Walker Park neighborhood as one of the best places in the
south to buy an old home. The article mentioned that the character is still in place and there had
been a Walker Park Master Plan that was supposed to "tidy up" the zoning. The economic
impact is real. Appraisers will lower the price of homes because they are near to a tattoo parlor.
Families are raising children in this neighborhood. My eight-year-old saw the Lowlife Tattoo
sign and asked me what a "lowlife" is, and 1 had to tell him. It's a funny name for a business, but
Planning Cornmission
December 8, 2008
Page 7 of 9
not in this neighborhood. Not against the business, against the location. It's an incompatible use
and destroys things that staff helped us build for the neighborhood. The Walker Park Master
Plan was a big step forward, so please don't move the neighborhood backwards and vote for this.
Rob Sharp, neighbor, stated he had several comments. Staffreport notes that the zoning used to
be C-2, but I am not sure what the point of that is, whether it is saying that had the request been
submitted years ago it wouldn't have been an issue, or if they are trying to track the trend from
what used to be allowed to what is now allowed under DG zoning. I participated in many of the
charrettes and don't recall anyone saying that what we need in the neighborhood is more tattoo
parlors. It's hard to see from Archibald Yell, but this neighborhood is going the right way. So
when the staff report says when the use would have been OK a few years ago m C-2, It is more
important to acknowledge that is not OK now My second point is that to grant a CUP, there
needs to be a compelling reason for the business. I do not have a problem with tattoo parlors in
general, but what we have here is a business that does not meet the sign ordinance, access
management ordinance, landscape ordinance, architectural standards, is not doing anything above
the bare minimum, and does not even meet the bare minimum of the Code. Please deny the
conditional use request for this business.
Richard Russell, neighbor, lives at 401 S. College, asked about the conditions -in the staff report,
and whether any of those addressed the medical waste generated by a tattoo parlor. Where do
gloves and needles go? He shared concerns about access covered with gravel. The building is
stark white with black stenciled sign. It is not welcoming.
Commissioner Graves asked if there are City ordinances that deal with waste, and whether its
distance from residential properties is regulated.
Kit Williams, City Attorney, stated that the UDC doesn't regulate those two issues, but that the
State health department may regulate it.
Commissioner Graves stated he agrees with the corrunents by all members of public regarding
where we see this area of town going. This is surrounded on three sides by residential property.
He is concemed with the waste and type of use with residential nearby. The hours of operation
are too late.
Commissioner Myres asked if tattoo parlors are regulated by the state.
Wilkins stated that they are, and that he and the other employee at the business are both licensed
tattoo artists. He has been inspected and approved by the state health department. He would like
to address issues raised by public comment. When I wrote that, "there was no one to bother", I
didn't mean it as an insult, I was thinking about my immediate surroundings, including what used
to be an adult novelty shop, and currently a barber shop, and a restaurant. I wasn't thinking I
would bother anyone with noise and traffic. As far as bringing the neighborhood value down,
'lowlife' was intended as satire. Tattoo shops don't always belong in bar districts, since we don't
tattoo people who are intoxicated. Tattoo shops are quiet, easygoing places, they are not
rambunctious. 1 own a restaurant here in town and 1 can tell you the state health department will
Planning Commission
December 8, 2008
Page 8 of 9
be harder on me at the tattoo shop then they will at the restaurant. Tattoo shops are not the way
they used to be. They are clean. He stated that he understands the neighborhood concerns, as
these neighborhoods have been planned and are on the upswing in the future.
Commissioner Myres stated she has been ambivalent about this from the beginning. She stated
that she thinks this business has been run as cleanly as possible, but also understands the concern
of the neighborhood, the care and trouble that has been taken over the last five years to study and
encourage redevelopment in the area. She knows the neighborhood takes pride in what they are
now and promise to become in the future. She cannot support this request because she thinks it
goes against the intent of the Downtown Master Plan and the vision for that part of town. She
doesn't like the idea of telling someone they can't have a business but doesn't think it's the right
place for it.
Commissioner Winston asked if this Conditional Use Permit had to have a compelling need, and
whether that is a requirement for approval.
Andrew Garner, Senior Planner, stated that in the staff report and UDC;- there are specific
conditions and specific findings that the planning commission has to make in order to approve a
CUP. None of those findings mention a specific need, or an overwhelming argument that it is
needed to have a CUP. There are certain applications that do require similar findings, for instance a
rezoning application. For a CUP there is not that particular finding made and there is nothing a CUP
has to do as far as offering things to the public.
Commissioner Winston stated that he felt the main issue was the image. It is not quantifiable, but
the "Lowlife" image is not appropnate. The use itself may be appropriate, but not the business as
presented.
Commissioner Graves stated that he was opposed to this use in this residential location. He finds
that the generation of medical waste is hazardous to the neighborhood.
Commissioner Lack stated that he believes Archibald Yell Blvd does have a business atmosphere,
and in Downtown General zoning a tattoo parlor is allowed by CUP because it may be appropriate.
As far as who sets the conditions, it's his opinion that the conditions are established primarily by the
findings. The findings are the conditions to determine whether or not it is appropriate. If it meets
these conditions, then it is appropriate to pass a CUP for that use in that zoning. He agrees with
staffs findings. Image -wise, he would have no opinion about that. He works across the street from
a tattoo parlor and it is one of the quietest businesses on the street and least impactful for that square
footage. Whether or not he personally agrees with the tattoo "culture" is irrelevant. He finds in favor
of granting the conditional use permit. He would like to revisit the hours of operation to be more
compatible with the neighborhood.
Wilkins stated that if needed, he is willing to peel the letters off the shop and change the name if it is
bothering people. He would like to table the request if needed.
Commissioner Trumbo stated he is not opposed to the use. 14 is not crazy about the image of the
Planning Commission
December 8, 2008
Page 9 of 9
building and the name, but is not looking at that. He sees Archibald Yell as a street that allows such
uses and would be supportive of the request, though he would certainly welcome a new name and a
re-imaging of the budding.
Motion:
Commissioner Winston made a motion to table the request until January 12 to give the applicant
time to work on image issues with the building, and to allow the public more time to comment.
Commissioner Myres seconded the motion.
Commissioner Graves expressed his lack of comfort.with this body having anything to do with
what the business names itself, or what signs it has with that name on it. I am opposed to tabling
because I don't see the reason for it, but I would be uncomfortable with this body inserting itself into
what a citizen decides to name their business.
Commissioner Trumbo asked the City Attorney if he had any comments or concerns regarding the
.4. nanle of the business.
Kit Williams, City Attorney stated that he had no comment.
Upon roll call the motion passed with a vote of 5-2-0, with Commissioners Graves and Myres
voting no.
All business concluded, the meeting was adjourned at 6:35 PM.
Wife erlylje
THE CITY OF FAYETTEVILLE, ARKANSAS
PC Meeting ofJanuary 12, 2009
PLANNING DIVISION CORRESPONDENCE
TO: Fayetteville Planning Commission
FROM: Dara Sanders, Current Planner
THRU: Jeremy Pate, Director of Current Planning
DATE. December 19, 2008 Updated Janata)) 13, 2009
125 W. Mountain St.
Fayetteville, AR 72701
Telephone: (479) 575-8267
CUP 00-3158: (WILKINS / S. ARCHIBALD YELL, 523): Submitted by COLLIN WILICINS for
property located at 275-2 SOUTH ARCHIBALD YELL BOULEVARD The property is zoned DG,
DOWNTOWN GENERAL and contains approximately 0.33 acres. The request is for Use Unit 17 in
the DG, DOWNTOWN GENERAL, zoning district. Planner: Dara Sanders ' •
BACKGROUND:
December 8, 2008 Planning Commission Meeting: Tlus item was heard at the December 8, 2008
Planning Commission meeting. There were three members of the public at that meeting that spoke in
opposition to the project. Some of the issues discussed by members of the public included traffic -
safety accessing the site, adverse impacts to the neighborhood and community character, and other
concerns with the image of the proposed business. After much discussion the Planning Commission
tabled the item. The December 8th meeting minutes have been attached to this report. In response to
some of the public and Planning Commission comments brought up at that meeting, supplemental
information has been provided by the applicant and several of the findings of fact in the report have
been revised with additional discussion.
Property Description and History: The subject property is located at the northwest corner of the
South Archibald Yell Boulevard and Block Avenue intersection. The 0.33 -acre site is zoned
Downtown General and contains two existing structures that include small residential units, a barber
shop, a tattoo shop, and a space currently utilized as storage. In 2005, the property was rezoned from
C-2, Thoroughfare Commercial, to DG, Downtown General as part of the Downtown Master Plan.
Surrounding land use and zoning is depicted in Table 1.
Table 1
Surroundinci Land Use and Zonin
Direction from Site
Land Use
Zoning
North
Office, Residential, Civic
DG, Downtown General
South
Residential
DG, Downtown General
East
Vacant lot, Restaurant
DG, Downtown General
West
Residential, Office, Retail
DG, Downtown General
K:Ifteports120091PC Reparts101 - January 12ICUP 08-3158 (Wilkins).doc
Historically, the site has been utilized for a variety of uses that included a small motel, an artist
studio, and the Fayetteville Free Weekly. A tattoo shop has operated at the subject property since
July 2008. Staff discovered the use violation in August 2008 while investigating a sign violation on
the site. Further proceedings on the sign violation have been suspended to await the Planning
Commission discussion on the CUP request.
Request: In an effort to resolve the use violation, the applicant requests approval of a conditional use
permit to operate a Tattoo Shop (Use Unit 17) with a maximum of 2 employees in an existing 1,200
sq. ft. structure in the Downtown General zoning district. Approval of the Conditional Use Permit
would bring the business into compliance and allow the use to continue utilizing the current location
for the existing business. The applicant proposes to limit the hours of operation to Tuesday through
Thursday, 12:00 PM to 9:00 PM, and Friday and Saturday, 12:00 PM to 11:00 PM. Staff finds that
the hours of operation, as proposed by the applicant, are similar to the hours of operation for an
eating place, Use Unit 13, a permitted use in the Downtown General zoning district, which would
produce a greater amount of traffic and noise than the requested use. Staff finds that the hours of
.operation are. compatible with the surrounding area and will not have an adverse impact..Outdoor
music is not proposed for this property, and staff finds that the operation of the reqUested use would
not produce noise that would affect adjacent or nearby properties. However, the noise ordinance,
listed in Table 1, would apply to the subject property.
LlSe Districts
TABLE 1
Maximum
Time
Noise Levels
All residential
zones
7:00 a.m. to
11:00 p.m.
60 dB(A)
All residential
zones
11:00 p.m. to
7:00 am.
55 dB(A)
All commercial
zones
7:00 a.m. to
11:00 p.m.
75 dB(A)
All commercial
zones
11:00 p.m. to
7:00 a.m.
70 dB(A)
All industrial
zones
7:00 a.m. to
11:00 p.m.
80 dB(A)
All industrial
zones
11:00 p.m. to
7:00 am.
75 dB(A)
For the purposes of Chapter 96 Noise Control, of the City Code, the Downtown General district
operates under residential zone levels.
Sidewalk: There is an existing sidewalk on the subject property located at the right-of-way line.
Public Comment: Staff has received public comment in both support and objection of this request.
Written comments have been included in the staff report. Three members of the public spoke against
AReports120091PC ReportsI01 - January 12ICUP 08-3158 (Wilkins).doc
the request at the December 8th Planning Commission meeting.
Discussion: Prior to the rezoning of the property for the Downtown Master Plan in 2005, the subject
property was zoned C-2, which allowed Use Unit 17 as a permitted use. Due to the high intensity
associated with specific uses included in the C-2 zoning district and the mixture of existing uses in
the area that range from civic to residential, the property was rezoned as part of the Downtown
Master Plan rezoning to the Downtown General zoning district, which allows uses classified under
Use Unit 17 only with Plaruung Commission approval of a conditional use permit. Use Unit 17
contains a variety of uses that range from high intensity uses, such as "Retail Trade Establishments"
(car sales/service/repair, used car lots, farm supplies/equipment/repair, and manufactured home
sales), to low intensity uses, such as "Personal Help" (bindery, rug cleaning/repair, radio/television
repair, tattoo services, taxidermist). Staff finds that the requested use is a low intensity use identified
as "Personal Help", as it does not produce noise, odor, glare, smoke, dust, debris, large amounts of
waste, vehicular/large truck traffic, vibrations, or any other adverse impacts on adjacent and
surrounding properties.
•Based on the application and the findings for a Conditional Use Permit, staffis in: support of the
request, finding that the subject property, adjacent to a 5 -lane highway and .primary north/west
thoroughfare in the City, is an appropriate location for the business. Additionally; staff finds that the
use will not adversely affect the public interest in this mixed-use neighborhoodand.zoning district,
as the operation of the requested use will have a minimal impact on adjacent and surrounding
businesses and residents. Uses in the vicinity include retail, professional office,,personal services
(barber shops and beauty salons), a drug store, restaurants, multi -family dwellings,. single-family
dwellings, a child care center, medical offices, civic uses, a used car dealership,lart-studios, repair
shops, and home occupations. ,
Staff finds that the business is comparable to a small beauty salon or barber shop, providing a
personal service. Staff has found through additional research that many cities consider and classify
tattoo businesses as a similar use to a beauty salon or barber shop and zone for them accordingly,
recognizing that the tattoo industry has changed considerably in the past few decades and is not
associated with the same negative impact to the community such as vagrancy, fighting, drinking
issues, or criminal activity. Upon staff's request, the Fayetteville Police Department has provided
information (included in this staff report) regarding the use located on the subject property, as well as
similar uses in the city limits, finding there are no specific concerns with similar or larger operations
of a similar nature in the City.
Staff does not find it appropriate to categorize this use with other adult uses, such as bars or other
adult establishments, finding that the use merely provides a personal service for the means of
personal expression. While minors are prohibited by State law from occupying adult live
entertainment, bar, lounge, and sexually oriented establishments, a minor is allowed by State law to
occupy a tattoo establishment and to be tattooed by a certified tattoo artist with parental or guardian
consent provided on a State approved consent form.
Staff finds that the requested use does not pose a health or contamination threat to the surrounding
K:lReports120091PC Reports101 - January 12ICUP 08-3158 (Wilkins).doc
area This use and the premises on which the use operates is strictly regulated and monitored by the
Arkansas Department of Health in order to promote a healthy and safe environment for the
employees, customers, and surrounding businesses and residents. The applicant has obtained all
required certification from the Arkansas Department of Health. The Department's Rules and
Regulations for tattoo establislunents are included in this staff report.
The Department of Health has access to and is empowered to enter any and all parts of the premises
of a tattoo"establishment for the purpose of malung inspections to determine compliance with the
rules and regulations. Regulation of equipment, specifically needles, is also monitored by the State
Department of Health (see page 9 of the Department's Rules and Regulations). The disposal
procedure of infectious waste (in this case, needles) is similar to that of a medical or dental clinic,
which are permitted uses in the Downtown General zoning district. However, after a discussion with
staff regarding the operation of the proposed use, an inspector of tattoo establishments from the
Arkansas Department of Health has verified that the applicant's establishment produces significantly
less infectious and contaminated waste than a dental clinic or medical clinic.
RECOMMENDED MOTION:
•Based on the findings of the Conditional Use Permit included in this report, staff recommends
approval of CUP 08-3158 with the following condition(s):
1. The applicant shall comply with the Arkansas State Department of Health Rules and
Regulations Pertaining to Permanent Cosmetic and Tattoo Establishments. The
applicant shall maintain the necessary Certification .required by the Arkansas State
Department of Health for a tattoo and piercing establishment and shall provide proof
of said certification upon request by the Planning Division.
2. As proposed by the applicant, hours of operation for the tattoo establishment shall be
limited to Sunday through Thursday, 12-00 PM— 9:00 PM, and Friday and Saturday,
12:00 PM to 11:00 PM.
3. Expansion or modification of the business will require a new conditional use request.
4. Existing and proposed signage shall be wall mounted and approved by a separate sign
permit application. All signage associated with the requested use shall comply with the
Chapter 174, Signs, of the UDC.
5. Any required trash enclosure shall be screened with access not visible from the street
and shall comply with the requirements of Chapter 166014(D)(4)(b) of the Unified
Development Code.
6. Pursuant to the requirements of the Arkansas Department of Health, all parts of the
shop and its premises shall be kept clean, neat, and free of litter and rubbish by the
applicant.
• K:IReports12009V3C Reports101 - Januaty12ICUP 08-3158 (Ifilkins).doc
7. Violation of these conditions of approval shall be considered grounds for revocation of
the conditional use permit.
PLANNING COMMISSION ACTION: Required YES
x Approved 0 Denied 0 Tabled
Motion: Myres
Second: Anthes
Vote: 7-1-0, with Commissioner Graves voting "no"
Date: January 12, 2009
Section 163.02. AUTHORITY; CONDITIONS; PROCEDURES.
13. Authority; Conditions. The Planning Commission shall:
1. Hear and decide only such special exemptions as it is specifically authorized
to pass on by the terms of this chapter.
2. Decide such questions as are involved in determining whether a conditional
use should be granted; and,
3: Grant a conditional use with such conditions and safeguards as are
appropriate under this chapter; or
4. Deny a conditional use when not in harmony with the purpose and intent of
this chapter.
C. A conditional use shall not be granted by the Planning Conunission unless and until:
;
1. A written application for a conditional use is submitted indicating the section
of this chapter under which the conditional use is sought and stating the
grounds on which it is requested.
Finding: The applicant has submitted a letter requesting conditional use permit approval
to allow Use Unit 17 within the Downtown General zoning district.
2. The applicant shall pay a filing fee as required under Chapter 159 to cover the
cost of expenses incurred in connection with process' ing such application.
Finding: The applicant has paid the required filing fee.
3. The Planning Commission shall make the following written findings before a
conditional use shall be issued:
(a.) That it is empowered under the section of this chapter described in
ICIReportst20091PC Reparal01 - January 12ICUP 08-3158 (Willcins).doc