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HomeMy WebLinkAbout34-11 RESOLUTIONRESOLUTION NO. 34-11 A RESOLUTION TO APPROVE A REDUCTION OF MASTER STREET PLAN RIGHT-OF-WAY REQUIREMENTS IN FRONT OF 3155 N. COLLEGE TO 40 FEET FROM CENTERLINE AND TO DENY TRACY HOSKINS' APPEAL WHEREAS, the City Council has determined that the Master Street Plan right-of-way or setback requirements of §166.18 of the U.D.C. would exert "undue hardship or practical difficulties" upon Mr. Hoskins' development because of his existing parking lot and drive lane configuration; and WHEREAS, pursuant to § 166.04 (B)(3)(a)(i) of the U.D.C. the City Council may reduce such Master Street Plan right-of-way of setback requirements for "undue hardship or practical difficulties." NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby reduces the Master Street Plan right-of-way/setback line established in 2006 by §166.18 of the U.D.C. in front of 3155 North College to the State Highway Department's existing 40 feet from centerline right-of-way due to "undue hardship or practical difficulties' from this property because of the existing parking lot and drive lane configuration. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby denies Tracy Hoskins' appeal of the staff's interpretation of §166.18 of the U.D.C. PASSED and APPROVED this 15th day of February, 2011. APPROVED: ATTEST: By: 2 J n ) SONpotet.66.4...• E. SMITH, City Clerk/Treasurer Q� oy�yena�satreF�.i, t/JT3,, � a. �G,:.6-E, C { .; oma® ® o. FAYETIE1LLEe Paradigm Building, LLC — Tracy K. Hoskins, Manager 3155N. College, Ave, Suite 201 Fayetteville, AR 72703 January 21, 2011 City Clerk City of Fayetteville 113 West Mountain Fayetteville, AR 72701 Re: Appeal Staff interpretation of Chapter 166.18 of the UDC Dear Sondra Smith, RECEIVED JAN 2,42011 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE I recently made application for a sign permit (attached) for a Monument Sign to be located at 3155 N. College Avenue here in Fayetteville. On 1/19/2011, my application, as proposed, was denied by the City Planning Department and the Sign Administrator, Jesse Fulcher. The reason given for denial was that the sign did not meet the setback requirements of ten feet from the right-of-way from North College Avenue as required per 174.10(H) which states, "A monument sign shall be set back a minimum of 10 feet from the street right-of-way, 10 feet from adjoining non-residential property and 25 feet from adjoining residential property...". As reflected on the submitted application, the proposed location of the sign is to be 10 feet from the existing right-of-way of North College and 95 feet from the nearest adjacent property line, well within the setback requirements for monument signs. However, Staff states that to conform to current code, specifically the Master Street Plan, the sign must be setback an additional 8.5 feet, or 18.5 feet from the existing right-of-way. They maintain this is due to the current Master Street Plan which designates North College to potentially become a 97 foot wide right-of-way in the future (or 48.5 feet from centerline), as opposed to the currently established 80 foot wide right-of-way, (or 40 feet from centerline). Staff sights Chapter 166.18 as the code which requires the additional setback which states, 166.18 Master Street Plan Setbacks - The city shall require the applicant/developer to establish a right- of-way setback line based on the right-of-way requirements for streets and highways designated by the Master Street Plan. Such setback line shall be considered the property line for such purpose of satisfying the requirements of the UDO. All building setbacks, required landscaping, parking lots, display areas, storage areas and other improvements and uses shall be located outside of such established setback area. The required width of setbacks, landscaped areas, buffers, and all other setback requirements shall be dimensioned from the established right-of-way setback line. The establishment of any new structure or other improvements within the right-of-way setback is prohibited. As I read Chapter 166.18, I must read it in its literal language which states setbacks for improvements "...shall be dimensioned from the ESTABLISHED right-of-way setback Page 2 line. The establishment of any new structure or other improvements within the right-of- way setback line is prohibited". In my case, the "established right-of-way setback line" is 40 feet from centerline of North College. The unlikely widening of North College would require an additional 8.5ft of right-of-way, which the city (or State) would be required to purchase from affected landowners along the highway. Until such time as the land is purchased from me, it should be within my rights to utilize my property for any lawful purpose I may choose. Granting approval of my permit in no way jeopardizes any potential (and again unlikely) widening of North College. Under the sign regulations, the monument sign must be set back 10 feet from the established right-of-way, which would not encroach on the additional 8.5 feet of additional right-of-way which would be required for future widening. Further, I am not convinced that Chapter 166.18 is even applicable to this situation. The chapter is located under the under Chapter 166: "Development". "Development" or "redevelopment" of a site is a process in which a change in a property's use, density, intensity, etc. would likely impact to the surrounding infrastructure in some fashion. The installation of a monument sign would not change the impact the property places on the surrounding infrastructure, and therefore does not fall under the category of "development". We review and revise our Master Street Plan every five years. The title "Master Street Plan" is self explanatory. It is nothing more than a tool utilized in planning the future of the city. It is not city code that when modified automatically changes the property lines of citizen's properties or vacates the rights of a how a citizen may lawfully use their property. I mentioned to Staff my concern that a governmental body may arbitrarily change the width of a right-of-way for any given street at any time. If a right-of-way is lessened in width, the landowner adjoining said right-of-way could possibly benefit. To the contrary, if a right-of-way is arbitrarily widened, a landowner adjoining said right-of- way could possibly be significantly and negatively affected. It seems this could be measured as a "taking" by government, as the landowner no longer has the use of their property — their investment. Unless the government is prepared to purchase additional right-of-way when changing the Master Street Plan or when denying a landowner lawful use of their property as has occurred here, this seems like a very slippery slope to me. Not granting approval of my permit, as submitted, would create an undue hardship for the businesses located at the address as we would not be able to utilize a monument sign at the size and setback we are allowed by code. Due to site conditions, we are unable to move the sign back an additional 8.5 feet, as the sign would end up located within traffic drive lanes of the parking lot. To keep the sign out of the parking lot, we would have to shrink the size by more than 50 percent from the proposed 75sf display area, AND set the sign back an additional 8.5 feet, which Staff agrees would likely make the sign ineffective. With the above, Chapter 155.06 Appeals From Staff Interpretations/Actions and specifically 155.06(A)(1)(b) states, Page 3 Development Matters. An interpretation or decision of the Zoning and Development Administrator regarding development matters, including subdivisions, large scale developments, parking and loading and outdoor lighting may appeal. Per Chapter 155.06, I wish to appeal the denial of my sign application to the City Council as I believe Staff's interpretation of the code, specifically Chapter 166.18, is incorrect; if not completely invalid. Thank you for your time and attention to this matter. And please let me know the earliest date on which my appeal may be heard by the City Council. Tracy K. Hoskins Manager, Paradigm Building, LLC Enclosure cc: Kutak Rock - Russell Atchley, esq ave • evi kkiv.texa col ad- -10/0100 THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE ARKANSAS www.a ccessfayettevi l le,org CITY COUNCIL AGENDA MEMO To: Mayor Jordan, City Council Thru: Don Marr, Chief of Staff From: Jeremy Pate, Development Services Director v` Date: February 07, 2011 Subject: ADM 10-3761 (Hoskins Appeal) This memo provides additional information regarding the recent appeal filed by Tracy Hoskins with regard to Unified Development Code (UDC) §166.18 Master Street Plan Setbacks. Please note that in order for the Council to hear this item, it must be considered an appeal of staff's interpretation of Ch. 166.18 of the UDC, and not an appeal of the denial of a sign permit. An appeal of a denial of a sign permit may only be reviewed by the Circuit Court. The applicant recently submitted a sign permit application for property located at 3155 N. College Avenue, followed by a site plan indicating a sign setback of 10 feet measured from the dedicated street right-of- way for N. College Avenue, which is 80 feet, or 40 feet measured from centerline. Staff denied the sign permit application due to the fact that the sign was not setback 10 feet as measured from the Master Street Plan right- of-way for N. College Avenue, most recently established in 2006 when Mr. Hoskins performed a major remodel for Haas Hall School and World Gym and constructed a building addition at this address. When Mr. Hoskins constructed the building addition the Master Street Plan right-of-way required 55 feet from centerline, which is indicated on the plans submitted and permitted at that time. At a later date, the City Council actually reduced the Master Street Plan right-of-way to 48.5 feet from centerline, from which staff is applying the current setback requirement for the sign permit. Pursuant to § 155.06, the applicant is appealing the Zoning and Development Administrator's interpretation of §166.18 Master Street Plan Setbacks. As we understand the submitted information, the applicant makes two cases in the appeal: 1) That the use of the word "established" in *166.18 is the same as "existing," and therefore the setback is only 40 feet from centerline. The appeal states "in my case, the established right-of-way setback line is 40 feet from centerline of North College;" and 2) That sign setbacks are not subject to §166.18, since § 166 is a development chapter and a sign does not fall under the category of development. In staff's opinion §151 and §166.18 clearly address both points of the appeal, and supports the decision of the Zoning & Development Adminstator's interpretation of the UDC resulting in the denial of the sign permit THE CITY OF FAYETTEVILLE, ARKANSAS in its current form. First, the use of the term "established" must be clarified in the context of §166.18. The beginning of §166.18 reads: "The city shall require the applicant/developer to establish a right-of-way setback line based on the right-of-way requirements for streets and highways designated by the Master Street Plan. Such setback line shall be considered the property line for such purpose of satisfying the requirements of the UDO." (emphasis added) Consequently, the adopted Master Street Plan right-of-way line is considered the property line for satisfying the requirements of Chapter 174 Signs, and a monument sign or other structure shall be setback at least 10 feet from the right-of-way line. Signs have been consistently permitted under this regulation for at least the past decade, including others submitted by Mr. Hoskins. In support of the claim that a sign does not fall under the category of "development," the applicant has provided a definition in the appeal letter. However, it does not appear that this language is taken from the UDC. Where a term is defined in the UDC, this definition is the most appropriate in the context of the UDC. §151 Definitions of the UDC provides the following related to development: Development (Streets and Sidewalks). Shall include, but shall not be limited to, theconstruction of a new improvement, the construction of an addition to an existing improvement, or a parceling which results in the need for access and utilities. (emhasis added) Development Plan (Development). A drawing showing all proposed improvements to a piece of property such as streets, parking lots, buildings, drives, signs, utilities, drainage, grading and planting by size and location. (emhasis added) These definitions clearly support the idea that while a sign is not a large development in and of itself, a sign is considered an improvement similar to buildings and parking lots, and is therefore a category of development subject to the City's regulatory authority and the Master Street Plan right-of-way setback requirements. Moreover, the sign being discussed is related to a site that has been expanded and redeveloped in recent years, which relates directly to Mr. Hoskin's argument that the sign is part of a development that is drawing additional traffic to this site and thus has an impact on the area. Based upon these criteria taken directly from the Unified Development Code, staff does not find a way to reasonably support Mr. Hoskins' petition that his sign setbacks should be measured from the existing right- of-way line along College Avenue, which would be a vast departure in how the city permits sign applications. The Master Street Plan right-of-way was established at 55 feet from centerline in 2006 with the building permits issued for the development on this site; the more recent Master Street Plan actually reduced this right-of-way setback requirement to 48.5 feet from centerline. Staff finds that the proposed sign, as part of a development site, can be permitted only if in compliance with §166.18. Alternate Solution Staff has advised Mr. Hoskins that an alternative solution is available to either remedy or come closer to the result he is seeking for the sign on this particular property. As mentioned previously, the existing, dedicated right-of-way in this location is 40 feet from centerline. The Master Street Plan as currently adopted requires THE CITY OF FAYETTEVILLE, ARKANSAS 48.5 feet from centerline. As you are aware, staff is in the process of updating the Master Street Plan. We are recommending that the Master Street Plan right-of-way for a Principal Arterial be reduced from 48.5 feet from centerline to 43.5 feet from centerline. Once adopted, this will allow signs and other structures to be five feet closer to the street, as measured from the front property line. Staff recommends that the Council deny the administrative appeal, but approve a resolution that amends the Master Street Plan for this property to reflect the proposed Master Street Plan right-of-way of 43.5 feet from centerline. This will allow Mr. Hoskins some relief, while ensuring that the integrity of the Master Street Plan is continued. If desired, the Council could also amend the Master Street Plan to allow the current right-of-way, 40 feet from centerline, to be the established Master Street Plan right-of-way for this location. To Mr. Hoskin's point, we do not anticipate College Avenue to expand beyond a five -lane section in the near or mid-term future. It would be a City Council policy decision whether to hold to the currently adopted 48.5 feet right-of-way setback, allow the anticipated Master Street Plan right-of-way of 43.5 feet or reduce it further to 40 feet from centerline. Havizted &if cif Q ridd Ze4azi2,7 itppFd ektfito, 146.4s -it<+c a to e, . ave evi le a/4/aa/r Departmental Correspondence 711 ARKANSAS www.accessfayetteville.org LEGAL DEPARTMENT TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Jeremy Pate, Development Services Director Jesse Fulcher, Planner — Current Planning FROM: Kit Williams, City Attorney DATE: February 7, 2011 RE: Tracy Hoskins' Appeal Kit Williams City Attorney Jason B. Kelley Assistant City Attorney Attached please find my memo of January 26, 2011 that I supplied to Jeremy Pate and Jesse Fulcher and which was requested and provided to Tracy Hoskins. I stand by the legal and constitutional analysis contained within that memo which concluded: "If the new development, here the construction of a sign, would not have such major traffic generating impact, we cannot demand dedication of right-of-way or prevent a landowner's use of a portion of his property because of a fictitious new property line." I also stated: "Developments that would create substantial increases in traffic because of new or enlarged buildings, etc. could probably meet this `rough proportionality' test and be required to dedicate right-of-way or even construct street improvements." Mr. Hoskins met this constitutionally required "rough proportionality" test in 2006 when he constructed a new or enlarged building at 3155 N. College Avenue where he now desires to place his monument sign. The plat he prepared for this construction of about 4,000 square feet of office space (attached) clearly shows that this construction triggered §166.18 Master Street Plan Setbacks and established a new "right-of-way setback line based upon the right-of-way requirements for streets and highways designated by the Master Street Plan." If you look at the site plan plat prepared by Paradigm (which is owned by Mr. Hoskins) for its Commercial Center, you can see the previously dedicated 40 foot right- of-way from the center of College. Also shown is a "65' BUILDING SETBACK LINE" near the edge of Paradigm's building. Since this property is zoned C-2 Thoroughfare Commercial, its front setback requirement is 50 feet, not 65 feet. {§161.20(E) of the Unified Development Code} This extra 15 feet was what was required by the Master Street Plan which was 110 feet for a principal arterial or 55 feet from centerline instead of the 40 feet of the actual dedicated right-of-way. This additional 15 feet was not required to be dedicated by Paradigm or Mr. Hoskins when he built or enlarged his building. Instead his development merely established a new right-of-way setback line. However, from that point forward, "(s)uch setback line shall be considered the property line for such purpose of satisfying the requirements of the UDO." (§166.18 Master Street Plan Setbacks) Thus, Tracy Hoskins was required to and did "establish a right-of-way setback line based upon the right-of-way requirements for streets and highways designated by the Master Street Plan," in 2006. All other setbacks in the UDC would then "be dimensioned from (this newly) established right-of-way setback line." (§166.18) Because Mr. Hoskins' development of a new or enlarged building on his property in 2006 would generate sufficient traffic to justify a fifteen foot increase in setback requirements (to which he not only failed to object, but actually showed on his plat), the setback for a sign should also be dimensioned from this setback line established in 2006. §166.18 Master Street Plan Setbacks can now be constitutionally applied for Mr. Hoskins' proposed sign location because of his 2006 establishment of the new 55 foot line for setbacks to begin. It is also clearly within the City's statutory power. "§14-56-418. Setback lines; authorization When a master street plan has been adopted and filed as provided, the legislative body of the city, upon recommendation of the commission, may enact ordinances establishing setback lines on such streets and highways as are designated by the plan and may prohibit the establishment of any new structure or other improvements within the setback lines." Since what Mr. Hoskins did in 2006 in constructing a new or enlarged building would certainly be deemed " `development of land' under a valid regulation, then the Statute (A.C.A. §14-56-418) could provide authority for requiring reasonable right-of- way dedication." City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W. 2d 286, 290 (1992). Thus, the City's requirement to establish a new line from which to dimension setback requirements is both constitutionally and statutorily authorized. MASTER STREET PLAN AMENDMENTS The Planning Department has recommended that the setback line established by Mr. Hoskins' development in 2006 at 55 feet from centerline be reduced to 481/2 feet from centerline because the City Council reduced the right-of-way requirements for principal arterials in the 2006 Master Street Plan amendments. Since construction of a sign is a "development" (requires a building permit), §166.18 can be used to reduce the required setback line from 55 feet to 481/2 feet with no consideration of whether or not there is any impact upon the City's infrastructure needs. On the other hand, §166.18 cannot increase the setback distance without such a "rough proportionality" test to justify an increased restriction upon an applicant's property. The City Council can reduce the Master Street Plan right-of-way requirements "in the event of undue hardship or practical difficulties" for a subject property. {§166.04 (B)(3)(a)(i) of the U.D.C.} Since the Planning Department is probably going to recommend a further reduction in Master Street Plan right-of-way requirements for College Avenue to 87 feet (431/2 feet from centerline), the City Council could grant Tracy Hoskins this same reduction in advance of the formal adoption of the Master Street Plan amendments. If you did so, his "development" of the construction of his sign would trigger §166.18 provisions and change the line from which all setback requirements of the UDC would be measured from 55 feet from center line to 431/2 feet from centerline. If you take no action, the legal and constitutional line for setbacks would only be reduced to 481/2 feet from centerline from its current 55 feet from centerline. S i I 1---- (16 Iia. R^ f eit 4 114441* -4 _' O ��. :���� (� 4%1144solt tow- t Al to V yr 44 44 .. Ri► �9 .•. f, Pi . 0, iaik At..40 if ;1 a1/► o GNB' 13 2E- KPt�ari tt . �� {� ,, 1 1 — SIC►� �P `S it11111111111 - yF Ste' m 1 w _. II.� a # Z ; e DANA NO �_' -�--, '�j fj'�T'8¢j 6 ' . }� v W Fnv` 6 : r • • • 1k^e' mmw '.[VEL • Me Sr .[.(L ]. Y )542 Sr 9102 lK OR RECORD DRAWI1NGS • Jt I n ��\ N PARADIGM COMMERCIAL CENTER I \� i---' �'� m FAYETTEVILLE, ARKANSAS Certificate of Owner The undersigned certifies to be the owner of the real property for which a site plan has. been. submitted to the City of Fayetteville, Arkansas as part of a building permit application and certifies that the structure to be built on said property will be located as reflected on said site plan, will comply with all setback requirements of the Fayetteville Zoning Ordinance (Appendix C to the Fayetteville Code of Ordinances), and will not encroach on any public utility easement. I understand that all inspections by City Inspectors will be made only to determine compliance with construction codes and not to assist the owner in properly locating the structure. I acknowledge my responsibility to insure, by boundary line survey if necessary, that the location of the structure will conform to the site plan that is attached to the Building Permit application and will. meet all setback requirements of the Fayetteville Zoning Ordinance, and will not encroach on any public utility easement. Signature of Owner /-1O-9, (date) BUILDING PERMIT APPLICATION Office Use Only city of Feyenevtee Building Safety.Dlvislon 113 West Mountain Street • Fayetteville. AR 72701 • Phone: 479-575.8233 Fax; 479.575.8316 �j Date Submitted: t - (0 - 0(o Permit #r -I J C � u Review Routint&Approval DIVISION COPY TO: ISI = OK APPROVAL DATE Planning ' Engineering Landscape 5. SITE ADDRESS: 3150 N. COL.L.E6.: Sad Waste Zone:_Lot: Block:_ Subdivision: ':fist 0....., -..-cf. pre • Sec-Twn-Rng:3s"-0-00 Plat: Par ft: Inspections ,•N ______ Uw�nert.-• 1.4434..N Address: no. , Phone: tt4AV..1 �vut t$is.y W. (AL- c;ieii'IteVtui7p:,-cur $1..4.. 1z-jo1 ''(19 - 2x-462,6 ArdileWFi,ainaer: ttaing Address: ' Zp: Phone: /s%Aw. MN.Ne l8qc-2 1.4. GAL, PiA•crfe.),0-e.` Ai&-1.2-1ot-lig -Sit•138'7 1.% Conies Mama Address: . Zip: Plnne: SnAnc {As f5.boNf- • nn.nDagilA- "'JewgA.JC Review Contact:1 �- Phoma: , Fac C0R ' ..-1-64 .•., �. 1.4.344.3.1. &N. $'11.138"+ • S')I-1336 zf6-(3Grro�x SW. Convapoeelbenae E*IN= ' kik , 10oOw or RasldenuO Permits Appaed fa in the slab of A4 tuna thisyeen ' Resideneat Work: NEW _ADDITION ,ALTERATION REPAIR : • MOVING _ DEMOLRION _ FOOTING ONLY EXTERIOR ONLY: TENANT FINISH D SIGN/BUILD OTHER Residential ! Single Family _ Multifamily. Condos (No. of units: ) Townhouse wlzero lot line ✓ Other _ Valuation of Work Suildina Information • Bullding: $ 11'!) 340 4 of Stodes: - Sum Total Area 394 Z. sq. ft Eiactdcat $ Z21 100 Height: G '•1O TOW/ Heated/Cooled: .�}' 142 nq. ft Plumbing: $ (o 4'00 tit �1 Total Unheated: sq. ft Mechanical: $ ('2. O0 Width: -t Add/Alt. Area: rq. t Misc.: 5 Slab Floor. Y _N Basement --• :q. 8. Total: $ 2lS QQC) Structure: •Wood Metal 1✓ Masonry r Foam Form_ Other Building will comply with Arkansas Energy Code Requirements (Yes/NA); yZ Wall Insulation Type: Batt _ Cellulose f Is a retaining wall to be constructed? (Yes/No); n(0 ` Engineering Approval:_ Is slope of site greater than 15%7 (Yes/No): of 4 Engineering Approval:_ Flood Plain?(YeslNo): 1d9 :Base Flood Elevation: :Lowest Finished Floor. Planning Approval:__ Public Sewer. . Y_N AR. Plbg. Approval 0: Washington Co. Septic Approval 9: DESCRIPTION OF WORK:rjt❑ J ,6 » Z Sin t O� Rt, �atlau urs .s44,_ is---- cs.t. »»» Use of Buildiv: 0 i�trk Previous Use: /.3'?t Construction Type: Max. Occupancy Load: Protection (hours): OFFICE USE FOR PLAN REVIEWERS ONLY: 6 Occupancy Group: a{0 ('o P...�. rzo) Flre Zone: O Sprinklered: N: SEPARATE PERMITS ARE REQUIRED FOR ELECTRICAL. PLUMBING, GAS. MECHANICAL, AND SIGNS. THIS PERMIT BECOMES NULL AND VOID IF WORK/CONSTRUCTION AUTHORIZED IS NOT COMMENCED WITHIN 6 MONTHS, OR IF WORK/CONSTRUCTION IS SUSPENDED OR ABANDONED FOR A PERIOD OF 6 MONTHS, I hereby codify that 1 have read and examined this application and know the same to be true and correct. All provisions of law and ordinances governing Nis type of work will be complied with whether specified herein or not The granting of a permit does not presume to give authority to violate or cancel the provisions of any other state or local law regulating construction or the•ertenua • -. nslruction. (Dant nspectkln ofpermr W may reveal =la violations not dfsoovered during plan review. Revised on 517/2003 Permit page 1 • 'Mtteville Departmental Correspondence ARKANSAS www.accessfayetteville.org LEGAL DEPARTMENT TO: Jeremy Pate, Development Services Director Jesse Fulcher, Current Planning FROM: Kit Williams, City Attorney DATE: January 26, 2011 RE: Appeal of Staff Interpretation of §166.18 Master Street Plan Setbacks Kit Williams City Attorney Jason B. Kelley Assistant City Attorney Applicant Tracy Hoskins may not appeal a denial of a sign permit application except directly to Circuit Court. §174.02(C) and §155.01 However, Mr. Hoskins is not attempting to appeal the denial of his sign permit (which has not actually been denied), but only the staff's interpretation of §166.18 Master Street Plan Setbacks which staff believes controls the meaning of "street right-of- way" in the monument sign section of the Sign Ordinance and thus, the allowed location of the sign. This staff interpretation is subject to appeal to the City Council through §155.06(A)(1)(b) Development Matters. §166.18 Master Street Plan Setbacks begins as follows: "The city shall require the applicant/developer to establish a right-of- way setback line based on the right-of-way requirements for streets and highways designated by the Master Street Plan. Such setback line shall be considered the property line for such purpose of satisfying the requirements of the UDO." The first issue here is whether a person only wishing to place a sign on his property for a business which is occupying an existing structure could be required by the City to dedicate additional street right-of-way. Constitutional protections (Fifth Amendment provisions) prevent governments, including cities, from demanding a greater exaction (right-of-way dedication) than the burden the new development will place upon the city's street infrastructure. A sign for an existing business in an existing building would appear to have too small of an impact on our street infrastructure needs to justify a demand that additional street right-of- way be dedicated. {Please see attached a copy of the memo I issued ten years ago (July 27, 2001) about the need for our land dedication ordinance requirements to meet the "rough proportionality" test of the probable impact of development upon our infrastructure needs which was required by the United States Supreme Court in Dolan v. City of Tigard,512 U.S. 374,390 (1994).} Although §166.18 does not specify that the developer/applicant "dedicate" land to meet the Master Street Plan recommendations, it requires an establishment of a setback line and states "(s)uch setback line shall be considered the property line for such purpose of satisfying the requirements of the UDO (now UDC)." (emphasis added) By not using the actual, already dedicated and currently existing street right-of-way line as the property line and substituting a new "property line" for UDC setbacks, the City would, in effect, be requiring dedication of this additional land. Any such dedication would therefore have to meet the Constitutional "rough proportionality" test. Developments that would create substantial increases in traffic because of new or enlarged buildings, etc. could probably meet this "rough proportionality" test and be required to dedicate right-of-way or even construct street improvements. However, Jonesboro was determined by a Court to have been guilty of and liable for inverse condemnation when it required nine additional feet for street right-of-way pursuant to its Master Street Plan before it would grant a replat needed for development. City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992). There the Arkansas Supreme Court noted that although the state statute gives cities "authority to promulgate a regulation. It does not directly authorize taking land without compensation." Id. Jonesboro had to pay over $5,000.00 in 1992 for its additional 9 feet of right-of-way. Ordinances like statutes should be interpreted to be constitutionally and legally valid if possible. The first sentence of §166.18: "The city shall require the applicant/developer to establish a right-of-way setback line based on the requirements for streets and highways designated by the Master Street Plan," would be valid as long as it is understood that establishing a new right-of-way setback line based upon the current Master Street Plan can only be required if the proposed development's likely traffic generating potential would cause such an impact upon our street infrastructure needs at that location such that the right-of- way dedication would be roughly proportionate to the anticipated impact of the new development. If the new development, here the construction of a sign, would not have such major traffic generating impact, we cannot demand dedication of right-of-way or prevent a landowner's use of a portion of his property because of a fictitious new property line.