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HomeMy WebLinkAbout25-12 RESOLUTIONRESOLUTION NO. 25-12 A RESOLUTION TO GRANT THE APPEAL OF KUM & GO, L.C. AND TO AMEND AND APPROVE ITS LARGE SCALE DEVELOPMENT TO AGREE WITH THE PLAT SUBMITTED WITH ITS APPEAL LETTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby grants the appeal of Kum & Go, L.C. from some of the terms or conditions imposed by the Planning Commission, but adds the condition that Kum & Go, Inc. must construct and pay for a median in Martin Luther King, Jr, Boulevard as shown in Site Plan F "Median Concept", and amends and approves the Large Scale Development plat to conform with the plat submitted by Kum & Go, L.C. as Site Plan F as further amended as shown by the site Plan F with "Median Concept" in red (both attached to this Resolution) regarding its driveway access onto and from Martin Luther King, Jr. Boulevard and changing the access from Royal Oak from vehicular to pedestrian. All other terms and conditions approved by the Planning Commission when approving LSD 11-3966 (Kum & Go at Martin Luther King and Hill Avenue) shall remain in full force and effect. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby grants Kum & Go, L.C. the right to bring this LSD 11-3966 back to the City Council by giving written notice to the City Clerk within 10 days of its receipt of a decision by the Arkansas Highway and Transportation Department to deny construction of the median for further consideration by the City Council. PASSED and APPROVED this 17th day of January, 2012. APPROVED: ATTEST: SONDRA E. SMITH, City Clerk/Treasurer „will IT iz ; 1111 [VV. w j a r cgi November 22, 2011 ENGINEERS • SURVEYORS • PLANNERS LANDSCAPE ARCHITECTS • ENVIRONMENTAL SCIENTISTS 3108 S.W. Regency Parkway, Suite 2 Bentonville, AR 72712 479.273.9472 Fax 479.273.0844 City of Fayetteville City Council 113 W. Mountain Street Fayetteville, AR 72701 Attn: Planning Department Re: Appeal of Planning Commission to deny proposed improvements Kum & Go, #413 CEI Project No. 26728.0 To Fayetteville City Council: RECEIVED NOV 2 G 2011 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE DISTRIBUTION: RER/File Kum & Go, L.C. Kum & Go, L.C. respectfully request the appeal to be heard in the decision of Planning Commission's vote at the November 14th, 2011 meeting for approval in the Kum & Go Convenience Store Large Scale Development. The property is located at the southwest corner of Martin Luther King Jr. Blvd and Hill Ave. The property is currently undeveloped and slopes significantly (Approximately 28 -feet) from the north property line to the south property line. Throughout the City approval process, revisions to the overall site layout were requested by two separate subdivision committee reviews in regards to the Large Scale Development plans. Under the first Subdivision Committee review (October 13, 2011) and as requested by the committee; Kum & Go was to provide a shared access drive from Royal Oak and shift the Martin Luther King Jr. Blvd access east, approximately 25 -feet closer to Hill Ave. This request was accepted by Kum & Go and tabled for the next subdivision committee review for approval to these changes. Following the second Subdivision Committee review (November 3, 2011) and as requested by the committee; Kum & Go was then directed to remove the shared access drive along Royal Oak due to possible issues in traffic movements around the intersection and due to the geometric roadway configuration. As a result to the existing topography; the roadway became superelevated along the median and grades became steep along the access drive located within the site. Furthermore, the adjacent property owner's representative to Hill Place Apartments stated that they were not in favor of a shared access and would not allow for such access through the privately owned median. In addition, the committee jotblfd I/17//L CCiqh 7a bled 1 qh 1/i/ia Cc mi recommended a'/ access drive with a median which would limit traffic movement to a right - in, left -in, and right -out access only from the Martin Luther King Jr. Blvd proposed access drive. This request was accepted by Kum & Go, revised, and moved forward to Planning Commission, dated November 14, 2011. Certain restraints have been held to this site in regards to the existing grades, close proximity to the Royal Oak drive, and current City ordinances. Should the site's Finish Floor elevations be lowered to accommodate the shared access drive along Royal Oak, then the MLK Jr. Blvd access drive becomes too steep which in turn limits the access of the delivery trucks. In the case of a right -in only drive; if a potential customer traveling west along MLK Jr. Blvd. chooses not to turn onto Hill Ave. before approaching the site, then the only option left for the driver is a possible "illegal" U-turn or to carrying on further west until finding an appropriate turn -around point. Following the Planning Commission meeting dated November 14, 2011, Kum and Go has made the following revisions to the site plan (See Exhibit — A). - The MLK Jr. Blvd. access drive has been shifted to the west approximately 30'. This shift is to address the traffic stacking in the left turn lane along MLK Jr. Blvd. and for those vehicles wanting to proceed north onto Hill Ave. - A pedestrian sidewalk connection has been included to extend from Royal Oak to the proposed convenience store. This property is an ideal location for this type of development and is welcomed by the residents of the Hill Place Apartments and is sure to be a convenience to the Fayetteville community. Several business's along the Marin Luther King Jr. Blvd corridor has in the past and recently been provided the convenience of a 3 or a full access drive. For Kum and Go to be denied a full access or even a 3/ access drive will only deprive them of the rights or privileges granted to other developments within recent time. In conclusion, we believe the public health, safety, welfare, and morals would be better served if the Planning Commission's vote were reversed because the highest and best use for this property would be for what the Kum and Go stores represent and the services they provide to a community. We appreciate your consideration in this matter, and if you have questions or concerns, please do not hesitate to contact me. Respectfully submitted, (IAA - R. Erin Rushing, RLA Department Leader CEI Engineering Associates, Inc. 9 a'F e fevflle THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE ARKANSAS www.accessfayetteville.org MEMO To: Mayor and City Council Thru: Jeremy Pate, Development Services Director& From: Chris Brown, City Engineer C-13 Date: January 11, 2012 Subject: LSD 11-3966 (Kum and Go at Martin Luther King and Hill Avenue) Review of Vehicular Traffic and Site Distance Safety Study Provided by Kum and Go Study Review The Vehicular Traffic and Site Distance Safety Study developed by Small Arrow Engineering, LLC (SAE), and provided to the City Council at the December 20, 2011 City Council Meeting has been reviewed by Engineering Division staff. The study provides a report of existing site conditions and calculated impacts of the proposed development, and includes recommendations of improvements on Martin Luther King Boulevard to accommodate the proposed development. Upon review, staff notes the following: 1) No traffic counts were taken as part of the study; rather, traffic was observed during a two-hour period (4:30 to 6:30 pm) on a Friday afternoon. This observation does not provide a true and complete picture of traffic conditions in the area, specifically relative to traffic commuting to and from the University of Arkansas for classes, and the traffic related to the nearby Fayetteville High School, since traffic was observed only during the afternoon hours, after most classes have dismissed. 2) No stacking/queuing analysis or existing level of service was provided; therefore, the stated observed queue lengths provide only a snapshot of traffic operations and, again, do not provide a true picture of queues experienced during an average day. 3) The study notes an observed traffic split of 60 percent eastbound to 40 percent westbound. Again, this observation is during a limited time frame, and there is not enough data to assess its validity. 4) No crash data was provided in the study. 5) The study agrees with staff assertions that vehicles using the proposed driveway could conflict with east bound traffic turning left at Hill Avenue. 6) Improvements to Martin Luther King Blvd. recommended by the study include: a, Upgrade of the traffic signal to provide protected left turns from Martin Luther King Boulevard in both directions. b. Modification of the center lane striping between Hill Avenue and the proposed driveway entrance, or alternatively installing mountable medians to reduce the potential for conflicts between left turn movements on the proposed driveway and on existing Hill Avenue. THE CITY OF FAYETTEVILLE, ARKANSA In summary, the study provided by SAE is too limited in nature to fully assess the existing traffic conditions, and does not include the type of data normally provided in a traffic study. Data such as hourly traffic counts for a period of at least 24 hours, 15 minute counts during the AM and PM peak hours, turning movement counts, observation of queue lengths during the AM and PM peaks, and crash statistics must be collected in order to fully analyze existing levels of service, delay times, stacking lengths, and other intersection conditions, and to accurately predict the effects of the proposed development on traffic in the area. Having said that, the observed traffic conditions reported in the study are similar to video evidence provided by staff at the December 20, 2011 City Council Meeting, in that eastbound traffic was observed stacking from the Hill Avenue signal all the way to the proposed driveway. The study also recognizes the potential for westbound vehicles turning left into the proposed driveway to conflict with the eastbound left movement at Hill Avenue. It should be noted that the opinions of staff and of the Engineer preparing the study are similar, and are both based on observations of traffic operations at the site. The field of Traffic Engineering certainly has its share of data collection, calculations, and analysis, but the tenets of Traffic Engineering are based on empirical evidence and study of driver behaviors. Therefore, observation of traffic is an important part of a traffic analysis project, and should not be discounted or ignored as evidence. Analysis of Crash Data Staff presented a statistic regarding crashes at driveways at the City Council Meeting on December 20`h. This statistic, that approximately 50% of crashes at driveways are due to left turns into the driveway, is certainly general in nature. However, a review of various studies dealing with the effect of driveways on traffic accidents can produce similar statistics, all indicating that driveways and associated turning movements have an effect on crash rates. It goes without saying that allowing a left turn into the Kum and Go from MLK Blvd. will cause more crashes than are currently occurring in the vicinity of the driveway, as crash rates are proven to increase as turning movements do so. To provide more specific data, staff requested crash data from the Arkansas Highway and Transportation Department for MLK Blvd., % mile either side of its intersection with Hill Avenue, and also `/ mile either side of the Razorback Road intersection. Further analysis of the data is needed to say with certainty what effect the number of driveways and turning movements had on the relative crash rates, but the data clearly shows the much higher incidence of crash rates on the segment around Razorback Road, which is more highly developed and has businesses that generate higher turning volumes than the segment around Hill Avenue. The rate of crashes near Razorback Road (8.28 crashes per million vehicle miles (mvm)) is more than double the rate near Hill Avenue (3.94 crashes/mvm). Summaries of the data and an aerial photo of the two areas are attached. Furthermore, a comparison of crashes east and west of Razorback Road shows 80 crashes to the west, and 44 to the east of the intersection (with 12 in the intersection itself). As the aerial photo of this location depicts, there are more than twice the number of driveways west of the intersection; this area was developed prior to current access management policies. Again, additional analysis beyond the scope of this review is needed to fully discern the reasons for this, but it cannot be disputed that the relative number of crashes east and west of the intersection is roughly proportional to the corresponding number of driveways. Recommendation Because of the potential conflict between vehicles making left turns at Hill Avenue and the proposed driveway, staff recommends that the City Council uphold the Planning Commission's decision to allow a curb cut on Martin Luther King Boulevard with right -in right -out access only. THE CITY OF FAYETTEVILLE, ARKANSA If the City Council disagrees with the staff recommendation and the Planning Commission's decision and wishes to permit left turns into the driveway, staff recommends that this approval be contingent upon the construction of a median similar to the attached drawing labeled "Median Concept", and as suggested in the applicant's Vehicular Traffic and Site Distance Safety Study. This median, as is the case with any construction within the Highway right of way, would require a permit from the AHTD. Summary of Crash Analysis Highway 180, Section 0 Log Mile .50 —1.0 Fayetteville, Hwy 180 and Hwy 112 Area Washington County A crash analysis showed that 136 crashes occurred on Highway 180, Section 0 fiom log mile .50 to log mile 1.00 in Fayetteville for the period January 1, 2008 through December 31, 2010. Further information is shown below. Crash Severity: 38 nonfatal injury crashes that include: 1 serious injury crash 10 moderate injury crashes 27 possible injury crashes 98 property damage only crashes Crash Type: Road Surface Condition: Angle Crashes 59 Dry 113 Rear End Crashes 55 Wet 22 Sideswipe Crashes 16 Ice 1 Single Vehicle Crashes 5 Backing Crashes 1 Three Year Average Crash Rate for Study Area: 8.28 crashes per million vehicle miles traveled. *Statewide 2 -year average crash rate is 4.97 crashes per million vehicle miles for an urban, 4 -lane undivided, no control of access highway. Factors Used to Calculate Crash Rate for Study Area: Avg. AADT 30000 Length .50 mile Three Year Average crashes 45.33 *2010 Crash Rates are not yet available so only 2008 and 2009 was used. 12/29/2011 P&R:TSS/TE BEECHWOOD AVE, 1.t r V _ :RAZORDACK. PD. m • " i " r'n' -1 t r k'" ' >` tirAtila ems}vym Vag iirWit4: igi y „ow, Summary of Crash Analysis Highway 180, Section 0 Log Mile 1.10 —1.60 Fayetteville, Hwy 180 and Hill Road Area Washington County A crash analysis showed that 55 crashes occurred on Highway 180, Section 0 from log mile 1.10 to log mile 1.60 in Fayetteville for the period January 1, 2008 through December 31, 2010. Further information is shown below. Crash Severity: 12 nonfatal injury crashes that include: 1 serious injury crash 1 moderate injury crashes 10 possible injury crashes 43 property damage only crashes Crash Type: Road Surface Condition: Angle Crashes 26 Dry 49 Rear End Crashes 18 Wet 4 Single Vehicle Crashes 6 Ice 2 Sideswipe Crashes 4 Backing Crashes 1 Three Year Average Crash Rate for Study Area: 3.94 crashes per million vehicle miles traveled. *Statewide 2 -year average crash rate is 4.97 crashes per million vehicle miles for an urban, 4 -lane undivided, no control of access highway. Factors Used to Calculate Crash Rate for Study Area: Avg. AADT 25500 Length .50 mile Three Year Average crashes 18.33 *2010 Crash Rates are not yet available so only 2008 and 2009 was used. 12/29/2011 P&R:TS S/TE rw L. ..tin .11.11///0. J Nd1d ilIS P.riAor Aaladvly o1 Frew ,, +}wen Hrygp N01116 -48"E 74,310' A r Hpr 2 STORE# 26728 - FAYETTEVILLE, AR SIT UE PLAN F GUMS GO REQUEST] HU 8 ZH � KUM & GO, L.C, 6400 Westown Parkway, .r�a�sasal2d West Des Moines. Iowa 50266,, ENGINEERING ASSOCIATES INC •: ... / /r .n. .r�nii'rrw Page 1 of 1 City Clerk - Kum & Go, 413 (CEI Project # 26728.0) From: <MClotfelter@ceieng.com> To: <city_clerk@ci.fayetteville.ar.us> Date: 12/30/2011 3:11 PM Subject: Kum & Go, 413 (CEI Project # 26728.0) CC: <ERushing@ceieng.com> CEI respectfully request that the referenced item for City Council Meeting scheduled for Tuesday, January 3, 2012 be tabled for two weeks. Our client, Kum & Go, L.C., is currently working to resolve issues with the Arkansas State Highway and Transportation Department. If you have any questions or need any additional information, please feel free to contact me at your convenience. Thank you, Mike Clotfelter Project Designer CEI 3108 S.W. Regency Parkway, Suite 2 Bentonville, AR 72712 Phone: 479-273-9472 "We will continually set the national standard for land development services, and we are committed to the growth and success of each other." CEIENG.COM Arkansas 1 California 1 Georgia 1 Louisiana 1 Minnesota 1 Pennsylvania 1 Texas This message could contain confidential information. Unless you are the addressee (or authorized to receive for the addressee), you may not copy, use, or distribute this information. If you have received this message in error, please advise Mike Clotfelter immediately at 1-479-273-9472 or retum it promptly by mail. file:///C:/Users/ssmith/AppData/Local/Temp/XPgrpwise/4EFDD4B6FAYETTEVILLECI... 12/30/2011 1MTville Departmental Correspondence ARKANSAS www.accessfayetteville.org LEGAL DEPARTMENT TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Jeremy Pate, Development Services Director Chris Brown, City Engineer FROM: Kit Williams, City Attorney DATE: December 27, 2011 Kit Williams City Attorney Jason B. Kelley Assistant City Attorney RE: Kum & Go Appeal Potential costs to taxpayers if left turn in access is denied MOTION TO TABLE When Alderman Ferrell asked if denying the left turn in from Martin Luther King Boulevard was a "deal killer" and Kum & Go's representative said "Yes," I became concerned that the City Council's decision could have costly implications for our taxpayers. This concern was reinforced when the property owner came forward to explain the difficulties in selling this large parcel with 360 feet of street frontage on Martin Luther King Boulevard without at least a full right and left in curb cut on MLK. What concerned me were clear holdings by the Arkansas Supreme Court that a city may not take away a property owner's access easement to an abutting street without the payment of just compensation. "Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself; and any subsequent act, by which that easement is substantially impaired for the benefit of the public, is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation." Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S.W. 2d 753, 753-754 (1931). (emphasis added). Four decades later, the Arkansas Supreme Court reaffirmed this access easement right as a property right for a lot abutting a street. "The owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Flake v. Thompson, 249 Ark. 713, 460 S.W. 2d 789, 795 (1970). In that case, the City of Little Rock had passed an ordinance that would have denied access to University Avenue to the property owner and argued that it could do so because the property owner had access to another (lower level) city street. The Arkansas Supreme Court held "that the ordinance constituted an unwarranted invasion of private rights and was discriminatory and oppressive, and thus it is unreasonable and arbitrary." Id. at 796 "The property right of ingress and egress of appellants in the easement was one that could not be taken from them by the city, at least without the payment of just compensation." Id. (emphasis added). If denying Kum & Go's requested left turn in access from MLK would kill this $3.5 million project and leave the property owner with several acres of prime commercial land which cannot be reasonably sold, this "taking" by the City could be very expensive for our taxpayers. That concern prompted me to ask the City Council to table this appeal not only so our Engineering Department could analyze the rather "thin" traffic study presented by Kum & Go, but so I could properly advise you on the legal and possible financial ramifications of your decision on the appeal. BACKGROUND OF KUM & GO'S REQUESTED LEFT TURN IN Kum & Go had to be granted a variance for access onto Martin Luther King Boulevard because its driveway could not be at least 250 feet from both Royal Oak and Hill Avenue. The driveway's proposed location on Site Plan F (which Kum & Go is requesting you to approve) is 272 feet from Hill Avenue but only 91 feet from Royal Oak. I believe that legally we must allow Kum & Go some access onto Martin Luther King Boulevard along its 389 foot frontage. Both the Planning Department and Planning Commission agree that a driveway should be allowed. The only issue is its precise location and the possible limitation of such access. 2 The Access Management section of the Unified Development Code specifies when a curb cut can be limited so as not to provide both left and right turns into and out of the property. "If a parcel on the corner of an arterial or collector street (like this parcel) provides such a short frontage along a major street that there is no safe ingress/egress functional location on that street, the (City) may deny the curb cut or may limit such curb cut to ingress or egress only." §166.08 (F)(1)(e). (emphasis added) The 389 foot street frontage on MLK is certainly not "short". It appears much longer than the gas station/convenience store frontage at MLK and Razorback which has unlimited curb cuts on both of these major roads and much more center lane car stacking on MLK to turn left onto Razorback than the Hill Avenue intersection. The same is true for the new fast food restaurant on the southeast corner of MLK and Razorback. The City should present clear scientifically established safety dangers of allowing a left turn in from MLK at this location before restricting this normal property right which is being allowed to competitors and will likely cause the loss of this land sale to the property owners and the applicant's multimillion dollar investment in our City. All are in agreement that there is a safe right turn in and out functional location in the approximate location shown by Site Plan F. The issue is whether a left turn into the property at this location over 90 yards from the Hill Avenue intersection is so dangerous that the City can deny this normal property right of the owner. Even if such left turn in access can be legally denied, the Arkansas Supreme Court holdings would probably require just compensation for this taking. The City could present several types of evidence to factually support its contention that this left turn in access would be too dangerous to allow. City Staff could present evidence of sight distance problems with the proposed location. Staff could present a traffic study demonstrating certain traffic movements at this location (such as left turns in) are so unreasonably dangerous that such access should be denied. This has yet to be presented. The 20-30 second video (that does not even include a complete traffic signal rotation and with no scientific evidence that the traffic shown is the normal volume, direction and speed for that intersection) provides virtually no evidence for the City Council to determine the safety or danger level of the proposed left turn in from MLK. It is less than 4 hundredths of one percent of one day's traffic history of that intersection. This is not good evidence of what occurs during the remaining 99.96% of the day at that intersection. General statistics that left turns on major roads cause the most accidents are probably too general to justify a decision to deny a left turn at this location. If there was no center turn lane, there would be increased danger of rear -end accidents. All of us know the caution we must use when driving in the left lane on North College Avenue 3 between North Street and Maple Avenue to avoid being stopped behind a driver turning left onto Trenton or Prospect or into one of the numerous businesses (including a coffee shop, restaurant and liquor store) along that stretch of four lane (no center turn lane), high volume, 35 m.p.h. street. The same is true on Highway 71B from Martin Luther King to Dickson Street. Fortunately, in the case of Kum & Go on Martin Luther King, there is a center turn lane on Martin Luther King with enough room to "stack" several cars. This is a far safer situation than AutoZone, IGA and many other businesses including service stations on the newly reconfigured and reconstructed portion of North College from Rock Street to Maple which allow full access curb cuts closer to major intersections. Please keep in mind that our Access Management Ordinance states: "Where a curb cut must access the arterial street, it shall be located a minimum of 250 feet from an intersection or driveway." I presume that a 250 foot requirement from an intersection was to ensure safety and lack of conflict with such intersection. Kum & Go's Site Plan F satisfies that safety requirement for the intersection with Hill Avenue. Thus, the City's reliance upon possible safety concerns because of the Hill Avenue intersection are substantially weakened because this driveway meets the separation requirements of the Access Management Ordinance. Kum & Go's proposed driveway does not meet the separation requirement with Royal Oak because it is only 30 yards away. This is where the variance requested by Kum & Go can best be scrutinized for safety issues. Since Royal Oak would be used almost exclusively by residents of this apartment complex, it would be a low volume exit. I doubt if its actual traffic has been counted. This is much less of a safety issue than numerous other curb cuts permitted elsewhere on MLK, Archibald Yell and College Avenue (even on the City rebuilt section of College Avenue). An equal protection of the laws argument concerns me with this case. REQUIRING FULL DRIVEWAY ACCESS FROM AND ONTO THE ONE LANE — ONE WAY ROYAL OAK Kum & Go's proposed gas station/convenience store has two separate access points on MLK and Hill Avenue. To require it to connect to a one lane, one way Royal Oak so that residents do not have to either go to Hill Avenue or turn right onto MLK seems like an over -reach and a potential violation of Constitutional protections given developers. The City can require exactions (more normally known as "costs") of a developer in rough proportion to the impact the developer is causing to City infrastructure (like streets). Thus, the cost to pay for the erection of a new traffic signal as suggested by its own traffic engineer to reduce any stacking issues could be a reasonably proportionate exaction (or cost) required from Kum & Go for this project's impact on City streets. 4 Likewise requiring a developer of a large corner lot to have curb cuts on both MLK and Hill for both its customers' convenience and safety and for fire access would likely be within a city's power. However, requiring a third access onto and from a one lane, one way street that functions as an apartment complex driveway is much more difficult to justify. This is especially true because this additional driveway would not only be very expensive (hundreds of thousands of dollars) and use significant portions of the developer's land, it would also force the movement of the curb cut on MLK into the 250 foot "danger zone" from the intersection with Hill Avenue (a real city street). What small amount of traffic (only from the apartments) might use this driveway would cause conflicts with traffic entering from MLK and could encourage illegal cut through traffic if Royal Oak was ever backed up waiting to enter MLK. The City already approved Royal Oak's right turn onto MLK as safe enough to build this "city street". Certainly a right turn into Kum & Go off MLK is also safe and is recommended by Planning and Engineering as safe. So this very expensive driveway from the one lane Royal Oak is being required to replace two "safe" right turns for a very limited number of drivers. I fear this requirement exceeds the proportionate impact of this development, and thus the City may lack the constitutional power to require this questionable and very expensive third access from and onto the one way, one lane Royal Oak. In addition, all this extra pavement for the driveway seems to run counter to the City Council's express policy supporting low impact development. The sidewalk alternative proposed by Kum & Go is also more compatible with the City Council's adopted policy to move toward a less car dominated, more pedestrian and walkable environment. CONCLUSION "We have held that the owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970). We have also noted that this property right is not diminished merely because the property owner has alternative means of ingress and egress. Wright v. City of Monticello, 345 Ark. 420, 47 S.W. 3d 851, 857 (2001). (emphasis added). Even if we have well proven public safety concerns, "(t)he property right of ingress and egress ... could not be taken from them by the city, at least without the payment of just compensation". Flake v. Thompson, supra (emphasis added). I appreciate Kum & Go's proposed compromise not to insist on a left out onto MLK 5 Boulevard because of concerns for the safety of its customers and the proximity of the traffic signal on Hill Avenue. Accepting such a compromise (Kum & Go originally sought a full access including left out onto MLK) would allow this project to be built and prevent a probably successful inverse condemnation case against the City. In the late 80's and early 90's, the Fayetteville Board of Directors committed illegal exactions (sometimes after being warned) which they justified as "doing the right thing." These decisions cost our taxpayers several million dollars paid to attorneys who sued us successfully arguing that following the Constitution and state law was actually "doing the right thing." I was on the City Council who had to clean up those messes and authorize the multimillion dollar payments ordered by the Courts for those attorneys. When I became Fayetteville City Attorney in 2001, I made a commitment to myself to do my best to avoid those multimillion dollar mistakes. Because the City Council has heeded my occasional warnings, our taxpayers have not had to pay these exorbitant attorney fees for over a decade. I ask you once again to carefully consider the law that gives property owners access rights to City streets and be aware that, if you deny an access right in this case, the result could be writing a fairly large check on our taxpayers' account. 6 TITLE XV UNIFIED DEVELOPMENT CODE shared between two or more lots. Where a curb cut must access the arterial street, it shall be located a minimum of 250 feet from an intersection or driveway. Number of Curb Cuts Permitted Length of Street Frontage Maximum Number of Curb Cuts 0-500 ft. 1 501-1000 ft. 2 1001-1500 ft 3 More than 1500 ft. 4 (b) Collector Streets. Curb cuts shall be located a minimum of 100 feet from an intersection or driveway. When necessary, curb cuts along collector streets shall be shared between two or more lots Number of Curb Cuts Permitted Length of Street Frontage Maximum Number of Curb Cuts 0-100 ft. 1 101-250 ft. 2 251-500 ft. 3 More than 500 ft. 4 (c) Local and Residential Streets. Curb cuts shall be located a minimum of 50 feet from an intersection or driveway. In no case shall a curb cut be located within the radius return of an adjacent curb cut or intersection. Curb cuts shall be a minimum of fifteen (15') feet from the adjoining property line, unless shared. Number of Curb Cuts Permitted Length of Street Frontage Maximum Number of Curb Cuts 0-50 ft. 1 51-125 ft. 2 126-250 ft. 3 More than 250 ft 4 (d) Residential Subdivisions In the case of residential subdivisions, curb cuts shall be discouraged along arterial and collector streets. When necessary, curb cuts along arterial and collector streets shall be shared between two or more lots. Curb cuts along all streets shall be located a minimum of five feet (5') from the adjoining property line, unless shared. (e) Variance In order to protect the ingress and egress access rights to a street of an abutting property owner, a variance to the curb cut minimums shall be granted by the Planning Commission to allow an ingress/egress curb cut at the safest functional location along the property. Such a curb cut may be required to be shared with an adjoining parcel if feasible. If a parcel on the corner of an arterial or collector street provides such short frontage along a major street that there is no safe ingress/egress functional location on that street, the Planning Commission may deny the curb cut or may limit such curb cut to ingress or egress only (2) Speed. All streets should be designed to discourage excessive speeds (G) Non -conforming Access Features (1) Existing Permitted access connections in place on the date of the adoption of this ordinance that do not conform with the standards herein shall be designated as nonconforming features and shall be brought into compliance with the applicable standards under the following conditions: (a) When new access connection permits are requested; (b) Upon expansion or improvements greater than 50% of the assessed property value or gross floor area or volume; (c) As roadway improvements allow. (H) Easements Utility and drainage easements shall be located along lot lines and/or street right-of- way where necessary to provide for utility lines and drainage The Planning Commission may require larger easements for major utility lines, unusual terrain or drainage problems. (1) CD166:35 Residential lots. The use and design of lots shall conform to the provisions of zoning where City zoning is in effect When no City zoning applies, the following standards shall govern unless in conflict with more stringent city, county or state regulations: (1) Bulk and area regulations: Planning Area Lot area minimum 10.000 sq. ft. k � 5 RESOLUTION NO. A RESOLUTION TO GRANT THE APPEAL OF KUM & GO, L.C. AND TO AMEND AND APPROVE ITS LARGE SCALE DEVELOPMENT TO AGREE WITH THE PLAT SUBMITTED WITH ITS APPEAL LETTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby grants the appeal of Kum & Go, L.C. from some of the terms or conditions imposed by the Planning Commission, but adds the condition that Kum & Go, Inc. must construct and pay for a median in Martin Luther King, Jr, Boulevard as shown in Site Plan F "Median Concept", and amends and approves the Large Scale Development plat to conform with the plat submitted by Kum & Go, L.C. as Site Plan F as further amended as shown by the site Plan F with "Median Concept" in red (both attached to this Resolution) regarding its driveway access onto and from Martin Luther King, Jr. Boulevard and changing the access from Royal Oak from vehicular to pedestrian. All other terms and conditions approved by the Planning Commission when approving LSD 11-3966 (Kum & Go at Martin Luther King and Hill Avenue) shall remain in full force and effect. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby grants Kum & Go, L.C. the right to bring this LSD 11-3966 back to the City Council by giving written notice to the City Clerk within 10 days of its receipt of a decision by the Arkansas Highway and Transportation Department to deny construction of the median for further consideration by the City Council. PASSED and APPROVED this 17"' day of January, 2012. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer