Open arms There goes my girlfriend There's another diamond ring And all those midnight promises I guess they don't mean a thing So we... Thank you. We will have, do we have any postponements or withdrawals? Yes. Good afternoon. I'm Kathy Chopra at 444 Fayette Park. and I request a postponement until the January meeting on the 12th. Is that the BOAR? Yes. Okay. Sit here. Until January 12th? Please. All right. Is there anyone in the audience who wants to speak to that? Okay. Mr. Chair, I'll move for postponement of BOAR 2011-2 until January 12th. Is that the matter? Second. Second. Second. 12th. Thank you so much. All right. We have a motion to postpone. We have a second by Lynn Phillips. Everybody vote. Motion carries. Any other postponements or withdrawals? Okay. Next, we have the consent items. Mr. Sally. Thank you, Mr. Chairman. There are four items on your meeting agenda that do qualify for consideration at this time for your consent agenda. First is the very first item, subdivision item on your agenda, page 1, item A. This is plan 2011-113, Unit 6I of the guest property. This property has an address of 4148 through 4156 Needle Rush Drive. There are two final development plans recommended for conditional approval by your subdivision committee. The first appears on the bottom of page 1, DP 2011-89, an amended final development plan for CARE N of Lexington, also known as the White and Curliss property, located at 2770 Palumbo Drive. The other development plan that's eligible is the next item on your agenda on the top of page 2, item B, DP 2011-90, Breadbox, Lexington, located at 501 West 6th Street. I would pause a moment to let the Commission know that we have received the required affidavit for the posting of a sign advertising this development plan for today's meeting. The final item on your consent agenda appears on page 3, item D, DP 2006-37. This is an amended final development plan for New Market, Unit 7 and Unit 1. This involves property at 1321, 1281, and 1501 Deerhaven Lane, a portion of. This plan has been recommended for reapproval by your subdivision committee. And like the last item, the staff also has received the required affidavit indicating the posting of a sign for this property. At this time, the Commission can consider adoption of these consent agenda items unless a member of the Commission or a member of the audience would ask to pull one of these items for further discussion. Thank you. All right. Does anyone on the Commission want to hear any of these items in full? All right. Does anyone in the audience like to have it presented, any of these items? All right. Seeing none, the Chair will entertain a motion for approval. I move that we accept the consent agenda items as stated by staff. Sorry. Could you repeat that? I move that we accept the consent agenda items as stated by staff. All right. We have a motion for approval by Ms. Beatty. We have a second by Mr. Wilson. Everybody move up. Consent agenda is approved. All right, next it leads us to our first development plan. All right. The first item on your agenda is on page 2, or item C. It is DP 2011-91, the Red Mile Mixed-Use Development. This is a final development plan for property at 1200 Red Mile Road. The subject property is located along the north side of the Red Mile Road between South Broadway and Versailles Road on down. The purpose of this plan is proposing a total of 940,000 square feet of total development, approximately 480,000 of commercial square footage, 273,000 of residential, and another 184,000 of parking structure square footage. That is a 62-acre mixed-use 3 site with roughly 2,000 parking spaces. The subdivision committee recommended postponement subject to the 27 conditions as shown on your agenda. The applicant has since submitted two revised plans in order to address the majority of those conditions, and a revised staff report has been handed out to you. Condition number 11, which remains, the applicant did remove an area of residential in this corner that shows future paddock area. When that residential came off, they put a cul-de-sac in to end and properly terminate that street. They have a cul-de-sac detail here, which doesn't match exactly the cul-de-sac that's shown. So we have a revised condition 11 to clarify or correct that cul-de-sac detail conflict with the plan. It's a very small change that would be needed. Conditions 12 through 17 were more technical related items that were needed on the plan, which the applicant did address. Beginning with condition number 18, there was a number of discussion items that were deferred to the final development plan stage at the time of the preliminary development plan back in 2009. The applicant did address a large number of those discussion items. Many of them required simple changes and additions to the plan, such as addressing outlot orientation. There's two or three notes added to the plan that address the need for building facade orientation when amended development plans come in for those outlots. That is, these lots along Red Mile Road in this area. There was an additional space. There was an access spacing between two of the buildings, which was flagged at the time of the preliminary, that the applicant changed. Pedestrian access points out to the pedestrian system that is proposed. There's a 10-foot bike and pedestrian access running along the front. There was discussion about additional pedestrian accesses to serve those, which they have added. I'm going to skip the remaining condition 12 and come back to it in just a moment. There was an additional discussion about Nelms Avenue, which comes off of South Broadway. The staff had concerns that they wanted to make sure this alley, Avenue here, off of South Broadway, had access to the internal circulation for the Red Mile property. The applicant has provided that connection there. Again, the pedestrian connections was condition 24, which they have addressed. The status of the interior street connections of Red Mile Road, that was made clear through the technical committee process that all of these internal streets were to be private access easements. The applicant has made it clear with their notes at the top of this plan that those are private streets and they will be certified as such. Number 13 remaining was to discuss the timing of the 10-foot bike and pedestrian facilities as well as the road widening along Red Mile Road. The applicant did provide a note to the plan relating to when 50% of the development is complete, the developer shall widen Red Mile Road as well as the bike improvements. The staff had a little bit of concern with the amount of square footage that allowed, given it was 940,000 square feet. The staff had a revised recommendation for 13, which you can read when development of 50% of the commercial floor area is complete. That comes out to about 240,000 square feet of commercial area before those improvements would need to be done. And number 27, the last one was discussed, the cross-section dimensions for the access road that leads towards Tattersalls and towards Curry Avenue in this direction. They had originally proposed a 21-foot, 21-feet of asphalt in that area. There was concern that that wasn't a sufficient amount or sufficient width for vehicles as well as emergency vehicles to get through on that street. the applicant did bring us in a revised plan that shows a 24 foot of pavement driveway or drive in this area. The remaining discussion item, the new condition number 12, was to discuss the access across from Unity Drive. This item was brought up at the time of the preliminary development plan because the Unity Drive is directly at the apex of the turn of Red Mile Road right here. The staff, as well as traffic engineering, had a concern about people making turns out of the point of the turn and cars coming from the other sides and being difficult to see. The applicant has been meeting with traffic and discussing with traffic engineering solutions to that. Included in those discussions are timing notes for traffic signals and when that would need to be done and how that would take place. At the time of the study for this development plan, even prior to the preliminary development plan, I've painted out this sheet here. There was a number of, or three, traffic signals identified at this development that would likely be needed. And one of them, as you can see, is at that apex of that turn at Unity Drive. The engineer, we've had correspondence with the engineers that three traffic lights will be installed when they're warranted. and some of that timing note is what traffic engineering is still working on the new condition that I handed out to you is new condition number 12 that would relate to the addition of notes regarding the traffic signals to the approval of traffic engineering and with that the staff is recommending approval but I know that's a lot to cover if you have any questions on this I'd be happy to try to answer them. Okay. Do we have any questions? Chris, my question is, it's 62 total acres. Yes, ma'am. And it's zoned MU3. What is this green space requirement for that zoning district? It's a 15% of the net, and they are proposing 23%. Do you have an overall footprint of how much the buildings and acreage of the buildings? Total coverage of the buildings? Yes. Total coverage has a maximum of 50%. It is proposed at 18.5%. That is the building coverage listed on the plan. Okay. There's a lot of surface parking, though, on the site. Yeah, I was going to say. Yeah. Okay. Thank you. Thank you, Mr. Chair. Chris, as far as the housing, you mentioned, I think, 273 square feet of residential housing? 273,000 square feet of residential units, yes. Do we have any sort of breakdown as to the number of units? Yes. The number of units proposed on this plan is 168 total units. The original plan was 204 units and 297,000 square feet. So it's roughly 25,000, 30,000 square foot difference and about 30 units. Okay. What about, I know on other stuff we've seen and heard as far as number of bedrooms. Any breakdown as to that? Yes. Total bedrooms is 360. Okay. I guess one other question right now is it sounds like the orientation as to the outlots kind of have been resolved. Are there any design features as to the outlots? to what I would say protect the side facing Red Mile Road? There is. There's three notes. One is that the applicant had made clear that there was a set of private restrictions and covenants. They wanted to put that note on the plan, however, for the enforcement of the development plan and for this body, the staff didn't feel that that was necessarily sufficient because that's not something we enforce. There are two other notes that any major amended development plan that involves outlots along red mile provides development standards which address building facades and orientation to red mile road given that this is still very preliminary though a final development plan it's very likely we'll see final amended final development plans for those outlots when that will be addressed at that time and there was another note that says out outlots will be subject to private architectural facade standards as set forth with the red Red Mile property covenants and restrictions, and also outlots will be oriented in ways to screen dumpster pads, mechanical areas, and loading areas from view of Red Mile Road. Okay. All right. Thank you. I'm sorry. One other thing. As far as the round barn, I know it's separate ownership. It is separate. I don't know about separate ownership. It may well be, but it is separately zoned and not a part of this final development plan, nor was it a part of the property area. It appears that there's a fair amount of green space there around it. Yes. What about parking for that? There was additional parking at the time of the preliminary over here, and that has gone away. There's more green space around that. This parking lot is the primary parking lot to serve the round barn. Okay. Mr. Chairman. Chris, if I'm not mistaken, the round barn is owned by a foundation rather than this development plan. Okay. My question is on Unity Drive. If all the outlots are going to be serviced by the interior road, then these amended development plans can't come in and have access on Red Mile Road. Well, I suppose there's nothing that would prohibit the applicants from asking. However, the access patterns are essentially being set now at this time. Well, I would hope that when you start doing that, you're making major changes in your development plan. But my point is this. Unity drive that comes in around the apex of that curve, can we require a stoplight to be put there when Unity drive is put in, or do we have to wait until we get 50 percent of the red light? That is the primary concern of traffic engineering, as we understand it, was that when this access opens, there would need to be a signal there. The reason we don't have an exact note is that they are still working to try to resolve that and that timing of that note. But I think that is the intention is that when that access opens, a traffic signal would be there at that time. Does that answer your question? Yeah, but it will be noted on the development plan. It will be before this note should address traffic's concerns about the timing of that installation of that signal. However, the Planning Commission can make that a part of their condition for approval if they desire. I would certainly urge that we at least look at that, because no matter which way you come, that's dangerous. Right. Thank you. All right. Any other questions? Yes. Chris, forgive me. I can't remember the details of the Red Mile Development Plan, the planning document that we looked at. Back to Mike's question, though, about bedrooms. I ran the numbers and we're looking at basically 2.1 bedrooms per unit. Do we have some sort of a breakdown as to how many one bedrooms, two bedrooms, three bedroom units? That would give us an idea as to who this will be marketed to. Okay. I have a copy of the previous one. I'm using it to compare them back and forth. I have a total of 12 townhouses, 60 apartments, and 96 loft apartments. I don't think the breakdown for the number of units is correct on the plan. It still references a total number of units here that is on the previous plan. So I'm not sure that that is an accurate reflection. I would want to give you the total number of bedrooms because it still adds up to 204, not the 168. So that will be something the applicant will need to correct on this plan. They show it as 78 one-bedroom units and 96 two-bedroom units and 30 three-bedroom units. But that's 204, not the 168 that's shown on the plan and in the site statistics. I'm not sure that when they removed this, they reflected it in the bedroom breakdown. Okay. But the majority appear to be two-bedroom units, one- and two-bedroom units. All right. There's an applicant here. Good afternoon. I'm Chris Westover. I'm representing the Red Mile. With me today are Jahad Halini, Matt Carter from Vision Engineering, and Stan Harvey is also here with Urban Collage to answer your questions. First of all, let me say that the staff conditions that are listed here, we agree with them and we fully support the conditions. There was a question raised about access to Unity Drive, and we have been in ongoing discussions with traffic engineering to knock that note down very specifically. And prior to the meeting, I showed Mr. Neal from traffic engineering a note that I think would address your concern that we basically not allow vehicular access across from Unity Drive until there was a traffic light and that it would be subject to the approval of traffic engineering applying their standards. And the note that the staff handed out would give us and traffic engineering a chance to lock that down. But we are in agreement with that, and we understand why they are making that request. So in terms of the housing, as you know, in the Red Mile development plan that is part of this, the document, the development plan, the housing over on that side is proposed to be owner-occupied and oriented, I think, closer to be like the subdivision that's over there by Bennett Avenue. And so that is still the intention with this plan. And I will also say that there's more room on this plan if needed and desired to put more housing of that nature over there to provide the additional housing. So with that, if you all have any additional questions, I'm happy to answer them. No questions? Okay. Thank you. Is there anyone in the audience that wishes to speak to this? All right. I don't see anybody. So at this time, we'll turn it back over to the commission for any more discussion or motion. Mr. Chairman, I was involved in this whole planning effort that we did, very transparent planning effort. And the gist of this whole development plan was that it would not be an extension of what's crossed the road, that it would be a place, a destination, if you will. The racetrack would certainly be part of it. Commercial would be part of it. And, of course, residential would be part of it. And I'm like Ms. Phillips here. I'm concerned about the student housing part of it because we have a high concentration of student housing just across the street and across South Broadway on the other side. And if this is going to be successful like we'd like for it to be and to draw people from other parts of the town to this, then we need to be pretty sensitive about what's actually going in this development plan. I'm not against it. I'm just concerned about it. And I don't know how to address it any farther than that. All right. Thank you. Any other comments? Mr. Chairman, I guess in follow-up to what Mr. Penn just stated, would it be appropriate to, one, we're hearing that what's on the plan right now, the numbers may be incorrect. They're totaling 240, but they're talking about 168. Should we get that clarified or corrected in one way or another? Yeah, let's get Chris up here. I think it would definitely be appropriate if you wanted to add a condition to correct or to clarify the total number of units on the property. I'm assuming they mean 168, but I can't be sure at this point. Okay. Okay. So does that mean we can assume 168, or should we state 168? I think you may want to ask the applicant. Don't leave. I think we can do this one of two ways. One way is to correct the site statistics. Another way would be to have a condition that requires the replacement of the units that are off to be put elsewhere on the plan in that general location to make up that number because there is a lot of room on this plan and at that location to do that. So you're saying you have a location up there at the end of that court where you can put more units? This plan has a very low density in comparison to what is permitted in the MU3 zone. And there is certainly more room on this plan to accommodate more housing, more mixed-use development. It's got a relatively low lot coverage and so forth. So your statistics on the plan indicate the maximum amount of units you could put? That's the number of units that are shown. Oh, the ones that are shown. Right, right. But you're saying you could put more on there. Right, because if the idea is to make up for a couple of the units that are no longer shown on there, we can do that to make similar-sized housing for that area. What is the maximum number of housing you anticipate being on this plan? That was what was called for in the original development plan. Stan Harvey may have that total, or Mr. Hollaney might have that total. Right. The 204. What was on the preliminary development plan and came over? Did you say 204? 204. And they were a combination of loft, apartments, townhouses, with the intention being that at least those closest to the track would be owner-occupied. She's right. Ms. Westover, what would be the maximum density in the mixed use that could be put there? That would require calculations that Well, I was trying to get at what percentage are we, low, high, middle, where are we in the density of what's permitted there? I think Mr. Hollaney would have to answer that question because it requires calculations on percentages and lot area and so forth. Right. I'm concerned about the low density and the mixed use. Well, it would be based on lot coverage. Right. Those calculations are based on lot coverage, and in order to give you a hypothetical answer for the total lot coverage, we just can't do that right. Well, when I kept hearing you say it's a very low density for a mixed-use area, then it raises questions in my mind about, you know, I don't mind amended development plans as long as it doesn't amend the specific use that we were talking about doing. And I just have a question and I don't know how to answer it, but we'll figure it out. You're concerned that there might be proposals to eliminate or decrease the housing? Is that what you're... No, I'm assuming it's on the low side, but I don't like the word assume. So I guess what I'm asking is, just from following up on your testimony, is that if it is on the low side, then are we doing this because we want to make this different housing, or is it a typical mixed-use situation? And typical mixed-use situations are a lot more dense than this is. If I understand your question, the reason that that housing came off was there were originally four buildings on that extreme edge there, And now the super paddock area is going to go there for part of it, which meant that two of those buildings were removed. And that is the reason. It's not because a different type of housing would be proposed there. It was merely to accommodate the super paddock. Okay. So this is the amount of housing you propose at this time? Yes. If you decide to change it, then you have to amend the development plan, come back to the force. Yes, we would have to amend the development plan and show the location, the size, the parking, everything. Okay. But I can tell you, I can emphasize again and again that the housing on this plan is for, it's more geared, let's say, to families. and there is an intention to do owner-occupied housing and it is a different kind of housing from the housing that you are talking about across the street. It's probably too expensive for certain types of housing. Would that be fair to say? I am not a developer. I don't know. All right. It sounded like Ms. Westover is okay with the fact that If the amount of housing changes, it's all right with them to come back with an amended final development plan, and I'm fine with that. I guess what I'd like to do at this time is just nail down what units we're talking about because I'm hearing 168, but yet the plan, I think, says 204, so where are we? I want to point out the plan has two places where the site statistics are mentioned. They do a breakdown for the parking here, and then the total site statistics are listed here. They show 168 in the site statistics, but the parking generators that they used were still based on the original 204. The plan is only showing 168 units physically on the plan. Okay, so we're going with 168 then. Okay, thank you. Are you going to say something or are you just standing? Well, I was going to try to clear it all up, but I think it's understood that the only change on this plan, from this plan and the preliminary, was that some of the units in the suprapatic area were dropped. But other than that, it's the same ratios that were on the previous plan that you approved. Just one other clarification. In subdivision, when we talked about the sidewalks or pedestrian paths and biking paths, and I know you cleared that piece up, But the applicant also talked about this being a family-oriented residential area. Where is the additional green space for family? Because the paddock is obviously not something that they could use for that area. And did I understand you to say the round area is not a part of this property? So is that not green space they could use? It's not counted towards the calculations for this plan and meeting its green space. That acreage for that lot is not part of the plan, so it's open space. It's not part of the calculation. But it meets all of the? But it does meet, otherwise, the open space requirements. There are balconies and things like that taken into consideration for the residential units. Okay. All right. Let's move something here is what we're all here for today. Yes. Chairman Cravens, I don't see a place for a swing set, which is probably Mrs. Beatty's point. So I question families, and I can see all that periphery becoming residential housing because they couldn't get anybody to come in there and put a McDonald's. so how what keeps this from kicking back over into total residential well the zoning category itself which requires a mix of residential and non-residential i understand that miss westover but what if you why couldn't you plead a hardship case and get this rezone to R5 or something. Well, that would be for you and ultimately the council to make that decision. Okay. Okay. I'll do it. I move approval of DP 2011-91 Red Mile Mixed Use Development with the 13 staff conditions. And do we need to change 12 to tighten up the wording? And how do we need to? New condition 12. The new condition 12 we handed out. Oh, okay. With the new condition 12 on the white sheet to replace the one listed with the others. Okay, we have a motion for approval, and we have some discussion. I have a question on the motion. Did you mean to, for new condition 12, does that address the traffic signalization issue that Mr. Penn was speaking to? Yes. Did you also intend to limit the numbers of residential units? Well, I thought that you had cleared up that it did say 168 on the plan. If you would like to add a condition to clarify the site statistics, that would go even further. We would amend my motion to add a new condition 14 to specify 168 residential units. That's fine. Okay. Okay, we have a motion for approval, and we have a second by Ms. Phillips. Everybody may vote when they can. The motion carries. Thank you. Next, we have the performance bonds and letters of credit. We're getting a motion for that. Mr. Chairman, I'm sorry. There is one other remaining. Subdivision item. Oh, there is? Yes, sir. I'm sorry. Missed it. Mr. Chairman, while they're setting up, I'll move for approval of the release and call of bonds as stated on the memo dated November 10, 2011. Okay. We have a motion for approval of the bonds. Do we have a second? We have a second by Ms. Beatty. Everybody may vote. That motion carries. All right. Sorry about that. If you all would look at the bottom of page 3 and the top of page 4, we're going to look at Plan 2007-82F, Sharkey Property, Unit 3. Give you an idea of where we are. We have Leastown Road, and we're going to go downtown Center Drive, past the retail area heading back towards the area for the residential we have mixture of single-family detached homes and single-family attached homes they're back in with this and asking sorry for reapproval of this plan they They have, at this current time, they have recorded two sections of what was approved. This whole plan came in at one time, and they've recorded two sections. So the remaining portion is what they're coming back and asking for re-approval so that it can be recorded. With that, we had nine conditions with general sign-offs. We do ask, though, for this re-approval to have condition number three, delete the required street tree information from building inspection and take that required street tree information and add it to number five for the urban forester approval. With that, we recommend re-approval. Okay. Thank you. Any questions for that? All right. Applicant looks like Rory. Mr. Chairman, Members of the Commission, Rory Cayley, we are in agreement with the revised nine conditions and request approval. Very good. Any questions? All right, let's have a motion. Is there anyone in the audience that wish to speak to this? Okay. Now, may we have a motion? I move for approval of Plan 2007-82F Sharkey property with the nine conditions, but amended conditions number three and five as per staff. Okay. Do we have a second by Mr. Owens? Everybody in favor of the vote? Motion carries. Thank you very much. Okay. Mr. Chairman, that concludes the subdivision items. We'll set up for the rezoning hearing. Very good. I'm going to take a recess. Huh? reset i thought i needed a reset so i guess i don't I know you said that. Thank you. Thank you. Mr. Chairman, members of the Commission, good afternoon. The next item on your agenda appears on page 4. It's item number 1, MAR 2011-15. This is a zone change request that's been initiated by the Urban County Planning Commission to modify an existing ND1 neighborhood design character overlay zone for 53.7 net acres and 67.5 gross acres of property. Staff will have a two-part presentation for you. My role this afternoon will be to describe the zone change to you and to orient you to the location of the property. Ms. Wade will then carry you through the staff's review and the staff report on this zone change. At your place, you should have a staff report along with the notification map for this particular area, identifying all of the properties. This basically involves the Montclair area, which includes all of the properties on the following streets, Eldemere Road, Montclair Drive, Scoville Road, Summit Drive, and some properties on Castle Road and Tates Creek Road between Cooper and basically Montclair. This area is an existing ND1, as identified here on the zoning map. It is bounded by Tates Creek Road to the east by the University of Kentucky, which is an agricultural zone to the west, and the Kentucky Educational Television Facility on Cooper Drive at this location. It includes all of the properties on Cooper between Tate's Creek and that hard boundary between the football practice facility and the KET property, with the exception of the northwest corner of that intersection. That area is not part of the existing ND1 overlay. Also, the Chevy Chase area has a separate ND1 overlay zone in place. That overlay zone actually predated the ND1 zone that you're looking at this afternoon. This existing ND1 overlay zone has about nine different restrictions that are involved that cover walls and fences, different setbacks and yard requirements. It also has mention of fencing and wall restrictions. And what has come to light in the last few months is that at the time of the original study of ND1, there was no accounting for retaining walls in the area. The staff has identified that there are at least 17 different retaining walls in this area between the 10 feet closest to the sidewalk, and we've included that information in the staff report for you about the ND1 restrictions. When this came to light a few months ago, the determination was made by the Neighborhood Association that they would petition the Planning Commission to seek a change or a modification to the ND1 restrictions to account for retaining walls in the subdivision. And they did come to the Planning Commission a few months ago and asked the Commission to initiate this change. Of course, notice has been given to not only the property owners in the area, but also to property owners within 400 feet of this location. The proposed amendment to the ND1 restrictions appears on page 4 of your agenda. It involves an amendment to the existing restriction for landscaping requirements where no front yard fences or freestanding walls would be allowed, except for properties facing Cooper Drive and Tates Creek Road. You can see the word freestanding is part of this amendment in order to clarify the intent of the original restriction. In addition, this Section 3A would be amended under this proposal to address both retaining walls and permitted fences up to four feet in height and a minimum of two feet set back from the sidewalk. Thank you. Thank you. Ms. Wade is handing out the section of the ordinance that talks about amendments to ND1 restrictions. This is the first zone change that seeks an amendment to an existing ND1 zone. We have three areas of the community that are currently zoned ND1. This involves the first amendment. If I could refer to the bottom of page 3 of our staff report, which you should have. I mentioned earlier the staff research on the existing retaining walls in the area. We found 17 existing retaining walls, and of those 17, 13 were in very close proximity to the sidewalk. We also studied the ones that were within 2 feet of the sidewalk and then ones further back, up to 10 feet. We found in our review that a variety of materials have been used for these 17 retaining walls. And I should point out this involves not quite 10% of the properties in the Montclair area that currently has ND1 overlay zoning. But those materials include stone in almost half the cases, brick in about a quarter of the cases, and then other materials, including wood and masonry, for the remaining walls. The staff also was aware of the original intent of this ND1 area. Montclair wanted to preserve the existing character of their area, and that was very much on the mind of the staff in reviewing the existing condition of the retaining walls in this area. On page four of our staff report, you'll see the original design study and goals that were set out in this ND1 area to preserve the existing neighborhood land use, to encourage new construction that are compatible with the existing situation and existing conditions in the neighborhood, to maintain the existing patterns of yards, setbacks, garages, and the like, and to also encourage community interaction and safety for cyclists and pedestrians. This time, Ms. Wade will go over the handout to you, which covers the section of the ordinance that describes allowable changes to the ND1 restrictions and also a diagram about retaining walls and what is meant in the proposed restriction dealing with the height of the retaining wall behind the fill material. Thank you. Before I continue with that, I wanted to let you know there were four letters in support of this request that I'll pass to Ms. Blanton. in addition to entering into the record the Montclair study that was completed last year and their supplement information that they did a year ago As Mr. Selle mentioned, we handed out some staff exhibits. The first page, both sides, has to do with zoning ordinance excerpts that really deal with this case. The first is 6-7C2A, and that's for findings required for our ND1 overlay zone amendments. As Mr. Sally mentioned, this is the first time that an amendment has been requested. These regulations were put into place approximately two years ago when the Chevy Chase neighborhood expressed much concern about there not being a remedy for concerns when something did come up because a variance could not be requested. So these were drafted in order to basically allow a variance to occur. In this situation, the entire neighborhood has a desire to allow retaining walls in the front yards, so it isn't drafted specifically for a whole neighborhood to request a change, but really for one property owner. But it still really does apply. The key here would be that the general intent and preservation goals of the ND1 overlay is still being met, and that's what the Planning Commission should consider. On page 2, we wanted to make sure the Commission understood that the restrictions present in Article 15 and also in Article 3 would still apply to any retaining wall, whether in this neighborhood or any part of the county, and that just deals with height mostly and then setback for site triangles. And then lastly, the diagram that the staff has prepared is really a depiction of what a retaining wall looks like and then the maximum distance above, this would be unbalanced fill, the dirt behind the wall, the maximum height the wall could extend above that level would be 18 inches in this neighborhood. and that height was suggested by the division of building inspection they felt that two feet was often common for height above unbalanced fill and when the neighborhood did research they found that 18 inches was the largest difference between unbalanced fill in this neighborhood and so that's what the staff suggested when the planning commission initiated this particular change I believe that's it from myself and Mr. Selle. He mentioned that the staff recommended approval of this change, and the zoning committee made no recommendation last week related to this change. I was going to say the same thing and then also go over the staff recommendation for approval. It has basically two reasons and then the supporting justification. The first reason is that the requested modification will not adversely affect the health, safety, or welfare because retaining walls and front yards are clear of the sidewalk and do not otherwise encroach into the right-of-way, even though several are in very close proximity to the sidewalk in this area. Additional retaining walls will also prevent soil erosion in the future and will serve to prevent a hazard or nuisance to the public. Our second finding is that permitting retaining walls and front yards throughout this neighborhood will allow the existing essential character to continue and is in keeping with their general intent and their preservation goals. Our third finding on the agenda and in the staff report is that under conditional zoning, the staff is recommending that the restriction for fences and walls in the front yard be amended to include retaining walls being allowed on all property subject to a maximum height of 18 inches above the unbalanced bill. We have included the necessary finding for the conditional zoning restriction that is listed at the bottom of the staff report and also on the agenda. That is that the modified restriction is appropriate given the extensive study originally done by the neighborhood and more recently supplemented by the staff research information and is necessary to maintain the existing character. We thank you for allowing us to present this to you today, and at this time we'll be glad to answer any questions from the Commission prior to the citizens commenting on this proposal. Do we have any questions for Mr. Sally? I may have one. Under the proposed amendment, we're just talking about permitted fences, maybe four feet height and a minimum two feet from the sidewalk? Yes. As we were talking earlier, the sidewalk is not always on the, may not always be on the property line. Is there any way you need to clarify that so that somebody doesn't build a fence out in the right-of-way or wall? This restriction alone will not allow the fence to be built on the right-of-way. There would have to be some research done to find where the right-of-way is. Is it at the back of the sidewalk? Is it a foot or two feet into what appears to be the front yard? Some subdivisions, I don't know about this one, also have sidewalk easements that may extend a foot or two feet into that area as well. And like most easements, generally a wall or a fence is not always permitted in an easement either. I hope that answers your question. It answers it, but I guess there could be some confusion that somebody might just go out there and build a wall two feet from the sidewalk, and it might be in the right-of-way. Yes. And then they'd have to take it down. Is there some way, I mean, you should say, is there some way you could clarify that wording right there? I think this wording actually is from the original ND1 restrictions. Do you recall from the Platts where the sidewalk location is? We had done that research a year ago, and we cannot recall it off the top of our heads as to where those rights of way are in this particular subdivision. Perhaps someone in the neighborhood will know where the right of way is. But I think the answer to your question is yes, that probably could be changed at today's hearing since this is the section under review. view. Yes? You talked about this a little bit in committee and about the idea of moving the retaining walls back and that the retaining wall in question that brought this all about would then be illegal. There's no way to grandfather that one in and make future ones be, I mean, if goal number four is to encourage safety for pedestrians and bicycles, I just think if you're basically fenced in on one side and you've got people passing with dogs or kids on bikes, it doesn't give you the goal number four of safety of pedestrians and bicycles. Yeah, I think we are not aware of any means that that could be a grandfathered situation with a setback. Okay. Thank you. I'm sorry. To clarify that, Bill, if you would, you have mentioned that there's numerous other retaining walls in the subdivision. If we addressed retaining walls now and said that they would be a setback off the sidewalk, all of them would become illegal and have to be redone or no? Okay, so what about those would be okay? I'm thinking just going forward from here and making it reasonable for everyone and appropriate for everyone. The one in question could not be, for lack of, I hate to put it in terms of nonconforming, but in simplicity's sake, the one in question couldn't fall into that category? We don't know how it could be permitted with a setback requirement. Okay. Thank you. All right. Yes, Ms. Phillips. I have a question. One of the public letters that we received said that there are 28 retaining walls, get the staff reports as 17? Ours were measured from 10 feet of the sidewalk to the sidewalk. We have no doubt that there are others in front yards, meaning between the wall of the house and the sidewalk. We only looked at the ones that were closest to the sidewalk. So you only looked at front yard retaining walls? That's right. Okay, so is the staff's recommendation then to permit retaining walls that come to the right-of-way of the sidewalk, the easement of the sidewalk, or to have them set back? Well, the staff, since there were so many of the existing ones that were at the sidewalk, and since the original ND1 in this neighborhood was to maintain the existing character, we felt that that was a justification to allow the amendment as it's been proposed, which would mean at the sidewalk. now i'm confused so the the one house in question would have to correct the wall that is currently there is that what i'm understanding and the the remaining 27 houses are okay with the new amendment? Well, I think if you impose a setback for retaining walls, many of them will become nonconforming. They will not conform to a setback since well over half of them have been built or exist right up to the sidewalk. Generally, when the staff makes a recommendation on the down zoning and overlay zone, the creation of nonconformities is very much on our mind. We prefer to minimize nonconformities just because that's so much easier for the property owner not to be able to make small changes to retaining walls. The laws on nonconformity are they cannot be increased in scope in any way. So the creation of nonconformities is generally something the staff does not recommend in a wide-scale situation in almost any downzoning or overlay zone. I would just add, Ms. Beatty, that the reason those others would become nonconforming and one would be legal was the timing. They were built when there were no restrictions on retaining walls versus one that was built without a permit within the last year after the ND1 restriction was in place. Does that make sense? So we're looking at only one that those residents, the resident, would have to change or remove the wall or adjust it? Only if the commission decided to put a setback on it. As far as we know, there's only one. And your recommendation is to put the setback on it? No. It's not to put the setback on it? To allow them to be at the sidewalk, because that's the existing character of the neighborhood. Okay, I'm with you. Well, this is written, I mean, I looked at the one where it says fences, and I meant to be looking at the retaining wall, but the retaining wall doesn't say where it can be. Right. At all. That's right. It can be anywhere. Okay. Private property. All right. Yeah. So the question that we're facing is whether to maximize, to allow the property owner to maximize the usable land, if that land has a slope and a retaining wall is required to maintain that slope, then they could maximize up to the edge of the sidewalk easement. So the retaining wall would abut that sidewalk easement, or to serve the public who's traversing the sidewalk and have it set back to offset for shoulders or bicycle handlebars or walk dogs on leashes, whatever the case may be. Are those the two issues that were set? Well, I'm not sure. That may be from the commission's perspective. The staff's perspective was what is the character of the area, and how should the ND zone be? How should it purport to the character? if you will. It follows. Did you have something? I just wanted to make sure that everybody understood that what has come in as a modification was simply to clarify that the restrictions on fencing that were originally adopted were for free standing fences and to clarify that the retaining wall is a permitted structure. And so that's the only thing that's brought this back. The setback issue doesn't exist currently anywhere in the county. It didn't exist here before. The purpose of this amendment, as requested, was not saying, do we want to create this setback? That's something that has developed in subsequent conversations, and I just wanted to make sure that we kind of separated where these issues came from. All right. Thank you. Thank you. I guess now we don't have a formal petitioner, so I guess we'll go to citizen comments. And you may speak, state your name and address, and we say three minutes. My name is Chuck Eckerlein. I'm here on behalf of the Neighborhood Association and also as a new resident, a fairly new resident of the neighborhood, and I will be very succinct. I'm the person that owns the wall that everybody is talking about. And I just wanted to make a couple of points very quickly. First, as was just said, the amendment is not about a particular wall. It's about allowing retaining walls. There was no mention of setback. In our case, the bank of our lot comes directly to the sidewalk. There was no ability to put a wall back from the sidewalk unless you removed all of the dirt, and we didn't do that. We didn't know that we had to. As the commission has said, retaining walls are already ubiquitous in the neighborhood, and allowing others doesn't change the character or the quality of the neighborhood. There is absolutely no way that our wall could be moved back unless we excavate a huge amount of dirt. And it's just not reasonable and it's not possible. We did $3,000 worth of repair to the city sidewalks where the bank had eroded. We were at risk for lawsuits for people who were injured there, and we put the wall up to protect it. Second point is that the neighborhood has already voted on the amendment. Despite what you hear from anybody here today, the Neighborhood Association sent out postcards. 73% of the neighborhood favored making the change. If you can get any neighborhood to have 73% agree on anything, I think that's remarkable, and that's what the neighborhood did. And really, that's essentially all I have to say. But our wall is up there. We certainly would not have done it without any sort of permit had we been aware. Our builder was not aware either. We were new to the neighborhood. But it would be, if the amendment goes through, as the Neighborhood Association has requested, the wall is not a problem, but it would be unreasonable and unfair to move it back. There are already many walls throughout the neighborhood that are directly up to the sidewalk. Thank you. Thank you. Good afternoon, members of the Commission. My name is Stan Harvey. I live at 1229 Scoville Road. I'm also a board member of the Neighbors of Montclair. I thought a little bit of background and perspective might be helpful. First off, we owe the Planning Commission some thanks, because you were the original applicant that, of course, pursued the ND1 that was approved a couple years ago. Most of you all probably remember the song and dance about the two to three years that preceded that, which was based on a lot of community conversation about trying to strike a balance, and I think I said this the last time we were here, about trying to protect the character of the neighborhood with strong consensus as much as possible from the neighborhood. And I hope that that's what the commission and others in the community have felt like. We had discussions with the Home Builders Association, et cetera. The reason I mention that is we had an ND1 committee that was created by the Neighborhood Association, and then we had five public hearings. We did three neighborhood surveys, and that's what led to the standards. The simple reality is that after this was adopted, thanks to your all's help, there was a case that was made that was brought back to our attention of an issue, and that issue was that, as interpreted by the Bureau of Building Inspection, retaining walls in front yards. But bear in mind, if you read the actual standard, it says, except on Cooper Drive and Tate's Creek Road. So, are prohibited. I could argue that that is a lack of common sense, but I will try to retain from that commentary. The reason that we made standards about fences and walls was to protect public safety, particularly on Cooper and Tate's Creek, which were busier roads, but on the rest of the neighborhood to be consistent with existing character. I can only speak for myself, but I don't think there was ever a conversation on banning retaining walls. That just really wasn't the intent. When we were made aware of this issue, we realized that this is not a singular case. This is an issue that could affect 179 property owners in our neighborhood in the future. The point's been made. You could have nonconforming retaining walls, but we thought that the prudent and responsible response to that was to clarify for the entire neighborhood that our intent was not to ban retaining walls. So, as it turns out, we learned that the process of ending one amendment would have required 179 people being the applicant to clarify that standard. That, I believe, was an unreasonable standard for us with some absentee property owners, et cetera. We had a board meeting, had a neighborhood discussion, decided that we would, as a neighborhood, request you all, which was the end analysis and want to thank you all again for being the applicant, to clarify what we thought was a relatively simple request and clarification that, candidly, again, we thought could have been an administrative issue from the beginning and has taken a lot of all of our time in the last three months. So that is all that we ask the Planning Commission to consider. I respect that the Commission and or some of my neighbors may have opinions of other things that they believe should be considered as an amendment. but the reality from I think the board's perspective is that if that is to be considered, it would have to live up to the same standard of the conversation that has been a hallmark of this process, which is discussion by the ND1 committee, discussion by the whole neighborhood, the postcards that go out and ask for opinion. And the simple reality is from process, if no other reason, there has not been that effort. Secondarily, I will only state my personal opinion that I think that we are creating a potential hardship. While I understand the intent for public safety and ADA access, it's not a standard that would be applied to any other residential neighborhood in the city at this point and would, I believe, have some financial and perhaps unintended implications for many property owners. That said, I'm not here to debate that. I'm just here to state that the neighbors' intent was to just clarify our intent about not banning freestanding walls. Thank you. Carla. I had a question about the postcards that were sent out. Yes, ma'am. What was the wording, and was it 73% of respondents were in favor or 73% of the entire, of all of the houses? I believe it's 73% of respondents. Okay. Do you know how many people responded? I believe it was about 50%. I didn't bring those numbers today. Okay. So it's a much smaller number than 73% of the entire number of houses. Yes. Okay. Are there more citizens for comment? Yes, sir. My name is Jerry Price, And I've got something I'd like to read into the record after I finish with a few brief comments here. It's been said here that everyone is in favor of this. Well, they're not. Not everyone is in favor of it. There's been discussion about retaining walls that come up to the sidewalk. I can't think of but one that is over 18 inches tall. So they're more ornamental than functional retaining walls. I'd like your comment about bicycles and how I do walking in the neighborhood. Sometimes you have to move out of the way of a dog or whatever. And I can see where this change could cause some problems. I could build a retaining wall in my front yard this tall just to keep up with the level of my front yard. I won't do that, and there's no problem with erosion or safety. And I'm also glad that you brought up that 73% of what? And I appreciate someone making that comment. And the existing character of the neighborhood, as we were trying to do when we established the ND1 overlay, was based on these little small walls that are around from place to place. There was even a discussion about putting a wall in the triangle out there, and they wanted to make it four foot tall, and I made the comment that you couldn't sit on it. So it was just that. I'd like to read this, and then I'll conclude my comments. The Moncour Association ND1 overlay is evolving into a real mess. And just briefly, the reason I say that is because there's other development that if every time someone comes along and builds something, they come in here and have to do a variance or whatever. But anyway, do those who do not choose to comply with the existing regulation need only to cry foul and get the regulation changed to suit their particular situation? Does the process of incessant meetings and time constraints begin anew? Why is there an issue now and not prior to the planning of passage of ND1? Is the city planning to eliminate the grandfather clause? Does cement block equal stone and brick if someone wants to change the existing regulations? When the ND1 process began, the Montclair Association was determined to stop the change occurring within our neighborhood. it. The meetings, preparations, presentations, council meetings, and email trails detailed and reexamined lot size usage, building materials, and appearance for future development and redevelopment. There were discussions about why an ND1 overlay was necessary given existing regulation. Permits were required for new construction and major reconstruction projects, and individual exceptions were to be addressed on a case-by-case basis. I could see no reason for any change to the existing ND1 overlay with broad changes to current requirements and regulations, circumventing a long and deliberate process to protect the neighborhood from individual interpretation. I'll copy that for you. I'll leave that there. Thank you. Okay. Thank you. Anyone? Did you give us your address, sir? I'm talking to the sheet here. 1262, Castle Road. Okay. Yes, sir. Mr. Chairman, my name is Ray Pace. I live at 1211 Summit Drive. I have lived there for 21 years. And I have a few comments, concerns about this amendment or modification. it's clear now that when I first saw it I did not really realize that it was intended that this permit retaining walls to come to the sidewalk. I thought it was possibly an oversight or a drafting error or something. But if that is the intent, I just have one simple question. why would we have applied the restrictions of 24 inches to the previously only permitted walls in the neighborhood? And all of a sudden now think, well, let's go ahead and do retaining walls and allow it to come to the sidewalk. I just don't think that's reflective of what most of the people in the neighborhood would really agree with. With regard to the 73%, I would just say this. I did notice that when the final modification was submitted, the words were different. There was a changing in drafting from the mailing that we received in the summer. So I would submit that you don't have anybody having approved it because it's not what we were given. So with that, one of the additional items that were put in there was a comment about unfilled balance or something like that, which is a technical term. And most of the laymen that live there, we don't even know what that means. And apparently that kind of restriction would apply to all retaining walls. I don't have any problem with retaining walls. I have them on my property. but with a requirement there that I don't even know what it means, I would feel very constrained as to what type of landscaping or other type of changes I would put in the back of my property, on the side of my property. So, I mean, I don't have an issue in the front, but for those reasons I would argue against approving this modification. Thank you. Okay, thank you. Afternoon. My name is Tip Richman. I live at 1235 Summit Drive in Montclair neighborhood, and our neighborhood association has spent considerable time and effort to work through and get this ND1 overlay, and I'd like to join Stan in thanking this body for the outcome that we achieved. I don't want to repeat anything that's been said already. I think, therefore, I would just focus on two things. I'm certainly not suggesting nor would want the existing wall to be moved. We're not asking for that. I'm not asking for that. I don't quite understand the difficulty of the grandfather status or the nonconforming. I'm not a zoning lawyer, but just as a lawyer, I don't understand why that would be such a difficult thing to accommodate this situation here. The second thing I would say is no matter what these words say, if these words permit the wall that we're talking about, it's an unsafe condition. And Mr. Salee said, staff said it was, I believe his report was, that they found no safety concerns. I would question that on this particular corner a lot, given the height of this wall, people in wheelchairs. And we do have wheelchair walkers in the neighborhood, and I believe it is unsafe. and I would urge us to find a way to accommodate everyone here in a reasonable way and move forward because other neighborhoods are looking at this ND1 plan. You all have done a wonderful job getting us to this point. This will not be the last ND1 overlay that comes before the volume. I just think we have an obligation as a community, as a neighborhood, to refine this as we need to. So those are my comments. All right. Thank you. Sir, were you indicating unsafe with the wall or without the wall? With the wall, given the facts of that wall and the location of that wall. Let's let everyone else. Does anyone else wish to speak? Yes, ma'am. Chairman Cravens, I live on Summit Drive right up the street from this wall, and I would like to excuse myself from the commission and become a citizen of the whole town and talk about the complete streets legislation that is going to be enforced beginning in 2012 that has to do with transportation money. And this directly relates to the fact that this neighborhood is a walk shed for UK. Thank you. Thank you. My name is Marie Copeland. I live at 1236 Summit Drive. And I'm circulating a piece of paper in front of you called Role of Commissioners. This was taken from the Ten Habits of a Good Planning Commissioner that was in the Fall 2010 newsletter that we read called The Commissioner. I'm going to put that on the overhead. Number one is know their role, carry out due diligence. Down in number three, the circles are they understand the suggested contributions or actions must comply with adopted plans, policies, ordinances, standards, and not constitute a new standard. And what I'm talking about is federal legislation. Visit the site or area under discussion. That is a no-brainer because I live three or four doors up the street. Work as a part of a team. You may develop a specialty. I've been a landscape architect for 30 years, and I was required to study disability landscaping for one continuing education credit every year for the last 25 because I've been in escrow for the last five, so I'm out of that. But I have 25 hours of disability landscape architecture. They create solid findings of fact, which I'm going to attempt to do, but I'm not a lawyer, so this is really in the law department. They work with the chair and staff, and I had notified in advance the chairman that I was going to speak today. Now, I have ten slides. This will go fast. I took them from a package that was made up in 1999 in Leeward, Kansas, so you wouldn't think that I stacked the deck. And let's go to the next page. This is a picture out of that package, and it shows how people walk. The lady looks like she lost part of her legs, but anyway, it shows how people walk on a sidewalk. And the lines that go, I don't have a pointer, but the lines that go up and down, the longest lines, represent four feet. That's okay, I'll just talk it. So the place where the triangle is, that's called the shy zone. And when you have where people will not walk against a wall, that, in terms of the federal legislation, that needs to be two feet wide, which is the buffer zone. and that is, the whole picture doesn't show, but that's a 3-8 inch scale photograph and that's a 9 foot sidewalk that's depicted. So are there any questions about that? Okay, let's go to the next one. We're already at 3 out of 10, So I told you to go fast. This is a mobile wheelchair, and we have this in our neighborhood. She goes around the block every morning at 6 o'clock, as fast as she can go. Lovely lady. And she exercises her border collie. And he runs in front of her on a dog leash. and one morning I was out watering my front yard and I asked her, I said, Jean, and I didn't gild the lily one way or the other. I said, Jean, how do you feel about the wall? And she says, well, I have no problem with it except I can't see who's coming at me. The wall is four feet tall. And I said, what do you do? I won't go into what she does, but it isn't legal. So to keep her cart going full speed and not break it down, and to keep her dog running, we just won't go there. But it is a problem to have a four-foot wall that's 178 feet long on a corner with visibility. and Jeff with transportation can talk to you about that more. That's not my expertise. Number four, in the federal guidelines they said, and this is standard. I need the next page. In the federal guidelines, and this is standard, this is back from 1999 and it's going to go into effect next year, that sidewalk widths shall be a minimum of four feet. Any new sidewalks have to be five feet wide. The buffer widths are two to six feet, depending on location. Well, you know, we've got a little peon neighborhood, so we only need two feet of buffer. But we do need that to stay legal with this regulation. Let's go to the next one. Marie, it's been about three minutes, so if you're... Well, I'm number five. Okay. And since I put in two hours on this, or three hours, I think I can keep going. I'm stating the rules that we've adopted that we give to everybody, but I'll allow it. They just gave me some extra time in the back. There's five feet of space that is needed for two people walking side by side or passing one another. Next page. This is an example of a complete street in their manual. The fence is set off. Next page. And you can't see it, but there's a brick wall, and it's set back. This is an example of a complete street. Next page. This legislation became House H.R. 1443. Next page. And this is the summary page, and you have a copy of it. What this does is that on this summary page, if you look at the top paragraph, the whole point is to ensure that future transportation investments made by state departments of transportation and MPOs create the right kind of facilities with federal money. Well, you can have an exemption and not have to go with this plan. So there is a loophole. If you do not qualify and meet their regulations that you are conforming with this complete streets, it's my understanding that you can cry foul, you know, like this doesn't apply here. Or if they say it does apply, then you lose 1%, 2%, 3%. It's a sliding scale. You lose part of your money, and it goes into safety. Bottom line is we have a walk shed for UK. We are a significant walk shed. People come down Montclair, lickety-split, to go to the ball games, many, many, many, using this sidewalk. There is a new development proposed on Cooper Drive that has a photograph out in the front yard, and you can drive by and see it. It's at the corner of Cooper and Castle, and they want to put their wall right on the sidewalk because it really increases their lot space. I'm saying if we do that, then that makes us in violation when you fill out the little form at the MPO office and says, are you in compliance? Yeah. We say, yeah, we're in compliance until somebody squawks. Who could squawk? All these people at the bottom, the AARP, the Health Share Leadership Council, the American Planning Association, et cetera, et cetera. Any of those people could squawk. that you have impeded. So this, what we have set up here as an amendment, could not be real good for not only us as a neighborhood or as a city, but I feel, after we saw Metathorpe the other day, and they came in and said they copied Montclair's ideas, because we do have a good set of rules. I feel that this is like a pebble going into a pond throwing off ripples, and it's like we're acting as focus groups. The ND1s are acting as focus groups, and this type of amendment is headed in the wrong direction. It's headed away from complete streets rather than closer to complete streets. And why should we run the risk of not getting all of the money that we could get for the Newtown Pike Extension? So that's it. So how did I do, Chairman Cravens? Yeah, that's very good. Thank you. Okay, so does someone have a question? Thank you. Am I asking this question to Ms. Copeland as a citizen or as a commissioner? Just ask it. I'm still a pedestrian. All right. So your suggestion for changing this amendment would be what? First of all, I don't think we should pass it the way it is. And I'm not real sure what it should be. I'm thinking that there's a I didn't bring the amendment up here here it is I don't see why if we get over the fact that we've got an illegal wall that wasn't permitted and just forget that put it out of the way that's one wall out of 400 that are going to be built with these new modular blocks all over town that we say permitted fences and retaining walls and retaining walls may be up to four feet in height and a minimum of two feet from the sidewalk parallel to the public right-of-way. Just get over the fact that we have a mistake and let it go and then just put behind permitted fences. We have freestanding walls and retaining walls or however we work it, but just insert it right there, and then we've already got the two-foot, which the neighborhood was in favor of at the beginning. So you think we need for the adjustment, we just need to tweak the adjustment? Yeah, yeah. Get over the fact that we're being nice to one person and just keep it quiet. And don't go there. In other words, don't worry about the 178-foot wall that's already been built. But go forward with a good thing that other people can copy that will not penalize us. Thank you. Is that okay? Okay. All right. Does anyone else want to speak the first time? Yes, ma'am. I'm going to allow some rebuttal after we all get to speak. My name is Mitzi Eckerlein. I live at 1252 Summit Drive, and I do have a structural engineer's report on the wall and the safety of the wall, if you would like to see it. There were basically three reasons that we decided on the wall. I had a sample wall built on my back patio and looked at it for three months before we decided to do it. Our home is stone, the jutted stone. We didn't use that because we were worried about people walking to UK, walking to the football games, and that jutted stone would be uneven and jutting in and out. We didn't use that. Secondly, we didn't use mortar for the very same reason. I had three episodes. Number one, I had two little girls that log rolled down my bank. Now, I'm an RN. Common sense tells me that if they crack their head on the sidewalk, I'm liable, even though you ask them to stop. That was the first thing. That was a safety issue, in my opinion. The second thing is we did it to protect people walking down there. The wall is four feet high. Our sidewalk goes down and then curves up. It's not level. The city sidewalk follows the lay of the land. So the wall, for that reason, had to be, it has to, it graduates, if you understand what I mean. I have pictures there in the structural engineer's report. They show the before and they show the after. We put pillars that are not any higher than 18 inches on both sides of the fence. Last January, when we had all the ice, I had a wetting shower. I had six ladies between the ages of 80 and 85. They couldn't make it up the sidewalk, up the steps to our house. So we put the wall on both sides so that in case someone elderly did try to come up there, that they could either sit down or grab hold of something substantial until somebody could help them. Those are basically the three reasons, and they were all safety issues. Thank you. Okay, thank you. Yes, ma'am. My name is Susan Richmond. I live at 1235 Summit Drive, and the only thing I have to say is I would like to see the proposed amendment passed, but I'd like to have just added in, it says permitted fences may be up to four feet and a minimum of two feet. I would like to have fences and walls. Okay, thank you. Any other citizens want to make a comment? Yes, sir. Have you already spoken? Yes, I have. I have. My name is Jerry Price, and it seems as if, though, to me, this variance that we're talking about for one particular wall, this doesn't seem like the venue for that. This amendment to this overlay would have broad effects, and if other citizens are looking at us, this could go on forever. We all had meetings. We went over to KET. We had PowerPoint presentations. We brought the matter up here to the council. And everyone knew what was going on. Everyone knew the rules. And now to come back and say, well, we changed it because of this or that, there's going to be other changes and other requests. And I think holding the line on what the neighborhood established and the commission passed is the way we are to go with this. All right. Okay. Can I have a question? Yes. You'll need to come up here and state your name and address. I'm Susan Dombrowski on the 700 Montclair. I just have a question here. Do I have an answer? This toothpeat that you want to set it back from the sidewalk, what's going to go into the toothpeat? Grass? Mud? Water? That's all. I just have a question. All right. Thank you. Anyone else? All right. Now we're going to have the rebuttal. Is there any rebuttal comments by anyone in the audience? All right. And now we'll have the staff rebuttal, if they have any. Thank you, Mr. Chairman. To try and answer the question, we presume that if there is a setback requirement for the retaining wall, that it would be into private property. So if it were a dirt or a lawn area, presumably it would go into that type of an area. It would not go toward the street. under what's been discussed. Staff just wanted to clarify some of the points that you've heard at your hearing today, primarily to try and clarify what the existing restrictions are. Mr. Price, I believe, did mention that most of the walls in this area are short. The ones we studied, the vast majority, are less than two feet tall, so that is true. Mr. Pace, I believe, had a question about the wording of the change, and there was a change to the wording made at the time the Planning Commission initiated this change from what had been sent on the postcards previously. There was a drafting change made at the time the Commission initiated the change. finally on Ms. Wade's handout on page 2 if I could refer you to that in article 15 actually 15.4b of the zoning ordinance this regards the height of walls and fences and this is the current zoning restriction for the entire county and we just wanted to highlight that in the third line you can see that in the front, a six-foot tall wall or fence would be permitted under the zoning regulations for the entire county. So that is current. Now, obviously, the ND1 here has a greater restriction than that, but this is generally what's allowed in the county. Thank you very much. Okay, thank you. Mr. Chairman, I'm sorry. I did forget one point. I also just wanted to remind the Commission that under building inspections interpretation of the existing ND1, they are not considering any retaining walls being permitted in the front yards here in the Montclair area. Thank you. We've been talking about 18 inches, but I'm confused about 18 inches from what, because obviously the retaining wall we're talking about is much taller than that. It's 18 inches above the unbalanced fill. And then I would refer you to the diagram. The unbalanced fill is basically the fill behind the wall, and it's unbalanced because there's not dirt on both sides. So that is a technical term that building inspection uses to measure a wall. Now the height of a wall is still measured at the base. at the lowest ground point. So the six feet would still apply for total height of a wall, but the distance between the highest point of dirt and the top of the wall could be a maximum of 18 inches in this neighborhood. Thank you. Tracy, that led me to a question. With you there and Bill mentioned, as far as height of walls in the front yard, we're talking about six feet. Yes. Do we have a definition that tells what retaining walls should be? Or should we? In fact, the ordinance does not separately define retaining wall versus freestanding wall. Okay. Thank you. Mr. Chairman. Yes, sir. Tracy, let me ask you this question. One of the audience responded that under A, an existing standard, permitted fences and walls may be up to four feet, the height maximum of two feet. Does that make sense to you? On page four? For the existing standard? In other words, under existing standards, permitted fences, should the words and wall be put in there to, is there a reason you would oppose that? that i believe that second sentence of a so 3a on page four of the agenda reads no front yard fences or walls allowed comma except for properties facing cooper and tates creek okay so i think that second sentence of a applies to a long cooper drive and tates creek where fences are allowed That's what I want to clear it up. Thank you. Then they can be four feet high and have to be set back two feet. So I think if you want to restrict the retaining walls in some other way, we would need some different language. Okay, Ms. Beatty. Tracy, yes, ma'am. Mr. Sully, on the wording that was sent out, the postcard that was sent to the residents, was the wording significantly different, or did it just include the technical language that you just referred to for the height of the wall? The language that was sent out with the postcard was to just add the word freestanding. So it would say no freestanding walls or front yard fences. Part of the postcard response is, was there was some confusion about how high a retaining wall could be, should it be set back, and in speaking with the Neighborhood Association and their intent in requesting that, they made a statement that their intent was not to restrict a retaining wall further. So your text for the amendment was to clarify. To clarify that, and building inspection also brought up the point of, well, how high could it be above the dirt, the unbalanced fill? And at that time, between the zoning committee's consideration of this and when the planning commission initiated it, the staff drafted these changes. So it was really to clarify for the Planning Commission, Division of Building Inspection, Division of Planning in the future, and the neighborhood how those would be restricted differently from fences. And I would add that the notification that's gone out to the neighbors for today's hearing does include the language you're viewing both in the staff report and on the agenda. This is the language that most recently has gone out to all the property owners and the mail owners. All right. Ms. Phillips. So there are two issues that we're being asked to address. And the first is whether or not retaining walls are going to be allowed, period. And the second thing, well, three things. Second thing is that the retaining walls will only be allowed to be 18 inches tall. And then the question that's being raised, 18 inches tall behind the unbalanced film, you know, the appropriate terminology. And then the third thing is whether or not those retaining walls are going to be required to be set back. If it's true that this, and it's a fact that this neighborhood is a walking neighborhood for people going back and forth to UK, then can we impose the height and the setback requirement for the Cooper Drive and Tates Creek properties and let every other property be no restrictions on the height or setback of any kind of retaining walls? I mean, because the character of the area, I know the area along Montclair intimately, And there are some fairly steep properties, and I recognize that this is not targeted at the specific case that we're addressing at the corner of Summit and Montclair. That property has a very steep slope, and there are others that have steep slopes. I'm curious that the retaining walls that are in existence haven't failed yet because the slopes are so steep. And I think 18 inches is pretty low, especially when we're allowing fences to be taller. And so I feel like we're trying to bite off more than we can chew in this text amendment. And maybe if the original purpose of bringing this amendment forward was to provide clarification that retaining walls are allowed in front yards, then let's just do that. and if the neighborhood wants to come back at a later time and address the height of retaining walls, the setback of retaining walls, because it seems that there's some confusion within the neighborhood as to what the proposed amendment was going to do, can we just take things one thing at a time, or are we trying to take advantage of the fact that we're amending this section of the ordinance and let's make all the changes that we can foresee that might be necessary over the future? One thing I would mention is on Cooper and Tate's Creek, there really is not much of a topographic change. And I think that speaks to Mr. Harvey's comment of there wouldn't be retaining walls on those two streets because there is not. I think there could be. I think there could be. specifically the last properties that abut the football field, that abut KET, up closer to the intersection of Tates Creek and Cooper. Yeah, I can foresee them being necessary. Summit, at the corner of Summit as well. I think when we surveyed the neighborhood, there were only one or two, none on Tates Creek, and I think maybe one or two on Cooper. I think under this draft, there is no limit on the height proposed for retaining one. Yeah, but the overall height of the wall would still be, go ahead, Rochelle. That whole reason for the unbalanced fill restriction was to prevent someone from putting up a six-foot wall. This is a retaining wall. See, there's a foot of dirt at the back that it's retaining. But it sticks up five feet above that. Okay? So when we said the proposed amendment was to provide that they never intended to put restrictions on retaining walls, but as we mentioned earlier, part of this came from the fact that there's nowhere in the zoning ordinance what's a retaining wall, what's a wall, a freestanding wall. So building inspections said with respect to what they see in actual retaining walls, where that is the intent, a safety, drainage issue, a retaining wall for topographical reasons, that it was reasonable for it to project up to 18 inches above the fill that's behind it, and they won't consider that a freestanding wall. So the only reason that was put in was to try to prevent anyone from abusing it to actually put up a wall that was intended to be regulated. So as I see it, this amendment as originally proposed was just to say, oops, we really didn't intend to regulate retaining walls any more than the zoning ordinance underlying countywide regulates them. So as it was proposed and as it stands, that was what was before you. And I think that's what you were just saying you thought we should address. So I just wanted to make sure if there were any questions on that that we kind of understood. Okay. Does anybody get that? Ms. Copeland? Yes. So can we just add a number three line that says retaining walls shall be no more than four feet in height and a minimum of two feet from the sidewalk parallel to the public right-of-way? let's just add that. And that way we set any kind of wall back. How does that sound? Ms. Bowen. I think in order to add a restriction, we're retaining what was proposed and advertised for public notice was there would no longer be any restriction on putting retaining walls in the front yards. No one was ever notified, and it was not advertised, that we are going to make you. To everybody that has these retaining walls up along the sidewalk, they're now going to be legal nonconforming, and any of you who now want to build a retaining wall, you're going to have to give an additional two feet to the sidewalk. My concern is if we add that now, it has not been advertised, it has not been noticed in letters, because that really isn't what the neighborhood came to you with, and so you weren't reacting to that. when you initiated this. So right now, it hasn't been included in it. So it's this way or no way? Or you re-notice it with that change in it and do all the notice and the letter requirements. I mean, you know, you as the Planning Commission initiated this. You have every right to amend it, but you have to comply with the statutory notice requirements so that anybody that may have said, oh, yeah, I mean, my neighbor has a retaining wall right there. I might want to put one up someday. I don't have a problem with this. I don't need to go. But if they had been notified, and by the way, even though your neighbor's is up the sidewalk, yours is going to have to come back two feet, they might say, well, wait a minute. I would have gone in and objected to that. So it's just to make sure we don't run into a technicality. If you want to do that, you can. But we just would have to continue this and re-notice. Okay. In other words, we couldn't vote on that today. Okay. Other than as a proposed amendment to your original proposal. I'm going to go ahead and close the hearing. Maybe we should have closed it a little sooner, but the hearing is now closed, and I'm going to turn it over to the Commission for any more discussion or motions or whatever they want to do with this. Mr. Chairman, I respectfully believe that we've just made this way too hard. I think we either vote this up or down, and this is a request to the neighborhood. This is not something that we initiate on their behalf. We certainly didn't go out and just choose to take this neighborhood. So I think it's something that you all have asked for. I think the Commission's heard it. and for us to try to amend this right now just doesn't make sense to me. I think we've voted up or down based on its merits and then let the neighborhood do what they want to do. But let's don't try to legislate on the fly here because of what our council has told us. I think we're getting way too far ahead of ourselves. All right. Very good. Ms. Beatty. I just want a clarification from legal. Once we vote on the issue at hand, if the neighborhood wants to go back and think about this, talk about some other things, can they bring something back to us at a later date? There is nothing in the zoning ordinance or statutes to prevent a neighborhood at any time from coming in and asking for something like that. Something different from what the N1 is. Yes, but I will say the intent was never to kind of create something and impose it in increments. I mean, there was two years of study and surveying and such done by the neighborhood. The intention was for the neighborhoods in asking for these to do the work ahead of time and know what they want. There is no legal prohibition to what they've done here. But I would say I would be very concerned about encouraging a neighborhood to say, well, just put some ND1 restrictions on here, and if you decide down the road you don't really like these, you can come back again. We could end up having a real problem with continuing to obtain the goals that we tried to address in creating the ND1 overlays, I think. Okay. I mean, this is a full-fledged zone change, a hearing, to change anything. You have to go through a whole zone change again. I mean, some of it's abbreviated, but that's the danger you run sometimes with these ND1s. Okay, Carla? I'm ready to vote. You know, I'm hesitant to continue to get involved in neighborhood squabbles. I don't think that's a good use of taxpayer money, and I understand the unintended consequences. But like the chairman, I think that's one of the fundamental problems with this zoning is that you can't think of every case, and there are going to be consequences. So I'm ready to vote, but I'm just not happy with this. Okay, are you going to make a motion? How are you going to vote if you can't make a motion? Mr. Chairman, I'll make a motion. Yes, sir. Go ahead. Mr. Chairman, I move for approval of MAR 2011-15 with the proposed design standards for reason provided by staff. All right. We have a motion for approval. Do we have a second? Second. We have a second. Everybody vote when you can. That motion carries. So you can now build retaining walls as soon as this clears off its hurdles. Thank you. Does that conclude our meeting today, Mr. King? All right. So can we have a motion for adjournment? Can we have a second? Everybody seconds. Okay. Meeting adjourned. Thank you.