# Planning Commission Zoning Public Hearing - November 15, 2012 > Auto-transcribed civic record · November 15, 2012 - **Permalink**: https://meetings.lexingtonky.news/meeting/2762 - **Source video**: https://lfucg.granicus.com/player/clip/2762?view_id=14&redirect=true - **Date**: 2012-11-15 - **Last revised**: July 17, 2026 - **Length**: 34,665 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Urban County Planning Commission met on November 15, 2012, at 1:31 p.m. in the Council Chamber, 2nd Floor LFUCG Government Center, located at 200 East Main Street in Lexington, Kentucky. Mike Owens presided over the meeting, which included four agenda items, six motions and votes, and thirteen public comments. The Commission considered four matters during the session. Two zoning map amendments with development plans were approved: one for Mullis Family, LLC, regarding Leestown Office Park, Lots 4 & 5, and another for Homes by Anderson Tate, concerning a portion of Higbee Mill Reserve. The Commission also approved an appeal of a Board of Architectural Review denial for a gazebo proposed at 372-380 South Mill Street. One item—an ND1 Overlay for the Old Colony Neighborhood Association—was deferred to a future meeting. ## Attendance **Present:** Eunice Beatty, Patrick Brewer, Mike Cravens, Mike Owens, Frank Penn, Carolyn Plumlee, Lynn Roche-Phillips, and William Wilson. **Absent:** Will Berkley, Carla Blanton, and Karen Mundy. **Late:** Patrick Brewer and William Wilson arrived after the meeting began. ## Votes and Decisions **MAR 2012-15: Zoning Map Amendment for 161 and 181 Leestown Center Way** [0:18:35] A motion by Eunice Beatty, seconded by Patrick Brewer, to amend the zoning map from P-1 to R-4 for the properties at 161 and 181 Leestown Center Way passed by voice vote. All eight members voted in favor. **ZDP 2012-93: Zoning Development Plan for Leestown Office Park, Lots 4 & 5** [0:19:40] A motion by Eunice Beatty, seconded by Frank Penn, to approve the zoning development plan for Leestown Office Park, Lots 4 & 5 passed by voice vote. All eight members voted in favor. The approval is subject to ten conditions, including: - Urban County Council rezoning the property to R-4; otherwise the approval is null and void - Urban County Engineer's acceptance of drainage, storm, and sanitary sewer information - Urban County Traffic Engineer's approval of parking, circulation, access, and street cross-sections - Building Inspection's approval of landscaping and arterial screening - Urban Forester's approval of tree inventory map - Bike & Pedestrian Planner's approval of bike trails and pedestrian facilities - Clarification of office and apartment parking requirements - Board of Adjustment approval of conditional use for P-1 parking in the R-4 zone prior to Final Development Plan approval - Discussion of protection of a significant 60-inch Hackberry tree and its impact on parking **MAR 2012-16: Zoning Map Amendment for Harrodsburg Road and Reserve Road Properties** [1:43:48] A motion by Lynn Roche-Phillips, seconded by Carolyn Plumlee, to amend the zoning map from R-3 to R-4 for properties at 4250 & 4290 Harrodsburg Road and 4113 & 4204 Reserve Road passed by voice vote. All eight members voted in favor. **ZDP 2012-94: Zoning Development Plan for Higbee Mill Reserve** [1:46:32] A motion by Lynn Roche-Phillips, seconded by Carolyn Plumlee, to approve the zoning development plan for a portion of Higbee Mill Reserve passed by voice vote. All eight members voted in favor. The approval includes twenty conditions addressing engineering, traffic, landscaping, environmental quality, and various design specifications. **MAR 2012-17: ND1 Overlay for Old Colony Neighborhood Association** [3:24:15] A motion by Carolyn Plumlee, seconded by Lynn Roche-Phillips, to establish an ND1 overlay for the Old Colony Neighborhood Association failed in a tie vote, 4-4. Members voting in favor were Eunice Beatty, Patrick Brewer, Mike Cravens, and Mike Owens. Members voting against were Frank Penn, Carolyn Plumlee, Lynn Roche-Phillips, and William Wilson. **BOAR 2012-2: Appeal of Board of Architectural Review Denial** [4:15:55] A motion by Carolyn Plumlee, seconded by Lynn Roche-Phillips, to approve the appeal of the Board of Architectural Review's denial of a certificate of appropriateness for a gazebo at 372-380 South Mill Street passed by voice vote. All eight members voted in favor. ## Public Comment The meeting included thirteen public comments addressing traffic and infrastructure concerns, property rights, neighborhood processes, and architectural review decisions. **Traffic and Infrastructure** Ray Waits [timestamp: 1:18:11] expressed concern about increased traffic on Old Higbee Mill Road, particularly high-speed cut-throughs, and requested installation of a traffic light at Stedman Drive and a right-turn lane off Old Higbee Mill Road. Robert Nave [timestamp: 1:24:07] stated that a fire gate is necessary for safety, citing his experience as a city firefighter and concerns about high-speed traffic through the subdivision. **Land Use and Development** Risto-Martinen [timestamp: 1:21:58] raised concerns about 377 parking spaces being located on the street, the lack of a contour map, and the need to remove limestone from a hillside before construction. **Process and Transparency Concerns** Walt Whitlow [timestamp: 2:32:36] challenged the accuracy of data presented by the neighborhood association and claimed the process lacked transparency, with many residents not properly notified. Jennifer Hamm Blakely [timestamp: 2:44:01] alleged that the ND1 overlay process was manipulated, with neighbors pressured to support the proposal and some misled about voting requirements. Brandon Stinneth [timestamp: 2:47:26] presented evidence that only a minority of residents supported the ND1 overlay and criticized the use of misleading data. Kathleen Whitlow [timestamp: 2:57:16] shared a letter from a young family who felt pressured to move due to the ND1 process and criticized harassment and lack of respect among neighbors. **Property Rights** Jerry Nicholson [timestamp: 2:40:11] expressed concern that the ND1 overlay would restrict his ability to make property improvements, such as building a covered swing set. Jeremy Ford [timestamp: 2:51:54] argued that the ND1 overlay would unfairly restrict his ability to build a detached garage and asked the commission to oppose the proposal. Frank Roby [timestamp: 3:01:10] highlighted racist language in original covenants and argued that the ND1 overlay would infringe on personal freedom to develop property. Stella Moore [timestamp: 2:53:29] shared her experience renovating her home for her disabled husband and criticized characterizations of fences as eyesores. **Architectural Review** Bobby Friesberg [timestamp: 3:52:56] argued that a gazebo is temporary and not visually intrusive and should be allowed as it is similar to outdoor furniture. Ron Jackson [timestamp: 4:00:41] defended the Board of Architectural Review's decision, stating that lack of compliance with process and prior violations justified the denial. ## Contested Items **ND1 Overlay for Old Colony Neighborhood** The proposal for an ND1 Overlay in the Old Colony Neighborhood resulted in a 4-4 tie vote. Residents voiced strong opposition, claiming the process had been manipulated and that voting data was inaccurate. The neighborhood itself was divided on the issue. Due to the tied vote, the matter was deferred to a future meeting without resolution. **Gazebo at Dudley Square** An appeal regarding the denial of a gazebo at Dudley Square sparked heated discussion among board members and the applicant. The debate centered on whether the structure should be classified as temporary or permanent, the application of historic guidelines, and whether the Board of Architectural Review had acted fairly in its decision. The applicant alleged bias in the Board's process, while Board members defended their review procedures and reasoning. **Higbee Mill Reserve Development** The proposed Higbee Mill Reserve Development faced community opposition focused on practical concerns. Residents raised issues about increased traffic, safety risks, and connectivity, with particular concern about a proposed fire gate and potential cut-through traffic on Reserve Road. The applicant countered these concerns by arguing that connectivity would be maintained through an alternative bypass route. ## Mullis Family, LLC, Zoning Map Amendment & Leestown Office Park, Lots 4 & 5, Zoning Development Plan The Planning Commission reviewed a zoning map amendment and development plan for two parcels at Leestown Office Park, Lots 4 & 5. The request sought to rezone the properties from P-1 to R-4 to accommodate a multi-family residential development. **Presenters and Recommendation** Key speakers on this item included Traci Wade, Chris Taylor, and Darby Turner. Staff and the Zoning Committee both recommended approval of the proposal [timestamp: 0:04:11]. **Basis for Approval** The recommendation for approval was based on the compatibility of the proposed multi-family residential use with surrounding land uses and the alignment of the project with the 2012 Comprehensive Plan. **Commission Action** The Planning Commission approved both the zoning map amendment and the development plan. The approval included eight conditions that the applicant must satisfy as part of the project requirements. ## Homes by Anderson Tate, Zoning Map Amendment & Higbee Mill Reserve (a portion of) The Commission considered a rezoning request for a 9.3-acre parcel from R-3 to R-4 zoning, along with an associated Zoning Development Plan. [timestamp: 0:20:20] **Staff Recommendation and Presentation** Staff, represented by speakers including Traci Wade, Tom Martin, and Bruce Simpson, recommended disapproval of the rezoning request. The primary basis for this recommendation was non-compliance with the 2007 Comprehensive Plan. **Key Issues and Discussion** The Commission heard from multiple speakers during the meeting, including Nathan Billings and Mike Mason, who participated in the discussion and public comment portions. The rezoning proposal and its alignment with the comprehensive plan were central points of debate. A significant issue identified during the proceedings involved Reserve Road connectivity, which required resolution as a condition of approval. **Outcome** Despite the staff's recommendation for disapproval, the Commission voted to approve both the rezoning and the development plan. The approval was conditional, with the Commission imposing 14 conditions on the project. These conditions included requirements to resolve the Reserve Road connectivity issue. ## ND1 Overlay for Old Colony Neighborhood Association The Commission reviewed a proposal for an ND1 overlay designed to preserve the character of the Old Colony neighborhood [timestamp: 1:56:57]. **Presentation and Discussion** Key speakers included Traci Wade, Mike Hart, Michael Harrison, Dave Kessler, Walt Whitlow, Jerry Nicholson, Jennifer Hamm Blakely, Brandon Stinneth, Jeremy Ford, Stella Moore, Kathleen Whitlow, and Frank Roby. **Concerns Raised** The discussion was highly contentious, with significant concerns raised regarding: - Transparency in the process - Voting accuracy - Perceived manipulation **Outcome** The vote on the proposal ended in a tie. As a result, the matter was deferred to a future meeting rather than being resolved at this session. ## Appeal of Board of Architectural Review Denial for Gazebo at 372-380 South Mill Street The Commission reviewed an appeal of the Board of Architectural Review's (BOAR) denial of a certificate of appropriateness for a gazebo proposed in the front yard of a historic property located at 372-380 South Mill Street. [timestamp: 3:37:56] Key speakers on this matter included Barbara Rackers, Amelia Kerr, Bobby Friesberg, and Ron Jackson. The staff and BOAR presented findings that the gazebo would be visually intrusive and would violate the applicable design guidelines for the historic district. The review focused on whether the proposed structure was appropriate for the front yard location of this historic property and whether it met the standards established for architectural review in the area. The Commission upheld the Board of Architectural Review's denial of the certificate of appropriateness for the gazebo. --- ## Decisions - **MAR 2012-15** — passed: Zoning map amendment from P-1 to R-4 for 161 and 181 Leestown Center Way - **ZDP 2012-93** — passed: Zoning development plan for Leestown Office Park, Lots 4 & 5 - **MAR 2012-16** — passed: Zoning map amendment from R-3 to R-4 for 4250 & 4290 Harrodsburg Road and 4113 & 4204 Reserve Road - **ZDP 2012-94** — passed: Zoning development plan for Higbee Mill Reserve (portion of) - **MAR 2012-17** — failed (4-4): ND1 overlay for Old Colony Neighborhood Association - **BOAR 2012-2** — passed: Appeal of Board of Architectural Review denial of certificate of appropriateness for gazebo at 372-380 South Mill Street --- ## Full transcript Music Thank you. Thank you. Good afternoon, ladies and gentlemen. If everyone would take their seats, we'll get started in about one minute. Thank you. one to this meeting today. This is November 15, 2012. I will call this meeting to order. And first on the agenda are minutes for approval. You did receive minutes for October 11, 2012 by email. We have just been presented the October 25, 2012 minutes. And Mr. Salee, do you want to Mr. Chairman, those October 25 minutes were just completed yesterday, and we would ask the Commission to consider postponing approval of those minutes until your December 13th meeting. That is your next scheduled meeting. Thank you. So our request at this point in time would be approval of minutes for October 11, 2012. Hopefully everyone has had a chance. Are there any changes anyone wish to present? Mr. Chairman. Yes, sir. I'm going to move approval of the minutes for October 11, 2012. Thank you. Do I have a second? Second. Motion's been made and seconded for the approval of minutes of October 11, 2012. Please vote when it comes up on the screen. That motion passes. Do we have any postponements or withdrawals from the agenda today? Seeing none, I'm going to ask Mr. Salee to sound the agenda. we may have some abbreviated presentations today. Thank you, Mr. Chairman, members of the Commission. Good afternoon. We believe there may be one item that might qualify for an abbreviated hearing on your agenda this afternoon. That is the very first zone change that appears on the bottom of page one of your agenda. It also continues on to page two of your agenda. This would be MAR 2012-15, a request by the Mullis Family LLC for rezoning from a P1 zone to a high-density apartment R4 zone for property located at 161 and 181 Leestown Center Way. At this time, the staff would ask if anyone is present in the audience who wishes to speak to or object to this proposed zone change from P1 to R4 on Lee's Town Center Way. Mr. Chairman, seeing none, we can review this zone change in an abbreviated hearing fashion if the Commission so wishes. Thank you. Thank you. I think that would be fine. and I do agree I think that's the only one on the agenda today so if the staff will we can go on and present that While they are getting ready, I will take note you do have a green sheet in front of you, which are revisions for the zoning development plan. To bring your attention to that, it is a revision. Good afternoon, Chairman Owens and members of the Commission. The first item on our agenda today is found at the bottom of page 1. It's item 1A and is also in your notebooks behind tab 2. this is a request from the Mullis family LLC to rezone property on Lee's town center way from a professional office p1 zone to a high-density apartment our four zone the subject property is located on the south side of Leastown Road and just outside of New Circle Road. It's kind of an elongated piece of property, and it's actually two parcels, 161 and 181 Leastown Center Way. Leastown Center Way does connect from Opportunity Way to the northwest and then continues towards Leastown Road and makes a connection at Leastown Road. Opportunity Way does run parallel here to Leastown Center Way and does connect to Leastown Road with a signalized intersection. The subject properties, as I mentioned, are zoned P1 currently to the northeast. There are three other parcels, also zoned to professional office, to the west, northwest. The land for the Bluegrass Community and Technical College as well as land for the Leestown Middle School both remain agricultural urban. And then land across New Circle Road is I-1, which connects to the wastewater treatment plant. R-3 and B-3, which is part of the Townley Center area. And then properties across Leestown Road, This is an industrial park of sorts, kind of a business park, and it's mostly I-1 use or I-1 zoning. The two parcels that are proposed for rezoning today were originally part of a 2000 rezoning to the professional office that included those three parcels to the north. zoom a little bit you can see on that aerial photography that these two parcels are currently vacant but the connection lees town center way has been constructed and that was constructed when the professional office park that was proposed from lees town road down to the southwest was proposed originally. This Opportunity Way and Leastown Center Way does give multiple access points to the subject properties to get to Leastown Road. After more than a decade for this project, the office project that was rezoned in 2000, only two parcels have developed. On this aerial photograph, you can see an office building just to the north, And then there's a branch bank that sits up along Leastown Road and a vacant property between the two. At this time, the rest of this development is development-ready, but nothing else has developed within that area. The applicant is now proposing to rezone these two parcels to an R4 zone in order to construct multifamily residential development. and specifically for 84 dwelling units with its parking our comprehensive plan does recommend professional service land use at this location which does reflect the current zoning category for the property the most recent comprehensive plan our 2007 comprehensive plan as well as the 2001 comprehensive plan reflect this land use designation however prior to that for approximately 20 years this land including the land up to new circle I'm sorry up to Leastown Road was recommended for a high density residential land use so while the proposed R4 zone cannot found to be in agreement with the land use today the staff would just note that it would be in agreement with what the comp plan had proposed in the past. And generally, a high-density residential land use at that location is defined at 10 to 25 dwelling units per acre. There are several themes, goals, and objectives of our 2012 comprehensive plan, which have been adopted by the council that are relevant to this application. The 2012 comprehensive plan's mission statement seeks to provide flexible planning guidance, and this proposed land use change is also supported by two of our goals and objectives. First, theme A1B, which encourages housing near employment centers and commercial areas. In this case, those would be the Veterans Hospital, which is nearby, the Industrial Park across Leastown Road, as well as the school, middle school, and the community college. and then secondly theme A2A which encourages identifying opportunities for appropriate infill that still respects the area's context and design features. With the 84 dwelling units proposed, the applicant would be developing at a density of 14.56 dwelling units per acre and the staff would note that dwelling units are permitted in the existing zone here in P1 if they're on the second floor or above. However, the applicant does not believe that a mixed-use building or project at this location is feasible given the property's limited access and lack of success of the existing office space. For this reason, they believe that the appropriateness of the existing and proposed zone should be considered by the Planning Commission. The applicant is proposing residential development in order to have the property be more compatible with the surrounding land uses. The largest land use, as I mentioned, are two uses, our educational nature, and they have the Lees Town Middle School and the Bluegrass Technical College, and both would be highly compatible with the multifamily residential development. There was one issue at the most recent zone change for this property in terms of access. The professional service or professional office use did improve the access at this location. However, it doesn't appear to have improved it enough to foster a successful professional office development at this location. So the applicant does wish to return to the previous recommendation of residential land use, and that does appear to be appropriate at this time. The proposed land use would result in an appropriate transition between the professional offices to the north and the educational facilities to the west. In addition, it can improve pedestrian and bicycle connections where people could live at this location and get to those two locations quite easily. The staff is recommending approval, and the zoning committee also recommended approval two weeks ago of this proposed application. And the staff would note that the findings are on your agenda and in the staff report, but generally the high-density apartment zone is appropriate, and the professional office zone is now inappropriate for these two parcels. and the other reason would be the 2012 comprehensive plan. Goals and objectives are supported by this land use change as well. I'd be happy to answer any questions. Questions for Ms. Wayne? No? Thank you. Thank you. Mr. Taylor. Good afternoon. The development plan is under item B on page 2. It's ZDP 2012-93, Lee's Town Office Park, lots 4 and 5. This is located again at 161 and 181 Lee's Town Road. This development plan, as Tracy also mentioned, does provide for 84 dwelling units, 104 bedrooms, located off of the access easement of Lee's Town Center Way. is three buildings with an accessory recreation pavilion area with an existing detention basin that they would be making smaller according to this plan. The subdivision committee recommended postponement at its last meeting for the conditions noted on your agenda. The primary reason was for the location of parking on their site, and as you see under condition number seven, they need to denote the Board of Adjustment approval for a conditional use of the P1 parking in the R4 zone that will be required prior to the approval of a final development plan. The P1 portion of this property does not meet its parking standing by itself. There is a shortage of P1 parking that is being addressed with an excess of parking in the proposed R4 zone. that is allowed with a conditional use and will have to again be done through the appeal to the board for conditional use the applicant in the week after subdivision committee submitted a plan that moved these two buildings closer together to allow a large bay of parking here that is better suited to serve the p1 parking that could be needed for this development and with that change the staff recommend had a revised recommendation that you had before you on the green sheet with those eight conditions and with the last one to be to note that the protection of a significant tree and its potential impact on the parking will be resolved at the time of a final development plan. But with that, I'd be happy to answer any questions you might have. Any questions, Mr. Taylor? Yes, Ms. Phillips. Chris, I can't tell from over here, but is that the overflow parking for the P1, is that accessible from the P1 properties? properties yes it's vehicularly connected as well there's the property line here but there there's a drive aisle okay i can't make that out from here thank you any other questions if not thank you mr taylor and we'll have to ask for that come forward and see if he's in agreement with everything Thank you, Mr. Chair. This is Darby Turner, attorney for the applicant, and I appreciate your attention today. We are in full agreement with the staff's recommendations and accept the conditions that they have proposed, both with regard to the development plan, and would request your approval of both the development plan subject to those conditions and the recommendation of approval for the zone change. Thank you, Mr. Mr. Turner. Any questions for Mr. Turner? If not, I would ask if there's anyone else in the audience who should speak on this, if they came in late. Seeing none, I'll close this part of the hearing and open it up for any discussion and or motion. Ms. Beatty. If there's no discussion, I'm prepared to make a motion. Yes, ma'am. I move that we accept the zoning change for MAR 2012-15 with the staff's recommendation for approval. Second. Motion has been made and seconded for approval of MAR 2012-15 Mullis Family LLC. Please vote when it comes up on your screen. Motion passes. Motion passes. And at this time, I also need a motion for the ZBP 2012-93. I will also move that we accept ZBP 2012-93 for the Leastown Office Park Development Plan as the staff has recommended approval with the eight conditions. I'm sorry. Second. Thank you. Motion's been made and seconded for their approval, ZDP 2012-93, with the revised eight conditions. Please vote when it comes up on the screen. Motion passes. Thank you. Thank you, sir. Next on the agenda would be Holmes by Anderson Tate, a zoning map amendment, and Hickory Mill Reserve, a portion of amended zoning development plan MAR 2012-16. I would ask to note that you do have revisions on the ZDP shown on a blue sheet of paper in front of you. Ms. Wade. Good afternoon again. Mr. Owens and members of the Commission, this item appears at the bottom of page 2 of your agenda and then continues on to page 3. It is behind tab 3 in your notebooks. MAR 2012-16 is a request by Holmes by Anderson Tate, and they are requesting a zone change from our planned neighborhood residential zone. And this particular property does have conditional zoning restrictions, and they wish to move to our high-density apartment R4 zone. The property is located on Harrodsburg Road, well south of Manowar Boulevard. Here's Manowar Boulevard, Harrodsburg Road. And the subject parcel is approximately nine acres of what was originally a 15-acre site with a development plan for Old Higby Mill Reserve. In the area, we still have some agricultural urban zoning, both across Harrodsburg Road and adjacent to the parcel to the southeast, which is First Alliance Church, and to the north, which I believe is either residential or some other institutional use. Also in the area is the remainder of what was rezoned previously for old Hickory Mill Reserve. These are condominiums that have been constructed as well as townhouses, so that's all in an R3 zone. and R1D and R1C to the east for part of the plantation subdivision and neighborhood. And then across Harrodsburg Road is Palomar and the Bowman property, which is also planned and developed as single-family residential. I'm going to mention one other thing. Reserve Road is a connection that exists from Old Higbee Mill, and it's a private road and it connects all the way to the north to what is now Stedman Drive. And you'll notice Stedman Drive does not appear on our map here, but it is generally situated on the ground today. Let me show you a few photographs of that. Part of the subject property is also a quarter acre site that is on the opposite side of what has been built as Stedman Drive. This is an aerial photograph of the existing, well, I'm sorry, this is from 2010, but the site conditions have not changed for this property since that time. Stedman Drive, as you can see, to the north, and this aerial photograph is constructed, although it has not been dedicated to the city as of yet because it doesn't meet all of the requirements for dedication. There aren't any sidewalks yet. It doesn't have its final course of asphalt. And there is a barricade between the portion that the former property owner built and a stub street that was constructed with the subdivision quite a few years ago. This aerial photograph also shows that Reserve Road is constructed and that there are four, actually there might be five buildings, one off the photo that were constructed after the property was rezoned and then also one that was built on part of what's being rezoned or asked for rezoning today. In 2003 is when the zone change occurred from an AU zone to an R3 zone And at that time, the property was limited to a maximum of 177 dwelling units via conditional zoning because the flexibility inherent in our R3 zone and the excess open space being shown by the petitioner at that time meant that a conditional zoning restriction limiting the number of units on the property would be appropriate in order to ensure compliance in the future with comprehensive plan density recommendations. So at that time, the development plan did show an excess of or above the minimum requirement of open space as well as off-street parking. This is just another view. You can see the subdivision to the rear as well as the church that are adjacent to this property. And this is a view looking from, I guess, the east, showing what's currently constructed on the site. More site photographs. This is the structure that exists on the subject property. It does house 12 residential units, And the applicant is proposing to add 170 new residential units on the rest of the property for a total of 182. Twelve in this building. And then everything else would also be in a multifamily building with the exception of two units, which were shown as a duplex across Stedman Drive. This is a photo of Stedman. As you look towards the neighborhood, you can see the guardrail blocking access through there. This is looking at Stedman towards Harrodsburg Road. And again, you notice that it's not quite complete without sidewalks and final asphalt. This is Reserve Road, the connection that does already exist, connecting the two parts of this development. And again, looking to the north with the existing structure on the property. And this is part of the existing development at the southern end of Old Pigby Mill, not part of the rezoning, but where the rezone line would approximately be. The 2007 comprehensive plan does recommend medium-density residential for the entire development, not just the part of the property being brought in today, but you can see the medium density recommendation continues for the rest of the old Hickby Mill reserve property. And medium density is defined as 0 to 8 dwelling units per gross acre. And the reason the staff is siting gross acres in this case is because that's what was used in 2003 to determine what was the appropriate density on the site. So we'd like to just continue to use that for comparison purposes. For the area of just the property proposed for rezoning, which is 11.67 acres, the plan would suggest, gross acres, suggest up to 93 dwelling units on the property. And again, the applicant is proposing 170. The staff does not see an appropriate justification for increasing density and floor area ratio beyond that permitted with the existing zoning and conditional zoning restrictions. And there have been no unanticipated changes in this area. And then lastly, the staff does not believe that the existing R3 zone is inappropriate at this location. The zoning restrictions that are currently in place do permit another 99 dwelling units to be constructed at this location. However, because the applicant wishes to construct 170, the staff is concerned about this increased density. There's a need to maintain the reserve road connection, and the applicant is proposing to either sever that or reduce the connectivity somewhat. And by cutting the development into two, the staff is of the opinion that residents on both sides suffer. The connections are already in place, and it's an important factor for the staff in making a recommendation about whether greater density is appropriate at this site. The staff has recommended disapproval of this zone change for three reasons. The requested high-density R4 zone is not in agreement with the 2007 comprehensive plan because the plan recommends medium density future land use for the property, which limits the site to eight dwelling units per gross acre. The applicant is proposing 182 dwelling units on this property for a density of, this is slightly different than the staff report because they've added the duplex units since we wrote that 15.6 dwelling units per gross acre, whereas the plan would suggest a limit of 93 units on the property. Secondly, the existing R3 zone remains appropriate at this location. The subject property was restricted 10 years ago because of the comprehensive plan's density recommendations, and then also the current density, floor area ratio, and building heights permitted in the R3 zone do allow for an appropriate transition between Harrodsburg Road and the single-family subdivision and church site, which are to the east of this property. They would also be compatible with the existing residential structures built on the rest of the Higbee Mill Reserve development plan. And then lastly, there's been no unanticipated change in the immediate area that was not anticipated at the adoption of our 2007 comprehensive plan that would warrant this zone change. I'd be happy to answer any questions. Oh, excuse me. The zoning committee did refer this application to the Planning Commission two weeks ago. Thank you, Ms. Wade. Any questions for Ms. Wade at this point? Ms. Wade, I would have one question. You spoke of connectivity as far as the reserve road is concerned. You've got various reasons for your disapproval. Would connectivity ease the pain as far as the other concerns are concerned? I do think it's connected directly to the density question and whether more density is appropriate. more density I think can be accommodated when there is good connectivity versus the severed connectivity makes it hard to justify adding 70 units to that area. Okay. Yes. Thank you. As far as our development plan? Oh, I'm sorry. Wait a second. Mr. Penn's got a question. I'm sorry. Ms. Wade, this might be a development plan issue, but the Stedman Lane connection where the guardrail is, will that have to be removed and upgraded for this zone change to go forward? I think anyone that takes on completing this development would have to do those things. So whether the bank finds someone to develop with the existing development plan, I think that step would have to occur in either case. Either one. Whether they have the increased density in the R4 or if they have the existing R3. when this site is completed, I believe Stedman Drive was clearly intended to connect and the barricade would need to be removed, and it would be the bank's responsibility as the owner today to complete those required improvements. So whether it's state R3 or R4 to develop it, that would have to happen? Yes. Thank you. Thank you. Mr. Martin. Mr. Chairman, members of the commission. The preliminary development plan associated with this zone change is located on page 3 of your agenda, item B, ZDP 2012-94, Higby Mill Reserve. As your chairman pointed out, we do have a list of revised conditions in blue for you today. Here you see the rendering of the preliminary development plan. This is the area proposed for rezoning. This is the existing condominium regime that has been built out here at this location. Here we have Harrodsburg Road. Here is Steadman Lane. Right up in here is the area of the barrier that you saw in the photograph. There is the access easement reserve road that currently bisects the property from here over to Higbee Mill Road. There is a light at this intersection. Probably aware of the Elkhorn Village and Ramsey's and that development down over here near the creek. There is no light at this intersection. The plan shows seven proposed new buildings in the locations highlighted for you here with associated parking. Again, this exists. This is on the ground. We have covered garages being proposed in these locations. This is the existing building. They are proposing a clubhouse with a pool. This area highlighted in blue for you is a large existing drainage easement and detention for this property. This is the little duplex that was added into the request right here across Stedman Lane in this area, and this would be parking proposed to serve that duplex. This is a revised plan, and originally your subdivision committee had recommended postponement primarily because the duplex area was not included on the original plan. And just as a cleanup item, a little bit of housekeeping for those in the audience that may wish to speak to this plan, I'd just like to make it clear, as you all well know, we review these as a staff as if the zoning was in place, as does your subdivision committee. staff has revised their conditions. You can see from your sheet that there are seven standard, eight standard conditions for approval. The property in question that you see with the seven new buildings, they are proposing 168 units, 372 bedrooms. There are 12 units in the existing building, constituting 30 bedrooms. The duplex will have two units, obviously. They are proposing 337 parking spaces. They are required 313, so there's a slight overage in parking on the site, including the garages, which are 62 garages proposed. The lot coverage square footage on this development is 108,200 square feet. That is 26.7% of the lot, and there's a 30% limit. So they're getting close right up to their limit with this proposed development. The FAR, the 4A ratio, which is the total square footage, is 275,960 square feet, and that is .68 of the lot, and there's a .7 limit in FAR. So again, this development is getting right up to the limits of what is allowed in the proposed zone. The buildings are three-story in height. The conditions, as I mentioned before, and the staff is recommending approval subject to standard conditions, we have several cleanup conditions. Denote that the building encroachment into the storm and drainage easements shall be resolved at the time of the final development plan. That's not actually an unusual condition. There are a lot of easements on this property. It was previously planted. A lot of easements have been created. That's a large detention easement. The encroachments are slight in nature and would have to be resolved at the final development plan stage should this be approved. Addition of five-foot contours, again, that's a standard cleanup issue. Staff would like for them to denote that the tree canopy requirements will be met at the time of the final development plan. We raised this issue again on these types of developments. that are being heavily developed, a lot of buildings, associated parking. The site has some challenges. We just like to be absolutely sure that the tree canopy can be met, along with the other requirements that this site has to meet. And that leads us actually to the next item, item 12, which is to note whether or not the detention area shall be used to meet the open space requirements. Staff isn't necessarily adverse to detention areas being utilized for open space. In fact, we have recommended approval, and this body has approved it in the past, notably out off Leestown Road in the Sharkey development. However, we believe it's an important issue that ought to be considered with every plan. Large detention area, as I stated, there's a lot of easements on the property. They are proposing a clubhouse and a pool, So we know they are proposing an area of active, usable open space and recreation facilities. However, again, this site's got to meet a tree canopy requirement. It's got to meet a detention requirement, and it's got to have open space. Sometimes those things could be in conflict. Staff believes it's always important to evaluate those, make sure staff can accommodate those if necessary. So that's the reason for that condition. We'd like to make that very clear that it will be utilized as open space. And again, I'm sure when it's dry, it would be a pleasant place to play. When I was a young boy, I would have loved it best if it was full of water. So it may very well appeal at that time as well. But it's an issue we think is always worth visiting on sites. And then to address the condition or situation of Stedman Drive, and I think I can help Mr. Penn with an explanation of this, So again, Stedman Drive, you know, I left something up. Pardon me. Before I go to Stedman Drive, very quickly, let me point something out. I highlighted a plan that I forgot to mention. When I was talking about this reserve road serving the development, they are proposing to interdict it right here with a pavement change and a fire gate. I meant to point that out to you. They want to stop it right there. There will be a fire gate. They are proposing up here at this location to have an access point. So they are removing that direct ability for traffic to move through here. But in a little bit more of a convoluted fashion, there will be full access here. And I apologize, I meant to cover that earlier before I addressed Stedman. Stedman has been built. It is on the ground. It hasn't been finished. There was a final record plan approved by the Planning Commission for this property that did show Stedman to be public right-of-way. They haven't recorded that section. A previous section, the front section where the condominiums are, that section has been recorded. Subsequently, there's been a couple of minor plats that have reconfigured the property, created some easements, and that sort of thing. Staff is comfortable that it will be built and dedicated. We just wanted to keep that issue on the table because obviously overall connectivity and ability for traffic to move in this area and serve the neighborhood is important. It's currently in use. I mean, people that live there can use it. It's on the ground from Harrodsburg Road into this development. It's our understanding that the barrier was placed sometime in the 80s or 90s. Stedman was originally dedicated at that point in 1987. We're confident that barrier was put up as a safety measure so people wouldn't accidentally drive where there was no Stedman and drive down into this proposed development. As you're aware, it's down in a hole. There's quite a topography change there. We have talked with several other entities of the government, and it's our understanding that public works will remove that once Stedman is opened to the public. But we just wanted to keep that issue on the table and explain that situation to you. I'll be happy to answer any questions you may have. Yes, question for Mr. Penn. Tom, if the fire gate goes in and the only access they would have would be out where there's no light, if they came the other way that you just pointed out, does that get them back to old Higby Mir where there's a light? See what I'm saying? In other words, if you put the fire crash gate up. Yes, sir. If it goes here. All right. Now, and you said it came around the top. They could come around the top. Does that get them back out to Old Higby Mill Road? It can. It's convoluted, as you can see, through the parking lot. But it is a connection. Okay. Thank you. Other questions? Tom? Yes. Do you have one? Yes, Ms. Plumlee. So that is just, they're just one way out? There is this connection from Higby Mill to here where there will be a fire gate. They are proposing a connection here. There is a connection to Stedman. So we have a connection at Stedman, a connection at Higby. They will be removing this direct through, but again, they're offering this alternative here. Mr. Martin, question. In the same avenue, I understand the fire gate would be accessible by the fire department. However, police-wise, we've had discussions before as far as police in pursuit of someone, pedestrian or something, they can't get through that gate. I don't think they've got bolt cutters in all their cars. And it seems to me that would be an issue or a reason not to have a fire gate. It could very well be, yes, sir. That is a concern, obviously, the police department. Okay. All right, then. Any other questions for Mr. Mark? Thank you, sir. Thank you. Ask for the applicant at this time. Thank you, sir. Good afternoon, Mr. Simpson. Do you need a booklet? I'm sorry? Do you need a booklet? Yes. Mr. Cayley might bring you one back. Actually, I need for Roy to set up a development plan when he gets a chance. While he's doing that... I'll tell you what, one second. Mr. Cayley, we had a member arrive late, if you would provide him with one. Sorry, Mr. Simpson, go right ahead. Thank you. Thank you, Mr. Chairman. I'm Bruce Simpson on behalf of Anderson Tate Builders. Anders and Tate Builders have been in our community for 20 plus years building homes all around Lexington and Fayette County and outside of Lexington and Fayette County, and their reputation is outstanding. I'm sure you've probably heard about it. This is one of these cases where, at the end of the day, this body has an opportunity to live up to the principles, the urgings, the hours of discussions that have taken place in this chamber and before the Urban County Council in this chamber and all the neighborhood meetings around Fayette County since 2001. And that is, since 2001, and after a serious debate in 2007, that the message was loud and clear, we have enough land in the existing urban services boundary to develop. And we're not going to approve anymore because we have battles about development and it's easier to go outside the urban services area and get something developed because no one's out there when it's new and fresh. There's no existing neighborhoods. So this body has made a couple of decisions, including for the 2012 comprehensive plan, not to expand the urban services boundary. and by and large the community has bought into that. You know what? We've got a priority in this community in Fayette County, more so than any other county in the state of Kentucky, and that is the number one priority is to preserve our real landscape, and that's an accepted top priority value. What does that mean? Well, it means if you want to develop, you're going to have to be more creative. You're going to have to look at some flexibility. You're going to have to look at situations differently than you used to other than just what the color on the map recommends. And that gets us to this case. I have to note, though, in the previous application that you heard, the rezoning out on Leastown Road, the recommendation of the comprehensive plan for, since 2001 for that property, that you approved for the same request that we're asking for, or for, was professional office. It was in 2001 and 2007 for professional office. professional office around it, educational facilities around it. And yet there was an acceptance by the staff, well, we can put R4 in here because that was recommended in the 1996 comprehensive plan. They also used principles in the 2012 goals to justify their acceptance of an R4 zoning in the previous zone change that had been recommended for professional office in which only one unit on top of the professional office complex would have been allowed, and they asked for 84. And you made a good decision in that case because times are different. They're a lot different than they were in 2007, the economy for one thing. There's not as many houses being built. In four years, I know of one major residential subdivision that you all approved back in the summer for Adolph Todd's Road for 91 units. In four years, that's the only new residential construction single family that I'm aware of any significance in Fayette County. And it's not going to change that much. Lending has changed. The banking regulations have changed. And now you've got to come up with 20% down to buy a house. It's tough. And so what we're proposing today is to look at this opportunity to have affordable housing on land that has been designated for multifamily use, except what we're going to do is increase the density by 71 units over what the color on the map says. What was approved, I should say, in 2003. We're going to have 71 more units. We're going to put those in one fewer building that was approved in 2003. we're going to use the existing space more efficiently and have more increase in density on the same property with one fewer building. The other thing that's consistent is growing up and not out, saving the rural services area, increasing density. The other thing that you all have espoused and your predecessors have espoused for years and years is connectivity. Stedman Lane has been recommended to be connected up right here since the 70s. On every comprehensive plan since the 70s, Stedman Lane was recommended to be connected up to Harrisburg Road. Try driving out in Grasmere and Plantation sometime and try to find your way out. It's very confusing because there's limited access points. Limited access points. Now, the gentleman that got this approved and started developing the property, unfortunately got caught up in the recession in 2008, which certainly the 2007 comprehensive plan did not anticipate. Certainly did not do that. or they would have come up with a different plan. He went bankrupt. He developed all of this property as a condominium regime. The significance of that, as you will hear from Nathan Billings, who is the attorney for the Condominium Association, the units that are there now, the 60 units that are there, is that since 2008 and the recession, federal banking laws radically changed on what they will now provide a mortgage to. And the way our property is situated now under that regime, they can't get a secondary mortgage. You have to have a cash buyer for these people to be able to sell their house in order to sell their condominium. So for the past one year, the residents, the condominium association, Anderson Tate, and the bank which owns the property, a large part of the property, have been working in concert to come up with a proposal that would free the existing condominium owners of the restrictions of the federal banking laws by taking the property we're proposing to rezone out of their regime. and put them in a position where they can qualify for loans and sell their property to other people. Now, that's an economic change that certainly was anticipated in the Comprehensive Plan of 2007 to hammerlock this problem because of federal banking regulations and the ability to develop it. And we've come up with a proposal that will do that. So we do believe there's been a substantial change since 2007 on this particular property, since it's condominium, all of it. It wasn't anticipated, which has substantially altered the character of this particular property. Now, that's one justification. The other justification is we believe, as I indicated earlier, that when we have opportunities, as you just did in the previous application where you changed professional office land to R4 land, apartment land, which is exactly what we're seeking, R4 apartment land, to look at it and say, you know what, this is substantially in compliance with the comprehensive plan. Because for the first time since the 70s, Anderson Tate is going to open up Stedman Lane. They're going to build out the rest of Stedman Lane and connect Grasmere and Plantation to Harrodsburg Road in addition to serving our development. That won't happen without some developer coming in and doing the same thing we're requesting. Undoing this condominium regime, which is a complicated legal process, spending that much money, to undo all of that. The documents themselves are about this thick. They have to be amended and altered. It's a significant expense. To get all of that done, and then you're going to have Stedman Lane connected. and when I appeared in front of the zoning committee there seemed to be if I can accurately summarize the feedback that we obtained in the committee meeting was that at the time we went in there the fire gate was here and the only means of ingress and egress was Higby Mill for the people that lived in the condominium association and for the people that are going to live in the apartment land here, their access was only going to be out Harrisburg Road this way. And the zoning committee said, you know, I don't like that. I'm not so concerned about the density if there was connectivity. Now, let me share with you about why the association is concerned about having an interdiction right here. One of the reasons is this is a private road, which means the people that own the condominiums and the people that own the apartments will have to pay the future maintenance of that road. The problem is that people come out here on Higby Mill with the light. In the morning, it gets backed up. So what you see in the morning is people coming out Higby Mill and cutting through here. It's like a raceway. It's a straight shot over to Stedman. Even though it's not finished, dedicated, they're using it. And you'll get up in the mornings and you come out here and you'll see this stream of traffic going out this way. Well, they're not going to pay for the maintenance of that road. It's a private road. And so that was the reason to have a separation. These people owned their land, and they wanted to be able to control it and take care of this private road because they're the ones that are going to be using it. The zoning committee said, you know, the density, I would have less of a problem if you could provide some connectivity. And the suggestion was, and I don't know which member made it, but isn't there a way of going around the western edge of the property and coming in this way? Now this is 24 feet wide. This is the road that goes straight through now. Connectivity that we're proposing, and the staff has recommended approval of the development plan subject to the conditions, and one of the issues was about connectivity. We're going to come in through here, and it's 24 foot wide. It will deter the cut-through traffic, which is good, but it will allow free means of ingress and egress. And the other thing is, if somebody happens to find this way from Higby Mill, they're going to use it, and nobody's going to stop them. But it will help be a deterrent. But it will provide important connectivity with this revised plan that we have, so you have access to development from Higby Mill all the way through to Stedman Lane. exactly what the message that was sent to us from the zoning committee. I shared it with the Condominium Owners Association Council. They met. They understood the importance of having that connectivity. It is a balancing of the interest between the private property owners that are on that land and have to pay for that road and provide for the connectivity. Now, the fire gate and all of that is really a development plan issue that really ought to be deferred until after the zone change. Those are things that we talk about all the time. We've had fire gates come up constantly in a number of different situations. And the fire department comes in and weighs it. The gentleman from the fire department said, you know, if you put a lock on there with bolt cutters, we've got no problem. But if there's other police needs to weigh in on it, that's a development plan. And that after zoning is when we talk about those things. So at the end of the day, we're talking about the opportunity to add 71 buildings, 71 units, 71 units on 12 acres in one fewer building. We're going to have less square footage than what was originally planned in 2003. You're going to allow the condo owners, for the first time in four years, to be able to sell their units to somebody other than a cash buyer. We're going to have connectivity from Higbee Mill to Stedman, and for the first time in more than 40 years, the comp plan is finally going to be adhered to because we're going to open up Stedman Lane to Harrodsburg Road, and we're paying for all of it. the other thing you'll find in Stedman Lane right area in the middle of the reserve road that's there now there's manhole covers that are sticking up and I'll just pass the photos around which are a safety hazard the developer went bankrupt he couldn't put the finishing grade on there finishing blacktop so now you got manhole covers sticking up in the middle of the road and you got people cutting through that are hitting there and when it hits snow and ice you got problems We believe, on balance, considering all the provisions of the comprehensive plan that I have outlined in my handout, the goals that will be furthered of a creative infill, of increasing density in compatible locations, are met. This is an opportunity, I believe, which the 2007 comprehensive plan talks about. The 2012 comprehensive plan, once adopted, and the goals and objectives that Tracy used in the last application are going to even encourage more creative use, balancing the interest, coming up with a way to increase density than what we ever have in the past. Ironically, the one you approved last time for residential apartments, I represented the neighborhood when they tried to put apartments on that property out in Metathorpe, and we fought it. And they said, you know what, I don't want to go through this fight. So they went with what was more acceptable to the neighbors, which was professional office. We know the battles that we have about apartment land. And so they went with apartment. They went with professional office. Now, times have changed. and increasing density has become a good thing. Now, it's still stressful for the people that live next to it, but in this instance, the people that live closest to it, the condominium owners, are here to say to you, please approve this. We want this. And I'm going to ask Nathan Billings to come up. He's the attorney representing the Condominium Owners Association to share with you their non-opposition to this application and endorsement of approving this for reasons that are important to them. Nathan? Good afternoon, Commission members. My name is Nathan Billings. I'm a principal with Billings Law Firm here in Lexington, and I'm here to represent the Palomar Reserve Council of Co-owners, which is the condominium association. We have two of the board members today. Mike Mason is the president, and Bob Dave is also a board member. They may speak here in a minute. Bruce sort of stole my thunder because I wanted to introduce myself as the representative of the homeowners, and as you all are used to, usually the homeowners come up and object to things like increased density. Today is not that day. I'm here to gladly say to each of you that the Palomar Reserve Council of Co-owners has worked with Anderson Tate for about nine months on this proposed development plan and zone change. And at a vote last Thursday, a quorum was present, and 78% voted to approve it. The other 22% wasn't that they didn't vote against it. They weren't present at the meeting. Essentially, everyone who showed up voted in favor except for one person. The reason for that is a couple of fold. Bruce has explained in some detail some of the problems associated with this development. Generally, I would say you probably aren't concerned too much about things like owner financing, the status of someone's ability to sell their house, what the project looks like, top coating on asphalt. Generally, I would say you're probably right that that's sort of a nuanced level that the commission just normally doesn't need to deal with. There's exceptions, and I think this is one of them. People have approached the maps a couple of times. Specifically for context, there are currently five buildings on the south end of the development and a sixth building at the north end of the development. Why there's a separation there, I can't tell you. It's not logical. It doesn't make sense. All I can tell you is it is. The five buildings down here are of a certain construction, architectural detailing, brick facades, garages. The building up here is vinyl-clad exterior, no garages and all exterior parking, exterior hallways. Completely different project. If you go by and look at it today, you wouldn't even know that it's a related condominium regime. Again, why, I don't know. All I can say is the prior developer did that. The problem is the current owners here, there's 72 units between these six buildings. There's 12 at the north end, and there's 60 in the south end. As you can see from the size of this development, there's a significant acreage that's in the condominium regime. Of the 72 units, approximately 30 of them are owned by investors, by banks, or by non-owner-occupied. What that means is that approximately half of the people who live out there are actually the owners, and approximately half aren't. It's very important in the financing industry today for this reason. Fannie Mae and Freddie Mac, HUD, and the VA guidelines were changed in August of 2012. And their rules say essentially two things. Number one, developments that have 50% less owner-occupied units are not eligible for federally backed financing generally. The second is that developments must be completed to be eligible for those financing projects or to be slated to be completed. Because this development is not completed, any owner out there today who wants to sell a unit has a significant burden to overcome. It limits their marketability of their unit to pretty much two types of buyers. One, cash buyers who are usually what? Investors who are going to use it for rental property. Or two, people who can go to a local bank and get it loaned that won't be sold on the secondary market. Essentially, that means this. Any owner who's out there today, the vast majority of which are retirees, has no option to sell their unit for a market rate because somebody can't get financing. And instead, if they want to sell their unit, the price is going to be below market because that's the only people who are going to pay that money. You all hear month after month developments where the neighbors oppose what a developer wants to do. And I dare say that's probably 60% to 75% of the time. What I don't see a lot of is where a developer comes and meets with the homeowners at the outset of a project and starts to deal with them and work with them, begin a discussion and a dialogue to facilitate a plan that will be good for the existing neighbors and be mutually beneficial to the developer. That's rare. That happened in this case. And I think Anderson Tate needs to hear the credit for doing that because the result of those multi-month discussions has resulted in a development plan you see here, a request for density, and other mutual agreements between the Homeowners Association and Anderson Tate to have essentially what will become two separate developments if the zoning is changed so that the condominium regime will have four different developments. five buildings that you see on the south end of 60 units. They will not have the cost of carrying for those other 12 acres on the north side to be split on the 60 people, and that will be shifted to the apartment complex. The apartment complex will have a fewer number of buildings than was intended, and they worked closely with the homeowners to talk about the number of units and number of buildings. The final point that has gotten a lot of discussion so far that I think is very, very critical to this is the connectivity question. I mentioned earlier a lot of these units are occupied by retirees or elderly people. This is a private road that does not have a final top coat but will need not only to be asphalted but to be maintained by the owners of these units, not the city, by the owners of these units in the future. If you go out there, not just in the mornings, almost any time, you will routinely see people speeding down this section of road to avoid the stoplight at speeds of excess of 30 and 40 miles an hour. While connectivity may be important, safety and security of the people who live in these two private developments is more important because connectivity is provided for by that western end bypass. In conclusion, I'd like to submit to the Commission that the zone change, although not in specific compliance with the comp plan, accomplishes goals that are broader than what the comp plan intended when it was approved a couple of years ago. For that reason, on behalf of the Palomar Reserve Council of Co-owners, we would ask that you all would approve both the zone change and the revised development plan. Thank you, Mr. Chairman. Thank you, Mr. Billings. Any questions for Mr. Simpson or Mr. Billings from the Commission? Mr. Penn? I guess my question is directed to Mr. Billings. Yes, Mr. Penn. You're telling me that the Condell Association is okay with 372 bedrooms coming through their parking lot to get the connectivity? I'm telling you that in an ideal world, there would be no connectivity between them. but in a realistic world that if connectivity is needed for the owners to be able to have a development that's finished out for them to obtain financing and to have a completed development in the future, yes. Is it a safety issue? If the eastern end remains open, there is a safety issue. If they go through the parking lot, if it's mostly retired people, if they go through the parking lot, that many people, is that a safety issue? When you say parking lot, I want to make sure that we talk. If they're cutting through here, I believe that's a safety issue because that's a straight shot. Every one of us knows the reality of a straight shot. If someone has to come from here down, come back up here, across, come back down, across, and come back up, perhaps people will still do that, but that's not quicker than waiting on the light then. I mean, I'm sure there's going to be somebody there, but the safety difference between them, to me, is abundantly clear that by providing the barrier to a straight shot is a significant hurdle for people who just want it to end around the red light. The other thing is that once Stedman Drive is opened up here, the residents can also, from both developments, can exit out through the neighborhood to hit Man of War. There's another light on the north side there. Thank you. Any other questions from commission members? Mr. Brewer? You said some numbers about the meeting that you hosted. Can you run through those again and tell me how many, you said 28% or something did not vote? Sure. Let me call Mr. Mason up, who's the president. He can tell you exact numbers of the percentage who were at the meeting and the percentage that were approved. And the percentage of owners instead of just renters? He can speak. I believe it's 30 investor-owned units out of the 72 currently. Mike, do you want to come up? Please come forward and state your name. Hi. Good afternoon. I'm Mike Mason. I'm president of the Palomar Reserve Council of Co-owners. Thank you for hearing me out today. To answer your question, 72 units, approximately 30, I think maybe a few more, because we don't track it exactly for single owners, are investor-owned. At a meeting of all the owners, 80% were represented either by proxy or in person, And of the overall owners, 78.8% voted in favor of the increased density because we all make choices. We make choices to retain our investments, to protect our investments, to improve our community. I bought into Palomar Reserve in 2006. It's still a beautiful place to live, but we're not going to be able to sustain it unless we can finish our asphalt, unless we can obtain secondary market financing. So we're really making, and I've talked to probably most of the owners personally, way before this meeting, before we took a vote, to take everybody's pulse to explain what the changes would be, the good, the bad, and the indifferent. And not everybody agrees, but the vast majority do agree that this is the way to save our community. I do ask you, please, approve this zoning change. Thank you, Mr. Mason. Sir, I'm still confused on that. One second. So there's 72 units. 72 units. 30 are investors, so 42. Plus fraction, right. Yeah. Okay. And how many came to this meeting? 80% of the owners were either attended in person or by proxy. Of that 80%, 78 approved. No. 78% of the overall. Okay, 78% of the overall. Oh, yeah, the overall owners. Right. Yeah. but only 80% of the owners were represented at the meeting. That's correct. So 20% of the owners didn't show up at the meeting to say one way or the other. Okay. 80% showed up at the meeting. 80% of all the owners showed up at the meeting. And 78% of all the owners, or essentially 94.5% of everybody at the meeting, voted yes. There was one nay out of all of the owners that showed up, which were... High loss track. Yeah, I don't know how many exactly numbers. I guess it was probably about 60-something. Okay. I can see why I'm confused. Yeah, I know. It's because we have to deal with percentages of square feet, so I guess you probably want straight numbers. Here's the bottom line. Everybody who attended the meeting voted in favor of it except for one. Well, I guess what I'm – maybe I'll cut to the chase. What I'm trying to figure out is how many of these votes are people who are looking at it from a mortgage standpoint from Arizona or wherever they live and how many people are living there voting for it with a whole bunch of new people driving through their parking lot? The vast majority of the votes are owners who actually reside there. Most of the time when people don't vote by proxy or show up at a meeting, it's because they're out-of-towners, they don't know what's well enough, or they aren't involved in the community to consider decisions that we make. They don't vote at general elections. They just own and collect rent. Thank you. Thank you. Any other questions at this point? Yes, Mr. Cravens. Yeah, I guess this is for Bruce. Is this shovel ready, this project? I mean, are these developers financially able to complete it? They're ready. Yes, sir. They haven't spent nine months on legal fees not to be ready to go forward. Once the zone change is in effect and plan's approved, they're going to start. Will they build it all at once? I'll let them. You guys want to come up and explain your plan on constructing all this? Can you please? Introduce yourself and your address. I'm Brian Anderson from 2233 Guilford Lane in Lexington. And I'm David Tate. We really weren't expecting to talk today. How ready is this? Just appropriately. But we've got financing approved already and in line. And as Bruce said, it's not only the attorneys but the engineer fees that we've also incurred to date. So, yes, we're ready to start and plan on starting with two pads initially and continuing on through. Okay. Thank you. Anything else, Mr. Cravens? No. Okay, thank you, sir. Let me ask if there's anyone else in the audience who wished to speak on this. Yes, let me ask without being repetitive. We're willing to listen, but we don't need to hear the same thing over and over again. So if you have something to add, please come forward. I'm Ray Waits. I live at 2200 Old Higby Mill Road. And I've watched this thing all my life and many years before. Higby was my cousin. So therefore, we've owned this land across the road and sold some of this to this. We were approached at the beginning and sold a plan of density that we felt like was adequate. I went along with the planning commission here, too, and they got their series at a reasonable price out of there because they didn't have a right to come across me at that time. So I went along with that. Now we saw what has happened. It didn't develop quite the way we wanted it to. Also, the new road that was put in front of my house isn't quite right because of the amount of people that are now using that road. They're planning on putting more people in my boat. It's all of our roads. But it needed a turn lane toward Lexington off of old Higby Mill because the center lane goes across. And if you're going across the Ramses or the church or anything like that, you back that traffic up way on down our road and make it very difficult to turn toward Lexington. If it stopped, turn right on red. Now, they keep talking about the 1,600 feet on up the road, which I'll have mentioned that today. But that was all when this road was all being planned many, many years ago, many years ago, which I was in on some of that stuff. Why don't they go ahead and put them a stoplight up there at the other? If they are going through the development on the private road at a high rate of speed, give them a traffic light up there at Stedman, where it is numerous accidents occurring because people are pulling right smack out of there in that run to Manowar from O'Higby Mill. Well, these are kind of things I'm not going to, I hate to see my street lined with for sale signs, which is what it is right now. $99,000. Those people paid a lot more money for that property than $99,000. But I don't want to live there neither. But the catcher is if we could restrict or take away the love of going through the subdivision at the high rate, lower the speed limit as, you know, back to what it's supposed to be, because all of those houses that are there now, you back out right into the street because it wasn't supposed to be a through street. You back right out of your garage, and man, if somebody's cutting through, give them a light up there at Stidman. When it's finished, have us traffic light there. Don't get us killed up there before we get a body count to justify that. Tell the developers, put the light up there. We also need, and I don't think we can make them do it because I think it's part of the state property, We need a right turn lane desperately, desperately off of Old Higby Mill Road so that we can blend in and go on up the road and alleviate some of the backup because most people coming either out of the south side of this or the north side of that subdivision are going to Lexington to work. Very few of them are heading the other way. But there's some of us that can't hardly get out there at certain hours of the morning, especially on Sunday. That's basically all. I wish them the best of luck with their financing. But I hope most commonly do that. Thank you, Mr. Wade. So where do you live, Mr. Wright? I live right across the street from it. On Old Higby Mill or where? Higby Mill. On Old Higby Mill. There's three homes right there. Is it on the map or the general area? Let's see. Right there is the first of the house, second and third. I live in the third house. And I can see it. Thank you, sir. it makes it very difficult to leave and go to town. Thank you, sir. Others? Yes, sir. Thank you, Mr. Chairman, members of the Commission. Planning Commission, I gather, is here. I own a condo there. I've lived there four years. It's 4205 Reserve Road, second floor 201. And I understand there are going to be 377 parking places all on the street. I'm sorry, sir, your name? Risto-Martinen. Okay, thank you. There are going to be 377 parking places on the street because they have no garages in these buildings that are projected. So it's going to be one of the biggest parking lots in the southern part of our city. Let that be considered. Secondly, I wonder if the Planning Commission should have brought a contour map to show what type of land this is. we have a hillside here may I point it out take the microphone with you take the microphone there's a hillside right here there's a quarry right there I live right there and there's a quarry right here that shows this is solid limestone a hillside here which will have to be removed before any of these buildings can be put in you're going to have hundreds of truckloads of limestone to be removed from there. I'm sure the Planning Commission is aware of that. These are my good friends and fellow owners here, two of them, but since we're a democracy, I'm the one who voted against. Okay. Thank you, sir. Any others that would like to speak? One more. Hold on, Mr. Simpson. Ladies and gentlemen of the commission, I'm Robert Nave. I live at 4205 Reserve Road, number 203. I've been there for five years now. I really love it there. We've had problems with this property in the back of us, about overgrowth and stuff in this previous, about two years ago and beyond that. But here lately they've been really taking care of it. But I've seen illegal dumping going on on that property. I've seen, like they said, speeders coming down through there, avoiding the stoplights. There's a few children that live in our complex, and it's really dangerous. You know, some of them walked up to Higby Mill Road in the morning to catch the bus. and, you know, if these people are not aware sometimes, you know, these children are stepping out. So I think that the fire gate is really needed if this is approved because I was a city firefighter for over 20 years, and I've seen instances like this before where they had to lock a gate there, you know, to keep traffic from coming through like that. and the fire department, we had classes on this during our regular shift to know where these addresses are and it's logged in a book, you know, when you make a run that they're aware of these cases, which way to go in, which is the best way to respond to that address. And I really feel like that, you know, to improve this property and everything for us, that just needs to be approved. Thank you. Thank you, sir. Any questions? Any questions from the Commission at this point? No? Seeing none. Thank you, sir. Anyone else that would like to speak in regards to this plan? Seeing none, we'll try and move on to the rebuttal stage at this point. Mr. Simpson, I'm sure that's why you're standing there. Well, Mr. Chairman, partly rebuttal, although there was, and I appreciate the gentleman that lives in a condominium association who was the lone dissenter coming up and speaking his mind. Mr. Waits expressed concern about the traffic situation, which has existed for a lengthy period of time, on Higby Mill Road, but conspicuous by their absence in typical requests for apartment zonings is a room full of people. They aren't here. And so I think that's significant of their appreciation, understanding, and acceptance of the nature of this property and what's being proposed that we don't have a lot of opposition. The other part of this is that I do believe this is in compliance with the comprehensive plan. For way too long, however, it seems that in terms of land use recommendations, we get stuck to whatever that color is on this map. It's yellow, light brown, dark brown, or whatever. And yet, in some cases, as you did in the case before ours, the color recommendation was blue for professional office, but you changed it an hour and a half ago to dark brown. That's what the next recommendation of the comprehensive plan will be in 2012, which will be for our four apartments, which is what we're seeking. And so there are instances where the color on the map doesn't control, and I believe this is one. And in the information that I've provided for you under tab 1 on page 229 of the comprehensive plan, when it talks about interpretation of the land use map and categories, I've highlighted for you the critical language, which I believe gives you guidance and pause for approving this based upon all the reasons that we've set forth. And the first is that plan interpretation should take into consideration the following outcomes. Support increased residential density in a manner complementary to and compatible with the existing nearby development. We have that here. Serve to create a cohesive urban form. We'll finish out the urban form that was started five years ago. Promote environmental responsibility and sustainability. As we get into the development of this and the development plan where it gets more scrutiny in terms of the detention, that will happen. ensure timely provision and or upgrade of community infrastructure. You're going to have a completed road, a reserve road, will finally hit that final coat of asphalt and the final coat of Stedman Lane, an important connection to Grasmere and Plantation. That infrastructure with this zone change will come about. Mr. Simpson, could I interrupt you just for one second? Not to cut you off, rebuttal as opposed to just reinforcing and reiterating your presentation? Well, I actually hadn't finished my presentation. Okay. And I just have two more points to make. Thank you, sir. Promote development that links rather than isolates the community and the neighborhood, Stedman Lane and Reserve Road, with the connectivity we're proposing. And to address Mr. Penn's question, by and large, most of the people that live in the apartment complex are going to be making a right-hand turn out of Stedman Lane onto US 68 and go into work that way. Those that have to make a left-hand turn and want to use the signal can either use Stedman Lane and make a left-hand turn, or they can come through a 24-foot wide road through the parking lot in those instances, few instances in terms of percentage of people that make the left-hand turn, and get out to the light. Now, with increased density comes more traffic. I mean, that's the reality that we're going to face, and you are going to face time and time again. But with the important connections we have, we believe we've complied with all of these guidelines. This is not a residential zone change, a land that's been recommended for residential to turn into professional office or to turn into commercial. We're just taking advantage of an opportunity to increase density, which we have urged, particularly in the last five years. based upon all the provisions weighing out and balancing the interest, the connection from Higby Mill to Stedman Lane, the finishing up of Stedman Lane, compatible increase in density that is supported by the vast majority of people. You get 80% vote, nearly 80% vote of people to support apartment zone change. In my judgment and experience, that's unprecedented in this chamber, and we ask for your proof. Thank you. Thank you, sir. Staff have any sort of rebuttal? since I'm your head over there. Thank you. First off, I would just like to say that I believe Mr. Simpson mischaracterized the staff's recommendation earlier today on the site that has a much different history and a much different character and area of our community. and it's not really pertinent to this decision. Secondly, Stedman Drive or Stedman Lane is not really the issue in terms of connectivity. It's going to have to be connected whether this rezoning occurs or not. What is at issue is the connectivity of Reserve Road. The connectivity issue can be deferred to a final development plan as the Planning Commission chooses and has chosen in the past. But in this case, the staff can't support the additional density when the applicant won't provide what we believe would be more appropriate connectivity. And lastly, the staff, I believe, is sympathetic to the situation that the current owners are in in the condo regime. However, we believe that the condo regime can still be, the condo regime can remove itself from this property if it chooses to with the bank's cooperation, and still the development can be constructed as the staff suggests, that is, with the connection along Reserve Road or without the extra residential units. And we are recommending disapproval unless they can show that the connection is appropriate. Thank you, Ms. Wright. Thank you. Before I close the hearing, any questions from the Commission? Yes, yes. Ms. Plumley? What is the final count on a number of units? we're requesting it's actually 71 more than what we could build under the existing zoning and there's 12 units right now that are just going to be part of our mix it's 182 total, there's 12 already there so it's 170 that's the actual request from the entire development plan that's set out there. There'd be 248 units. That includes the six townhouses that were built, all of the apartments, and the duplex. So 248 units that would be on that development plan. Yes. I have a question for Mr. Simpson. As you know, we're required statutorily to find that either the plan is and the proposed rezoning is in compliance with the comprehensive plan or that the existing zoning is inappropriate. The existing zoning does allow for group housing, you know, according to this plan. Can you explain to me why you believe the existing zoning is inappropriate? We haven't. There's actually, as you know, three different tests. The first is, is it in compliance with the comprehensive plan? If it's not, there's two other options. We believe, number one, based on the goals and objectives that you all believed applied in the previous zone change, that those same goals and objectives apply in this zone change. And the policy interpretations that I set forth in this handbook that I just finished reading and giving guidance to the land use recommendations are also supportive of this application. We haven't contended in our application that the existing zoning is inappropriate and the proposed zoning is appropriate. I am suggesting, however, that the third element, that there have been significant economic changes in the area of this particular property that have taken place since the comprehensive plan was adopted, since the recession hit in 2008, The comp plan was adopted in 2007. It put this entire parcel in a condominium regime that's locked it up in terms of development, and we're proposing to take that out of the process with this rezoning. And so that third element, that those changes have taken place, which we believe justify approval on that element of KRS-100-213. And to clarify one question, too, Stedman Lane is not going to be finished if these people don't do it. The bank owns it. They're not going to finish out the development. It'll sit there, and it won't be finished, and the coats won't be finished on the Reserve Road or Stedman Lane. And that gate that's been on Stedman Lane since the 70s will continue to be there. Any other questions before we close this? Mr. Simpson, I would have one question, not to get the cart before the horse. You did mention during your presentation that the connectivity on Reserve Road was more of a final development plan issue. If we get to that point, are you okay with adding a condition to resolve that at the final development plan? I think whether I agree to it or not, that's something that just comes about. I mean, as far as the zoning action on this plan, and I want to be candid because it's taken us nine months to get to this point with the neighborhood, and that's important to them. But they understand that in a zone change, the connectivity issues is something that has to be resolved at the final development plan. So while we will remain firm in our support of the proposed development plan, which is preliminary, obviously, we recognize that's not a condition of the zone change, nor is it subject to rezoning the property. I realize that as far as zoning. Ms. Beatty? Mr. Chair, I don't know if this question is premature to the zoning change, change. But I had a question on whether traffic or staff could give us some information on what they see with the traffic piece, if there are any plans, are there alternatives. Is that question appropriate now, or should we wait until we get to the development plan? We're just focused on the zoning, I know. Well, we are focused on the zoning, but the zoning development plan is a part of this. Tracy, can you answer that? I don't believe traffic engineering is represented today, but the zoning committee did speak to, in reviewing the zone change and the development plan, what other options were available, and things that were mentioned were like speed bumps, even though Reserve Road was open, rather than, and then one thing that was mentioned was having the convoluted connection, but closing Reserve Road. So I think there are other options. And certainly if Old Higbee Mill and Harrodsburg Road intersection isn't working, then I would assume that traffic engineering could take a look at that intersection and try to make some improvements to it as well, as well as Stedman Drive where it connects to Harrodsburg Road. There may be a possibility of a street light there or traffic signal, but again, that would be up to traffic engineering, and it would be based on whether it met the warrants for a signal. Okay, and then one follow-up question while Tracy is still there. Did I hear you say earlier that 99 units could be built without a zone change? Yes. That is correct? The whole property that was rezoned includes, in the far corner, six townhouse units that were built, the five buildings that are existing in the condo regime there, and then one building to the north end of the property. And there was a restriction that limited to 177 units. So they've built 72 apartments and six townhouses for 78 units, which leaves 99 still available to meet the conditional zoning restrictions. Okay. Thank you. Ms. Phillips? That's what I was going to ask is without a rezoning, we're talking about a maximum density of 170 units, 177, whatever that number is. But with the rezoning, we were able to capture how many more units? 71. 71. Thank you. Any other questions? If not, I'm going to close this part of the hearing and open it up for discussion among the commission members and a motion when everyone is ready. Thank you. Yeah, that's right. Discussion? No? Yes? Otherwise, I think we're ready for a motion. I don't know what to do here. Ms. Phillips? Mr. Chair, if the Commission's ready, I'm ready to make a motion. Yes. Mr. Chairman, I'd recommend that we rezone MAR 2012-16 from R3 to R4. And I'm going to – should I read these? Yes. Okay. Because of the following findings of fact. Approval of the applicant's rezoning request will help fulfill several goals and objectives of the 2007 comprehensive plan, as well as many of the land-use policies set out in the plan. In particular, the following goals of the 2007 comprehensive plan will be furthered, that the proposed increase in density will be compatible with the existing condominium project to the south, and these units will be located in one less building than when the 2007, excuse me, 2003 zone change was approved for the entire parcel. The increase in connectivity to Harrisburg Road will facilitate ingress and egress for those additional units, as well as the single-family homes to the east. The application is consistent with goal number eight, which encourages creating strategies to enable and encourage appropriate infill and redevelopment of established developments in neighborhoods. The application is consistent with goal number 15, which is to preserve, protect, and enhance the character and quality of existing neighborhoods. And the application is in substantial compliance with the 2007 comprehensive plan because it supports increased residential density in a manner complementary to and compatible with existing nearby development. Thank you. The motion has been made, recommended and approved of ZDP 2012-94. Do I have a second? Second. The motion has been made and seconded. If there is no further discussion, I will ask you to vote when it comes up on the screen. The motion passes. Next would be the ZDP 2012-94. We do have revisions on a blue sheet. Before we get to a motion, if the commission is willing, I would offer that an additional condition be included to resolve connectivity for reserve road at the time of panel development plan. But any discussion and or motion is welcome. Mr. Penn, question, motion? No question. Yes, sir. I voted for the zone change because I think it's in the best interest of the community to do it. What I'm really concerned about in the development plan is that the connectivity, I just think if you increase the density that much, that needs to be looked at again, especially if the crash gate is going to be the option. And I think we've got to look very strongly at that. But I'll defer that to the final development plan. But I do want the Commission and the applicant to realize that though we're going to increase the density, we're really not sure how that's going to work. And so we do want to have connectivity, and we do want to have safe connectivity. So I guess that's more of a statement than is a question, but it's a question in my mind how they can do it is what I'm saying to you. Thank you. Any other discussion? I would agree with what Mr. Penn said. A lot was said as far as the speed of the traffic going down Reserve Road and with 70% of it being vacant right now. I think that does add to the speed, and I think traffic-common devices could be included as well. But I think the discussion at that time, discussion, final development plan, serious discussion can resolve the issue. Ms. Phillips? I was just going to suggest amending condition number 14 to say resolve methods of connection of reserve road at the time of final development plan. It's your motion. I haven't made a motion yet. Well, thank you. All righty, then. I would move that we approve ZDP 2012-94 with the 13 conditions provided by staff, with the 14th condition reading resolved methods of connection of reserve road at the time of final development plan. Second. Motion has been made and seconded for approval of ZDP 2012-94 with now 14 conditions. please vote when it comes up on your screen. Motion passes. Thank you, folks. I think we will take just like a five-minute recess before we move on to our next application. Thank you. guitar solo guitar solo guitar solo guitar solo Thank you. guitar solo Thank you. Arrange everything there and we'll get started. This is MAR 2012-17, the request for a ND1 overlay. Good afternoon, Chairman Owens, members of the Commission. Our next item appears on today's agenda at the top of page 3 and continues to page 4. It's behind tab 4 in your notebooks. I do have a few things to distribute to the Commission before we get started. One is a letter from the Neighborhood Association, and I believe we've given you each a copy of that. Yes, ma'am. This is a clarification that they're requesting based on a conversation we had in Zoning Committee. And then the two other items are from members of the public that they wanted them to be circulated. So I'll start with Mr. Brewer. This is MAR 2012-17, which was initiated by the Planning Commission in July of 2012. It's a request by the Colony Neighborhood Association, and they had requested that the Planning Commission act as the applicant for their neighborhood as they seek ND1 zoning, that is neighborhood character design overlay zoning. The Old Colony neighborhood is comprised of 72 individual parcels and just over 50 acres of property. And it is located on the south side of Versailles Road, just to the east of New Circle Road. The entrance for the colony is Colonial Drive. And on our larger map here. It is much a loop system that goes through the old colony, and then there's a newer part of the colony that was added later that is not included with this request that also has a loop system just to the west. It's a continuation of John Alden Lane. It loops around, and they share the same access point, Umber Sales Road, with the old colony. Also nearby would be Parker's Mill Road. The subject area is completely zoned single-family residential, but it is divided into two different single-family residential zones. A majority is R1A, which is our least-dense single-family residential zone, And then there are four parcels on Colonial, where it intersects with Standish, that are R1B, which is our second densest single-family zone. The surrounding zoning for this area is also all single-family residential of varying densities. There's R1C to the north on the other side of Versailles Road. And then bounding the subject area is either R1A or R1B. The colony, an aerial view, is an area that was developed in the 1940s, 50s, and 60s. It was platted in four units. One of the units is the new colony, which isn't included here on John Alden, but the rest is, for the most part, part of this request. It is Unit 1 and 2, and then a portion of Unit 3, those four units on Colonial Drive. The homes are mostly, actually they're a combination of mid-century modern, classic ranch, and traditional colonial style architecture. But the distinguishing character of this area is that they're large lots, mostly between a half acre and an acre in size. and their mature trees and then the pockets of green space that provide for an open feel in the neighborhood. The Old Colony Neighborhood Association requested that the Planning Commission initiate this in July in order to maintain the distinguishing features and style and character of their neighborhood. they do have the Article 29 as a guide in terms of proposing a study for this area and one of the requirements of Article 29 is that they meet, the neighborhood meet one of the overlay district designation criteria in this case criteria 7 is applicable the way it reads in the ordinance it can be for a commercial area or an agricultural area as well but in this case it is that the character of this neighborhood is an established area with a geographically definable basically area, and it's united by culture, not really architectural style in this case, but by physical plan or development. And the neighborhood, again, has to meet one of the seven criteria. In this case it was criteria number seven. The neighborhood was planned and platted with a consistent design for low-density residential development at the time, and it was the edge of Lexington. The neighborhood set forth some preservation goals in terms of preserving the open space in the front and behind the residences, and then secondly, preventing the overdevelopment of individual lots beyond what was historically the building pattern in the neighborhood. But they did want to also allow some reasonable expansion on lots. With that, they went through a four-year process to filter through what ND1 standards might be applicable to their neighborhood. They did find that the underlying zoning, the R1A zoning, does limit quite a few things in terms of the density, how much square footage is required per lot, and that really gave them some ease. but there were still a few things that they were concerned about in terms of maintaining the neighborhood, and they came up with three design standards. First, one deals with accessory structures, the second with fencing, and the third with floor area ratio. Design standard number one reads that one new accessory structure not exceeding a maximum of 180 square feet with a 12-foot maximum roof height limitation shall be permitted to be located and constructed in the rear yard area of each home. This restriction is primarily to address restricting garages or carports because they are not in existence for the most part in the neighborhood. the staff in reviewing the neighborhood's information and then also doing some site visits found that there were six existing structures that exceeded the 180 square footage based on our estimate using the tools we have in our office. Two of them were what appeared to be detached garages in the back. These two photos, one's a storage shed, I believe, and the other is a garage. But these structures are in the rear yards, so that would still be met. So at this point, six properties have structures that exceed the limit proposed by the neighborhood, which is a little over 8% of the properties. You can see those. The second design standard has to do with front yard fencing. Oh, actually, before we go on, design standard number one there also had a note. The staff would suggest deleting the note information. It was initiated by the Planning Commission, but the information contained in the note is really a duplication of what's already in our zoning ordinance in terms of nonconformities. And there also is some language about improvements should be in the same general character of existing structures. And the staff would just note that that's not something that the Division of Planning can determine in our office to say whether it's in compliance or not. So it's not something that really should be part of the design standard. Let's get back forward to design standard number two would read, no new front yard fencing shall be permitted, with the exception of those homes fronting on Versailles Road. All of the homes that do have either front yards or side yards along Versailles Road have fencing there, and that is acceptable to the Neighborhood Association. However, what they're really aiming for is an open feel and to reinforce the existing state of the neighborhood. Other than the fencing on Versailles Road, there is just one property that has a front yard fence, So that one would become nonconforming, grandfathered in, actually, and that represents just 1.5% of the properties. And again, on that one, the design notes or the notes included by the Neighborhood Association really aren't applicable and should be deleted as we move forward. The last request that the neighborhood had for design standard is for a maximum floor area ratio be established for the neighborhood at 25%. And the neighborhood, once we met with them and the Home Builders Association, it was determined that the data they submitted to the staff for review was really lock coverage information. And they intended it to be a lock coverage regulation, not a floor area ratio. regulation so the staff would suggest alternative language and that design standard to correct that still a 25% lot coverage limit would be proposed by the neighborhood and that percentage actually gives all of the properties in the neighborhood adequate room to expand the average lot coverage in the neighborhood is 10% and the maximum is 18%. So that does give expansion opportunities for all of the properties. The staff makes a conscious effort to document where the non-conformities are so that in the future we do know where those are. The existing non-conforming accessory structures are shown here with the purple color and the non-conforming fence is shown on the blue lot there at the intersection of Standish and John Alden. The 2007 comprehensive plan does recommend in terms of land use, low density residential for the neighborhood, which is consistent with its existing zoning. But in addition, and more pertinent to this request, is the ND1 question, and that is addressed with the 2007 comprehensive plan as well as the 2012 goals and objectives. And first, there's one overriding theme of the 2007 comprehensive plan, which deals with preserving, protecting, and maintaining neighborhoods in a manner that ensures stability and the highest quality of life for all residents. and recommends the goals and objectives recommend further that neighborhood protection overlay zoning provisions be implemented for establishing stability in neighborhoods, especially older neighborhoods, which is goal 15 and objective I. There are several other goals and objectives that recommend greater neighborhood protection efforts, and therefore the staff believe that follows the ND1 in the old colony is in agreement with the comprehensive plans, goals, and objectives, and they're providing the specific standards to help maintain that existing character. In terms of the 2012 comprehensive plan, theme A3A also encourages well-designed neighborhoods by enabling existing neighborhoods to flourish through expanded opportunities for neighborhood character preservation, among other initiatives. Before I get to the conclusions, the staff report does mention that there is one structure or one house within the neighborhood, the Hal Price Headly House, located at 1236 Standish Way, which is listed on the National Register of Historic Places as a single property landmark. And Article 29 of the zoning ordinance prohibits the inclusion of a historic district in an ND1 overlay zone since this house and lot are not technically part of a larger district the staff believes that the property should remain part of the ND1 overlay boundary primarily because the intent of the language is for there to be less regulations that really overlap we don't want to have conflicting regulations basically that overlapped but in this instance these proposed standards don't deal with the character of the house or physical changes to the house itself they have to do with the size of an accessory structure or a fence and don't really conflict conflict with the National Register requirements so the staff is recommending approval of the alternative design standards and I'm going to direct you to your notebook for the staff report and there is a supplemental staff report which is in response to the neighborhood associations letter so behind tab four in your notebook should be our standard staff report and then there should be a separate one page brown staff report as well that changes the design standards for number two so the staff is recommending approval of the alternate design standards including what's on the supplemental report and that particular change is to address a question that was brought up at our zoning committee the neighborhood was asked about retaining walls and whether they had considered whether retaining walls would be permitted and not just consider fences and they actually said they had not considered that fully so they met and agreed that retaining walls should be addressed and their proposed language is what you see on the brown sheet there the staff believes that that's appropriate at this time as well so the staff is recommending approval of the ND1 overlay for the colony neighborhood association because it's in agreement with our comprehensive plan as as well as it's consistent with the zoning ordinance and Article 29 requirements. The neighborhood has done their design character study, which helped to define the character of the neighborhood. They've developed their preservation goals, and they've proposed appropriate design standards. Happy to answer any questions. Any questions for Ms. Wade? Don't seem to at this time. Thank you. Before we move on, I'd like to see a show of hands of anyone that's wishing to speak today. Okay. Thank you. What we'll do, we'll take anyone in favor of first and then opposition second. I would ask that to be respectful, to not be repetitive, to turn and speak, to make your comments to us, the commission, not to the audience or any one individual. I would ask at this time I believe they may be a representative for the neighborhood to start things off yes sir we do have time limits hopefully we can keep it to within three minutes for everybody concerned probably a little bit longer but I'll cut it that could be understandable we'll keep an eye on you I'll try. Yes, please. Good afternoon. I'm Mike Hart, and I'm the current chairman of the ND1 colony residence. The old colony here and after referred to as just simply the colony was developed in 1947 under the restrictions, covenants that includes those that are before you today. Seventy percent of the homes now in the colony were constructed with these restrictions in place. Those restrictions in 1947 officially expired in 1979. and since then the balance of homes built have for the most part adhered to those restrictions with little exception. I think Tracy pointed those out in her. The point here is the colony has remained intact in its original character as it was developed in 1947 with very little exception. Even more to the point, that's why we're here. The reason here today is to preserve the colony, truly a time-tested neighborhood whose restrictions have expired and is now on the fringe of being violated. Quoting Professor Carpenter on the need to protect the colony with ND1 designation, he says, quote, The colony, as a significant model of neighborhood development uniquely still retaining its original architectural integrity, is, in my opinion, potentially threatened by the possibility of sensitive and inappropriate future development, unless strategies for the protection and preservation are enacted. End of quote. To preserve the colony, its board of directors four years ago, yes, four years ago, chose to pursue the neighborhood design overlay to accomplish this. ND1, as it's commonly referred to, was a program developed by our government to specifically address the need and valid concerns of electives' oldest neighborhoods, where once existing restrictions have expired and left them now vulnerable to the type of insensitive and inappropriate development that Clyde Carbenter refers to, that's where we're at. The process for the majority of property owners who chose to participate, it has been grueling, but also a very positive journey into our history, makeup, and function of our neighborhood. I think it's fair to point out, too, that we've attended committee meetings, staff meetings. These deals, it's put a good face on government. We've actually enjoyed it. It hasn't been easy, as you can witness here today. At the best, I think these initiatives are contentious. Before you are the three restrictions that Tracy, I think, put forth much better than I can. But I do want to emphasize that the front yards, the open terrain, is very much concerned of the majority of the property owners. Accessory structures, an interesting point, and I do not see it in today's report, but in the last report, the storm sewer system has never been questioned because everyone that has built in a colony has respected the contours and the land. And at this point, there's not that need for storm sewers, which accessory structures, and I think unneeded, would probably detach the land. Maximum footprint, this again is probably trying to simply maintain the integrity of the colony. If a McMansion was built, and that's one of the fears, and that's why this footprint is in there, Obviously, it would disturb just the beauty, the harmony of the colony, that we have mature trees, the rolling terrain, da-da, whatever, and the homes are basically put in. They work with the nature scape. We have opposition. Some folks have said eloquently, am I up? Go right ahead. I just want to make sure. You do have a few introductory stuff that items need to be covered. All right. eloquently that they want it, they have moved back to the colony where their parents have lived. We think that's great. That's what we're here for, is to preserve it as it was then, and to put back into action the restrictions that were there originally that have always been adhered to. I think what we proposed are reasonable, they're fair, and they're in the best interest of the colony. And I think they simply make sense in context within D1 to do what it was proposed to do, as we've already heard here today, is to preserve an old, established neighborhood in Lexington. And I think one other thing that needs to be pointed out, the colony is a gateway community to Lexington. It also is a gateway community to three bills that surround Lexington. And we will have other people speak that are in neighborhood associations that actually surround the colony that are in much stricter covenants than what we are. And that's it. We have designated on our behalf, in the interest of time, just several people to speak instead of having people line up if that's what you desire. Thank you, Mr. Hart. Any questions? Any questions for Mr. Hart at this time? No. Thank you, sir. Thank you. Others at this time? and I would offer anyone wishing to speak, anyone that wants to speak next, more than welcome to come over here to the side so that we don't have to come up from the back of the pew each time. Yes, sir. I'm Michael Harrison. I reside at 1293 Standish Way. I'm president of the Colony Unit 4 Community Association. Hereafter, I'll refer to that as the new colony, as distinguished from colony units 1, 2, and 3, also known as Residence, Inc., and I'll refer to those hereafter as the old colony. The Board of Directors of Colony 4 Community Association unanimously voted to support the old colony's application for the ND1 zoning changes. Additionally, we have received positive feedback from our members and no negative comments about this zoning change. I represent 85 homes in the new colony. Fifty-four of the homes are in John Alden Estates section of our subdivision that are directly affected by this proposed zoning change. We are adjacent to the old colony, and our ingress and egress to and from our homes is through the old colony streets of Colonial Drive, John Alden Lane, and Standish Way. I would additionally say that there are six houses on Standish Way that weren't included in the Planning Commission's original presentation that belonged to the new colony. and that's one of them is where I live. My residence is located directly across the street from homes in the old colony. Although we did not get a vote on this application, it directly affects our neighborhood and our property values. The colony is one of Lexington's unique treasures, with its large trees, large lots, and open areas. The Colony 4 Board of Directors supports the N.D. application because it believes it will help preserve the unique character of our colony, which includes all of us, and all our property values, which for most of us is our largest asset. In the time that I have lived in the colony, there have been a number of houses that have been renovated and updated. We now have some rental houses, and at least one of the absentee owners has demonstrated no sense of community about getting along with the neighborhood. This application contains only three common sense use restrictions on the residents of the old colony. This should be compared with the 40 use requirements that the residents of the new colony have in our covenants and restrictions. I have read the Chevy Chase neighborhood ND1 restrictions, and these proposed restrictions are nothing like those or like the historic zoning that's proposed for Ashland Park. I therefore would likely to briefly address each of the proposed ND1 restrictions. Mr. Harrison, we are familiar with the other ND1 restrictions in other areas and this one. Your time is about up. I'd like to just contrast it with our restrictions, if I may. I would like for you to stick to your restrictions. Okay. Quickly. Our covenants and restrictions prohibit any sheds, shacks, or storage facilities. Our covenants and restrictions allow only a four-board black horse fence in our side yards and a safety fence around swimming pools. As to the front yard fences, I received over 30 e-mails and telephone calls from our concerned homeowners when the white wire fence was put up in the front yard of 4014 John Alden Lane. This front yard fence detracts from the unique character of the old colony neighborhood, and I believe that this restriction would prevent someone from putting up a chain-link fence in their front yard or a six-foot-high brick wall with a gate around their property, which would completely change the distinctiveness of the old colony neighborhood. Many of the houses in the old colony are built on half acre. These older homes have values that would allow someone to buy one of these houses, tear it down, and build a mega mansion, and we think that that would completely change the character of the neighborhood. These are reasonable use restrictions that would move the colony in a positive direction. We believe they should be approved by the Planning Commission to preserve the unique neighborhood character that exists in the colony. Thank you very much. Any questions? Thank you, Mr. Harrison. Any questions? No. Thank you. Next. And please try to adhere to the three minutes. Yes, sir. May you please have the timeline presentation? My name is Dave Kessler. I live at 1228 Standish Way with my wife, Laura. We've lived here in the colony for 15 years. I've been the treasurer of the Neighborhood Association. I'm in my third year now in that capacity and have also been involved in the ND1 process for the last three years. I was hoping to use my time to quickly walk through the process that Ms. Wade touched on, the four-year process that we've been through. And I want to do this to demonstrate that it has been a process that has been transparent, inclusive, deliberative, communicative, and thoughtful. So it started as the ND1 was introduced to the neighborhood at our annual neighborhood meeting in June of 2009. At that time, the ND1 brochure was passed out, some handouts explaining it, and it was just kind of introduced at a high level. And members for a study committee were sought there or invited to participate in looking at it further. A little bit later that summer, Ms. Rackers came to one of our homes and answered questions with a group of neighbors and provided more information that was very helpful there. and then in fall 2009 the nd1 study committee was formed and they started looking at moving forward with the various studies that were required and and thinking about what the design standards might be in our annual meeting neighborhood meeting in 2010 the committee We gave a progress report with discussions, again with handouts, the ND1 brochure, and things that we had put together. However, at that point, they were really unable to land on what the standards should be and wasn't really moving forward. That's when I joined the board. And the president of the board at that time, Tom Wade, wanted to see if there was really interest in moving forward with ND1. At that time, the board was split. Some were for it. Some were opposed or undecided. And Tom was neutral. he really wanted us to just facilitate the process and make sure that, you know, just to see if there was interest. So at that time, we sent a letter out to all the neighbors with the three standards that we have today, a survey, and an invitation to an informational meeting. Mr. Kessler? Yes. Your three minutes is up. Can you please wrap up? We do believe this has been transparent. I'll add that. Okay. Okay. All right. Thank you for your attention. Thank you, Mr. Kessler. And I will reiterate that. I do believe that this is a lengthy process. We know that, and it has been transparent. Mr. Bozarth. Good afternoon, ladies and gentlemen of the Commission. Thank you for listening to our proposal. I live at 1233 Colonial Drive. I am the president of the Colony Association. I had a presentation that would have been exactly three minutes long, but we've had some technical difficulties to be able to present that to you, which I was going to be the closer, and hopefully that would be an impact presentation. With that being said, I would like to acquiesce maybe one and a half minute of my time back to Mr. Hart. We have a site map that we would like to show in our polling of what transpired as far as the percentages of people in the colony that voted for the proposal and the people that our opposition so elegantly was against it and those that didn't take participation. So with that, would you bring up the site map, please? And am I permissed to bring Mr. Hart back for my other minute? Okay, thank you. Sure. I'll make this real quick. This is just simply an updated map. Mr. Penn, you asked us to go back into the neighbor and sell it. I think you will see that a large part of our opposition here today is still the red. But we did talk to a lot of people on a personal level that had not responded for whatever reason. There are still people that, as you can see, blanks in the map that, for whatever reason, some even work for the government, it's a conflict of interest, da-da-whatever, have not voted. There are some people that have changed their mind. And in the spirit of fairness, I do have one individual that I spoke to that's not up there. Mr. Morse, I think he's here today. He is actually opposed to this. So we calculated and we went around to each individual home and made sure that at least people knew about what we were doing, what was being proposed. And this is a new map, and you can also see the new arithmetic. I'm not saying it's scientific, but it does show that a vast majority of people support this action in the colony. And that could just stay up there. Thank you. Thank you, sir. Others that would like to speak in favor of this, please come forward. Seeing none, we'll move to the opposition. Is there a spokesperson? Please come forward. Everybody will have three minutes. I guess I'm a detailed person. My name is Walt Whitlow. I live in the colony subdivision. I own property there since the mid-1970s. I had a house built and moved in in late 89. I was a president of the Old Colony Neighborhood Association in 1994 when the interesting zone change hearing was down here at the council chambers for many, many days, which was actually the one that was instrumental in developing the Colony Unit 4. I was president for two years. When I got finished with adding up my hours, I quit at about 2,000. It was the second career for me for some strange reason. I've got 13 pages here of stuff that basically, from what I understand, has been submitted to this committee through the ND1 application and the stuff that this committee has relied on in the decisions they have made. And most of it reflects extreme inaccuracies of what was submitted. I believe we do have that, and it has been passed around. I passed it around, yes. And I went back and checked most of it, and that's it. One of the things that I don't know whether I needed for the record or not, but the front yard fencing, the 26 accessory buildings that are there as opposed to the six that they say there are. They say that there are known garages in the place, that there were two detached garages, one detached carport. It's just fraught with inaccuracies in this stuff. Why? I don't know, but it is. They say there's no front yard fencing except for it's 1996, and there's one, two, three, four, and there's maybe 15 or 20 front yard fences in there. Some of them are border fences, but they meet the requirement of the front yard fence being in front of the front plane of the house. Residents Incorporated, everyone is included. Everyone is not included. I'm not a member of Residents Incorporated. I never have been, as I found out when I became president. The only way you can become a member of Residents Incorporated with these people speaking for me, apparently, is to be voted in as a member. You've got to put your name on a sheet, and you've got to be approved. That's never happened. I don't think it's ever happened for anybody. I've got a map up here that I drew because it's really, really difficult when you read this thing to understand what's going on. The map, what is reflected in the yellow on the map is taken off the old colony units one and two plats. One of them planted in 1946 and one of them planted in 1957. The yellow makes up the old colony units one and two. The darker color, blue, is taken off of a record plat of the Chinkepin Colony Unit 3, which was plat in 1988. The other lighter color was taken off of a plat in 1996, a preliminary plat in 1996, which reflects the Colony Unit 4. And the two white pieces of property in the center of the thing are private pieces of property that aren't included on any subdivision. What you see there with the red, oh, and the part that was hashed out up there in the corner is two pieces of property that were originally planted on the colony that was undeveloped because it's the closest to their sales road, and plus they were really, really low, so they eventually became sold off to the colony unit for and became a retention basin. What's in yellow is what is the old colony. anything else is not unless we want to change the way unless we want to change about how the meaning of the words mr. please please wrap up with your three three minutes unless you have someone that wants to give them your time his own their time to you I don't know what to wrap up with but basically I want to One of the things I want to wrap up with is this. Okay. I was extremely offended when I read this because of the reference in this to the old colony CCNRs. And that's where a lot of this stuff comes from. It's established as a distinguishing feature of the old colony, what was taken out of the old CCNRs. The old CCNRs are one of the most racist documents I've ever seen. and yet these people chose to use it to support their position. I am offended. I am truly offended. I'm going to put a copy in the record so that you can have it. It's listed in the ND1 application and right below it it says a distinguishing feature. It certainly is a distinguishing feature, but it's one that should remain buried 60 years ago. One of the things they talk about this as being an open process. I was a member of the ND1 committee since 2009. There was one meeting. Mr. Hart said something about the residents chose to participate. I chose to participate. There was one meeting. I went to it. It was Tom Waits' house on October 2, 2010. There was a lively discussion. Nothing was decided. As a matter of fact, I've got some quotes from Mr. White that I'd like to leave here just a second if I've got time. At the end of the meeting, in response to a question for Julie Rutledge about what was going on, can we give a status report talking about to the membership? Certainly, we don't have any proposal. I think it's going to be very difficult for the neighborhood to reach consensus. The neighborhood never has reached consensus. For the most part, nothing's ever been sent to them. The information that was presented to you on that little chart up here a few minutes ago showed one mailing to the neighborhood. One. That was with a cover letter dated November 3, 2010. On that cover letter dated November 3, 2010, there was an accuracy on the cover letter saying that the ND1 process was a voluntary. That's not correct. I got it here someplace that said it was self-imposed, voluntary and self-imposed. It is not. So the information that they sent on the cover letter to get responses to a petition which was attached to the cover letter was inaccurate. This has been the most divisive thing I've ever seen happen to the neighborhood, and I can't believe it. I've got friends of mine I've known for 20 years that don't speak anymore, and I want to know why. no new front yard fences no retaining walls over 18 inches this has gone on for 66 years this place and nothing has happened a guy just bought a piece of property in here and paid in excess of six hundred thousand dollars for it and came in and put another hundred or two hundred thousand dollars and i don't know for sure the figures but i know what he paid for it it's referencing here how people are putting several hundred thousand dollars in their property i just put a bunch of money in my property. This neighborhood is not at risk. The only thing that's at risk if the neighborhood is relationships caused by the people pushing this stuff. I guess I'm kind of bum-puzzled right now, so I guess I will just I apologize for my tone. I am a bit frustrated. I don't talk very well in front of things like this, and if my tone has been inappropriate, I apologize. I'd like to submit this for the record. Yes, sir. Thank you, Mr. Cutlow. Next. My name is Jerry Nicholson. I live at 1252 Colonial Drive. I'm a former vice president of the Neighborhood Association. I lived there over 12 years, and before I bought the property, I have a severely disabled child, and I researched the restrictions very clearly to make sure that I could do the improvements that I wanted to do to the property, and that if I needed to build an external structure, say, it sounds silly, but you'd have to see my child, a swing set with a roof on it, that I could do so. And, you know, I don't understand the need to change the rules and build the game now. The property is not at risk. That house with the fence that people are upset about doesn't have a backyard. The backyard is from here to where you're sitting. So other than fencing her dogs in on the roof, that was probably her only option. The historical property that was mentioned here, some time ago, the lots and the land associated with it that made it so special was sold off so that they could build McMansions in the back of it. And those houses were very, very nice. But there wasn't any historical outrage at that time, and we're splitting it up. Some other points I wanted to make. When I first moved there and went to the first neighborhood association meeting, the big debate was about whether the elderly women were going to form a monthly committee to look at the flowers in the neighborhood. Now we're imposing zoning changes on our neighbors. and I'm sorry, other than that dog fence, I do not see the reason for this. And people like me who have seen some extremely negative things in Fayette County. Last year we had a disabled child with a playhouse and the situation got so out of control and the Lexington Fayette Urban County government was either, you know, didn't want to get involved or was impotent in the matter or whatever. the state legislature, which is probably the most dysfunctional body in the whole country, engaged to control that situation. And by doing these things, which are not necessary in my opinion, we're empowering and creating hostility in the neighborhood, and we're empowering people to challenge. So if I go out and build that swing set with a roof on it, who do I have to come see down here to get approval? I hope the building inspector, to make sure it's not going to fall and kill anybody, But other than that, do I have to make it out of Bedford Stone? Do I have to, you know, and again, this thing here, and I don't want to present anything negative. I live at 1252, which is the red house. See the row of green and then the red house on the bottom. And then there's five places around it that are brown. I have a letter from one of the people opposing. The Cassides are here on the other side of me opposing. and we didn't get our cards. I heard that this card got mailed out. I called the staff who then provided me the card. So I have no idea, and these neighbors around me didn't get their card either. I'd like to enter this letter in the press. Thank you. Thank you, sir. Good afternoon. Many of you will recall I am the proud daughter of Frank and Rosemary Hamm. I am Jennifer Hamm Blakely. I have lived in and loved the colony for 43 years of my life. And I would like to say first of all, this is the information Walt Whitlow, who was battling for his life and could not be here with me last time, requested from the colony those who keep the records regarding to ND1 and the overwhelming support. This is it. He and I have gone through it. I don't see evidence of overwhelming support. I was on the board for two years until May of this year. I've never picked a fight in my life, but this one was brought to my door, and I feel that it was brought to our door by members living in Chinquapin, which has its own bylaws and restrictions for the neighborhood, and also some residents I fell in love with who told me they left their neighborhood due to restrictions, and yet they have been leading the charge on this. I will say we have a lot of mature trees in the colony, some of them far more mature, I fear, than some of our neighbors. And as far as transparency, the glass in our windows is probably the only thing we'll agree has been transparent. Time today doesn't allow me to readdress what I covered with you before in terms of the timeline, but the machinations, the flaws, how this has been handled, all of it makes the presidential politics that just ended look benign, and I don't think you'd like it coming to your neighborhood. Imagine being in our shoes, where you used to enjoy going out in the yard, visiting with your neighbors, having a wonderful social life, as well as your personal private life, and having that disrupted. Those in our neighborhood who were doing their civic duty on November 6th by voting were met by one of the people working at the poll, Mike Hart, from whom you heard who lives in Chinquapin, and he addressed this topic with them while they were there to vote, and followed up by calling people and coming to their homes. And one neighbor called and apologized to me last night for changing her vote and for, in her words, wimping out because she felt pressured to do so. I don't think harassment, bullying, and keeping people in the dark is something that has anything to do with character of a neighborhood. I certainly hope that this is not, in fact, a done deal, as one of our neighbors was told recently regarding whether or not she voted in favor of this. You might have inherited this ND concept from the city, and I appreciate the work you do each and every day, but you good people have the ability to demand that it's going to be done right. I can tell you that originally 75% of the neighborhood was what we were told was needed for this to pass. Then we were told it required over 51%. So of course people didn't come to informational meetings if they weren't interested in it. Of course they didn't send in their cards if they believed that. This has not been accurate. It has not been fair. It has not been objective. And when I resigned from the board, I felt it, you know, unfortunate to be leaving. But I can tell you that when they started deciding who would fill the vacant slots, I said I believe that's up to the residents. And I was told, no, we need to be sure we have the right kind of people. I regret perhaps I was not one. Thank you for your attention. Thank you. Yes, sir. Hello. Thank you for having me today. My name is Brandon Stinneth. I'm one of the newer residents of the colony. I live at 1252 Standish Way. I do have a few pictures and things I would like to look at, but first I would like to concur that Mr. Willow has an overwhelming amount of evidence that I would beg you to consider before making a decision today. Unfortunately, it seems that the people who represent our board have come to you with a proposal, and it has taken them a long time, and it does represent a great amount of work that they have done. However, I feel that the work that they have brought to your attention does not accurately reflect the true quality of our neighborhood or the restriction that they feel like would lead to protecting it. I'm also a little disconcerted about the facts as they've been presented to you in terms of how our board represents our neighborhood. We've seen a couple of different maps that are put on the board, green and red. Personally, I don't like the fact that that's made public to folks who know now exactly what people in what house voted, how so, and then are opened up to pressure and bullying. But perhaps it's a necessary part of the process. In the first pie chart I have at the top, in the November 2010 survey, we see, and again, I'm trying to be brief, and I'll submit my documents, but only 24 residences in the colony supported going forward with this. Only 24 different households said, yes, we're in favor of this, and not all of them agreed to all three of the restrictions. And so somehow we went forward with this with only 34% of that. In the latest postcard vote, again, how many people actually supported it, it was an underwhelming minority, 40%, 29 yes votes. And four of those are in contention given the fact that they come from people from the Chinquapin development, not the old colony. And therefore, after even the postcard vote, which again, I think a black cloud hangs over that because of people getting cards, not getting cards, again, only 40% of the owners of our neighborhood indicated that they are in support of it. And the little clip, which I apologize, is hard to see, but at the bottom, this is taken from the Lexington Fayette Urban County Government's brochure about ND1 overlaying, and it says, the initiation process requires significant neighborhood support, usually in the form of petition with a minimum of 51%, not of respondents, but of owners' signatures. Not 51% of the respondents, 51% of the owners. I don't see that that that's been brought to our attention. To summarize, and these are my personal feelings, the fact that many of the petition's fact claims are proven to be false, as Mr. Whitlow stated, coupled with the fact that the proponents of this petition have never really fully enjoyed the majority vote invalidates this proposal. These false claims are being utilized in an effort to lead you to think that our neighborhood is relatively free of such structures and the accessory structures and should be protected from the encroachment of the slightly accessory clutter. Could you please show the first picture? We've seen the white chicken wire fence. Please wrap up. I will. Mr. Stanton, I will do so gladly. Could you turn that just a little bit? Thank you. We've seen the unsightly white fence that has created such an uproar. This fence, as you can clearly see, is a heavy-gauge wire livestock fence. And I honestly do not know which person owns this, whose property it sits on, but it does face the property and sits right on the property of the Indy One committee chairperson's house. And yet you've never heard any statement made regarding to the quality of this fence or how it negatively affects the aesthetics and the general character of our neighborhood. So this is my closing statement. I do not feel like the body that has brought this proposal to your attention actually represents, through a duly elected process, the entirety of our neighborhood. And I beg you not to consider it as what our entire neighborhood actually wants. Further, I feel that this is not so much an effort to protect our neighborhood as it is to protect a small interest group's aesthetic preferences, and unfortunately have asked you to propose this on their behalf so that you can be the strong arm when it comes time to enforce this. Thank you. Thank you, Mr. Stinnett. Good evening. My name is Jeremy Ford. I live at 2512 Vercels Road. I'm one of the places right there on the front side. I have approximately one acre of property, more or less. And when I purchased the property a little over four years ago, my intent was to live here, raise a family, and be able to do things that I like to do, one of which is plan to build a detached garage. I wasn't looking to put out a big commercial monstrosity, metal building, or anything of that nature. I wasn't planning to do it next year, but certainly I did want to have the option to do so, and when my wife and I were selecting properties, this was certainly of concern. I've got an acre of property inside New Circle Road. Not too many people can say that. I certainly would like to be unrestricted on what I'd like to do to my property within reason. The ND1 restrictions certainly do not seem to be within reason. Most of my conversations that I've had with the people who I was able to reach over this past weekend who live within the colony express their biggest concern being a fence that was put out on a neighbor's property. The fence in question won't even be removed. So the whole reason it seems like we're even here or this has made it to this point, the whole reason won't even be affected by your all's decision. So I do ask for your vote to oppose this. Let us go back to living our lives. Don't come in and tell me what I can do on my property as long as I'm not affecting you. Leave me alone. Thank you. Thank you, sir. Yes, ma'am. My name is Stella Moore. I live at 4017 John Alden Lane. My house is the one that was just shown up on the screen. Now, personally, I'm very proud of it. I had to make it larger, and I assume some people objected to that. But I have a handicapped husband, a Vietnam vet, who's in a wheelchair permanently. I needed that space added on to the back. I also wanted the pool for his health as well as our own recreation. Also, we added an outbuilding. I had extensive work done on this house when we bought it, specifically for handicap reasons in particular. And it took almost eight months to have this work finished before we even moved in. Now, not one person on the other side of this situation came up and said, you can't do that. Not one person came up to my contractor and said, oh no, you can't do that. I didn't even know whether there was a homeowner's association or not. The realtors couldn't tell me when I bought this house. And I said, well surely there is, it's a beautiful place, but no one seemed to know. So here I am with a house that had to be transformed for my husband. It had bedrooms upstairs but none downstairs. This is why this addition was put on to the back of my house. It also has two new bathrooms that were added on, one specifically for my husband, so he could use it without problems. Unfortunately, I'm across the street from the fence that nobody likes. I personally don't find it that offensive. It's not great, it's not pretty, but it does not offend me to the point that I want to become an enemy with my neighbors. Other than that, I really am like the man that just spoke before me. I don't understand what the problem is. We have a beautiful neighborhood. We have people who do keep their homes up. They do keep their yards nicely. And I see no reason for this battle in the neighborhood. Thank you. Thank Thank you, ma'am. Yes, sir. Yeah, my name is Philip Cassidy. I live at 1256 Colonial. I just really want to just voice that I am here. I'm one of the, I guess, late to the party people. I'm up on that chart as having no vote, but I assure you I'm not in favor of this process, and I don't think that there has been a really effective canvas. there's been a lot of pressure and at least to a certain degree some misrepresentation to me coming as I say a bit late into this and getting involved it seems very much like a solution in search of a problem this is a wonderful neighborhood it has had you know no risk of having humongous McMansions put on to small lots the one fence has well been described as being less than less than appealing but in no way offensive and certainly probably the only choice that that particular homeowner had. But again, didn't want to say any more than that than just to put my voice toward this. Thank you. Thank you, sir. Yes, ma'am. Hi, my name is Kathleen Whitlow and I live at 1249 Standish Way. I moved to the neighborhood because I love the colony. It's the best place I've ever lived. I love it because it is diverse because of the neighbors. As many people have said, that has changed over the last few years. The beautiful thing about the colony is that we have young families. We have elderly residents. We have some of those residents with us who have declined to speak for various reasons. Could you stand up, those of you that have come with us? We've got a lot more people than are up here speaking. I have a letter that was given to us today on the way here by a young family, by a young woman, and I think it speaks volumes for what we've been subjected to over the last year in the colony. She says, Had we known when we bought our house that the neighbors were going to attempt N.D. Juan zoning, we would have continued to look for a home elsewhere. When we moved in our home in the colony, we did so with plans for repairs, renovations, renovations, windows, plumbing, and an addition in five to ten years when we could afford it. The addition we planned on when we bought the house is a two-story addition of a room and a garage on ground level and a master bedroom and bath. The zoning changes would limit what we want to do for an addition. It might also mean that we have to get the okay from neighbors on a committee of what is or isn't acceptable for an addition. Those who would be on the committee are most likely those who are pushing for the ND1 zoning. I'd also like to say a few words about the value of people over property. When we moved into our house, our youngest son was not quite four months old. Our other boys were 22 months and five. Moving into a new house, unpacking was no small task, especially when there were no relatives close to help. That summer, when our lawn got a little long, one of these neighbors put a sticky note on our mailbox with the words, Mow your lawn. Not welcome to the neighborhood. Is there something we could do to help you? But mow your lawn. It brought me to tears. I was brought up in such a way that neighbors helped each other out. Neighbors helped families with babies or the elderly and not make them feel bad about the appearance of their lawn one time. I've also heard talk about a wire fence and of a neighbor with dogs, and it's been repeatedly called an eyesore and talked about as if it were some kind of a scandal, as if the fence had stolen or murdered the dignity and the beauty of the neighborhood. It's the talk and the gossip and the disrespect of some of the people for their neighbors. The colony has an array of different houses with different architecture. That diversity can only live if different people continue to bring their ideas, interests, and love into the neighborhood without the restrictions of a few who think their ideas and beliefs are what is acceptable. And also, this lady would like it noted that she didn't think it was appropriate for the people working the voting booths on Election Day to express their interests and lobby pushing ND1 to people who were in line to vote. This really says it for all of us. This does not represent our neighborhood. Thank you, Ms. Whitlow. We did have that letter passed through to us. Commissioner, planning members, I just wanted to say to you. I'm sorry, your name, sir? I'm sorry, Junior Odom. Thank you, Mr. Odom. Some 50 years ago, I came to Lexington. I wanted to live in two places, the colony or the land. I house come available in the colony, so I managed to get it. I've lived there some 45 years, and would like to do another 45 years with a piece I've had the first 40. Thank you. Thank you, sir. Yes, sir. I'm Frank Roby, 2504 Versailles Road. I thought I might as well speak since I'm probably the newest member of the colony. When I first came to look at the house up on Versailles Road where mine is located, I have an acre. I was really impressed with the community. And I asked the realtor, would you please get me a copy of the association's rules? Because I don't want to go into a colony that has a whole lot of rules. Because I like to be able to take my land and do what I want to with it. But yet at the same time, people who move into the colony do not come in there with the express purpose of lowering their land values. I'm a contractor, and I work with interior decorators, et cetera. And I came into one house one day in the big, beautiful Greek columns, and the whole place was painted olive green. And I went upstairs to the bedroom, one of the bedrooms, and it was Pepto-Bismol pink. So people have various ideas of what is aesthetically okay. But when I got a copy of the original, I look at Article 2, and it says, No lot hereby be conveyed nor any part thereof shall be sold or leased to any Negro or mulatto or any organization or association of Negroes and mulattos, nor shall any Negro or mulatto be permitted to occupy said property, provided that this restriction shall not forbid any owner or leasee from having his Negro or mulatto servant reside on the premises while employed as such. I got real afraid when I saw that. But then I found, well, the federal government's taking care of that. But yet, when you get into situations where you have groups of people, you always have people among those people who don't believe in Mel Gibson's Braveheart movie. Freedom. We just want to have the freedom to say what kind of landscaping we want to have. and I realize that's not listed here, but it has been in the past addressed. 18-inch little risers. Well, my goodness gracious, in the colony, there are areas in the colony that are so hilly that 18 inches doesn't work. I have a neighbor that 18 inches won't work on his either. 180 square feet. I have a boat that requires a minimum of almost 300 square feet if I'm going to have a boathouse for this. Well, based on that, well, that takes care of my boathouse not available. I have to leave it down at the lake in the water, I guess. But I'm just saying that I, like many others, think that the city rules and regulations, that you can't have a rusty car in your front yard and you can't do this, that, and the other in a city, are sufficient at this time. there is time as time goes on there will become a time when people may have an issue that's legitimate that someone does move into the neighborhood and decides to put a taco tico in their backyard or something but the thing of it is the colony does not have people in it that want to lower their land values so we will continue to use our architects and all of the people we need to advise us but we want things to look nice Thank you. Thank you, Mr. Roby. Anyone else like to speak? Seeing none. Any questions from the Commission? Rebuttals? Staff? Sorry. Yes. Mr. Brewer? Trying to do too many things over here. There are three or four things that I just jotted down. I'm not sure who said what, but I'm confused on what is Residence, Inc.? Can somebody explain what that is? Tracy, can you? I think that's the legal name of the homeowners association that asked the planning commission to initiate. And who makes up that organization? Clearly there's a big divide here. I don't think all of them belong to Residence, Inc. Is that correct? How many homeowners belong? The voluntary homeowners. Residence Inc. is a volunteer neighborhood organization, and the only qualification to be a member of that is to live in the colony and to pay your annual dues of $125. Okay, and the gentleman who said that it was not eligible to do eligibility issues? The eligibility to vote is to be a paying member of the dues. Anyone that lives in the colony is welcome to join Residence, Inc., and there's been many, many overtures to do that. Obviously, you'll have people that are opposed to this, that if you look, people that have not chosen to participate in those activities. But there's, trust me, we'll take anyone's money. And how many people again? At this point, hold on, Perry. How many people are in Residence, Inc.? Linda? 52. Actually, our membership over the last two years actually went up. And that money is used to maintain street lighting, dot, dot, whatever. I'm not really interested in money. I'm looking at numbers. 52 out of how many houses? 70, 72. 52 out of 72 it represents? Thanks. Thank you. Other questions, Mr. Brewer? Nope. Nope. Hold on one second, Mr. Whitlow. Tracy, we're going to start with Tracy as far as, I'll tell you what, Mr. Whitlow, if you'd like to provide any rebuttal, just briefly. The gentleman asked what Redstone's Inc. was. Redstone's Inc., to my understanding, is a corporation, a Kentucky corporation of a group of people who lived in the colony in 1961 that established Redstone's Inc. So it was a Kentucky court for basically looking after the betterments of the colony. It tells in here specifically on page three what it takes to become a member. What I was referring to, page four, what I was referring to when I said there are no members in it, is the bylaws have never been followed since I have known about it. And so I don't think there's any legitimate or legal members of Residence, Inc. in the corporation. As a matter of fact, I don't even think it's got enough members in good standing to vote anybody in now if it wanted to. I'd like to give you a copy of this if you'd like. That's fine. So how do you justify the 52 out of 72 then? Do you think that's fabrication, or where do we go with that number? I don't understand what 52 was. They just told me that 52 households out of 72 in the colony are members. Well, one of the things that I've been told is a lot of these people sitting back here, As a matter of fact, my neighbor next door said he was never notified of this. And so he just sent a bill and said, you owe $125. And he paid it, never knowing that he needed to be voted in to be a member. So a lot of the people, I don't think anybody's seen this other than a handful of people. Most people don't know anything about this. It's never passed out. And so a lot, you know, I don't know. I do know that a lot of people have told me that basically they've never seen it and they thought that they just owed the bill because it was mandatory. It's not mandatory. Thank you, Mr. Whitlow. Just for everybody's reference, it did say something in there about fees were not to be assessed. So I think that's what maybe Mr. Whitlow is referring to. Tracy, hold on one second. I think we have one more person that would like to speak, and then we'll continue with your rebuttal. Hi, everybody. Your name, please. I'm sorry. I'm Linda Burke. I'm a resident of a colony, and I'm a current board member. I'd like to greet the commission and the audience as well. I have prepared remarks, but before I begin that, I'd like to clarify based on my understanding about Residence, Inc. I don't know who came up with this name because it's really not very clear. But it's intended to represent all the residents of the old colony, and there are four people who live on Colonial Drive within this contiguous area who are also members of Residence, Inc. And there was some question about whether this was appropriate or not. But the bylaws do not prohibit that. The bylaws specifically say that the neighborhood organization can include whoever. So there are 71 properties there. Dues are not obligatory. They are voluntary. And the lights and the landscaping are paid for by the dues. And we have about, what, Dave, a 70% pay rate. So it's $125. Not everybody pays, but the majority does. So with that, that's what I wanted to clarify. I wanted to commend the hard work of the staff, Whether they've been supportive or not, I'd like to do that. Am I on three minutes? Yes. Okay. Do you have anything else real quick? Basically, I grew up in Lexington as a teenager. I've been involved in the process. I was a board member in 2008 when it was introduced. I was not on the board for that ensuing two years. I have been on the board recently. and Tom Wade, who was our neighborhood association for two years from 1908, I'm sorry, from 2008 to 2010, is in China. He sent a letter that I quoted, and basically the gist of that is, and I'll be glad to give to somebody, is that it was intended to be a fair and inclusive and, in his view, transparent process. and I'd like to reiterate that he never declared a yes or no in that. He wanted to be fair to the people and the process. So with that, thank you. Thank you, ma'am. One minute. Yes, sir. Do you have something to add, I presume? Gary Morris, 1245 Colonial Drive for 20 years, and I suppose I'm a member of the residence organization because I do pay my $125. The reason I pay it is because I want to do my fair share of paying for the lights and the other services of the neighborhood. Okay. Thank you, sir. No, sir. I have a rebuttal. Hold on just one second. Come forward. One minute for your rebuttal. Neighborhood Inc. exists because it signed the agreement that brought forth the covenants and restrictions that we in the new colony, the Neighborhood Inc. signed the agreement with the developer, Jay Williams, creating our subdivision. So there is a residence, Inc. Thank you, sir. Tracy, any last comments before we close this part of the hearing? I just wanted to clarify. I know the commission that we've talked about this before, about a retaining wall and what the phrase 18 inches above the unbalanced fill in the front yard would mean. But generally, when you build a retaining wall, the wall itself would be some distance higher than the ground that it's holding back. And in this case, it doesn't really matter how tall the wall is in order to grade in your front yard or change something. the height that's important is that you're not putting a wall four feet above the fill that you've put in backfield against the wall. So that limit, the height limit of the wall itself is 18 inches above the ground that's next to the wall. I just wanted to clarify that. If any of the members of the neighborhood have concerns about that, we can talk about it individually. but I wanted to be on the record that that's what that means and is interpreted as. Tracy, any comments in regards to additional accessory structures or additional fences or anything? I did not see Mr. Hart's fence when I was out there doing site work. I did see some side yard fencing that did come out in front of one house. but it didn't surround the front yard. There are additional accessory structures beyond the six that I noted, but they're not greater than 180 square feet, so I didn't include them because they wouldn't become nonconforming. Okay. All right. Any questions from the Commission? I'm going to close this part of the hearing and open it up for any discussion among the commission members, and we'll go forward. Mr. Penn, did I cut you off too quick? No. No. I was a little dubious when we initiated this thing, and I think I said to Mr. Hart, you're going to have a hard time selling this. I'm just kind of disappointed in what's happened here today. This is not what an ND1 hearing is supposed to be about. It's supposed to be about a common threat that the majority of the neighborhood is concerned about and how we could put an overlay on it that would help ease some of your fears. And we have turned this in, in my opinion, to neighbor against neighbor, and it's turned into I can use my rights and I don't want you to use yours. And that's not what an ND is supposed to be. We've done, I don't know, Chris, how many, 15 of these, 20, whatever we've done. And, well, but we've had hearings more than just four. We've done several. Let's leave it that way. And this is about as contention once I've set through. You don't have the university threaten you. You don't have people tearing down houses and building duplexes. I'm sorry, I just can't go with this because I don't think this is what the intention of an ND1 is supposed to be. Mr. Brewer? Yeah, I'll echo Franklin this. I'm a big fan of the overlay. I think it's something that preserves a lot of excellent aspects of a neighborhood. But it's got to be consensus, and I just don't see it. I think this is way short of what I would consider a majority of the people in the neighborhood. I've heard a lot more opposition than I think I've heard support, so I'll be opposed to it. Ms. Plumlee. Thank you. The neighbors came down, and I actually support the staff on this. Your microphone's not on. Thank you. I'll repeat. Thank you who came to speak today. And I actually am support of the staff on this. I think that for the reasons that they stated and I think the reasons that the neighborhood will live with, the alternative design standards are fair. And we on the planning commission want to do what is correct. We want to do what is right. But we have guidelines with comp plan, ordinances, regulations, bylaws. But I support the staff on this. I support the overlay. Thank you. Other items for discussion and or comments? Mr. Cravens? Yeah, I guess I don't get this. I think I said in the initiation hearing that these three items that all this is about is really not going to do anything. They're so minor that I don't think it's worth the effort and all the trouble that the neighborhood went through. In fact, they've even made a change to one of them since we heard it in zoning, and that was the fence thing. I think I was shooting holes through some of this, and I said, well, what about a wall? It doesn't say anything about a wall in here. And so here they rushed to change this retaining wall. I still didn't mean retaining wall. I meant what about a landscape wall of some kind. Frank Lloyd Wright used a lot of those in great succession. So the accessory structure, it just says 180 square feet. I mean, even if you were to go by this, I mean, are the walls 12 foot high? Does it have to have a foundation under it? Can you put chicken coop wiring outside of it? I mean, it doesn't say what kind of materials go on it. Can it be a garage? I think some of them say it could be a garage, but you could make a 10 by 18 garage and put a motorcycle in it or a Porsche 911 or something like that in it. And can it have a driveway to it or not? It doesn't say. Or can you put it on the lot? Can you put it near the house, near somebody else's house? So there's a lot of questions that when you state this, that it doesn't go far enough on. I mean, most of the time, most of the neighborhoods I've ever been involved in don't even allow accessory structures. No out storage buildings. And if they do, they have to be the same material of the house, foundations. You know, they have to be substantial buildings. So that's not done right. And then the fence thing, we've got a new fence ordinance. The city's got that covered. And the floor area ratio, I don't believe that's ever going to. Yeah, the lot area, 25%. If you had an acre lot, that would be 11,000 square feet that you could cover. I don't think any houses out there are that big or wouldn't be built that big. So I don't see why you'd want to do this to yourself. and I don't like my rights taken away and I don't want, I'm just not going to support this. Anyone else? Ms. Phillips? Yeah, I'll go ahead and speak. Again, as I mentioned the other day when we were talking about the Ashland Park H-1 overlay, we're intended to be planners and we're supposed to be forward-thinking. and not reactionary to threats. It's too late when you're in a reactionary mode. So I'm in support of the ND1, but I'm very concerned about the process because from the evidence that we have heard today, I'm not convinced that the numbers are as impressive as they initially looked. So I'm looking for some guidance here. Anyone else? Mr. M. Yeah, I want to make it clear. I'm not against the ND1 at all. I just don't think you've made the case in this particular one. Ms. Phillips, you know, I've supported most all those ND1s, but I just don't see the, I'm like Patrick, I don't see the numbers here, I don't see the community, and I really don't see the threat. and maybe it is reactionary to a threat, and that's probably not the way planners ought to happen. But if you just zero on this one, which we're supposed to do, I just don't see the evidence that this neighborhood is together at this time and knows what it wants. Anyone else? Mr. Wilson? Yes. First of all, I must say that I was confounded by the numbers as such. I wasn't sure exactly who belonged to what. But with that said, again, I share my colleagues' points and opinions related to division of neighborhoods and having us sit here to try to resolve that. With that said, when I looked down and saw these three things as it related to the restrictions, I kept thinking, my, my, my, you've gone through a lot of trouble for just three things on here. And that's one side of it. The flip side of it was these three things are pretty minor as it relates to some of the things that we've heard related to the ND1 overlays. So I can't figure out exactly why the community has not been able to come together on these three things, either yay or nay. And it seems like on the divisional part of it, of people voting against it, I mean, they seem to be pretty minor as such. But I must say that I'm confounded and confused by who belongs to what and why the community has brought this this far with this kind of division. I am generally in favor of ND overlays, but I'm going to have to think about this one. I'm going to yield my three minutes to Mr. Wilson. He stated everything fairly well. you start talking about only three items, that's true. Lot coverage, it's fairly minor as far as I'm concerned. That could be a plus. That could be not necessarily a negative, but is it really a plus for you? I think everybody has spoken. I'm going to end this and ask for a motion. Yes, Ms. Plumlee. I move to approve MAR 2012-17 with the three conditions that are stated by the staff. The motion has been made for approval with the staff recommendations for MAR 2012-17. The motion was seconded by Ms. Phillips. please vote when he comes up on the screen where's mine do we have anybody else? is that all of us? it is a tie vote that motion has failed I can entertain another motion if it would do any good Mr. Chairman. Yes, sir. There are special rules regarding tie votes and map amendments. Council is looking at them. Thank you, sir. You have to reconsider it in 30 days. That's in KRS 100.211. Reconsider the vote, is that what you're saying? So have another vote in 30 days? It says a tie vote shall be subject to further consideration by the Planning Commission for a period not to exceed 30 days, at the end of which, if the tie has not been broken, the application shall be forwarded to the legislative body without a recommendation of approval or disapproval. Okay. So what we have done in cases like this in the past, Mr. Chairman, it's your next public hearing, which would be December 8th. I believe. December 13th. 13th. I apologize. We would put this matter on the docket. I think the procedure has been there is no new hearing. But you, as chair, would open the matter up again for a reconsideration of the vote. and if anything changes. And I believe the eligible voting would be only members that were present today. If I recall correctly. We've got a couple of questions. Mr. Brewer. So, Chris, I'm glad you answered that we don't have to do another hearing, first of all. Second, I really don't want to put this off. I mean, we've had a lot of people put in a lot of effort, and I think we ought to make the decision today to move on. If we can't, I understand being hamstrung by rules. The third thing is what happens if one of us is not here on that day? Does our vote continue through as is? What does it say? Statute doesn't speak to that. We have another commission member with a question. Let me ask this. Can another motion be entertained today? Yes, you can. Okay. Ms. Phillips, question? Yeah, I was going to ask, would there are three members of the commission that are not here today, and I wondered if they could review the record, maybe watch the CD from this hearing and vote at the? We'd have to check. We're not really sure, to be honest, but if we came down on the side that they could, they would have to review this entire hearing on the tape and listen to it in the event that's the way we came down. But we're not really sure. We're going to have to look at that. Ms. Beatty, question for Ms. Beatty. Mr. Chair, I did not comment earlier because many people had already repeated some of the things that I was going to say. But the question I have with regards to now that we've taken a vote, if we put another motion on the floor, can it be a motion for continuation for this neighborhood or these residents to work with staff? Do you see a continuation? I don't think we have a deadline on this. I would say yes, that would be. I'm kind of waiting for confirmation from legal on this, but I would think so. Parliamentarian? Well, there are a couple of elements on the parliamentary procedure. First of all, you cannot, once a motion dies, you cannot have another motion on the same motion in the same session until another meeting. So that's 30 days. but you can have what you call a motion of reconsideration. But the problem here is that it would have to come from the prevailing side. There was no prevailing side on that, so you're out of that one. So the only way now a new motion can hit this table is that you have a significantly new motion, and that would be something that could be considered. Yes. Is that your comments, Mr. Wilson? Do you need to add anything else? So do you see a continuation as a new motion? That would be considered as a new motion in the interpretation of this parliamentarian, if it's agreeable with the chair. Mr. Brewer. Yeah, with all due respect, Dr. Bay, I think it's the wrong way to go. I still think we need to make this decision today, and I've got a real big concern about having people who are not here today voting on it. Oh, yes. Again, my concern is if one of us is not here to vote on it is equally disturbing to me. But we've got three people who weren't here. I don't care if they listen to the tape. They're not going to be able to make a good judgment on this. Mr. Cravens, for some reason I don't think I know what might be coming. Well, in order to resolve this, I would make a motion to disapprove MAR 2012-17 and hope somebody might change their mind. So is that a statement or a motion? I said I'd make a motion to determine that is out of order. No, it isn't. Yes, it is. No, it isn't. According to parliamentary procedure, your motion has to be significantly different. It is. It's just the opposite. He's wrong on that. Hold on one second, Mr. Parliamentarian. That would be classified in parliamentary procedure as a dilatory motion. I'm sorry, sir. Ann, do you want me to read the book to you? At present, I'm going to go along with my parliamentarian. Ms. Plumlee, did you have a question? We're going to move on. I just wanted to agree with my colleague that the people here are the ones that need to vote again, not watching the tape or anything. Thanks. Mr. Wilson, anything else? Ms. Beatty? Ms. Beatty? Then I think we need to go with legal advice. We have 30 days. We'll just have to decide on what happens and reconvene. Good question. The question was asked, could we vote to send it to the council without a recommendation at this point? No. No. It says that it shall be. Okay. No. All right. Do we need any sort of motion to go that way, or is it headed that way? Well, I think we would, by operation, it would put on your next agenda. But again, I don't think you can decide not to reconsider at that time. Okay. So by default, it goes to December 13th. Is that what you're saying? I think that would be the correct procedure. That's your only public hearing scheduled within the next 30 days. So we would automatically do that. And again, at that time, you can reconsider those that were here, or you can choose not just be silent. If that occurs within 30 days, then it would be forwarded on to the council with no recommendation from the commission. Patrick, anything? I'm going to sound like a one-trick pony again. I'd like to have an answer on whether our votes stand if we're not here on that date. Well, it depends on what the commission does on that day. If there's a decision to not reconsider and just send it on to the council, then technically your vote would stand as of today. If they come up with something, you know, I don't know how to advise you because I don't know what the commission is going to do on that day. I mean, what you're asking is, is everybody that voted yes a yes and everybody that voted no a no if you're not here that day? And I don't know that we can answer that until we see what the commission does that day. It might be a vote on something completely different in terms of reconsidering. Okay. We're going to move on unless Chris has anything to add. My recommendation is that we take another 30 days down the road and take a vote on December 13th. I would state that anyone is always welcome to come to our public hearings. Please take note that this will not be heard again. New information will not be obtained or presented. And the only thing we will be doing, we'll be taking another vote on December 13th. So thank you for coming. I appreciate it. I'm sorry we did not get an answer today. Mr. Chairman, just for the record, because of the 30-day period, the ex parte rules would still apply in terms of commission? Yes. Yes. speaking to anyone as far as commission members would be concerned, commission members hearing any information from outside sources. We've got to rule on what we've heard today. What about if anyone spoke to a commission member prior to today, would they have to recuse themselves? No, not if it didn't buy it. No. We're also not allowed to talk about it among ourselves. We're supposed to be making decisions. As far as what we're looking at moving forward is that we will take another vote on the December 13th hearing without any new information being presented. Mr. Chairman. Yes, sir. Well, let's just assume we go down that road and we get 30 days. I mean, we've got a deadlocked commission. Then somebody's not here on either side, which is highly likely. Then we're throwing this thing into a parliamentary win from one side to the other that's not based on any fact other than somebody didn't show up. No. If we decide it in 30 days, you say somebody's not there and we decide it, then that's the end of it. What we're looking at is KRS statute, I believe, and it says that this is a procedure that we've got to take at this point in time, and we're moving forward at this point in time. So let me say thank you once again for coming. I appreciate your voice and concerns, and we will take another vote on this and reconsider it in 30 days. Thank you. We do have one other item on the agenda. That would be the case. BOAR 2012-2, Boca Tide, LLC, and an appeal for a Board of Architectural Review's denial of certificate of appropriateness for a gazebo in the front yard of property located at 372-380 South Mill Street, Council District 3. Thank you. That was half of my presentation. Thank you. Ms. Rackers. Yes, sir. This is on page 5 of your agenda, and it's item A, under Commission Items. And as you said, it's BOAR 2012-2, and it's an appeal made by Boca Tide, LLC, for property at 372 or also known as 380 South Mill Street. We've got the property here. Now, before I get started, I have two letters that I would like to circulate to you. You have one at your place already, and that's from the Bluegrass Trust for Historic Preservation. And then there's one from the Chair of the Board of Architectural Review that supports the staff's recommendation. Okay, we do need everyone's attention on this request. Okay, the property is at the northeast corner of South Mill and West Maxwell Streets, and it's in the South Hill Historic District. It's within the downtown master plan area, and the underlying recommendation for the property is retail, trade, and personal services. As I said, it's this property right here. You've got Maxwell Street, South Mill Street, and then this little street along here is Max Alley that goes out onto Upper Street. It makes a connection from Maxwell Street to Upper Street. The property is Zone B1, and it is within a mixture of zoning and uses. It's both commercial and residential in the area. This is Dudley Square. It's an historic building that was once an elementary school. It was built in the late 1800s, and it had two additions since that time, and the latest one was in the 1940s. It also has a mix of uses, and one of the uses is a restaurant, and that is basically what is the subject of this. The gazebo is intended for use by the restaurant. Mr. Friesberg, who is the principal of Bogotide and who owns the property, has owned the property since 2004, has had several applications to the Board of Architectural Review. and those are shown on the timeline that are attached to the letter from the Board of Architecture or your chair that you have. He's requesting that the Planning Commission review the denial on September 12th by the board for a certificate of appropriateness for the gazebo that is now in the front yard of Dudley Square. The property is a corner lot, and so it has two regulatory front yards, one along South Mill Street and one along Maxwell. The yard along Maxwell is actually a side street side yard. It has the appearance of a front yard, and it's regulated that way for zoning purposes. And because it's in an historic district, it's also regulated that way with regard to the design guidelines. And if you could put the site plan up there, Randy. Chris, please. The gazebo is actually a little bit closer to South Mill Street than it is to West Maxwell. It's not in the center of the front yard. And looking at the drawing here, it doesn't look like it would be a very prominent structure, but if you put the next picture up, please, that's the picture of the gazebo itself. It is a very prominent presence in that yard. And the design guidelines do allow gazebos and pergolas and hot tubs and swimming pools, but they restrict them to rear yard locations. And the rear yard on this property is minimal. The building is only a short distance from Max Alley, and that bounds the property to the rear as you saw on the other map. And that area is mostly taken up with HVAC and other mechanical equipment and possibly some parking. And if you could put that aerial up there, please. Thank you. Here's the building right here. Here is what would be considered the rear. Actually, the rear yard would go all along here, but this is what would be considered the rear yard. Side yard is developed. On the north side is a parking lot, and it provides access to the alley. And then this is actually the only open space on the property. The gazebo is located right within there. It was constructed during the summer months, and the gentleman who owns the property did not apply for a certificate of appropriateness. A stop-work order was issued, and he subsequently did apply for the COA from Historic Preservation. In his presentation, Mr. Friesberg said he was unaware that Board of Architectural Review approval was needed for something like this, something that he considers temporary, and he compared it to outdoor furniture and said that he was surprised that something like this wouldn't be allowed. He referenced the design principle where it states that pools and gazebos and pergolas and that kind of thing belong in the rear yard or are only allowed in the rear yard, and he asked where on this property the rear yard would be located. And that is a reasonable question because, first of all, the property is a corner lot, and second of all, because of the way the property is developed, it's difficult to tell where the rear yard would be. He also questioned the applicability of the two design guidelines. He said he didn't believe that the gazebo was visually intrusive. He didn't think that it would suggest a false sense of history because it obviously wasn't constructed in the 1800s, and he didn't think it was out of scale or out of character with the site or the South Hill Historic District. And he thought that because the property was a school at one time that it's possible that there was a gazebo on site or some other kind of structure that they would have used for an outdoor classroom, and that would have been used for seating for the classes, and that just as the gazebo is intended for seating for the restaurant. There was a lot of discussion between the board members and the appellant as far as his failure to even apply for a certificate of appropriateness, and there was also a lot of discussion regarding the appropriateness of the gazebo and its location on the property and where it's located. And in that discussion, Mr. Friesberg questioned the use of tents on historic properties and asked how, because they're only temporary and he considered this temporary, how they get to be permitted on a property, especially in an historic district and more especially on this property right here. And the chair responded by saying that tents are truly temporary, they're easily removed, and there is a process for their approval, just as there's a process for more permanent structures, and in this case, that process wasn't followed. There were two design guidelines and a design principle that were cited in the Historic Preservation Report in their presentation to the Board on September 12th, and those are on page 3 of your staff report. It's Guideline 37A and Guideline 37B. 3.7a states landscape elements and site elements should not be visually intrusive or suggest a false sense of history. And then 3.7b expands on that a little bit. It says with regard to landscape elements and site elements that open space should only be developed in scale, use, and character with the site and the local historic district. And the design principles are in the guidelines, and they provide kind of a general framework for the design guidelines to be considered within. and the design principle states that the installation of swimming pools, hot tubs, gazebos, pergolas, etc. should be limited to rear yards. The staff's assessment of this, the historic preservation staff's assessment of this, is that the gazebo is visually intrusive because of its location in the front yard. It does present a false sense of history and it is out of character with the South Hill District and the property and therefore it is in contradiction to the design guidelines that were cited. Mr. Freesburg disagreed, and he said because this is a commercial property, it should have different considerations. They should consider it differently. He thought that the design guidelines that were cited apply only to residential structures because the photos that were used to illustrate the design guidelines in this case are only of residential properties. And then, Miranda, did you put that here? I'm sorry. Chris, you need to change your name. Anyway, it's true that these are residential properties, and that's probably because that's where most of these items, such as hot tubs and pergolas and swimming pools, are located. They're located in residential areas. These photos are only for illustration purposes, and design guidelines apply to all properties and all sites within historic districts. And there are some that are specific. There are some design guidelines that are specific to commercial properties, and those primarily address architectural elements of the buildings, signage, storefronts, and that kind of thing. But these design guidelines are designed to apply to all properties within H-1 areas. With regard to Mr. Freesburg's statement regarding commercial as opposed to residential, it's not logical or even reasonable to think that these would just apply to, I mean, the commercial design guidelines would apply only to the elements on the building and that any of the design guidelines would only apply to residential structures. They apply to everything. They apply to the entire site and the context of a building and the elements on the site. They have to be considered within the property and within the entire area. The issue of being visibly intrusive or visually intrusive is very applicable in this case. And if you only consider the property as it is, if you only consider the gazebo as it is, where it's located on the property is the only probably logical location that it could be if you don't consider the fact that it's in an historic district. However, even if it wasn't in an historic district, it would still be in the most prominent location on the property. It would still be visually intrusive. And because it is in an H1 district, then it is in contradiction with the design guidelines. The photos, as I said, are only for illustration purposes. And so even though they are of residential properties, The design guidelines are very general, and they apply to all of the properties within H-1. The board applied these design guidelines. They interpreted and applied them to this application, and they agreed unanimously with the staff that it was visually intrusive because of its location on the property. It's in the most prominent location that it could be, and it's in an area that was historically open space. And so that makes it visually intrusive and not in character with a Dudley Square property, and it's contrary to the design guidelines as well as the design principle because it is located in the front yard rather than the rear yard. And looking at this case, we could find no flaws in either how the board interpreted this or the staff, and we do find that it is in contradiction to the design guidelines and ask that you uphold the Board of Architecture Review's assessment of this. If you have any questions about the staff report, I'd be happy to answer them. and Ms. Kerr and Ms. Armstrong are here, and Mr. Friesburg is also here. Thank you, Barb. Any questions? The staff at this point, no? Okay, thank you. Thank you. Ms. Kerr? Yeah, whoever. Either one. We're a tag team. Amelia's going to make a very brief presentation, and I'm going to hand out materials, but we're both here for questions. Thank you. Good afternoon. and as Ms. Kerr is also entering into the record, the report from that meeting, the BYR meeting, and she's also, of course, painting out the handouts, and you also have a letter from the chair of the BYR in front of you. And just to give you an idea, some images of the site, this is Dudley Square. We've seen several applications this year, and this is prior to the gazebo. So this is the gazebo that has been constructed on the site. I'm going to give you some images of the streetscape. This is looking on Mill Street towards the restaurant patio. This is along Mill Street. and looking from Maxwell to Mill. Ms. Rockers did a really succinct job of summarizing everything, and at this time we just ask that you uphold the BOER's recommendations. Thank you. I've got one question. I don't know, maybe it should be for Mr. Friesberg. During the renovation process, did he make any other requests for the work that was done there, or was it not relevant since it was inside? There was work that was requested outside and inside. Most, of course, we do not deal with interiors, so that did not require interiors. We only deal with exteriors, so that work for the interior did not require a permit. Did he do work outside? He did do work outside. And he got a certificate of appropriateness for that? A varied history on that. You'll see attached to the letter sent to you all by the Chairman of the Board of Architectural Review, there's a timeline that reflects the permitting history of this property owner's association with this property since 2004. And you'll see it's a very mixed series. It has been about as frequent that our preservation inspector, Ms. Armstrong, has had to stop work being done without permits on the exterior of the property as it has that permits have been applied for and obtained prior to the commencement of work. I guess my question was, did he know of the process, which sounds like he did. I would be stymied to think it possible he has not known the process for some time, just tied to that timeline of evolution that you see. Thank you. Mr. Friesberg? Hi. My name is Bobby Friesberg, and thank you for letting me be here and speak. First up, I would like to apologize because English is not my first language. I am also not comfortable standing up here. I do not like to do this, and so I'm just going to try and take it very slowly. But I do obviously disagree with the findings of staff, both levels on the BOAR and also the Planning Commission, and so I've prepared a few notes that I'd just like to read through. Please go ahead. The most important thing for me are the two guidelines that are being cited as reasons for why the program should be denied. and I'll just quote, landscape elements should not be visually intrusive and staff finds that the issue of being visually intrusive is more applicable in this case. It is my belief that this guideline is overbroad and has the potential, as it has in this matter, to allow prejudice and personal bias to influence the decision. In fact, staff notes that the guidelines were revised in 2008 and updated in 2010, allowing more flexibility in interpretation and application. This, quote, flexibility in interpretation is exactly what is at issue here. During the public hearing before the Board of Architectural Review, inappropriate and unnecessary personal comments were made or implied by at least one sitting board member. These personal attacks were offensive and indicate that members of the board were in fact biased against me. Such bias is inappropriate in this matter and demonstrates that the board's decision was arbitrary and capricious. If you have seen the videotapes of the BOAR meeting, I believe you will find that. I was told the very next day that somebody had seen that on public television and found one member to be overstepping his boundaries and very offensive. I object to his tone towards me, and that's all I'm going to say on that part. As is pointed out in the staff's report, most commercial buildings do not have rear yards. In addition, the staff points out that the reason the photographs are of residential houses instead of commercial buildings is because the items are normally not found at commercial buildings, such as hot tub swing pools. If the guidelines as a whole does not apply facially to commercial buildings, then it is unreasonable to apply that guideline to a commercial building in this instance. And here I would like to say, I understand that there's a site as well, in addition to the specifics, the architectural components of the building. But what I would like to point out is that previously, for example, when the current patio was approved, the members at that time realized that you cannot simply apply residential guidelines to a commercial building. that patio was applied for and it was permitted despite the fact that it is not in the rear yard. I was not trying to make out that that is my rear yard, but I was just saying that it's impossible because there is no rear yard. At this point, what I would like to talk about is the insinuation that I should know the rules better because I've had the property since 2004. When this gazebo came about, I was standing outside with the owner of the restaurant, and he had just put his furniture on the patio, and we were talking about the space on the grass and how we could utilize it more. And I mentioned that perhaps we could have some really private seating. And that's where that came about. In all honesty, I never thought that I would have to go in front of the board for this. I do consider it to be more furniture-like, and I do consider it to be temporary, because it is not, I don't know what you consider a footing, but it is not affixed to the property. It is sitting on concrete block. It will be removed. It's only supposed to be there during seasonal weather. and as it exists on that picture right now it's obviously not finished so it doesn't look the way it should. The staff also concludes that Dudley Square does not have a rear yard. This means that Dudley Square could never have any of the items contained within the regulation. This complete bar is an unreasonable interference with my right to control my property. The staff makes a distinction between a tent, which the staff claims is temporary, and a gazebo at issue, which the staff claims is a permanent structure because it has footers. The gazebo is, in fact, not a permanent site element. The gazebo is in no way attached to the structure or ground. In fact, the gazebo can be moved at will, most likely within the same day. The gazebo will also only be used during the spring and summer months and, therefore, will be used less than 180 days per year. As such, under the Lexington Fair Urban County Zoning Ordinance, the gazebo is considered a temporary structure. And really, that's all I have to add, because I'm sure you saw my appeal, the letter that I wrote. and I'm completely at a loss for why we're standing here over a gazebo. I've had the building since 2004. I'm not saying I do everything right or that I know what looks best or what doesn't, but I don't just simply do things. Everything I do, I do with research and with the best intentions of the property and also the South Hill neighborhood community. I was very, I guess, humbled to see after the last hearing the president of the neighborhood association stand up and speak out in favor of it. I wasn't counting on that, but obviously if the neighborhood association don't have an issue with it, I'm not quite sure why there is one. Thank you, Mr. Friesberger. Any questions for Mr. Friesberger? No? Okay. Any questions for BOAR members or the staff? Oh, yeah. Anyone else in the audience wish to speak? Yes, sir. Thank you, Mr. Friesberg. I've got a friendly reminder from a neighbor here. My name is Ron Jackson. I'm a member of the BOAR. I would like to thank you for the opportunity to speak in front of you today regarding this matter, the meeting on September 12th. I feel like the staff and Chairman Halsfield's letter dated November 14th clearly stated our decision on the matter. I am here to comment on the last paragraph of Mr. Freeburg's appeal. Mr. Friesburg's statement about the decision of denial of the application was instead driven by a member's sincere dislike and blatant hostility towards him has no ground. I will admit I was frustrated with Mr. Friesburg's contempt for our board. I do hold Mr. Friesburg responsible for understanding the guidelines since he has owned the property since 2004 and has other actions before the board regarding site issues. Ignorance, as stated in the minutes, is not an acceptable excuse for not understanding the guidelines. As our chairman stated in his letter, and the attached chronological outline clearly shows Mr. Friesberg has had a number of violations and then comes to the board after the fact. I am sure all of you on this board have experienced similar situations. As far as the reaction of the community on this matter, I have not been made aware of any concerned citizens regarding my attitude towards Mr. Freedberg during the September 12th meeting. I would be more than happy to meet with those members at any time to discuss the matter. The Board and I have no ill will towards Mr. Freedberg, and I want him to continue to improve his property on Mill Street. The board only asked him to proceed under the process of the guidelines of the Historic Preservation, Division of Historic Preservation, set up by the Lexington Fayette Urban County Government. Our board has no bias towards any applicant. Each case is looked at individually because building and historic districts have unique site boundaries, architecture, and details. There are times that our board goes against our staff recommendations because of discussions with members. The guidelines are broad to help the applicant, staff, and board have dialogue on design issues. Just last night during our meeting, we had an applicant that wanted to change a wood porch into a concrete porch because the identical house next door had a concrete porch. During our discussion, we were able to change our mind to go to keep the wood porch on the one property and actually change the concrete porch into a wood porch. And that happens through a lengthy discussion. So, you know, most of the time these stories aren't brought before a commission or anything like that. As far as Mr. Freberg talking about the Neighborhood Association standing up for what he has to say in the meeting minutes, it actually, the way it was stated, is that Lee Thomas, the president of the Historical South Neighborhood Association, stated that the board met last night to discuss the gazebo and supported the owner of Deli Square as long as he followed proper legal channels and requirements of the BORAR and the historical overlay. And as you can tell, that he has not done that. I thank you very much for your time. Thank you, Mr. Jackson. Anyone else wish to speak? No? Any questions from the Planning Commission? Yes, sir. I notice in this packet there's a stop work order that was issued. Did they issue the fine for building without a permit, too? That would occur when the property owner goes to obtain the building permit, and he can't make that application until he gets a permit from H-1 in terms of the way the two systems are structured. So when he goes to make that application, if his outcome is anything what we have seen with others who have done work with permits, there will be a financial penalty from building inspection. There is no financial penalty to be put in place from the historic overlay process. The permits have no fee, and there is no financial penalty. But the building, I guess, the structure is there already. I mean, shouldn't he be fined? I mean, I've had affiliated companies be fined $500 for doing work without a permit. And I believe you'll see that happen. If a permit is issued by H-1 to allow it to stay and he goes to get a building permit to bring it into compliance with the building codes, he will receive a financial penalty. It's already violated. He's billed it without a permit. Correct. and he'll be penalized for it by a building inspections process when that is at the right stage of time. Mr. Payland, question? Let me ask you, if you approve the outdoor patio, which certainly is not conducive with the building, and I've been there lots of times, I like to go to his restaurant, even before it was his restaurant. I don't understand why you could approve the outdoor patio, which directly changed the character of the building. Why is the gazebo worse than the outdoor patio? That's the issue that I'm trying to... Well, I was not with the process. That patio has been there a long time. But I believe it did obtain permits way back when, but I wasn't party to the discussions. However, I would suggest the most literal difference is that the patio is a low profile, sits on the ground, it's at grade, it doesn't have roof, three-dimensional members, that sort of thing, and it does run quietly, if you will, along with the foundation area of the building along that side. With commercial properties, all of our processes here in the government, including historic, We have the same criteria to weigh the design decisions that are to result in the changes that they request to make, but everything is looked at on a case-by-case basis. And I think that over time, the Dudley School slash Square property has been looked at very fairly in terms of crossing that line between design and needed use to make it a viable project. And I think the patio responds to that. I think the gazebo crosses the line into something less necessary, more intrusive. And if I might, just a quick one sentence tied to the concept of this being temporary. There's been no indication when this was being built, nor when this came forward, that this was in any way intended to be temporary. And there's nothing that the staff has seen suggest it's going anywhere. Thank you. Thank you. Ms. Phillips, question? I have a question for Mr. Friesberg. First off, your English is impeccable. Very good. Is this structure stick built? Was it built on site? No. It looks to be something that was bought in whole and then placed on the property? Let me tell you how that came about. So after we decided that we wanted to look into a gazebo, I was going to drive out to Jessamine County, where I used to live. And on Nicholasville Road, there is a company, and they make these. I was talking to a carpenter who is an independent contractor and mentioned that I was about to drive out there, to which he said, well, I can just make it for you. I've done those before. His concern was that it would be too large to bring in one piece. So at home in his driveway, he actually constructed it, and then I believe he brought it in two separate parts plus the roof and put it together on site. But it is not fixed, and there's no reason for anybody to sit outside in this weather, really. Am I allowed to respond to some previous comments? Briefly, please. Don't worry, he said, she said type of situation. Everything that I say is documented. And so I haven't seen the package that you were presented on previous applications. so what I can say at this point is not having seen them is that this sounds very similar to the previous case where things were partial truths partial histories were supplied without the other side having seen them and being able to respond. In addition, the comment that Lee Thomas, the neighborhood association that he made. I find it very interesting that he just stopped after the first paragraph. And I also find it very interesting that he does not think that he overstepped his boundaries. Those comments were denigrating. And actually he could be held accountable for that. I've never heard anybody overstepping like that. Thank you, sir. Ms. Beatty, do you have a question? Mr. Friesberg, while you're there, in light with the temporary, this is a follow-up on Ms. Phillips' question, and I'm trying to see if there's some win-win ground here. Okay. If it's a temporary structure, Is there a way also with the historic overlay, Mr. Kerr, that he could apply for that during the warm weather and then remove it, or does the historic overlay not even allow for the gazebo? Even though, and I understand and I'm hearing that, the preference of whether it's not visually attractive. Is that a possibility, that it's a temporary structure for the warm weather, and is that allowable in the historic overlay? You know, the only thing that really has been in a process since determined to be temporary or tense because of the nature of that, this, to my understanding, sits on a series of piers, correct, of concrete block piers, blocks making up piers. And so, you know, it's like somebody saying, well, my garden shed can be moved around. It doesn't meet the definition of what's temporary. There's no question of that in the current definitions. I think that it would be challenging to call this built structure a temporary element. It's very physically real. There's nothing transitory about the nature of its construction. It's solid. It's got piers to the ground. So there's no indication to suggest that this can come and go. It won't fold up and easily go away. It's too big to fit on most flatbeds. You could certainly get it on a big, big flatbed. And I understand that he was saying that it was assembled possibly in two pieces. And I wasn't privy to that. But I know when our inspector saw it, they were physically putting sheets of plywood on the roofing system kind of construction there on site. But I didn't see it prior to that, so I wouldn't have knowledge of that. And this is a question that maybe both of you may need to answer as well. Again, I'm trying to find a win-win for this scenario. So if the gazebo was gone, if it was taken away, but you were looking for that additional space for the warm weather, If he extended what typically is the patio, I'm not saying the physical patio, but typically there are tables with umbrellas if that's still set up in that way. If he extends that over to the green space in the warm weather, is that the same kind of, would that fulfill what you're trying to do, get additional space and seating, and is that allowable? Well, so when we put the gazebo, when we thought about putting the gazebo in, the idea is not necessarily just to have one more table, but the restaurant was constructed in a way so you have different seating areas. You have the bar, you have a private dining room, and then you have the main dining room, and then, of course, you have the patio. The gazebo would have one table in it, and when it's finished, would have a lattice all the way around it with roses or some shrubs blocking off the traffic. And so it's more of an intimate setting. It's not just to have another table. And I understand, because that was brought up during the BOAR, that this gazebo is not going to make or break the restaurant, and I'm not trying to argue that. But it's just one other feature to give the restaurant a little bit of character. Okay. And just thematically, on your table and chair example, they would need no review at all if they wanted to have green space that exists currently and set out tables and chairs on it. Now, there may be some regulations tied to zoning codes about where they can sit with walk past and all that good stuff, but that would truly be a furniture-type topic that would not, from the H-1 perspective, have a review. Thank you, folks. Any other questions from the Commission? If not, I'll close this part here and open it up for discussion and or motion. Anyone willing to take a shot at it? Got an opinion? Yes, Ms. Plumlee? I'm going to move for disapproval of this agreement with the staff on BOAR 2012-2. Second. Motion's been made and seconded for disapproval and that the decision of BOAR be upheld for the reasons staff has presented. Please vote when it comes up on the screen. The motion passes. I'm sorry, Mr. Friesberg. Unfortunately, I don't think he can stay there. Do you have a question for us? Yes, please. I still, and I understand how you rule, and that's fine, but I still believe that the guidelines are overbroad and there's too much room for prejudice and bias in that. And so what I would like to do is appeal the decision, and I would like to possibly, if I could find out the proper channels to do that, please. The staff will be glad to explain to you the appeal process that's outlined in the ordinance, and we'll be glad to talk to you about that. Okay, thank you very much. Thank you. Other commission items? Other staff items? Only, Mr. Chairman, we'll let you have next Thursday off. I think you know it. I hope everyone has a good time, and we'll see you in two weeks with a very important work session. November 29th for a work session. Motion to adjourn. Second. Thank you.