Only for you You see what no one else can see Now I'm breaking free from your eyes on me Only for you The love I know you needed me It's bad to see you grieving me Only for you Only for you For your eyes only The nights are never cold You really know me That's all I need to know Maybe I'm an open book Because I know you're mine But you won't need to read between the lines For your eyes only Only for you You see what no one else can see Now I'm breaking free for your eyes only Only for you The passion that collided me The wild abandoned side of me Only for you For your eyes only For your eyes only guitar solo guitar solo Well I woke up this morning With a wine glass in my hand Whose wine, what wine Where the hell did I dine Must have been a dream I don't believe where I've been Come on, let's do it again Do you, you Feel like I do Let me feel you Do you, you Feel like I do My brain got busted just the other day They said don't go, don't go, don't go away So the two of us taxis To bend the roof in the bay That's the place of music For the wise and quaint Do you, you Feel like I do Now just come on Do you, you Feel like I do bass solo bass solo piano solo piano solo piano solo piano solo piano solo piano solo piano solo bass solo bass solo bass solo bass solo bass solo bass solo bass solo bass solo Good afternoon, ladies and gentlemen. Two clocks out of the three that I have says it's a little bit after 1.30, so I will call this meeting to order. I'd like to welcome everyone here. The agenda has three items on it. I think we're in for two lively discussions this afternoon. First on the agenda, we do have minutes for approval. Correction of the minutes from December 19, 2013 was mailed to the commission members and for one page being left off and they've had a chance to look at that. If there's no other corrections, I'll entertain a motion for the minutes, corrected minutes to be approved. Yes, ma'am. Move approval of corrected minutes December 19, 2013, or 2013. Thank you. Motion's been made and seconded for the approval of the corrected minutes from December 2019, excuse me, December 19, 2013. Please vote when it comes up on the screen. Motion passes. Do we have any requests for postponements or withdrawals from today's agenda? Seeing none, I'll move on and if it's okay with the Planning Commission, I will ask Mr. Salih to sound the agenda to see if we have anything that could fall in the abbreviated discussion item and if so, we'll put that first. Mr. Salih. Thank you, Mr. Chairman. Members of the commission, good afternoon. There is one item that appears on your agenda that may qualify for your consideration in an abbreviated hearing. That item appears on the very bottom of page 3 of your meeting agenda. This is MAR 2014-3, a rezoning request by Haymaker Development Company from an R3 zone to a light industrial zone and from a high-density apartment zone to the same, also from an R3 zone to P1 and from R4 to P1. This zone change involves property with addresses 2250 Spur Road, 2350, 2400, and 2550 Georgetown Road, portions of those addresses. At this time, the staff would ask if anyone's present in the audience wishes either to discuss this zone change or to object to this zone change being proposed for property on Spur Road and Georgetown Road. Is there anyone here present that wishes to speak to this matter? Yes, one. Thank you. Okay. All right. If that is the case, then we will stay in the order of the agenda, which starts with, on page 1, under Development Plans, it's DP 2013-96, Harvey Property. We'll let the staff set up, and as they're setting up, let me make this statement. As I mentioned, we do have three items for discussion now today, and from what is anticipated, we may be here for a while. I would ask everyone to be respectful. We will be imposing time limits today. They are on the agenda, and we will strictly adhere to those. And in being respectful, I would ask, you know, we do want to hear from you. However, you know, keep in mind what has been said before you, and I would simply ask not to be repetitive. And we'll get started as soon as Mr. Martin gets his board set up. I would say while he's setting up, we do have revised staff recommendations for the Harvey Property. They're on a blue sheet that is before you, and then also we do have a requested waiver that's on a white sheet, and there's an abstract that's before you as well. Mr. Martin. Mr. Chairman, members of the Planning Commission, the first item on your agenda is Development Plan 2013-96, the Harvey Property. This is property located on Harrodsburg Road, an old schoolhouse lane which runs parallel to Harrodsburg Road. How we doing? All right. The plan that you see before you is a final development plan. It is a revision from the original submission on this property. It has strong, strong similarities to the preliminary plan that the Planning Commission approved with the zone change. They are proposing apartments in this area. As you can see, there are seven buildings with associated parking. There's a clubhouse in this area along with a deck and pool area for the use of the apartment residents. You can see the street system that is intended to serve the property here along with a got bay in this section right here. And again, we have 42 single-family lots, 196 units in the apartment complex along, as I said, with that associated parking. In this area, we have a large greenway, open space area that's associated with South Elkhorn Creek. The plan that you see, again, as I stated, is a revision. There's a lot of concern, as you are aware, about certain aspects and certain features of this site, one of those being the steep slope along the front of the property here at Schoolhouse Lane. And again, this is Old Schoolhouse that runs roughly parallel to Harrodsburg Road. And this location is an old and historic bur oak. Again, as you all are aware, much concern was expressed about saving this tree. The street that you see here is an extension of Twain Ridge. And Twain Ridge is a collector street that runs from here all the way back to Clay's Mill. And in fact, on the other side of Clay's Mill, there's additional connections and a street system that allows that entire part of our community to be part of that collector system. Agape is intended, as you can see here, to stub in and connect with the existing stub on English Station. It'll then continue, and it stubs into the Kamek property. Down here, and is intended eventually to connect in this through here. The revision that you see was based primarily on concern for the tree and the steep slope. The plan was coming in through here, roughly, with an access point. And it created a slope issue, and they had originally contemplated a waiver request for that slope. It also raised concerns because of that with the depth of the cut into the ground and the impact on the tree. As you can see, now they've dropped it down in this location, moved it away from the tree. The slope is no longer a concern in terms of your subdivision regulations. They can meet the slope. We will cover that in the waiver. There is a waiver request that does address other aspects of the street. The plan was reviewed by your staff, the revision. It has standard sign-offs required, being engineering, traffic, building inspection, addressing office, urban forester, of course the Department of Environmental Quality, bike and bed, green space, division of fire, division of waste management, and in documentation of the Division of Water Quality's approval of the Capacity Assurance Program. I know this body is well aware of the circumstances at the Capacity Assurance Program. Several of the significant issues that were outstanding on this plan have been addressed. First, you can see the tree protection area for the Burr Oak. Not only does this revision increase that area, they have submitted to the committees, you may recall, and to the staff a tree protection plan. They have engaged an arborist, and they have come up with a long-term management plan to protect that tree. There was also considerable discussion about a pre-settlement cultural site on the property. You have been handed out, with a lot of the other material, of course, an abstract of the study that was done by the consultant that the applicant hired. Also attached to that is a letter of review that was provided to staff by the professor at the University of Kentucky, who's the official representative for the state of Kentucky, in reviewing this type of information and updating it appropriately. The site was somewhere in this area, according to some older maps, and you may recall you were presented with that at your zone change. The consultant has gone out, and they've done field work. They've done a study. They've gotten out there and turned dirt and done a lot of work to investigate the area. The review letter states that it is good work. They support the work, and you can read that for yourself. I'm going to paraphrase it for you, but he stated that they did a good job. They will update their maps accordingly. Interesting enough, one of the conclusions is it's not here. It never was here. It was in another location. There was another conclusion. Well, if it was here, it's been so destroyed, disturbed, it's gone, in essence. It's gone. The University of Kentucky professor happens to agree with that assessment. He believes that the mapping was accurate, that it was here, but that it has been so disturbed that it's, in essence, no longer there. You may be aware that most of this property has had its topsoil stripped and has been very much disturbed by a previous owner. There is a need to resolve improvements needed to Old Schoolhouse Lane, including a sidewalk. They have added a sidewalk to Old Schoolhouse Lane. Staff, in working with traffic engineering, just wants to be sure that we do get the level of improvements we feel is necessary along Schoolhouse Lane. They have indicated a willingness to work with traffic and with planning in that matter. The spring was an issue, as you may know, as well as access to the Greenway area. Again, this is the Greenway area. There's a trail system in this location. All this will eventually connect through the South Elkhorn floodplain and in that area and will give people access under Harrodsburg Road as well as back in the opposite direction as part of an overall trail system. And they're showing access in this location. And that has come about in consultation with your green space planner and how best to make that work. There was a lot of discussion about a spring that was discovered on this site, and staff was very concerned about long-term maintenance of that spring. We suggested that they modify their lotting pattern and allow that to be part of the Greenway. Which would allow for it to be protected as part of that system and in essence be a public responsibility ultimately. This is the location. They have done that. They've addressed that. The waiver request that you have before you, again as a handout, relates to two aspects of Twain Ridge. The first aspect of Twain Ridge, as I explained to you, there's concerns about the steep slope here. And in order to address that and move the road and not deal with a steep incline and a steeper slope on the road itself, which was of some concern to some divisions in the urban county government, by moving it, what they have done is created tighter curves. These curves right through here do not meet the minimum radius in the sub-regs, and so they're requesting a waiver. And you can see again these slightly tighter curves. Associated with this waiver, as I stated before, Twain Ridge is a collector, and it's 60-40 right-of-way pavement width. This section of Twain Ridge is a local, 50-31. That was done for much the same reason they're requesting a waiver here, was to get a proper alignment of the road in consideration of the way the property will function and the need, again, to avoid the burr oak. This wider right-of-way would impact the burr oak. It would impact the tree protection area and the buffer in this location. And staff also believes that when this connection is made, and as you know, that's a matter of discussion. That's out of staff's hands. That's out of your hands. It is a public responsibility to build this, and there was a court decision that established that. It's not a matter of if, in your staff's opinion. It is a matter of when, and we have no control over that, of course, but we do believe someday that will occur. This transition to a local will help calm traffic, and that's particularly important since this access has been changed and has been offset. Many of you weren't here, but on the original plan, Twain Ridge, for a different zone change, was going to come through. It was going to go through the tree, and we're going to line up with Military Pike, and we're going to have a collector street intersecting an arterial at a streetlight, a traffic signal, which is a very desirable alignment. But again, here's a modified alignment. Staff has reviewed the waiver request. We have reviewed it with Traffic Engineering. We are recommending approval subject to two conditions. We would like to see parking restricted on one side of Twain Ridge, and we would like for it to be posted at 25 miles per hour speed limit. A lot of your collectors around town are actually 35 miles per hour. We think that will enhance the safety for the vehicular and other traffic in the area. And while I've touched on that, I want to very briefly just touch on another issue. Staff in this body is very aware of the concern about connections into adjoining neighborhoods, and I have an exhibit. There it is. What that exhibit shows you, in essence, is a collector system in that part of our neighborhood, our community, that runs from Nicholasville Road to Clay's Mill and then over to Harrodsburg Road. And you can see where it was interrupted as it approached Harrodsburg Road. The section closer to Jesamine County right there, it curves. It was actually intended and envisioned at one time it would hook up with Dog Trace Boulevard, which is a collector, and provide a link. Twain Ridge is envisioned because that was stopped with the public crossing of the creek to hook up and provide that final link in that collector system to Harrodsburg Road, and you can see how that system works. And I might add there are internal connections with local streets that provide a lot of various options. If I can see the next exhibit, please. This is the same system, and you can see the breaks in the system, and then you can see highlighted in yellow Agape, and Agape is intended to serve the neighborhoods and connect to collectors. And you can see the gaps that exist. The upper gap at English Station is the property that you see before you, the Harvey property. The other gap below it by La Crosse is the Kamek property, but eventually it was planned for those connections to be made. Staff would just say that, as you're aware, we support connectivity. We think it's very important for many, many reasons, not the least being the provision of public safety services. And with that, I'll be happy to answer any questions you may have. And I would add, of course, we're recommending approval of the plan. Thank you, Mr. Martin. Any questions for Mr. Martin? Yes, sir. Excuse me, I'm out of breath. I think I know the answer, but I just want to get it on the record. Who's taking care of the Burr Oak? The owner of the property. The owner of the property. Okay. And whatever entity, I might add, that becomes, will have to take care of the Burr Oak. Any other questions? If not, thank you, Mr. Martin. Thank you. Applicant? Thank you, Mr. Chairman, members of the commission, for your record. My name is Bill Lear. Nick Nicholson with our firm is here with me today. Also here are a number of people, primarily to be resources for you in the event of questions rather than to make presentations. Respectful of your agenda, we're not going to take very long in our presentation, at least at the outset, and then we can respond to questions and comments later. Ray Ball and Rena Wiseman are here from Ball Homes. Al Gross, Rory Cayley from EA Partners. Rich Herndon with Cultural Resource Associates. Ian Hoffman and Tom Kimmerer, who jointly worked in preparation of the tree protection plan and the established tree protection zone, are also here. Tom Kimmerer is going to make a presentation about the tree protection plan, as well as the investigation that he and Ian have gone through to come up with the terms, the provisions of it. The status of this plan today, the property is zoned. R3, it's final, non-appealable. The types of units, the number of units, everything that's shown on this plan is consistent with your previous approval and the council's previous approval, consistent with the zoning ordinance. Key features of the plan are essentially, as you saw them with the preliminary development plan, same types of units in essentially the same locations. Road connections the same. The entrance road has been shifted. The place at which it hits Old School House has been shifted entirely for beneficial reasons. The waivers that you're talking about are nothing more than affecting the best relationship of the road to the tree and to the property, eliminates, it reduces the amount of vertical slope, which is a good thing. The access point to Old School House creates more stacking distance down there for traffic coming down, which is a good thing. The width of the road is exactly the same as it was shown on the preliminary development plan, so that is not new. The conditions suggested in conjunction with that are fine. As a matter of fact, in reviewing this yesterday, I noted that in the entire length of that road, there are only four residential units that actually front on that section of the road. And across the road from them is undeveloped, undeveloped and undevelopable. The rest of them have no immediately adjacent or fronting kinds of relationships. So parking, even without the restriction that's been proposed, is likely to be very limited, and we're in agreement with that. Speaking of the conditions, we are agreeable to all the conditions in your staff report that have been handed out to you to get that off the table immediately. The spring that was mentioned has been taken out. It was originally shown in the rear portion of one of the lots. That has been reconfigured so that it's now in the open space in the floodplain. To the rear, pedestrian access to the greenway has been provided. So essentially what you have is the result of a fair amount of work with the staff to fine-tune this, as well as to take into account any expressions of concern that were previously aired during the two full-blown public hearings that were had during the zoning process. The two remaining issues, given all that, were the necessity, per your note at the end of the hearing before, to further address the pre-Columbian site that was shown on some of the old maps. Our presentation at that time, based on the research done by Cultural Resources Associates, was their conclusion that the site was not on this property, was somewhere south of here, but even if it were on it, their investigation showed that any remains had been destroyed, long since lost. After a lot of additional time and effort, the conclusion from both the University of Kentucky and from Betty Kerr communicated to you on behalf of the Historic Preservation Office of the government is it's either probably not there or may not be there, but in any event, it's gone. And I think that's the unanimous opinion of everybody, is there is no remaining site that is appropriate for preservation, and certainly none has been located. The last issue is the tree protection plan, the tree protection zone. When we were here before, our initial proposal was a 50-foot protection zone. That issue was not resolved intentionally. It was deferred by the commission to be addressed at final development plan. There was a lot of conversation about it at the Urban County Council. They took no action on it other than to allow it to come back here to be resolved by the planning commission at this stage. Since that time, there's been a great deal of additional investigation. There have been some modifications. One thing before Tom Kimmerer comes up I would like to show you, I'm not sure I went through this exercise here at the first public hearing. I did go through that exercise at the council hearing stage. We have now expanded the minimum depth or width, however you want to call it, of the tree protection area from 50 feet. 70 feet is the construction limit. 72 feet will be the nearest point where there is any new hard surface. We originally had a trail going through there that's been removed. We originally had a gazebo, more of an aesthetic feature than anything else. That has been removed. It would have been, as you're looking at it, it would have been a little above on there. And what you see is that the reality is that while the minimum is as shown on here is 72 feet or 70 if you want to talk about construction, that only occurs in a very small percentage of the 360 degrees around the tree. Every other place besides the nearest point, there is an enormous amount of acreage to be, or square footage, however you want to call it, distance to be preserved and protected. So with that bit of introduction, what I'd like to do now is to let Tom Kimmerer just take a couple of moments to tell you about the work that he and Ian have done and their conclusions about the appropriate tree protection plan. And by the way, have we handed the exhibit? Yes. All right. You have their materials as well as some others I've already mentioned in the booklet that's been passed out for you. Thanks, Bill. Hi. My name is Tom Kimmerer. I'm a forest scientist and a tree physiologist. I have a Ph.D. from the University of Wisconsin and over 40 years experience working with trees and forests in research and management. I'm now the chief scientist of Venerable Trees, which is a new nonprofit that is dedicated to the conservation of ancient trees in the bluegrass. I'm also the author of two forthcoming books about trees, the first of which will be published next year by the University Press of Kentucky and which prominently features this particular tree. I want to introduce you to this tree real briefly. This is a bur oak. There's been some talk about this being some kind of hybrid, and I have a suspicion that maybe it's grandpa fooled around a little bit, but it's bur oak. You've also been told that it's about 300 years old. I don't know where these numbers come from. I have a much better number for you. I have a pretty good idea when this tree got established, and that is sometime in the 1530s. This tree is about 480 years old. And I won't go into the details of why I think that, but you can buy my book. This is a very vigorous, very well-growing tree. Ian Hoffman and I have spent a good bit of time inspecting this tree. It's growing vigorously, growing rapidly. Some of you may have seen in the news in the last couple of weeks the discovery that's been made that in contrast to the conventional wisdom that trees, like most organisms, slow down as they get older, it turns out that trees grow faster and faster the older they get. So in terms of carbon accumulation, in terms of growth and vigor, this tree is getting healthier, not declining. We do have one area of concern. If you look at the bottom right panel of those pictures, you'll see some little holes. Those are caused by round-headed borers in the Serambicid family. Ian and I believe that those holes are old and inconsequential, but we are going to mark the holes and monitor them this spring and see if any more beetles emerge. And if they do, we'll identify them and see if they're a problem. If they are a problem, we would treat them the way we treat emerald ash borer. Let's go to the next slide, please. You saw from the figures that Mr. Lear showed that this plan is asymmetrical. It's 72 feet on one side and more than 100 feet on the other side. And I want to point out that some of the most, in fact, many of the most vigorously growing ancient trees in the bluegrass have that kind of asymmetrical pattern. The top tree is the Ingleside oak, which many of you drive by every day on Harrodsburg Road by Red Mile in the Avis parking lot. That was once part of Ingleside Manor. It's 8 feet from Harrodsburg Road and has been 8 feet from Harrodsburg Road since Harrodsburg Road was a Buffalo trace. But it's got plenty of room on the other side, and it's a very vigorous, very healthy tree. The other tree is a rural Fayette County tree that you can see is within 10 feet of the road. This is on or right off Russell Cave, I forget. And, again, it's asymmetrical, but it's doing very well. There's no reason why a tree has to have a symmetrical protection zone. Next slide. The existing landscape is interesting. The brown pattern there is fill. This tree is not growing in undisturbed soil. I suspect when the house was built, it's to the right there, that a bunch of soil was moved over. So there's, in various places, 2 to 3 feet of fill dirt on top of the existing soil, and it didn't seem to have troubled the tree at all. The triangles there show the soil pits that I dug, and the insert in the top left, you can't really see it very well, shows the soil. This is extraordinarily deep soil. It's at least 4 feet and probably 6 feet deep of what we call the solum. And, interestingly enough, there are almost no roots of this tree in that surface area. This is a very deeply rooted tree, which is why I'm pretty sure it got established during the severe drought. In other words, even what little disturbance will take place during construction is not going to be in the root zone of that tree. We will very carefully remove the existing pavement, and then we will very carefully establish the tree protection zone. Next slide. The tree protection zone will consist of a layer of paper to kill the grass. We're not going to use herbicides. And then a layer of mulch. It will be surrounded by a fence during construction. It is, as Mr. Lear pointed out, 72 feet on the shortest axis. It's 3 quarters of an acre tall, .72 acres to be exact, which is a huge amount of space for a tree like that. And this is well in excess of the NCA 500 standard that you might have heard a mention of. I have absolutely no doubt that this tree is going to be well protected, and it's my job to ensure that it is. And we will be inspecting this tree on a continuous basis throughout the construction period. And then afterwards we will present the property owner with a long-term management plan for this tree. Unfortunately, an awful lot of these ancient trees, and Mr. Wilson kind of alluded to the question, who's taking care of that tree? And the answer usually is nobody. This tree was part of a grove of trees that stretched across Harrisburg Road. And after Firebrook was built, there were still about 15 really old trees in the Firebrook area, and all but two of them are gone now because they just weren't taken care of. This tree is going to get adequate care. Thank you. Thank you, Mr. Venerable. Others? Mr. Lear? That concludes our presentation. In case it wasn't clear from what Tom said, we have engaged him to monitor the construction as well as to conduct periodic inspections afterwards and make sure that the tree is properly cared for. So I respectfully suggest to you that we have responded to all the questions that are remaining. As I said, we agree with the conditions proposed by the staff and would ask your approval for the plan. Thank you, sir. Anyone else that would like to speak in favor of this plan? Seeing none, we'll move on to the opposition, if I may. Let me ask, is there a spokesperson for the opposition that may collectively speak for people? No? Okay. Anyone that would like to speak, please come forward. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Any other speakers that would like to speak, please come forward, give us your name and address and you will be limited to three minutes. Please come forward. My name is Kate Giuliani. I'm a resident of Firebrook neighborhood across the street from this proposed development. I came in October to the city council meeting and prepared at length. My arguments against the proposed development with regard to the EPA's consent decree, um, with South Elkhorn being the number one offender of the sanitary sewer overflows. I emphasize the added strain that would be placed on this pump station, as well as the watershed that we share. Um, I presented a petition at that time with 254 names of, uh, other Firebrook residents who are opposed to the development that took only about two hours for me to have signed by standing on my street corner. So I know that there's a, there's considerable opposition across the street from this proposal. Um, but I don't come to you today with all the statistics. I'm not a civil engineer. Um, in fact, I don't take taking off work lightly and that's what I've had to do to be here today. Um, but I come to you because I look at this and I look at the force fitting nature of this. I look at the steep ingress. I look at the, um, the lack of appropriate connectors through dogwood trace. I look at the fact that you're going to, um, potentially place 241 dwellings in this constricted 24 acre tract of land with inadequate access in or outbound. No, um, no public services or buses come past Palomar. Um, there are no sidewalks. There's, um, I've watched school buses. Can't climb this hill. Um, I've seen with even black ice, if you want to take it earlier this week, you could go over and see the trouble that people have getting up and down these, these hills in a certain weather conditions and, um, accident conditions. But more than all of that, I have to ask why is there a need? Do we have a shortage of apartments in this district? And we don't, we have apartments that are less than one mile from this proposed development that are not full. We have an abandoned development of townhomes that we're not selling. So we have literally an open place between townhomes on Harrisburg road and apartments that was intended for townhome development that was discontinued. And I say, why, why are we force fitting something that's not even needed in the city? Why are we placing residents at risk? Um, why are we asking for waivers, which I consider to be another word for apologies or forgiveness? Why would someone be standing before you asking for forgiveness in their plan for dwellings that are not even needed in our community? Thank you. Thank you, Mr. Next. Hi, my name is Kim. I'm, uh, I live in dogwood trace neighborhood. I was the chair of the dogwood trace, um, park committee, um, where we put in the trail that's in dogwood park that will, um, connect through the South Elkhorn greenway. Um, and my initial concern was the spring and the connectivity through the greenway. And that has been taken care of and I'm happy to see that that was moved, but looking at this plan, stepping back and looking at the overall, I agree with Kate. I'm concerned at the overall look of traffic. I understand the tree must be saved and the tree is very important. We all agree on that, but my concern is that we have now then made the road smaller and ask for a waiver to make a very sharp turn. And it just seems to me that if you're going to keep the tree and you're going to try and keep traffic, right, there's going to have to be a decrease in the number of residents in that area, because I just don't see how that road allow that waiver of that, that really tight turn. And also to keep the road narrow when we feel that it's going to eventually connect through and be a major collector. That's my main concern there. And I also have a concern that when we look at collector streets, Agape is a collector street is supposed to be a collector street, but it was not built. And I know we have someone who has the information, how wide, um, but I just really wanted to express those concerns. I feel like if we were going to save the tree, we need to do it right. We don't want to just kind of partially save the tree, maybe not give it enough space and also cause a big problem with traffic. I think we need to do the proper thing, make sure this tree has plenty of space and the traffic is done properly. Thank you, ma'am. Next. Good afternoon. My name is Roger Marion. I live in dogwood trace. Uh, I'm a geologist and I've had extensive training and experience in cursed, uh, geology. And I just wanted to reiterate some points that I've made in the past and sent documents to document my, my, uh, arguments. Um, cursed is underground solution. Uh, Development of, of, uh, openings underground. And, uh, it's caused by a number of things, primarily from water moving underground solution of limestone, which is the primary geology of the area. And it's an ongoing dynamic process. It's not something that a study will say will never be affected by the development on top of it. Um, there is always. A possibility of affecting water quality, the spring and the Creek that run underground, the floor and the fauna that are affected by this water quality. And I just want to point out, um, you know, the very dramatic news article recently about the Corvette museum down by Bowling Green. Um, that was. Probably studied to death before it was built, but look what happened. Um, it's been a long time since it was built. So we can't always. Count on pre construction. To point out that this is going to be a safe development. Um, And I have similar. Uh, questions about access and traffic. And on some of the other folks that are with us. Thank you. Thank you. Thank you, Mr. Marion. Yes, ma'am. Hello. I'm Dr. Lauren Larson. And I've been to many of these meetings. And in the last five years, I've been to the planning commission meetings. I've been in city council meetings. I've been to a technical commission meeting and a committee meeting, a subdivision committee meeting. Now another planning commission meeting. It's been interesting. And I will admit that I'm quite disheartened. Um, It is really difficult to hear and to watch from the side and not be able to speak up. Very much. And to hear this committee say, well, this committee had already talked about it. And that committee say, well, this committee talked about it. And I've been to both committee meetings and they didn't address the issue. And I'm unable to voice that concern. And so that's what me and the residents are here today to present our concerns that we feel. Um, in some ways have been addressed. Thank you, Mr. Kimmerer, Dr. Kimmerer, I should say. In some ways have been addressed. And then in other ways have not. And each one of these meetings, we find new things, um, a waiver to a road. That's new to me. Um, before we were at the planning committee planning commission meeting, it was the burial site. That was new to me too. And so we ended up going off on these various paths and they just throw this information out and expect us to catch up. So now we're dealing with a waiver to a road, which we didn't know about the waiver and a road that is quite inappropriate with the entrance onto old school house lane. So my concerns here are, as you all know, the total loss of, um, crown canopy to these trees. Um, the Baroque tree. Yes. It's my baby. It's big baby. And, um, there are three other significant trees in this area as well, and they're going to be destroyed too, for the sake of an apartment building, but we won't discuss those trees. The problem is, is that when you lose these trees, you lose total crown canopy and you can't just grow that back. You can't just grow back 150 years of. tree growth. Citizens of Lexington have repeatedly expressed that they do not want to lose, particularly this baroque tree, and for obvious reasons. And Dr. Kimmerer has expressed that it is a wonderfully growing tree. And that is nice to hear. And then he also addressed the treatment plan, which in the treatment plan, the planning tree protection plan that they had originally addressed, there was no future for this tree protection plan. It's like, here it is. Here's the Band-Aid to the problem. And we saw that issue. So now you don't have anything to say about the future of this tree. Well, I have to think about 10 and 20 years from this tree. When I go down the street and I see this tree growing, I want to know that it's going to be well protected in 10 or 20 years from now. The other thing I'm talking about is I'm a concerned mom. I've got three little kids. And I've seen these hills. And I've seen people go up and down these hills. Now, if you go to picture seven and eight, I'm sorry. Dr. Larson, you have about 10 seconds. Are you serious? I'm sorry. Oh, man. I prayed for five minutes. But anyway, so if you go down to seven, eight, look and turn the side. OK, those are the cars that are on Old English Station. They can't get up their hill. So they park at the bottom of the hill, by the way. This is a similar hill to the hill that they're going to build. There they are again. Keep going. Again, parked at the bottom of the hill because they can't get up the hill. There's another truck. It can't get up the hill, so it parks at the bottom of the hill. And there's the other car that had a hard time going Dr. Larson, excuse me. Oh, but can't I have two more minutes? I'm sorry. But I really need that five minutes. I'm sorry. We're on a very strict schedule today. Well, I just want to point out that these cars, you're putting more traffic on this road. Yes, ma'am. And these cars are going to have to turn and go make a U-turn to get on Old Glass Lane. Do you think these cars can do that? Yes, ma'am. I'm very worried for future people, including moms in minivans with their little kids. Thank you. Thank you. Good afternoon. Thanks for hearing us out. I'm Christina Dudak. I'm a resident of the Firebrook neighborhood. I'm also the vice president of the Homeowners Association because of this issue. Thank you. And so there are many residents in our neighborhood that are concerned not only with the increased traffic, but with the number of units that are going to be put into the neighborhood. I also am concerned about the tree, but I think we've covered that. I think that the numbers that have been given, and I would ask that you really look at the numbers that have been given as far as density for the R3. Ball Homes is also going to purchase the six acres behind the Primitive Baptist Church. And it is, from my math, when you take those six acres out and do the units that are just on the 24 acres in question, it makes a density of over 12 instead of under 10, around 10. So when you do add those six acres in, it does get their density numbers back to 10. But I think that we only need to look at the density for the 24 acres versus the 30 acres. And I think that's something that you all haven't looked at as closely. It needs to be looked at. And the Primitive Baptist was R3 before this area was in question. I am concerned about this being a riparian area for the fact that the South Elkhorn comes to a convergence there at the corner. Just the pollution, it's all running downhill. I'm concerned with the fact that once these parking lots get in there and there's not the grass that can soak up whatever is going to come from these vehicles or whatever that's going to run right into our creek, which we already have an issue with. Again, I don't think that the Carrick property has been secured yet as far as the connector there for Agape. I think that's another area of concern. But I just wanted to bring a voice to it and let you know that we have 435 houses in Firebrook, and most of those are against this development. Thank you for your time. Thank you, ma'am. Yes, ma'am. Good afternoon, members of the commission. My name is Jan Geddes. I live in Dogwood Trace. I hope to convince you that the use of Agape as a collector street for the ingress, egress of the proposed old schoolhouse lane is untenable. Namely, in relation to the proposal before you, Agape would be that connector street. The Kammack property currently separates the development. Agape is privately owned. Therefore, the required right of way is not feasible at this time. Unless and until this property becomes available, the only ingress, egress remains old schoolhouse lane and is therefore not compliant with the comprehensive plan. In the LFUCG roadway manual dated 2005, the collector translates to a street that collects traffic from local streets, feeds traffic into a larger, higher volume. The standard width for collector streets in Fayette County is 36 feet with curbs and gutters. Widths are designated for the quote, reasonably expected uses, which tend to lead to wider streets. Agape narrows to 29 feet inclusive of curbs and gutters. By definition, then, Agape is clearly not wide enough to constitute a collector street. Designed for reasonably expected uses, Agape was created to encourage safe pedestrian bicycle passage, less daunting crossing on street parking, traffic calming devices, including more frequent stops, lower vehicle volumes, slower speeds, more watchful defensive motorists. Fayette County school buses pick up students no fewer than four times per day. According to Jean Gardner, Associate Traffic Commissioner, parking prohibitions such as that necessitated by this extension can only be made through petition process. At an earlier hearing, I presented a petition signed by 85% of my neighbors on Agape Drive asking that the prohibition not be allowed. I thank you for your consideration. Thank you. Others that would like to speak? Good afternoon. My name is Lenita Clark. I am a resident of Bellwood Trace for 23 years. I'm here to speak about the problems that you all are familiar with, with the proposed connection to Agape. I think we're all aware that that's really not a feasible answer. The other thing that I think the developer is counting on is this Twain Ridge connector that was spoken of earlier. And it was admitted they have no control over whether that ever is going to happen, because that has to be funded by taxpayers. And we know taxpayers are not going to approve millions of dollars to build a bridge when we're so squeezed for money as it is. So really, it looks like the only way in and out of the subdivision ever is going to be Schoolhouse Lane. And part of the problems with that have already been pointed out. I am donating my remaining $1.5 million I am donating my remaining minute to Mrs. Larson. Thank you. Thank you. Today, we're sticking with three minutes. I'm sorry. Can I do that? No, ma'am, cannot do that. I'm sorry. No, ma'am. Not today. Others that would like to speak? Yes, my name is Bob Paddy. I live at 2500 Sungale Court in Fairbrook. My house is the next in house on Sungale Court. At the end is where military, where Dead End's right at Military Pike. I've lived there since Harrisburg Road was two lane. Went through all the blasting. We had a pre-blasting survey done at my house with pictures taken in every single room and the basement around the whole house. At the end of the time, we found out that there was damage on three different walls. I did forget to tell you, I'm a retired state of Kentucky employee working for Department of Transportation. I did not work in maintenance. I did not work in construction. I was in traffic division. The traffic light at Military and Harrisburg Road, the way they reconfigured it, some idiot in Frankfurt or Lexington made that was going to be one way in on Harrisburg Road and one way out. My traffic crew went out to stripe that and says, no, you cannot do that. Harrisburg Road, there's so much traffic on Military Road that you can't get that many people out with one turn lane. It's going to go right, straight, and left. So we made it into two. You're all probably familiar with what happened since then. There's so much traffic that they had to put three lanes. So now you have two left lane lanes and a right lane. You can make a straight line, which I would not do going across. During my survey of this whole area on Old School House Road, I measured every road and looked at the condition. The road itself on Old School House Road was made with a very, very little base material and has probably 1 4th the amount of base material as a regular street would. If this goes through, that road will have to be torn up and done something to it because you can't just add more blacktop on top of it. My concern is this kind of thing and traffic. It's really awful to get out of Firebrook or Dogwood Trace in the morning or get back into it in the evening. I'm also concerned with children. And in an area like this, you're going to have lots of children and lots of safety problems. And thank you very much for listening to me. Thank you. I would concur. I've probably been in a private setting in my vehicle before and wanted to call somebody something for setting a stoplight. However, in a public setting, let's be respective and refrain from that. Next, please. Hi, I'm Ruth Mirian. I live in Dogwood Trace. As a wife and a mother and a neighbor in Dogwood Trace, I'm concerned about the safety of opening up Agape, which is not wide enough as a through street. There's already been a bike accident where someone got hit in the neighborhood going too fast. And I'm really concerned about all this extra traffic that's going to be on Agape. And one other thing I wanted to mention, also as far as the old borough goes, just recently in the paper, they showed an old borough oak that got cut down along the street. And I was really sad to hear about that. Thank you. Thank you, ma'am. Anyone else that would like to speak? Seeing none, Mr. Lear, any sort of rebuttal? Very few. Just to add a little bit of information about English Station was mentioned and the slope. The slope of English Station is what we have changed the road configuration of the new street to avoid by going at an angle. It has a lower slope than English Station does. And English Station, by the way, was originally built as a temporary access and therefore did not have to comply with the permanent access standards. Density was taken into account at the zone change level. As a matter of fact, the number of units is 248. And that does take into account the property that's behind the church that's incorporated on this. This plan shows a density of 238. It's actually, I think, a little less than what was shown at the preliminary development stage. The planning commission hearing. Last but not least, we're all on karst in all of central Kentucky. So if that were a reason not to develop, we'd all need to pack up and leave. Same for riparian issues or storm and sanitary sewer issues, as we said at the earlier hearing. This is an area that's almost entirely developed out. So the concerns about those issues being expressed by existing residents are essentially concerns of their own making, if they are concerns at all. And we believe it. And I think I mentioned before, the pump station that was mentioned was one of the very first things that was addressed with new funding even before the consent decree was effective. So that has previously been addressed. Thanks for your time. Thank you. Staff, do you have any rebuttal? Dr. Larson, would you want to provide a brief rebuttal? Can I please? Your time is limited, but very brief. I'll be good. I promise. And it's rebuttal. Microphone. Basically, yes. I guess he said what he said about English Station is a steep hill. And so therefore, they did grade this one differently and longer. My concern is that even, I don't care how steep that hill is, you come down, and you've got to go, and you've got to turn. Stay at the microphone, ma'am. It's a parking spot or a stop. Good luck. You're going to be sliding through it. I've slid on plenty of roads, especially this last week, on roads that even weren't that icy. So this is not safer. Yeah, the hill might be less steep, but it's not safer. And as far as the argument, it really confuses me why people make a comment on our concerned citizens who live in our area, and they don't live in our area. They don't see what we see. They don't see the traffic flow that we see, the traffic flow. They don't see the accidents that we have to deal with when people drive stupidly or bad. So yeah, they comment about our area, but they don't live there. And that's what our concern is, because we see the problems that can exist. And hopefully, you all will listen to these problems that we're explaining to you before. I like to prevent problems before they start, preferably. So I think that's it for my rebuttal, I guess. I've never been a lawyer. Thank you, Dr. Larson. Thank you. At this point, I'll close this part of the hearing and open it up for any discussion from the Planning Commission members, and then we'll move on to a vote if the commission is ready. Any comments? Ms. Plumlee? Yes, thank you to the neighbors for appearing today. We always appreciate your presence. My concern is more about the connectivity. It's a word we hear a whole lot about these days in the commission. And there is only one way in. And until Agape connects, there is just one way in. So I have concern about that, just that one way right now. Thanks. Mr. Drag, did you have anything? Yeah, thank you, Mr. Chairman. I have a question for staff. Staff report recommended approval. Has staff heard anything today that influences or would modify that recommendation? Are there any unanswered questions in staff's opinion? No, sir. Thank you. Anyone else? I would like to say we do take the concerns of citizens very seriously. We do travel these roads with you. I can promise you we come out and look at what's going on at various times during the day. And as I said, we take it very seriously. We appreciate that. As you all know, there has been some talk as far as closure for Agape. And as you well know, that's a council action. So if that's the direction that you so choose, good luck. Today, we are talking about a development plan that doesn't include the south side where Agape is at this point. So if there's nothing else, let's see here. Mr. Drake, are you back? No. If there's nothing else, I'll entertain a motion. Yes, ma'am. Move approval of DP 2013-96, the Harvey property with the 15 requirements conditions outlined by staff. Does that include the waiver? Including the waiver. OK, thank you. Motion's been made and seconded for approval of DP 2013-96 with the revised 15 conditions on the blue sheet and also the waiver with the recommendations as stated by the staff. If there's no question on the motion, please vote when it comes up on the screen. That motion passes. Thank you, folks. We will move to Boone Creek. Mr. Chairman, if I may? If I may? Yes, sir. We understand that the citizen that was here earlier to discuss the Coventry zone change no longer wishes to address the commission. We could see if that item would qualify for an abbreviated hearing at this time, if you wish. OK. We would ask if anyone is present to speak to an item at the bottom of page three of our agenda, MAR 2014-3, the zone change by the Haymaker Development Company for property at 2250 Spur Road, 2350, 2400, and 2550 Georgetown Road. Again, at this time, is there anyone present who wishes to object or to speak to this proposed zone change for the Haymaker Development Company? OK. Seeing none, we'll proceed on with that with an abbreviated hearing. It's at the bottom of page three, Haymaker Development Company, the MAR 2014-3 Haymaker Development Company, with the Associated Zoning Development Plan at the bottom of page four. Mr. Salih's handing out a traffic impact study. And on a TAN sheet, there is additional conditions for ZDP 2014-7. Good afternoon, Ms. Wade. Chairman Owens, members of the commission. This is MAR 2014-3, Haymaker Development Company, LLC, as the applicant. I do have a letter submitted by Commerce Lexington in support of this request, which I'll circulate for the record. Thank you. The petitioner has requested a zone change that is divided into four parts. It's a request from an R3 zone to an I1 zone, a request from an, I'm going to go to the map here, the piece that's R3 proposed for I1, a piece that's R4 proposed to go to the I1 light industrial zone, and then here, a piece that's currently R3 and proposed to go to I1, and a piece that's R3 to I1, R4 to I1, R3 to P1, I believe, somewhere here, and R3, R4 to P1 here. It's actually very confusing, yes. So there are four pieces to the request. The largest piece of the request is to go from R3 to I1, which is the most northerly piece of the subject property. It is a piece of the Belmont farm, which has been developed under the Coventry name. A piece of that has been developed with single family residential along Spur Road, and Spur Road currently ends and is not completed. And in addition, a piece along Remington Way is completed for multifamily development, and then that street also ends in a stub. The other piece that was completed with part of Coventry is a small park. As the developer has moved forward in this location, there's a piece that's also being sold to the school board for a new elementary school, and that is along Georgetown Road at the entrance to the subdivision at Spur Road. So also in the vicinity is, besides the Coventry neighborhood that's under development, there's vacant land at the intersection of Citation Boulevard and Georgetown that's proposed for commercial retail development in the B6P zone. To the south is a single family residential neighborhood, the Belmont farm neighborhood. And to the east is the Coldstream Research Park, and to the north remains agricultural land for the UK, I believe it's the dairy farm. The subject property has also been the subject of two previous zone changes over its 25-year history. In 1992, the property was rezoned in conformance with the Coldstream Small Area Plan. At that time, it was an R3, P1, and P2 request. In 2001, the property was rezoned to its existing configuration of a mixture of residential for R3 and R4 zoning, professional office along Georgetown Road, and then the shopping center, retail center at the corner of Georgetown and Citation Boulevard. The mixed use development has yet to be fully implemented with just, as I mentioned, the single family residential, the park, and then the multifamily along Citation being developed. At this time, the petitioner is proposing professional office parcels that will border the multifamily along where Remington stubs into the property, and then further north, light industrial uses. This is just a photo of the end of Remington. As you look to the north, you can see the property is vacant or under agricultural use. And then a photo from Spur Road at its terminus as well, looking to the southeast. The 2013 comprehensive plan no longer focuses on specific map-based land uses, but utilizes more of a policy-based approach, which provides some flexibility for the planning commission as well as the applicant. Previous comprehensive plans have proposed different zoning for this area or land uses for this area, which is reflective of the multiple zone changes, but also that there may be an array of possible appropriate uses in this area. The 2013 comprehensive plans does suggest that more jobs land be developed, in addition, land that is additional land that will permit employment opportunities within our county. Specifically, the comprehensive plan identifies that 500 acres have been depleted since the 1990s that was land ready for job creation. The proposed zone change will help to restore almost 100 acres of that acreage, with the goal of providing shovel-ready land to be marketed by local economic development professionals, including Commerce Lexington. In addition to supporting the goal of creating more jobs land in the urban service area, the staff does believe that the existing zoning is inappropriate at this location, and the proposed zoning is appropriate for several reasons. First, the P1 zoning that's proposed does provide an appropriate step down from the multifamily residential to the south, and a buffer between that and the industrial use. In addition, where the Fayette County Public Schools is utilizing at least about 15 acres of P1 land at Spur Road in Georgetown, this would offset that by providing another 14 acres within close proximity, thereby maintaining that amount of job land in the area. Second, the light industrial land is compatible with the Cold Stream Research Campus that exists to the east, and that is one of several zoning categories that can fulfill the goal of creating job opportunities for the county. In addition, there's an existing greenway along the east side of the subject property that will provide an appropriate land use buffer between the single family of the Belmont Farm and the proposed light industrial. In addition, they're also developing their roadway along that boundary to provide an additional distance buffer. Lastly, the R3 and the R4, in the staff's opinion, are inappropriate due to the less than favorable market in this portion of the community for multifamily residential, as evidenced by the slow rate of sale and occupancy of the nearby multifamily residential. For those reasons, and in addition to the comprehensive plan goal of creating jobs and prosperity, the staff and the zoning committee do recommend approval of this requested zone change. The last two things I would mention, in addition to the approval, the staff is recommending conditional zoning restrictions for the subject property. There are restrictions that exist on the property today, and the staff believes those conditional zoning restrictions should be maintained. First and foremost, to protect the Royal Springs Aquifer recharge area, because it's an environmentally sensitive area and provides drinking water for the city of Georgetown. And those restrictions then would continue to protect that water source. There is a traffic study with this proposed zone change, since it is a quite large development. And I think Mr. Selle will present that following the development plan. I'd be happy to answer any questions. Any questions for Ms. Wade? No? Thank you. Thank you. Mr. Martin. Mr. Chairman, members of the planning commission, the plan that you see before you today in association with this zone change is at the bottom of page four of your agenda. It is a preliminary development plan and a preliminary subdivision plan. Ms. Wade, of course, explained to you where it was located. And you can see here the Citation Boulevard in this location with its intersection at Georgetown. Here is Coldstream in this area. Spur Road comes here and will end at this location. You may recall you recently saw a plat for a school site in this area. They are proposing the P1 area with this lotting pattern that you can see. Remington Way will be extended here. Here are the industrial lots that are being proposed. As stated, here is the proposed open space in Greenway in this location. The plan was reviewed, and it has your standard conditions of approval, including engineering and traffic and building inspection, your urban forester. They do need to add some additional information per Article 21, addition of a cross-section for Remington Way, which will serve the property, and then provided the Planning Commission grants a waiver, and I'll return to that shortly, along with the need to address the pedestrian connection and the landscape buffer. The pedestrian connection has been added to the plan. You can see it. Staff was concerned with the termination of Spur Road, which was done to prevent industrial traffic and all that flowing through the residential neighborhood, that at least a connection be made, so that if people live here and had the opportunity to work here, it would be a nice connection that they could walk to work or bike to work and that sort of thing, perhaps go home for lunch. The buffering was discussed, and the applicant intends to place the buffering in this area closer to the residential neighborhood. That will allow it to be more effective visually due to the relief that exists in the area. The waiver that you're being requested to approve is a waiver of the length of the cul-de-sac at this point. Your subdivision regulations state that a cul-de-sac should not be more than 1,000 feet in length, and that relates to fire safety concerns that were developed some years ago. In this case, it is well over 2,000 feet in length. However, there are several important considerations, one of which is you can see the lotting pattern, and there's only a few lots, and they're very large. That's all that's going to be served by this cul-de-sac. In addition, the applicant has agreed, and there's a note on the plan, they're restricting the development in this area to final development plans. So this body will see final development plans for this property, and will be able to evaluate that public safety issues have been addressed adequately. Environmental issues, for instance, will have been addressed adequately. So with that, and in reviewing the request, staff has recommended approval of that waiver. There is a item, a couple of slight revisions that we need to put up on the overhead for you. These are two additional conditions. Staff met with the applicant, talked with the applicant, and we wanted to help facilitate and work with them in developing this property for job creation and economic development opportunities. So in that discussion, we ultimately recommended that they blend this plan, which, as you know, is not unusual. So we have it as a, it was originally a preliminary development plan, and we recommended that they make it a preliminary subdivision plan as well. And that grants them their desired flexibility in the industrial area, particularly, so they can work with specific clients on the best way to develop that property and how much acreage they ultimately may need. But because of that, and because, as you know, no good deed goes unpunished, we have a couple of conditions to add back to the plan. And that's simply that they add the words back, preliminary development plan, into the title, and that they add the owner and planning commission certifications back to the plan. Those are development plan requirements under your ordinance. And again, it's a fairly straightforward plan, although it does cover a lot of acreage. Your subdivision committee is recommending approval. And as I stated before, staff is recommending approval of the waiver request. I'll be happy to answer any questions. Any questions? Mr. Martin? No? Thank you. Thank you. Applicant? Confirmation? I'm sorry, traffic study. Sorry, Bill. That's quite all right, Mr. Chairman. Again, it's my pleasure to briefly go over with you the traffic impact study review memo that has been supplied to the commission from the transportation planning section of the division of planning. We'd just like to highlight a few of the items on this, a two-page memorandum to you, basically. Beginning with number six, it is anticipated that this would have full development in the year 2019. That is five years from present, and that is one of the requirements for a traffic study is that it consider the full build-out of a given project. Under number eight, there is a typo, but basically there is one way in and out of this development, and that is at the intersection of Citation Boulevard and Remington Way. On the table right below that in number nine, it's anticipated that in the morning, once this entire 98 acres develops, there would be approximately 883 new trips. And in the morning rush hour, and 649 new trips in the evening rush hour. In flipping to the second page of the memo, there were three critical intersections reviewed by the study. Those are Georgetown and Citation, Remington and Citation, and also McGrathiana and Citation, which is just off the drawing here. All of those currently are level of service C, and all at full build-out in 2019 are also anticipated to have a level of service C. It's significant if you look at the middle of the chart. Citation Boulevard and development access, that is the intersection at Remington Way, is anticipated about an additional four seconds of delay typically for that at full build-out in 2019. Thank you. I'd be glad to answer any questions the commission may have about this report to you this afternoon. I would note the conclusions are on the bottom of that second page that the study has met the ordinance requirements. Any questions, Mr. Salih? No? Thank you, sir. OK. Now, the applicant being abbreviated here. Be very abbreviated. Thank you, Mr. Chairman, ladies and gentlemen of the commission. For the record, my name is Glenn Hoskins, and I'm pleased to be here representing the developer and the applicant, Haymaker Development Company. Sitting behind me is principal of Haymaker Development Company, Tim Haymaker, and also principals of EA Partners, Al Gross and Rory Kaley, are here simply to answer any questions that may come up on this abbreviated hearing. So having said that, I will sit down and say that we agree with all of the conditions of approval and compliment the staff on a very well-written report. So having said that, I'll simply ask for approval, not only the zone change, but also the waiver that's been requested as well. We'll be happy to answer any questions you might have. Thank you. Any questions from the commission? No? Thank you, sir. With this being abbreviated and no one else in the audience, if there's no questions from the commission, we'll close this part of the hearing, open it up for any discussion and or a motion. Mr. Brewer. Yeah, I'm just going to jump ahead. Anybody got any discussion? Go right ahead. I'd like to make a motion for MAR 2014-3. Can I do the ZDP, too? Separately. Same time or separate motion? Separately. Can't go as fast as I want to. Presume that that includes the waiver? Or, OK. Wait a second. I'm sorry. The waiver's on the ZDP. I'm sorry. I'll start over. Move for approval of MAR 2014-3, including what I already said. There you go. Staff recommendations. Thank you. Do we have a second? Motion's been made and seconded for approval. Please vote when it comes up on the screen. Motion passes. Sorry for the confusion. ZDP 2014-7, next. Move for approval. Next. I think that's where we include the waiver. Yes. With the waiver. Mr. Burr. I didn't get this right yet. OK, I'm going to start over. Move for approval of ZDP 2014-7, including the conditions. Where's the waiver? Yes. OK, good. Thank you. That is 15 conditions. Do we have a second? Mr. Drake, yes. Please vote when it comes up on the screen. That motion passes. Thank you, folks. We will take a five minute recess. And I would like to see Mr. Murphy and Mr. Don Todd across the hall, just for a moment. It's been a pleasure. ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ Take their seats. We'll resume. I would like to call this meeting back to order. This is on the agenda as Boone Creek Properties LLC, DBA, Boone Creek Outdoors Zoning Map Amendment and Boone Creek Outdoors Zoning Development Plan. It's on page two. Let me say before we get started, everyone knows this is a lively issue. It's been happening in this chamber. It's not before us on many occasions. I have spoken to the attorneys and expressed to them how we're going to conduct ourselves today and the time limits involved. For those of you that were here earlier today, I'm being a little heavy handed. I'm sorry to say that. However, to be able to get through this, I feel like it's necessary. One other thing, there has been a lot of literature that has floated around. I appreciate information from whatever sources I can get them. As staff and legal will tell you, I've been on the phone with them on a regular basis concerning this. I have received information, procedural information from both parties involved through email. On a global type response, that information I would like to see to go through the planning staff. Personal emails, personal addresses should not be used for that. I appreciate information, but let's take it through the planning staff. With that said, Mr. Todd, do you have a question? I represent the Old Richmond Road Neighborhood Association and the Boone Creek Neighborhood Association. I had the pleasure to meet you on this case during the subcommittee meetings. In my initial issues, I submitted to the chairman a motion. Mr. Todd, let's get to the point at hand at the moment. We're not talking about motions at the moment. In the letter I submitted to you, I had raised an issue of a conflict of interest on the part of Member Drake. It indicated that Mr. Drake and Mr. Carey served together on a corporate board and we had raised the specter of a conflict of interest and asked for an opinion and asked Mr. Drake to recuse himself. My understanding is you don't want to do that. You might want to take the pleasure of telling me to go somewhere, but you understand I'm representing my client and those are issues that I have to raise on their behalf and make a record. Nothing personal. Thank you, sir. Mr. Drake, would you like a response? Thank you, Mr. Chairman. I appreciate the opportunity since my integrity is at issue. We understand. Thank you, sir. It is my opinion. Well, first of all, let me say this is obviously a very contentious issue. And for those of us in positions of decision responsibility, the easy thing to do would be to duck. However, it is my opinion that if our tendency or our preference is to duck, we should not have accepted the responsibility in the first place. Now this commitment to serve obviously has to be balanced with considerations of integrity and conflict of interest. In this instance, I know Mr. Carey. I have known him for about three and a half years. I met him when I joined the Board of Directors of a company on which he also serves. We are not social friends, but I do know him as I have known others that have appeared before us. But recognizing that this relationship is a little bit different since we do both serve on another board, I sought counsel and I have been advised that from two different attorneys that practice in the public sector that the essence of conflict of interest or the foundation of conflict of interest is financial or material gain or loss. Well I have no interest whatsoever in this venture that's before us today. The outcome, whatever it is, and however I choose to rule on it, will not affect the performance of the entity that Mr. Carey and I serve as directors. And so I find no basis for conflict of interest. I think my obligation is to fulfill the commitment I made when I joined the commission. If something arises that indicates I should change that opinion, I certainly will, and however I choose to, after all the evidence is heard, however I choose to ultimately decide on this issue, I'll be happy to explain my reasons for doing so. But I haven't found that there is a conflict of interest. Thank you, Mr. Chairman. Thank you. There has been several questions in various venues raised as to whether we should be hearing this conditional use. At this point I'm going to ask our legal staff, Tracy Jones, to provide us with her legal opinion. I have passed around a letter that is dated with today's date that's addressed to Mr. Chairman Owens, and I've also given it so that it can be put in the record. The short of it, but it's going to require a little more of an explanation from my perspective and also just as part of my job to advise you so you have a full range of the facts that are going on here, is that I think you can hear this today. That being said, let me just go over a little bit of the factual background so that you will understand what I was looking at when I made that decision, and it will probably provide some explanation as to why I made that decision. But what you're hearing today is a zone change from an AR zone to an AN zone at a property located at 8291 Old Richmond Road. Attendant to that, which is provided for in the statute in KRS 100 that govern planning and zoning, is a conditional use permit application as well. As you all know, the Planning Commission doesn't regularly hear conditional use permits. that's that's a Board of Adjustment function. However, the statute does provide and our government has determined that in on occasions where they go together and that they can be heard by the Commission at the same time. So that's how this got in front of you. The basis as I understand it and and we have had some some lengthy things that you all have probably in your packet have received in the mail via email or you will probably see in just a few moments about whether or not you should hear this conditional use permit application case today. And that's really the question. As an aside from that I want to go back a little bit just so you know what the basis of that motion is that was made by Mr. Todd on behalf of his clients so that you can have a full understanding of what we're all talking about when we're talking with you about this. As you may or may not know there there is a conditional use on the property at 8291 Old Richmond Road for a private fishing club. That conditional use was heard by the Board of Adjustment and issued in 2000. That is the only conditional use permit that is currently existing on this property. In 2011 there was a conditional use application filed with the Board of Adjustment that asked for an additional conditional use on not only the property at 8291 but at two other addresses adjacent to that property which culminated in a total of about 160 acres. That particular application asked for things like platforms for primitive camping, hiking, fish hatcheries, canoeing, zip lines, mountain biking trails, and other recreational or what might be considered commercial recreational activities. The Board of Adjustment in a two-day time period heard that conditional use application and the Board of Adjustment denied that conditional use application in 2011. Actually I think the denial came in 2012. After that, as is a legal right of any applicant who's denied a conditional use permit, that was appealed to Fayette Circuit Court. It currently is pending there. It's in front of the third division. It has not been ruled on. It has not been briefed. When it is ruled on and briefed, the question that the judge will be deciding is whether or not the decision made by the Board of Adjustment was based on adequate facts so that their decision was not arbitrary. Because much like you, they make decisions based on findings of fact and things that they hear in the record. So that is out there. Additionally, and you may recall some of this, and the reason I'm going over this is because this is not stuff that came directly before you all. So I want you to understand. I don't think you will be clear if I don't do this. In 2013, the Division of Planning is now handling planning enforcement, received complaints about things that were being done on the property that were in violation of the 2000 conditional use permit, which again is the only conditional use permit on the property at this time. Specifically, those complaints were that there were being constructed on the property, the zip lines, and also being operated on that property. There were some other complaints that were forwarded in a letter and through various other methods to the Division of Planning. The enforcement section took a look at those. They went out to the site on more than one occasion. They tracked down some of the other things as best they could because some things were related to other divisions and things like that. And they determined that they thought that the construction and operation of the zip lines, the advertising that might be going along with that, was in violation of the 2000 conditional permit because it didn't provide for those things in that permit. And that was their interpretation. They, as they normally do, issued a letter to the owner of the property, asked, told them, these are the complaints we've received, these are the things we have confirmed by our own investigation, and gave them an opportunity to respond. They did respond and their response said, well, we don't agree with your interpretation of what's allowed under that 2000 conditional permit. We think it said recreational activities. We think we can put these up. We are not going to stop doing that. So at that point in time, and there was much discussion within the Department of Law and the Division of Planning about how to go forward at this point, but we decided and the Director of Planning, Mr. King, issued a notice of violation. His violation was based on the fact that there was no conditional use permit on the property that would allow the zip lining and either the construction or the operation of those and the various activities that were going along in conjunction with that. At that point in time, there was an appeal to the Board of Adjustment. Again, this is permitted by our ordinance because there's a disagreement. They don't think the notice of violation, the owner did not think the notice of violation was issued appropriately, and they have an opportunity to have that heard at the Board of Adjustment. The Board of Adjustment did hear that. They heard from all the parties involved in much more detail than what I've told you, but that was the basic gist of it. At the end of the day, in the end of their hearing, the Board of Adjustment upheld that notice of violation. Again, as is the right under our ordinance and the statutes, that decision by the Board of Adjustment was appealed to Fayette Circuit Court on the basis that the interpretation that was being made and that the board agreed with was incorrect, and so it was appealed. Just by his great luck, the same judge in the same division randomly got assigned that appeal as well, so he has both of those. There's no, you know, one way or the other as to how that happened. It just did. He has both of those. That one has not been briefed either. However, there was some concern expressed both by the Division of Planning and the Enforcement staff, as well as the Board of Adjustment, as well as neighbors that while the appeal was going on, the activity was continuing. So there was a lengthy discussion amongst the staff, and we went to the Board of Adjustment. We discussed with them in an open meeting all the alternatives that they would have to stop the action of the ziplining that has been determined to be in violation of the existing permit at that time. Those options were to revoke that permit. Those options were to try to enforce it in some way criminally, which we had investigated, and it didn't appear to be the best option by far. The option to just wait and see what happened, or the option to go to court and seek an injunction. That last option was chosen. The law department proceeded to file a motion for a temporary injunction to stop the activity on the property. We went to court. We had a hearing on that, and the court issued a temporary injunction. The injunction was based on the fact that there was no conditional use permit that authorized this activity, and we should be able to enforce our ordinance until either the right permit was issued or the statutes were complied with. So that is it was issued as a temporary injunction, which is a normal process by the court. That injunction is still in place. There was an appeal of that injunction, as is allowed under the Kentucky rules for civil procedure, to the Court of Appeals. Normally matters that aren't finally decided by the court don't go up on appeal, but an injunction can. The Court of Appeals has taken that, and they have issued an opinion, and they have upheld that injunction at this time. So there is no matter pending in the Court of Appeals at this point. So what is what is pending in the Court of Appeals, or what is pending on appeal, is the appeal of the denial of the conditional use that was asked for in 2011, and the notice of violation that was upheld in 2013. So today, or well not today, at the end of last year, the zone change that is in front of you today from an AR to an AN zone was filed. Filed with that was the conditional use application for a conditional use on the property at 8291 Old Richmond Road. That conditional use application asked for tree canopy tours, a training facility that would train people who were guides for those tree canopy tours, the use of a structure that is on that property that has been there for some time to be utilized as a welcome center, and some other activities that would go along with that recreational outlined in the conditional use application, which which you all have. So the question is, and the question that's being raised is, if these other appeals are pending from the Board of Adjustment, can this body hear the conditional use application today? And as I told you at the beginning, I believe that you can, and here's the reason why. You're going to hear an argument in a moment about that that you have no jurisdiction to hear this. That the, once those matters were taken up on appeal to the circuit court, that took it out of your jurisdiction. I don't agree with that, and the reason why is that that might be true if in fact these things were exactly the same. They're not. They're very similar, but if you go back, and I've cited to this in my memorandum to you, if you go back and look at the minutes or the conditional use hearings and the things that were heard at the Board of Adjustment, while they involved some of the same property, they didn't involve 160 acres, like this doesn't involve 160 acres like those did. This is for 21 acres. Those involved other address properties that were other addressed differently. This is one address. Those involved a wider array and a greater scope of activities and commercial use. This has been reduced down. I'm not saying this to tell you, you know, it's good or bad one way or the other. I'm telling you because I think that the law requires, and I've given you an attorney general opinion, about this where they talk about what does it mean to be the same or identical under these circumstances, and it says it means to be equal, interchangeable, or identical, and I don't think we can say that here. Initially, when this issue first came up, the attorneys were, you know, legally posturing as we do sometimes, saying, oh, is this a race judicata thing, which means, you know, it's already been decided. You'll hear that's not an issue anymore. To be honest with you, and as you all know from the time that I've been here, you know, I'm just going to tell you how I think it is, and I'm pretty straightforward about those things. I don't think it matters what you call it legally. If you want to call it race judicata, if you want to call it divestiture of jurisdiction, whatever you want to call it, the fact of the matter is, and the practical implication is, the facts and the circumstances have to be the same. For you to be divested of your jurisdiction, it has to be something that has been heard, has been ruled on exactly the same, and this is not it. For race judicata to apply, the same principle has to apply. So, in addition to that, you'll see at the end of my memo some cases that I've cited about circumstances that are very similar to this, and in those instances, the matters were heard. You will also see, I've cited to you KRS 100-203 that talks about the mechanism to get these two things, the zone change and the conditional use, in front of you simultaneously. The way I'm reading the statute is that an urban county government is allowed to make a decision to hear those things together. Since we've put in our ordinance a section about hearing those things together, I think we've made the decision as a government to do that. The part that has been left out or lost in some of the discussions previously, and I wanted to make sure I pointed out here, is when a government decides to do that, if you read section six, A and B, which is on page three of my memo, it says, then you shall do these things. And so, one of the things in section B is that you shall, in your text of your ordinance or your regulation, provide that the applicant can file these at the same time or elect to do that. And that is what has happened here. So, I think that going forward that this body, you know, it's going, my opinion is that you need to hear it. I think there are enough differing factors from the other cases that are pending and the outcome of this, that while there may be some technical things that would have to be addressed, I don't think you were precluded from hearing it. I don't think you've lost jurisdiction. So, that's my opinion. I know that there's not agreement on that, obviously, or we wouldn't be addressing this issue with you. So, I think you probably need to hear from the other attorneys and then if you have any questions, I'll try to answer those as best I can. Thank you, Ms. Jones. And what she alluded to, what was discussed and outlined was that at this point, we'll take three minutes from both parties and if the Planning Commission has any questions, they'll be addressed to Ms. Jones. We'll make a decision and move on. Mr. Murphy? That's fine. Let's go. Well, let me say it's virtually impossible in three minutes to respond to a lengthy legal argument. However being faced with that challenge, I sent to you a memorandum on February 20, I think February 18th, which outlined all these issues. You should not hear this case today for two reasons. One, and most importantly, there are no ordinances in place dealing with the natural area. There is a ZOTA committee being involved. They're trying to develop an ordinance and you're being asked to pass a zone change and a conditional use permit for which no legislation exists about how to control, supervise, articulate that particular process. Never in the history of this government since 1974 has a zone change with a conditional use permit like this been allowed to pass when there's pending litigation in court and when there's pending ZOTA committee ordinance in place or being developed to address these very issues. It has never happened before and I believe staff will corroborate that with me. In response to Tracy's arguments, this is a case and it's really tough to just distill this down. This is a case where two issues are before the court, both of which deal with the same piece of property and the same improvements. What tells you that this case is a matter of divestiture of jurisdiction is that the claimant, Mr. Kerry, he filed an appeal. He took that appeal and gave it to the court and said we want you to hear us on this and at that point you as an administrative body that listens to judicial issues and renders findings of facts and makes decisions, you have allowed that jurisdiction to go to the court. The court has that case now, okay? The case cannot be decided by you and by them and back and forth. Once that case goes, it's in their court until they remand it back to you or until they issue an opinion. And the reason why it's not raised judicata is because the court hasn't decided that case yet. It hasn't written opinion. Now the Court of Appeals today or Friday issued, they sustained Judge Ishmael's injunction and if they don't appeal that to the Supreme Court, that issue is raised judicata. The reason why this is divestiture is it has been transferred to the court, but the court hasn't made a decision yet. Once the court makes a decision, then it's raised judicata. It's tough in three minutes. Now, Tracy argued to you a case out of Jesmond County, a concrete case, concrete batching plant, and that case does stand for the proposition that there was no divestiture of jurisdiction. Why? Because there's no appeal in that case. That case was not taken to the courts. The gentleman down there filed a conditional use permit. He was denied ten seconds. He was denied. He didn't file an appeal to the court. He filed another conditional use permit. That's the distinction in this case. That's why this matter has been transferred in his divestiture of jurisdiction. Thank you, Mr. Todd. Mr. Murphy. Thank you, Mr. Chairman. I'm Dick Murphy representing the applicant John Park. My co-counsel is passing around a copy of a memo which was emailed to you all yesterday setting out our position. Number one, this is a different case than what was brought before the Board of Adjustment previously. This is 20 acre one piece of property. The other case was 200 acres, three properties involved in this. The previous application included cabins. It included a canoe livery. It included a mountain biking trail. It included three foot bridges over Boone Creek into Clark County. One of those foot bridges included a mountain biking trail into Clark County. This application includes none of that. It's 20 acres, one-tenth of the size. Number two, the Board of Adjustment, while the ZOTA was pending, heard an application a year or so ago for a hayride pumpkin patch over off Haley Pike which was approved. They've approved a commercial recreational use while the ZOTA was pending. We understand the ZOTA is pending. Number three, the ZOTA has been pending for two years already right now. Our main concern is that we'd like to open this year if we could. We do not have confidence that the ZOTA will be heard in a quick amount of time. That's because it's been pending for two years. It was referred to you by the council instead of being initiated by the council. They did that for one reason, so there would not be time limits imposed on everybody's consideration of it, especially theirs. Number three, the case of Conley versus Anchorage 20 years ago, appellate case in Kentucky. There was a ZOTA pending. When a subdivision plot was approved, the Planning Commission approved it at Jefferson County. City of Anchorage said you shouldn't have approved it. There was a ZOTA pending. You should have waited. Court of Appeals, Kentucky Supreme Court said no. The property owner has the right to be heard under the law that was in effect when the hearing took place. Number four, number five, Hume versus Bezac case. That was a case recently, Kentucky Supreme Court. There was a zone change turned down through the courts while the appeal was still pending. The exact same zone change was refiled. Kentucky Supreme Court said yes, you hear that zone change even though there's an appeal pending on this zone change that the doctrine of res judicata does not apply in zoning opinions, zoning decisions. The Ready Mix case, which Mr. Park cites, makes that apply to conditional uses as well. So we don't think there's any legal or practical reason not to go ahead and hear this case today. Thank you. Thank you, Mr. Murphy. Questions from Planning Commission for Ms. Jones? Yes, sir. Thank you, Mr. Chairman. Yes, we are. I'm kind of lost. We're being, and I don't mean this derogatorily, but we're caught between divergent legal opinions and arguments, and I'd like to turn back to our counsel and ask her if she has heard anything that modifies her opinion that she's delivered to us. No, I haven't, and and let me say in saying that I'm not being, you know, flippant, but the attorneys have been batting this around for some time. You know, I mean, I saw something come across my email as late as 1145 last night, so it's been an issue that we've been talking about, but no, I have not heard anything that would change my opinion. Mr. Pim? Tracy, let me let me try to get out of the weeds and get up over top this just a little bit. I hear you say we may hear this, that we don't have to hear it, so our discussion looks to me like has to be is what do we gain by hearing this, and is it to our advantage to hear it or not to hear it, but bigger than that is that this is about process. This is about we have a planning process and we try to follow it. Now, if it's in the court and we don't know how they're going to rule, that gives me a chance to wonder should we really get into this right now. So if you don't say that we have to hear it for the reasons that you stated and the opposite side has reasons why we shouldn't hear it, my questions of my fellow Planning Commission members is, is this going to help us advance the planning process and there's a country expression, the only way you get out of a hole is you quit digging, and this applicant has dug a hole and dug a hole and dug a hole and now he's wanting us to get him out. Well, that's his privilege and I respect his right to do that, but I don't think at this juncture of our planning process with a ZOTA that will address those issues. I spent 22 meetings on that, as did Mr. Kerry. At the same time all we were trying to do that, he had no permits and he was going on with his project, and now they're asking us ahead of the ZOTA to stand up and say help us get out of this hole, and I don't know what that does for the process and I'd like for my fellow Planning Commissioners to think about that. Thank you. Other questions? Do you, I mean, do you want me to answer what? Yes, there was a question there, yes. Mr. Penn, I guess maybe I needed to be a little more clear. If you look at pages three and four of my memo, I think, I think you have to hear it, and I think that's because of the fact that in my evaluation I believe that you have different things in the courts on appeal than you have in front of you here today, and I also believe KRS 100.203 section 6 A and B, that process has been followed here, and I think that it's incumbent on this Commission to hear it. That being said, I can appreciate, as I sat through many of those ZOTA meetings as well, however, the case that Mr. Murphy gave you, the Conley versus City of Anchorage case, you can't, you can't defer on hearing something because of some ordinance or statute that might be enacted. You have to go with what's on the books, and while I understand that everyone is very concerned about the ZOTA, it's not on the books, and, and, you know, I would, you know, that case is pretty clear, and the ZOTA, you know, I don't even know at the end of the day when it's going to come forth or what it's going to say, but I don't think we can utilize that as a basis to defer that or as a finding to not, you know, to deny this. I think that is a separate issue that's, unfortunately, the way things have gone, moving on its own, on its own path, and, and if I might, I agree with you completely that there, that this whole entire situation is is somewhat of a hole, but let me just say I think that the hole has been dug by all people involved, not, not this Commission, obviously, but, but, you know, I think that there's a big hole, but I think it's, there's some mutual sharing going on on how the hole got there. So, yes, there are multiple things going on. Yes, the process might be better, but, you know, people write these statutes and these things, and our job is to make sure that whatever that says in the process, we follow the best we can, and, and, you know, unfortunately, you can't tell someone they can't pursue their legal option, you can't tell someone else they don't have an opportunity to argue with that legal option, but my job is to try to tell you the best place to keep online and on task with the process, and that's what I'm trying to do. So, yes, I do think you have to hear it, if that makes it easier. May I follow up? Yes. Assuming that we hear this, we're going to hear the zone change and the conditional use at the same time. That's what I'm hearing. Yes. If, if, if something happens and it's not approved, how long before the applicant can come back with another zone change request or another conditional use request? Well, let me say, if I'm not mistaken, and the staff may have to weigh in here, they are going to be heard simultaneously. However, the conditional use is not going to go forward if the zone change is not approved. I mean, that's a condition, you know, that would be a condition, and in terms of refiling this same application, is it, I think it's one year, but. The Planning Commission's bylaws speak to the zone change application portion. If the zone change is denied, there is a one-year time limit before the zone change can be refiled. As I understand it, as far as the conditional use portion of the application, which is a separate action, even though you're hearing it all at the same time, your bylaws are silent on that point. But I believe the statute says that the Planning Commission can only assume the action of approving on a conditional use in conjunction with a zone change. So if you do not approve it, I assume their recourse would be to file a conditional use permit to the Board of Adjustment if, in fact, that does seem to be their right under the laws. My reason, Tracy, for asking that is I want us to all understand what the stakes are here today. Thank you. Other questions? Yes, ma'am. Thank you. When I consider a change, a zone change, or a development plan, I like to look at that on its merit, and with all of the extra baggage this is bringing, this situation is not a merit scholar. So at the end of the day, if I see how this is marching, we're going to approve something, possibly, that is already there, that is built out. And I want to know, my question to everyone here, what kind of message does that send to the zoning community, to the citizenry out there, that, hey, you don't have to go downtown and do anything. You just build it, march out, and ask for permission after it's done. And that is not the message that I want this Planning Commission to send. Thank you. Ms. Blandin. I share everyone's frustration about the lack of process being followed. I'm a big believer in process. I think we have to do it. However, I don't know of any legal rationale for why we would let something that's happened in the past. I mean, we have certain things that we have to consider when we vote on a zone change. And I'm not aware of any legal reason why we could take previous bad acts, or what we might consider to be previous bad acts, into consideration when we're voting on what's before us. I mean, you mentioned yourself, it stands alone on its merits. So while, yes, the human side of me says, are we giving him, are we letting him do something that we don't think follows the process, and rewarding that. But I've got to put that aside, because it's not about whether I like somebody, or what they've done in the past. It's about what's before us. And I think it's incumbent upon us to have very tight guidelines in place to try and ensure that he follows that. And to your point about him not being penalized for perhaps not following the proper guidelines, well, that's what the court case is about. And that's what the violation is about. So there are rules that must be followed, and there are processes in place to try and ensure that. And if they're upheld, then there will be a penalty for that. So I don't think that we're setting a precedent for this. And in addition, we can't hold this up for the ZOTA. I mean, how long did we spend looking at the business zone? And I'm sure we heard business cases of business zones during that time. So we would be setting, I think, a precedent in terms of waiting on that. And there is no legal reason that I've heard that we can hold that up until we make a decision. And based on our last work session, we've got a lot of very divergent opinions that are going to need to be resolved. And I don't see that happening anytime quickly. That's something that we're going to be working through for quite some time, and it doesn't end with us. It then goes on to the council. So I think we need to follow our lawyers' advice and move forward with this, and hear the case based on its merits, and try to set aside the frustration that all of us feel about what's gone on before another body in the past. Thank you, Ms. Blanton. I want to kind of rein us back in for a moment. I don't want to get into the merits of the case or application, whether it's zone change, conditional use, or development plan at this point. That would come later. This is whether we hear this today or not. I've heard a wide range of varying opinions. I've spoke to our legal staff probably daily for the last week, and still heard varying opinions. She is of the opinion that we should hear this. One thing I have not heard today was our own ordinance 6-4C that states that the Planning Commission may hear an act upon a requested conditional use. To me, KRS is a little vague. To me, it says both things. But if there's not any other discussion, we need to move on and decide whether we're going to hear this or not. Mr. Wilson. The first thought I had was I should have done exactly what my mother suggested and gone to law school. The other point is, let me ask Ms. Jones a question. I know and I don't hate to be nitpicking with the words, but it says may hear. Does that assume that when you hear you act, or does that mean that you just hear? I have to say I haven't researched that one, but I think if you hear it, you're gonna have to take some kind of action today. But let me just say one thing about our ordinance. It largely parrots what the statute says, but when I say that, it largely parrots what section 5 says. It doesn't really go into what section 6A and B says. And as I said earlier, I think the way I'm interpreting this is that the statute says a governmental entity and their sections, you know, this is how you set up your planning and zoning authority. You know, you can enact an ordinance that would allow you to hear this together. We've done that in section 6 4 C. However, we didn't include in our ordinance, unfortunately, the next part of that, which then says when you adopt that section, then the text shall provide that you act as the Board of Adjustment, and the text shall provide that the applicant, you know, at the time of the MAP amendment, may elect to have any variances or conditional use permits for the same development to be heard and finally decided by the Planning Commission at the same public hearing. So, you know, I think the statute is going to control our ordinance because our ordinance came from the statute. And I think if you all determine, I think you need to determine that you need to hear it. If you determine to hear it, I think you have to decide it. Oh, and just as a note, the staff is telling me, which they know this stuff better than I do, that if you look at the last line of section 4 C, 6 4 C, it does say that the Planning Commission has to act within 90 days from the application, unless the applicant postpones. That's obvious. Mr. Penn, we need to move on. We need to make a decision and go. Frank? Frank? Yeah. Give me one quick question. Yes, sir. When does that 90 days come up? Today is it? And are options on action or what, if we hear it? Mr. Penn? Well, just get this off dead center. I'm going to move that we deny the hearing conditional use application file with the zone MAP amendment for AAR to A&N for the following reasons. After hearing legal arguments from all sides, the current conditional use application is the same as the previous conditional use application file for the property at 8291 Old Richmond Road that is pending on appeal at the Fayette Circuit Court. And two, hearing the conditional use at this time would create conflicts within the existing conditional use on the property granted in 2000 and pending issues that are being addressed by the Fayette Circuit Court. And I move that. I have a motion not to hear this for the reasons stated. Do we have a second? Motion's been made and seconded on this. Okay. Mr. Berkley? Are we saying that we're we're going to hear the zone change but not the conditional use? Yes, sir. That is the motion. Ms. Blanton, question in regards to the motion? I just want to point out that if we hear the zone change but not the conditional use, it's my understanding that they can't really do anything with the property. So I just want to... Is that pretty much true? You would have the existing 2000 conditional use. The court cases would still be pending. But nothing, none of what he proposes to do would be able to be done. Right, without the conditional use that's being asked for with this zone change. Okay. Mr. Burrow? Yeah, I guess a question that should have been asked immediately. If we have a motion and a second, do we have authorization to discuss or do we have to vote first? Okay, so if we only vote on or we only act on part of this, what happens to the 90 days on the second part, the conditional use? Do we put it in limbo or where do we go? Where does it go? Well, I think that there's going to probably be some legal argument about that. But I do think that you've taken some action today on the conditional use. But it might, it could start some clocks ticking for appeals. Appeals, the council's never going to hear conditional use, so you're assuming the powers of the Board of Adjustment. I think it could probably be appealed to Fayette Circuit Court. There might be an argument made that you chose not to hear it, so you chose not to act in the 90 day time period. I don't know if that's going to happen or not. Well, what does that mean? I mean, I'm baffled by all this. That means that someone might argue that it's approved. I don't know that that argument would be valid, but I'm just trying to tell you. This situation has not, amongst anyone I have talked to in the planning and development community, come up before. And so it's, you know, and as you can see from what has been cited to you, there's very little legal authority on it. You know, there's a large number of cases cited that aren't even in this jurisdiction. So it's sort of a new issue for all of us. But I think, to be fair to you all, that it's likely that that argument could be made. It's likely an appeal could be taken. But it won't go to the, it will not go to the Urban County Council, the conditional use part. And it would not go to them in any way. Okay. Mr. Duggan? No, hang on a second. Sorry. I still don't understand. So if we act on the zone change and do not act on the conditional use, that's considered, could be considered an action in and of itself and somebody could construe that as approval rather than disapproval? I think there are two things that could happen. And it may be more. But I'm trying to advise you the best I can because I want you all to fully understand because I think that's fair for you all. I think that you, that first off, that you're being asked to make a decision about the conditional use. And someone could construe that, that you did take an action, you just chose not to hear it. And that therefore that is a final decision on that conditional use and that would be appealable. And that appeals about conditional uses go directly to Fayette Circuit Court because the Urban County Council does not hear conditional uses. I think I would be remiss if I didn't tell you, although I haven't, I haven't researched it and I can't tell you that if it would be valid or not. But I, but there would be a possibility that someone would make an argument that by choosing not to hear it you've chosen not to take action on it within the 90-day period and therefore it's deemed approved. Now I don't know that that would hold up but I'm just telling you that might, argument might be made. There's very creative arguments going on here. So I just want to be fair. So I can't tell you for sure and I wouldn't be probably the one making it. So, but I don't want to give you the impression that other people won't make arguments like that. Thank you. Mr. Pinn. I want to be clear in this now. This is not, these are findings that our attorney wrote for us. These are not findings that we accepted from either one of the other attorneys. So I mean I want to be straightforward what we're doing here and Tracy says she can defend it if that's the way we choose to go. And so I just wanted all of us to lay it on the table and know what it is. This is unlike anything I've ever done here in 10 years and Chris you've been here what since it built a building or something and I you know it's I still think there's a lot more to this than just this conditional use that's in this that's in the court right now that has to be ruled on. And therefore that's why I'm making that motion and therefore I'd like to call the question. Can I just say you know I was asked to draft findings on this on this particular issue you know so I did that as I often do I'm not but that still doesn't change my opinion of what I've previously told you just so you know. Mr. Drake. Yes I did I want to understand and clarify the motion as I understand it is to deny hearing it's not to deny the conditional use is that correct? That is correct. And is there a substantial difference in this instance? Does that meet the 90-day threshold requirement? I am not hearing it rather than acting on it. I'm not certain because I cannot tell you that I've ever seen any situation like this. However it's being put to you that way in a motion and I you know we would have to if that's the if that is the desire of this Commission we would have to defend it that way if someone raised the argument that you chose not to take action in 90 days. In all fairness more likely more common either at the at the Planning Commission which I can't think of an instance that I can think of since I've been at your council but I have seen it at the Urban County Council in a zone change usually not taking action means just not doing anything like you know you but that that that's something kind of new for you all and you are taking an action however other people may not view it as such they may view it as you made a decision not to act by saying you don't want to hear it but saying you don't want to hear it and denying after hearing it are two completely different things. That was what I thank you Tracy. Let me Mr. Penn just handed me his motion let me just reiterate it simply one sentence I move that we deny hearing the conditional use application filed with his own map amendment from AR to AN for the following reasons there are two reasons there we need to be moving on miss Blanton did you have anything else and I'm gonna call for a vote. I have a quick question and then a quick comment the fact that we've already done some committee work on this and heard some of this does that undermine that argument at all I mean if we were to not I mean we've already heard some of it so does that in any way undermine Mr. Penn's motion that we not hear it because we've kind of started the process you've started the process but you haven't had a public hearing okay then my comment is I would assume that the 90-day clock is to give the property owner some certainty one way or another about what's going on but in essence what we're doing is we're postponing the conditional use hearing which in which I understand that only the applicant could agree to a postponement so in essence in my opinion what we're doing here is postponing which it doesn't seem to me that we have the right to do. Mr. Brewer. The risk of putting too fine a point I still don't understand if we don't act on that today what happens what happens to the to the business plan that he has in motion what happens to the claims the neighborhoods concerns I don't know where we go with this well that that's I mean that's a great question if you don't hear it today you don't hear it and so his application is it's not heard it's not you know it's not you don't hear evidence or testimony from either side on it the only thing that's on the property is the 2000 existing 2000 conditional use for the anglers club and then there's issues in the in the court that about that permit and about the notice of violation but in you know you could grant the zone change you could could not grant the zone change but that doesn't affect the conditional use or hearing the factors about the conditional use so I mean if you don't hear it you just don't hear it okay well given that and the fact you said earlier that inaction can be construed as approval as opposed to disapproval which I don't really don't get I think we're in a an untenable position here I don't think it's defensible and in either way we go let me be clear I'm I just want you all to fully understand I'm not advocating or even saying that I agree with the fact that if you decide not to hear it that that is inaction however in all fairness to the question that was asked of me I would be remiss if I did not tell you that some other legal mind may make the argument and construe it that way so I want you to have all the information when you make your decision I'm gonna ask mr. Penn repeat his motion and then we're gonna take a vote what this does is we don't hear what's tied up in court right now it says I move that we deny hearing the conditional use application filed with the zone map amendment from AR to a in for the following reasons after hearing legal arguments from both sides the current conditions use application is the same as the previous condition used application filed for the property at 82 91 over Richmond Road that is pending on appeal in the Fayette Circuit Court and hearing this conditional use at this time would create conflicts with existing conditional uses on the property grant in 2000 and pending issues that are being addressed by the Fayette Circuit Court all I'm saying is we shouldn't hear this until the court rules we do have a motion and second on the floor and at this point I'm gonna call for a vote so if you would the motion is not to hear the conditional use and please vote when it comes up on the screen the motion not to hear passes so we will move on at this point I would ask we've got a zone map amendment for a zone change from AR to a in mr. Murphy would you like to proceed with that excuse me mr. chairman I'd like to postpone our zone change application for 30 days okay until when sir your next zoning meeting okay that would be mr. chairman March March 27th all right thank you are there any objections to that request for postponement of the zone map amendment for one month we we have no objection to the zone map amendment I'm assuming his motion to continue does not include the conditional use to my knowledge there's no motion to continue if I can continue I'm sure you would I amend my motion to continue the conditional use and the development plan yeah I just want to make sure because this case has more turns in a mountain highway and I just want to make sure we're straight let me let me register our objection to the record for your action not hearing the conditional use permit we think it is not allowed by Kentucky law we think it is clearly not allowed by Kentucky law and therefore we have to register our very respectful objection to you all I know there's a lot of baggage in this case and I'm the new guy coming in and we were hoping that people could get beyond the baggage and look at the use of this property we'll continue our zone change case we'll decide where we go in the future in that 30 day time period thank you thank you sir anyone else in the audience that would want to oppose this objection this this motion for postponement CNN I'll entertain a motion from the Commission mr. pan I move that we postpone this at his request for 30 days thank you motion has been made and seconded for postponement of M A R M A RC 2014-1 Boone Creek properties LLC DBA Boone Creek outdoors and the associated zoning development plan for 30 days miss plumbing you did second miss Plumlee seconded please vote when it comes up on the screen that motion passes thank you any other Commission items any stat any staff items mr. King items and mr. Wilson please this has to do this has to do with the the recommendation that the staff has put on the table regarding this particular issue if I could have please everyone we're still convened here repeat that well what I was trying to find out is is that the staff's recommendation at this stage of the game because right now whereas we have not heard all the elements of the case can I assume that you all have heard all the elements of the case I'm not sure there has been no hearing of the case but have you have you all heard all the elements related to the pros and cons of the case from both attorneys and what have you you have not well we have heard what we've heard of course we have not heard from the public okay other than the letters that have been submitted to us any other Commission items or staff items if not I'll entertain a motion for adjournment do we have a second yes thank you all in favor please say aye meetings adjourned