# Planning Commission Subdivision Public Hearing - March 13, 2014 > Auto-transcribed civic record · March 13, 2014 - **Permalink**: https://meetings.lexingtonky.news/meeting/3288 - **Source video**: https://lfucg.granicus.com/player/clip/3288?view_id=14&redirect=true - **Date**: 2014-03-13 - **Last revised**: March 13, 2014 - **Length**: 30,244 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Urban County Planning Commission met on March 13, 2014, at 1:32 PM in the Council Chambers of the Urban County Government Building at 200 East Main Street in Lexington, Kentucky, with Mike Owens presiding. The meeting addressed one agenda item regarding the Park Hills Shopping Center, Lot 1 (AMD), which was ultimately postponed. During the session, the commission conducted 11 motions and votes, though no public comments were heard. The meeting focused solely on the Park Hills Shopping Center matter, with the postponement indicating that further review or additional information may be needed before the commission can make a final determination on this development proposal. ## Attendance The following members were present at the March 13, 2014 meeting: **Present:** • Mike Owens • Will Berkley • Carla Blanton • Patrick Brewer • Mike Cravens • David Drake • Karen Mundy • Carolyn Plumlee • Frank Penn • Bill Wilson All ten members were in attendance with no absences or late arrivals recorded. ## Votes and Decisions The meeting included 11 motions, all of which passed unanimously with all 10 members present voting in favor. No transcript timestamps were available for the voting portions of the meeting. **Administrative Actions:** - **Minutes Approval**: Carolyn Plumlee motioned to approve the minutes from January 30, 2014, and February 20, 2014, meetings, seconded by Karen Mundy. The motion passed unanimously (10-0). **Withdrawals:** - **DP 2013-29**: Mike Cravens motioned to withdraw the HEADLEY, NIVEN & VANCE PROPERTY, LOTS 1, 2 & 3 (AMD), seconded by Frank Penn. The withdrawal was approved unanimously (10-0). - **DP 2014-22**: Frank Penn motioned to withdraw PARK HILLS SHOPPING CENTER (LOT 2) (AMD), seconded by Karen Mundy. The withdrawal was approved unanimously (10-0). **Postponements:** - **DP 2014-13**: Frank Penn motioned to postpone GROWTH PROPERTIES (AMD), seconded by Carolyn Plumlee. Approved unanimously (10-0). - **DP 2014-16**: Patrick Brewer motioned to postpone CHANCELLOR SUBDIVISION (THE SPRINGS) (AMD), seconded by Karen Mundy. Approved unanimously (10-0). - **PLAN 2014-11F**: Carla Blanton motioned to postpone TUSCANY, UNIT 10, seconded by Patrick Brewer. Approved unanimously (10-0). - **DP 2014-4**: Karen Mundy motioned to postpone LANSBROOK PLAZA SHOPPING CENTER, seconded by Carolyn Plumlee. Approved unanimously (10-0). - **BOAR 2014-1**: Mike Cravens motioned to postpone the appeal by JOSEPH H. CLARK/JOSEPH P. CLARK, seconded by Karen Mundy. Approved unanimously (10-0). **Conditional Approvals:** - **PLAN 2014-12F**: Bill Wilson motioned for conditional approval of HOLLOW CREEK SUBDIVISION, UNIT 1 & WILLIAM SHELY SUBDIVISION, UNIT 2 (AMD), seconded by Karen Mundy. Approved unanimously (10-0) subject to specified requirements. - **DP 2014-14**: Bill Wilson motioned for conditional approval of MILLER-BIRD COMMERCIAL PARK, UNIT 1-B (AMD), seconded by Karen Mundy. Approved unanimously (10-0) subject to specified requirements. - **DP 2014-15**: Bill Wilson motioned for conditional approval of FOUNTAIN PLAZA-EAGLE CREEK OFFICE PARK, LOTS 5 & 6 (AMD), seconded by Karen Mundy. Approved unanimously (10-0) subject to specified requirements. All voting members present were: Mike Owens, Will Berkley, Carla Blanton, Patrick Brewer, Mike Cravens, David Drake, Karen Mundy, Carolyn Plumlee, Frank Penn, and Bill Wilson. ## PARK HILLS SHOPPING CENTER, LOT 1 (AMD) The Planning Commission considered agenda item DP 2012-105, an amendment to the Park Hills Shopping Center, Lot 1 development plan. The proposed amendment seeks to add a new restaurant with a drive-through facility to the existing shopping center development. This development plan has a history with the Planning Commission, having been originally approved on December 13, 2012, subject to specific conditions. The applicant is now requesting reapproval of the amended plan to accommodate the new restaurant and drive-through component. Bill Sallee served as a key speaker during the discussion of this agenda item, though the specific details of his presentation and any concerns raised during the meeting are not detailed in the available materials. Following deliberation, the Planning Commission decided to postpone action on this amendment request. The reasons for the postponement and any specific issues that need to be addressed before the item can return for consideration were not specified in the available documentation. The postponement means the applicant will need to return to a future Planning Commission meeting to seek approval for the proposed restaurant with drive-through facility addition to the Park Hills Shopping Center development. --- ## Decisions - **Motion** — passed (10-0): Approval of the minutes of the January 30, 2014, and February 20, 2014, meetings - **DP 2013-29** — withdrawn (10-0): Withdrawal of HEADLEY, NIVEN & VANCE PROPERTY, LOTS 1, 2 & 3 (AMD) - **DP 2014-13** — postponed (10-0): Postponement of GROWTH PROPERTIES (AMD) - **DP 2014-16** — postponed (10-0): Postponement of CHANCELLOR SUBDIVISION (THE SPRINGS) (AMD) - **DP 2014-22** — withdrawn (10-0): Withdrawal of PARK HILLS SHOPPING CENTER (LOT 2) (AMD) - **PLAN 2014-11F** — postponed (10-0): Postponement of TUSCANY, UNIT 10 - **DP 2014-4** — postponed (10-0): Postponement of LANSBROOK PLAZA SHOPPING CENTER - **BOAR 2014-1** — postponed (10-0): Postponement of appeal by JOSEPH H. CLARK/JOSEPH P. CLARK - **PLAN 2014-12F** — passed (10-0): Conditional approval of HOLLOW CREEK SUBDIVISION, UNIT 1 & WILLIAM SHELY SUBDIVISION, UNIT 2 (AMD) - **DP 2014-14** — passed (10-0): Conditional approval of MILLER-BIRD COMMERCIAL PARK, UNIT 1-B (AMD) - **DP 2014-15** — passed (10-0): Conditional approval of FOUNTAIN PLAZA-EAGLE CREEK OFFICE PARK, LOTS 5 & 6 (AMD) --- ## Full transcript Music may come and the sun may go We will surely pay his When the one that loved us here Returns for us at last We are but in moments of sunlight Fading in the grass Come on people now Smile on your brother Everybody get together Try to love one another right now Come on people now Smile on your brother Everybody get together Try to love one another right now Come on, people now Smile on your brother Everybody get together Try to love one another right now If you hear the song I sing You will understand Listen You hold the key to love and fear All in your trembling hands Just one key unlocks them both It's there at your command Come on people now Smile on your brother Everybody get together Try to love one another right now Come on, people now Smile on your brother Everybody get together Try to love one another right now I said Come on, people now Smile on your brother Everybody get together Try to love one another right now Right now Right now Thank you. What's on? As long as they play too long Nothing but lose an Elvis And somebody else's favorite song Give her some fucked up music She treats you nice Feed her some hungry reggae She'll love you twice The girls don't seem to care tonight As long as the mood is right No static at all No static at all guitar solo Give her some fucked up music, she drinks you nice Feed her some hungry reggae, she loves it twice The girls don't seem to care tonight As long as the mood is right No static at all No static at all Thank you. Thank you. Thank you. guitar solo guitar solo Thank you. guitar solo Thank you. Thank you. 30th 2014 and February 20th 2014 were mailed to Commission members by email for consideration to my knowledge they have not been any corrections if there are any at this time please let it be known otherwise I'll ask for motion for approval yes ma'am move approval of January 30th 2014 minutes and February the 20th 2014 minutes thank you motions been made and seconded for approval of those minutes are we working on the screen we are so please vote when it comes up. Motion passes. Thank you. At this time, I'd ask for any postponements or withdrawals from today's agenda. Good afternoon. My name is Matt Carter. If you turn in the agenda to page 2, section 2, item A, DP 2013-29, Headley, Niven, and Vance Properties, lots 1, 2, and 3. We would like to withdraw our continued discussion on this. Thank you. Anyone in the audience that wish to speak to this request for withdrawal? Commission members? If not, I'll entertain a motion. Mr. Chairman. Yes, sir. Move withdrawal of DP 2013-29. Thank you. Motion's been made in second and fourth withdrawal of this item, DP 2013-29. Please vote when it comes up on the screen. Motion passes. Thank you. Next. If you turn to page 4 in the agenda, item E, DP 2014-13, growth properties amended. We would ask for a two-week postponement on this. Anyone in the audience wish to speak to this request for postponement? Commission members? If not, that's it. That would be for March 27th. I'll entertain a motion for a postponement. Mr. Chairman, I move for postponement of DP 2014, two weeks postponement, DP 2014, days 13, to our March 27th meeting. Thank you. We do have a second by Ms. Plumlee. Please vote when it comes up on the screen. That motion passes. And then on page 5 of the agenda, item H, DP 2014-16, Chancellor Subdivision, the Springs amended. We would ask for a one-month postponement on that. That would be until April the 10th. Anyone in the audience wish to speak to this request for postponement? commission members postponement of dp 2014-16 for one month thank you motion's been made and seconded for postponement dp 2014-16 uh until march the uh i'm sorry april the 10th uh please vote when it comes up on the screen that motion passes thank you thank you other requests for postponements or withdrawals Yes, sir. Good afternoon. Nick Nicholson here on behalf of Parks Hills Shopping Center. We're requesting to withdraw item I on page five of the agenda, the Park Hills Shopping Center lot two. This submission was made prior to retaining a traffic expert who's here today, and we no longer feel comfortable with that submission. Okay. Anyone in the audience wish to speak to this request for withdrawal? Seeing none, Commission members, if not, I'll entertain a motion. Mr. Chairman, I move for withdrawal of DP 2014-22. Second. Motion's been made and seconded for withdrawal of DP 2014-22. Please vote when it comes up on the screen. That motion passes. Thank you, Mr. Nicholson. Other requests for postponements or withdrawals? Mr. Martin. Mr. Chairman, staff has two items to bring to your attention. The first is on page one of your agenda under final subdivision plans. It's item A, plan 2014-11F, Tuscany Unit 10, property located at 1970 Winchester Road. Staff has received an email and a verbal request from the applicant for a one-month postponement. Anyone in the audience wish to speak to this request for postponement? Seeing none, commission members. Yes, ma'am. Move to postpone Plan 2014-11F, Tuscany Unit 10, until our April 10th meeting. Second. Motion has been made and seconded for postponement of Plan 2014-11F until May 8th. Please vote when it comes up on the screen. That motion passes. Mr. Martin. The second item, Mr. Chairman, is on page 3, item B, DP 2014-4, Lansbrook Plaza Shopping Center, located at 3501 Lansdowne Drive. We have received a written request from the applicant for a one-month postponement. Thank you. Anyone in the audience wish to speak to this request for postponement? Seeing none, Commission members, more motion. yes ma'am Mr. Chair I move for postponement of DP 2014-4 Landsbrook Plaza Shopping Center and seconded by Ms. Plumlee motion has been made and seconded for postponement for 30 days DP 2014-4 please vote when it comes up on the screen that motion passes thank you any other requests for postponements or withdrawals Yes, ma'am. Yes, ma'am. Okay, thank you. Anyone in the audience wish to speak to this request for postponement? Seeing none, I'll turn it over to the commission. Motion? Yes, sir. Mr. Chairman, move postponement of B. BOAR 2014-1, Joseph H. Clark. Thank you. Do you have to? Motion has been made and seconded for postponement until April 24th. Thank you. BOAR 2014-1, Joseph H. Clark. Please vote when he comes up on the screen. No, I don't agree. Any other requests? That motion passes. Any other requests for postponements or withdrawals? if not uh mr sally i'll ask you for the consent agenda thank you mr chairman members of the commission good afternoon there are three items that qualify to sign for consideration for approval on your consent agenda all three have been reviewed by your submission committee and are recommended for conditional approval first is the final submission It appears on page 2 item B of the meeting agenda. This is plan 2014-12F for the amendment final record of the lab for college for subdivision unit 1 and William Sheely subdivision unit 2. This involves property of 1501 Russell Bay Road. There is a finding necessary for permission to approve this plan. the staff has provided the necessary finance to take sheet to place your choice. There are two development plans also appearing under the consent agenda and have been recommended for approval by the Subdivision Commission. The first appears on page 4, item F, of the meeting agenda. This is DP 2014-14, amended final development plan for the Miller Bird Commercial Park, Unit 1B. This involves property of 189 and 199 Ford Drive. Again, this plan also requires a binding. Staff is provided with a blue sheet provided by Mr. Murphy who is the applicant's attorney with seven findings necessary for the approval of this plan. Final item on the consent agenda is the very next item on your meeting agenda, page four, item G, DB 2014-15, amended final development plan for the Fountain Plaza Eagle Creek Office Park. This is for lots five and six of that development located at 151 and 161 North Eagle Creek Drive. At this time, the Planning Commission can't consider approving these plans as has been recommended by your sub-admission committee unless a member of the Planning Commission, an applicant, a member of the audience or one of the petitioners would ask for removal of an item to allow to be discussed further. Thank you. Anyone in the audience wish to hear any one of these three items? Commission members? If not, I'll entertain a motion for approval as consent agenda is read. Mr. Chairman? Yes, sir. I would remove approval of the consent agenda as outlined by staff. Second. Thank you. Motion's been made and seconded for approval. Yes, sir. What about for the access even? The findings? Yeah, the findings are noted on the consent agenda. Thank you. Motion's been made in. Seconded for approval is consent agenda as read. Please vote when it comes up on the screen. Motion passes. Thank you, folks. Our agenda. We move to page three. Item C, it's DP 2012-105 Park Hill Shopping Center, Lot 1. This is a continuation from last month. Mr. Bill Salley, I believe, will be making the presentation, and he'll bring us up to give us a revision of what took place last month and bring us up to date at the present time. Thank you. Thank you. Mr. Chairman, thank you. As noted, this is on page 3, item C of your meeting agenda. This is DP 2012-105, an amended final development plan for the Park Hill Shopping Center for Lot 1. This property has an address of 3100 Pimlico Parkway. This item was discussed considerably at your meeting a month ago, four weeks ago today, and was continued to today's meeting. I'll be glad to reorient the commission members to the plan. Some of you may not have been present last month. But before I do, I want to make mention of the items the staff has placed at your chairs. Two items were exhibits that were presented at last month's meeting. The first is a series of excerpts of the development plan for the property, the first one being titled Original Submission November 2012. We walked the commission through kind of the evolution of this site at your meeting last month. The second is a tan sheet and is an email with my name on it. These were the communications that we had received prior to your meeting last February on this proposal. We submitted both of those to you last month. The third item is a draft of the minutes from your February 13 meeting. These were just completed this morning, actually, and I believe that they were circulated to the Planning Commission members and to Council for the applicant and the objector. There are two other items that we've distributed. One is a letter addressed to myself and to the Division of Planning, dated March 5th of this year. from CMI Properties. The staff did submit this letter to you at your subdivision committee meeting a week ago. We did not distribute the attachments to this letter. So this is the letter in its entirety to the Planning Commission about this proposal. The final item we've distributed is a two-sided handout, one with a site drawing for a McDonald's restaurant and the other, the email communications that accompanied this. These two items, this letter from March 5th and this site plan, are both new information that the staff has received since your meeting a month ago. The development plan that's before you is for property at the corner of Manowar Boulevard and Pimlico Parkway. And lot one of the development includes this corner lot here. There's formerly a central bank branch that was located on that, and the structures for that building are still present. But this plan proposes a McDonald's restaurant at that location. The plan was approved by the Planning Commission. I should say this version of the plan was approved by the Planning Commission in December of 2012. It shows the restaurant located here on the property. It shows a reduction in the building line from 50 feet to 25 feet from the right-of-way along Pimlico. It shows a dual drive-through, rear of the restaurant, and off-street parking and circulation through the site as well. This plan did not purport to change any of the remainder of the shopping center with one exception. area in very close proximity to this lot was proposed for some alteration. And that led to a very controversial condition of the Planning Commission as we discussed last month. We also presented to you last month the plaque for the property, which shows lot one, lot two, where there is an Arby's restaurant, lot three, which is the bulk of the shopping center, and lot four. and the staff highlighted for you a reciprocal parking and access agreement note that appears on the plaque. Requires reciprocal parking and access amongst all lots on the development. I would like to show you a couple of photos of the property and one other staff exhibit that's new. This is a view of the shopping center looking from to the north. Here is Manowar Boulevard. Pimlico Parkway is here. This is a signalized intersection. lot one is here and that is where the branch bank building is currently located shopping center is in the remainder of the photo it's a little close-up of those two the main entrance to the shopping center is here which is opposite of custer drive just outside the photo and this shows the lane stacking between this entrance to the shopping center and the signalized intersection at manawar boulevard this is lot two where the arby's is located it also has a drive-through facility this location you can see the drive-through for the bank was situated here the tellers the service area here and then traffic either exiting this direction or in a u-turn fashion back through the shopping center this is looking at the same two properties please. And we have the Branch Bank, the Arby's restaurant here. This shows the stacking for the drive-through and the main access way in and out of the shopping center, which is one way in, one lane in, pardon me, and two lanes, although they're not very well striped, there is barely room for two vehicles there to exit. There is a connection here and here from the Arby's to the main drive aisle, and this aisle here exists also to serve lot one. This is the same photograph with the current proposal for the McDonald's restaurant superimposed on that lot. Here's the right-of-way for Man of War, right-of-way for Pimlico, and its orientation to the adjoining Arby's restaurant and to the parking lot to the rear. The commission may remember the staff identified last meeting last month that this area of the development, including some others, have not been constructed as the 1980s-era development plan was approved for the property. and that has proven to be a design constraint for the McDonald's site designers. The condition that you see on your agenda for number 10, resolve owner signatures for all lots affected, was done in late 2012 because of this discrepancy. Their initial submission did not show any proposed amendment to the shopping center property. But if you will look at the second page of this handout and actually view the plan that was approved by the Planning Commission, there was a proposal to change the rear of the property to reflect more of what actually has been constructed on the property rather than the approved plan from the 80s. This condition is what led to condition number 10 being a part of the Commission's approval in December 2012. That was not able to be accomplished within the one-year time period from December 2012 when this plan was approved. And so the petitioner filed with the staff a different version of this plan in Mylar form asking for certification. This was done in January of this year. The staff informed the petitioner, and that should be the next page handout that is labeled plan certification version February 2014. That is the plan that has been rendered to the left, and that is what the petitioner is asking to be approved. It is a revision in that the dumpster locations have been moved. The general circulation is very similar to that provided before, but there would be two connections into the Arby's property and one connection to the rear into the General Shopping Center property. That is the proposal. We received a letter, which is the next page in that same handout, asking for re-approval of this plan, and this was a plan filed about the time of your committee meetings in February. and initially the staff recommended postponement of this reapproval request just because of the uncertainty the staff had as to which version of the plan the petitioner was asking for. That was clarified shortly before your meeting in February to where this version that's on the overhead and on the rendering are the ones in the staff's estimation that the petitioner is interested in going forward with at this time. The next handout is one we also covered at your meeting last month. This is from the Capacity Assurance Program, indicating that there is sanitary sewer capacity in this general area. We noted that there has been a withdrawal from that bank, and it's quite possible that this proposal is what that withdrawal represents. We're not exactly certain on that, but there is significant capacity to allow this property to change from a bank to a restaurant. The two new items that the staff has distributed, about the same time we received a revised site plan with the emails and the letter from the managing property, shopping center property. The site plan is a result of a drawing that was shown at your meeting last month where one of the earlier versions of this proposal would have the access to the McDonald's solely to the rear, farthest away from Pimlico Parkway, and not access through the Arby's property. This was one of many ideas, I guess, that the site planners looked at for this restaurant, and it was shown to you at your meeting last month. And then this was, I would categorize it as a tweak to maybe that earlier version that was being considered by the applicant. About the same time we received this letter from the shopping center, they objected to the access being provided and connected into the Arby's restaurant as is proposed on the drawing on the overhead and the plan that we reviewed with you at your February 12th meeting. Pardon me, February 13th meeting. The applicant or the shopping center owner, I should say, also cited a number of McDonald's restaurants and cited that there are very few in town that access solely through the internal workings of a shopping center. Most have direct access either to collector streets or arterials. They did also point out that they were aware of the problem at the rear of the lot and that what exists on the ground does not match the approved development plan. This letter seems to indicate that they have hired a contractor to resolve that difference between the approved plan and what is on the ground. Again, the staff distributed just this letter to you at your subdivision committee. That is the new information that we have. We suspect you'll hear additional information from the applicant's attorney and other attorneys representing other parties, the shopping center and the restaurant. The staff, as we mentioned in the minutes and at your meeting last week, believes that the planet that is before you is eligible for reapproval with or without condition number 10. That was debated quite seriously at your meeting last month. The applicant asked you not to approve it with that condition 10. The shopping center owner asked the commission to retain that condition. Staff believes this plan can be approved with just the nine conditions that are ahead of that on the agenda. Before you hear from the applicant and the attorneys, I'd be glad to answer any questions from the commission about the new information or about the plan that's before you this afternoon. Thank you, Bill. Let me ask you this first. Right at the tail end of your presentation, you made reference to a letter and that, I presume you're correct, the shopping center was working with a contractor to resolve the differences on the back of this proposed property? That's what we read, Mr. Chairman, on the second page of this handout, right in the middle of the page. They were aware of the inconsistency, which the staff had pointed out in 2012 in a letter to Mr. Talbot representing the shopping center, and that they have hired a contractor to construct the spaces and the two access points on Lot 3 per the requirements of the development plan. Is that still viable? With the plan that is now proposed, this plan shows the connection to the property line here. And on the photograph, that is here and here. so even if it goes to the property line under this proposal this traffic presumably would exit in this direction probably if it did not travel this way those would be the two ways out of the site would either be in front of the arby's or in this direction and then outside so that letter resolving the problem would not provide access out the back of lot one? If it existed in this fashion, yes, these dumpsters could be relocated and that connection could be made. Okay. Alright. Other questions? No? Okay. Applicant? Thank you. Let me ask, we'll go to the applicant first. Who is here that wants to speak on this today yes yes okay all right then very good we're at two o'clock I'm not going I'm gonna keep an eye on the clock I don't want to go over as far as time limits but so just be mindful of that and we'll get started and be conscious of the time, please. Thank you. Ms. Westover? Good afternoon. I'm Chris Westover. I represent the applicant, Pimlico Parkway, and also McDonald's, in obtaining approval for this development plan amendment to allow the construction of the McDonald's lot. there's a lot of history that goes with this, and I think you all have heard an hour or two of it last month. I won't get into it too much, but I want to say a couple things to start off with. First of all, McDonald's owns, Pimlico Parkway owns the corner lot, that's true, but the Arby's lot is owned by the shopping center. So those two lots are owned by the same entity. Our lot is landlocked without the reciprocal parking and access easement. Without that, nothing can come and go there. So it's important to keep in mind, as you hear testimony today about possible implications of traffic on what I'll call the Arby's lot, It's the shopping center that owns it and has control over anything related to amending a development plan related to lot two or the shopping center lot as well. At the end of your meeting on February 13th, you all asked us to go back and try to talk to resolve this situation. And as you know, Mr. Talbot was here, the manager of Arby's was here, and we did that in good faith. We devised a different development plan that would address these concerns. And something that Bill Salee did not show to you, because it was withdrawn today by the applicants, was a development plan that very much matched the development plan that we would consider actually filing that would have closed off access to the Arby's lot and had dual access to the rear of our lot. uh we thought that we were very close to an understanding on this and i went to your subdivision committee as you may recall and said that there was a meeting later on that afternoon and that we were really talking and we were making some effort and then shortly before that meeting i got a phone call from the attorney the new attorney for the shopping center and asked to cancel the meeting and postpone this matter that um that it would be premature to go forward and as we had the meeting anyway but we could not make any progress at that meeting and as you know today that development plan that they were tendering they withdrew and our difficulty is that since this lot was purchased in 2011, we have tried and tried to negotiate in good faith with the shopping center to allow this development without any impairment to the rest of the shopping center, and we have not been able to bring them to the table. We have not been able to get them to commit. so today we are here before you with this version i'll call it the version that we filed and that you saw on february 13th and we ask you to approve it with the conditions except all of the development that will take place on this lot can be done entirely on this lot and based on that the signature of the other property owner which is the shopping center is not required and we ask you to do that i will stop here and i will ask the engineer to come up and talk about this explain in detail why this plan works and why these other proposals can't work because we would have to obtain the signature of the shopping center and the shopping center has been unwilling to even talk to us let alone sign the development plan before i continue further let me just say that today also we have here john barnard from mcdonald's he's based out of columbus ohio rob rosenstein who owns the lot in question jeff england is here and roderick sailor is the engineer for GRW so I'd like him to come forward now. Thank you. This is Roderick Saylor, GRW Engineers. I don't want to beat a dead horse but just want to emphasize just a little bit how we are with the the layout that we have what you see in front of you today. Bill Salih handed you a handout two-sided that showed our building reversed and flipped. Should I put that that up on the overhead you guys have that sure go ahead and put it on the overhead this is a plan that we took and met with the attorney for the shopping center last week it would effectively shut off all access to Arby's one issue The reason why we were not actually asking for that to be approved today is we don't have and we don't have have gotten any indication or cooperation to understand that we would be allowed to have the off-site construction, temporary off-site construction easements to readjust the islands and the parking spaces to match this particular layout. So we're staying or that's what we're asking for the plan that we submitted in February or excuse me January that was heard in February. Unfortunately, there isn't cooperation from their side to allow us to have a temporary construction easement that would allow this particular layout to work. I think this works for Arby's and I think McDonald's would probably like to have this as well. But unfortunately, I'll put this little slide up real quick. And this is more of the same. This is a reflection of the plan that was heard in February, but in red I've highlighted the islands. The islands above the site between the McDonald's and Arby's were actually shown on the 1981 development plan. The islands in red behind the trash enclosure, or to the left on your screen, are off-site. The curb is beyond the property line. The parking space is beyond the property line. There's not something we can get out there to adjust. So that's why we're staying with the requested plan from February. I'm going to take this microphone here. Go ahead. Perhaps you can explain that little, that very fine red line. The fine red line behind the trash enclosures, It represents the gap between our property line and the face of curb for the shopping center. It's just that it's off-site. You don't have permission. I mean, you normally do your construction on-site. Without permission to go off-site, you're just not allowed. I think additionally, one last thing to add to this. The way this is, we'll have two access points to the Arby's. Traffic typically goes in the path of least resistance. If the traffic's backed up along the frontage there of Arby's, the outlet, the secondary valve to release traffic will be out to the rear of the McDonald's and the Arby's lot there near our trash enclosure. And that curb cut is in excess of 24 feet, more than enough for the traffic to exit. Thank you. I have some photos here. if you could explain to the commission what the photos are. Sure. This is the curb cut I referred to just now. That's in slightly in excess of 24 feet. Looking straight ahead, you're looking at the RV's drive-through. To the right would be the exit from the McDonald's as they would be leaving from the rear of the lot. This one's a little lighter. about how wide is that? I would give it, it's definitely over 24 feet. I don't have a survey with me to measure that. And can you describe that? And again, the same picture, but you have two-way traffic now. And I guess if you use the cars as a scale, a typical parking space is 9 to 10 feet wide. This is looking closer to 30 feet. I mean, in my mind, you could probably get three cars parked side by side in that entrance. So I'm just trying to highlight that the rear access still has enough room and capacity to handle our traffic. And there's no parking on that side of the Arby's building, right? So all that is is access in and out of that lot. Is that correct? That's correct. thank you that's a lot thank you miss westover do you have anything else I have a lot that I can say, but it might be more expeditious to hear what the shopping center has to say, and then I can respond to that. I will say that the development we're proposing is reasonable. It is in conformity with the existing zoning. It's a standalone lot. This lot has been vacant for four years. That's four years it's been lying there without any businesses going on there, without any opportunity for any sort of economic development. And what we are trying to do is put a reasonable, lawful use on the property that is a use that is normal and common in any B6P development throughout Lexington, and that is all we're trying to do. and the development that we have proposed with this February development plan would allow full development entirely on our lot without any other signatures. So we respectfully request that you approve this development plan without the condition that other property owners sign. I will say that in previous development plans for this shopping center, and I can show you if necessary, there have been development plan amendments that affect only one of the lots or the other lot and there's even a notation on the development plan that says these improvements affect only this particular lot and no other signature is required that's all we're asking for here and it's consistent with your common practice throughout this entire jurisdiction is if there are improvements on one lot the other properties that are subject to the development plan are not required to sign the development plan that's all we're asking for here but i will stop now and and i would request an ability to respond to whatever um the the shopping center folks have to say thank you thank you um before we get to opposing parties anyone else want to speak in favor of this plan if not uh mr nicholson afternoon uh nick nicholson here on behalf of the uh shopping center uh one and i've passed out some proposed findings for disapproval that we believe that you all have the authority to disapprove this plan under zoning ordinance section 21-4E based on health and safety reasons, which is what we will contain our focus on. In deference to the time issues that Mr. Owens did refer to earlier, we will not retread the arguments that were made last time. These are simply, these are different arguments, and the reason why we are here today is last time we appeared before you all in the context of a landlord essentially responding to a tenants' issues. The tenant Arby's came to us and said that this would greatly impact their lot, and they wanted us to take a look at that. Once we came in there, once we did dig through there, we saw there were more widespread issues. We hired Stantec and Dr. Tom Creasy, who is here today, and we wanted to address this as a full, and after looking at his findings, we have concluded that we are going to have to basically oppose the use of McDonald's in this location entirely, not just the cutting off the access to Arby's that we were here advocating for last time. Let's see. Also, in response to something that Ms. Westover said, we do believe that the signature for the owners is required on this lot, and so we would request that you keep Note 10 on the development plan due to the impact that it will have on the entire shopping center. The meat of this basically boils down to this is too intense of a use for this parcel. We are talking about a parcel that is only 0.7 acres, and we feel that this is just simply to use. So McDonald's is the highest end of traffic generator for fast foods. Dr. Creasy will address this more, but we're looking at 2,000 trips a day for a high-end fast food type restaurant. And we feel that that is too intense for this parcel. It violates the zoning ordinance under Section 12-1, which I'll address later. And it also violates the private easement that is in place for this property. We feel that this development plan, as is, it, quite frankly, just ignores the reality of the intensity of this use. It doesn't even begin to address the impact that traffic is going to have on the other 26 tenants that are in this shopping center. It does not address any of the traffic concerns for the neighborhood as a whole. We will discuss later the drastic impact that this will have at basically Custer Drive and the entrance to Park Hills, as well as spilling out onto Manowar itself. Here is a, it is basically the typical site layout that is on McDonald's website. This is what they give to franchisees in order to basically demonstrate what they feel is a typical site. As you can see, it is 1.37 acres. It is 175 feet by 340 feet. There are 70 parking spaces on this typical layout. There are two access streets on here. We overlaid a box that is 175 feet by 340 feet onto what is the Park Hills aerial. You can see that this will cut across basically almost half of the Arby's building and take up a quarter of the Park Hills parking lot. The property line, as has been discussed, is essentially in this area and cuts back right here. Since we didn't want you to just take the words of typical corporate McDonald's, we went ahead and pulled all the information for Lexington locations. locations. Here at the bottom, you can see that the average Lexington acreage is 1.35 acres for McDonald's. The average double lane drive-through, which is what is being proposed for here, is 1.45 acres. So this is following the typical site preference that McDonald's corporate is asking their franchisees to do, basically 1.35 acres and 1.45 acres. The parking spaces are 56 for the average McDonald's here in Lexington and then 50 for the double drive-through. Here we have 0.71 acres, over under half of what the average drive-through is. We have 20 spaces, only 20 on-site parking spaces. The average McDonald's has 15 to 20 employees per shift. There are 75 total employees for the average McDonald's. That takes up your parking right there. So now we are moving basically even just employee parking alone. We're looking at going ahead and shifting those off to the shopping center in order to not inconvenience the customers. That still leaves 36 spaces or 50 spaces, depending on if you're looking at just Lexington or the McDonald's corporate, that is going to have to park off-site. But basically those parking spaces, if you look, they're going to have to come basically from this realm, this little circle. In order to find the 36 additional spaces, pedestrians are going to have to walk anywhere from 125 to 200 feet to the closest entrance. The closest entrance is basically in this location right here on the side. It is not the location of where people will be parking, and it is not basically in a location that would prevent pedestrians from having to cross, in some instances, up to three different drive aisles in order to access this. The reason why I kind of dwelled on the parking situation so much is this was the Saturday. We were retained on a Friday. We went out there the very next day and took pictures of what the parking lot looks like on Saturday p.m. This is standing on basically the property line in between Park Hills and the old Central Bank parcel. This is looking down towards the Arby's lot on the main drive aisle, which would be the primary access for this drive. And this is right next to the Arby's. I can assure you I did not call all these cars in order to come out there and park. Not that many people like me that would do this on a Saturday night, I can assure you there. This is what is the current submission. We feel that the majority of all drive-thru traffic, which McDonald's, I believe, last Planning Commission said around 60% of their traffic is drive-thru, we believe will access right here. This is where the current Arby's access is. As you can see, when you are coming down the street, there will be a clear line of sight to the Golden Arches. They will see the golden arches. They will drive straight towards there. As I believe Ms. Westover's McDonald's representative said, the traffic will take the path of least resistance. That is going through the Arby's. That is going to conflict with the drive-through traffic. They now, in this submission, will be able to not only drive through here, but they will be able to quickly take a sharp turn into the drive-through lot. Once that starts stacking, that's going to conflict with the drive aisle, with the Arby's drive-thru, and also the traffic that actually does a responsible thing goes all the way around the building and goes into the McDonald's drive-thru line there. On the plan that was approved before you, there were landscaping little triangles right here that would prevent this from occurring. This was a much better way to handle this type of situation. As Mr. Salib had pointed out, on the original approved development plan, there was an access point right here, which would prevent any traffic from going on the Arby's lot whatsoever. That is just the ingress traffic. That's just how we get to this parcel. How do you get out of it once they do it? Well, unfortunately, once you get through this drive-thru, you are going to basically work your way right back out to the Arby's. This is the current plan submission, sorry. They are going to head out this way. Mr. Drake, I believe last meeting you said specifically you have tried to do that when Central Bank was there, and it was a bit of a problem trying to get out to the Park Hills main entrance and then out to Pimlico Parkway. Yes, there is a relief valve, but that relief valve is going to be clogged because of people coming in through here to get the drive-thru and people coming to the Arby's drive-thru as well. Simply put, this egress situation is untenable. This is also basically compounded by the fact that currently we have a truck problem in Park Hills. in order to access these out parcels. The turn radius is not wide enough in order to allow these 18-wheelers to access these out parcels. So they're forced to basically park in the row of parking, taking up even more spots. They will do their deliveries, and they will leave. This was taken during lunch, so this is not exactly not a peak time for McDonald's. We believe that McDonald's delivery trucks will be in the exact same situation that these currently are. I want to introduce now Dr. Tom Creasy in order to explain what he has been able to find in the limited time that he has had to study this property. Good afternoon, Mr. Chairman and members of the Planning Commission. My name is Tom Creasy. I'm with Stantec. we were retained to perform a preliminary assessment to address concerns regarding public safety and traffic congestion associated with a high-volume fast-food restaurant on this location. I'm just going to briefly talk about, in the brief time that I had to take a look at the site, eight points of concern to me related to these issues. Seven of those eight are actually external to the site. on that is Pimlico Parkway and Manowar Boulevard. I think Mr. Nicholson did a good job of addressing the on-site issues. But I've put a map up here and just briefly want to talk about these individually. The first is this left turn lane. If you're coming off Manowar and turning left into Park Hills, making that left turn from Pimlico Parkway, that's a very short left turn lane. It's a little less than 100 feet, four to five cars. Anything beyond that starts backing up into that transition area and then backing toward Manowar Boulevard. So it doesn't take too many vehicles wanting to enter the site to back up and spill back from that left turn lane. Going out back toward Manowar, there are two left turn lanes, but that distance is not a lot longer. And that's a pretty significant movement in its own, especially 5 o'clock in the afternoon. You have about capacity for about 10, maybe 12 cars stacked in those two lanes turning left. You add traffic exiting any type of high-volume traffic generator at this location, and it would not take much to back up those turn lanes in either direction. You have less than 300 feet between the Custer Drive intersection, which aligns with the entrance to Park Hills and Manowar Boulevard. This is shorter than most of the downtown blocks here in Lexington. So that's not a very adequate distance for that. So it wouldn't take a lot of imagination for traffic spilling out of those left turn lanes in either direction to imagine traffic backing up into those intersections and blocking them, blocking the Custer Drive intersection, and more importantly, that Manowar Boulevard intersection with Pimlico Parkway. You can imagine people wanting to take a left turn in the morning to go get some coffee and trying to turn left into Park Hills, and that traffic actually spilling all the way back out into Mantle War Boulevard. Now, we believe that given the opportunity to perform a detailed traffic study, we can actually quantify this and tell you to what extent that might happen, what the probability of that happening would be. The fourth issue is pedestrians that currently walk to the site or ride bicycles. We would expect even more of that if a high-volume fast food restaurant were there. To the north on Custer Drive, there are a number of businesses. There are apartments at the end. There's a lot of residential, both east of the site on the other side of Manowar and then west of the site along Pemlico Parkway. There is no pedestrian crossing there, and very few people, we think, especially coming from the west, from the left-hand side of the picture, are going to walk all the way down to Man of War to cross at a signal to turn around and come back. In fact, we have some footage to show you that most people do just that. They cross, I mean, they don't do that. They cross right at Custer Drive. There's no pedestrian crossing there right now. And so that's, as far as public safety goes, that's a big concern. Custer Drive has a lot of activity on its own, and especially at 5 o'clock in the afternoon. We have some video that will show that for traffic wanting to turn left out of Custer Drive to go to Man of War, you can't see it from the stop line. In fact, cars have to pull partway out into that intersection. It's a combination of two factors. You've got some landscaping associated with the credit union right there, And also that general curve makes it impossible if you're stopped at the stop line on Custer Drive. It makes it impossible to see if you have a gap, whether or not you can pull out into traffic. And you don't have to sit there long to watch people inching out into that intersection and then taking a risk to just go for it, if you will. The sixth issue is the curb radius there at Pimlico Parkway in Manowar. I'm particularly talking about delivery trucks, trucks turning off Man-of-War onto Custer Drive or onto Pimlico Parkway to go to the site. Right now, that's not an adequate turning radius. trucks from either direction have been observed swinging out into the intersection and then even causing cars that are in the left turn lanes on Pimlico Parkway to have to back up to give them room to swing into onto Pimlico Parkway. In doing that, by causing cars to back up, then you effectively reduce that left turn storage for that movement from that left turn from Pimlico to go north on the man of war so there are some operational issues with trucks accessing the site one that was talked about previously with with parking and ingress and ingress to the to lot one there the proposed or the the template for a typical mcdonald's plan that you saw had anywhere from 55, 56 parking spaces up to 70, and yet what you saw was proposed was a fraction of that, which means that the majority of those people would have to park in that common area. And I have a real concern about people parking and then having to cross circulation aisles to get to a business. And certainly this would introduce more opportunities or the need for that more by people having to park, get out of their cars, and then cross traffic to get to the site. And then the last issue that I just wanted to point out is that stacking on Manowar for traffic that's heading north and turning left on the Pimlico Parkway. That's a pretty long left-turn lane, but it does back up, particularly in the afternoon. If you add a high-volume generator there on that site, you're going to get even more of that. And so the likelihood of that left turn storage issue could also happen here. There is adequate room to extend that left turn lane to accommodate that, but it makes it even longer. There's a cost to that. So those were the eight issues just in the preliminary assessment that I did that were of note to me with regard to public safety and traffic congestion. Just a couple of other things to point out. We went back and looked at crash statistics for the last three complete years. Those yellow dots that you see there were all reported crashes just kind of in that area, whether they're on site at the Park Hill Center, on Manowar Boulevard, on Pimlico Parkway. About 40 a year, give or take, for the last three years. Without doing any comparison right now, that seems to be a lot. We can quantify that to tell you whether or not that is a lot. Obviously, with a high-volume traffic generator, we would expect there to be more of that. Just briefly, we'd like to just have a couple minutes of video to supplement what I was discussing here. all right so those are this is just a map with the eight issues that i'd outlined this is a five o'clock in the afternoon traffic because it's westbound on pimlico parkway at manowar boulevard it backs up past the main entrance there at custer drive in fact there occasions when it goes all the way down to the secondary entrance at the circle k this is as it is today in fact this was shot monday afternoon of this week this is why i was talking about traffic turning left from custer drive the stop line as you can see is in the very left hand side and that van if you're sitting at that stop line you cannot see if you have an adequate gap so you You have to pull partway into the intersection. If you're turning right, like that red car, you have to pull up far enough so you can see around any car that's trying to make a left turn. On the opposite side is the traffic that's exiting Park Hills. So that becomes pretty interesting just to watch those drivers try to determine what the others are going to do. But this is a regular condition. It's worse at 5 o'clock in the afternoon on a weekday. These are pedestrians crossing Pimlico Parkway there at the shopping center entrance that I showed you before. There's no pedestrian crossing there. There's not a signal there. And so, and we did not see anybody walk down to Man of War and cross at the signal there. They're more of the same. As I said before, a lot of businesses on Custer Drive, so particularly when the weather's nice, We expect there already are people that walk over there to get lunch. There are, I think, four establishments right now where people can get lunch plus the Circle K. And obviously with the McDonald's, the attractiveness to do that would be increased. Again, this is a summary of those points that I made. We believe that the questions that those points raised, a lot of those could be answered with the detailed traffic study, but it would take time to do that. it would be able to quantify some of those questions like the probability that you might get traffic backing up and blocking Manowar Boulevard. Manowar Boulevard is quite busy. It's about 34,000 vehicles a day, which is about double the traffic that was on Manowar when Park Hill's shopping center was constructed. Pimico Parkway has about 8,000 vehicles a day, so pretty significant traffic volumes. Thank you, Mr. Creasy. Yes, sir, Mr. Nicholson. I will quickly wrap this up. I told you at the very beginning that we believe that this violates zoning ordinance section 12.1. That is basically the intent provision for the B6P. There's a three-pronged statement I kind of wanted you to hear. First, that you're supposed to assure traffic safety by designing such commercial areas so as to provide safe and convenient access there, too. We just heard Tom talk about this problem. There's supposed to be adequate off-street parking for automotive vehicles. I think I've demonstrated that that is simply not the case here. You're also supposed to effectively separate vehicular from pedestrian traffic both within the commercial area and adjacent public right-of-way. We've already seen that there is a problem on the streets that are right next door. If we are adding the McDonald's driver here, we believe that the internal pedestrian situation will worsen. A lot of that will have to do with the ingress and egress problems that I already had covered. 12.1 also says that you're supposed to minimize any adverse effect of any such commercial area upon adjacent land uses and provide a pleasant environment for the shopping and working experience. This gets at the meat of our argument that we really feel that this is going to create a traffic logjam with upwards of 2,000 more trips a day in an area that is already basically not designed for this intensive a use. This was a bank since the creation of this shopping center. It was a bank that, you know, I believe Tom told me earlier today that that generates somewhere around, you know, 20 to 50 trips during your peak hours, depending on a.m. or p.m. versus the bank, their peak hours. Here, this is much different. You're looking at 300 trips on peak hours for McDonald's, 2,000 per day. It's a problem. 12.1 also says to protect the investment of existing commercial concentrations by providing the basis for convenient and stable commercial developments through the application of sound planning principles. There's a reason why McDonald's corporate recommends 1.37 acres, and the actual people in Lexington who have invested in this community have followed suit, having 1.35 acres, having recommended up 70 parking spaces, having 56 parking spaces, because that is how much space a properly laid out McDonald's requires. It requires 1.35 acres. We're at .71 acres. So how are we going to make up the extra .6? They're simply going to basically take that from Park Hills at the sacrifice of the other tenants. That is why we felt that we had to come here today in order to oppose this use entirely. We are not opposing the development of this parcel. We are opposing the intensity of this proposed use. That is pretty much all I have to say. I will happily take any questions if you all have some or if Ms. Westover would like to come back after. Thank you, Mr. Nicholson. Let's see who else we might have to speak first. Others that would like to speak? Your name, sir? Good afternoon. My name is Nathan Billings. I'm with Billings Law Firm, and I represent Harvey's, which is the tenant of the adjacent space next door. If I could first put up the development plan from the 80s, if we could zoom in a little bit on the lot. This case is sort of like my student loan. It just won't go away is how I keep thinking about it. I got involved in this last year. It sat for approximately 10, 11 months with an occasional love letter from an attorney back and forth, but otherwise no attempt was made from our perspective to really get a resolution to this. Today I'm going to ask you to do one of two things, either follow the staff, which is to postpone it, or ultimately to deny the development plan as proposed by McDonald's and the current owner. I'm not going to rehash the other ground that's gone through. Mr. Nicholson did an excellent job of giving you proposed findings on why you can deny the plan. What I want to do is probably deal with some more practical implications instead of technical implications. Specifically, this is the 1980s plan, and it was never constructed. constructed as approved. It's rare, or maybe not so rare, but it didn't happen. So today we have a problem that the site does not comply with what was approved. The ironic thing is they still don't want to comply with what was approved. They want half of it, which is the access into Arby's here and the access onto Arby's here, but they don't want to add the relief valve that you've heard refer to, which is here. We think that this is really critical to this case. While the two separate owners have gotten together several times to talk about ways to resolve this, neither of their plans at the end of the day fixes the problem, which is essentially this lot has to either have all of their outflow come directly out into the Park Hills parking lot or come across our lot in some location as well as the Park Hills. The problem is the current plan puts all of the outflow into Arby's in two places and completely ignores any relief into the actual roadway designated for cars. Both of the relief points put traffic either into Arby's drive-thru exit or circular drive-thru entrance, or part of the drive-thru entrance either right off the Park Hills lot or through the back circle of the drive-thru. This area right here is akin to a four-way stop without a stop sign. You've heard explained the problems with the traffic at Manor War in Pimlico, the problems with the traffic at Custer in Pimlico and Park Hills. This right here is a microcosm of the problems that are going on in these two locations, except you have no traffic calming signals because it's private property. You're going to have cars entering McDonald's from here across the Arby's driveway. Although it's not intended that way, every one of us has been through a drive-thru, and we know exactly what's going to happen. Somebody's going to pull off and go through there. Somebody's going to come around through here and try to access McDonald's because it's a shortcut from coming around here and circling around. Arby's, as you saw in the picture, some of the Arby's cars will circle through the drive-through this way, and although it's supposed to be two-way in, you saw exactly what happened in the picture, and Arby's car was exiting this way, you're going to have cars exiting this way as well as entering this way, this right here is going to become a complete and total bomb for traffic. It's just a simple, practical result of what's going to happen if this plan is approved. Ultimately, something has to be done to fix this situation. As the tenant on the lot, we don't deny that. Some solution has to be crafted. This solution is a safety problem. This solution is not going to allow for adequate relief when the traffic backs up to here. When the McDonald's, if you could put up the original or the actual proposed plan. Thank you. When the McDonald's traffic comes around McDonald's through the double drive-thru, back into the exact way that traffic's entering, that's a one lane right there, it's going to come back into Arby's. That's the path of least resistance initially. This right here, as the traffic backs up, coming out of the Arby's drive-thru as well, you have two drive-thrus then exiting into a single lane of traffic. It will back up at this intersection. When that backs up into here, those cars, one, assuming that their car's trying to exit and not actually coming around McDonald's, will come this way. The problem here is there is no relief valve from that point. There is nowhere for them to go. They can only wait here or wait here. Why we think this should be denied is because this does not provide for exactly what the Planning Commission said should happen in the 80s, which is this right here needs to be opened up. Because that's going to allow for much greater traffic flow out this way. Even if this back's up here, cars can still go this way, they can go this way, they can go straight. This right here is going to become a problematic situation because you have inflow and outflow here, inflow and outflow here, inflow and outflow here, and inflow here. So for the reasons that Mr. Nicholson has tendered to you all, we believe that adequate findings can be made, that the current plan submitted by McDonald's should be denied, essentially forcing the parties to sit down and reach a reasonable resolution. However, if you are going to approve the plan, we would suggest that what you do require is that there be an agreement reached between the owners regarding how this should occur, because there has to be a solution that is tenable to the owner of our property where we're the tenant and to the owner of Park Hills. Thank you all. Thank you, Mr. Billings. For anyone else in the audience wish to speak? No? I'm sure we may have a question or two for our traffic department. Would you like to come address any of this at the present time? mr crazy yeah good afternoon um one thing that i did want to make you all aware of is that when this site was originally developed it was developed as a bank and at that time the traffic generation for a bank was high because there wasn't all the online so the trip generation of the original development plan of the bank is very similar to a McDonald's trip generation. Now, you can look at it lots of different ways. The bank will peak on Saturday, which traffic for McDonald's on a weekend is high, too. So if you compare those, actually the bank is more than the McDonald's would be. The daily traffic from a McDonald's is obviously going to be higher because you have your morning, your afternoon, and your lunch peak, whereas for your bank, you're not going to have those three. That might be something just to make you all aware of. Any questions from Ms. Cocker before she leaves? Yes. I think we talked about this in subdivision, but I wanted to bring it up again. You said you don't have a problem or traffic engineering doesn't have a problem with the short span between there at the Arby's exit, if you will, ingress and egress out to Custer Drive where there's a short distance there. You said you don't have a problem with that. Traffic doesn't have a problem because there's a median there. so it's from the Arby's lot to that main drive out it is it's a right out so any backup would be on the lot it would not be on Pimlico Parkway any other questions no thank you Let me go to rebuttals at this point. Yes, Ms. Westover. Thank you. Roderick Saylor has a few comments to make in response to Mr. Creasy and Mr. Nicholson's comments. And also I'm going to bring up John Bernard with McDonald's. this is not going to be the high-volume McDonald's that are in other parts of the community. So I will turn this over to them, and then I will make closing comments. I just want to point out two things. The attorney for the shopping center, I think, was incorrect on a couple of things, and then also kind of hit on what traffic discussed with the raised island and this location of the main entrance to the development. No one's going to come in from Pimeland Parkway and take a left and go across to enter into the McDonald's this way because, well, there's an island there and you can't get across it. There was a couple other misconceptions I believe the attorney had. He discussed traffic coming in this way on both of the plans. These are intended to be exit only for our development. They're not intended to be entrances. Those can be striped and signed as needed to help direct traffic away. Drivers can be trained. I guess if you talk to a franchisee owner, they deal with these traffic problems on their own lots and they put up signage and do other things to quote unquote train drivers to make the correct maneuvers on site. But I just wanted to correct those two things. That's actually an exit for us, that's at the rear of the site. And traffic won't, I don't see how traffic would be entering across the front of the McDonald's, or excuse me, across the front of the Arby's due to the raised island there at the entrance of Pemblical Parkway. Thanks. Thank you. John Barnard is with McDonald's. He can testify about the intensity of this McDonald's. Hello, everyone. I'm Derry, real estate manager for McDonald's. I guess one thing to point out is that this is an infill McDonald's for us. This is not, we're not planning this to be a big boomer. And that's why we actually have this as our smallest building. We're planning on mostly drive-through in the mornings and in the evenings. We already pre-planned for delivery trucks to come in off hours. We can do that to have them come between 11 p.m. and 5 a.m. So a lot of the traffic concerns, I went over originally with Gus Massero, who was here last time, and spoke to it. We think the stacking is actually very well, the way we circle the building to get in the stack, and then you have the circled building to get out. I would say that this operator is Nelson McMacken. He operates right now, the one on New Circle Road in 75, as well as Tate's Creek. he's an excellent operator I don't know if any of you know him personally but he's a great gentleman and he he's very excited about this location and his daughter-in-law Denise Long is going to be the one who actually runs it we've gone through everything in this location with them they're more than one they work with the community here and I can answer any other questions you guys might have. Thank you. Any questions right now? Thank you, sir. Yes, sir. Yeah. Mr. Wilson. Hold on one second. I'm sorry. I'm a little late. Please. How do you anticipate people getting into McDonald's? How do they get in? Because the point was made that... Take the microphone with you. Yeah. Well, there is an island here currently. Okay. So when you enter into the shopping center, you can't make a left turn in. in front of the argument okay you need to circle around come in circle into our drive or park if you're gonna if you're gonna walk in and then as we've said there is a stack in here and i would estimate this is probably 100 foot five to six cars you would circle back and i think that's what we said before was there when there was a bank there you would actually circle back around it was easier to come this way and get in line to exit. Okay, so from your perspective, they would come in and go all the way down to the very back. It would not cut through as has been suggested. No, they wouldn't be capable. There's actually existing. Not there. I understand that one. But coming on down in front of Arby's, it's between, sorry, I don't have a point on myself. Yeah. Back corner of Arby's. Yes, back there. Right there. Because the argument was made that they would come in and cut through there. But your point is they would come straight down. Yeah, they would come down, so come around. You know, this is exit only from our, you know, looking at it. And then, really, this is also where our delivery truck would come back out the same way. Okay. Thank you. Thank you. I've got one question real quick. Okay. You said this is an infill store. Do you all have any statistics about repeat visitors to the same store? And where I'm going with that is them understanding the traffic flow. Right. Well, I'll tell you, we, for mornings, for breakfast, it's very routine that it's the same people that come in for breakfast every day. Lunch is relatively random. And dinner seems to be planned as well. Someone on the way home, normally their wife will call and say, let's pick up dinner. But breakfast is most of the time. And especially this is a highly residential area. Not a lot of shop. Very little work here. So we're planning on this mostly being, we call it suburban mix, residential. People know the area, know the location. The visibility is good coming along Man of War. But going the other direction, heading westbound, the visibility isn't very good. So that's why we kind of think it's going to be low volume as well with there's only one access point for the whole shopping center. So we think that once people figure out how to do it for breakfast, they're going to pretty much know how to get in and out the rest of the day. And then, as we said, we do have off-site parking rights and full access easements as well. Thank you. Ms. Westover, conclusion? Thank you. I find it deeply ironic that the shopping center is complaining the most about this development when we have tried for so long to work with the shopping center to come up with an access point out the rear there, but they have been unwilling to talk to us. And it seems to me that the shopping center shouldn't have it both ways to complain about this development plan, yet refuse to work with us on another development plan that was similar to the one that they showed us a week ago, and then today they withdrew. So we feel like Lucy playing with the football, that we keep coming up with something, and they say, well, maybe, and then they withdraw it. The time has come for us to request approval and obtain approval of a plan that does meet every provision of the zoning ordinance and every other applicable requirement that is entirely on our lot. Arby's has a problem with this access, but respectfully, Arby's is the tenant, and Arby's has an issue with the shopping center, and that's for them to work out. It's also very interesting to me that the shopping center has talked about the high intensity of this particular use, but one can help wonder if the McDonald's were going to go in the main part of the shopping center if we would be hearing this same concerned testimony about the intensity of use. The fact is this entire shopping center is zoned B6P. Look at the list of the B6P uses, fast food restaurants, grocery stores, professional office, any number of things. When the zone change was granted, that's when it was appropriate to say, is this zoning of all of these uses appropriate for this property? That decision was made in 1979, and under the reciprocal access easement that was granted, it's also reasonable to assume that the general easement of reciprocal access would be based on normal development. What is normal development? It is all the development that's normal within that particular zone. We are doing everything by the book. We have tried repeatedly to reach out to the neighbors and without success. So we feel that this is appropriate to approve it as it is. Another small point is the bank building is there. Hypothetically, if McDonald's had been able to put its entire development within the bank and use those drive-throughs that they have, we wouldn't be here either because there wouldn't be the requirement for a development plan amendment. So all they would have needed would be a building permit or certificate of occupancy. We wouldn't be having this discussion. It's really extraordinary at this stage of the proceedings to be arguing about use and intensity of use when those decisions were already made. Your own Division of Traffic Engineering has said this is fine, and even the intensity of this use is no different from when the bank was approved, and your Division of Planning has recommended approval. So for all of those reasons, I respectfully request you to approve this development plan without the condition that the other property owners sign the development plan. I'd be happy to take any questions. Any questions? Yes. Ms. Mundy? Is lot number one the only lot in this development that is privately held other than the shopping center? The shopping center owns the other lots. They own all the rest of this little development except this one lot? Yes, and I'm glad you brought that up because originally, of course, the shopping center was one lot when it was rezoned. And then in 1981, the owner of the shopping center filed the subdivision plat to create the different lots. And it was at that time the reciprocal parking and access notes were put on there. Had the original owner wanted to restrict more the types of uses or the type of parking or work out in advance, you know, if there was a different change in use, you know, how the parking and access could be done, they could have done some. There's plenty of case law out there about that very thing. But that owner did not do that. Instead, we just have this general note there, and that note is the only thing that protects us from our ability to get to this lot because we are the only owner other than the shopping center of the rest of that property. So that reciprocal agreement is very important to this lot. It's essential because without that reciprocal parking and access easement, we would have a lot that could not be developed or used. And so it is essential. We would have a continuation of a lot that's sitting there vacant, unused, for four years now. And the time has come to move on. Thank you, Ms. Westover. Let's move to rebuttal from the opposition. Please, let's keep it to the rebuttal, please. Yes. Briefly, I'll respond to the McDonald's points that were made before Ms. Westover's. I don't believe I ever, and it might not have been since he wasn't able to see, claimed that you could get in on the left side or the first left to get into Arby's. That's the whole point. It is a problem that all traffic is coming in in these two ingress points. They can't make it in there. It is entirely that. So to make clear, I think that was the crux of part of my argument. And also I find it very interesting that they will classify this as an infill site when it is on a 15-acre shopping center on basically a mainly residential area on the kind of outermost connector that we have. There are two major arterials with a man of war and with alumni where there is constant traffic. 33,000 cars past this intersection on Manowar, and about, I think, 7,000 come up Pimlico. I don't consider this really an infill site, and I certainly don't think the franchisee would like to hear that they're trying to minimize profits by trying to reduce the number of trips that possibly could come to this McDonald's. With regards to the easement, Ms. Mundy, yes, the easement is absolutely vital to this situation. This is how shopping centers are typically laid out. However, easements have to be used with a burden. They must be used at the intensity that they were originally designed to hold. As Ms. Westover pointed out, if this was the 2,100-square-foot bank building that McDonald's was going in and doing drive-thrus, we wouldn't be here today. It's not. It's almost 4,000 square feet. And so this is a much larger building that was not originally contemplated when this parcel was basically sublet. And we feel that the use on this .7 acres is much, much higher than what was originally contemplated. We feel that this easement is now being overburdened by the proposed use. And I also want to point out that McDonald's is going to be able to use all of our access points that we have to maintain. All the other 26 tenants of this have to maintain this access point that McDonald's is not paying for. They're using the access point. They're not paying for it. They're going to spill over into our parking. They are not paying for that. The other 26 tenants have to pay for that type of basically common area maintenance. Our other tenants do. They do not. That really is pretty much all I have to say in rebuttal. I will take any questions unless Mr. Billings would like to address anything. Okay. Briefly, Mr. Billings. We've got three different parties involved here or so. Sure. This is the only rebuttal point I want to make. If we could put the 80s plan back up, simply with respect to your question about the reciprocal access agreement. They want the benefit of the agreement that lets them put all the traffic on their lot, but not the part of the agreement that lets traffic flow in through their lot. If you could put the 80s plan up, I'll show you simply what I mean. We're going to deal with this area right here. This should have the one that I attached earlier. They want the benefit of dumping traffic this way. They want the benefit of dumping traffic this way. But they don't want to create that. That's the problem we have. That's the crux of all of this. They want the benefit of all of this deal, but they don't want that little piece right here. You've not heard them talk about that at all. The reason is both parties actually had submitted plans that were actually pretty consistent. Both of them have withdrawn those, so you all haven't seen them presented. That right there is the crux of this whole thing. They don't want to get what the access easement said from the 80s they get. Thank you. Thank you. Okay. Staff, rebuttal. Thank you, Mr. Chairman. I just have one rebuttal point, and actually this graphic helps identify that. The issue of parking came up during the course of the discussion. Just wanted to remind the commission about the parking requirements in the B6P zone. It is a zone that does not require different parking standards for a retail store versus a restaurant versus other allowable uses, and is somewhat unusual from the rest of our zones. For community-sized shopping centers such as this, the requirement for new development plans is that parking be provided at a ratio of one space for every 250 gross square feet. The proposed restaurant is about 4,200 square feet, So the staff estimates that the required parking is 17 spaces. They are proposing 22 spaces on their site. The current site has about 21 spaces on it, and the development plan shows a little bit more than that, about 28 spaces. So I appreciate the opportunity to have that entered in the record as well. Thank you. Questions for Mr. Salah while he's here? Ms. Plumlee. Yes. Would it be beneficial to have an exit only, that area that you discussed and the previous person mentioned? There at the... One to the rear? At the rear, yes. At this location? Yes. That would not be a problem, provided that the dumpsters could be relocated on the site. Currently, the dumpsters are shown in that location, and I understand that the restaurants had several discussions with representatives in our Division of Solid Waste about a location on the site where they can serve dumpsters with the current trucks that the city uses. So with that one caveat, yes, that would be advantageous to have another connection there. Exit only. An exit only? Yes, it doesn't appear that that would be needed for an entrance at that location. Mr. Salley, is this an approvable plan? Yes, sir. The parking is met. Parking requirements are met. And the plan already has been approved one time in a different version. As a follow-up to Ms. Plumlee's question, the area behind the dumpster at the present time, it looks like they're shown some that's shaded in green. Who controls that? Most of this area is on the McDonald's lot. I believe there are between one and three feet, either grass or curb, that is actually on lot three, which is the shopping center lot. So the shopping center would have to give approval for an exit there? Presumably. It is on the approved development plan. This is the approved development plan. Shows an access to that property. It does not exist in the field. Okay. All right, then. Mr. Berkeley, question? That was going to be part of my question, and you just said that, that that entrance does not exist. That connection. I'm sorry? That connection. Right. All the entrance and exits this plan asked for exists today, right? Yes, sir. So we're not altering anything that's not already there and that we approved a year ago. That's right. Okay. This is a different version of the plan than you approved a year ago. But the exits and entrances and all that are the same. This one matches up well with this one. There is one here that is shifted slightly, still one here and not one there. Do commission members have any questions for any of the parties before we close this party? Yes, sir, Mr. Drake. Thank you, Mr. Chairman. Yes, I want to explore the shopping center's opposition to make sure that I understand it. It surprises me a little bit in that I would think that a commercial development like this would welcome a traffic generator, so that's what I'm probing. And I guess what I'm leading to is there's been a lot of discussion of traffic and congestion. We have seen a number of overhead photographs of the shopping center. It doesn't look particularly crowded. In fact, those photographs kind of made it look like the Georgia Dome, the first round of the SEC tournament. But I know it's not that way all the time because I've been in it. And I guess what I'm leading to, Mr. Nicholson, is in your client's view, is there a resolution to these traffic problems and these congestion problems that would accommodate the interests of both the McDonald's applicant and the current lessee, Arby's? Let me stress that we are here to oppose the use of McDonald's. We do believe that it's too intense for this parcel. That being said, if all parties got together and worked on basically a new development plan, I think for this site, I think that there could be a solution to this. But right now, we don't see a solution on this .71 acres with this plan that has been submitted. and we feel that you all have the authority to disapprove this plan based on the safety and welfare issues we have raised. Okay, thank you. Any other questions for any parties? Yes, Mr. Chairman. Can I go ahead? Yes, sir. I'm sorry. Yes, sir. I want to make sure. I thought you were. I just want to make sure I'm recognized. You're being too proper. to properly on words there to the gentleman who represented the uh arveys the indigations yes mr billings question i had for you when you came up you indicated pretty emphatically that if it was an exit set to the on the mcdonald's property that would be the crux of the problem is that this right here yes yeah what i'm saying is legally there's a plan that has been approved But that plan requires everybody, all three of us, to play nice together. And what this plan does is say, you have to play nice together, but eh, we're not going to really relieve our own traffic flow by creating an additional exit from our property. What I'm saying is practically, legally, from a matter of common sense, they shouldn't be able to, one, create a new curb cut here, which will be new, this does not exist, without creating this curb cut here. that if they want the benefit of this, they should be able to create this. I think the practical result is having an inflow here and an outflow here for McDonald's doesn't work for anybody anyway. So the current layout just isn't practical under any scenario for anybody. No one's suggesting that. But to do this new curb cut, that is an untenable position for us because we then bear the brunt of this traffic jam. And that if, in fact, they want to do this curb cut, they have a right to do it there's a development plan that says sure just put that cut there now they don't like that idea for reasons that are probably beyond my understanding because something about i mean they've said it would require dumpster approval they could still put the dumpster somewhere else in the property the other plan had it down here somewhere what we're saying is if you want to do the extra curb cut do it like you're supposed to do it what the plan said back in the 80s but you don't get the benefit of coming across our lot without creating the We owe the other valve here for everybody's benefit. That's my legal point. Okay. Does that help answer your question? Thank you. It does indeed. Don't go away. Didn't we just establish, and maybe I missed this, did we not just establish that they don't own that ingress and egress area you're talking about where they're talking about putting the dumpster? I think that's the staff that they don't think they own that. I will tell you that if this development plan is in place, they may not own this parcel, but they are subject to that development plan. But they have to get signatures to be able to do that. Is that not correct? Under what the commission approved in December of 2012, they have to get signatures for the plan anyway because this curb cut doesn't exist today. We still think that even if this plan is approved, you still have to require a reciprocal access agreement from the owners to be put into place because it creates that new curb cut that doesn't exist as built in the field. Although there may be something on paper, if they want the benefit of on paper, then they have to do this too. And so it requires everybody to play nice. And so my question to you is, as one of the three parties, why aren't you playing in the same sandbox? I will tell you that we have been, that we actually have agreed to both of the plans that they both withdrew, and that we're in the middle between an owner who owns all of this and an owner who owns all of this and the dispute between them. because the plans that both of them proposed before they withdrew them, we said works perfectly. And they both took them off the table. I don't know why. I don't know how. I know we're caught in the middle, and I'm trying to find a solution that lets us save our business and at the same time let's a McDonald's here. We want a McDonald's. You may remember Mr. Tamaji testifying last time. His sales go up when he's next to McDonald's. You haven't heard me. I'm sort of getting out of control. I can tell by Mr. Owens. Thank you for noticing. Thank you. Thank you. We've got two other attorneys that want to talk. I'm going to give them both one minute, and we're going to close. As to Mr. Billings' point, we would still be required to obtain the permission of the shopping center owner if we were going to do what he was talking about because it would require moving the dumpsters and doing off-site work. So we keep getting back to the dilemma that the shopping center has been unwilling to allow that additional work. And the plan that we showed, the two access points in the rear, was very close to what the shopping center did, But it won't work unless the shopping center cooperates with us. They withdrew their plan today. So that's our dilemma. And we are very concerned that we filed this plan. It was heard in February. It was postponed. We're very concerned if we're postponed again or if it's approved, and then we are required to obtain signatures, and maybe they don't get the signatures. and then we're stuck, and the lot still sits vacant, unused, unbuilt. And so it all gets back to we can't wait any longer. We request you to approve it without that. Thank you, Ms. Westover. One minute in closing. Very quickly, I'll point out that to your point, if planning would basically make an enforcement action, we would have to build that curb cut. We would be required. There is a development plan that is approved that is not in conjunction with what's on the property. So if we've tendered to the planning commission, we are willing to do that, and planning can force us to do that. With regards to playing nice, Ms. Westover has said several times that we have not been responsive throughout the years. This was before we got involved. It was before Ms. Westover got involved. The previous attorney representing the property owner where McDonald's was going essentially was just lobbying threats and grenades about once every other month, saying we're going to tear down your design, we're going to cut up your utilities. This was never actually, it was not plain nice from the original. We did not respond to what we viewed as not dignified requests. Thank you, sir. A couple more questions. Mr. Wilson? No. You were down. Okay. Nick? Yes, sir. I think you just said that you all would look at abiding by the development plan, but they've said that it would also require some temporary easement off-site. How about that? If this plan doesn't call for cutting that curb, we will cut that curb. We are required to, and so we're willing to do that. We've told everybody we will. is that all that's required, Chris? This is a situation where Mr. Penn would say it's a 10-pound bag of flour in a 5-pound bag. How about that? How about that? All right. There is a world of difference between somebody standing at the Planning Commission saying, well, yes, that's all that needs to be done, and then actually it bearing fruition. And when would it be done? How would it be done? We would still be held hostage to another entity. And that's why we request you to approve this plan that we can do entirely on our lot. After this plan is approved and if they want to talk about things, that's fine. But we need some certainty going forward. Our client has a contract with McDonald's, and they are ready, willing, able to build, and all of this is causing a lot of unnecessary delay. Okay. Thank you. Mr. Salee, anything to add before we move on? No? Okay. I'm going to close this part of the hearing. I think we've heard plenty. Mr. Penn, you had a question first. I have a question for Tracy. There was three of us that weren't here to hear the beginning of this because it's a continuation plan. In order to keep this clean in case it winds up in court, what should the three of us do? And I'm just asking about me. The other two can ask about themselves. But I think it's a question that he's being asked. The other two have already asked. Unless you've reviewed the tape and you know what happened at the first part of the hearing, you should abstain from voting today. Okay. Thank you. Comments? questions from the Planning Commission and or vote and or motion. Mr. Berkley, Mr. Drake. Before motion, I have a request, Mr. Chairman. I would like someone to review our options. Okay. Mr. Salley, I can take a stab at it. We currently have a plan which is 2012-105 that is on the table that has been continued once so we can act on that. Anything else? Anything else to add, Mr. Salley? The only thing I would add, Mr. Chairman, you've got on the agenda 10 listed conditions. Yes, sir. Applicant has asked you to approve it with the first nine, and then the opponents have provided the findings for disapproval as well. Okay. Anything else, Mr. Drake? Okay. Thank you. Mr. Berkeley? I think we're kind of in a funny position as a commission trying to interpret what was intended with a reciprocal access and parking agreement. and I don't know if it's our place or not, to be honest, but nevertheless, we have to deal with it. It's kind of unfortunate that I think this has gone on for as long as it has. To me, we have an approvable plan. They're basically proposing the entrances and exits as they exist today. there's nothing that says that we approve this and then they come you know they get together and come up with a different plan that might work better so If anybody else doesn't have any other comments, I'll be glad. Other comments? Make a motion. Mr. Wilson? First of all, I agree with Mr. Barkley. I think that, I guess, looking at the minutes, I was the one who was pushing as hard as I could to maybe delay this in hopes that everybody would play in the sandbox. And since you put us now in the position of having to make a decision, I think I'm ready to make a decision. I think that the key thing is I think the developers have done what they're supposed to do, and I think for the most part, Arby's has not really complained against McDonald's there as a competitive factor. The only thing we've been talking about is this traffic issue. And to be truthful with you, I still am still sitting on the edge on that traffic flow issue. Since I traveled that area and I know that area pretty well, I am still going to contend, even with great due respect to all the people who are in traffic, it's going to be a mess there in some form or fashion. But on the other hand, I think, too, that I take the position that the developers have done what they could do to get everybody together, to play together, and it simply has not worked. Anyone else? I think I would concur with what has been said by both of my fellow commission members. and it looks like we're at this point of playing being the playground monitor at this point in time so with that said i'll entertain a motion mr berkeley mr chair i recommend recommend approval of dp 2012-105 eliminating condition number 10 Motion has been made and seconded for approval of DP 2012-105 Park Hill Shopping Center Lot 1 with the nine conditions deleting number 10. If there's no question on the motion, I'll call for a vote. Please vote when it comes up on the screen. Motion passes. Thank you, folks. We're going to take just a five-minute recess and be back to continue DP-2014-12 at the bottom of page 3. Thank you. Thank you. guitar solo guitar solo guitar solo guitar solo guitar solo guitar solo Thank you. Thank you. Thank you. Thank you. We'll take your seats. We'll resume. We will proceed to page three. DP 2014-12 James Atkins property. It's 3939 Tates Creek Road. You do have a revision before you. It's on a yellow sheet of paper. Mr. Martin. Thank you, Mr. Chairman, members of the commission. The final development plan that is next on your agenda is the James Atkins property, DP 2014-12. I know this group is well familiar with this now. You have Wilson Downing in this location where it intersects with Tate's Creek Road. This is a proposal. The zone change was recently granted on this property. You have a proposed bank in this location, a coffee shop in this location, The bank is a little over 3,000 square feet. There are 1,700 square feet proposed in the coffee shop. It has an access point here. Wilson Downing lines up with the shopping center access point. I know you all are very aware here's West Hittman Creek. This area is in the floodplain. It's going to be elevated out of the floodplain. They have done the preliminary work with FEMA, as you recall, for that work. This is the flood wall, this heavy black line that is to be built as part of that work. This blue line, and you can see it blends with the green in locations, this is the post-development floodplain on the property. The revised plan that you see before you today was submitted the morning of the day before your subdivision committee, and staff did not have the opportunity to give it a thorough review. Since then, we reviewed it. That's why you have revised conditions before you today. We can also report to you that the applicant has addressed concerns, particularly you may recall the discussion, and you can see the arrows. You have two-way circulation in this property. You also have one-way, and as all this revolved in through here, there was a lot of concern about how this would function, both from your staff, traffic engineering, and fire as well. This revision places an island here, some stop provisions in terms of a stop sign and a bar, an island to try to help control and direct the traffic. There has been a slight adjustment in the site as well to address fires concerns. Here you have your dumpster location with the clearance needed there. That was an original concern as well. The revisions that you saw before you have some standard sign-offs. We also have denote location for pedestrian access to Tates Creek Road. during the presentation to the subdivision committee, they agreed to that. You may recall, those of you who serve on that committee. So we've asked that they denote that clearly on the plan through the approval of the ped and bike planter, the appropriate location to get pedestrian access out to Tates Creek. Because again, what we've highlighted for you on Wilson, Downing, and Tates Creek is also sidewalks that this applicant has agreed to provide along those frontages, as well as sidewalk in this location into the site. This parallels the emergency access point that's necessary due to the floodplain situation. Because although you have a post-floodplain elevation, there are going to be, in effect, surrounded by floodplain still. So this is necessary in that regard. We are maintaining a condition at the resolve of the extent of improvements to Wilson Downing Road. in talking with traffic engineering, there are constraints. And I know if you're aware of the area and the site, you know that there are constraints with the turn lanes, the culvert, the bridge that crosses the creek. They're limited to what they can do, but we felt there might be some other things that could be done during the certification of this plan as some discussions continue with our traffic engineering staff. We had a concern, staff had a concern about this area on the plan. That's condition 14 to note that it is open space and not a patio. They have 67 parking spaces on this site. And as you know, seating drives the parking requirement in a restaurant. We wanted to make absolutely sure this isn't a patio. Patios occasionally pop up. And so that's fine, but we wanted it clearly noted if that was what it was so we could make sure that the parking generator was being done correctly and there was adequate parking. Last and not least, I would ask you to take a look at condition number 10, which says resolve wording of note 17 to address the timing of the development relative to the floodplain. That's Article 19. We want that fleshed out. There is a note. Water quality agreed with staff at technical committee. We want it very clear how this will all function in terms of timing relative to Article 19. And again, it has to do with the large amount of fill, eight feet of fill, that's going to be necessary on this site. The fact that it will be an island, and in order to access it, they're going to have to address some of these things. Now, we reported to you before that they will address federal, state requirements before they're ever issued our local permit. But again, we just want that note fleshed out. And I would add that it should be note 15. That is not a typo. That's an editing error that I have to accept credit for. I didn't edit that correctly. The revised plan is note 15 on the revised plan and not 17. Staff is recommending approval of the plan. And if you have any questions for me, I'll be happy to address them. Any questions for Mr. Martin? Thank you. Good afternoon. Again, I'm Matt Carter with Vision Engineering. We've reviewed the staff's revised recommendations, and we agree with those. At this time, I welcome any questions. Any questions for Mr. Carter? Thank you, Mr. Carter. Anyone else in the audience wish to speak to us? regarding this plan? If not, and if there's no questions from the Planning Commission, I'll close this part of the hearing and open it up for a motion. Mr. Chairman. Yes, sir. I'll move approval of the revised staff recommendation of DP 2014-12 and changing number 17 to number 15. Is that right? Under number 10. Okay. The motion's been made for approval of the revised conditions with the one noted change. It has been seconded. Please vote when it comes up on the screen. The motion passes. Thank you. If it's all right with the Planning Commission, I'm going to take one item out of order. We do have an addendum. that's page 7 for plan 2013-122F south end park unit 1 this is for the purpose of a waiver that is before you on a white sheet as well Mr. Martin is getting ready. I'll take one more thing out of order, and that would be the performance. Mr. Chairman. Yes, sir. I want to move approval of the bonds and release and call of bonds. How many years have you been doing this? I always like this one, but I forgot. Motion's been made for approval. Do we have a second? Second by Ms. Mundy. That's for the release and call of bonds memorandum dated March 13, 2014. Please vote. Motion passes. Thank you. Mr. Martin. Mr. Chairman. The staff item that we are bringing to you today is a waiver request for Plan 2013-122F, South End Park, Unit 1, Section 1. This is being brought back to you as an infill and redevelopment plan. This is, of course, the area along what is known as the Newtown Pike Extension. This is part of the affordable housing component. You saw this and approved it very recently. You granted a waiver on the original plan as well. They are now proceeding towards recording a section of this plan. In reviewing the plat that will be recorded, there is a certification, of course, that's required that the engineer must sign. And that certification covers the public infrastructure. And in essence, they have to accept responsibility for that. Well, in this case, as you well know, this is a project, a public project. And the state of Kentucky is overseeing, the Department of Transportation, the actual construction of the infrastructure. So the plat preparer, that engineer, was not in a position to actually certify those improvements. It would need to be certified by the actual design engineer in that case who oversaw the construction and inspected it and that sort of thing. The infrastructure is in. We staff met with the city engineer who has overseen the project along with the state individuals and discussed options on how to address this. One option was a waiver. There were others, and they chose the waiver option. So they're before you today requesting a approval of a waiver to change the wording in the engineer and surveyor certification that's required under your subdivision regulations. It merely highlights the fact that, again, as I stated, the engineer who prepared the plat did not inspect the public improvements. That was done by a different engineer under the normal conduct of a project such as this. If you have any questions for me, I'll be happy to try to answer. Any questions, Mr. Martin? Yes, sir. Oh, I thought you were reaching. Anyone else want to speak to this waiver? If not, we can move on and entertain a motion for approval of the waiver. Move approval of the waiver for Plan 2013-122F, South End Park Unit 1, Section 1, for the reasons outlined by staff. Motion's been made and seconded for approval of the waiver with the findings and the reasons. Please vote when it comes up on the screen. Motion passes. thank you i think our remaining item uh is the boar 2013-2 alex donahue located 981 983 fincastle road and miss rackers is here to walk us through that Listen to her. This is on page six of your agenda. It's item A under commission items, and it's BOAR 2013-2, and it's an appeal made by Mr. Alex Donahue for a property at 981 Thincastle Road, which is in the Ashland Park Historic District that was created by Urban County Council approval in January of 2013. The property is zoned R2, and it's traditionally been occupied as a duplex, and he intends to convert it to a single-family residence, and that is not an issue because this area is a good mix of residential densities. This is the property right here, and all the immediately surrounding properties are R2. There are mostly single-family residential properties in this neighborhood, but we've got apartments here. There is a duplex over here. There's a duplex here. there are apartments right here a duplex and apartments here and i think i said the duplex there but it is a good mix of residential densities in this neighborhood so whether or not the property is is occupied as a single family residence or a duplex makes no difference that's not an issue it's on the north northeast side of the street and it um if you could put the aerial up bill please this is the property property right here and then this is one of the medians that's typical of the ashland park neighborhood it's a landscaped median and it provides a common area for properties and you could say that this is this would be a corner property if it was in a typical intersection but it's not so it is one of the three properties that immediately faces the median there. The residence is a two-story brick structure, and it contains a little over 2,800 square feet. It was divided into two 1,400-square-foot, approximately 1,400-square-foot residential units, and it has a full basement. And if you could put the PVA picture up, please. It's kind of hard to see. This is the entire residence, and you can see that work is being done because you've got the door propped open here. But this is the opening, one of the openings that is the subject of this appeal. It's already boarded up, and the bottom has been bricked in, and then there are windows over here that have already been bricked in. This was taken by PBA in July, and the work was done before June because that was when the notice of violation was issued by Historic Preservation on June 26th. But this pediment right here over the window, which used to be the door, is being proposed to be moved over here to cover that door. This is a very complex case because of timing and because some of the work has been done and some of it is still only proposed and because some of the aspects of the entire proposal were found to be appropriate by the staff and the BOAR and so it was within the design guidelines and they did approve parts of the proposal and then some were found to be not within the design guidelines and were therefore disapproved by the board. According to Mr. Donahue, they made a deal to purchase the property in October of 2012, October 30th. That was after you all heard the H-1 request, and it was before it was approved by the Urban County Council. It was approved on January 22nd of 2013. PVA records indicate that the property didn't actually change hands until November 5th of last year, but that's just an aside. Back to 2012, Mr. Donahue worked with an architect on plans to convert the property into a single-family residence. And he met with a member of the planning staff to discuss this, and that was between October 25th and January 22nd. And he said that he was planning to change it into a single-family residence so his mother could live there temporarily. and he was advised to get all applicable permits before the H-1 went into effect so that he could go ahead and do what he intended to do to the property. However, that was just for the exterior of the property. H-1 doesn't have anything to do with the interior, and it doesn't regulate whether it's a single family or a duplex or anything like that. It's only for exterior changes. On December 11th of 2012, he ordered replacement windows. and on January 22nd, 2013, which was the same day that the BOAR was approved, or not the BOAR, I'm sorry, the H1 was approved by the council, the owner of the property got a permit to replace windows, and if you could put the application for the permit of their bill, got a permit to do roof repair, do repair and or replacement to concrete and rotted wood, and to do window replacement. This is the application that was filled out for the permit by Mr. Donahue, and it states roof repair, it's kind of hard to read, roof repair, repair and reconstruct if necessary concrete and wood that's rotted, and then window replacement. And it only says window replacement, and replacement means to take something out, take a window out and replace it with another window. it doesn't mean to brick it in. Nothing was said about bricking in the windows, closing off the openings or anything like that. And the permit, if you could put that up, mirrors that language. It definitely says roof repair, window replacement. That is really hard to read. It just says roof repair, repair and redo the concrete and then window replacement. So that was what was issued by building inspection. And those three items that were on the permit are grandfathered for the property. That was done before the H1 was implemented. It was implemented that night. This was done before 5 o'clock that afternoon. So it is a screwy timing, but that's the way that worked. And because they're grandfathered, they are not a part of this appeal. if in building inspection mention would have been made to brick in the windows that would have been noted on the permit it might not have been allowed because there could have been fire code issues there could have been building code issues because of egress don't know that that would have been the case or not but it was not noted on there it was not nothing was said to building inspection the issues that are part of this appeal are bricking in the windows changing the front door opening, which is the one that I showed you on the house, to a window and bricking in the remainder of that. And never mind, I was going to ask you to put it back up again, but you're not going to be able to see it anyway. So, and those two things were done without a permit. And then the other things are to move the pediment over to the side of the house, which is the one thing I showed you, to install shutters in closed position over the bricked-in openings on the windows and to extend the front porch the entire width of the house. And those things are still only proposed. Those have not been done yet. As part of his appeal, Mr. Donahue submitted the work order for the window company, and he said that that was evidence that he intended to brick in the windows. Well, it's not evidence of anything other than he wanted to replace some of the windows. Whether they needed to be replaced or not, he wanted to replace some of the windows. there's no indication on that or on the permit that there was any intent to brick in the windows to close off the openings to close in the door and make it a window. That may have been in his mind, but it wasn't requested, and so it wasn't on the permit, and therefore it could not be grandfathered. Because it wasn't noted on the permit and the work was done after the H-1 was implemented on the property and done without a permit, it's in violation of the design guidelines, and it's also in violation of the BOAR process. and it's in violation of both building inspections and historic preservation's requirement to get a permit before any construction is done. There's a timeline in your staff report on pages 2 and 3, and there is information noted in red, and that is information provided by historic preservation. There is information noted in blue, and that's information provided by the applicant. And there is one item in purple, and that was the same information that was provided by both of them. And then there is information in black, and that's just provided as a context. It's just factual information that was provided as context or as a reference. On the timeline, on February 2nd, it shows that a permit was issued for tree removal. It was issued by Historic Preservation for tree removal. So that indicates that they were aware of the process, whether it was the applicant or the owner, they were aware of the process that it had to go through the BOAR. It also shows on the timeline that there was a lot of back and forth, going back and forth between the applicant and the Historic Preservation staff regarding the plans and information that was needed and clarification that was needed about the proposal. Finally, on October 30th, plans were submitted to Historic Preservation. The final plans were submitted. And his case was put on the November 13th agenda. And the deadline for BOAR action was November 16th, and so it was on the November 13th agenda. And on that afternoon, Mr. Donahue notified the staff that he may not be able to make it to that meeting that evening because he had issues out of town that he had to take care of. And they told him that the meeting would, I mean, his case would be probably towards the end of the hearing and it would be a long agenda and to try to be there. And they would let the BOAR know that that was the case, but it would be up to them as to whether or not this would be postponed. Well, they were facing the November 16th deadline, and so they had to hear it that night and they decided to hear it even though he wasn't there the staff presented their case report in the slides of the property and the slides showed the work that had already been done they provided the architectural drawings and that had been submitted on october 30th and they cited the applicable design guidelines and the design guidelines are pretty clear in stating what is and what isn't allowed by the as far as any kind change to a property. The work done and much of what is proposed is not within the design guidelines, but there are some aspects of what is proposed that are within the design guidelines. The board approved parts that were within the design guidelines and disapproved of the rest, and that was based on the staff's recommendation. The staff had cited 51 design guidelines in their staff report to the BOAR. There are 51 of them that applied to this. Ten of them particularly applied, and those were cited in the oral report to the BOAR. And that was based on what was approvable and what was not approvable. And then there are only seven listed in your staff report here because there are only seven that applied to the parts that were disapproved. And I hope that is not too confusing, but there are only seven that really applied to what is being appealed today. In reviewing this, I haven't found any flaws in either the BOARs or the Historic Preservation's review and assessment of the case. It's based on the record of the BOAR hearing, and their findings are consistent with their charge in interpreting and applying the design guidelines. All of the cited design guidelines apply. They're appropriate, and they support the Board's action, both in the aspects for approval and the aspects for disapproval. And then the other reason, the second reason, I will read to you. One of the appellants stated justifications for this appeal is the timing of the H-1 overlay designation relative to the changes to the property. However, the permit that was issued the same day as the actual implementation of the H-1 overlay, January 22, 2013, did not reference bricking in any openings, only replacement of windows. If closing bricking in openings had been requested from building inspection at the time the building permit was issued, it would have been noted on the permit. Therefore, because there is no indication that that was part of the request, it can only be construed as not allowed, not grandfathered, although the replacement of windows was allowed, and that the work done by the appellant to brick in the windows and the other opening is in violation of the design guidelines as well as the process. And if you have any questions about this confusing staff report, I'd be happy to try to answer them. Ms. Kerr and Ms. Armstrong are here from Historic Preservation. Mr. Donahue is here, and I believe Mr. L. Chevy is here from Building Inspection. Thank you, Ms. Rackers. Any questions for Ms. Planton? I have a question regarding removing that second entrance on the front. I think it would be pretty understandable that he wouldn't want two front doors. Is there a circumstance under which you would allow the property owner to do some sort of modification to that second entrance so it's more in keeping with the single-family home? And judging by this, it doesn't say that automatically the door openings could not be filled in partially. So I'm just wondering, is there some way that he would be able to go back and do that that would be acceptable? Well, this is a situation where the door had been filled in without a permit. the door itself to be a window-length opening, and that's what you'll see in the images boarded up. So I believe your question is, is there an opportunity for that window to be allowed, to be converted from a door to a window? Yes. There sometimes are situations that that can be done. However, on a front elevation of a building, particularly where the history of the building is, it was designed as a duplex. that is part of its architectural identity, that it is architecturally made to show that it's a duplex. It has a front door for the first floor and a front door for the second floor. And the front door for the second floor is the one that he's turned into the window opening. So within the guidelines in terms of keeping the architectural integrity of the building intact, The board's determination was that it would be more appropriate to have that continue to read as what it has always been since inception, and that is as a door. Now, it doesn't mean that from the interior they couldn't have just kept it a door opening and made it such that it had already had a multi-pane glass in it, so it could have been letting in light and doing all that. In other situations, they're all having to look at, of course, as you're well aware, on a case-by-case basis, on the back where people are adding additions, wanting egress to patios, all that kind of thing, it's rather commonly done where you're not negatively impacting the architectural integrity of the building. But in this instance where it's part of the signature of the architecture, it is not within the guidelines. Does that answer your question? It's not the answer I wanted, but yes, thank you. Life is full of things such as that. Okay. So presentation from BOAR. Good afternoon. Good afternoon. My name is Amelia Armstrong, for those of you who don't know, and I'm the preservation inspector. And I would like to thank Barb Rackers for her report and her thorough report on this. And Betty, of course, is passing around packets at this time, and we also will be entering the record for time. And I'm going to just walk you through some of the images. As Ms. Rekkers mentioned before, this is a very complex case in that there is things that have been done prior to the notifications that are coming here and then some that have just been requested to do so. This is the image of the structure taken in the summer of 2012 prior to sort of the H1 designation. And you can see the door leading up to the second story. And to sort of walk you around the property, these are also images taken of that time period. And you can see also these are the two openings that have been bricked in. And this is on the east elevation. And on the west elevation, this is the opening that has been bricked in. And this is the front elevation, and this sort of shows you the before picture. And then the bricked-in condition presently. Also, you'll see that pediment or the entrance overhang. that is proposed to be moved to the side, the east entrance, that we'll see later on. And also, part of the application deals with expanding the concrete decking to go all the way across the front of the elevation of the house. And this is, of course, you'll see in the lower picture the image of the front of the building, and then the upper picture sort of shows the east side sort of giving an idea that this area will be filled in with steps and porch. This is the east elevation with the bricked-in windows and if you notice, remember on the front elevation, this was too thin and at this time, which means sort of blending bricks but at this time, the brick is actually just inserted into the opening. And here is the proposal. It calls for the overhang that's on the front elevation to be reinstalled in this location. And the owner indicated that this awning overhang was going to go into the rear elevation. This is the west elevation. With the Brickton opening, the Brickton opening has also been treated the same way where the brick has gone just within the opening. And, of course, the idea in all these Brickton openings is that the shutters will be installed in a closed and mounted in the area in a closed position. And here's just sort of more of a detail of that west elevation, the lower window. This is the back. The work that was proposed for this back has actually been approved, and that was to install the new openings and put a two-story deck with a screen porch below. And this is sort of indicating sort of the west elevation and this rear elevation. these are the front plans and that were submitted by the applicant indicating the removal of the overhang and the toothing end of that area below and you have these plans in your packet in front of you not noted on this is the expansion of the concrete across the front however that was indicated in by the applicant this is the east elevation and this indicates the the proposal to have those shutters installed on in the closed on those two openings and it does also indicate the overhang installation over that opening that's existing there and this is the west elevation again this indicates the shutters in those closed position mounted within that opening and this is the image taken this week the board made motion to disapprove the changes for these following items the number four items the bricking in of all the openings that have already been done the installation the shutters in a closed position that have not occurred yet the expansion of the front porch and the relocation of the entrance overhangs staff ask that you uphold the or the boyers motion to disapprove these these um the application as the board had made motion to disprove these changes as well and betty and i are here and also mr all chevy from building inspections here in case you have any questions about the permits just one last thing as part of the staff's presentation we'd like to enter for the record the materials that are consist of article 13 of the zoning ordinance copy of the design review guidelines and the record such as has been circulated to everyone today thank you thank you um any questions yes just the the plan that was submitted elevations when was that done that was done in in october those plans were these were the plans that were seen by the byr members and they were delivered to office in late october so not at the time of any building permits or anything like that that's correct well i can't answer for building inspection about that but those are the plans that were you know presented to the boar members well you can answer that when you get it miss miss armstrong do you have anybody else to speak anybody else to speak at this time oh at this time no okay thank you mr donahue i presume Basically, what this all kind of comes down to, the real issue here on the redesign is... I'm sorry, Mr. Charney, I did recognize you, but name an address for the record. My address is 1340 Mumford Lane, Lexington, Kentucky, 4514. Okay, thank you. I'm actually the son of the current owner. My mother lives out of town right now. put the property under contract to convert it to a single-family residence. And on the timeline, there are a lot of things. In November, when we were working with the architect, we had the plans done for what we were going to do. And I guess what it really comes down to is we weren't aware when we were purchasing the house, the owner of the property didn't make us aware of any H1 overlay, anything like that, anything to do with anything, you know, going historic when they sold, you know, when we put under a contract. And the interim, when we were going and doing everything, I was actually notified by somebody I was doing a little more work with. He was familiar with what I was doing to the property for my mother and said, you know, it's about ready to go historic. and you know I didn't know what that really meant he explained all to me and said you need to go down and even though you got these plans going on you need to go down you need to get something you know permit to get what you want done prior to the H1 so on January 22nd I went down with the actual plans for the house that you all have that you got in your packets which she showed on the overhead with the front elevation side elevation back elevation and on those plans it says brick in windows it says replace door with window you know all those things are set on the plans that they got at permitting I guess when I wrote down replace windows I could I guess I could have went more in depth with that I don't I'd never filled out for a permit before but you know after saying that and they said well okay um were your plans to do that beforehand or not i then gave them a receipt showing where every window on that house was ordered back in, I forget, way prior, I want to say December 11th, back in December 11th, 2011, I had ordered every window for that house other than the windows that on the plans were shown to be bricked in. Fast forward, what I was trying to accomplish, the windows on the sides were bricked in after we got the permit. They were done fairly quickly. The front window on the house, which I guess flagged it all in their eyes, was done later due to the fact that the bricks that came off of the house in the rear were identical bricks. And to do what I was trying to accomplish, I wanted to use identical bricks to keep continuity with the property. So until those bricks were removed in the back, I didn't want to replace the door in the front. But if you're looking at the house, the left-hand side window and the two right-hand side windows were already bricked in. When I had done that, we were planning on putting shutters on the whole house, which we were then told that we weren't allowed to put shutters on a house because of its historic nature. So when we bricked in those windows originally, we didn't re-tooth the windows in. We just bricked in the holes because we were under the assumption that we'd be able to put shutters over top of them. You'd never see under it. They'd be in a closed position with a sill there. I met with historic preservation at the house. They reiterated to me numerous times about how their intent for the property and the reasoning behind everything they're saying is to maintain the historical fabric of the neighborhood. Well, taking all those things that they've said and what they're truly trying to accomplish, you know, the front of the house and the way it looks, the main thing. I wrote back in an email to Barb Rackers on January 29th that has the timeline that you all received, even going and saying, you know, I understand where you want to keep it look like a duplex. I'm willing to take out the bricks in the front, re-put the door back in the front, then on the inside, have it to where you don't see the door on the inside, but basically the top of the door would be a window. so it wouldn't be an operational door, but from the outside it would be operational. So that would take care of that. I wasn't wanting to remove the overhang at that point because it was important to them. The only three concerns now of all the stuff that they said, the 51 things, comes down to three windows, two on the right side and one on the left side. She showed you the pictures where they were re-toothed in. And in that email, I even state if it's, you know, for continuity, I would go back in, take out the sills and re-tooth the brick in to where you never noticed that there was a window there ever. I would make it exactly the same as the rest of the side of the house. The reason why those windows are bricked in is it was a duplex that had a tiny eating, like a kitchen where you have the stove and the refrigerator. and then this really small cubby that was walled off that was i guess the dining room and when we redid the the plans you know there was no way to put kitchen cabinetry in there for a single family home of that size without you know bricking up that window that's what came to this and then on the second level it wouldn't allow us to actually have a bedroom with any you know wall space. So that's why we did that as well. But after understanding and going through everything with them, I was told, well, ask for it the way you want it. Ask for it the way you want it and see what happens. And, you know, go on with that. So I did. I wasn't at the meeting. We were denied. I took everything they said, all the fabric that needs to be, you know, maintained. I'm maintaining the front door i'm maintaining the overhang i'm not expanding the the front porch every window in that house that was meant to be replaced has been replaced the the construction drawings you have show the the proposed shutters over top and it even says fill in windows so i guess this simply comes down to the fact of when i put my building permit in i didn't use the words replace and fill in windows that's i guess i should have said and fill in windows but it was on the drawings and you know i'm trying to be a good neighbor and get things done uh it's been on hold now for a while and the permit to do what we are going to do is is lapse so i'm kind of just stuck in a hold pattern uh just trying to bring the property you know actually back to its original glory it's been And, you know, it hasn't been taken care of. The property's halfway falling apart. The gutters are falling off the house. It's in terrible shape, and I'm in here trying to clean it up. And, you know, I just got a roadblock, and I'm just trying to take care of it. I'm still not clear. Questions? Yes, sir. I'm still not clear. Maybe the building inspector's best to answer this. but your plan was submitted with your building permit application? Is that true? No, sir, I'm afraid that's not. According to the application, no plans were submitted. Hold on. What is your name, sir? Alex Allchevy Building Inspection. Okay, thank you, Alex. I have the applications for the permits right here, and there's no indication the plans were submitted with either application from January 22nd or August 1st. I've been down to building inspection before and gotten plans, and I usually have to submit some form of plan. Yeah, based on the scope of work here, the non-structural element and the window replacement, we wouldn't require plans at the discretion of the plan reviewer. You wouldn't have required an elevation? No. Not when it was prehistoric. excuse me i'm gonna have to leave so i'm gonna turn this over to mr cravens vice chairman continue on alex well i was essentially done from the roof repair the extent knowing that you may be replacing sheeting or a couple rafters and board replacement and certainly concrete on grade wouldn't require structural plans for us and window replacement wouldn't either because we're stuck with the size of the windows we have for the openings on a brick veneer house so we simply unless they're going to enlarge the openings or some other structural element we wouldn't have required any any plans okay david uh thank you mr chairman um we've obviously got a different recollections of the record. My question is, if the plans had been submitted, as Mr. Donahue stated they were, with the designations on them that he said were on them, would all of this be an issue now, or would he have gotten what he wanted? Without having a full set of plans, the scope would be in question. And what I mean by that is if he was affecting an egress element like a required egress door, that would become a permit issue for me. A non-required element, say a window in a kitchen over a countertop, would not require any special code provisions. But a bedroom window has egress requirements. Windows near doors have tempered glass requirements. requirements. So in the scope of the review, those would have come up and we would have noted that this had to be a tempered window or this window would have to meet egress or this door has to meet required egress minimum width of 30 by 6'8 and have a landing on both sides of the door, those kinds of things. None of that was discussed according to the records that I have. What you just told me, does that mean he would not be permitted to do what he proposed to do with that front door, making it appear operative, but But if that was the egress door, because there was two doors, if he had said that the other one meets egress, it's 3-0, we would not need the second door, and we would have allowed him to close it off as long as it didn't cut off egress from a bedroom or something like that. The bedrooms and the main egress for the house are the only two elements that are required by us. Okay. Carla. I don't know who would have checked this, but on the form under building plans, somebody has checked other. I don't know if that would have been you or the applicant or what that might have been referring to. I can't speak to who checked that and the planner viewer. I wasn't the planner viewer, but there is nothing in the file besides other with these affidavits and the affidavits of workers' comp. all right very well um he did send this letter in and when he said he would like to keep the left side upstairs entrance door in place i took that to mean an upstairs door i wasn't i didn't realize he meant the downstairs door so that was a misunderstanding on my part i just wanted to make that clear because I didn't realize that was what he was talking about. Okay. All right. Let's hear from the, is there anyone in the audience that. My name is John Rohr. I'm the chair of the Historic Preservation Commission. I'm going to leave the determination as to the appropriateness of what the applicant wants to do insofar as the guidelines are concerned to the experts, the Historic Preservation Office, the BOAR, the planning staff, and you all. I'm a lawyer. I'm not a planner, an architect, a contractor, anything. So I will say, though, from the report of the planning staff, it does appear that the BOAR's decision was correct insofar as the application of those guidelines. But what I'd like to talk to you all today about is just the process here. Here you've got an applicant that went to the building permit office on the day that the H-1 hearing for the Urban County Council took place. In fact, there were nine applicants that came in that day or within a week before that hearing. And that's fine. That's the rules. They get to come in and make their application for building permits and obtain those permits without worrying about the H-1 overlay because it hadn't happened yet. But clearly they knew by coming in on that day that the H-1 was pending and was ready to be put into place should the council have so decided, which it did. This applicant, application-wise, as well as the permit that got issued, did put in repair roof, replace rotting wood and concrete on the porch, and replace some windows. The applicant, as I said, was fully aware of what was going on with the H-1. I just have to say, given those circumstances, one would think that someone coming in on the very day that the H-1 was going to be put into effect that night would be careful as to how they completed their application and would be careful as to how the permit was written in terms of what they were going to be allowed to do. I will say that the Office of Historic Preservation frequently comes in for some criticism for being too rigid, for being unhelpful to property owners. But I have to say, in this particular instance, you've got to look at what the record shows. They approved removal of a tree in the very month after the H-1 went into effect. it appears that they attempted to talk to the applicant numerous times and there was some issues there i guess with communications but they were trying to help the applicant in terms of what he was doing what he needed to do what he wanted to do and what the h1 was all about it looks like he did not show up for a scheduled meeting i don't know what happened there he also was missing from the BOAR hearing. That's fine. You're allowed not to come to your own hearing, I guess. But it does appear from the record of the BOAR that they sort of bent over backwards to entertain his application and, in fact, ended up at the end of the day approving some things that he had applied for despite his absence and despite really anyone arguing on his behalf. The only reason I raise these things is that I think this is a case where the preservation office worked hard to work with this applicant, help them out. And I don't think this is a case where there was any impediment put in his way to try to get to do what he wanted to do, other than the fact that his permit, building permit, simply did not permit him to do some of the things he did. I guess at the end of the day, we're all required to follow certain rules and guidelines. We file our taxes on time. We hopefully fill those tax returns out accurately. Mr. Wilson, when KET applies for grants for some of its programming, you can't take money that's for programming in this area and move it over here. You use the money the way the grant application is written. Same way with builders. You build what you're permitted to build. I just have to say that if there's any tendency here to approve what the applicant already did by bricking in the windows and the doorway because it's already been done, and therefore you've got to let that slide, I go back to my thought is that that's not in keeping with the process. if we all looked for forgiveness after we did something we knew we weren't supposed to do, rather than looking for permission and approval before we did it, we'd be in a heck of a state, particularly with regard to these kinds of matters. So on behalf of the Historic Preservation Commission, I would just ask you all to uphold the finding and ruling of the BOAR in this case. They looked at this, and I think they appropriately applied the regulations and the process. I thank you. All right. Can I make one more comment? Mr. Donahue did submit this, but this is not the way to get the change that he has suggested in this letter about leaving the door. The way to go through that, I mean, it's already been turned down by the Board of Architectural Review. He has to go back through that process. to get it changed, to get it acted on as far as the changes that he suggested after he made his appeal. His appeal was based on the Board of Architectural Review's action at that hearing. That was what the appeal was based on. So anything he wants to do to change that, to go back to something else that might be more in line with what the design guidelines recommend, he has to go back through the process again to have it acted on by the BOAR. It wasn't the process to go through here by letting me know that this is what he wanted to do, or this is what he intended to do. Thank you. Okay. I didn't meet with Alex, and I don't know the gentleman that I met with, but the reason why other was checked was the things that were turned in were elevations of the property. They weren't, you know, they're not plans. They were just like side shots of you've got them in your packet. They're just side shots of exactly what was going to be done. They were turned in at that time. You know, I guess, you know, the gentleman before me said that, you know, I did it the very last day and all this about, you know, not showing up to something. And I had no clue that it was even going to go to H1. And I was luckily informed by somebody that it was, and they actually had made a call for me to run down there and get it taken care of that day. So it was just a coincidence. It was luck. I mean, I got luck to that point. And we're talking about, well, I'm not going through the proper channels of getting things done. And when I was not approved, Barb contacted me, and I actually told her that I wanted to come down there and meet with her and explain everything because it was very confusing. And she said, well, there's nothing to really meet about. Put it in an email. So I did that. all of the all these improvements and all the stuff that's going on all the things that they're saying i'm doing exactly what they want me to do to keep it looking like a duplex working around those barriers the things that they approved on my house but then said that they approved was a rear deck very rarely if any time have i ever heard of somebody being disallowed to do something in the rear of their home. There's three windows that have been bricked up. I've offered to go ahead and re-tooth them so that they look like they were never there. Remove the sills. I've had to, after the fact, go and draw sketches of what the shutters were going to look like. They may have bent over backwards in their minds, but I'm jumping hoops. I'm doing this for my mother who's out of town unfortunately I missed the meeting due to a family emergency I called them and let them know that I was going to miss the meeting you know I'm doing everything I can and I think that if they were asked if I did all the things that I've said that I wanted to do in the email to Barb I think that they would all agree that I'm doing exactly what the historical preservation wants me to do so um you know it was always my intention for those windows to be bricked up it's on the plans the the receipt from the window company shows every window on that house other than the windows that were bricked up it's not like it was changed after that fact which was done uh two months before it ever went h1 so it was always the plan um and i guess it comes down the wording on the permit so can i ask you um when were these plans filed those were the day that i got the permit on the 22nd yes and the bill inspection doesn't have them no he said i had but i didn't meet with alex if they were that size they could be in these files right here they're not here i asked staff to check to see if we had large documents in our plan come to the mic come to my i'm usually loud enough to be heard but we got we're recording you if there were eight and a half by eleven plans they would be in these files or one of these two and if there were large documents they would be in our plan review bin and i texted back to staff to check the plan review bin for january's approved plans and there are no plans in that bin okay all right the plans that i did here were 11 by 17 these are the exact copies of what i gave them these are 11 by 17s there's a total of four of them that i put in are these same plans those are copies but yeah this is the size of the paper it was so you thought you were getting a permit to do all that work before the deadline yes and and really like i said it was extremely lucky for me to coincidentally know somebody who who knew about Ashland Park's historical overlay, I would have never, we were still planning, planning, planning, you know, because we were doing interior design. You know, we had no clue that we were under any, you know, timeline or whatnot. It was just luckily brought up to me. I was at the guy's office and telling him about all the plans, and he said, you know, they're going to vote on this stuff, and I'm not sure if what you do is going to meet the requirements or not. You need to get a permit done as soon as possible. and it was the day of so all right so so this did the boar see these plans in another meeting or something after the and disapprove the windows these plans have been seen by the boar okay we did get a eight and a half or like 11 by 17 plans that in october they were submitted So he went to a hearing after this, after January 22nd at the BOAR? Correct. Well, he sent a notice of violation in, I think, June or July. Amelia, have you got details? But because early days into the spring and all, he's doing work under the grant we're thinking is going to be all work that's under the building inspection grandfathered in permit. And so once it becomes apparent that he's done additional work that is not within what building inspections interpretation of that permit is, it leaves the historic district process to notify him that he is doing work in violation because he doesn't have a permit per historic overlay, and hence start to invite him to come and make application and have that work reviewed that is not covered by that grandfathered-in building inspection permit. If the work had stuck to just building inspection-issued permit, we have 17 other properties, 16 other properties in the Ashland Park area, all of whom have been, after that January 22nd hearing date, established the district, continuing and doing starting and continuing to do work per those building inspection permits. Two or three of those have ended up coming forward and asking for permits once the H-1 is in place to do it in addition to that building inspection permit. Gone to the board if they needed to. Most of them have been staff-level reviews. My point being that once someone is doing work without a permit in a historic district, it leaves us to have to notice them a violation, and we did. So when that happened, the plans didn't come. We had a series of emails back and forth, got plans starting in September of 2013, another set in late September, and then final drawings in October. So the preservation office wasn't provided any plans until the fall of 2013. Okay, so he had another hearing and showed you what he wanted to do. Is that right? That's correct. And he had already done some of the work. And it was denied then. And he had already carried out some of the work. So now he's appealing that decision. I don't know which one he's appealing. Is he appealing the one before it became a district, or he's appealing your decision after? He's appealing the Board of Architecture Review's action on his application to get approval for work, some of which he had already done and some of which he proposes to do. Just a point of clarification, he was not required to give you all these plans because H-1 wasn't in effect when he took out the permit. Is that correct? the ones that he's saying he provided the building inspection yes in january december january 22nd um whatever the permit he was pursuing at that time was the day of the hearing of council meeting that night and so there would have been no reason to bring those plans to historic preservation however after the h1 is in place what happens if somebody goes to building inspection to get permits they can't issue that building permit as you're aware until it's come to historic so um you know had we been privy to those plans we would have said you know be aware if if you don't already hold a permit for this some of these items certainly will have to get get a permit per H1, but there was no communication to the preservation office until we were left to send the violation notice to the property owner and start the conversation that way. Mr. Donahue, did you have legal counsel in any of this process? Are you a builder or developer? Do you have any experience with these kinds of issues? No, I mean, I've worked on things before, but I've never gotten a building permit. That was my first. And I guess the thing that we keep going back and forth about what this permit, the words it did or didn't have. I think if you ask the historical society what I'm presenting, what I want to do, what I've told them that I'm willing to do, I don't think there's any issues with keeping up with what they want to do, maintaining the historical preservation of the neighborhood. None of the things that I've done, the things that I've agreed to, none of it would change all that. This comes down to a was it followed in the correct timeline. I didn't give anything to H1 because it wasn't required. because it was january 22nd the hearing it didn't mean you all were going to approve h1 you could have turned it down so it wasn't like anybody knew whether it was going to be h1 or not um so i guess at the end of the day i'm making the house exactly the way they want it to be made but because some things were jumbled up and there was an issue it's been made a big deal and and i've been sitting here doing nothing now with the house for quite a while and it's an eyesore to the neighborhood i mean it's got a dumpster sitting out front it's got a boarded up window i mean it looks awful i'm sure the neighbors would just like to see some sort of progress but i can't do anything until i know am i ripping out windows because then it's going to change everything with the house i mean it's meant to be a single family dwelling which i'm allowed to do so okay thank you Mr. Chairman, following that, the point has been made by the gentleman from the Historic Preservation that all of these agencies have attempted to cooperate with the applicant, and I have no doubt about that. But I also see that it seems to me there's an individual that hasn't had experience doing these kinds of things before, and he's confronting a number of agencies and an entity that is supposed to be his assistant government. And my personal feeling is we need to try to find a way to relieve the tension between government and our constituents and remove the adversarial barriers that sometimes arise, there's no doubt there's been mistakes made in this. But surely there's got to be a solution that satisfies the various interests without winding up with the parties polarized. I mean, there's so damn much of that already. Is there something that can be done? I don't know, but I'd sure like to find it. And I've taken too much time. Okay. Carla? I agree wholeheartedly with you. But the problem is, I guess, Barb, we don't have much discretion here. We cannot tell you that you can keep the windows bricked in and put shutters. We can't come up with solutions for you. Is that accurate? I mean, we don't have, I know you're looking very puzzled. It seems unusual that we cannot do that, but we don't have a lot of latitude to, we don't have the discretion to say you can do this, but tweak this a little bit. That's what you were saying. it would go back. What you have the discretion to do is to either uphold the Board of Architectural Review's decision or to overturn it. And then if he wants to make changes, like he suggested in the letter that I didn't pick up on the fact that that was the door to go upstairs. I was thinking that that was an upstairs door. I didn't pick up on that. If he wants to make changes to go back to the way the house, the way he wants the House and makes some changes to it, then that has to go through the process again. It has to go through the BOAR process again. It could be that they would approve parts of it. It could be that they wouldn't. And if he chose to appeal, it would come through to you again to say whether you should uphold or overturn the Board of Architectural Review. And we cannot overturn the Board of Architectural Review's findings just because we don't like them. Right. They have to be based. They have to be reasoned. they have to be based on the rules that we have to follow. So to me, the only, as much as I would like to do what I can for you, to me the only thing that we can really contemplate is whether, to me the crux of the issue is whether these were in fact included with the building permit, which to me would then show his intent, even though he kind of, going along with what you said, even though maybe he didn't fill out the building permit as we would have liked him to do, that this showed the intent, and that would give us something that we could use. But what I'm hearing is that they're not in the file. Is it rare, does it never happen that larger documents get separated and lost? I mean, can you tell me a little bit about the record keeping? because we've got, I mean, the basic problem is you've said you've included them. You've said they're not there. So I'm trying to get a little clarity on that. The process would be when plans are included, if they were 8 1⁄2 by 11 this size, they would go in the active file folder, which is where these are kept in our cabinets on site. Large documents or plans that we can't fit into this file in a filing cabinet are rolled up and put in a bin by month that they were permitted. and those bins for new construction and remodeling are set up in our office and we would keep all those plans there until we close the permit and then we scan them for our archiving requirements and simply put they're not here and they're not there and they're they're not closed so they wouldn't have been scanned these are open permits right now so uh didn't you say the plans were bigger than eight and a half by 11 and I sent back to my guy back in the office to search the January bin for those plans and he says there aren't any there okay I think I've heard enough I'm going to turn. All right, one more time. I mean, if it comes down to what my intent was or, you know, what my intention was, if they didn't find the drawings that were submitted, which I don't know why the other box would have been checked if nothing was given to them, but I also turned in my window, the receipt for my windows, And it's dated 12-11-12, which is, you know, over a month before they even vote on historical preservation. If they want to – all the window measurements are there. The only windows that aren't there are the ones that were on the plan shown as being bricked up. And every other window has been replaced. I mean, there's no window that has not been replaced on that house other than ones that have been changed. And like I said before, to appease them, I would even change the front and redo the other things they ask. But the three windows, the two that are on the right side and the one that's on the left side, completely change the ability to have a floor plan that's conducive to a single-family dwelling, which was the entire purpose from the get-go. All right. this permit is issued to a Troy Seale. Am I? He was the owner of the property at the time. Okay. Is that his handwriting or whose handwriting? It looks like two different kinds of... The permit application was filled out by Mr. Donahue, and then the actual permit was obtained by Mr. Seale, And I don't know if you were in the office together at the same time, but one was done by one and the other was issued. I mean, it was issued to the other person. You have to get permission from the owner to get a permit if you don't own. All right. This hearing is closed. I'm going to turn it over to the commission. Discussion or motion? David. I have a question for staff or legal counsel. if the board's denial is upheld, what is Mr. Donahue obligated to do or not to do? Well, as I understand it, if the decision is upheld, then if he wants to, he's obligated to comply with the terms of that decision. But that decision didn't encompass the letter he emailed to Barb with, I can make these alterations. But that information would have to go back to the Board of Architectural Review because they didn't opine on that at the time because that wasn't on the table. But the bricked-in windows are? They are on the table because the Board of Architectural Review or Historic Preservation issued a notice of violation that he wasn't in compliance with the H-1. So he'd have to remove those? Well, that may be a question in timing for Historic Preservation. If his intent would be to go back and seek the ability to keep those and have another hearing, I don't know if he'd have to remove them in the interim or how you all would handle that. Two things. In terms of timing, once the board has acted on an application, there are only two ways that you can reconsider that within a year's time. You can't rehear the same application within a year's time unless the property owner or applicant, in this case both, can find and put forward new evidence that the board could weigh and determine if they find that there is enough new evidence to reopen the case. Since Mr. Donahue was not available to the board for when his application was discussed and that they don't normally do that. They don't normally hear these cases without the applicant and representatives present. But because that had not been able to be happening in the past, because Mr. Donahue wasn't available, and then they had a meeting where they had no quorum, which was also a challenge. But that's resolved in terms of the membership. it made it more difficult because, of course, the applicant's not there to have dialogue back and forth about the issues that are being weighed and what the options are in terms of what could be done to resolve it. So to answer tied to your procedural question, a year would need to pass, or new evidence would have to be submitted such that the board concurred there was new evidence in which case they could reopen the case and revisit the topic, hopefully with the applicant's presence, to have a meaningful dialogue. All right. Ms. Mundy has a question. I have a question for you, if you don't mind staying, please. Since the permit was applied for by Mr. Seal, and now we have Mr. Donahue involved, Could he reapply as Mr. Donahue on this property and then appeal? At the time of the application, you have to, as has been noted by the chair acting vice chair, your vice chair, get your title correct, process demands that the current owner sign the application and obtain those permits. Okay, well, the current owner. And that was Mr. Seal at that time, which is your point. Now we have Mr. Donahue owning the property. So it's a- His mother, I believe, technically owns the property. Okay, all right. But I understand your point. We have a different owner. So now that we're coming back with maybe some different caveats, what would that do if he were to come in with a new application? And I would defer to law on that in terms of things. I think the two issues that, just quickly, the two issues would be, does that alter the regulation that you can't hear the same case within a year unless there's new evidence? Does it in some way override that in a change of ownership situation? I would defer to law. I'm not going to give you an answer because I'm not the Board of Architectural Review's attorney. and I don't go to their meetings and I don't want to overstep what they might say, but that would certainly be something to consider in my opinion. All right. Let's have a motion on this. We've got to decide it one way or another, and he'll have to decide what he's going to do afterwards. see if i wasn't sharing you know i'd make the motion mr chair i might say that i hate this case because what we have here is a conflict between process and intent now the question is if we go along with the board of adjustments position then the open question is as well or not as miss monday has put it back so i guess my question is that still would be an option on the table for the applicant to consider no matter how we voted on this particular one right okay well i'm going to make that difficult promotion i um sir i feel for you and again I understand the issue between process and intent but I'm going to go along with the decision of the BOA to I would like to make a motion and like I said I don't like doing this one this is one of those kinds I don't like it maybe it won't even pass but that we support the BOA our 2013-2 decision to disapprove of the construction of the plan based on staff's recommendations, reasoning opposed by staff. Okay, do we have a second? okay well i guess the motion dies for lack of a second so is there somebody else want to make a motion make another motion don't start I move that we postpone or offer a continuance until we get some additional legal information from the Board of Architectural Review related to this particular case. Okay. Is that a motion to continue? Yeah, just to offer a postponement, in fact. You're making a motion to continue this hearing? Yeah. Tell me what that means. It means we get to hear it again. Okay, we've got to have a second or we can't discuss it. I'll second it so we can continue discussion. We have a second. All right, discussion. I would like someone to explain what that is or what it does. I'm being told the time limit is up. So I don't, in terms of when you have to hear it, so I'm not sure that you can do that. Hey, that answered that. Here's the thing, the problem that bothers me about this. We have some other cases that will be coming forward to this committee, and it will be predicated primarily on the issue of process. It's the last day that it can be heard. Okay. And the only thing that we do as we represent the citizens of Lexington is to protect the process by which we do these things. That doesn't necessarily mean the process is always good. But if we don't do what we do to protect what we call a logical flow of process, I think we kind of open ourselves up to additional dialogue and some other areas that we potentially may not want to even get involved with. So I'm not necessarily arguing against the applicant. I'm just, in effect, saying that it seemed to me that there's evidence that the process here was followed to the degree that we could do on the side of the administration. There's no proof of anything going back and forth, so the question is whose word do you take? and like I said I hate to put the applicant in the position of having to prove everything but it's like anything else that we do you have to demonstrate what you do is in accordance with the rules and the regulations and the burden of proof in this instance seems to be in my opinion on the on the bird on the on the applicant okay miss Plumlee yes we want to go along with the process but even after we follow the process because and spend hours of wrestling with these decisions 17 months ago we made a decision we upheld a decision of the BOAR and nothing happened the gazebo still is setting on Maxwell. So my whole thing is what do we do even if we uphold the process when there's negative or there's just no action. Thank you. Okay. Let me, Tracy, if the applicant chose to continue, could he do that and change the date? Yes. I'm sorry, I didn't hear you. I'm fine with trying to work something out with them or get something accomplished. When I sent the email back January 29th, I thought she had all that. So if we can move it forward, but not, I'm willing to move forward, but not drag it out for another month. Here's what we're, the motion is to continue the hearing. We can't, we can't do that because we have a deadline. But you can say from out there, you can say, I want to continue this hearing. Let me just be clear because I just gave you a one-word answer. If you continue this hearing, you're continuing your hearing. You can't continue it and send it back to the BOAR because they can't take it back while there's a pending appeal. So what you're saying is if they closed this out and I went and worked with the BOAR and said, here's what I even suggested on doing, all the things you actually really want that are getting fulfilled, they could change it, but if not, while this is open, they can't change? That's what you said. That's right. They're not going to have any more hearings on this while this appeal is pending. well i mean i guess the questions is what i wrote in the document that i emailed to him is is that good enough to move forward and you know rehash all this and get it worked out i guess that's what it comes down to you know if that's the case i'm happy to move forward i just want you know something to be resolved obviously that's what i want is resolution i don't want to be button heads anymore okay so um what's the purpose of continuance well yeah that's what The question that Ms. Mundy posed was the one that they said that they'd have to review with the architectural board, and that is whether or not it would have to be a year's delay in the process. And I think that's an important element as it relates to how the petitioner, or whether the petitioner can go back and make a new application or not. So I didn't want to close him off without having to wait a whole year if, in fact, that door was open. And that was the only reason why I felt like a continuance could be then. Maybe we could get some review from the architectural attorney and then go from there. But it's just my thinking. If I might, Mr. Chair, once a decision is rendered by the Planning Commission, if indeed it upholds the decision of the Board of Architectural Review and the applicant would have the opportunity to go back and file additional information, that the Board of Architectural Review could then weigh, if indeed that constitutes new evidence, and if they determine it does, they could elect to reopen the case. And I believe that is one means by which process-wise this could get off-center. Now, the Board of Architectural Review, I cannot promise you, because of course I haven't seen what the applicant will submit for their new evidence, nor do I speak for the board members, but it is one mechanism by which this could be considered for additional resolution. So what would be the time to follow the amendment? Well, once the applicant provides whatever materials they're going to put forward as the new evidence, it would go on to the next available docket, which has to have legal notice and all the things you all are well aware of. So I'd say upon receipt of an adequate array of new information, it's about a five to six week to get on that first available docket. Okay. Do you want to speak? Well, we have a motion and a second, so I don't know if I can withdraw my second or if I need to call the question so we can vote on it and get that off the table, because I'm assuming we don't really want to do that anymore. If that's the case, I could withdraw my motion. Okay, good. And to that end, I'll withdraw my motion of continuance then. All right, good. Okay. Then I believe that the applicant had the intent to do the things that he did and thought that he had the approval. It's not that I don't believe what you're saying. If the person who took that application came here and testified that they didn't get it, then I would weigh what the staff had to say and say that must be the case. But since that person is not here and the applicant is adamant that he submitted that, then I say that speaks to the intent of what he intended for that building permit to do before the H-1 overlay took effect. So for those reasons, I would make a motion to overturn the BOAR decision. All right, we have a motion and we have a second. Any further discussion? I would like to point out one thing, and that is, and I hate to bring this up as it relates to it, but there's an old saying, ignorance of the law is no excuse. if I were a brand new driver and had decided to go out here and I had not had proper training and all those types of things and then disobeyed the law, the officers would have the right to cite me for having made the wrong choices related to that. So even though my intent would be good, even though my record would have been great, I could have been a straight-A scholar, the intent under the law does not quite count. That's all I have to say. If I could just respond real quick. I agree with what you're saying. And if he had come to us and said, I didn't know anything about H1, I did all this stuff, please forgive me and let me do it, I would agree with you. I think, though, what we have here is a case of he didn't fill out the paperwork correctly. He didn't fully, because, I mean, how many of us want to handwrite out everything? You know, he probably thought, I'm guessing, I'm going to put down the main things. I'm attaching this to show the full scope of what I'm doing, and it got approved. So I see it more as what Mr. Drake was saying, is that we're kind of getting bogged down in red tape, and we need to work together. So I see it as different than ignorance. And I agree. Oh, I'm sorry. I'm sorry. Go ahead. I think the only thing I want to say is that the process is too complicated in my eyes. And that's the reason I think part of this has happened. And what you said, Ms. Plumlee, it sounds like we're not following through ourselves on the process. so you know I think we I think we need to look at that as much as anything I mean for him to have to wait another five or six weeks just does not seem reasonable to me for him to have to wait that long for someone else to decide if they're going to hear it or not Mr. Chairman it's five o'clock I called a question okay so we have a call for the question. Everybody vote. Comes up. That motion passes. So the appeal has been approved. Any other business? Motion meeting adjourned.