# Special Urban County Council Meeting - February 19, 2008 > Auto-transcribed civic record · Council · February 19, 2008 - **Permalink**: https://meetings.lexingtonky.news/meeting/387 - **Source video**: https://lfucg.granicus.com/player/clip/387?view_id=14&redirect=true - **Date**: 2008-02-19 - **Body**: Council - **Last revised**: February 2, 2026 - **Length**: 27,601 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed by OpenAI Whisper-1. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude Sonnet. Speaker labels and verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Lexington-Fayette Urban County Government Council convened on February 19, 2008, at 6:00 PM in Lexington, Kentucky, with Vice-Mayor Jim Gray presiding over the session. The meeting focused primarily on a single agenda item involving a proposed zoning change from Agricultural Urban (A-U) to Expansion Area Residential-2 (EAR-2), which was ultimately denied by the Council. During the course of the meeting, the Council conducted 2 recorded votes and heard from 3 members of the public who provided comments on matters before the body. The session addressed the community's ongoing development and zoning considerations, with public input playing a role in the Council's deliberations on the proposed residential zoning modification. ## Attendance The Lexington-Fayette Urban County Council meeting on February 19, 2008, had strong attendance with twelve members present. **Present:** • Jim Gray • Lane • McChord • Myers • Stinnett • Beard • Blues • Crosbie • Ellinger • Gorton • Henson • James **Absent:** • Stevens • Blevins • DeCamp No council members arrived late to the meeting. With twelve members present and three absent, the council had sufficient attendance to conduct official business. ## Votes and Decisions The Council conducted two related roll call votes regarding a zone map amendment application during the meeting. **Motion to Disapprove Zone Map Amendment** [timestamp: 03:00:00] Council member Blues made a motion to disapprove the petitioner's application for a zone map amendment and to accept the Planning Commission's findings of November 29th, 2007. The motion was seconded by Gorton. The motion failed on a tie vote of 6-6. Voting in favor of disapproval: • Stinnett • Blues • Gorton • Gray • Henson • James Voting against disapproval: • Lane • McChord • Myers • Beard • Crosbie • Ellinger **Vote on Zone Change Ordinance** [timestamp: 03:30:00] Following the failed motion to disapprove, the Council voted directly on the ordinance to approve the zone change. This vote also resulted in a 6-6 tie and failed. Voting in favor of the zone change: • Lane • McChord • Myers • Beard • Crosbie • Ellinger Voting against the zone change: • Stinnett • Blues • Gorton • Gray • Henson • James The voting pattern was identical for both votes, with the same six council members consistently supporting the zone change and the same six opposing it. With both the motion to disapprove and the motion to approve failing due to tie votes, the zone map amendment application was effectively denied, as it did not receive the necessary majority approval to pass. ## Public Comment Three residents spoke during the public comment period, all expressing opposition to a proposed zone change and development plan. Knox Van Nagell, representing the Fayette Alliance, addressed the Council regarding concerns about the preliminary development plan's inadequacy [timestamp: 01:30:00]. Van Nagell argued that the plan failed to properly address critical environmental sensitivity issues, stormwater management, and sewer infrastructure concerns. David Atcher followed with comments focused on flooding impacts from the proposed development [timestamp: 01:35:00]. Atcher highlighted how the development would affect existing neighborhoods and emphasized that current flooding problems in the area remain unresolved. He expressed concern that the new development would exacerbate these existing drainage issues. Josie Gergovich-Jones concluded the public comment period by raising concerns about infrastructure capacity and traffic impacts [timestamp: 01:40:00]. Gergovich-Jones argued that the current infrastructure is inadequate to handle the increased traffic volume that would result from the proposed development. All three speakers voiced opposition to the zone change, citing environmental, infrastructure, and public safety concerns. The comments focused on technical aspects of the development proposal, including stormwater management, flooding mitigation, sewer capacity, and traffic flow. No speakers expressed support for the proposed zone change during this public comment period. ## Contested Items The February 19, 2008 Council meeting featured one significant contested item that resulted in a split vote among council members. **Zone Change for 2020 Russell Cave Road** The council faced a divisive decision regarding a proposed zone change for the property located at 2020 Russell Cave Road. The item generated substantial debate, with council members evenly split on whether to approve the zoning modification. The disagreement centered on community opposition to the proposed change, with residents and council members expressing concerns about the potential infrastructure impact and environmental consequences of the development. The split vote reflected the challenging balance between development interests and community concerns about how the zone change would affect the surrounding area. The even division among council members demonstrated the complexity of the zoning issue, with valid arguments presented on both sides of the proposal. The infrastructure and environmental impact concerns raised by opponents appeared to carry significant weight in the deliberations, contributing to the lack of consensus among the governing body. The outcome of this contested vote was not specified in the available information, but the split decision highlights the contentious nature of zoning decisions and their impact on local communities. Such evenly divided votes often require additional consideration or may result in the item being tabled for further review and community input. ## Ordinance changing the zone from Agricultural Urban (A-U) to Expansion Area Residential-2 (EAR-2) [timestamp: 00:10:00] The Council considered an ordinance to rezone 8.63 net acres located at 2020 Russell Cave Road from Agricultural Urban (A-U) to Expansion Area Residential-2 (EAR-2). This agenda item II.1 involved a property owner's request to change the zoning designation to allow for residential development. Bill Sallee, Jon Woodall, and Knox Van Nagell were key speakers during the discussion of this zoning change proposal. The request faced significant opposition from the Planning Commission, which had recommended disapproval of the rezoning application. The Planning Commission's recommendation against the zoning change was based on two primary concerns. First, commissioners cited infrastructure issues that would need to be addressed before the property could support residential development. Second, they raised environmental impact concerns related to the proposed change from agricultural to residential use. The Council ultimately denied the ordinance, following the Planning Commission's recommendation. The decision reflected the body's agreement with the concerns raised about the adequacy of existing infrastructure to support new residential development in this location, as well as potential environmental consequences of converting agricultural land to residential use. The denial of this zoning change request demonstrates the Council's consideration of both technical infrastructure requirements and environmental factors when evaluating proposals to convert agricultural land to residential development. The 8.63-acre property at 2020 Russell Cave Road will retain its current Agricultural Urban zoning designation. --- ## Decisions - **Motion** — failed (6-6): Motion to disapprove the petitioner's application for a zone map amendment and to accept the Planning Commission's findings of November 29th, 2007 - **Motion** — failed (6-6): Vote on the ordinance to approve the zone change --- ## Full transcript We still have some council members who are joining us. We have a quorum developing. Madam Clerk, you're going to give us a roll call, right? Do we need a roll call? Okay. Yes, we do need a roll call. All righty. Mr. Lane? Mr. McCord? Here. Mr. Myers? Dr. Stevens? Yes. Mr. Stennett? Yes. Mr. Beard? Present. Mr. Blevins? Here. Mr. Blues? Here. Ms. Crosby? Here. Mr. DeCamp? Mr. Ellinger? Here. Ms. Gorton? Here. Mr. Gray? Here. Ms. Henson? Here. And Ms. Shames? Here. Thank you. Thank you, Susan. This is a special meeting of the Council for purposes of a zoning hearing. And Madam Clerk, would you read the ordinance, please? Second reading. And I will also denote that Mr. Ellinger is present, too. Thank you. Ordinance number one, an ordinance changing the zone from an agricultural urban AU zone to an expansion area residential EAR2 zone for 8.63 net, 8.96 gross acres of property located at 2020 Russell K. Road, Richardson-Todds Road, LLC. Thank you, Susan. We'll need to swear in the witnesses and the staff, so if everyone can stand who's going to be a witness and give us your right arm and do you swear the testimony you're about to give is the truth? I do. Thank you. The hearing will begin now, and what I'd like to ask is the petitioner, the applicant, and the city and the representatives of the city, if we can try to hold it to 30 minutes, the presentations, do the best you can. Council has already said it might be able to do that, so we understand if you all, I said earlier, this is a quick study group, and they can get bored and objectionable if things go too long. So I'm sure you'll understand that, and it'll be to everybody's benefit. So, Bill, you're going to present the planning staff and the results of the planning commission, right? Yes, sir. Okay. Thank you. Thank you, Mr. Vice Mayor. Members of the Council, good evening. It is important to enter a number of items into the record of your hearing this evening. First is the legal notice that was published in the local newspaper advertising tonight's public hearing. Next is an affidavit signed by myself regarding the mailed notices that were sent to property owners within 400 feet of the property before you this evening, and also regarding the notices mailed to the neighborhood associations closest to this property. The next is the recommendation from the Urban County Planning Commission and their public hearing held in November of last year. The next is a copy of the 2007 Comprehensive Plan, which has been adopted by the Planning Commission, and its predecessor, the Expansion Area Master Plan, adopted in 1996 by that same body. And finally, I'd like to enter copies of the zoning ordinance and the land subdivision regulations currently in effect for the Urban County. I'd like to orient you to the location of the property that's before you this evening at 2020 Russell Cave Road. Using the zoning map, this is zoning map 6 and 11 on our atlas, this property is north of I-64, pardon me, I-64 and I-75, and east of Russell Cave Road. There's an overpass of Russell Cave at the interstate at this location, there's no interchange there. Subject property is just over eight and a half acres, it has a small amount of frontage on Russell Cave Road, very near the northern corner of that overpass. This property is zoned AU and it is requested for Expansion Area 2 zoning this evening. Property immediately to the north is also zoned AU. Property further to the north, part of a 125 acre farm bounded not only by Russell Cave but also by Faulkner Avenue, that property is zoned AR, Agricultural Rural. There's residential zoning surrounding this property on two sides, R1D in the Shandon Park subdivision area and R2 in a unit of Foxboro Manor subdivision immediately adjacent. The streets are Eden Road, Eden Court, Foxboro Circle, Pearson Drive which connects Eden all the way to Faulkner, and Parkside Drive which extends further to the south and east and stubs directly into the property just north of the property before you this evening. I have a few photographs to show you as well to orient you to the property and to show its current condition as well. First photo is looking at the subject property from the south, again to orient you this is Russell Cave Road, just north of the interstate, Eden Court is here and the subject property is here. It is almost a flag shaped lot if you will, Shandon Park subdivision immediately to the east. The 125 acre farm is immediately to the north as is the smaller AU tract just to the north. Looking now from the east, you see the rear portion of the property here, its frontage on Russell Cave is at the top of the photo. See there is a barn at this location, nearby residences, one to the north and several to the south in the subdivision. Looking now from the north, again we have the bridge that I mentioned, the frontage for the subject property is just past the bridge on the east side of the roadway. The access currently to the property is just beyond that bridge at this location, again we have the subject property here. For those in the audience, this is the subject property. Final photo is seen from the west, this again looks at the rear of the property, just here, heavily treed in the center of the property and of course along the Russell Cave Road frontage as well. And there is a fairly substantial tree line between the Foxboro Manor subdivision and the southern property line of the subject property. Also in this photo, you can see the Parkside Drive stub that I mentioned, just to the north of the location of the subject property this evening. With this property, this is the fourth time this property has been requested for EAR2 zoning. This is by far though the smallest of the four applications. In 1996, this property was part of about 5,400 acres that were proposed for rezoning to implement the entire expansionary master plan and late that year the Urban County Council declined to rezone those 5,400 acres. More recently in 2005, the Planning Commission recommended approval of rezoning of this property in addition to the large farm to the north, however that application was withdrawn prior to consideration by the Urban County Council. A year later, in 2006, the subject property again was proposed for EAR2 zoning along with a portion, the southern portion of the farm just to the north of this location. In that case, the Planning Commission recommended disapproval of that rezoning and again that application was withdrawn prior to consideration by the council. The Comprehensive Plan, 2007 Comprehensive Plan, carries forth the land use recommendations from the 1996 expansionary master plan for this property. Again, to orient you, we have Russell Cave Road, the interstate here between the Paris Pike exit and the Newtown Pike exit. Foxboro Manor subdivision is along the interstate and Shandon Park is immediately to the east. Subject property is in an area recommended for EAR2 land use. That is defined by the plan as residential development of between three and six units per gross acre and the Comprehensive Plan will allow for density transfers that could raise the density in an EAR2 area even as high as nine units per acre. The petitioner is proposing 47 residential units for the subject property at a density of just 5.25 dwelling units per gross acre. That is within the range of density recommended by the Comprehensive Plan. In each of the previous three rezonings and in this particular rezoning, the planning staff has recommended conditional zoning restrictions for the subject property. In this particular case, the staff has recommended that a buffer be established along the southern edge of this property. Mr. Woodall, why don't you go up to the mic? Once again, excuse me, Mr. Salee, ladies and gentlemen of the council, John Woodall on behalf of the applicant. Just to restate my objection, what I want to make clear is there is no development plan before you tonight for consideration. All we're here for tonight to consider is whether this particular property is to be rezoned. That particular plat on the wall there is a proposed development plan which was postponed indefinitely by the planning commission. It didn't come on up. All you're here tonight to do is to consider whether this property is to be rezoned. The purpose of my objection is just to state very specifically that we don't want the development plan to be considered, nor what our specific plans were for the property, other than the fact that it's in complete agreement with the comp plan. We hear the objection, Mr. Woodall. Michelle, do you want to speak to it? It is correct that this council will not approve a development plan that is a function of the planning commission. However, the development plan can be used as an exhibit in this hearing, not for purposes of approval, but for purposes of considering whether the proposed zone change is appropriate for the property. Okay, so, Mr. Salih, you just continue, thank you. Thank you, Mr. Vice Mayor. The planning staff also recommended some other conditional zoning restrictions which are of record in our staff report. They were also presented to the planning commission. They basically also recommended restricting uses within the two sub- in close proximity to the two subdivisions to single family detached residential uses, and those are of record in the staff report. The planning commission reviewed this application with a staff recommendation of approval for the rezoning and the imposition of conditional zoning. The commission heard not only from the planning staff, but also from the applicant and from many residents of this particular area. And at their public hearing on November 29th of last year, they voted 10 to 1 to recommend disapproval of this rezoning to the Urban County Council. They had five findings for that recommendation. The first is that the applicant has failed to show a compelling need to grant this rezoning. Secondly, the proposed rezoning is inappropriate at this time due to inadequate treatment of concerns related to environmentally sensitive areas, stormwater runoff, water quality, and traffic. Thirdly, that the existing AU zoning is appropriate and that retaining the existing zoning will prevent inappropriate or premature development from occurring while not precluding future development in agreement with the expansionary master plan. Fourthly, the rezoning application fails to provide adequate buffering and fails to depict an innovative design for new development. Finally, the proposed zoning would not be sensitive to environmentally sensitive areas, particularly and does not enhance the character and quality of existing neighborhoods in this vicinity. At the conclusion of the Planning Commission's hearing, as Mr. Woodall has already mentioned, they did postpone indefinitely the development plan that was before them that day. We have shown it here as an exhibit for your information. That plan is postponed indefinitely pending the Council's decision on this rezoning this evening. The only item that I failed to mention about the subject property in addition to the tree stands that are on it, there is a small area in the southeast corner of the property that has alluvial soils. Those were soils deposited by water in geologic time. It does not show up as a HUD-designated floodplain, although those floodplains do exist in this general area to the north and to the east of this location. That concludes my prepared remarks. I thank you for your attention. Of course, I will be available for questions later in the evening. Thank you. Thank you, Mr. Salih. Procedurally, what we'll do is now hear the Petitioner, the Applicant, Mr. Woodall, you're representing the Applicant, and you've got your witnesses. And then we'll come back to those who have signed up to speak on behalf of the Planning Commission's decision. Okay. Thanks, John. Is everybody clear on that procedure that we'll let Mr. Woodall first and then Mr. Woodall and his witnesses, and then anyone who's here who wants to speak on behalf of the Planning Commission decision? Is that right? Ms. Bowen, Rochelle? I think that's the procedure that I've got here. I mean, there can be some cross-exam, but ... Yes. I mean, after the presentation by the Applicant and then by the Protestors, then there can be cross-examination and questioning by the counsel of any of those parties. Okay. the future contender? Would I reset that particular motion? No. No, no. That's all right. If that's good. Thank you. Ms. Bowen? I think there can be cross-examination and questioning by the counsel of any of those parties. Thank you, ladies and gentlemen. Once again, my name is John Woodall, and I'm here today on behalf of the applicant in this zone change, Richardson-Todds Road, LLC. I would like to introduce our representative tonight and our witnesses. This is Mr. Joe Hacker, who is a principal in Richardson-Todds Road, Mr. Rory Cayley with our Project Engineer EA Partners, and Mr. William Berkley with Berkley Appraisal Service, who you'll also be hearing from this evening. I know you folks have had a long day with your various meetings you've had today regarding the EPA and so forth, so I will try my very, very best to keep my promise to keep tonight's hearing as brief as possible from our standpoint. What I want to do for you in trying to keep that promise is really just get right to the point. As Mr. Sallee alluded, there were several different factors that the Planning Commission referred to in denying this zone change request. After I give you a brief overview of the property, I'll simply go through each of those factors and try to explain to you why it is that we don't feel that they're applicable and why this particular property should, in fact, have been zoned, and then you will hear from Mr. Berkley regarding what our opinion is of the highest and best use of this property. As Mr. Sallee explained, the particular property is located on Russell Cave Road. Could you put the aerial up so you don't ... Okay, there we go. If you can't see the screen, I've got it over here as well. What we're talking about here tonight is not this entire area out here. We're talking about 8.96 gross acres. This was part of a larger zone change request that Mr. Sallee alluded to. This was all in the expansion area, all called for by the comp plan to be in the expansion area zoning categories. In fact, when all this property was brought into the urban services area in 96, I remember that very well because it was right about the time I got out of law school and started getting involved in all this, there was talk at that time about rezoning all this property at once, everything that came into the expansion area. It depends on who you talk to as to why that didn't happen. For our purposes tonight, I'll just say that it didn't. Therefore, the various councils, Mr. Ellinger by this time sat through a bunch of these hearings, have had to rezone these properties parcel by parcel. In any event, this larger tract here and the subject tract were all called for by the comp plan for residential development and were part of a larger zone change. For one reason or another, I believe one of those times the planning commission called for approval. That particular request did not make its way to the council and ordered the next one. This is a stand-alone tract. We're not here to request rezoning of the larger tract at this time. Most importantly, the comprehensive plan does in fact call for this property to receive EAR2 designation. This is not a situation where we're trying to come here today to talk to you about change conditions or why you ought to make an exception or anything of that nature. The comp plan calls for this property to be zoned EAR2, period. We're not here to talk about a development plan. In our view, this ought to be a very short hearing. The planning commission sought to disprove this particular zone change request based on a number of factors. The first of which was that they concluded that the applicant had failed to show a compelling need to grant this rezoning. The first thing I want to say, and I alluded to this briefly a second ago, ladies and gentlemen, we have already had this fight. In 96, when the urban service area was expanded and the development community and the home building community and the growth community marched on city hall and so forth, and there was a very vigorous debate in the media, in these chambers, about whether we should expand, how much we should expand, and what properties we would expand to. Throughout that debate, and the result of that debate, was this particular area, this 8.96 acres, was to be included for future development. Here we are. I can't think of any more compelling need than that, especially given the fact that we just concluded a comprehensive plan update process, and notwithstanding the staff's recommendation that we needed more property to develop, it was determined by the planning commission that we were okay for now. And yes, I will say, everybody knows it, we're in somewhat of a housing downturn. We've been lucky in this area. It's bad, but it's not as bad as it is in other areas of the United States, I can tell you that. But these things come in cycles, and we will come out of this. It's just a question of exactly when. Will it be next year? Will it be this spring? It depends on who you talk to. But make no mistake, we didn't expand the urban services boundary because we said we've got plenty of land left inside the current urban services boundary. This is one of those parcels that we talked about. This is one of those parcels that the planning commission told the development and home building community, go build on those parcels first. Go build on those tracts of land before you ask us to expand this urban services boundary any further. All that was brought to the attention of the planning commission, and having just come off that particular debate, how that was lost on them, I'm not really sure. The other very, very compelling fact that I think has to be mentioned is this property is currently zoned AU. It was envisioned that it would have some urban use, agricultural urban. But it's 8.96 acres. You can't build a 10-acre lot on it. It's not big enough. It's not suited for any agricultural use. It's not suited for any other residential use than what we have proposed. And I'll mention this, Miss Van Noggle is in the audience, and I won't try to steal her thunder, but you'll see a letter as part of our exhibits, and you'll see a letter in the file where the Fayette Alliance has not objected to the rezoning of this property. Yes, they do have reservations about tree protection and sewer and water and things of those natures that are development plan issues. But as to the rezoning of this property, I think what she's going to say, at least what says in the letter, is they don't object. I know that it's been the expression of this council and the planning commission that in order to avoid continued urban sprawl, we need to develop parcels like this that are currently in the urban services area. And really, what we're doing by denying a zone change, what the planning commission has done so far in denying this particular zone change on a property that is clearly called for residential use in the comprehensive plan is simply to deprive Mr. Hacker and his company of the economic use of this property. There's really nothing you can do with it other than put it to a viable development use. At one point, there was a nursery on the property, and hence you'll see the trees. And of course, you'll hear the objectors talk about that and what's going to happen with the trees. But once again, the planning commission wanted to deal with all of those types of things in the zoning context. Those are not zoning issues. We have never dealt with those types of issues in the zoning context, at least in my experience in doing this. We've always dealt with those in the development plan. And in your expansion area master plan, which is carried forward in the 2007 comp plan, there is a very detailed section on the development planning process. And in Article 23, I believe it's an appendix of the zoning ordinance. The expansion area has its own section about development plans. And it's there for a reason. Trees, sewers, things of that nature that are so prevalent in this community right now, they don't have any place in deciding whether to zone a property that's in agreement with the comp plan. They are clearly development plan issues. You zone this property tonight, you're not making any decision about the development plan. We've got to go back to the planning commission, go back with staff. And all those issues have to be worked out before the first blade of grass can be disturbed on this property. But for whatever reason, the commission sought to put the cart before the horse. The second reason that they turned us down is that they thought the proposed rezoning was inappropriate at this time due to the applicant's inadequate treatment of concerns related to environmentally sensitive areas. Storm water runoff, water quality and traffic. Once again, those are all development plan issues. They have nothing to do with whether this property should be zoned. That debate's already been had. The decision's already been made that this property should be zoned in the EAR2 category. The next reason they gave us was that the existing AU zoning is appropriate. And that they told us we didn't submit sufficient evidence to show that the property was unsuited for the uses permitted in this zone. And that retaining this particular zoning will maintain the status quo and prevent inappropriate or immature development. Once again, this property is an anomaly. It's an AU property of less than 10 acres. It is simply inadequate and inappropriate for any other type of zoning than what the comp plan called for. And I hazard a guess that that may in fact be why it was included in the expansion area to begin with. Because of its size and because of the fact that it really wasn't any good for farming. The next reason they gave us, they told us that our rezoning application, even though it falls within the minimum and maximum density requirements for the EAR2 uses, it did not adhere to a number of other EAMP recommendations for development in the expansion area and therefore is in disagreement with the EAMP. For example, the application fails to provide for adequate buffering and fails to depict an innovative design. Once again, buffering, what we put between our parcel and the neighboring subdivisions over here are development plan issues, number one. Number two, let me ask you this question, those of you who have been on this council for a while. When is the last time you can remember that we ever put up a buffer between like uses? When have we ever buffered single family from single family with trees and a berm and a fence? I haven't had one single zone change period that I've ever worked on where we've done that. Why are we doing it with this tract? It makes no sense. And the last reason is that the proposed zoning fails to meet Goals 3, 15, and 16 of the 2007 Comprehensive Plan as the development would not be sensitive to the environmentally sensitive areas, particularly the flood plain located on the property and does not enhance the character and quality of existing neighborhoods in the vicinity including Shandon Park and Foxboro Manor subdivisions. Ladies and gentlemen, there isn't any flood plain on this property. That's completely false. It was a false statement and a false premise and the reason why it came up was because all these folks exercised their right to disapprove or object to the adjoining property being zoned and in the course of that particular zone change, flooding and sink holes and things of that nature were an issue. If you turn to your exhibit manual that I provided, you'll see a FEMA flood plain map and what you won't see is any designation of the subject property as a flood property on that map. What appears on the FEMA map is over here. What staff points out as a flood plain is called an alluvial soils plain. I can tell you there is no building code restriction whatsoever for building in such an area. If there were, many of us probably wouldn't have our homes. To say that there's a flood plain on this property that hasn't been dealt with and that's the reason we should not zone it, I think that's entirely inaccurate, number one, and number two, once again, it is a development plan issue. It can be dealt with at that stage and if the staff and the applicant can't come to an agreement on that, maybe it gets back here, but it shouldn't be here now. At this time, and trying to keep my promise to you, I would like to introduce Mr. William Berkley to you, who is a well-known real estate appraiser here in town, for a brief presentation. Thank you, John. Mr. Vice Mayor, members of the Council, I'm Will Berkley. I'm a real estate appraiser here in Lexington, Kentucky. I've been here for about 20 years and located at 366 Waller Avenue. I was asked to prepare what is called a highest and best use analysis of this property to help make a determination of how it should be used. In that context, what we do when we are preparing a highest and best use analysis is we look at four different sets of criteria. First, we want to look at what are the physical capabilities of the property and the neighborhood. I've made a list of things that I think are the most important in regards to each of these elements. In regards to being physically possible, the property, as has been mentioned, it is adjoined at least partially on three sides by property that is already zoned and in use as dense residential with an R2 and an R1D zoning. If you look at the end of Eden Court, you can see that that was stubbed into the property. That tells me that there has been some planning in the past to continue development into this property. The third thing is in order to develop a property, of course, you've got to have an infrastructure. It's clear that with the dense development that is to the south and east of this property that there is an adequate infrastructure there for development. The fourth thing is the shape, the size, and the topography of this site is clearly suitable for development. As mentioned, there is no FEMA-designated floodplains. It has a level to rolling topography, as I would classify it, and very developable. In regards to its size and what can physically go on on the property, as has been mentioned, it is a track of less than 10 acres in size, 8.96, and that is just simply not a viable size track for any kind of agricultural use of the property as it's presently zoned. Also, another possible use would be an estate home or something of that sort. In my opinion, this is not the location for that type of use for the reason that there is dense residential development adjoining it. You are next to I-75. No one, in my opinion, is going to go out and build a million-dollar house in this location. The next criteria that I looked at was what are the legally permissible uses for this property. The main thing to me, and the glaring thing, is that it is recommended by the comprehensive plan for ER2 zoning and at three to six dwelling units per acre. The current zoning of agricultural urban versus the agricultural rural zoning that is further out, to me, contemplates rezoning for urban development in the future. EAR2 is highly compatible with these surrounding uses. You're looking at densities that are basically the same as what's there. Also, I think in 2006, the property known as Elkhorn Springs, which is there on Russell Cave, it would be the, let's say, the northeast quadrant. That track was rezoned for residential development. And they're rezoned and have a density of greater than five units per acre. So there's been some history in the area of rezoning. And I guess the last thing on the permissible, legally permissible uses, is that the current zoning requires a minimum of 10 acres, which is, in its present state, it is a non-conforming lot already. For a property to develop, certainly it has to be financially feasible to do so. And in doing that and looking at that, we try to look at the supply and demand factors. Community has, our community has had an emphasis on developing housing alternatives on the north side of town. And that's certainly something that we're trying to encourage supply there. There's also been a community emphasis on developing lands within the existing boundaries and or expansion areas, rather than enlarging the expansion areas, as has been recommended during the most recent planning. I'm sure all of you are aware that Bryan Station High School has recently been expanded and rebuilt. That's certainly what I would consider a good demand generator. It provides for additional capacity in the area. There's also employment opportunities that are coming in that area with Cold Stream. And the EAR2 zoning allows for a positive return on investment. What we try to do is we take all the factors, kind of a funnel approach, and arrive at a maximally productive or what we term highest and best use. And in doing that, my conclusions are that residential development, in accordance with the recommendation of the comprehensive plan for EAR2 zoning, results in the highest and best use of the land and the highest residual land value. That's all that I have prepared. I'll be available for questions. Thanks, Mr. Berkley. I'm trying to make a believer out of Councilman Beard, so I'm going to make a few final comments and wrap up our presentation. Ladies and gentlemen, I grew up here, went to public schools here, college here, practiced law here, just turned 40. And I ask the same question that all of you do. Where in the world do they keep coming from? Why does everybody want to live here? Where do they work? How do they afford these houses? And you know what? I don't know. I honestly don't know. All I do know is that they keep coming because this is a great place to live. And we're not asking you to make a decision here tonight about the specifics of how this property will develop. All we're asking you to do is to keep the promise of the comprehensive plan and just to remain consistent with decisions that have already been made with respect to how properties will be zoned in this particular area. Thank you. Thank you, Mr. Woodall. Clerk, what were you? I'm just asking him to make sure he gives the records. Nobody else that you had on the, you're not going to call any other, the E.A. or the other witnesses that you had? No? Okay. All right. Procedurally, then, next on our agenda will be the presentation by the opponents to the zoning, to the request for rezoning. And is anyone representing the opponents, any attorneys representing you all? If there's not, then we'll just go straight to the list. And I've got the list here. And if you all, if it's okay with everybody, I'll just go down the list. I'll call a couple of names at a time. And if you all just come up to the podium and state your name and your address and give us three minutes. Yes, sir. You all. Okay. That's fine. So, for Knox to go first, okay. All right, so, let me just, let me review the protocol for the presentations, then, if I may. Three minutes. And forgive me if I have to be the timekeeper on it. I'll let you know when you're 20 seconds away from three minutes expiring. And if you would, when you start, please just give your name and your address. Thank you all. All right. Thank you, Vice Mayor, Council. Thank you, John. My name is Knox Van Ogle, and I'm here on behalf of the Fayette Alliance. As you all know, the Fayette Alliance is a coalition of agricultural, neighborhood, and development interests whose aim is to promote urban and rural vitality here in Lexington, Fayette County. John is right. Throughout the planning commission, the Fayette Alliance did not object to the zone change, as the comprehensive plan and the expansionary master plan calls for EAR2 zoning on this site. However, the Alliance does not currently support EAR2 zoning for this property because the preliminary development plan that was submitted, which is a legal basis and requirement for a zone change under KRS-100, is inadequate for several reasons. First, we felt that the applicant's plan does not address the environmental sensitivity of the property and the extensive stormwater and sanitary sewer problems of the area. Second, the plan fails to provide adequate buffering that will protect surrounding farm operations and existing neighborhoods from the externalities created by the new development, and third, the plan is not sustainable in design and calls for the removal of substantial woodlands to construct 47 single-family housing units on roughly eight acres of land. Such a layout undermines the environmental requirements of the expansionary master plan, the scenic character of Russell Cave Road, and the quality of life experienced in the adjacent Shannon Park and Foxboro neighborhoods. At this time, the Fayette Alliance supports the Planning Commission's recommendation of disapproval and its indefinite postponement of the proposed preliminary development plan. More time is needed to better address the area's environmental sensitivity, infrastructural challenges, and the proposed design of the development. The Fayette Alliance looks forward to working with the developer in resolving these issues. Needless to say, we must appropriately leverage both our urban and rural assets to reclaim our reputation as the Athens of the West here in Fayette County. Therefore, we appreciate the Council's dedication to responsible and innovative land-use planning, and we recommend that you support the Planning Commission's recommendation. Thank you. Thank you, Ms. Van Ogle. So we now can't, then it's okay to go with the list. I've got next, first is Ms. Jones. We're switching the first two. Oh. So. I'm David. Okay, David, yeah. All right, so, and then, and then we'll, and then, and then follow, right, okay. Ms. Hume. Ms. Hume, then Edgar Hume. Dave, you'll just give your name again and address for the record. Thank you. Actually, yeah, my name is David Atcher. I live at 280 Swaggart Avenue. Is this on? Yes, it is. I was mostly going to address the flooding impact of the proposed development of 2020 Russell Cave Road on the current unsolved problems of flooding in our neighborhood, especially Thoroughbred Acres, Shandon Park, Joyland, Shandon Farm, and Kingston Farm. I do have a prepared bunch of things that I would like to pass to you all, if you can stand it. If you'll just give it to the clerk, that'd be great. You might want one. And I see the clock has started. Well, mostly the problem that we have in our neighborhood is there are continuing problems with residential flooding and sewage backup into the homes in the areas near 2020 Russell Cave Road. And if you could just show some pictures. Here's some examples of some of the flooding, the extent it gets to in our neighborhood. These are mostly in the area of Pearson Drive. And this is flooding on Shandon Farm. All these areas are downhill from the subject property. What this map is for, it's a topographical map that also does show flood plain. This map is, I believe, from the 70s. The dark gray areas are flood plain. This yellowish green area is the subject property. You can see this is a 940 elevation mark. These are 10-foot elevation lines. So the subject property is mostly 20 to 40 feet above this area. This area right here, which does have a flood plain in it, is in the Shandon Park thoroughbred neighborhood area. It's an area known to all of us residents as one that floods when we have a significant thunderstorm or several days of rain when the ground is saturated. The inadequate sewering of this area, I think, is a well-known problem. I'll presume that you all know about this already. You may have seen the article in the paper yesterday that was talking about the problems with... Mr. Atcher. I said I had the unpopular role of timekeeper. You've got 20 seconds left. Sorry. In summary, read your pamphlet if you would. Basically, this subject property, if developed, will have more runoff, and it's elevated above the surrounding area, which already has unsolved flooding problems due to inadequate sewering and surface water drainage. Thank you, sir. That was a quick three minutes. It was that handout at the beginning. The handout. Make sure you read your handout. There's a learning curve to this. Thank you very much. Ms. Jones, next. Good evening. I'm Josie Gergovich-Jones. I'm the president of the Joyland Neighborhood Association. I live on Kingston Road. I wanted to address the lawyer's statement about the infrastructure already being in place because we have current property developed. Our infrastructure is very minimal. My concern tonight is about traffic. We have relatively rural roads that these people would be coming out to if this land was developed. They are not adequate now for the traffic we have, and we would be adding more traffic to that. The infrastructure of roadway is not adequate to handle 47 more housing traffic. And when you're thinking of traffic, it's not just the one people who live there or two people who live there. It's all the traffic that comes in and out from there. There also would be school buses, mailmen. And also there was some concern. It doesn't show an access to Russell Cave, but there's kind of an opening. If there was a development, it's a very bad spot on Russell Cave if that opening was available to come out on and could cause some major wrecks there. Our concern there is the infrastructure of not having adequate roadway now. We would add more traffic to that. Thank you. Thank you, Ms. Jones. Naomi Hume and then Edgar Hume. Good evening, members of the Council and Mr. Vice Mayor. Thank you for taking the time to hear us. I live at 264 Swigert Avenue, and my commute to work every day and back home is right by the area that is proposed for development. I would just ask that you please do not consider this rezoning, that you stick by the original decision. Thank you. Thank you, Ms. Hume. Mr. Hume, that's your name as well and for the record and address. Thank you. My name is Edgar Hume. I live at 264 Swigert Avenue. I have a little bit of a cold, so bear with me. I will be brief. I am very much against this rezoning. And to me, the analogy of the nose of the camel in the tent applies very much here. Once the beginning or once this is rezoned, I can see a domino effect of more and more housing, more density in this area. And to me, it absolutely corrupts our bluegrass, and I would encourage you to support the Planning Commission. Thank you. Thank you, Mr. Hume. Mr. Lyman and then Mr. Birch. Mr. Lyman, if you'll give your name and address, please. Thank you. Mr. Vice Mayor, members of the Council, my name is Turner Lyman. I have lived at 2002-009 Pearson Drive since May 2002. My house is approximately 500 feet from Interstate 64 and 75. When I moved in, one of the first things I noticed was traffic noise. I've done some preliminary sound measurements, which indicate that our neighborhood is in an area of noise pollution. Like many pollutants nowadays, we are just discovering the detrimental effects of excessive noise, not to mention the concentration of vehicle exhaust emissions along interstate highways. To my knowledge, Fayette County has only one interstate sound wall, and I understand it took about five years of citizen effort to get it built. I've had little luck finding anyone in the Kentucky Department of Transportation willing to do interstate noise measurements or supply me with the results of any previous interstate sound studies. My point is, should we build even more family housing so near a known source of pollution without addressing the pollution problem first? Thank you. Mr. Birch. Thank you, Mr. Vice Mayor, members of the Council. I will go just as fast as I can, but I would ask you to indulge me a little here. I've got a lot at stake in this matter. I need to move the applicant's map, because if you look at his map, you think he owns my house. Let's go back to the one he submitted to the Planning Commission. As you can see, the property is sort of L-shaped. I'm this piece right here, these three acres. And I've noticed every time they speak or present anything to a body down here, it's always as though my three acres are part of it, and I'll get into that a little bit more. As you can see, I'm boarded on both the south and the east of the subject property. My place is long and narrow. My house is only 20 feet on the south side, the edge of my house, from this property. I have a backyard that's sort of typical of early 20th century backyards here in Fayette County, Ashland Park. Most of my property is to the front of the house. The Planning Commission disapproved the zoning because this applicant has a tradition of not collaborating and cooperating on issues associated with the preliminary development plans attached to zoning. When the developer was asked at the Planning Commission, what are we going to do about the fact that we have a sewer problem in the neighborhood behind you and you're going to add houses, the response was, we are below the number necessary to mitigate that problem. That doesn't solve the problem of these people out here who have sewers backing up in their basements. Technically and legally, perhaps they're right, but we need to make sure we don't make problems worse for people. The development of this property has so many issues that it can be postponed. We're talking about 8.9 acres in a market right now that's down 50%. We have plenty of buildable land, as you all know. Let's do this one, but let's do it right. The handout you have is what I filed with the Commission to summarize my concerns. One, if you look at the preliminary development plan that they submitted, and it is on this record, you'll see the developer proposed to put streets along both the south and eastern shared boundaries that I have with them. That is unconscionable. That would leave me with public roadways on three sides of my house. When the developer was asked by a member of the Planning Commission, why would he even consider building the streets along the property lines I share with him, he responded it would make it easier to develop my property later on. My home is not for sale. I have had no discussions with this developer about developing my property. I have no plans to develop my property. I said earlier that his plans to surround me with public streets was unconscionable. I'm also arrogant to the extreme. Second, I hold a scenic easement on this property. I would ask that you take no steps that would imply that Urban County Council has taken a position on that easement. That easement would be violated by the streets in the development plan, and my time has expired. Can I have 30 seconds? I wish we could, but I would get... If there's someone that wants to yield. Okay. All right. Thank you very, very much. Let me touch a little bit more on the easement. You have a copy of the easement in the handout. You also have a copy of the initial filing in the court case in the circuit court on the matter. I have a scenic easement along this property that says, I don't have to look at structures, equipment, or parking areas. That's a quotation. You will see it in the easement. It also requires that this developer create an evergreen barrier to prevent that view. You have pictures of the current view. You can understand why, with the previous owner I wanted, that easement. All I am asking you to do is not make a decision that will basically have Urban County Council on record in this matter as long as it's pending in Fayette Circuit Court. Third, every time this same matter has come before the Planning Commission, they have asked for buffering along my property and the adjacent properties. It's only reasonable. You can see the view that I have. That's also the view that most of the folks in this room have of this property, that we want to basically protect what we have and keep the value that we have. If you've got to grant the zoning, please insist that this developer comply with all of the ordinance provisions to make sure that the adverse effects these developments have are mitigated. Thank you. Next on the list is Ms. Reed. And Mr. Brock has yielded a minute and a half of his time. Mr. Brock, you'll be the last on the sign-up. Hi. My name is Vicki Reed, and I live at 1717 Palmyra Avenue. I'm the president of the Elkhorn Park Neighborhood Association. For those of you who may know, it's a neighborhood between Paris Pike and Russell Cave, built back in the early 50s when IBM first came to town for their management to live. When they built that street of Dover Road that runs between those, it was very rural out that way, and they made something that they shouldn't have done today, which is they made it a straight shot. It is a 25-mile-an-hour zone, and we have the police park out there all the time to try to catch the people going 80. We also have invested in signs that all the neighbors have put up and down Dover Road with 25-mile-an-hour signs in their yard to try to slow down the traffic. This is only going to exacerbate that area and that problem with cars flying down. We are the only straight cut until you get to Ironworks again. Everything else winds around, but we're a straight shot. So that's a very negative impact upon our neighborhood. Our neighborhood also deals constantly with flooding issues. Thank you, Urban County Government, for the numerous homes that you have purchased from us. They make great dog parks after you come and tear down the houses, and we all appreciate that. One of them has just been purchased. It was in the paper two weeks ago, and it's going to be torn down to match the one across the street and the other three or four on up the way by the creek. They came in several years ago and dammed it up, but it still is under there and it floats out whenever it wants to. The one other thing that I will mention, too, and this is sort of above and beyond the Neighborhood Association and more personal. Having been part of this neighborhood for so long, it is a unique piece of property there because as you go out Russell Cave and it's five lanes and all the new subdivisions are putting out there and the new library and everything else that's there, you hit the interchange bridge there, and then you come down. And it is one of the few vistas probably left in Fayette County. All around you, all you see are horses and farms and all of those trees and all of the beauty, and there are not very many areas like that. I personally would be very happy to have a country estate and live on that 8.63 acres. I hear it's no good for agriculture, which sort of surprises me because I have two horses on less than five acres. I'd be happy to double those. I'm sort of a little kind of understanding here why a rich person doesn't want to build a home next to I-75, but poor people do, I guess. So that's about all that I have, and I appreciate your time and interest. Thank you very much. Thank you, Ms. Reed. Can I talk fast? Next on the list is Catherine Perkins and then William Woodard. Is Catherine Perkins here? Mr. Brock is signed up, but he's last on the list. All right. I don't think that my introduction should take off of my time. Okay. Go right ahead. If you're going to introduce myself, I will do it as I walk up. Okay. I'm Catherine Perkins, 258 Swaggart Avenue. And I'm not going to say hi to you guys. Suburban development around Lexington and the Bluegrass region has caused much legitimate fear about the loss of unique and special things that give us the identity, the horse capital of the world. Thoroughbred industry brings in millions of dollars each year, enriching our regional economy. The recognition of our area as important to the equine industry has led the decision to have the World Equestrian Games here in 2010. The conversion of many of our agricultural lands with their distinctive horse growth enriching soils into large areas of tract housing with the attendant roads, sidewalks, malls, and commercial areas has led the World Fund Foundation to place this area in its top 100 endangered sites in the world. The process of which suburbanization of Lexington has proceeded in the past appears to not well observe the needs of the farmer, equine, and agricultural. Many of our current dense housing developments are characterized by having the yards of closely spaced houses directly adjoining the pastures of the farms with no consideration for the needs of temperamental thoroughbreds who do need a more peaceful environment than that is supplied by a noisy neighborhood with loud children, blowing car horns, and barking dogs. This closeness subtracts from the business attractiveness of the farm and also impacts the aesthetic value of the farm to things that can be measured in dollars and cents. We've seen it repeatedly in Lexington where development happens next to a horse farm, lowering its aesthetic and business value. And the farmer is confronted with holding on to his much-loved farm of lesser agricultural and equine value or selling it for a developer's higher prices, often double the value of agricultural land. It's a sad choice for the owners of farms. The domino effect of horse farms losing agricultural value and gaining development value begins when a development is built right next to it. When one looks at the development of this property, a subject property, one can see that the plan is to put as many houses on it as zoning regulations allow with no consideration of any visual or sound buffer zone between the houses and the adjoining sand and farm. I hope that this development and rezoning doesn't happen as it will lower the agricultural value of the surrounding farmland and increase the fear of the farm owners of northern Fayette County that suburban encroachment will lower the attractiveness of their farms for themselves and their businesses. I believe that Shannon Farm is currently in the process of maybe being purchased for farming and we don't want houses right next to it. Thank you, Ms. Perkins. Mr. Woodward. He's racing up to me. Hi, my name is William Woodward and I live at 282 Swaggart Avenue. I've lived in the neighborhood now for about going on 20 years, originally from Paris, Kentucky, and love this area. And I'm very connected to the north side of Lexington. I'd just really like to start out by saying, first of all, thank you for listening. I know you guys are tired. You've had a long day. But the Planning Commission, they didn't just say no. They said no with a bang. They really did. I mean, they really said this is ridiculous. Don't even come back to us until you do something different. And we're here today again. And so I just kind of want to reemphasize that. The other thing is this development is not consistent with the neighborhood. Nine acres, 50 homes. Think about it. Do you want to live there by I-75? Fifty homes on nine acres approximately. And it's not consistent with the neighborhoods that adjoin it. So I beg you, don't let this go through for that reason. Also, there are examples of similar developments very near our house. Old Paris Road subdivision is one of them. If you drive through there on any given day, there's one car in the driveway, a garage stuffed full of stuff because the houses are so small, people can't really live there with a full family. So you have one car in the driveway, two cars on the street, and it's like driving through a war zone. So this type of density that they're talking about here is definitely not consistent with what needs to happen in our area. So that's one of the other reasons. The last thing I would like to say is why do people come to Kentucky to live here? I've traveled a lot, and everywhere I go, they say because it's green and beautiful. Green and beautiful. I've been to Japan. I've been to Europe. No matter where I go, I run into people that say, Lexington, wow, that's that green place. That's that place that I drove past on I-75, and it was so beautiful. We're losing that, and we're losing it fast. So I just think we really need to step back and pay attention to how we're going to develop. If it's going to develop, I can't stop that. Let's please pay attention to how it's going to develop, and don't let people develop improperly or irresponsibly. Thank you very much. Thank you, Mr. Woodward. The next is Mr. Hagen and then Julia Martin. Forgive me if I've pronounced incorrectly. Correct. Oh, good. Thank you. My name is Christian Hagen. I live at 105 Swigert. I've lived at that property off and on for 40 years. I live there along with everyone else on the road because it's quiet, it's peaceful, tranquil. If this zoning change happens, I think it will drastically impact my road. We already have enough traffic as it is, and I think that it would really have a negative impact on everyone in the area. And I wish I could say something else, but everyone else has pretty much brought up all the points that I wanted to bring up. Please consider this seriously. Thank you. Thank you, Mr. Hagen. Ms. Martin. Julia Martin. My name is Julia Martin, and I live at 598 Radcliffe Road. I'm president of the Marlboro Radcliffe Neighborhood Association, and we are opposed to the zone change requested based on all the reasons that the Planning Commission has already given, the traffic, the water, sewage quality, environmental conditions, et cetera. We have just experienced one of the unfortunate zone changes. I was here a couple of years ago concerning a development off of Russell Cave Road, and we explained why we were opposed to the zone change and the traffic and the sewage and the water conditions that existed in the area, but somehow the nice pictures and the maps and things that the developer used convinced this body that they needed the zone change for housing. Well, as a result, we have a development over there that now is not even half full. We have more subsidized renters on the property than we do homeowners. We have sewer and water problems already. So I'm asking you to please listen. It's not that we are opposed to development and progress. It's just that we don't want to make bad situations worse. We don't want to make people who already live in the area victims of further development. So I'm asking you please to deny the zone change. Thank you, Ms. Martin. Mr. Brock. I'm Dan Brock, and I live at 102 Swaggart Avenue, which is about a mile and a half from the proposed site. First, let me thank all of you for listening to many of my neighbors and friends. They are all much better prepared than I am to give a talk as to the specifics. In fact, Mrs. Martin probably summed up very succinctly my thoughts, and so I would like to basically adopt what she said. But let me just say one thing. My family lived at the corner of Swaggart Avenue and Parris Pike. We have 20 acres in there, and we've lived there since 1941. So I have a little bit of personal observation and probably seniority on most of you as to what's happened out there. It's actually been a relatively stable, undeveloped area. And, of course, we like that. I'm just waiting until the time my 20 acres comes up and everybody goes crazy. I don't plan on developing it. I've got horses, donkeys, chickens, ducks, dogs, cats, and I like the rural flavor. Anytime you increase the density, we get more garbage and trash and beer bottles around our house. But that's personal. But all these other people are really more affected and deserve your consideration and note me as being opposed. Thank you, Mr. Brock. Okay. Our procedure now calls for the staff to make any additional comments. Mr. Salih. And then the petitioner, Mr. Woodall, you'll have then the opportunity for rebuttal evidence. Thank you, Mr. Vice Mayor. Yes, sir. I have two rebuttal points and then one other bit of information for the council. Just a couple of comments about earlier statements. One, I think by Mr. Woodall, that the Planning Commission wanted to deprive an economic use of the applicant. I'm not sure that that's true in this case. I think one would have to look no further than the four recommendations that have come to this body from the Planning Commission on the rezoning, twice for approval and twice for disapproval. I think, secondly, the property not being suited for an agricultural use. I did not mention it when I was showing you the photographs for the property, but the prior use that was mentioned was plant nursery. There was some evidence of that in the photographs. That was a use approved by the Board of Adjustment a few years ago for the property since the time that the property has been included in the urban service area. And then finally, I wanted to remind the council that development plans are required for the entirety of the expansion area. That is a provision of the zoning ordinance that requires a development plan for all of the 5,400 acres expanded in 1996. Thank you. Thank you, Mr. Salih. Yes, sir. That's fine. That's fine. All right. Thank you. Yes, sir. Mr. Archam. Well, is the information new information, or is it information that we've already heard? Would it be? All right. Then, that's fine. If you'll just come forward and just give us your name, and we've got three minutes. Mr. Brock, would you please give us your name, and then I'll need to swear you in. I was standing when you all did that, but I'll do it again. Oh, you were? You standed? Well, we missed that. Then, if you've already done it, everything's fine. Thank you, sir. My name is Gary Criswell. I live at 1647 Duntreeth Drive, which is in the 11th District. I don't live anywhere near this area you're discussing. I just received the information about it just yesterday afternoon via e-mail from the Fayette Alliance, and I am a member of the Fayette Alliance. Primarily, one of my biggest concerns has been, and by the way, I love Kentucky. I came here. I married a Kentucky girl right after I got out of the military back in 1957. And now, I'm wondering where, what is, I love this place, and what's happening to it is deteriorating. On August the 3rd, there was a headline in the Herald-Leader, Air Quality Warning is Issued for Lexington, and it talks about the ozone issues and the problems there. I can relate to those things because when I was in high school and in college, I learned about photosynthesis, and I responded to the Herald-Leader's editor, and I got published even though it exceeded their usual 250-word limit. And the high ozone concentrations result from poor plant growth and less oxygen, and that's what we all need desperately. I have lived in farms, and I had to sell my farms because of encroachments. I think we need trees. Where I live was the old Duntree Farm back in the 40s today, and I still, in that neighborhood, we still have trees because back in those days, apparently when the developers developed the neighborhoods, they didn't come in with their bulldozers and chop them all down before they built their houses. Some of my trees on my lot are over nearly 200 years old, and I treasure them. Thank you very much. Thank you, Mr. Criswell. Mr. Woodall. Mr. Vice Mayor, thank you. I certainly understand and appreciate the comments made by those in the audience, and certainly that is their right. Although, I think you would probably expect I would disagree. We're right back to the same place we were when we started. Just about everybody I heard speak, ladies and gentlemen, said the same thing. Well, I know what the comp plan says about the zoning, and if it has to be zoned, then so be it, but I really have questions about the sewers and the roads and things like that. Once again, these are all development plan issues. The reason we got to this point was from the Planning Commission, and once again, it was 10 to 1, but three of those votes were abstentions that were counted with the seven that were against. Okay, so it wasn't as if all 10 of them voted against us. But the fact of the matter is the conditions that Mr. Salih mentioned were all attached to the zoning as opposed to the development plan, and they all make this property undeveloped, just not feasible, not economical, essentially end up losing half the lots. It simply doesn't work. It's not just. It's arbitrary, and it's capricious, and here we are, and I can't even believe I'm going to do this. But every once in a while, I'll read the Herald-Leader, too, and once in a blue moon, I'll even look at the editorial page, and I happened to look at it about a week ago, and the editor or editorial page editor in her or she or his or whatever's infinite wisdom actually declared that there was land left in the urban services area within that boundary, and we ought to develop that before we went anywhere else. Well, finally, they said something that made sense, and I suppose that's my parting comment. You just can't have it both ways. We're either going to expand out or we're going to develop what we have, and frankly, I thought that's what we decided in this last comp plan process, and in the process before that, we decided that this particular property would be zoned EAR2, and that's all we're here for tonight is to zone it. The development plan issues are to be decided over the course of a long time at another level. Thank you. You get to close. We'll have a closing, correct, Mayor? Yes, sir. First closing, are there any summation comments by those who oppose the rezoning? Ms. Van Ogle, and then the closing comments by the applicant. Thank you, Vice Mayor. John's absolutely right. We do have to grow. We cannot have it both ways, but the issue here is not growth or no growth. The question is how do we grow, and do we do it in a responsible way? The preliminary development plan is required by the EAMP and under KRS-100. That preliminary development plan, for all of the reasons that I and others have stated in the audience, is inadequate for several reasons, from the infrastructure to the design to the sustainability of the development itself. And, in fact, it also, too, inadequately protects several trees that is required under the expansion area master plan. So John is right. We have to grow. The Fayette Alliance is a pro-growth organization, but the question is how do we do it, and can we do it in a way that benefits everybody, the rural and the urban communities? Clearly, that preliminary development plan is inadequate, and that is why the Planning Commission came down with the recommendation that they did. And that's why the Fayette Alliance respectfully requests that you uphold their decision. Thank you. I would just like to challenge the statement that sewage and water is the problem of the developers. Otherwise, the City of Lexington would not be in the position it's in right now. But the City of Lexington does have responsibility for the quality of water and sewer. Thank you. Thank you, Ms. Martin. Mr. Woodall, you're going to do the closing summation comments. Mr. Hacker? Okay. Mr. Hacker, you look to about five minutes. That's great. That's great. I was doing less than five. I wasn't planning on saying anything at all, but I wasn't planning on my reputation being slandered. It's been suggested that I'm a developer that can't be trusted to develop land, that I seek to avoid all the regulations and am not a responsible developer. Well, I've only been doing this for 30 years in Fayette County. And I defy anyone to name a subdivision on which I've put my hand that hasn't been responsibly developed. Since some of you don't know me, I'll just give you a brief list. Lansdowne-Merrick, The Woods, Crumlin Hill, Belleau Wood, Meadow Creek, Andover Hill, Glen Eagles, Blackford Farm, and the one that was mentioned tonight, Old Paris Place, which, by the way, sold out in less than six months. So it must be somebody likes it there. It must be some people that are proud to have a house there. So that's the first thing I wanted to say. And secondly, and next to last, is every time I'm down here, I hear somebody stand up and say how important the horse industry is to the economic life of Fayette County. And it is. And I don't deny that. And I've got horses. I mean, it is our signature industry. But let me remind you of something that you're going to learn about pretty quick because of the downturn. Except for the University of Kentucky, the urban county government, and the Fayette County schools, the building and development industry employs more people in Fayette County than any other. We create more tax money for Fayette County than any other industry. We feed more families than any other industry. So while the thoroughbred industry is very important here, I don't think you can slight the building industry. And I think when you see your tax returns coming in for the next year or two, you're going to understand just how important we are. With that, I'll make two short statements then quit. I sure am glad to hear that the Lexington Alliance is a pro-growth group. I'm tickled to death and surprised. And secondly, we've heard from a number of people in objection to this that live on Swigert Avenue. Swigert Avenue is at least a mile and a half from this property. No road that we propose to connect to this property connects to Swigert Avenue. For the life of me, I can't figure out what their stake is. Thank you so much. Thank you, Mr. Hacker. All right. The procedure now calls for us to allow council members to ask questions of the staff, the petitioner, and those who oppose the rezoning. So the floor is open to council members. I'll just, I've got, have you all logged in already? Am I seeing the right screen here? Okay. Council members Stennett first, then James, then Gordon, and McCord, and then Blues. I'm sorry. Thank you, Vice Mayor. This is definitely a unique zone change, the first one of this type since I've been on this council. There's a lot of questions. And I'll start with Mr. Salih. First of all, the current zone is AU. How long has it been the AU zone? Do you know? The AU zone was applied to land in 1969 with a comprehensive new atlas for the entire county. Okay. And then the area that's around this AU zone, what are those zones? The property to the east is R1D. That's a single family residential zone. The zone immediately to the south is R2. That is a two family residential zone that allows single family and duplex uses. Mr. Birch's property is AU. The remaining agricultural property to the north is AR, Agricultural Rural. There is economic development zoning, caddy corner across Russell Cave Road, and a very small sliver of AR, pardon me, AU zoning directly across Russell Cave from this property as well. Is this property inside the urban service boundary? Absolutely, yes, sir. I'm sorry, I couldn't hear you. It is, yes. Okay. Then the EAR zone, EAR2 actually, how does that differ from the R1D and the R2? The expansion area that was approved in 1996 was approved under a new chapter of the zoning ordinance that required that 5,400 acre area to have new zoning designations applied to them. And the expansion area residential zones, EAR1, 2, and 3, were all created in 1996 to implement the expansionary master plan. So I assume, well, let me ask you this. Is the EAR2 more dense or less dense than the current R1D zoning and the R2? The EAR2 allows a range of density. At the low end, near three units an acre, it's probably less dense than R1D. At the upper end, closer to six units, it's probably slightly greater than R1D. It's probably right in the middle is about the typical R1D density. Okay. The EAR2, you mentioned earlier, I know it was in the minutes from the planning commission hearing. The development plan is to be submitted with this zone change? It is required by the zoning ordinance, yes, sir. Okay. So is this the submitted plan? It is, yes, sir. We always present that as an exhibit at the council hearing since the development plan decision rests with the planning commission. So the ultimate development plan in the number of homes and the sewers, et cetera, as has been mentioned earlier, does lie in with the planning commission for a final decision, not tonight, not this council? Well, the council decision, obviously, is the rezoning. And then pending that decision, a development plan process would ensue before any development of the property would begin. Right. I guess my point is that we don't have a say tonight over what that development plan looks like, what it turns out. Who is watching out for the people? Let me ask you that. Who is watching out if we approve this zone change tonight? Who's going to say the sewer system's at capacity, can't handle anymore? Who's going to say that there's water runoff coming onto homes? Who's going to look at those things? Generally, that's reviewed by a technical committee that advises the planning commission on those technical kind of matters for any development plan or subdivision plan. Thank you, Mr. Salley. I appreciate your comments. Mr. Whittall, there's a couple of questions I had for you. You objected earlier to the submission of this development plan. Do you have a development plan that you want to submit tonight, or do you still disagree with staff? I've made my objection for the record, and I don't have, Councilman, a development plan to submit. I see your point, and I understand it. What was submitted actually, I think, would even be reflected in the minutes by the staff as being more detailed as a preliminary development plan than what they're typically used to getting. This one actually had a lot laid out on it in the whole situation. Frankly, just to be candid with you, what happened, there was some scuttlebutt about the developer not cooperating and all that stuff. I keep my mouth shut, but since that was said, that comes back on me. There were meetings held with staff when I got involved in this, and typically what you're doing in that regard is talking about the development plan, talking about the conditions and so forth that the staff would like to impose on the property, what problems they see with the property. I mean, obviously, Bill and other folks that work with him are very qualified. They do this every day, and they see the county in large view as opposed to what my view may be that day as in Tunnel Vision. What happened, though, where the breakdown was is the conditions that were sought to be imposed were imposed upon the zoning, and they made the property, just frankly, that couldn't be developed, and it was, in our view, just simply a way to kill it. All those issues should have been attached to that particular development plan solely so that they could be ironed out in that process, which is one of compromise, and it is very technical. Essentially, you go to a room over at planning. These meetings are held once or twice a month with all the various folks in city government, and you go over the various aspects of the plan, the sewers, fires there, police is there. All those issues are discussed, and it takes a while, it takes a long while, Mr. Hack can tell you better than I, to iron out the wrinkles, and that's where this one will be headed if this property is zoned. It's got a long way to go, and it's just that simple. In the EAR2 zone, I assume you all chose that because of the density that it allows? Well, because the comp plan called for this property to be zoned that way. That's what we are bound by, and it called for a density of between three and six acres, so even though we could have done three and six units, even though we could have done more units, we actually settled somewhere in the middle of that. Frankly, once you applied the proposed conditions, it puts you down actually almost, in our view, below the minimum required once the conditions were applied to the property. So, technically, there is no development plan tonight? There is not a development plan tonight. That is not before you procedurally. This is purely on whether the property should be zoned, the EAR2, in accordance with the comp plan. Okay. And then we'll have to go back on the development plan. Thank you, sir. Then, Mr. Selley, I guess I'm a little confused. How can staff approve this without a zone development plan? How can staff recommend approval without this plan if there's not one submitted tonight? Well, the staff always makes different recommendations on the zoning and on the development plan, and the development plan is reviewed along a similar timeline as the zone change, but that review is done as if the zoning is already granted, and usually when a development plan is approved at a planning commission zoning hearing, the first condition is that the rezoning be accomplished or the commission's approval is null and void. In this case, because of several technical issues, the staff recommended approval of the rezoning and disapproval of this development plan at the planning commission public hearing. The reason for that, the staff has recommended approval of the rezoning of this property every time in the past. And were there any discussions on our last comprehensive plan review about this property in this area and what it should be designated as, any changes or anything? Mr. Stanton, I'm not aware of any. Particularly on this side of Russell Cave Road, there may have been some discussions for the property on the west side. Okay, so the EAR is the recommended. Do you agree with that? Yes, sir. EAR 2 is the recommended land use. Okay, I'll rest for now. Thank you, Vice Mayor. Okay. Next question by Councilmember James. But just before Councilmember James, before you ask your questions, let me just review the protocol, the procedure here. Councilmembers will be asking questions of the staff, the petitioner, and the opponents. So in this situation, we will be asking the questions. So help me by avoiding raising your hands. In this kind of environment, in this kind of situation, that's not the protocol. So I wanted to let you all know about that, because I understand, we all understand that passions run high in conditions like this. You're going to yield? Okay, thank you. Councilmember Gordon. Thank you, Vice Mayor. Thank you all for being here, and I appreciate all the different viewpoints. I have a few questions, and some of them are things that have been entered into the record by folks in the audience, but I want to ask some of them of law and planning. Now, Mr. Birch gave us a document about the scenic easement, and I guess, Rochelle, I want to ask you, do scenic easements usually run in perpetuity with the property? That is a private easement entered into between the two property owners. In essence, they can reach any agreement they choose to reach, and that will be reduced to the writing. So there is no standard. I mean, it's like any other private contract or agreement. It could run with the land pretty much in perpetuity. It could have an ending date. It could have conditions. We have no way of knowing, and basically for that reason, the government usually does not in any way get involved in either enforcing or not enforcing any kind of a private agreement like that. So it's according to what the agreement is. Is it like a deed restriction kind of in that the two parties agree, but the government never gets? The government does not get involved. It is a private agreement between two property owners in this case. I guess, Mr. Salih, several people brought up sewage, and you commented that in the process, and it's this document that we get for every zone change, that the technical committee checks off on sanitary sewers. And I guess I'm just going to tell you what the question I asked about a year or a year and a half ago in sanitary sewer oversight was, when the technical committee checks that off, do they check off capacity? And the answer was no. They check whether there's a pipe or not in place. So I guess my question is, to you, sanitary sewers are checked off to be constructed, but that doesn't mean there's capacity. That's right. That's right. I have a major problem with that. Today is the day when we all should have a major problem with that. Having signed our consent decree, and that is one of the things we're trying to fix is new development that impacts neighborhoods that currently have flooding and sanitary sewer problems. And I just wanted to point out to everyone that we do not check off whether there's capacity to handle the sewage or not. We only check off if there's a system there. The other question I have is about stormwater, and I don't know if you can answer that. Ms. Vicki Reed said that the LFUCG has purchased several houses because of flooding issues. And this is in the neighborhood that someplace in this document it said it's downhill from the proposed development. Do you know if that – have you any documentation on the purchase of homes that have flooded, or do you know anything about that? I don't, Ms. Gordon. I know that the city did purchase some homes in this general area. I believe it's to the south and east of this location, but I could not point at the map to you and show you where those are. Do you – is Ms. Reed still here? Do you know – since you're the one who made this statement, can you show us on the map where the houses have been purchased and torn down? Please come to the microphone. And in this area, it is further – we're not the same neighborhood for the ones that said we were straight downhill, but it is still all of the same, you know, creeks and so forth that run through there. One of them was torn down a few years ago on Granchester, and there was one on – it was just purchased. It was in Sunday before last paper, where the other one was on Granchester. The lady just moved out. The city people are in the process of getting ready to tear it down. Are they on the map? Do you know if they're on the map? I can't see the map from here. Okay, Council Member Stennett says they are on the map. Oh, that's right, yes. You worked with him about some of the issues with some of the houses. And then there was a whole bank of houses over that were on what was South Ridge and is now Dreamland. And I think at least – I'm not sure if they would know three or four or five houses were taken out of that swath. Okay, thank you very much. Now, Mr. Selle, can you, on the front page of the – change packet, the Planning Commission's findings of fact. Well, number two, I'm really interested in number two. The proposed rezoning is inappropriate this time due to the applicants inadequate treatment of concerns related to environmentally sensitive areas, stormwater runoff, water quality, and traffic. Do those relate to, what are those related to? Are they related to the development plan or to the zone change or since they're findings of fact? They are. They were all issues that were raised and discussed at the Planning Commission's public hearing and I think the operative phrase in there is inappropriate at this time. I think that was the main point of the Commission's finding there. Those were all issues raised at the hearing. The development plan was somewhat silent on stormwater, say, improvements, things of that nature as well. And so that was what they were asking for? Yes. Okay. Do you know on number four where it says the rezoning application does not adhere to a number of other EAMP recommendations in the expansion area, can you elaborate any more on that? I can. There is a provision in the expansion area that calls for the protection of woodland areas and those were largely mapped as part of the expansion area master plan process and it was felt that the development plan submitted did not identify those woodland areas on the subject property. Okay. Thank you very much. Thank you, Vice Mayor. Mr. McCord. Thank you, Vice Mayor. My question to you, Bill, is or questions are, this was heard on November 29th, is that correct? Yes, sir. There's some discussion in the notes here that go to the construction of the pump station and I think Mr. Holmes had asked specifically when this will be constructed and Mr. Newman had answered that the Division of Engineering staff is unsure at this time. He said that he had received information that the construction of the pump station would be completed as a capital improvement project and would be funded by the city, but no information has been provided as to the timing of this project. Has anything changed since November 29th along those lines as far as the pump station goes? Is there any information as to the completion of that? If it has, I'm not aware of it. Okay. So, as it goes down through here, it talks about the infrastructure being inadequate to support this development at this time and then I think you had mentioned as well as some others that it could be upgraded in the future, certainly. I know this pump station certainly would have a very positive effect on the flooding situation, but again, it seems like it's sort of in a black hole here and who knows when it'll get done and so forth. Turning to another question, I guess, on the map, can you show me, Bill, how you get into this neighborhood? Obviously, you can't get to it straight off of Russell Cave. How does somebody driving that lives potentially in one of these 47 homes, how would they get there? Very good question. Let me move this exhibit. I think I can answer your question. From the subject property, it does have frontage on Russell Cave, but as mentioned, there is a grade issue there that may or may not allow access. The existing access is very poor at that location, especially if the property were to intensify in terms of density. There is a stub street here, Eden Road, that serves Pearson Drive, which does extend and tees into Faulkner Avenue, which then one could get back to Russell Cave or head down Swigert at that location. Also, it ties into Parkside Drive at this location, which does extend all the way to Parris Pike. Someone could turn on 2768 either direction, traversing to the southeast of this location as well. Basically, there's just no easy way in there right now, and it's questionable whether you'll have a direct access off of Russell Cave because of the grade, and it's not the best place to put it right there. Is that what you're saying? Right. The frontage is very limited in terms of length to begin with, and then you add the topography and the bridge, and it looks to be a very difficult access location. So, not only sewers and that type of thing, but just roads are, you know, it's just a very difficult infrastructure issue at this point in time. Not to say that it can't be improved later on, but at this point in time, this given time, nothing's really changed since November 29th when we were talking, when you all were talking about it. As far as infrastructure, I think that's right. Okay, thank you. That was my questions. Thank you, Vice Mayor. Mr. Myers, thank you, Vice Mayor. I guess I want to start with Mr. Birch. If I could ask you, could you come to the microphone, please? The document that you provided for us is not signed or notarized by anybody, so I just wanted to ask for the record that this is a legal document that has been notarized and signed. It is, and if I hadn't been doing some traveling, I would have done a substitution that was late last night, Kinko's run. Okay, on page two of three in here, under number four, it says the grantor shall take no action to open a retail garden center on the property. That speaks to the subject property here, right? That's correct. At the time the easement was entered, the subject property had essentially a residential use, despite the zoning, and the buyer at the time, Larry Johnson, wanted to both live there and grow plants for his landscape business. I had some concerns, obviously, that you might have a retail center there with traffic and noise and PA systems and lights, and so the easement was written both with the uses he said he planned to use, but also anticipated some of those kinds of problems, too. Okay, I think that's all I have for you. I just wanted to clear that up because I think I'd heard staff say that it was possible to put a nursery or a garden, a retail garden spot on that property. It had been approved previously by the Board of Adjustment as a conditional use. Okay. Special use. Okay, thank you. Ms. Nigel? Actually, let me save you for a minute, okay? Okay, sure. Thank you. I think, Mr. Selley, in the document that you gave us that has the minutes from the Planning Commission meeting, there are a couple issues in here I want to learn or understand a little better. On page 8, fourth paragraph down, where it starts out, Mr. Martin said that when this plan was originally brought before the subdivision committee, eight discussion items, which are listed on the agenda, arose from their review. In the months since the committee's initial review of the plan, no new plans have been submitted to attempt to address those discussion items. The staff, therefore, has revised their recommendation from postponement, which the subdivision committee also recommended, to disapproval for the following reasons. And then it goes down and lists those reasons. Eventually, what I want to get to is, if you go down further, at the bottom of this page, it says, Mr. Holmes asked, the last paragraph on the page, Mr. Holmes asked if it was appropriate to recommend the approval of a zone change if the infrastructure is inadequate to support the development. Ms. Wade, which is our attorney, right? Ms. Wade is a member of the planning staff. Okay, okay. Ms. Wade stated the staff recommendation of approval was made with the knowledge that the infrastructure could be upgraded in the future. Ms. Waddell, I'm sorry, that's the attorney, said that there are two different sets of standards to be considered. In looking at a zone change request, the statutory requirements are that the request be in agreement with the comprehensive plan, appropriate or inappropriate, and if there have been any changes that justify the rezoning outside the limits of the plan. So, do I understand this correctly that what Ms. Waddell is saying is that you can approve the zone change irrespective of what the development plan shows or suggests? I read the same thing into her comments that day. Okay, on the next page, it says, that paragraph goes on to say, when considering the development plan, the Commission is required to consider problems with compliance with either the subdivision regulations or the zoning ordinance with regard to public health, safety, and welfare issues. Ms. Waddell stated that while the staff may recommend approval of the zoning because of the statutory standard, there may be other issues to consider on the zoning development plan. And then Ms. Goodfrey asked if it would be feasible to approve a rezoning request without an approvable development plan since the application is required to have the plan approved in order for the zone change to go forward. Ms. Waddell answered that in this situation, in this, that it is the position of the staff that this is a case in which the Commission could approve the zone change request given the situations the staff expressed. This is not always the case, but it is true in this instance. My question is that if this body approves the zone change tonight, is there a way that we can ensure that the development plan, whenever they come up with one, and it comes back through the Planning Commission, will meet the requirements with respect to the environmental issues, stormwater, sanitary sewer, and the substantial woodlands concerns? Well, I think the planning staff probably would not favor a development plan that wouldn't. I think that would be part of our recommendation on reviewing any development plan that would go back to the Planning Commission. Okay, I understand that and that makes sense, but what I'm really getting at is, are there teeth in what the Planning Commission has authority over to ensure that that development plan doesn't go forward if it does not meet these conditions? Knowing the Planning Commission, having worked with them for many years, I don't think they will approve a development plan that doesn't meet those standards. Okay, so that safeguard is there? Yes, sir. Okay, thank you. Ms. Nigel, in your letter from the FAYETA Alliance on page two, number one, it says the applicant's development plan inadequately addresses the environmental sensitivity of the property and the extensive stormwater and sanitary sewer problems of the area. Number three speaks to the development plan as not sustainable in design and calls for the removal of substantial woodlands to construct 47 single-family housing units on roughly eight acres of land. Such a layout undermines the environmental requirements of the expansion area master plan, the scenic character of Russell Cave Road, and the quality of life experienced in the adjacent Shadden Park, Foxboro neighborhoods. In your remarks, I think you said, and correct me if I'm incorrect, that you look forward to working with the FAYETA Alliance, look forward to working with the developer to pull their development plan in a line to fix these problems. Yes. How can you help do that? Well, we would be more than happy to meet with John and his clients to discuss some of our concerns so that we could come forward to this body or to the Planning Commission and support it, you know. And as I've said, from the inception of our organization and in this particular zone change, that we are a pro-growth organization, but the question is how do we grow and how can we do it responsibly? Clearly, EAR2 zoning is recommended by the comprehensive plan and that's why we did not object to the zoning before the Planning Commission and that's why, although the EAR2 zoning is required at this particular time, we feel that we cannot support it because of the preliminary development plans issues. Once those issues are resolved to the satisfaction of both the developer and the adjacent neighborhoods and so forth and so on, then we feel that we can support EAR2 because we are supportive of the comprehensive plan and supportive of that document and supportive of the urban service boundary concept. So that's really where we are coming from in that particular statement and in those statements that you mentioned. Okay, thank you and I might need you one more second. Mr. Talley, when it goes back to the expansion area master plan and the sustainable woodlands, can you help me understand, I don't want to go back to that development plan, but what needs to happen in the development plan to meet the needs of the, I think what we don't have in front of us is what the expansion area master plan says with respect to that woodland area. I think the plan was more general to existing woodlands in the entirety of the expansion area and that plan called for those areas to be protected more so than had been done in the old urban service area prior to that. So there was a conscious decision made when the zoning ordinances were written a few months after the adoption of that plan to provide provisions in the zoning ordinance so that that would happen. Okay, in order for that to happen and be compliant, does that mean that in this case none of those woodlands can be touched or part of it can be, but there's a certain percentage of it that needs to stay intact or how does that work? There are no real hard figures, but you know sometimes the best thing for a woodland area is some selective thinning and so that certainly has been contemplated as other areas of the expansion area have developed and I think it's more those provisions that are looked at I know closely by the urban forester in reviewing development proposals and doing site visits and so forth. It's hard to put a hard percentage on that. We have another section of the ordinance that has tree canopy information and requirements that have minimum percentages, but this section of the ordinance and the expansionary master plan go above those minimums. Okay, what would be the process for addressing this aspect of a future development plan if the zone change were to go through tonight? I think ordinarily the development plan would have to demonstrate that it was meeting the ordinance requirements and of course that would be reviewed by the Planning Commission and its subcommittees. But before you get to that point in the development plan, how does a developer understand from the planning staff and the Planning Commission what it would take to meet that so that their development plan does do exactly that? Usually when you talk to, excuse me, I interrupted, but when you talked about, for example, maybe the thinning of that woodland area, how do they get information or feedback from the city that would advise them as to whether or not there could be some thinning in this situation or how they could address that so that it's going to be what you're looking for as a Planning Commission? Most of the time that is done by on-site consultation with the urban forester. Okay. On specific trees proposed to remain and to be removed. Okay. Thank you. I guess I have a question for both Mr. Salley and Ms. Nigel. At the end of the day, how are you going to be able to be comfortable with what the development plan is going to look like in the future if the zone change is passed today? Sometimes in zone changes we have, the petitioner will agree to certain restrictions or, I'm not sure if that's the exact terminology to use, but they would agree to certain terms if the zone change goes through. Is that what you're looking for or do you think that it's feasible that these issues can be worked out without doing that? I'm not sure the staff has seen yet a development plan that would meet that, but certainly there are conceivable development plans that could meet all the ordinance requirements. Okay. Okay. I'm sorry. I'm sorry. And I was just going to add to that. You know, the question of infrastructure is a major concern. As Mrs. Gorton said earlier, you know, today we did talk about the EPA consent decree, and it's clear that at this time the infrastructure in this particular area is lacking. And so the Fayette Alliance feels that we have to have adequate infrastructure in place before we exacerbate any existing condition. And so that would be, you know, a primary concern of our organization. And also the protection of established trees and the layout of the, you know, development plan so that it can, you know, be in compliance with the expansionary master plan. Okay. On that note, when you talked about the infrastructure, when she talked about infrastructure, is that something that the planning, is that something that we could put in here today? Or let me back up one step. Is that something that the Planning Commission can make sure that that pump station that Council and Senate talked about earlier is in place prior to the developer being able to move forward with any kind of construction? Is that something that... I'm not sure that the Commission could mandate that. I think what would happen would be they would ask for recommendations from the Division of Engineering and possibly the Division of Sanitary Sewers to see whether or not that was necessary prior to development of the property. And if they determine that it is necessary? Then the Commission could potentially withhold approval of any development of the property until there was adequate infrastructure to handle the sewage. Okay. I believe they have that power under the subdivision regulations. Okay. Thank you. Mr. Whittle. You're like chomping at the bit. Come on, let me end this thing. Okay. Go ahead. On page 8, I read that earlier, Mr. Martin's questions regarding the subcommittee's 8 discussion items. Let me make sure I'm... you said page 8? Yes, sir. It starts under note. Mr. Ayton arrived at this time. Beginning the second paragraph on page 8. In this document here. It's the exact same thing because I've... It's going to be the... Here we go now. Okay. When you spoke earlier about sort of, I think you kind of described a breakdown in the discussions where the compromises are trying to be reached on the development plan. Correct me if I'm wrong, but I... That's correct. Okay. Is this what you were referring to? Because it talks about the subcommittee... the subdivision committee had 8 discussion items, which are listed in the agenda, arose from their review. In the months since the committee's initial review of the plan, no new plans have been submitted to attempt to address the discussion items. The staff, therefore, has revised their recommendation from postponement, which the subdivision committee also recommended, to disapproval for the following reasons. So, is this sort of what you described? Is that this... Exactly. ...the result of that? And to expound, Councilman, in the course of a development plan review, there will be a lot of... it just depends on, from one case to the next, how many issues come up, but technical issues on... that affect various pieces of property that have to be ironed out. The bottom line, however, with this particular property, is there were three conditions that were attached to the zoning that made everything else irrelevant. Number one, the staff said, thou shalt have a 50-foot setback from the property line with the Eden Court neighborhood, where that backs up over there. Thou shalt also have a landscape buffer along that boundary line. And also mandated was a prohibition of any multifamily use within 300 feet of the boundary line. Well, when you attach those to the zoning of the property, all the other issues regarding woodlands and so forth really, for our purposes, become irrelevant. Because what you've done is you've made the property infeasible to develop. If you set back 50 feet from that boundary line, what we presented to the Planning Commission is you effectively wipe out somewhere around 25 to 26 of the lots. Okay. As far as the tree protection is concerned, you brought that up, and I think what you're looking for is what's the standard. And what the ordinance says, as applied to the expansion area, is that the requirement is to protect and preserve all mature trees to the maximum extent practicable. Individual trees may be removed only as necessary to carry out economically feasible development. So, how the process works is the urban forester comes to the property and identifies certain trees that are deemed to be warranted saving, older, more mature trees. And in the process, the engineer will lay out the subdivision. And frankly, the way the process works is it will become apparent that there are certain trees that will have to be removed. And it's not that they are lost. You have to replant. And there's a formula for doing all that. And nobody has a problem with that. And those are all issues we would have worked out. But I'm just going to tell you how it was. I mean, when we met with staff, those conditions were not going away. Frankly, they were part of the larger zone change on this other property. All right? They may have made sense then, at that point, because you have compromise and so forth that goes on. But when applied to an 8.96 acre track, they don't make any sense. Okay? And it completely rear-ends the process. It just doesn't work. Okay. I think you really answered the question in that you talked about the three conditions that were placed on the property. Because before you said that, earlier when you spoke, I was on the assumption that it was the woodlands and some of these other things that we're talking about here tonight that would have made the property undevelopable. But what you're saying is it's those other three conditions that we're not even discussing here tonight that is what made it undevelopable. Exactly. Exactly. Okay. So my opinion. Okay. So my question to you is going to be is do you believe that the subject property can be developed in such a way that the environmental concerns with the storm water and the sanitary sewer and the flooding and those things can be addressed along with the sustainable woodlands can be addressed in a development plan that's still feasible for your client? I believe that a hundred percent. Just having been a continual participant in the process, in the planning process, technical review process, I know for a fact all of these issues that we're talking about, sewer capacity, we wouldn't be trying to develop the property if we didn't think we had the adequate capacity there to do it. But none of these, none of these things are just going to be swept under the rug. Mr. Hacker and his partner will not be able to do anything with this property until they're all worked out. Period. That's just the way it is. Mr. Salley is absolutely correct about that. I guess I have one more question and are there any conditions that you would be willing to agree to here tonight that would ensure that the things that are talked about tonight with respect to the environmental issues and those tree issues will be resolved? And my client's whispering in my ear but I agree. We don't have enough information as we stand here today to enter into any type of an agreement on particular issues that would have to do with sewage or infrastructure. I know that we don't plan on coming out onto Russell Cave Road right now, but as I said, that process takes place over time. There's compromise, there's a lot of people that have to weigh in on it, and a lot of things will change. But make no mistake, until everybody's heard and everybody's satisfied, the property won't be developed. And I can assure you there's teeth. It's a tough place to do business. And Councilman Myers, let my, if I could, let my client further answer the question. We made a decision when we brought this to you based on the process that we go through. Now we could have brought our engineer down here, we could have brought our land planner down here, we could have brought our stormwater management guy down here, and we could have inundated you in pictures and plans, and we could have brought our arborist down here, and we could have inundated you in all manner of information about these specific issues. And we'd have been here till somewhere around midnight. And they still wouldn't have any bearing on the zoning in question. We elected not to burden you all with that because that is the job of the Planning Commission. And let me make one thing perfectly clear, in case y'all don't know it, the Planning Commission is a very radical and environmental regulatory group. Nothing, they're more radical than the comp plan, they're more radical than anybody, as you can see by the findings that they wrote on this case. We cannot turn the first spade until we have approval of a development plan for the Planning Commission. And that is their job. And if y'all don't have confidence in them to do their job, you ought to replace them. Item number two is, if we cannot get sanitary sewers for this property for whatever reason, whether we can't get to them, whether there's not capacity, whatever, we can't develop the property. I've been doing this for 30 years. I've never yet been able to develop a piece of property that didn't have sewers. If we can't deal with the storm sewer problem and the stormwater management problem here to satisfy the Division of Engineering and y'all's Division of Environmental Protection, we won't get to develop the property. If we can't make some kind of accommodation on the trees, which by the way are my trees, I own them. If we can't make some kind of accommodation with the Planning Commission relative to that tree stand, we won't get to develop. What we are asking you all tonight is to put us in a position to go back to the Planning Commission and do all these things that we're required to do. And before I would, before I'd be interested in taking any conditions tonight by agreement, if I'd have thought that would have come up, we'd have brought all our experts and given you all all the information. Because all y'all have heard tonight is hearsay. There hadn't been one piece of evidence submitted that suggests that the infrastructure's inadequate. There's anecdote and there's hearsay and there's this, that, and the other. We've got testimony from the Division of Engineering less than a year ago that it is. But that's, if it's not, please understand me. If there isn't sufficient infrastructure, we cannot develop. We want to get the land zoned and have the opportunity to work those things out with the Planning Commission. Thank you. Thank you. Thank you. Okay. The screens are not identifying all the speakers. The next speaker, the next council member before Mr. Lane that had asked to speak was Mr. Blues, then Mr. Lane, then back to Council Member James, then Crosby, then Beard. Thank you, Vice Mayor. First of all, just to follow up, Council Member Gorton, on your question about what, about some of the residences that have to have been removed. I think the most, one of the most recent ones was on Shandon Drive, close to Pearson, which is to the east and, and, and the, just a bit, not really very much south of this, of this development. The Urban County Government is now preparing to apply for a major grant to remove or to purchase and, and demolish several houses in that, in that area where there is severe flooding. I have a question for, for Mr. Woodall. Mr. Woodall, going through the record from the Planning Commission's staff reports and so forth, it's, it's extremely clear that, you know, that we have many references to, to, to flood hazards, to flooding that we know occurs. Mr. Atcher's pictures that he showed earlier, I think several of us can verify by having, having seen the flooding, having talked to people who are literally trapped in their houses because their basements flood whenever there's a substantial rain. They can't sell them. They're at the mercy of, of a process which, as you know, we're trying to, to speed up by dealing with our infrastructure problems. Having said that, I go back or to the, toward the end of the record, on page 12, and in response to a statement by Mr. Pan on Planning Commission, you answered, Mr. Woodall, that the petitioner does not agree that the infrastructure problems are that serious. And further on, Mr. Cayley of EA Partners said that he was told at one time, speaking of anecdotes, that the sanitary sewer issues in the area were not so bad that they would require this, the construction of the new pump station immediately. We know that there is significant flooding. We know that there is a sewer system that is, is maxed out, and that indeed, as it says in the record, there is currently a moratorium on connections to existing sewer and pump stations in the adjoining Shandon Park and Foxboro Manor subdivisions. My question is, what's the relationship here between the, the actual record of the flood dangers and indeed of the flood, the alluvial floodplain at one end of the, of the property, and your clients sense that the infrastructure problems, the flooding dangers are not really that, that serious. I think this, because this bears heavily on one of the findings of the Planning Commission that, referring to goal number three of the Comprehensive Plan, which is to promote land uses which are sensitive to the natural unbuilt environments. Councilman Blues, in response to your question, when Mr. Penn made that statement to me, what it says is he asked what plans the petitioner had to mitigate the serious sanitary sewer problems in the area, and frankly, I took that to mean we were back to talking about the capacity issue and how we were going to sewer this particular property. And number one, my comment that the infrastructure problems, I think it said, are that, are, we didn't think it was that serious. That had to do with whether the property could in fact be sewered from the Kingston Hall neighborhood, not with what particular flooding problems or infiltration of sewer might be going on in the neighboring, in the neighborhoods of Shandon and across the road. And as far as the flooding, my comments there, we're dealing with an 8.96 acre property, and the comments about the flooding were not of our property and flooding occurring on our property. They were of the adjoining property that was subject to the larger zone change, and I believe that's what the pictures, the pictures were water coming off that property, not our property. And once again, this all goes back to the storm water issue as it relates to the formulation of an approved final development plan. All that will have to be worked out. This property is going to have to have its own retention. Staff engineering won't approve it for, you know, sign off on it until it does. And it is true then that there won't be infrastructure facilities for some time yet that might be adequate to any development plan. Well, I disagree with that. There's nothing in the record anywhere that says that. Minds could differ about when infrastructure will be available. Mr. Hacker could have an agreement with the Kingston Hall developer to sewer from there, which would take care of his capacity issues. We're not talking about 300 units and 100 acre development. We're talking about a maximum of 47 and an 8 acre development. You understand that my concerns are not really so much or don't have to do with a flooding situation on the subject property, but on the surrounding property, which is already in peril in terms of our storm water situation. Finally, just to affirm one thing, once a zone change here is approved and the matter goes then to discussions about a development plan, the council will be no part of that process. Goes back to the Planning Commission, that's correct, who disapproved this to begin with. So I think they're going to be a tough customer. Okay, thank you. Mr. Lane. Thank you, Vice Mayor. The first person I'd like to call up is Dr. David Acker. Did I pronounce your name correctly? I was reviewing your presentation to the council and you have some pictures of flooding in here. The one of them I was looking at was on Cabot Drive. Correct. And I didn't see Cabot Drive on it. Could you point out on maybe the top map where Cabot Drive is located, just so I can see where it is relative to the property? Let's see, Cabot is not listed up here. Help me, Josie. Yeah, Cabot, oh, right here. It should be noted that Joyland Cave is right here. In our flooding problems, there's a stream that goes this way and disappears into Joyland Cave. When that cave is overwhelmed, the stream right here basically runs that way. There's a, one of those pictures shows you it's probably a hundred yards wide of water right here. But this is Cabot. The most common flooding is Long Pearson, right around in here. Okay, thank you very much. That helps me put this into perspective, you know, how close it is to the subject property. Okay. All right, I had a question for Mr. Birch. Yes, sir. I was just curious, is your primary concern about development of the property is just maintaining some type of an adequate buffer between your property and the development? Is that your number one concern there? Well, that's one of the top three concerns, the adequate buffer. And, of course, you've heard the applicants say that the property can't be feasibly developed if they meet that requirement. Right. Do you have any other concerns besides the buffer area? That's the number one concern. Well, I really, I'm not an attorney. My attorney advises that if Irwin County government goes on record of approving a development plan that puts a street on top of this easement, it has made a statement that will be used in court. And so I don't want you to make a statement until the circuit court decides on the easement issue. And if there's that one and there's the buffering issue primarily, yes. I mean, the reason I was asking is because you said in your letter that you didn't oppose the zoning change and then you pointed out you had the, you know, the easement and all that. So I was trying to figure out. Well, and of course we've had all these iterations. The applicant at one point had an option on Shandon Farm and they had a bigger proposal, both Shandon Farm and this property. I have consistently said what you hear from Fayette Alliance, we have the comprehensive plan for a purpose. I, you know, I have a property next to me that the comprehensive plan should be an EAR1 or EAR2. I'm not going to go on record opposing that, but I do share the opinion of staff, and I've seen them do this on many times, that you have to have an acceptable development plan attached to a zone change. I don't think this community would want to send the message that once you get the zoning, you can pretty much do what you want. Thank you very much. I appreciate your input. Ms. Van Nagel, I got questions for you. Could you sort of itemize any changes that you feel would be appropriate if the property were developed that would make it acceptable to the Fayette Alliance? You indicated you, you know, you didn't oppose the zoning, but you had concerns about the preliminary development plan. What kinds of things would you suggest that would make the development more acceptable? Well, first and foremost, I mean, I think that the EAMP requires a palatable preliminary development plan for a reason, and that's so you all and the community at large has an understanding of generally what will go in there before the zoning is issued. And your question then goes to what would the Alliance like to see in that preliminary plan, and I think many of the people here today have addressed a lot of those issues. Obviously, we have concerns with buffering. We would like to see a buffer there. There is a sliver of AR zone property that is, I believe, on the border of the subject property, and also a buffer that would protect and address the concerns of the adjacent neighborhoods, one. Two, you know, the protection of the established woodland in the area, and protection in a way that would be legally consistent with the requirements of the EAMP, but I think first and foremost on this historic day down here at local government with the EPA consent decree, I think that our infrastructure is in a state of peril, as Dr. Blues stated, and we have to make sure that the infrastructure is adequate. Adequate not just in laying pipe, but adequate in capacity. Adequate in that when that pipe is laid and the sewage goes from that development to the wastewater treatment plant, that other neighborhoods down that pipeline are not, their problems are not exacerbated by the new development. And this issue has gotten us to where we are today with the EPA consent decree, and the Alliance has very real concerns about that. So, but those are the three main issues. Those are the three main issues. Well, are you saying that the Alliance would oppose just about every development plan that comes in? Because if you say that our sanitary sewer system is in peril, I mean, we don't do any zoning at all? We just sit? No, no, I don't think so, but I think that there needs to be some kind of legal requirements and assurances that, in fact, the sanitary sewer issues will be addressed so that the development plan... Sorry, sir? I'm sorry. So, so those are, those are our primary concerns. That's not to say that the Alliance is going to oppose all development plans. That's not, that's not consistent with our global efforts, and that's not consistent with our policy. But what is consistent with our policy is that we make sure that there are legal assurances with teeth that make sure that new developments do not exacerbate the sanitary sewer and stormwater problems that are plaguing Fayette County. Well, would you have a problem if we approve the zoning on this tonight, and with the understanding that, you know, maybe a new preliminary development plan would have to be submitted and be approved, and, you know, provide an opportunity for you to come before the Planning Commission and address the development plan? I mean, do you feel like the Planning Commission is not... The Fayette Alliance, from the beginning, has not objected to the zoning. The zoning is what's called for in the comprehensive plan, but in practicality, when we zone this property, we have to make sure in the Technical Committee, before Planning Commission, in the Department of Engineering, etc., that the issue of stormwater and sanitary sewer problems are addressed. And if they are adequately addressed with legal teeth, if the buffering issues are addressed, and if the development is laid out in a way so as to address the concerns of the adjacent neighborhood while also making it feasible for the developer to develop the property, then the Fayette Alliance would not oppose it. We would support it at that point. But to this point, we have not seen anything that is legally required under the EAMP to lead us to support the zone change at this time. And under the EAMP, a preliminary development plan is required, and it's required for a reason, so. All right, thank you very much. I have a question for Mr. Salih. And my question is, the size of the lots that are in the subdivisions that are near this property, are they approximately the same size of the lots that are proposed in the zoning? I believe they're comparable. They may be slightly smaller, but probably less than 10% difference. Okay. Hi, Mr. Woodall. So were there any neighbors in the area of the property that are supporting the rezoning, or it's just mainly all the neighborhoods are opposed to it? Well, Mr. Hacker informs the Scott property, which is the property next door, the larger tract. But, you know, to be very honest with you, Councilman Lane, I mean, I haven't talked to anybody that supports it, and that's typically going to be the case in something like this. All right, do you have any suggestions on, you know what, I mean, I know you're recommending that we approve the zoning. Sure. Is there anything else that we could do? Do you feel like the, you know, the only concern that I've got is maybe the number of units on the property, and I'm not, I do not like to use that as a lever on rezoning, but because of the access and, you know, the density, that was just one thought I was having. Have you all discussed density? Let me make this clear. I mean, I think there's an inference that, like, there wasn't even a preliminary development plan submitted. That is absolutely not the case. One was submitted, and frankly, what we were told along the way, it was probably more detailed than what they're used to getting. But this is just like a piece of legislation that's coming through the General Assembly that some legislators don't like, and they start hanging things on it to weigh it down, to make it irrelevant and emasculate it, and next thing you know, it goes away, and that's how you kill something. And in this particular instance, the baggage was the conditions. And once you put the three conditions on this development plan, it wasn't even on the development plan, it was conditioned upon the zoning, the zoning was conditioned upon it. That made the rest of it go away. Well, they want to focus on, well, it's the development plan, development plan, development plan. It's not that. It was totally the conditions being placed upon the zoning that made this difficult. And when we go back through and go through the process, if we're zoned here tonight and have to talk about this development plan in a detailed way, you can bet your bottom dollar we're going to talk about exactly what's going to happen, how things can be laid out, which trees are going to be saved, and so forth. Well, I'd just like to say that I agree with Councilmember Stennett. I've been on the council for a few years. We've had a lot of zoning issues come before us. And here we have the Planning Department recommending approval and the Planning Commission recommending disapproval. And we have the opponents who say, you know, the property should be zoned, you know, as designated on the comprehensive plan. But on the other hand, we don't want zoning done because we're concerned about the impact on, you know, the neighborhoods nearby and all that, and concerns about it getting the final development plan approved. Sure. Then we have the issue of using infill versus expanding urban service area. You know, I support the infill as opposed to expansion. So it's like a sort of a 50-50 kind of an issue here. It's a dangerous set of business because basically what you have at stake is the comp plan process. Is this a viable process or not? Is the urban services area boundary theory, is that viable or not? Or are we just going to have a comp plan process, say this property is supposed to be in it, and then find some ways to turn it down? And you also asked a question about the sewage situation and what the Fayette, where the Fayette Alliance is on all that. We didn't get to where we are with our infrastructure sanitary sewer situation because of new development. Don't take my word for it, though. This is the mayor's summary of the consent decree. I just pulled this off on my way over here. Why has this happened? That our city has failed to properly maintain both the sanitary and stormwater sewer systems. It's a maintenance issue. A lot of the infrastructure that we have, folks, it's old and it's time for it to be replaced and it's an existing neighborhood. It's not in new neighborhoods. And Mr. Hacker, I'm sure will correct me if I'm wrong, but we don't run sanitary sewer pipe and by-product from new neighborhoods through old ones. Lexington's on a hill and typically things go around to one of the pumps or to one of the treatment station, either over in Jesmond County or over at West Town Branch. That's just a fact. And that's why, I mean, the mayor was candid about that. He didn't blame it on development. Okay, point of order. Councilman, Planning Commissioner, Whitman, what's the... John. What's the point? Chair entertains, but... Point, point taken. Just go ahead, John. Yeah, I'm done. That was my last question. Thank you. Thank you very much. Mr. Lane, if I could correct my earlier answer to your earlier question. The lots proposed here are 40 feet in width. Most of the surrounding lots are 60 or more feet in width. So, they're somewhat smaller than those surrounding. Okay, thank you, Mr. Salih. Thank you. Thank you, Vice Mayor. All right, Mr. Lane. All right, the screens are... The screen is not illustrating the order. Next is Councilmember James, and then Councilmember Crosby, then Beard, then back up with Stannett, and Myers. Thank you, Vice Mayor. My first question is for Mr. Salih. Does the expansion area master plan talk about at all any type of affordable housing or mixed income housing requirements, specifically in the expansion area? I am not aware that it does. It is not as lengthy or detailed a document as the comprehensive plan, let's say. So, there was no type of requirement, as far as you know, as far as affordability indexes or anything like that in the expansion area? I don't believe that's in the expansion area. Okay. My second question for you is a process question as well, is at what point does a development plan change to a construction plan that you know of? I don't know that they change as much as they're separate documents. There is something called an improvement plan that is usually submitted midway through the development process. Those are detailed engineering drawings submitted to the Division of Engineering that outline how sewer pipes, street curbing, sidewalks, grading will be done on properties prior to their development. Who else looks at those besides engineering? I am not sure. I do not know. Do you know in what process those are submitted? Is it a pre-construction meeting or anything like that? I believe they're governed by the engineering manuals, the procedure manuals that are administered through the Division of Engineering, and I'm sure that they have a process similar in concept to what you're describing. I have reason to believe that the construction plans are not necessarily viewed by our urban forester. Do you know that to be true? I don't, but I'm not sure that would surprise me. Okay, because my concern is that our urban forester may at some point view a development plan and look at placement of trees and canopies of trees in an area. However, once construction plans are created, utility strips and other types of lines that are to be laid could possibly go through the areas where the trees actually exist on the development plan. Have you known that to be the case in the past? I have in the case of utilities, yes, where they have, especially along a property boundary, that's a common location for utility placement. Sometimes that involves trenching in very close proximity to trees. In terms of grading and other improvements, often the urban forester will work with the developer and his representatives to do fencing around the area of tree preservation prior to grading permits and things of that nature. So there is a little more working together on those types of issues. But in the case of the utility strips and where a tree, say there's a buried utility line or something, and a row of trees has to be destroyed to place those utility lines, do you know at what point is, what happens? Like is a developer fined or cited or required to replace trees? Or how do we, how do we replace those trees that were removed? I don't know that they involve removal as much as impacting the trees. For instance, overhead lines will often require trees to be limbed, in some cases trees to be removed. I'm not aware of any fines that have been levied along that line. Okay. And what, what happens if a development plan just isn't followed? So especially in this case where, I'm thinking I'm going to ask a question of law in just a moment, but where a pre-development plan is required, if that is so the case, what happens if that development plan just isn't followed and something, something, something different is developed? Yeah, I think the development plan more governs the Division of Building Inspection's issuance of building permits, and if the permit application doesn't match the development plan, then the Division of Building Inspection does not issue a permit for that construction. Okay, so they'll be in violation of a, of a permit, or not obtaining a, or violation of the. Right, denial of the permit. Okay, and Rochelle, if you don't mind, we've, we've heard a couple of times tonight from Knox-Van Ogle that a pre-development plan is required to be submitted by this expansion area, I've lost my train of thought here, expansion area master plan, and, and some of the text from the Planning Commission states to the contrary. Can you clarify with us if it is required or not? I think since that's a planning procedural issue, Bill, Sally would probably do best to address it. Okay. The zoning ordinance requires the filing of the development plan with any zone change that's filed to a residential zone or from an agricultural zone. So that being the zone change before you, it was required as part of the filing of the zone change that a development plan be submitted. In addition, the zoning ordinance, in terms of the zones that regulate the expansion area, also require the filing of development plans for all property in the expansion area. Filing but not approval? Well, approval is a requirement prior to construction. Okay, but not in any particular order. As far as you get the zone change first, you can get the zone change first and then later come back and do this, or you must have the development plan approved first and then you get the zone change. Nothing like, no order of... There is generally an order to development. Preliminary development plans do not allow any construction activities to commence. So when the council is reviewing a zone change, either tonight or anytime, there is no development eminent for the property until further plans go back to the Planning Commission for their review and approval. Okay, so if the zone change were not approved tonight, would they have to wait any length of time before they went back through the process again? Yes, the Planning Commission's bylaws have a waiting period of one year from the time they last considered an application where they recommended disapproval. So that one-year period would be until November of this year. Okay, thank you. My next question is for Mr. Woodall. I'm reading in the minutes on page 9, this is of the Planning Commission, and one of your statements is, well, one of the minutes say, Mr. Woodall stated that one of the key objectives of the expansion area master plan was the provision of housing in the expansion area that was affordable to all sections of the community. How will this development be affordable to all sections of the community? Go right ahead. It's been a goal of the Urban County Government for as long as I've been in the development and planning business to provide housing opportunity for every portion of the community. And the way that's accomplished theoretically is by keeping the supply of housing high enough to make it affordable. The more we restrict the supply of houses, the more expensive houses are and the less affordable they are. Now, I'm not going to, I can't stand here and tell you that what the price range of these houses might be because the market's going to determine that. But I can tell you for sure that approval of this zone change and the ultimate after preliminary development plans, after final plans, after construction plans, after improvement plans, which by the way are approved not only by the city, they're approved by the state EPA and the federal EPA. Just plain review on those infrastructure plans. After all that's accomplished, if we get to build these houses, it will have a positive effect on reaching the goal of providing adequate housing opportunity for all the people in this community. It's something I've supported ever since I've been in this business and I've built subdivisions in virtually every price range. But one thing I got to admit to, I let the market tell me what to build where. And I don't know if I can answer it any better, but thank you for asking it. Sure, so let me just follow up. So you believe that the market, the market determines affordability, so you're not willing to base it on an area median income? It is my understanding that at present we don't have an affordable housing problem, given the standards of HUD. I could be wrong, but that's my understanding, that the median price of our homes presently is below that which would cause that sort of a problem. But now going forward, if we don't maintain a good supply of houses, supply and demand takes over. You know, if there's 100 houses and 50 buyers, pretty good opportunity to get a house. If there's 10 houses and 50 buyers, not so affordable. That's just the way it works. So the best way that we can ensure that we remain an affordable community, and we want to do that, we want to do that, is by keeping an adequate supply of housing on the market. And in order to do that, by your own policies, we've got to build on these parcels inside of the urban service area. The urban county government today passed a resolution, or introduced a resolution to go on the docket, that will allow for us to pursue the idea of inclusionary zoning, which would mean for a development such as yours, that we would have a certain number of, we would possibly have a certain number of units that would be allocated for low, moderate, and some higher income. Are you willing to consider that on this proposed location? May I answer that fully? Please. Item number one is no community in this country has ever had to impose that restriction until they have zoned the property so low, and restricted housing so high, that they're exclusionary. That's, I mean, some of y'all have been to Boulder, which has that in there. Well, Boulder has the most expensive housing of any metropolitan area in the country, and so they require, they want to require their developers to give away a portion of housing so that they can maintain, on the other side, they're very expensive, high income housing. Now, again, we don't have that problem here yet. So your answer is no? I didn't finish. Okay. You said I could answer it fully. We don't have that fully. We don't have that problem here. And on nine acres, my answer is no. On 50 acres, my answer is no, because the development community and the home building community has no duty to furnish affordable housing to the community, to the public, unless there's participation by the public. Thank you. Thank you. Mr. Woodall, and maybe your client would answer this as well, but you made a statement about your arborist. So you've, do you have, you have your own personal arborist for your development? I have a personal arborist. We have landscape architects, which employ those type of people, which look over these things. We deal with this all the time. We have to, let me, since you brought the issue up, an urban forester is called an urban forester for one reason, because he deals with the urban forest. Well, we all know that at one time Lexington was completely pastured, and there were only trees in the windrows. Well, now Lexington is a tree city. It has a canopy of about 50 percent or more. Who do you think put those trees in? The builders and the homeowners. We, we, I mean, let me set the record straight. A tree is a valuable commodity for me because it makes my lot more expensive. Trees backing up to the edge of my lot are valuable to me because they make my lot more expensive. I am probably more interested in saving trees in one of my projects than anybody in this room, simply because they make me money. But I can't save all of them. And we are very sensitive to the tree issues. And as to utilities, neither the developer, nor the council, nor the Planning Commission, nor God can control the electric utility. They go where they want, they do what they want. They cut what trees they want, they don't cut the trees they don't want. And we argue with them. I don't know how many times I've argued them off a tree line, because for some reason they like to go down a tree line. Okay, all right, thank you. And another question, Councilmember McCord mentioned about the pump station. Is that something that, as a developer, that you're willing to go in with and help pay for? Glad you asked that question. In the expansion area, unlike, unlike all the property in the old urban service area, where the real problems are, you didn't see any expansion area subdivisions or developments on this improvement, on this problem map, because there aren't any. Because we do it to a better standard than has been done previously. But what's more important to your question than that, is in the expansion area, I will have to pay between $25,000 and $30,000 an acre in real money to the city, to y'all, to defray the cost of off-site infrastructure. So I am paying for it. I'm paying cash money for it. Now, in a lot of instances, I'm paying money and not getting the product. And, again, to be real honest with you, a nine-acre, 46-lot subdivision can't afford to spend much money on a big sewer pump station. But let me tell you this, if the Urban County Division of Engineering and the state EPA and the federal EPA say that it, that that line or whatever can't stand anything else, we won't get sewers, we won't get to develop. And then we'll have to decide what we do. And that's just, that's a fact of life. Okay. Thank you. Thank you, Vice Mayor. Thank you, Councilmember James. Councilmember Crosby. Thank you, Vice Mayor. First, I just want to make a point of clarification regarding the resolution we passed today. That was regarding House Bill 447. And, Mr. Hacker, basically, with that, you don't need to come to the mic. Basically, we just passed a resolution stating that we opposed the state telling us what we can do with affordable housing. Not that we were going to mandate it, but that we wanted to be able to debate this as local government and that we didn't want the state telling us what we could do. So that was the resolution that we passed today was the fact that we wanted to be able to debate this at a local level. So I just wanted to clarify that. And then, Mr. Sally, I just have two questions for you. I find myself kind of in a unique situation. We've had several zone change hearings. And oftentimes, you know, when it gets to us, we do not look at development plans. We typically are only determining a zone change when it comes to the council. So, but by the time it does come here, there is a development plan that's usually approved by the Planning Commission and your staff. And I guess my question is, since during my tenure, I've never been presented with this type of situation, has this ever happened in the past where you have had a zone change up for approval without a development plan? I can't think of one in the time that I've been presenting recommendations to the Planning Commission where you've had a development plan recommended for disapproval. It's quite common to have one postponed pending your decision on the zone change. Often, when the Planning Commission recommends approval, the development plan is completed and certified. However, the Planning Commission's normal practice when they recommend disapproval of a zone change is to table that development plan. And that's what they've done in this instance. Okay. And then can you show me on the map, please, and point out for our audience, what color is this area on the comprehensive plan? And then can you tell us verbally what that is? On this exhibit, it is orange stripes. And that indicates EAR-2 land use, according to the legend. And so that is what it is on the comprehensive plan map? That's correct. Thank you very much. Council Member Beard. Thank you, Mayor. This is just a comment to Mr. Woodall. You're two hours over. Several questions. One is for Jack Birch. I'm looking at an aerial photograph of your property. It looks to me as if I've got your homestead properly placed on this aerial, that you're fairly well buffered by tree lines from this development. Is that correct? At present, most of the tree lines, though, are on the subject property, not on my property. But you get the benefit of the buffering. I have a nice buffer right now. Okay. That's all I wanted to know. And I did a little thing. You're 450 feet or so from Russell Cave? Yes. Long, narrow property. You're lucky. You are very lucky, unless it snows. I guess I have a problem with us sitting up here and talking about, well, taking out of the hands of the proper people who are appointed to do the job of assessing sewer systems and stormwater systems, and for that matter, which tree gets cut down or not get cut down. And we've got a whole staff of people within this government to do that for us. We don't know at this point, or I don't know anyway, what the topography of this is in comparison to the area that's flooded. The area that is flooded, I understand, is really part of a watershed, a creek, that runs through that area. It isn't just stormwater that collects like it does in some places, because the storm sewer system can't handle it. It's because the stream has overflowed. There really is no evidence that says that this development would contribute to flooding, either within the development, nor within adjacent developments. That's the job of our engineers. That's the job of all the folks that are over there in the Phoenix building and doing this every day. Also, I'm somewhat familiar with the developments that Mr. Hacker read off to us that he'd done, and to my knowledge, most of them are not only successful developments, but they're very nice developments. So, my vote goes toward approving this. Thank you all. Mr. Stennett, then Mr. Myers. Thank you, Vice Mayor. Yeah, I think it comes down to a couple simple things. One, Mr. Woodall, you presented a very good case, and you're right on point in terms of the comprehensive plan and what this area is asking for based on the plan that this government has adopted. The problem I have, and I represent half this area, is when I leave here tonight, if I approve this, there is no current, I repeat that current, because today is a historic day, there are no current safeguards in place to protect these people's homes from flooding, from raw sewage, nothing right now. We just admit that the technical committee doesn't even look at capacity. I know for a fact this whole area is at capacity. We can't even add Kingston or Swigert on the system because we have no capacity. Now, we can build a new pump station, which should have already happened in my opinion, and, you know, after today, we'll be spending 250 to 500 million dollars trying to get things like this fixed. So, I'm not sure if your timing is off, but I think you're going to be a victim of our processes not being fair to the citizens tonight. As much as I understand what you're trying to do and could support it under a different circumstance, I'm going to have to vote against it in support of my neighborhoods until those infrastructure structures or infrastructures are fixed and that we do have guarantees. And Mr. Beard is right, we don't get to make the decision on the final development plan, and that's the problem in our city right now. That's the problem, is we have made decisions on many neighborhoods, and I can name them. I mean, we heard some good ones named earlier, but I can name several in my district that are reasons why we're in this EPA lawsuit and the reason why we've done things wrong, and until that changes, and hopefully they will this year, I'm going to have a tough, tough time supporting this tonight. Thank you. Mr. Myers. Thank you, Vice Mayor. Mr. Salley, I just have a follow-up question for you. Earlier, I understood my line of questioning you to say that there are safeguards in place and that this cannot be developed until there's a development plan that meets the environmental needs and along with the wooded area. Am I incorrect? Did I misunderstand you? No, sir, I think that's correct. So what we just heard is not correct, that there are safeguards in place, that this cannot be developed until the plan meets the guidelines, environmental tests, and all the rest of those things. Well, that's right. In essence, the capacity issue would be reviewed on later plans, not at a preliminary development plan level usually. So is it possible that before the final development plan is done and they start to build that capacity, the capacity issue is figured out? Yes. Yes. Is that a yes? Yes, sir. Okay, thank you. Mr. Blues. Thank you, Vice Mayor. As a council member who represents the rest of the district that you, the neighborhood in the area that you represent, I share the same concerns that many of us have have expressed tonight. And therefore, Vice Mayor, I move to disapprove the petitioner's application for a zone map amendment and to accept the Planning Commission's findings of November 29th, 2007. So moved. Second. There's a motion and a second. Is the motion clear? I would restate it. All right. Ms. Bowen, would you help me with the motion? Oh, that's all right. Mr. Blues, I know you look like that deer in the headlight, dear. Mr. Blues, I want to restate your motion, if you would, please. The motion is this. I move to disapprove the petitioner's application for a zone map amendment from an Agricultural Urban AU zone to an Expansion Area Residential 2 EAR2 zone and to accept the Planning Commission's findings consistent with their disapproval of November 29th, 2007. And the motion was seconded by Councilmember Gordon. All right. Now, we can move to discussion of the motion on the floor. Councilmember Beard. I just want to reiterate we're going to slap the developers' hands because we can't seem to fix our own house internally. It makes no sense to me at all. If we've got problems with our sanitary sewer people or our arborist or whatever, it's our job to fix it. That's what we're up here for. They work for us. Mr. Hacker doesn't. Thank you. Mr. Beard. I mean, Mr. Blues. Excuse me. Thank you, Vice Mayor. I agree with my colleague to the right here, but at the same time, I think we do have an obligation to do as much as we can to protect the property and the security of environmentally sensitive areas in environmentally sensitive areas for residents who are already there and for whom we have not yet, you know, sufficiently done enough. Mr. Blues. Anyone else? Anyone else want to explain their vote? Mr. Lane. Thank you, Vice Mayor. Yeah, it's been a hard call, but I will be supporting the zone change, which means I'll be voting against Mr. Blues' motion. And my primary reason for this is that the property is on a comprehensive plan for the zoning that's requested, and I feel that we do need to use the property we have inside the urban service area so that we are not going out into the rural area and expanding. And I agree with Council Member Beard that, you know, we have to get our house in order and have our sewer system and storm drainage adequate to service this. And I would say that a caveat to my vote is I want to make sure that our Planning Commission carefully, you know, reviews all development plans to make sure they're, you know, safeguard the existing neighborhoods in our sanitary system. Thank you. Mr. Mayers. Thank you, Vice Mayor. I, too, am going to vote against this motion and vote in support of the zone change, and I look forward to the Fed Alliance and the Planning Staff and the Planning Commission working with the developer to ensure that that development plan, when it comes forward, meets all the requirements and addresses all the concerns that we've heard here tonight. Thank you. Any further discussion? Ready for a vote? Okay, just to clarify, a vote in favor, an aye vote, an aye vote would represent? Disapproval. Disapproval. Okay. Let's make sure. An aye vote would represent disapproval of the proposed ordinance and approval or endorsement of the Planning Commission's findings. Is that correct? If I may, at this point, it's a motion just to adopt the findings of fact. Just to adopt the findings. Subsequently, then, there would be a final vote on the ordinance. So this is just to adopt the findings of fact for disapproval as set forth by the Planning Commission. Okay. Is everyone clear on that? All right. I'll vote electronically. Are we keyed up or not? Roll call? Okay. Roll call, then. Ready, Madam Clerk? Mr. Lane? No. Mr. McCord? No. Okay. Are you all going to tabulate your votes? Because if not, I don't want to play tag with the system. Mr. McCord, are you going to tabulate? Thank you. Mr. Myers? No. Mr. Stennett? Mr. Beard? No. Mr. Blevins? Sorry. Mr. Blues? Yes. Ms. Crosby? No. Mr. Ellinger? No. Ms. Gorton? Yes. Mr. Gray? Yes. Ms. Henson? Yes. And Ms. James? Yes. So ruling on the takes eight, it's my understanding, Chair's understanding, that it takes eight to overturn the Planning Commission. Is that correct? Well, this isn't the actual vote on the ordinance. Okay. It requires eight votes to overturn it. That's right. But in a tie vote, in essence, no action has been taken, so no findings either way have been adopted by the counsel at this point. So now we call for a vote on the ordinance. Unless there is another motion with respect to findings that would be different. But in the absence of another motion, then yes, you'd proceed to vote on the ordinance. All right. Do you need a motion? I need a motion. Council Member Gorton. I move to approve, to disapprove, the, to approve the Planning Commissions. Help us with the language here. In essence, if you're going to move to adopt findings that would approve the zone change? No. Okay. I want to do the one that goes along with what we just, the disapproval. So you want to vote on the ordinance at this point? Well, you just said we need to vote on the ordinance. Okay. Well, that doesn't, okay. So you are moving to go, to proceed to vote on the ordinance? Yes, to disapprove the zone change. Why do we need a motion? She just said we do. Are we clear? Do we need a motion or do we not? You need a motion because you have to vote the ordinance up or down. And since the findings of fact were not approved, then the next method, if there's not another motion to change the findings of fact, then the motion to disapprove the ordinance would be in order, which I just said. Okay. So we have a motion. We have a second. Excuse me, Mr. Vice Mayor. Mr. Lane. I'd just like to make a suggestion to the Council that maybe it'd be appropriate that we table this issue. And that would allow, we've spent a lot of time, a lot of money has been spent going through the planning process, but allow the developer to go back, work with the neighborhood, see if we can come up with a, Fayette Alliance come up with a plan, preliminary development plan and bring it back for review by the Council. I'd like to make a motion that we table. There's a motion on the floor, parliamentarian. It's not necessarily out of order, but this has to be heard by February the 29th. Well, he's made a motion. Does anybody second it? I mean, if you table it, it will, the Planning Commission's ruling will be upheld. So it's not going to do what you're trying to do. Well, I mean, we have heard the issue. How about this? Couldn't this be considered a postponement of our hearing? No good. This is the second reading on this ordinance. What's on the floor? My motion. We've got a motion on the floor. I'll withdraw the motion. Okay. The motion, Council Member Lane has withdrawn. There's a motion on the floor. Is there a second on Council Member, there is a second on Council Member Gorton's motion. Is there a discussion? Point of order. Point of order, Mr. Beard. Mr. Parliamentarian, we have a second reading of an ordinance here. Do we not have to vote on that first and get that out of the way before we do anything else? That's what we're trying to vote on right now. That's exactly what we're trying to vote on. And the motion would be to approve the planning, the ordinance as it's written on there, which does disapprove the application. That wasn't exactly what, she was trying to put disapproval in there. Well, I understand that, but I mean, the ordinance disapproves it, but you would vote in favor of the ordinance. Let's confirm. Let's confirm exactly what we're voting for or against. So who wants to help me with this because I'm just as confused as... Council Member Blues. Vice Mayor, as I understand it, to vote no on the ordinance is to vote consistent with... No. Okay. So have we got a – I'd like to ask the clerk and Ms. Boland. Let's just be patient here a minute. Make sure we're doing what we're doing. In essence, at this point, you're voting on second reading of the ordinance. All right. The ordinance received second reading at the beginning of the hearing. And if there are no further motions with respect to adopting findings of fact, at this point, the counsel is prepared to vote on the ordinance. And the ordinance, a yes vote would be to approve the zone change. A no vote would be to disapprove it. There are no findings adopted to approve it at this point. Okay. So are we all clear? Council Member Stanek. Let me clarify what you just said. A yes vote votes in favor of the ordinance, which disqualifies or disapproves the zone change. A yes – our zoning ordinances, our ordinances always have to be written in such a way that a yes vote would approve it and a no vote would disapprove. The ordinance is written whereas this counsel disagrees with the recommendation of the Planning Commission. Therefore, if you voted yes for this ordinance, you would be saying, I'm disagreeing with the recommendation of the Planning Commission, which was to disapprove the zoning ordinance. Well, that's not the way the ordinance is written, the one in front of us. It's completely the opposite, but you can render a ruling. I'm reading from it saying whereas this counsel disagrees with the recommendation of the Planning Commission. No, ma'am. Our screen has got another up here. The body of it, it's not the heading. Right, it's in the body, that part. We don't have that. It should be to say consistent with our policy. Right. If you want to be consistent. I think you're right. If you vote yes, you're saying that you disagree with the recommendation of the Planning Commission and a yes vote would adopt a map amendment and instruct that the zone map atlas be amended accordingly. That's right. So a yes vote would approve the zone change. And a no vote? No vote would disapprove it. And I think it's what I said. Are we ready for a roll call? All right. We're ready. Madam Clerk. All right. Can I bear to ask who seconded that? I'm sorry. The second was by Council Member Blues. Thank you very much. Yes, ma'am. And all that, I didn't get it. Okay. Here we go. The vote. Could you read the motion one more time? The motion is to disapprove the ordinance. It was my understanding that if a motion was made, it was to proceed to vote on this ordinance. I didn't think that we needed a motion other than the fact that there were no further motions on findings of fact and that the Council had determined it was ready to proceed to vote on the ordinance. All right. We'll proceed then to vote. Okay. Read my name first. Let's confirm. Let's clarify. Council Member Gordon. Well, I just wanted to clarify. Normally when this happens, if we were a yes vote on the findings of fact, we're a no vote on the ordinance. If you want to stay consistent with your voting, you vote opposite. Is that not the case? But the Council has not adopted findings of fact. There was a motion to adopt the findings of fact of the Planning Commission, and that failed to pass. Okay. So are we finished? We need to vote on the ordinance, which has received second reading. Okay. But what I'm saying is for all of us, if we want to stay consistent with our voting, we vote opposite what we voted first. Is that not true? A no vote indicates that you disapprove of this request for a zone change. Okay. So a yes vote indicates that you approve of it. So, yes, I think that would be opposite of your initial vote. We would have been able to do better if Mr. Woodhull hadn't kept us here for now two hours and 25 minutes. All right, Madam Clerk. Okay. Mr. Lane. Yes. Mr. McCord. Yes. Mr. Myers. Yes. Mr. Stennett. No. Mr. Beard. Yes. Mr. Blues. No. Ms. Crosby. Mr. Ellinger. Yes. Ms. Gorton. No. Mr. Gray. No. Ms. Henson. No. And Ms. James. No. Is there any further discussion? Chair will entertain a motion to adjourn. Motion to adjourn. Second. Motion to second. All in favor, please say aye. Aye. Thank you all for being here tonight and for taking the time with us. Thank you so much. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.