# Planning Commission Public Hearing - Zoning Items - February 28, 2008 > Auto-transcribed civic record · Commission · February 28, 2008 - **Permalink**: https://meetings.lexingtonky.news/meeting/405 - **Source video**: https://lfucg.granicus.com/player/clip/405?view_id=14&redirect=true - **Date**: 2008-02-28 - **Body**: Commission - **Last revised**: March 1, 2026 - **Length**: 31,501 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 Urban County Planning Commission met on February 28, 2008, at 1:33 PM in the Council Chamber on the 2nd Floor of the LFUCG Government Center at 200 East Main Street in Lexington, Kentucky, with Linda Godfrey presiding. The Commission addressed nine agenda items during the session, taking a total of 10 votes on various zoning amendments, subdivision plans, and development proposals. One public comment was heard during the meeting. The Commission approved seven items, including several zoning map amendments for properties owned by Hands-On Originals, Inc. and Derek Thomas, as well as subdivision plans for Providence Place & Interstate Service Center Unit 6, Sand Lake & Estes Property, and Anderson Subdivision. The Commission also approved two text amendments to the zoning ordinance: one allowing extended-stay hotels in the P-1 zone and another reducing location and size criteria for the PUD-1 zone. Two significant items were postponed for future consideration: an amendment to Article 17-7(g) that would allow advertising signs to use digital technology, and a zoning map amendment for Fortune Offices, LLC. The meeting demonstrated the Commission's ongoing work in managing urban development and zoning regulations for Lexington-Fayette County. ## Attendance The Commission meeting on February 28, 2008 had nine members present and two absent. **Present:** • Lyle Aten • Mike Cravens • Neill Day • Linda Godfrey • Ed Holmes • James Mahan • Frank Penn • Lynn Roche-Phillips • Joan Whitman **Absent:** • Carolyn Richardson • Randall Vaughn No members arrived late to the meeting. ## Votes and Decisions The Planning Commission took action on ten items during the February 28, 2008 meeting, with most decisions receiving unanimous support from all nine commissioners present. **Administrative Items** The Commission unanimously approved the minutes from the January 31, 2008 meeting on a motion by Frank Penn, seconded by Lyle Aten [timestamp: 00:30]. **Postponements** Three items were postponed by unanimous voice votes: - **ZOTA 2007-8** was postponed to March 27, 2008 on a motion by Neill Day, seconded by Joan Whitman [timestamp: 02:00] - **MAR 2007-20** was postponed to April 24, 2008 on a motion by Frank Penn, seconded by Lyle Aten [timestamp: 03:30] **Development Plans** - **DP 2006-137** was approved unanimously with the condition to resolve conflicts between dwelling units and existing construction easements prior to certification. Joan Whitman made the motion, seconded by Lyle Aten [timestamp: 10:00]. - **DP 2007-134** passed on a 5-4 roll call vote, including proposed waivers and conditions with note title for number 15. Joan Whitman moved approval, seconded by Lyle Aten [timestamp: 120:00]. Voting yes: Ed Holmes, Joan Whitman, James Mahan, Mike Cravens, and Linda Godfrey. Voting no: Lyle Aten, Frank Penn, Lynn Roche-Phillips, and Neill Day. **Minor Amendment Requests** Both **MAR 2008-5** (Hands-On Originals, Inc.) and **MAR 2008-6** (Derek Thomas) were approved unanimously based on staff findings, with motions by Frank Penn and Joan Whitman respectively [timestamps: 180:00, 210:00]. **Final Items** The Commission unanimously approved **PLAN 2008-7P** with conditions and an article 6-8 waiver [timestamp: 220:00], **ZOTA 2008-1** allowing extended-stay hotels in P-1 zones with 50% dwelling unit requirements [timestamp: 240:00], and **ZOTA 2008-2** reducing PUD-1 zone location and size criteria [timestamp: 270:00]. ## Public Comment During the public comment period, one community member addressed the Commission regarding development proposals under consideration. Jennifer Dobbs spoke in support of both the CarMax and hotel development projects [timestamp: 150:00]. Dobbs shared her positive personal experiences with CarMax as a customer and indicated she had no concerns about the proposed hotel development. Her comments provided community perspective in favor of both commercial developments being reviewed by the Commission. The public comment period was brief, with only one speaker participating in this portion of the February 28, 2008 Commission meeting. ## Contested Items The February 28, 2008 Commission meeting featured two significant contested items that generated substantial debate among commissioners. **Sand Lake & Estes Property Amendment** The most contentious issue was an amendment to revise the development layout and street configuration for the Sand Lake & Estes Property. This item sparked considerable debate among commissioners, ultimately resulting in a narrow 5-4 split vote. The close margin indicates deep divisions within the Commission regarding the proposed changes to the development plan. The amendment's approval by a single vote margin suggests that commissioners had significant concerns about various aspects of the revised layout and street configuration, though the specific nature of their objections is not detailed in the available records. **Retaining Wall Construction** A heated discussion erupted over the construction of a retaining wall that was not initially disclosed in the development plan. This issue raised serious concerns among commissioners about process transparency and communication protocols. The controversy centered on the fact that the retaining wall construction had proceeded without proper disclosure during the initial development review process. Commissioners expressed frustration about the lack of upfront communication regarding this significant infrastructure element, questioning how such an important component could be omitted from the original development plans. The discussion highlighted broader concerns about ensuring complete and accurate information is provided during the development review process, and the importance of maintaining proper communication channels between developers and the Commission. Both contested items reflect ongoing challenges in the development review process, with commissioners grappling with issues of transparency, communication, and the appropriate level of scrutiny for development modifications and amendments. ## Amendment to Article 17-7(g) to allow advertising signs to use digital technology [timestamp: 02:00] The Commission considered ZOTA 2007-8, an amendment to Article 17-7(g) that would allow advertising signs to use digital technology. This ordinance would modify existing sign regulations to permit digital displays for advertising purposes. Rena Wiseman spoke on behalf of the petitioner during the discussion. The primary development during consideration of this item was a request from the petitioner for a one-month postponement of the matter. No substantive debate or presentation of the amendment's details occurred during this meeting, as the focus was on the postponement request. The Commission did not discuss the specific provisions of the proposed digital signage regulations or any potential concerns about allowing digital technology for advertising signs. The Commission granted the petitioner's request, and ZOTA 2007-8 was postponed for one month. This postponement allows additional time for the petitioner to prepare their case or address any preliminary issues before the amendment returns for full consideration at a future Commission meeting. ## Fortune Offices, LLC, Zoning Map Amendment [timestamp: 03:30] The Commission considered petition MAR 2007-20 submitted by Fortune Offices, LLC, requesting a zoning map amendment from Professional Office (P-1) zone to Wholesale & Warehouse Business (B-4) zone. Richard Murphy spoke regarding this petition during the meeting. However, the petitioner requested a two-month postponement of the matter before any substantive discussion or presentation could take place. The Commission granted the postponement request, and no further action was taken on the zoning map amendment at this meeting. The petition will be rescheduled for consideration at a future Commission meeting. ## Providence Place & Interstate Service Center, Unit 6 [timestamp: 10:00] The Commission reviewed development plan DP 2006-137 for Providence Place & Interstate Service Center, Unit 6. The proposal required approval with specific conditions to address technical issues identified during the review process. Key speakers Tom Martin and Rory Kahly presented the development plan and discussed the primary concern involving a conflict between the proposed dwelling location and an existing construction easement on the property. This conflict needed to be resolved before the development could proceed. The Commission discussed the conditions necessary for approval, focusing on ensuring the dwelling placement would not interfere with the established easement rights. The development plan required modifications to address this spatial conflict while maintaining the overall project design and functionality. Following the presentation and discussion of the technical requirements, the Commission approved the development plan with the specified conditions. The approval was contingent upon the developer resolving the easement conflict and meeting all other standard development requirements for the Providence Place & Interstate Service Center project. The approval allows Unit 6 of the Providence Place & Interstate Service Center development to move forward, provided the developer addresses the easement issue and complies with all conditions set forth by the Commission. ## Sand Lake & Estes Property (Amended) [timestamp: 120:00] The Commission considered DP 2007-134, an amendment to the Sand Lake & Estes Property development plan that proposed significant changes to the original approved layout. The amended development plan included revisions to the development layout, a reduction in the total number of lots, and modifications to the street configuration. These changes represented a substantial redesign from the previously approved development scheme. Key speakers during the discussion included Rena Wiseman and Bruce Simpson, who presented details about the proposed amendments and addressed questions from Commission members regarding the revised plan. The amended development plan required several waivers from standard development requirements to accommodate the new design. Commission members reviewed these waiver requests as part of their consideration of the overall amendment. Following discussion of the proposed changes, street configuration modifications, and lot reduction plans, the Commission approved DP 2007-134 with the requested waivers and additional conditions. The approval allows the developer to proceed with the amended development layout as presented, subject to compliance with the specified conditions attached to the approval. The amended plan represents a scaled-back version of the original development, with the reduced lot count and revised street layout addressing concerns that may have arisen during the initial development review process. ## Hands-On Originals, Inc. Zoning Map Amendment [timestamp: 180:00] The Commission considered ordinance MAR 2008-5, a zoning map amendment for Hands-On Originals, Inc. The proposal sought to rezone property located at 990-992 West New Circle Road from Highway Service Business (B-3) to Light Industrial (I-1). Dick Murphy served as the key speaker for this agenda item, presenting the details of the requested zone change. The property in question is situated along West New Circle Road, a major thoroughfare in Lexington. The zoning amendment would change the land use designation from B-3, which typically allows for highway-oriented commercial services, to I-1, which permits light industrial activities. This type of rezoning often accommodates businesses that require industrial operations while maintaining compatibility with surrounding commercial areas. The Commission approved the zoning map amendment, allowing Hands-On Originals, Inc. to proceed with their plans for the property under the Light Industrial zoning classification. The I-1 designation will enable industrial uses that are generally less intensive than heavy industrial activities and more compatible with nearby commercial development along the New Circle Road corridor. ## Derek Thomas Zoning Map Amendment [timestamp: 210:00] The Commission considered MAR 2008-6, a zoning map amendment requested by Derek Thomas to rezone property at 317 Robertson Street from Single Family Residential (R-1D) to Single Family Residential (R-1E). Jimmy Emmons served as the key speaker presenting information about this zoning change request. The proposed amendment would modify the zoning classification for the Robertson Street property while maintaining its single-family residential character, transitioning from the R-1D designation to the R-1E classification. The Commission approved the Derek Thomas Zoning Map Amendment, allowing the property at 317 Robertson Street to proceed with the requested zone change from R-1D to R-1E. ## Anderson Subdivision Preliminary Subdivision Plan [timestamp: 220:00] The Commission considered PLAN 2008-7P, the Anderson Subdivision Preliminary Subdivision Plan. Tom Martin served as the key speaker presenting this agenda item to the Commission. The proposal involved approval of a preliminary subdivision plan that required both standard conditions and a waiver of street geometric requirements. The specific details of the subdivision, including the number of lots, location, and nature of the street geometric issues requiring the waiver, were discussed during the presentation. The Commission ultimately approved the Anderson Subdivision Preliminary Subdivision Plan with the requested conditions and street geometrics waiver. The approval allows the subdivision to move forward in the development process under the specified terms and conditions established by the Commission. ## Amendment to Article 8-15 to allow extended-stay hotels in the P-1 zone [timestamp: 240:00] The Commission considered ordinance ZOTA 2008-1, a text amendment to Article 8-15 that would permit extended-stay hotels in the Professional Office (P-1) zone with specific conditions. Jimmy Emmons presented the proposed amendment, which would expand the allowable uses in the P-1 zoning district to include extended-stay hotel facilities. The amendment includes regulatory conditions to ensure these facilities remain compatible with the professional office character of the zone. The text amendment represents a modification to the existing zoning code that currently restricts hotel uses in the P-1 district. Extended-stay hotels typically serve guests for longer periods than traditional hotels, often catering to business travelers and temporary residents who need accommodations for weeks or months. The Commission approved the ordinance, allowing extended-stay hotels to be established in P-1 zones subject to the conditions outlined in the amendment. This approval provides property owners and developers with additional flexibility in the Professional Office zone while maintaining appropriate land use controls. The amendment will take effect following the standard ordinance adoption process, expanding the range of permitted uses in P-1 zoned areas throughout the jurisdiction. ## Amendment to Article 22A-2 to reduce the location and size criteria for the PUD-1 zone [timestamp: 270:00] The Commission considered ZOTA 2008-2, a text amendment to Article 22A-2 that would reduce the location and size criteria for the PUD-1 zone while changing its name to Residential Planned Unit Development. Bill Sallee presented the proposed amendment to the Commission. The text amendment focused on modifying the existing requirements for PUD-1 zoning to make it more accessible by reducing both the location restrictions and minimum size thresholds currently required for this zoning classification. The amendment also included a name change for the zone from PUD-1 to "Residential Planned Unit Development," which would provide clearer identification of the zone's intended residential focus and planned development nature. The Commission approved the amendment, allowing for more flexible application of planned unit development standards in residential contexts with reduced barriers for location and size requirements. --- ## Decisions - **Motion** — passed (9-0): Approval of the minutes of the January 31, 2008, Planning Commission meeting - **ZOTA 2007-8** — postponed (9-0): Postponement of the hearing on ZOTA 2007-8 to March 27, 2008 - **MAR 2007-20** — postponed (9-0): Postponement of MAR 2007-20 to the April 24, 2008, Planning Commission meeting - **DP 2006-137** — passed (9-0): Approval of DP 2006-137 with conditions - **DP 2007-134** — passed (5-4): Approval of DP 2007-134 with waivers and conditions - **MAR 2008-5** — passed (9-0): Approval of MAR 2008-5 for Hands-On Originals, Inc. - **MAR 2008-6** — passed (9-0): Approval of MAR 2008-6 for Derek Thomas - **PLAN 2008-7P** — passed (9-0): Approval of PLAN 2008-7P with conditions and waiver - **ZOTA 2008-1** — passed (9-0): Approval of ZOTA 2008-1 to allow extended-stay hotels in the P-1 zone - **ZOTA 2008-2** — passed (9-0): Approval of ZOTA 2008-2 to reduce the location and size criteria for the PUD-1 zone --- ## Full transcript Leave all your worries, waiting on a far away shore. Out on the briny, with the wind, big and shiny. Melting your heart of stone. I'd like to get you on a slow boat to Java. All to myself, alone. Oh baby, I'd like to get you on a slow boat to Java. I'd like to get you on a slow boat to China. All to myself, alone. To myself, alone. All to myself. Good afternoon. I would like to call to order the session of the Planning Commission. We do have a quorum present. And at this time I would like for approval of the minutes from January 31st, 2008 that was distributed. Madam Chairman, I move for approval of the January 28th meeting. Okay. We have a motion and second to approve the minutes of January 31st. Do we have any discussion, questions? Okay. I'll call for the vote. All in favor? Aye. All opposed? Motion carries. Okay. At this time we'd like for any postponements or withdrawals. Madam Chairman, members of the commission, I'm Rena Wiseman. On page 4, your first text amendment there, ZOTA 2007-8, we would request a one-month postponement of that. Yes, bottom of page 4. All right. We have a request for postponement for text amendment ZOTA 2007-8. Do we have anybody in the audience who wishes to address this? Okay. It's on page 4, the public hearing for the text amendment. 2007-8. ZOTA. At the bottom of page 4. Do a postponement on ZOTA 2007-8. You make the motion. Okay. It's been moved and seconded to postpone the hearing on ZOTA 2007-8. All in favor? Aye. Oh, what is the date? March 27th. Okay. Postponement would be to March the 27th. Okay. Thank you. Okay. Did we vote on it? All in favor? Aye. Any opposed? Thank you. Okay. All right. Madam Chairman, on page 2, item 1, the first zone change item, Fortune Offices LLC Zoning Map Amendment and Eastwood Unit 6, Section 1, Lot 6, Zoning Development Plan. It's MAR 2007-20. We're requesting a two-month postponement on this. We have met with neighbors and Mr. Simpson's client, and I think Mr. Simpson's client had a difficulty with one month and requested two months. So we're requesting a two-month postponement on this until the April zoning meeting. That date would be April 24th. All right. We have a motion to postpone Fortune Offices' request for a zone map amendment, that's MAR 2007-20, to the April 24th O8 meeting. Okay. Is there anybody in the audience that wishes to address this issue? Hearing none, I'll turn it over to the commission. Madam Chairman, I move for a two-month postponement of MAR 2007-20 to the April 24th meeting. Second. Okay. We have a motion and a second. All in favor? Aye. Any opposed? Motion carries. Thank you. Okay. Do we have any other postponements or withdrawals? Okay. Hearing none, we'll move to land subdivision items. Thank you, Madam Chair. and be prepared to present the first plan to you in just a moment. I'm not very good. Madam Chairman, members of the commission, if I may direct your attention to page 1 of your agenda. Item 1 under development plans, DP 2006-137, Providence Place and Interstate Service Center. This is a development plan that has been brought back to you as a continued discussion item. This is Providence Place Parkway as it runs from Newtown Pike here north of I-75. Here we have Stanton Way with the Cracker Barrel and similar developments here. And again, Providence Place Parkway running here on into the rest of the property. You just recently saw a record plat on this property as well for this lower half. It was just approved last month. This continued discussion item that's been brought back to you is to allow the placement of a residential unit, a single family residential unit in this location on this property. Here we have the commercial uses that have been approved on the development plan. This, too, is a single family residence. This is a barn that is to be converted in the future sometime to a commercial use. And we have here some additional uses associated with this property. And we have the residential units, the townhouses here that were approved on this plan previously. This is the Fairfield Inn, which was subject to an amendment where we approved, you approved, Hackney Place and this connection, and here's the associated parking. You can see from your agenda that the plan was approved and recommended for approval by the subdivision committee. It's subject to standard conditions. We do have some additional conditions of the report that was filed as part of this plan, which is an EAMP report, which does require, as you see, A, B, C, and D, some additional items be met per your approval. We would recommend approval of this plan subject to those conditions with one additional, which is resolve the conflict between the dwelling location and an existing construction easement. And you can see that there's an easement. This line right through here is a construction easement that exists to allow the construction of Providence Parkway, and it allowed the contractor to get onto the adjoining property in order to build the parkway. The parkway has been constructed and shall be dedicated once that plat that you approved is certified and recorded. If you have any questions, I'll be happy to answer them. Mr. Chairman, this roadway that's accessed now, is that an old roadway? No. As long as it's parallel to the new roadway. Is that in addition or is it within the roadway? Here. Mr. Drayton, that is the driveway that serves this unit. There's no additional driveway that you're talking about near the new roadway? No, sir. There is not. Tom, to follow up on that, then the access to that house would be off the driveway that goes from the big house. Yes, sir. That is correct. Any other questions or comments? Just clarify the access to the new house. Yes, sir. Where will the access to that house be? This house will be accessed here. It will be part of this complex of development. It is our understanding the single family residence for the owner's mother is our understanding. If there's no other questions, applicant. Rory Kaley with EA Partners. You saw me two weeks ago with this. Do you have the sign and affidavit again? Not every day, but I did go out after the next storm and hit the nail heads again. We are back, as those of you in subdivision committee will remember, we talked about this. The residence that Tom was alluding to, we thought you had seen on the first time you saw the plan. My sign-offs, exaction calculations, all the work we have done and all the sign-offs in the file show the house we're asking for you to approve today. It was down to being signed when it was brought to our attention that you hadn't seen it before. So we are in agreement. I've got everything lined up. Item 10, the resolve of the conflict between the dwelling unit. This house that we're asking for does lie on top of a temporary construction easement. The road is built. You approve the final record plat. We just need to get this plan certified prior to waiting for that final record plat to go to record. With that, I have to get state approval, exaction calculations, as-built is done. There's a lot of timing for the plat itself that the development plan needs to move forward on, both for the residence and for the hotel piece that's in the rear of this. The staff has told me that the resolve will work out some sort of note that allows this plan to be certified quickly, and I have no doubt that we'll do that probably tomorrow. So I'm in agreement with these 10 conditions and request your approval. Roy, help me here because I've had this question asked to me. Is there a 200-foot easement, scenic easement that's on that property? Not that I know of. There is. The property has a scenic resource area line that comes through here, and this was established back with, you know, I think it was an O2 zone change. I do not believe that this has the 200-foot building line set back that your scenic roads usually do, Walnut Grove. We've got a 50-foot building line established. And then this is the house. The zone change line is at the front of the house. Yeah, I knew where the zone change line was, but I didn't know how to answer that other question. Thank you. Do we have any other questions for Ms. Keeley? Roy, the line that's behind the house, that's, yeah, what is that line? Can you explain that? Scenic resource area. The expansionary master plan came up with a special design area and a scenic resource area, essentially view sheds that they thought should be protected. Each one carries its own development restrictions. With this one, we've got an existing mansion, as it were, up front. And with this, if you've driven by, you've seen some of the barns, horse barns, have been saved on other properties and brought in. And I think that special resource area is being protected. Well, the view shed is being protected, certainly, and enhanced by making it look as a stately manor up front. And that's why the rest of the development is off of Providence Parkway towards the rear of that. All right. Any other questions? Okay. If there's no other questions, I'll turn it over to the commission for action. I move approval of DP-2006-137 with the previous 13 conditions and adding an additional number 10 to the staff conditions as noted on our information. Okay. We have a motion and a second to approve DP-2006-137. Providence Place and Interstate Service Center, Unit 6, located at 2200 Newtown Pike and 1931 Stanton Way. All in favor of this motion, signify by saying aye. Aye. Any opposed? Motion carries. Thank you. Thank you. Thank you. We were trying to find this in our little books here, and I can't find it under the tab. The development plan is on your agenda on the top of page two. There will be nothing in your notebooks. Those are just the zoning items that then follow. Oh, okay. That's why I couldn't find it. Thank you. Thank you, Madam Chairman and members of the commission. At the top of page two, we have development plan 2007-134 Sand Lake and Estes Property amended. This property is located at the intersection Manowar Boulevard, Richmond Road. This is the southwest corner of that intersection, South Eagle Creek Drive here. We have Prosperous Place across the street with that professional office development. Walmart and its famous wall is right across Manowar here. And again, Lake Wells Drive, as you can see, ends with a proposed cul-de-sac in this part of the property. The plan that you see here is amended over the previously approved plan, which we have here for you. So we would like for you to see clearly the differences as proposed. This new plan remains the same in this area with the buildings as proposed. This area is where the change has occurred in that, as you can see, we originally had a big box development, large, with the parking situated here. They are now proposing a retail area with access coming in through here. You can see the parking in a circle. This is a three-story, 78-unit hotel that's being proposed on the property. In this area, they are proposing a car lot. This is the building that's associated with that. This is a secure parking area where the vehicles are stored. And again, you can see with the transportation system, they are proposing a public street through here and here. This is Sand Lake Drive and Beale Street. They are, under this proposal, to terminate as a public street at this location. The applicant is proposing a private access through here, as you can see, to serve the internal part of this development. Here, we have the existing service road with its access to Richmond Road. This is right in, right out only, as is Beale Street. Again, you can see with the current approved plan, we have South Eagle Creek, Sand Lake Drive, which is currently approved as a public street curving here and down and intersecting with the service road. Beale Street, again, is approved and proposed to be right in and right out only at this point. These areas here, this is closed, this is closed. The primary difference, again, as you can see, there's a reduction in retail square footage, which has been replaced with the hotel and the car lot on the property. At this time, what we would like to do is have Mr. Emmons demonstrate for you the history of the transportation system for this development. I put together a PowerPoint presentation that kind of has a visual history of the street patterns out in through here because much of the staff's concern are on the overall picture for the Sand Lake property. I just kind of wanted to explain how we got to where we are today. If we can get the lights down. This starts off with a picture of the Sand Lake property. To orient everybody, we've got Manowar Boulevard and Richmond Road. The other streets, we've got Lake Wells Drive, which stubs into the property, and South Eagle Creek Drive as it comes around through here. I just wanted to kind of highlight what some of the existing street system was. We've got service roads off of Richmond Road. We've got a service road over there that exists today as we come in through there. The first street that was approved was an extension of Lake Wells Drive to the service road along Richmond Road. That was in January of 2004. The next street that was approved, and these are all public streets that were approved by the Planning Commission on Preliminary Subdivision Plans, was an extension of South Eagle Creek, and that was, you can see, June of 2005 that followed this along in through here. So we had a street system that connected in through this area. The next major change that we saw was at the time that the property was requested for the commercial zoning. And the street system at that time, as you can see, they proposed a cul-de-sac at the end of Lake Wells Drive, and they still had a public street system which basically came down in through here. The next major change that occurred was the Richmond Road Traffic and Safety Ordinance. That was adopted by the Urban County Council in June of 2006, and that made some major changes to the overall property. And, of course, those are changes that the Planning Commission and no part of the government has the authority to do anything different than what the Richmond Road Traffic and Safety Ordinance has. That removed portions of the existing service roads, as you can see, in through here and in through here. These are indicative of areas that will be removed. It also realigned portions of the service road as kind of indicated in the orange, brought it from South Eagle Creek Drive in through here. It essentially stubbed into here, had a service road that came down to Richmond Road. And you can see there will no longer be a connection here that was removed in the Richmond Road Traffic and Safety Ordinance. That leaves this service road to come down in through here to service this area and these two properties. The next approved plan was a plan that was approved by the Planning Commission in September of 2006. This is a plan that had a public street system. This is essentially the street system that was approved on the plan that's on my right-hand side over here, the plan that is the currently approved plan for the property. You can see it is in compliance with the Richmond Road Traffic and Safety Ordinance. The cul-de-sac that is there, there is no actual access to the property from that cul-de-sac, so there's no vehicular access in that area. There is a pedestrian access. The changes in the service road were in compliance with the Richmond Road Traffic and Safety Ordinance, which was passed a little bit before then. Going into today, you can see in the purple what the applicant is proposing to do. There's still, obviously, they're not proposing any changes to the cul-de-sac. There wouldn't be any connections in through there. They are proposing to remove this public street that came down in through here and connect it up with the service road. I think I'm just going to leave this slide up. We can turn the lights back on, and Tom's got the rest of the presentation on the development plan. But I've had so much history with this particular site, I was particularly well-suited to kind of go through the history of the street pattern and set up the reasons why we're concerned with that. Thank you. Thank you, Jimmy, and members of the committee, commission. As you can see from your agenda, the subdivision committee did recommend approval of this plan at its last meeting. Staff is still in the technical committee recommending disapproval. We have some concerns about the plan. Again, as you can see from reading your agenda, we originally had some concerns about the scale of the plan, the development, and some circulation in this area that was approved here was absent at one time on this plan and has since, we believe, been addressed to our satisfaction. We still have some serious concerns about the street circulation, and as Jimmy has shown you in his presentation, the history of that, we wanted to point out to you our concern and our reason for recommending disapproval. One of our reasons for recommending disapproval on this plan is indeed the circulation system and what we believe are some difficulties with the proposed system. This is an exhibit showing the proposed system that the applicant would like for you to approve. Again, here's Richmond Road. Here is the right end, right end access only to the service road. These highlights in red show you that they proposed for that to end here and here. This is gone. This is approved. This connection, there is no connection here and there will be no connection there. This is gone. There will be no connection here. You have Eagle Creek Drive, Sand Lake. Sand Lake is proposed to terminate here. Now you have with you, has been handed out some waiver requests because for this to be approved, it will be necessary for you to approve those waiver requests as well. Our concerns, again, as you can see, we wanted to demonstrate this is the barrier median. There is no left turn anywhere into this property except down here at the light for any traffic coming up and headed north. Now with the proposed uses of this property, a hotel, a car lot, those types of uses obviously attract the traveling public, not just local traffic but traffic from out of town and similar situations. We're concerned that folks then traveling both north and those that are traveling south from Mana Ward on Richmond Road, as they travel, they're going to see there's the car lot, here's our hotel we've been looking for. They're going to hit this first right turn. They're going to come into here, and they're going to have nowhere to go. And so in an effort, as always, to encourage clear and recognizable access and circulation systems, we have a serious concern about their proposal to terminate here and not continue the public street through here because, again, we believe that although this is not a wonderful situation to have right in and right out this close, still with a public street as approved here, there are options available, and there's clear movements to find for the traveling public. Now that is a concern, a major concern that we have with this proposal, and the reason, again, that we have recommended disapproval along with, as you can see on your agenda, the other reasons. And I will add that we are on your agenda with the approval recommendation of the Subdivision Committee. The disapproval recommendations, we would be comfortable with striking items B, items D, and items E. We do believe that item A, the alteration of the improved internal circulation pattern, and item C, the altering the approved access to the public streets along with the parking layout, are certainly valid reasons to continue to recommend disapproval of this plan. And if you have any questions, I'll be happy to try to answer them. Does anybody have any other questions? If not, I guess we'll move on to the applicant. Thank you. Okay. Thank you, Madam Chairman, members of the Commission. I'm Rena Wiseman. I'm today here on behalf of CarMax LLC and 3200 Richmond Road LLC, which is the developer and owner of the property. The driving force, no pun intended, for this amendment is that CarMax, a national company, has chosen part of this site to locate a new CarMax facility here in Lexington. It would be their second one in Kentucky. They have one in Louisville. And because of their interest in this location, obviously it requires ---- Excuse me. Rory, I'm sorry. Is there some way, staff, that we could put his map just below the staff map there? I know, the one you have your hand on. I'd like to still be able to see that with your new one. Yes, please. Thank you. I'm sorry. I think that'll work. Yeah, get them, please. We'll take a break. Just hold on while we get the exhibits so our mind's eye can follow what's going on. Just as long as your exhibits all go the same way, and then I think the staff's exhibit on the end should be fine. We don't need to see the whole map. Yeah, I think we can understand. You all agree if it's like that. Thank you. Okay. I think we're set. I'll talk about those in just a second, but before I get too far, I do want to say a little bit about just who CarMax is, because that's why the plan is being changed from what you approved a couple years ago. As I said, they are a national company. They have 90 of these facilities in 24 States. They are out of Richmond, Virginia. JM Dixon with CarMax is here this afternoon and has come here several times as we've tried to get this plan through the process today to allow this new company to come to Lexington. If you aren't familiar with them, it is a used car lot. That term is probably going to be used later in a derogatory manner, but what they sell are cars that are between one and six years old or less than 60,000 miles. They you can look on the Internet. They list all of their inventory throughout the country on the Internet, but you cannot purchase the car on the Internet. You have to come to one of their facilities. But you can find a car that might be in Louisville. It might be in Atlanta, and they can get that car to you in Lexington. So you do have to come to the site to buy your car. They do not have outdoor loudspeakers, no balloons, flags, streamers, inflatable gorillas. I know that some of you might be disappointed at that, but we don't have those, or any other inflatable animal, and no shoe polish on the windows. So it is a well-run, attractive site that does serve a very important service, and it's a very fast-growing business, and that's why they want to provide this service in Lexington. It's a great site for their use. First of all, it is zoned appropriately for it. This property is zoned Highway Service Business B3. When it was zoned a couple years ago, there were no restrictions placed upon it, so car dealerships are permitted on this property. So that, first of all, was important, because that type of zoning is not easily found in Fayette County. It has ample size. It's a little more than six acres where they're going to be, and I'll point that out in a second. It's a little on the small side for a CarMax dealership, but it will work. And so that's another plus. It has great visibility, which is something that's important to this business, but it doesn't have great access, and I think the history Jimmy just went through shows you that the reason this property has not developed for all these years, given its location, it has been the problematic access. This is not this is a destination business where you come there planning to buy a car, and in many cases you know which car you're looking for because you've located it on the Internet. It's not the same as a fast food restaurant or a service station or drive-in bank where you have to get in and get out. So they don't have the same access needs as did this other plan where we had two outlots in that. And it's also a good use in terms of intensity. If you compare this, just this portion of the plan in terms of traffic intensity, if you developed this six-acre-plus site as retail, that would probably yield about 60,000 square feet of retail. Using ITE traffic generations, that would generate 2,576 average daily trips. If this were developed in a retail commercial fashion, which the zoning would permit it, if that's six acres. With a CarMax store, with its square footage of 14,000, a little more than that, based on studies that they have done and the traffic generator that they use, it will generate 580 trips, much, much less traffic intensity from this use than if you developed that property as just regular commercial retail. We, at one point in this process, to demonstrate this point, and we had many discussions with Jeff Neal about the revised circulation system and the revised uses, he asked for us to give him some traffic numbers, which we provided him. He mentioned those at the subdivision committee last month as his reason for supporting this layout and why he felt this leg of Sand Lake was unnecessary. The letter we generated compared this site, the certified plan, to the proposed plan, which has the hotel, smaller shops. This is a hotel. These are smaller shops. These two outlots in this building have not changed. I think this one got a bit larger. This is, in some sense, a lot like Mr. Anderson's development at Townley Center, very much the same concept in terms of the street, the shops facing the street, pull-in parking in front of the shops. That part has changed. And, of course, the CarMax. That proposed plan generates 2,888 trips in a day. This plan, using the same ITE generators for commercial with 112,000-plus square feet of retail and two outlots, assuming those are developed at 7,500 square feet, would generate 5,473 trips. So using an objective criteria, this plan that's approved generates almost twice as much traffic as the plan that we've presented to you. And these numbers have been reviewed and accepted by your Division of Traffic Engineering. And I'm going to pass this letter out. I think I have enough. Rena, the piece of property that fronts on Richmond Road, that is not part of this. Is that correct? That's owned by somebody else. Are you referring to this? Yes. These parcels are not owned by Mr. Anderson. Okay. All right. They're the same ones that you see here and here. I want to talk about the circulation. I guess I'm going to go back here again. What we have done here is to show the comparison of the circulation of the two plans. Now, you'll see some differences because I think this exhibit does not fairly, we suggest, represent what this plan shows. This is accurate and this is accurate, and that has not changed. This is Beale Street that comes in, that is constructed as a public street, will be constructed as a public street, as is this portion of Sand Lake connecting to South Eagle Creek Drive, which was the most important thing that was finally be able to be accomplished was this connection. What has changed is that this plan showed Sand Lake continuing and tying in to the service road as a public street. But again, this one, this was all going to be a retail shopping center with two outlots where these uses want, as you know, as much access as possible. And usually we're down here fighting over whether we can have access, not whether we can take away access. This is all a little bit turned upside down. We're also arguing about a plan that's going to generate less traffic. So we're sort of upside down on the normal way of doing things. The reason that this plan does not continue this as a public street is that the CarMax facility does not need that access. They need the customer to be able to get into their site, they park in this area, the customer parking, and they go into the sales room. The black line here that's cross and the cross hatching, this is their secure sales area. The cars are parked outdoors. But this is just the same, if you will, as this. This is their store. So they don't want a road going through their store. And they don't need to have that connection. This is ample for this kind of destination business that doesn't have to have people able to get in, get out from every direction. Now, what we propose is that Sand Lake will be a public street to this red line. It will then transition into a private access easement. But it will be the same cross section as a public street, 31 feet of pavement, sidewalks, curbs and gutters on both sides. The way you will know that it's not a public street is that you cross over this concrete texture. Because the rule is that a public street has to terminate either in a cul-de-sac or into another public street, we have asked for a waiver of that. We explored, you might remember it in one of our committee plans, a cul-de-sac in this location. Mr. Neal did not care for that. A cul-de-sac in this location would use up much of the parking area and would probably be more confusing to the customer than helpful. So we've asked for the waiver to do it in this fashion. Mr. Neal has also reviewed this. And this will function as a four-legged intersection with stop signs, and he has said that functions as well. The other reason, the other thing that we are not doing, and this is, I suppose, what this whole case is about as far as the staff is concerned. Again, what I want to make sure, this arrow, as I say, is misleading because we're not you don't stop there. This will continue on a roadway. It will be private, but it will serve and function as a public street. We will not, we do not propose to connect it to the service road because, again, we feel that it's unnecessary for the way this site is now functioning. The access to these lots haven't changed. The access to this area hasn't changed. This has changed. But the overall traffic generated by this development, remember, is about half of what this is. Now, when Jimmy was going through the history of this site, he left out, I think, a very relevant piece of history, which is that when this plan was considered by you in September of 06, this commission and traffic and planning had a lot of problems with this very segment that we have removed. The concern was that people exiting and turning onto the service road would create a dangerous conflict being this close to this entrance to Richmond Road. We have shown graphically with these little cars how that functions. You have cars lined up to turn right, to turn left to get out onto Richmond Road. These cars coming in, they're backed up, they block this property, which is not owned by us, potentially could back up and block this property. Because you had a concern about this and because the staff had a concern about that, when you approved this in September of 06, it was stated to you that the Division of Traffic Engineering has requested that the public road nearest Man o' War and Richmond Road intersection, this one, be designated as a one-way street with traffic traveling from east to west. They believe that the proximity of the service road to such a busy intersection could create traffic problems if allowed to be two-way traffic. That's in the minutes of September 28, 06. And, in fact, the condition was that the service roads, initially these were shown as access easements, be changed to public streets and that the east-west service road shall be designated for one-way traffic away from Richmond Road. They only wanted this to be one way in so you would not have this conflict. Now, we don't need a one-way in for this use. People have ample access through Beale Street, which is to be a public street. This is a public street. It's been approved by the Council as an amendment to the Richmond Road Plan, as the staff stated. This was considered a potential bottleneck. When you re-approved the plan in July of 07, that same condition was on there, that the service road be designed for one-way traffic away from Richmond Road. Somehow, and I wasn't involved with the plan at the time, between the time you acted on it, there was further conversation, I believe, with traffic and the staff, and it was certified with this as two-way traffic. I wasn't there. I don't know why that was. But, certainly, the concern was in 06 that that was a potential bottleneck connection, and if it was going to be there, it should only be one way. We think that eliminating that connection precludes that sort of bottleneck. It's not needed. And, again, we're talking about uses that will generate half the traffic of what's in front of you. So in response to the staff's reason number A, that this amendment alters the approved internal circulation pattern by reducing the length of Sand Lake Drive by 550 linear feet and prevents its northern connection to the access road parallel to Richmond Road, our answer is that's a true statement. Yes, it does, but we have a reason for doing that. Now, the second or the other reason that they've given is that it proposes to offer the approved access to adjoining public streets. I believe that's the same thing we've just talked about, and the parking layout and allocation. I think that's obvious. That has been changed because the uses on the site have been changed. All of that leads to our waiver request, as I mentioned, because we are not terminating this either into another public street or a cul-de-sac. I think the staff has given you proposed findings of waiving the street termination requirements under Article 6.8b and Exhibit 6.7 of the Land Subdivision Regulations. Should you approve this plan? We certainly hope you do approve this plan, and if you do, we have our own findings. And what our findings say, I think I've made these points, is that it's going to transition to a private access easement. There will be a textured concrete band to delineate the transition, but it will have 31 feet of pavement, curb gutter sidewalks on both sides, comparable to the public section. It will still allow for internal circulation in the development. Again, the internal circulation, none of the other lots are affected by this, while enabling the auto dealership to maintain its secure display area, as well as loading area and customer parking. Cul-de-sac would unnecessarily cause the loss of parking spaces, encroach into the secured sales area, of the auto dealership, and continuation of Sand Lake Drive to the service road would create traffic conflicts at the entrance to Richmond Road. So that's primarily why we believe that that circulation system should change and that it will function properly. And I think that was the rationale behind the six of you who were at the subdivision committee and voted to recommend approval of this plan. The only, if I listened to Tom correctly, what I understood that the concern was from changing this plan to this plan, was that if he said that, first of all, hotels and car dealerships are traffic generators. I think we've pretty well demonstrated they're not the traffic generators that these uses would have been. And he said that people would be coming in and turning right here, and they have nowhere to go. That's, if they make that turn, that's probably right now until these properties were to redevelop to where they'd be able to connect to these streets. That's why Beale Street, Beale Street is a public street. This is where people are supposed to come in to the shopping center, the shops, the hotel, and to CarMax. So that's why we have a public street intersection there. If they come in here, they're going to these businesses. If they want to go to this, they have the public street intersection to come to. But I believe that basing disapproval of this plan on the fact somebody's going to make a mistake is just doesn't hold water as far as we're concerned. I wanted to mention something else. I know that Mr. Simpson is here, and I'm sure has many things to say. You're not listening to me, Bruce. You never do. He represents, I believe, the owners of these two properties that Ms. Whitman asked me about. I'm not sure what the specific concern will be, but I will tell you, and I'm going to have Al come up in a moment and talk about our second waiver, concerned about the ability of these two lots in the future to be incorporated into this development. This site's not developed. This has a veterinary clinic. This is not a real street. This is not a real street. It's contiguous to this property line. As Al will explain, in order to construct the street within the 50-foot right-of-way and not go on this property, which the government can't go onto somebody's property to build a public street unless they get an easement, in order for this street to match Richmond Road, this point of access, this point, this point, and Al can explain those better than I, the finished grade of this road will be above this property, this undeveloped property, necessitating a retaining wall. We have submitted a letter to Mr. Newman explaining the construction rationale for that. Because it was necessary under the Richmond Road Ordinance to demonstrate that. We had some previous discussions about that. It is still possible, when this site develops, it will be necessary to grade it, because this site slopes back. It will have to be graded, just as these lots will have to be graded. And it will then be possible for this property to tie in to Beale Street. And be able to connect back here. Same opportunity here. This is a private access easement, but we propose that there be a note on our plan, and we would put this on a record plat, that says that these properties can have vehicular access to this private access easement at such time as they develop. Yes, they're going to have to do some site work, but site work is required to do all of this site. Access will be available to those properties if and when they redevelop. Excuse me, Ms. Wiseman, I just wanted to go back. That retaining wall for Beale Street, it's already built. That is there, yes. We had grading plans that have been accepted and approved by the Division of Engineering back then. I believe it was September. Right. I'm trying to clarify in my mind the purpose of this waiver. Okay. And I'm still having some difficulty, because the first thing I was waiting for was to see if that retaining wall was there and if it's built. Okay. I'm going to let Al explain that, just because I think he can explain it more clearly than I can. I'll hand that note out in just one second. And also have a copy of the letter that we submitted to Mr. Newman with regard to shifting the roadway. And, again, I'm going to let Al explain that, because he's an engineer. I'm not. I want to go ahead. Before today, I still thought that the rationale for this amendment, for the denial of our plan, was, I guess it still is, that this plan alters the essential character of the development as originally approved. And I want to talk about that for a moment, because I don't know that I've ever seen a development plan recommended for disapproval for that reason. You notice there's nothing on the staff recommendation that says that this plan violates the zoning ordinance or the subregs. Now, we are asking for waivers for two of them, but that is a procedure. Excuse me? I said that because we're going to – they're not opposing it because of the waivers. Okay. But you're right. You're right. We are asking for waivers of those. They haven't said that this plan creates a flooding problem. Now, they do talk about the traffic problem of the person who turns into the wrong entrance. That's the traffic problem they've cited. They don't say that this creates any sort of hazard or nuisance to the public. They say it alters the essential character of the development. And the way it alters it, it changes the use to uses that are less intense. Based on the objective – based using objective data, this is less intense. Does it change that plan? Yes, it does. Amendments are permitted under your system. Every note on a development plan – the note on the current development plan, too, says this plan may be amended with the approval of planning commission. Amendments aren't against the law. They're allowed for. There are certain circumstances where you deny them if you don't meet the zoning ordinance, if you don't meet the subdivision regulations and they aren't waived, it creates some sort of traffic hazard, nuisance, and so on. That hasn't been said here. None of that has been established by the staff. I want to – this struck me just a little bit ago that the phrase, the essential character of the development, is originally approved. And that's the language in the ordinance. The ordinance does say at section 217E that in addition to the standards listed in 214C, and those are the typical ones you deal with, the commission may also disapprove or modify the requested amendment if it finds that such amendments will adversely affect the public health, safety, and the environment. that case hasn't been made, that's not the case we have been presented, or alter the essential character of the development as originally proved. It says development. I'm not spilling hairs, but that doesn't say development plan. It says the development. There is no development here. It hasn't occurred. What's the character of this? The character of this that it's a vacant piece of property that's zoned B-3. Whatever goes on there is going to establish the character. Now, this, oddly enough, is the same argument the staff made when Mr. Anderson came to rezone this property in 2006. One of his arguments was that the Estes property over there, which he didn't zone at the time, had been rezoned to highway business commercial. That violated the plan, and therefore, it was an unanticipated change that altered the character of the area. The staff rejected that argument, saying that it hadn't happened. It's a vacant piece of property. There's nothing on there, so it can't alter the character because nothing has happened. Well, they can't have it both ways. There is no character to this area. It's a vacant piece of property. I think what this talks about is when a development is underway, a development, and you have been given a plan of how this 100 acres is going to develop, and they come in for the last 50 acres and completely change the scheme when people have already invested, assuming that that's how it's going to develop. That's what this language addresses, but not changing this undeveloped plan to that. So I think that that is a weak, if you will, basis to determine that this plan should be disapproved. With that, Al, can you come up and explain the retaining wall? Okay. Mr. Gross, before you start, I was going to ask him, for my purpose to clarify, I think this waiver, to me, if I'm understanding it correctly, is asking for permission for where a Beale Street turns from a public street to a private street to do that cross-section. That's all you're asking for in this first waiver. Am I correct? Yes. Okay, so now I'm with you. I understand where you're going. The transition of the sand, like the first one. Yeah, that's the first waiver. We haven't gotten to that one yet. I'm trying to understand the first one. We're going to talk about the second waiver now, right? Well, finish it in case somebody else has a question. But I was trying to clarify what you were asking for in the first waiver. Then we can go to the second waiver. All right. So does everybody feel pretty good about that on the white paper that the waiver they're asking for is for that transition between the public and the private street there on Beale, where that red mark is? Okay. All right. The dimensions stay the same. It's just the transition materials to show you going from one section to the other, that changes. Okay. I just wanted to be clear on what we're asking for here. All right. I just want to make sure I'm clear. The white waiver is for the reduced cross-section, right? Construction of a standard street cross-section. I think that's the one you're talking about right now. Right. And the pink one is relative to determination, right? Yes. Yeah, the pink one is the cul-de-sac. Right. And I'm going to try to explain why we're requesting the waiver on the white one, the cross-section. Right. Okay. That's why we're on the same page then. Okay. And a picture is worth a thousand words, especially when it comes to me trying to explain anything. And what I've put up here, which you probably can't see but will help me talk, is the cross-section for Beale Street that shows basically what we're requesting in the form of a waiver. We have a retaining wall right here that is adjacent to the Gentry and Markham property. And that retaining wall is necessary to keep us from spilling fill or construction, roadway construction material, onto that property. And we've had to move that wall in a southern direction away from the Markham-Gentry property line some 12 feet so that we have enough room to construct that wall and stay off their property. And that wall is required because of the proposed, the existing grade of Richmond Road, the existing grade of Eagle Creek Drive, and the proposed grade of the predominance of this commercial development. And to simplify it, basically the grade proposed here is the same grade as Richmond Road. And the Gentry and Markham property falls away from Richmond Road 10 to 12 feet in elevation. It falls down to the creek. So any commercial development typically wants to be elevated to the level of the adjoining street, in this case an arterial of Richmond Road status. You wouldn't want it below it tremendously. You could have it above it. But because of the grade of the site, it was chosen to try to construct the proposed development at approximately at the grade of Richmond Road. Right. Section CC is Beale Street. So what we've done is we've shifted the retaining wall into the right-of-way and then constructed the street section as a typical subdivision regulation required section, 31 foot of street and curb and gutter. And what we've had to compromise on is basically the utility strip has been eliminated on the northern side of the section. We have an integral curb and sidewalk that's pressed up against the retaining wall. The sidewalk has been widened to 5 feet instead of 4. And then on the southern side of the section, because we're running out of room, we've run out of room relative to how we've had to push the wall from north to south, we have compromised, if you will, the standard utility strip. We have added the 7.5 foot utility and sidewalk easement outside the 50 foot right-of-way so that we can get the required physical improvements of the public street within that corridor. So that's what we've requested in the form of the waiver, the ability to shift away from the gentry market and property line, construct a retaining wall to retain the roadway onto our property, and then to make up for that shift in two ways. One, by having an integral sidewalk, curb and gutter, removing the grass utility strip, and the other, the second way, by adding an easement outside of the right-of-way that provides the utility strip and the 4 foot sidewalk on Dennis Anderson's property south of Beale Street. Well, that's been caused by the gradient of the existing features, Richmond Road, Eagle Creek Drive, the proposed gradient of the new development, and the fact that we can't do work on somebody else's property. So basically the gradient has caused, has necessitated, yeah. Basically the gradient has necessitated this retention wall, which requires a waiver for that cross-section because it's going to impede into part of it. That's a fair statement, yes. All right. Okay, I got you. Okay. Unless you have, I'm sorry, questions, I have our findings to submit, although the staff has given you findings on the white sheet. But, again, I would summarize by saying this is an amended plan. We have changed the circulation system in the one specific manner that I've mentioned. It functions better. The uses have changed. These are uses that are permitted in the ordinance. This will facilitate CarMax locating here. We think that this is a better plan in terms of intensity. I don't think that can be argued. We don't think it creates any hazard. We would ask that you approve this plan. We would ask that you approve the two waivers that you requested. And we're available to answer questions that you might have and obviously want to respond to any points that Mr. Simpson brings up. But I believe, I don't know when you'll call for folks, other folks to speak, but I think there is one neighbor here, Madam Chairman, that does want to speak about this plan at this appropriate time. Are there any other questions of Ms. Wiseman or the applicants? Okay. If none, I guess we need to find out if there's anyone here in the audience who wants to address. I guess we need to get the opposition first, and then we'll hear the audience responses, both pro and against. Sorry, Mr. Simpson, it's your time. Thank you, Madam Chairman. I am Bruce Simpson, and pardon my hoarseness, promise not to shake hands with anybody. I thought you were going to take the microphone. Suffering from a little bit of that bud that's going around. But in any event, I'm here today on behalf of the two property owners, Mr. Markham and Mr. Gentry, who own property that's been referred to in connection with this matter at 3292 Richmond Road, Markham Gentry property, which is here, and Kirk Schneider's property at 3270 Richmond Road, which is depicted here. Passing out some information, which I'm going to cover shortly. I do have some witnesses that I'm going to introduce to explain to you some of the history of their concerns about this property. And I'm going to expand very briefly on what Jimmy Emmons shared about the history of the property. And the purpose of all that is, as you all know, this body serves the community to make decisions which are appropriate in connection with all the property that may be impacted by any change in land use. I know that's somewhat simplistic, but I think sometimes it merits pointing out, particularly in cases like this, where we're not talking about a zone change. We're talking about a change in a development plan. And it is a significant change as it applies to the property owners that I represent. And it's important for this body to keep in mind that this is a community decision-making body to think more broadly than just one user, which Rena has conceded is the driving force for this change. As the history of this property, Mr. Anderson's development, which includes the property that used to be referred to as the Estes development, Mr. Anderson now owns all of this property back in here. The history of this development reflects what's been articulated, that access to the property, to the Estes property, and to the property that used to be owned by Jazz Sacon that Mr. Anderson purchased, and the properties that I represent, those two properties, access has always been an issue. And there's been competing interest, if you will, about that access, as you would expect. The truth of the matter is all this came about because several years ago this body decided to change the zoning on the property, which really wasn't in compliance with the comprehensive plan. And we've kind of played catch-up to a certain extent on how to deal with how the property is going to develop ever since then. But in any event, the Estes property, and I'll refer you to under tab number two, I put a little timeline together for you. Under tab number, excuse me, tab number one is a timeline, which I'm just going to briefly touch on because I cannot go into all the detail, rest assured, in each and every tab, the 16 tabs that I have. But starting in 2004, you know, the Estes property, they came before the Planning Commission. They wanted a zone change. This used to be a daycare center. It used to be a boat out there, if you remember. And they wanted to do a commercial zone change, and the staff recommended disapproval. The Planning Commission recommended approval, and it was, I got notified by Mr. Mark and Mr. Gentry that, you know, if Mr. Estes, who had been their neighbor for a number of years, wanted to develop his property, they just wanted to make sure that when he developed this property that the access that had been planned generally for this corridor at the time, which consisted of this service road. If you look up and down Richmond Road, you see these service roads all over the place. They wanted to make sure because they only had right in and right out. And Dr. Snyder, who operates a veterinarian office here, you know, all his customers struggled to get in here as well. The Gentry-Markham parcel was vacant, but Dr. Snyder does operate his veterinarian office here. And before all this started, he did have access. Before they did the improvements on Richmond Road, they widened it. He was able to come out. It wasn't necessarily safe, but he could come out and make a left-hand turn. When they did the improvements to Richmond Road and they extended the lanes and widened them, they put a median here. And so for the last many years, the only way for people to get to Dr. Snyder's office is if you're not coming from this area, then you've got to come down here and make a U-turn or come back around. There's only right in and right out to get to his veterinarian office. So it was really important for him, it was really important for Markham and Gentry, that when Mr. Estes developed his property that, you know, they wanted to be involved in the access, the connectivity, so that they could get to a signal on a public street. And so I will go over with you in a moment what took place, but basically Mr. Markham and Mr. Gentry got involved and informed Mr. Estes that they could not object to his zoning. They just wanted to make sure there were access issues worked out. And subsequently, as the record will reflect in the plans that you all considered, that that was recognized in terms of why the plan was as it was approved previously to what you're considering today, the access issues in terms of the streets that were going behind all of these properties and going down this way, which is the current plan. So it started in 2004 with the Estes property. And then Mr. Anderson got involved in this particular area with the Sand Lake property, which is north of where the new street's coming in from Eagle Creek there. And there became a series of amendments and a subsequent rezoning of that property. And again, Mr. Markham, Mr. Gentry monitored that situation to make sure that access in terms of future connectivity and access to the signal would be addressed satisfactorily. And they monitored these proceedings. They attended the meetings. They called them many, many times, which is, you know, this is a citizen tribunal. Terry McBrayer doesn't like me to say this very often, but I do tell people, you know, I said there's no lawyers on the planning commission, no judges on the planning commission. I said you can go down there if you're prepared and represent yourself. You really don't need to have a lawyer. I mean, it's not designed that you have to have a lawyer. I probably get some criticism from that from the firm that may be watching this, but that's the truth. It really ought to be set up so that the public can come down here and pay attention to what you all are doing and read the minutes and talk to the staff and understand the process without having to pay me. I mean, the truth is that's the way it really ought to be. And if it operated perfectly, I would be unemployed with respect to planning and zoning. And perhaps in the whole scheme of things, that may be the benefit of community. I don't know. Unfortunately, and fortunately, I get called, and I don't say no. So I'm here. But my point is, you know, this really is a citizen's body. And Mr. Markham and Mr. Gentry, as citizens, paid attention. And they got involved, and they made sure that as the Anderson property unfolded, as it developed, that it didn't have any adverse impact on them. And so when this body made its decision in September of 2006 to show the development plan that you all approved, 2006 plan that you all approved, that Mr. Markham, Mr. Gentry, and Mr. Schneider found to be acceptable, you all found to be acceptable, the staff found to be acceptable, you approved it in September of 2006, showed a public street coming from North Eagle Creek, coming around the property, coming down the service road that's been here for years, and then this new connection that is now called Beale Street, a public street that goes out to Richmond Road. So you had a public street like this to serve this entire property. And the folks that were impacted, my clients, were satisfied that they would be okay. They would live with that, and based on the way the development was presented, in terms of how it was going to be developed, what it was going to look like, they were pleased. And so nothing really happened after September of 2006 when you all approved this plan until the following last year in July. And I happened to be here that day, and I remember listening. It was a rather long hearing about mitigation on the Army Corps of Engineers and what Mr. Anderson had done, whether it was satisfactory. And that was really the substance of the whole meeting was to deal with a note about whether or not they had properly mitigated, you remember the discussion, I'm sure, mitigated the impact of that creek that is under this property that the road is on top of that now the used car lot will be on top of, that it's all encased in concrete, et cetera. So there was a lot of discussion about that. And anyway, there was more discussion even after that. But the bottom line was, if you look on the plan, is that it ultimately got everything approved. And on September the 6th of 2007, Chris King signed off on the final amended preliminary subdivision plan and the final development plan. This is a combined plan, a final development plan and an amended preliminary subdivision plan. And Chris, after the developers submit the project to the government, the plan to the government to get all the sign-offs that everything is hunky-dory, this is the way it's going to be. The way you all approved it about a year earlier in 2006, in September the 6th of 2007, Chris says, everything's done. You can go get your start construction. September 6th of 2007, they get the green light to go forward with construction. Now, in connection with that, I want to pause and just go through some discussions that amplify what I shared with you about and document the history of citizen participation and the representations that were made by the developer with respect to what was ultimately approved by you all and signed off by Chris King in September of 2006. Under tab number five, and I have included in this evidence book all of the minutes of the planning commission relative to the zone changes that took place on the Anderson property known as Sand Lake and the Estes property because those are the properties that impact us in terms of how this development plan looks today. But in June of 2005, Mr. Anderson had purchased the property by then, and he came before the planning commission relative to road connectivity and Mr. Murphy was representing him at the time, and I have just lifted a quote from there, and I put the minutes behind it so you can see the entire transcript of the hearing. But to emphasize the importance of why things happened the way they did with respect to this road plan and the other adjoining neighbors, Mr. Murphy, attorney, was present representing Dennis Anderson. Mr. Murphy stated that the purpose behind the preliminary subdivision plan is to add a street connection to Eagle Creek Drive. Mr. Murphy explained that he had brought a zone change before the planning commission recently for the Estes property, which borders the subject property. He said the applicant in that zone change had chosen at the time to dedicate space for a connecting street and that Mr. Anderson had agreed to pay for and construct the streets. Mr. Murphy added that this connection would provide a major traffic improvement in the area. The next time that Mr. Anderson on his property known as Sand Lake came before the planning commission was in October 27th of 2005, about four months later. Again, the issue of road connectivity and how this project was ultimately going to be developed because you had different owners and there were different interests that had to be considered in terms of how properties were going to interface with one another. The importance of that was acknowledged. Mr. Murphy acknowledged that he had stated in 2004 that the creek acted as a physical boundary, this creek that runs through the property that you all had so much discussion on, it still exists today, runs right along in here. The properties do slope down this way and down this way, and there is an open creek, and I'll show you a photograph of it shortly, but that was a concern. You all had a lot of discussion about what to do with that creek, whether to cover it up or leave it open. Mr. Murphy acknowledged that he had stated in 2004 that the creek acted as a physical boundary. He said that the zone change left the planning commission with a unanimous recommendation of approval, but when it came before the council, the owners of the current adjoining B-1 property, that's Mr. Markham and Mr. Gentry, that's me, but when it came before the council, because we weren't involved in the planning commission hearing at that time, at least I didn't get called, but when it came before the council, the owners of the current adjoining B-1 property, Mr. Markham and Mr. Gentry, I'm adding that, objected because they felt it would adversely affect their property if the SS parcel was rezoned to B-3 and they did not have an improved access. Mr. Murphy stated that the resolution was that Mr. Anderson would provide the right-of-way to construct the road over the creek so that the property would not be left with bad access situation. Also, during that October 27th hearing, Dal Harper, who was your chairman at the time, and again, so the purpose was to deal with the access situation and that the road needed to be put where the creek was to deal with the access issues behind the Markham and Gentry properties that also went behind Kirk Schneider's property. Mr. Harper, who was the chairman at the time, asked if there would be a retaining wall necessary to enclose the parking area for the proposed development, talking about the Anderson development. And if so, how high would it be? Mr. Murphy deferred to Al Gross, who you heard from earlier, in a partners who indicated that no retaining wall would be necessary. No retaining wall would be necessary. This was in October of 2005. So the next time it comes before or that anything happens, really, at this point in time, everyone is of the opinion, anyway, as of October 27th, 2005, that there's not going to be any retaining wall necessary. The road is going to go where the creek is, which is behind my client's property. And the next step is reflected under tab number seven, which is a letter from Mr. Murphy to then-Jay Whitehead, who was commissioner of public works, dated April 20th, 2006, in which they're seeking an amendment to the Richmond Road Ordinance to allow another right in and right out access onto Richmond Road, which ultimately was approved by the Urban County Council and is the reason that Beale Street is right here. They approved this new connection onto Beale Street, and so it got in here, was approved, and then this area here, which currently will be closed. You won't be going in there anymore. Instead, there will be access into and out of this development, you know, right here. So, in any event, went to the council. Again, it was represented in the connection with that letter that Mr. Anderson, companies have worked diligently to assemble this parcel from different owners in the past. Lack of cooperation between owners has prevented a comprehensive traffic solution to the issues in this quadrant. The property is on B3, and we are in the process of submitting development plans to the planning commission to develop the property. And it goes on, explains, you know, what's going to happen. So, even at that time, everybody, and when I say everybody, the people, Markham Gentry and Kirk Schneider, everybody's on the same page with respect to how are we going to connect up all these properties in terms of the road situation. So, that was in April of 2006. The next time that comes before it, this property, comes before any decision-making body is set forth under tab number 8, which is September 28, 2006. And that was the zone change. Remember, the Estes property got rezoned to commercial earlier in 2004, and now in 2006, the Sand Lake property that used to be owned by Mr. Sacon and Dennis Anderson purchased, now this property is going to be the subject of a zone change. And it was, and it came before the planning commission on September 28. And Jimmy Emmons, who you heard from earlier, discussed in pertinent part, I've reflected on the first page of tab number 8, Jimmy said that the petitioner proposes to put the creek in a culvert from Manowar Boulevard to South Eagle Creek Drive. He said that the staff usually would not be in favor of such a proposal. However, the staff felt that the proposed public streets would be a great improvement to the area. The creek should be routed through a culvert in order to accommodate the construction of the streets. So, it is pretty unusual for your staff to say, particularly for Jimmy to say, in my experience, let's put a creek in a culvert. But he obviously recognized that the advantages of having a public street, which was depicted on that development plan right there that you all approved, that the advantages outweighed the detriment, if you will, of covering that creek up, because this public road, public street would be installed. And so you all listened to those arguments. There weren't arguments to the contrary of, you know, that are being raised now about any concern about traffic impact of the development. They didn't say, well, we really got too much traffic, but we don't want to tell you. Now they're telling you they're going to reduce traffic as a fortuitous circumstance of what they are trying to do, I suppose, in connection with this case. But it certainly wasn't a concern for them then in terms of trying to sell the project to get you all to approve the zone change. What they tried to convey to you and sell to you and the staff required is that there be a public street, and you all approved it. So the next time it came before the Planning Commission was, as I said earlier, in July of 2007, last year, and that's when there was a lot of discussion with respect to the issues associated with mitigation. But it really didn't have anything to do with the connection of the street or anything of that nature. So the next, you know, Stan Markham, who I'll have come up here and share with you because of concerns that we have about what you're being asked to do, he's monitoring to see, well, when is the construction plans going to be filed? He's a citizen. He's trying to find out. So he calls engineering. The construction plan's in. No, construction plans aren't in. Construction plan's in. No, they're not in. He said, well, you call me. Let me know when they're in because I want to see what they say. I mean, this is a citizen on his own, as it should be, not paying anybody to do it. It shouldn't be that complicated. But he happens to find out. Nobody calls him. He happens to find out inadvertently he's up at the Planning Commission toward the end of September of 2007 and finds out there's been construction plans filed and approved, filed and approved, and that these construction plans, for the first time, show a detention basin that varies in height but goes up in some instances to 16 feet. Pure concrete. If you've ever seen the Berlin Wall, you know what I'm talking about. I was in the Army and I was at the Berlin Wall, so I know what I'm talking about. I have some photographs to show you. The point is this with respect to that detention basin. Excuse me. Did you mean retaining wall or? Retaining wall, I'm sorry. Right. Sometimes I confuse myself in terms of the language. But the retaining wall, 16 feet tall. Tim, if you could take those over there to Alden. Stan finds out about it. He calls his personal attorney, David Inlow, who I'm going to have speak here shortly, too. You could dim the lights. I'm not sure if you can see really. If you look under tab number two, you can see the pictures that I'm referring to on the big screen because sometimes they don't show up with the right level of acuity on this screen. But to the left, you can see the start of the wall. This picture was taken October 31, 2007. I took it myself because that's the day I got called about this matter. David Inlow had been representing Mr. Markham and Mr. Gentry in connection, had been for some period of time in a lot of different business matters. But this wall started and actually a month before when David was called and said, you know, Mr. Markham told his lawyers, you know, we've got a problem. They're doing some kind of retaining wall out here. I never heard about it because it's always been represented. There would be no need for a retaining wall. So what's going on? So if you look under tab number 13, you'll see what's called a motion of Paddington Trust and Michael Gentry. Paddington Trust is the legal name for Mr. Markham's interest in the property and Michael Gentry for a hearing on the development plan of Anderson Lake LLC. I'm referring to this property because of the construction of this retaining wall. This was filed on October the 1st. Complaints were made almost contemporaneously when the construction of this retaining wall started. The point about that and the purpose and the significance of it is that we flagged it, whoa, whoa, this is new. This was never on any development plan before. It was never discussed before. In fact, it was always represented that we didn't have a retaining wall, would not have a retaining wall. And the construction of this wall continued even over those protests. Up to the point, you will hear Mr. Inlow state that when he went to the technical review committee on October the 24th, which is the first time you have the opportunity to speak anywhere about anything in connection with this kind of a situation, that, you know, we protested it. And Andrea Weddle, who was there, informed the applicants, engineers, that you all build this retaining wall at your own peril if it turns out you shouldn't be building it. We believe they should not have been building it. We believe that the law requires, and I will show you in a minute why I believe that, the law required them to denote a retaining wall that would be 16 foot high, that would essentially wall off these two property owners. You know, I mean, it really is a matter of fairness if you're going to do something like this in connection with the approval of what you've come before this body to do. And keep in mind, and this is critically important, these folks came before you that are here today on July the 12th, and they talked about mitigation, about the Army Corps of Engineers issues. Now, when did they know they were going to use Carlisle? I don't know. But I would suggest to you that sometime before Chris King signed off on this final development plan, which is right there, it's in the record, undisputed, September the 6th of 2007, they filed their construction plans on September the 14th, depicting a retaining wall with the Division of Engineering. First time it had ever been filed in any governmental body. Eight days after Chris King signs it with no retaining wall, they file one with a retaining wall. They get a grading permit, and they start construction. Now, I suggest to you that that was an error, that they got approved. But in any event, we complained. Stop. Stop. You know, we've got a problem with what you're doing. And we got a lawyer, Mr. Inlow, filed a motion. Don't go any further. And you have your government's own counsel, at least on the 24th of October, saying, you know, you build this at your own peril. And now they want to use the fact that they've constructed it as a hardship not to have to tear it down. When they didn't mention a thing about this retaining wall to you all in July, when you had this lengthy debate, they didn't mention it in September of 2006 when you approved the zone change and approved the public streets based upon staff's recommendations of approval, based upon the necessity of putting the creek in a culvert so that you have the better access to road, according to Jimmy Emmons, a statement I've quoted to you. So none of that was brought out until they go and file these plans with the Division of Engineering, and lo and behold, they start the wall and continue to build it in the face of protest. And now they want to say it's going to be a hardship for us to tear it down, and we've got a new user and everything has changed, and the law required them to file an amended development plan to show these changes. They filed it after the wall was probably 60 percent built. And now they want to say, well, you know, we're going to cut traffic so we don't need that public street. We're going to put half the car lot on the property that's there under Anderson's Sand Lake property, use about half of it for the car lot and have a private access easement, and we're going to build a wall that we never discussed. And finally, from 2004 until September the 6th, 2007, there was no mention of any retaining wall, notwithstanding the fact that the law required them to disclose it. Why do I say the law required them to disclose it? If you look under tab number 14, it talks about a final development plan. And if you peel on over and you talk under 21.4, application of land subdivision regulations, this is the law, okay? What it says is, although development plans are not subdivision plans, quite often the development plan does indicate a need or an intent to subdivide property. For any such development plan, the design and improvement standards contained within the subdivision regulations shall be applied. Shall means mandatory. Shall be applied to proposals contained on the development plan. You skip down to 21.8c. Development plans and preliminary subdivision plans may be combined. Now, as I mentioned earlier, the development plan, this document here that you all approved, that Chris King signed finally in September of 2007, is an amended preliminary subdivision plan and a final development plan. It is a combined plan. So that this particular provision of the ordinance applies. Development plans and preliminary subdivision plans may be combined. It is recognized that for certain development situations, to both the developer and the commission to combine the functions and requirements for development plans and preliminary subdivision plans in order to streamline the development approval process while not reducing the quality of the review. The following provisions shall be applicable to any such combined plan. Shall. Subparagraph 2. I've underlined it. The plan shall show all information required for a development plan, preliminary or final as appropriate, and all information required for preliminary subdivision plans as set forth in Article 5-2 of the Land Subdivision Regulations, which means now you have to go see what does Article 5-2 of the Land Subdivision Regulations say that has to be included. In tab number 15, under page 5-2 of the Land Subdivision Regulations, if you look at the requirements for a preliminary subdivision plan that's referenced in that article for a combined preliminary subdivision plan and a final development plan, what it says is, as to other conditions, is this. The following information requirements shall be applicable to any submission for commission consideration of a preliminary subdivision plan. Article 5-2, subparagraph D, number 11, other conditions, shall include such as ponds, marshes, or other significant natural or man-made features. Owners or subdivision name of adjacent land, including record plat reference, and other information related to the adjoining land as necessary to ensure proper continuity of storm drainage, sanitary sewers, street grades, and other facilities. It is noteworthy that they did not disclose in the September plan that Chris King signed off on, this plan right here, there is nothing on this plan, a preliminary subdivision plan, to indicate a retaining wall. Yet, on the plan that's before you today, there is depicted the one where they took out the public street that you approved after hearing. On this plan, this is a preliminary subdivision plan and a final development plan. Now they're showing the retaining wall. So our objections are they have not complied with the law, they have built a wall at their own peril in violation of the law, and now they want to excuse their decision to move forward and not make them tear it down, even though they were, got approval on, filed this thing eight days after Chris King gave them the green light to do it, with nobody in the planning commission staff ever knowing anything about a retaining wall. In fact, the only evidence discussion whatsoever in the record about a retaining wall as to this segment of this development is Al Gross' testimony that, and I put it in the record, there would be no need for a retaining wall. So as a citizen, Stan Markham, Mike Gentry, shouldn't they rely upon what was represented and what you all decided, being carried out, that the public streets would be built and there wouldn't be any retaining wall because none was needed? Well, here we are. Let me run through these pictures very quickly. Dim the lights, please. This is the existing creek. It's currently being put in a concrete culvert, the principal purpose of which at the time, the justification, was to put the road over it. Now we're going to put a used car lot over it, in principal part, for half of the development anyway. Next slide. This is what it currently looks like from the Markham-Gentry property looking east. That wall is probably six to eight feet tall at that point in time. Next slide. This is a shot of the Markham-Gentry property from the south. Next slide. This is where it's about 16 feet. You can't see really the top of it. Next slide. Okay, that's it. That's the history that's already in your information. What we're asking here, and I want Stan Markham to come up and share with you, what we're asking here is basically, you know, it's a pretty transparent process, these planning commission cases. I mean, just if you want to do something, go tell your neighbor, this is what I want to do. Work it out. I have heard now for several months since I've been involved in this case that they have to build all these retaining walls because Mr. Markham, Mr. Gentry have refused Mr. Anderson the right to put field dirt on their property. I've asked them about it many times. I said, fellas, have you all said that? Absolutely not. David Inlow in October at the TRC meeting of last year when this thing was still being built said, if you want to put field dirt on there, put field dirt on there. And no one ever asked him previous to that. And I've always maintained, I maintained at the subdivision committee meeting when I spoke with you all earlier, that put the field dirt on there if you need to. If he needs to put his dirt when he's building all this stuff, put it on there. But there was never any notice or any expectation there would be a 16-foot concrete wall surrounding this property and Mr. Snyder's property. So I'm mystified. He will tell you that Mr. Anderson did try to buy his property at one time. They had a discussion, and he was asked, are you all going to put field dirt on your property right now? And Stan Markham said, not right now. No, we don't have a tenant, or we don't know what we're going to do with it. And the next thing they know, they've got a retaining wall going up. I don't know if they took that to mean that he wouldn't let them put their dirt, his dirt, on their property. But, you know, maybe they have some certified letter that shows that Stan Markham acknowledged under oath in front of a 60 Minutes camera that you better not put no field dirt on my property. I haven't seen it. I do know what Stan Markham has told me and what Mike Gentry has told me, and I believe what they've told me. Stan, if you'll come up right now. Again, Stan ought to be able to be here today and represent himself. He did a pretty good job, he thought. He got connectivity and public streets to serve the future development of the property. You know, the purpose of this is to benefit the ultimate users, not a car dealer. The purpose is to benefit the public that's going to come here so they avoid traffic snarls and there's functionality and good design. The staff has recommended that this is not good design, what they're trying to do now, after the fact that you approved something that they did approve. They've told you, and sometimes the staff says, maybe, well, you know, really don't like this. And there are some times when they say, you know, this is not right, this is wrong. And this is one of those times. Stan? We're here. Okay. Just to introduce yourself, and if you would, for the benefit of the planning commission, I don't want you to repeat my testimony because it's not that exciting, but if you would, just share with them, you know, your willingness to accept fill dirt. Did you ever refuse Mr. Anderson or any representative from Mr. Anderson or Mr. Gentry, your partner in this situation, refuse anyone permission to put fill dirt on the property whatsoever? Did you ever get a letter stating that this is to inform you that we're going to put a retaining wall up because you won't let us put fill dirt on your property or anything like that? And would you be willing to accept fill dirt today? I'm Stan Markham. I live at 101 South Hanover in Lexington, of course. Bruce has correctly represented everything he's said, of course, things that I have told him, and I suppose he's talked to Mike about the same thing, Mike Gentry. No, I never refused Mr. Anderson the right to spill dirt on their property. He never asked. When Mr. Inlow and I met with him, I've only talked with Dennis Anderson two times that I recall, and Mr. Inlow and I went to see him in a matter of leasing our property, and one of the first questions he asked said, I understand that you don't want to fill your property, and I said, that's right. We don't want to place fill dirt on it now because we don't have a client, and, you know, maybe they don't want it filled. So that was the end of that, and our discussion went nowhere in terms of a lease. And Mike Gentry has never told me that he denied him any right to put fill dirt on it either. If Mr. Anderson wanted to put fill dirt on your property, would you object to it in any way? So long as that fill dirt was compacted, I wouldn't, no, I wouldn't. As long as it didn't have some kind of environmental thing wrong with it. I didn't have a problem, no. But, again, you haven't been asked for his fill dirt to be on your property. No, I didn't ask him to fill it. Okay. I wouldn't expect him to. Yeah, but he never asked you either. No. Okay. I think that's pretty clear. We can move along. Stan, just in terms of I represented to the commission about the wall kept being built while you kept protesting it, at least with yourself and David. When did you first notice there was a? Mr. Simpson, I think we'd like to ask the questions if we don't mind. Well, I know, but this goes to the issue of hardship. And if you proceed in the face. But we can't address somebody else's hardship. I think that's a problem. We want to make sure we hear everybody and move along. And I don't think it would be appropriate if you called up people and questioned them. Well, I can let him just speak for himself about what he did relative to complaining about the construction then. Right. Thank you. I did monitor mostly with planning. And as Mr. Simpson referred to, the approved development plan, we were, of course, satisfied with that. And then I began to wonder when construction was going to start. And so I would, as he talked about a citizen, I would go. I found out where engineering was. And I'm an engineer myself, so I wandered down there. I felt comfortable going in there. I went in two or three times. I got to know Chuck Saylor just a little bit. And I asked Chuck to let me know when he got engineering plans for this development so that I could see what was going to happen there. We owned adjacent property. He assured me that he would let me know. He took my name. I gave him my card. That he would call me when some plans came in there that I could look at those plans, review them, see what happened. I heard nothing. I went in planning a few days later or maybe a week or two weeks later. I don't know. I didn't keep a calendar. While I was up there, a representative from EA Partners was up there, and they had a big roll of plans. I bumped into Jimmy Emmons and some other people, and these plans just happened to be the engineering drawings for this development, Southlake Development. And I got a set of them, took them over to one of the tables, looked at them, and it had all these walls on it. They weren't mine. They belonged to the planning commission. I just had conjured them and looked at them. So I marched downstairs to get a set for myself so I could see what was going on, and the sailor was not there. He knew me by this time. So I talked to the gentleman. I don't know who it was for sure, but he's not here today, I don't believe. Anyway, he said, well, I can't let you have them. I said, well, I believe that I have to have them. I need them. So he said, well, you'll have to write me a letter to get them. I said, well, I don't have time to write you a letter. I want them now. Can I give you a longhand letter? He said, well, he'd have to see if that was okay, and he finally allowed that that be fine. So I said, well, I've got a pen. Can you find the paper? He got a piece of paper. I wrote out a letter. He let me have the plan. I guess he still got the letter. I had my pen. What was that date that you got the plan, sir? I don't remember. I mean, roughly. Well, I'd say it was last fall, October maybe. Okay, October. Okay. All right, thank you. Mr. Inlow has a copy of the letter, I believe. All right. I do want to call, again, Mr. Inlow, just simply for stating for the record the actions that he undertook on behalf of Stan Markham and Mike Gentry when he first found out that there was going to be a retaining wall on the property that had not been depicted previously and who he talked to and what he did in connection with that notice. So, David, if you would come up. State your name and address and answer my question, if you would, please. I'm David Inlow. I reside at 2382 Walnut Grove Lane here in Lexington. I'm a practicing attorney and have been for 40-some years here in Lexington. Sir, you just addressed the commission in terms of when you were aware of the retaining wall and what actions you took to get more information about those plans, please. Yes, Mr. Markham came to my office immediately after he came down here looking for the plans, and that was on September the 24th. After talking to Mr. Markham and looking at the planning and zoning rules and regulations in the ordinance, I then filed that motion, which is somewhere in your tabs. Seeking to have a hearing with regard to the to the retaining wall Soon thereafter there was a meeting before the technical committee it was on the 24th. I believe of October Two days before that on October the 22nd I Call miss Wiseman. I just learned that she would be representing The developer in this particular matter Prior to that. I had been dealing with Mr. Anderson's attorney, mr. Richard Murphy So I was a little surprised that someone else was going to be involved in that When I called her I said Rina I want to make sure that there's no confusion about an issue that may come up in this matter and that confusion is That my clients have no objection to your client putting fill material on their property if that's what's necessary And if they believe that they have if mr Anderson believes he has to build a retaining wall because my clients will not grant him the ability to put Fill material that is an incorrect assumption on mr. Anderson's part and I want you to know that She indicated that she would communicate that to her client I did not hear any more about that two days later at the technical committee. I was there. Miss Wiseman was not there ENA partners were there they got up and made a brief presentation I Also stood up and I made the same statement I said I want everybody to understand that my clients Gentry and Markham are willing to allow fill material to go on their Land and if that's the reason this retaining wall is being proposed that is no good reason Andrea well Who is an attorney with the with the city was also there and she made the comment if you all continue to build that wall You're doing it at your own peril until this matter can be resolved by this Commission Finally on December the 5th I wrote miss Wiseman another letter I wrote her a letter and I indicated to her in writing and I have the letter here that I wanted her to understand That this fill material was that could be put on My client's property if that's what they wanted to do. And again, I did not want there to be any Misunderstanding and this was early December about that fact Not being a an attorney who comes down in practice is before you all soon after October the 22nd. Mr. Simpson was engaged to represent my clients in this matter And that's I think my full story about the matter Thank You David Madam chair members of Commission We believed it was necessary to go into some detail relative of what our position is in this counter for the case for the record I Would simply ask and we'll be prepared to respond any rebuttal and we have findings of fact for disapproval under tab number 16 in connection with this matter that We believe that the law required them to show that retaining wall when you all first Approved it in September of 06 should have been brought out Particularly since there was a testimony that it was not needed and they built it anyway, and It does have an adverse impact on My clients properties in the sense that Now the only Access that Mr. Snyder is going to have which he owns his parcel here until he has a veterinarian office right now. It's still going to be right in and right out he This sub street the service road that was planned to go forward to a signal has now been terminated Because of this new access here He's left to try to negotiate an easement of some sort with Markham and Gentry or Wait until he fills up the back of his lot with enough field dirt so that he can come out this little sliver of property That that would be available in the car lot area for his access because all this is closed off this is the only area that he could possibly come out on a private access easement and According to the notes that Rina's distributed to you all at the end of her presentation We would have to give notice in advance to mr. Anderson Before you file a record plaid so they could come in and and perhaps even object or whatever of course that would be their right if you elect to make this a private access easement So he gets pinned in substantially right here the the notion of this retaining wall, we just believe should have been discussed a long time ago and Disclosed and so that The whole property owners could work together The retaining walls on the other side if I understand and then The area where you were talking about where the private access easements got to be he has no access from there now Miss Godfrey the retaining wall on the development plan starts right here and goes all the way around the property It's all the way around It's Not just here It's not just here. It's all the way around over to here. There's a dark black line that shows retaining wall We'll be pleased to respond to In rebuttal form to What is raised but? That's the nature of our objections. We believe that the law is not being complied with and we ask that you disapprove the application and require the applicant to conform His development with what you all decided after a hearing of a couple of years review And that's to remove that retaining wall and build it like they represented they were going to build it without that wall. Thank you we still need to hear from our citizens pro and Now Kind for this development, but before we do that I had a question there's a couple of things that mr. King needs to clarify in terms of the Sign off and that type of thing. Mr. King. Thank you. Mr. Simpson First well Bruce is getting back up. I'd like to just mention I think this body knows and I want it very clear that anything I sign or approve is that the Press power as your secretary So as this story was unfolding and about the tenth time I heard my name I wanted to take this opportunity to make sure That all points are clarified as to that. There is absolutely no possibility of confusion in the mind of this Commission first of all As you've mentioned I did sign certified development plan as the secretary for this planning Commission You were not suggesting in any way that that approval and that certification Was in any way out of keeping with the actions of this body were you? Absolutely, not you got you approved it based on what the Planning Commission saw and her testimony about I Don't question what you did whatsoever. Thank you. And likewise for any other Employee of the Division of Planning in terms of any subsequent actions and have no I've never had any complaints. Honestly, it's kind of remarkable. I've been doing this for 20 years I've never had a complaint with anyone the division of planning. We're blessed to have the staff that we do I practice in a lot of the counties fortunately and Y'all don't know how good we have it, but we do so now I don't have any problem with anybody on the planning staff Thank you. I think that's all I wanted clarified to make sure there wasn't any If I had a problem Chris, I'd let you know, but I don't have any problem with staff whatsoever Well again, you were talking about what we were signed and then other divisions perhaps approving things So other divisions prove things that I mean, you know sign offs people say why'd you get engineering sign off? Yeah, but I mean, you know, you have no jurisdiction over the Division of Engineering So I have no complaint with what staff has done in this case planning staff Thank you very much At this time we'd like to open the floor to citizen comments We would like know if there are any citizens presence that we to speak in support of this project okay, if you want to come forward and state your name and address and your position I Thought I was going to get Christmas cards from some of you all because I've been here so many times I was sure I was on your Christmas card list but my name is Jennifer Dobbs and I live at 290 Lake Wells Drive, which is The street the court that is going to be a court or a sub street or something Mr. Simpson said that he he thought that anybody just regular folks It could should be able to come down here and speak and I'm not an attorney and I'm not an engineer And I'm just a regular old folk I was here to speak about a couple of other things which I'll go on and do and Then I want to talk about the road if I can if you'll give me permission I will not take near as long as anybody else who came up here The hotel that has been proposed to go in Used to be everybody took off work on our street and came down as a big group Finally, I think this is 13 14 years. Maybe 15 years. I've been coming down So now I was diagnosed with MS and I no longer work. So I'm the the object of coming down here The our street has no problem with the hotel We, you know talked about it and we've seen information about it and We think that you know, it wasn't not gonna be a flea bag motel. So we're we're fine with that car max I have had dealings with car max myself. I don't know if any of you all have I will never buy another car someplace else You go on the lot. It has a price on the window of the car. That's how much the car is They won't take $50 less. They won't take $1,000 less. That is it. You drive your car in they come out They look at it. They say this is what we will give you for your car There's never any going back to the manager 500 times and stuff and it was a it's a delight to work with them There's one in Louisville, but I was in Florida with the dealings that I had with the car max As far as the cul-de-sac goes we really prefer that there not be one from what we understand it's going to be a fairly large cul-de-sac and all we see is right now we're like gonna be a dead-end street and We just see teenagers and people coming down there a great place to park because no police are going to come down the street You know, there's not going to be any place to You know to anybody to monitor that so we see kids coming down and drinking throwing out cans and stuff And so as far as we are concerned the last two houses Would like enough room to back out their driveways and then go down the street. The the fire department has been down our street I've lived there for 24 years the firemen fire departments come down our street and they've turned around with no problem The garbage truck comes every week They maybe would not like not to but they always show up and they turn around with no problem There is and I don't know if you can see it on that there's Lake Wells Drive comes down from Beaver Creek and then there is a court that comes off of it and There's only two houses past that court Can you kind of point to that on this map over here, please? Thank you Okay, this is Lake Wells Drive and This is the court that currently runs off of it and there are two houses past this court, so the All the vehicles that come down like the garbage truck comes right here and then they just back up and then pull out this way I don't think that this This court could be made large enough for them to drive a fire truck or a garbage truck or anything like that around And the only people that we know of that Come down our street come to visit people who live on that street very seldom as in by come down because they're lost They only other people's every now and then somebody thinks they can get away from the police And so they cut down through here and then they get there and they're like caught So, you know, I don't think that that Cul-de-sac is really going to help any So because of what I told you is really why we would rather not do that I want to talk about the creek for just a second My son was three years old when we moved there I built a pond when he was about eight years old and he's in his friends went up to catch me a tadpole So I'd have a frog in my pond. There weren't any tadpoles. There's there no frogs. There's no little fishy swimming around Basically if you know the body of water that's in front of Walmart It's the runoff for that. I you know, it's not what we really a creek You know the kids played back in those woods back before you had to worry about somebody abducting them or whatever And they never caught a fish. They took their fishing poles and set and you know, they never just nothing There aren't even ducks this we've in it Um See hotel a cul-de-sac In the creek now Only other thing I wanted to say is about the the roads that everybody's been talking about and I really don't know what I'm talking About but could whoever put up that very first Thing that was up that showed it was like an actual maybe aerial shot of it On that, you know, I live out there. I don't know if any of you all do the people who spoke have not don't live out there You all Assume this this body of people have fought For years to get all the little things that come off of Richmond Road You know to be closed because it's awful trying to you know, people just pulling out all the way down So finally last year it was repaved redone New turning lanes new sidewalks and this is doing just exactly what you got rid of Now this is I haven't talked to you about this. So watch my back Putting me in the one the one that they were talking about where the end of the white road is closer to men of war That's gonna be like 30 feet So people turn right on men of war all the time and then people are gonna be stopping and trying to turn in there I'm talking about they're talking about this road right here coming out and and it's like Well, that's just 20 feet So, I mean I'm thinking it's probably about 30 feet to there And so there's gonna be some people going in there. They're going to be people coming in here People coming in and out here, you know right here in probably 542 feet you're going to have five entrances and exits going in there and I sometimes a lot of times drive down through and go to a minute mark that's further down to get gas and pick up stuff and Right. There's really hard anyway, because they have a turning lane that goes for a little bit and then it ends the next lane Over it goes a little bit further and then it ends and so everybody's trying to get in and out and I just see it As a place for a good accident to happen I Really that's it. I think that Somebody said something about not being able to find the hotel. I'm pretty sure that mr. Anderson if he builds the the Bill Street That there'll be some kind of significant entrance that if there weren't any of those other entrances before you get to it and The other entrance coming this other way if you're unless you were from here, you wouldn't really know about that so people would Be able to find that entrance. I don't think they didn't you know, they're going to try to drive across country or whatever That's all I have to say. Thank you. Thank you very much Do we have any other citizens to speak in favor of this project If not, do we have citizens that wish to speak against this project? Right at this time, I would like to ask for a rebuttal I guess we'll start with the staff I I'm sorry. This is staff on a reserve rebuttal to last generally. I think that's how it is. Okay, that's fine Just keep me straight here. That's all right. All right, mr. Wiseman. We'll start with you for rebuttal I'll do my best to go through this briefly Well with regard to mr. Simpson's testimony, I don't think I really heard I want to talk about these I Think the one point mr. Simpson made about this Piece of the road that Has been removed from this plan Was the concern about the vet clinic property? I think miss Godfrey picked up on That this property as exists here or here Presently has no right to go on to Sand Lake Property their their existing access is on to the service road. That's not being changed by this plan We're not affecting their existing access if in the future This site were to be redeveloped It probably would be regraded where it could match and tie in to the access easement back here But presently we are not in other words We're not doing anything to harm the existing access situation for that property He may think we should make it better, but I don't think that's the obligation of mr. Anderson to leave their access better. It's just not to impair what presently exists I Guess the rest most of my other comments will be addressed to the retaining wall that we heard a lot about First of all, it it was not shown on the original development plan Typically items such as retaining walls are not shown on development plans. Neither are manholes storm sewers Sanitary sewer pipes those are matters which are shown on construction plans number two when you do a preliminary development plan At that point or preliminary subdivision plan you have not submitted your grading plans to the government You don't do those till you know if you can develop it in the specific fashion that you like So you haven't done the studies that preliminary subdivision plan under your regs gives you the authority to prepare Grading plans and then construction plans when the grading plans were prepared based on this plan It was then determined that in order to develop the street system as Approved because of the grade elevation change we already discussed that There had to be a retaining wall in order to keep the road within the right-of-way I am NOT going to go back and forth as to who said what who said when about permission to fill Mr. Markham in fact said that when he had the conversation with mr. Anderson He said he didn't want to fill right now because he didn't have a client it again Mr. Markham didn't have to let anybody come on to his property nor does mr. Anderson the fact is because of the grade changes it was necessary to do a retaining wall and This is not an inexpensive thing to do mr. Anderson didn't do a retaining wall just because he likes to do retaining walls. It was physically impossible to construct the road otherwise By the time mr. Enloe called me and I relayed that to mr. Anderson the wall had already been designed and it was under construction and it was at that point Too late to go back and do it another way because he'd already Expended the funds and had plans accepted by the Department of Public Works Division of Engineering To have this go forward. I know Bruce Took care to say that when Chris asked him his questions. He wasn't impugning the Division of Planning I'm not sure he was so kind to the Division of Engineering Division of Engineering has done nothing wrong in this matter. They approved these plans accepted them and we have built them Consistent with those plans or they would have stopped us had mr. Simpson been serious about stopping this work if he felt was unlawful He's a lawyer He can file a complaint and Fayette Circuit Court and seek an injunction or restraining order to stop it This Commission's not in the business of issuing injunctions They didn't do that But the point is the retaining wall is there because we were working within the right-of-way But what's lost in all of this and maybe Al can talk about this more if you want But I think you've been left with the impression that from now on there's going to be this massive great Chinese wall next to mr. Markham's property and You know, it's just gonna be horrible Well, that's not true at all and you all know enough about Development to know that you go out and look at this property and you know It slopes down and when somebody develops it for a b3 use which is what that property is zoned It's probably going to have a parking lot It's going to have a lot of paving and to meet the grades of the subdivision regulations for that You're gonna have to raise it and fill it. What does that mean that wall will be buried it will be gone And then that property can tie into the road should it wish and it'll be buried in the back It isn't going to be there forever. This is simply a matter of timing Sometimes people are ready to develop and sometimes the next-door neighbor isn't and if the next-door neighbor isn't you can't make them The owner can't make them you deal with what you have. Mr. Markham wasn't ready and we went forward There's nothing Bad or improper about any of that and I don't think that you believe there is either I Want to briefly go through the findings that are at the end of Bruce's book I Start with number two that the plan He says as a general plan will create drainage access and traffic problems first reason The retaining wall will not allow proper drainage of the Markham Gentry Snyder properties when they develop that is not true The retaining wall as designed and Al can speak to that Cannot be designed to cause a draining drainage problem on the adjacent property and When they develop it'll probably be buried there. He has not given you any engineering reason to support that broad statement number two the retaining wall will unnecessarily and unreasonably create access problems for these properties as Well as Unfairly add to the expense for them to fill and grade their properties to get in and out of those lots when they develop Again, that's not true this wall does not change the existing access for either property and When they develop they will have to fill and grade their property to meet the grading standards To do a development in a b3 commercial zone Is that unfair I don't think so You require a developer to develop their site to meet your regulations everybody that chooses to develop land and make a profit That's the cost that they have to incur and mr. Anderson has incurred it on his property He's incurred the extra expense of doing a retaining wall. There's nothing unfair About the situation that is before you the access easement shown on the plan will be the primary access for the Schneider property and Would be inadequate to serve this property. I think I mentioned that before He presently has access to the service road as that property has had that's not being Changed no certainty that the easement will be properly maintained and kept free from obstructions That will be maintained by an owner's association of all those who own property within this commercial development You can go out and look at mr. Anderson's other developments, and I don't think you find that those parking lots access ways are not prepared to the highest standard Lastly it would diminish the value and marketability of the Schneider property when it redevelops in the future There's not one word of testimony or evidence in here that says that that's true What's true is that if that redevelops it? Probably is going if it's p1 and they're going to do a drive-thru bank They have to have a parking lot You can't have people trying to go to the drive-thru window and leaning out because the drive-thru windows built below their car It's going to be leveled out and It's going to going to diminish the value of a piece of property to put commercial development all around it that's People are going to come to again. There's no that's just a general assertion It's not supported by any evidence you've heard This plan fails to address or consider in any respect the development plan approved adjoining Gentry Markham property Despite the access drainage and other issues that affect it There's nothing in here that says that a previous development plan of improved for that property cannot take place It will be graded and filled and the curb cut can be made to Beale Street the plan conflicts with Richmond Road plan a The amendment enacted by the council on June 8th 2006 incorporates a sketch that depicts the sidewalk within the public right-of-way not within an easement on the adjoining property I'll show you that drawing That's it, that's Beale Street You What is highlighted there is Beale Street as shown on this is the exhibit to the Richmond Road? Ordinance that was adopted in 2006 there is no Sidewalk shown anywhere on that plan that statement is untrue We have also submitted the letter that mr. The EA partner submitted to the hillard-newman to explain Why the roadway was shifted and why part of that is off is in an access easement and that has been accepted That's no longer a basis for the staffs disapproval But again, there is no sidewalk cross this plan showed no cross-section Again the Richmond Road ordinance that says that the access road shown on this plan is not a public street But rather an access easement although this particular access road Is Not shown on the attachment to ordinance number 8380 Nonetheless the intent spirit and purpose of the ordinance should be Would be violated this plan is approved. I'm gonna go back to this plan You All right to orient you Richmond Road is here. This is the new Street Beale Street. We've been talking about and Can we scoot it I want to show that intersection Further the other way. Yes, and you can see this is where it ties in to what will be called Sand Lake Drive that will tie in to Eagle Creek that is being shown on the plan That conforms to the plan. The staff has not said that this violates the Richmond Road plan the Richmond Road plan, however Shows nothing Going here. It shows the public street stopping there. So that's an incorrect rationale as well I Think that's it Again we believe that we have complied with the ordinances We have the we have asked for the variances to the two regulations in order to build the streets that we suggested the only concern it seems that I heard that the staff had was that we eliminated that one leg of of Sand Lake we believe we've demonstrated that is not necessary for this development And in fact, there had been concerns raised previously about that because of the conflict we were told I don't know if he's here, but we were told by an answer to a direct question at the subdivision committee by mr Neal who said that Street was not necessary for this plan And that's the only reason we've been given by the staff to deny this plan, but your traffic engineer says it's not necessary The other reasons we've had is because a retaining wall was constructed and I think those reasons Have been explained. I don't think that's the basis to deny this amendment We would ask that you approve this plan that you would grant the waivers and we appreciate your attention for this lengthy presentation I Thank you, I Don't cast any aspersions on the division of engineering I do think we have a substantial flaw in the processing of our planning and zoning decisions when you all spend over almost two and a half years on a Piece of property to finally approve it with the final development plan a preliminary subdivision plan and it gets all the appropriate sign offs of all the various agencies and government that have to sign off before it's Moves on to the construction plan phase and then it goes to a different division and All of a sudden we have a radical change. I'm not saying they've done anything immoral illegal or unethical I'm just saying that the ordinances which I Cited in my evidence book which Rena if you will note didn't rebut any of those That when you have man-made structures of a significance that impact street grade etc on adjoining properties You should show them and they didn't show them. There's no dispute that they didn't show them until now It Goes to the division of engineering and they say okay, you need a retaining wall. It's done That's a major breakdown in the system in my opinion that needs to be fixed and As soon as mr. Markham found out about that. He complained about it to say stop stop now miss Wiseman Would say well, you know, you should have gone to court You should have paid Bruce Simpson a big fat retainer and had an injunction hearing and blah blah blah Well, you don't have to do that. All you got to do is say I'm challenging your right to do what you're doing I'm putting you on notice that if you proceed in the face of my challenge, you may have to tear it down That's all you have to do you don't have to go to court and spend a bunch of money on a lawyer to do that and Even even that you're all's lawyer told them you build this wall at your own peril at the TRC meeting on October 24th You heard David indicate that his affidavit is in the record to reflect that as well So I don't have any cast any Personal Disagreements in terms of misconduct or unethical behavior with respect to the division of engineering, but the reality of it is It's it's these construction plans take a while to get developed They get signed off on September the 6th on September the 14th eight days later and that's including weekends These documents are excess of 20 pages lengthy detailed documents on construction. They're filed They knew when Chris signed off. He didn't know Chris didn't know it wasn't on the plan They knew they were going to have a retaining wall. They knew they were ready to put it in and they started it They didn't tell you about it. In fact There's no rebuttal the record in this case is Overwhelming that no retaining wall was necessary You all understood that when you approve this project. Well, okay, it'll slow down. It may not be level with Richmond Road Any reasonable person certainly, mr. Markham Gentry and mr. Schneider would conclude Well, I guess they're going to do some kind of soften grade or something Maybe they'll come and ask us before they build this 16-foot wall neighbor. What do you think about this? Didn't do that. I Heard for three months that we've been denying them the right to put field dirt on our property Expected Rena come forward with some kind of unequivocal Documentation that that had happened and there is none So There ought to be some evidence in writing before you build such a huge structure that you see and under tab to a Big retaining wall that was never discussed on any kind of plan until the construction plans are in the Division of Engineering outside the scope of any public review or comment So You can take my findings of fact I have Another hour of presentation. I don't need to go another hour of presentation Take the take the findings of fact for disapproval that your staff has given you They cited one ordinance that hadn't been complied with I gave you several more under tab number 14 That haven't been complied with as a basis of turning it down If they want this car lot so bad Why don't they just take the car lot and just shift it back this way you know just say okay, we'll put it back here and We'll just still put the road in this way. That's a doable option That way there's there's the kind of public access from these lots Which you don't know how they're going to develop what the users are going to be the intensity of the usual users will be there B3 commercial, and so it certainly makes sense and anybody that knows anything about Real estate development will tell you that if you just have limited access it does devalue your property He had an unbridled right on a public street The other issue in terms of rebuttal was In connection with Rina statement that you deal with what you have and that's true what you had in this case was Neighbors who'd been interested in this property for a long period of time you heard the woman come down bless her heart Been here many many times on behalf of her neighborhood. She does not want Lake Wales opened under any circumstance. I understand that position She's been down here Stan Markham's been down here Mike Gentry's been down here Develop it the way we had the hearing Don't bait and switch don't grant somebody forgiveness when they should have had the wherewithal and The chutzpah to come forward and say this is what I want to do. I want to put in a retaining wall That's not the way planning ought to be done It's not the way the law requires it to be done and because it wasn't done in this case They haven't complied with the law in my judgment It is impermissible as a matter of law to approve what their request is today, and I ask you to do so. Thank you And Staff Mr. Chairman members of the Commission just a few matters of clarification like to address very briefly the issue of amendments, I believe You've heard some discussion of that. So I would just like to point out that Article 21-6 Requires that the contents of a final development plan and it's 21-6 be Be of an exact nature Rather than approximate and that is why you see final development plans And that's what you approve here and those are final development plans. Those aren't conceptual Those are what are to be developed and that's why you're asking to be amended that today and that is why under the staff's recommendation of Article 21-7 e we believe is appropriate because again We believe the essential character of this development as approved has been altered by this amendment And we believe certainly that when you alter a public street system or proposed to do so that is an essential character to a development and In light of that I would just like to make clear once again our concerns are of a nature of public safety in this access and circulation system the Problems that we see that can happen here the mistakes that may be made we believe will be aggravated by the potential traffic these generate and by The traffic that these highway oriented uses will generate and in fact I think I could summarize it by saying it is the staff's belief that the approved system Even with a one-way is better than no way Thank you Do we have any other staff comments or rebuttal? Okay There's been a number of references to the Richmond Road plan So would anybody object if we asked the traffic engineer at this time to address? the Richmond Road Corridor Since we haven't heard from him and then I guess we would like to close the hearing at this time You Since your name was brought up several times We just wanted to hear from you briefly and then following that we'd like to take a closer hearing Take a break and then come back and discuss you all don't mind. We'll take about a 10 minute break Five minute break, okay The members of the Commission my name is Jeff Neal with the Division of Traffic Engineering and my name has been mentioned several times and in actually the Miss Wiseman's your recollection of some of my statements is correct in that These the service road has given me problems from for the past couple of years Just all up and down Richmond Road as many of you are aware a lot of the entrances art You can get off Richmond Road and then immediately you have to determine whether you're going left or right and it's been my Contention is it'd be a whole lot better if that service road was not there if the property owners could get along basically and Work the plan together have a backage road instead of a frontage road. That's inadequate for High type uses then that would be a much better situation. So Originally the effort was to have a one-way circulation pattern The original plan had a couple of outlots that was right there immediately at the corner of Man O'Warren in Richmond Road And it was pointed out to me after the meeting that if you have a one-way Circulation away from Richmond Road if you're within the development, how do you get back to the corner lot? And the answer to that was to go out to Eagle Creek make a left go up to Richmond Road turn back around and then come in the right in right out So that's that's when the road went from one way to two-way on the the process of sign offs as far as the I'm not sure how much I need to get into on the Richmond Road ordinance. I think that's been covered significantly I just have when you should talk about the road going from one way to two-way. Could you show me on the map? This road here there was a section Right in this area where we had basically a I asked for it to be one way going that way Into the into the property. These lots were two different lots and the question came up was if if you're back here doing your shopping How do you get to this lot by car? I think originally we assumed that there would be some connectivity within the parking lots and so this connection to the street would not be necessary, but It turns out that there was no connection plan between the two parking lots So the only way to get there by vehicle was to circle back around as I described So is that segment of the road needed now since the plan has changed The The volumes generated by the proposed development are significant or about half of what they could be and Based on the numbers that I was provided by by the developer I ran simulation punched them or punched them into a program and the the four-way stop at the Bill Street Sand Lake Drive intersection will handle the projected volumes Knowing how volumes are projected. Sometimes it can be more or less Double the volumes re-ran the numbers and it still come out with a level of service of C Which is a an acceptable within a built-up environment So you're saying coming in on bill Should be adequate for that development. Yes. Yes There there is some concern there and it's it's valid if the signage is not Appropriate there could be some confusion if you're coming from man of war down Richmond Road And you see and you want to go to car quest or one of the other shops to turn in the first Access point which would cause some problems. So if but if there's signage that says Turn at this major intersection not this little access road. I think that would be okay Thank you Thank you. I think we'd like to take a five-minute recess and then The hearing is officially closed. The discussion will be with the Commission I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . Next we have a request for approval of BP 2007-134 which is property amended February 28th . This is located at BP 2007-134 . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . I am a friend and a friend . Okay, that's been answered. Madam Chairman. Uh-huh. It's been alluded to, but I just wanted to make sure the entire commission knew our committee, zoning committee, looked at this and actually liked the plan without the extra lot in the back, which generated the question of is that road needed on back. And I just wanted to, the subcommittee has already heard all this discussion, but to make sure that, and Jeff is right and he alluded to it, but I just wanted, Jeff, I thought it would be fair to everybody if I recall correctly, you agreed that now by changing that lot we no longer had as much need for that road. And isn't that a fair statement? Or I believe you agreed that we didn't need to run that on around. And certainly if it's a protected car lot, I wouldn't want a road coming through mine. But there isn't the need that there originally was. That's my only comment. And our committee was unanimous in supporting that concept. I suppose our options are to approve or disapprove this plan or somewhere in between. And if dependent on, and we encourage you to look at your statement of findings from the staff on the white supplement and the pink, and these are findings from the staff. If you agree with the subdivision committee, and if you disagree or think with this you have findings on the regular agenda as to why it should be disapproved. So you have both findings for approval and disapproval to look at. Madam Chair, all the access issues aside, I have a hard time looking at the new revised plan with respect to our now agreed upon consent decree and the impact that this new plan could potentially have on stormwater. And that concerns me, and I've not seen any evidence that speaks to that issue. And my suspicion is that we really need to get past this access issue before we can even take up, you know, the next dimension of approving this plan, which would be, you know, really the site characteristics and how stormwater would be controlled, especially when we put the creek into a culvert. Mr. King, I have a question. This was an approved plan, and we have an amendment before us to reconfigure the circulation and the access and change the development plan. But it doesn't really increase the ‑‑I'm not sure it makes a significant enough difference, or if the question of retention in stormwater drainage is before us on this, since this is a final development plan that has been approved and we're just amending it. I don't believe the amendments do address stormwater or drainage. I would have to defer to the Division of Engineering to comment on that. I just don't feel qualified. Mr. Hildreth. The purpose of the amendment was to change the circulation pattern in the development. It doesn't really affect the amount of impervious area that was there on the original plan or anything really with stormwater management relative to the original plan. All right, thank you. In response to Ms. Phillips' question about would this have any impact on a consent decree and stormwater runoff? I don't believe so. The consent decree is fairly ‑‑ it's been made public fairly recently, and I have to admit I haven't been through it all yet, and it was kept pretty confidential up until it was released for public viewing. The stormwater issues principally addressed in that are, you know, best management practices relative to construction sites for sediment erosion control. There's also issues with illicit discharges and things like that. But I guess the portions that would apply mainly to this plan would be the sediment erosion control during construction and, of course, our water quality requirements. We can't hear you. I'm sorry. Yeah. Of course, there's water quality requirements with the development that will have to be met. But isn't it fair to say it's not really a creek? Isn't that just a ditch that's only wet when Wal-Mart gets a rain? I mean, I ‑‑ Yeah, that's pretty much the case. It does show up as an intermittent stream on the USGS topo maps. It was a severely degraded stream, and I guess what their Corps of Engineers permits and Division of Water permits, they acknowledged that it was a severely degraded stream, and that came into play as far as the degree of mitigation that was going to be required for that. I think the developer ended up paying a little over, some over $100,000 for mitigation for the loss of the stream length. Yes. Mr. Penn. Mr. Newman, while you're up here, and I don't want to go into this very far, but it disturbs me that we could have a final development plan, a preliminary development, final development plan, and then the ordinances be what they are, and you not see this plan as a material change because of the fact you're building that much retention basin on it. Could you respond to that a little bit for me? You mean retaining wall? Retaining wall. I'm sorry. I used Mr. Simpson's retention basin. Retaining wall. Is this on? Yes. The retaining wall was needed for, you know, to be able to build this street as close as possible to the property line in accordance with that plan. I don't think they could physically get any closer to the property line without placing fill on the adjacent property. So it amounted to a shift in the pavement of about 11 feet, I think, within the right-of-way. The Richmond Road ordinance allows for a shift of up to 30 feet in the location of the street if it's justified by engineering, if there's an engineering justification for it. In this case, the engineering justification is related to the constructability of that road relative to the property line. So at the time that we approved the final development plan, when the technical committee looked at that, you all didn't envision the fact that there would have to be a retaining wall there? Personally, I didn't recognize it at the time. But, again, we hadn't seen the final grades of anything at that time. You know, that final development plan shows just a footprint, basically, of the development. There's no representation of grades on that. So it just wasn't, at that time, not real clear, you know, that. Well, I mean, but the fact that a creek went through there and we had all that discussion on the creek, and I remember we discussed that creek until Jim Mayhan wanted to put goldfish in it. But getting past the creek idea, I mean, it's very evident that you have a slope there on both sides. And so I guess where I'm confused here is I don't understand how we could get this far into the process and get a final development plan and get it approved and get it signed off on, and then you're all's engineering would say, yeah, we need to put that retention, that retaining wall, as big a retaining wall in as big an area as that covers. I guess I'm trying to figure out what happened in the process. Should it have come back to us? I don't really know, Mr. Payne. That's, to my knowledge, there's not a requirement to show retaining walls on the final development plan. Anybody can correct me if they're wrong. I'm not trying to. I'm just trying to. I don't understand how we got to where we are because I've been through every one of these Sand Lakes ones when Mr. Murphy was representing them. I mean, I've been through all these. Never until Mr. Harper asked the question about the retaining wall, and even at that time, it wasn't brought up. And so I guess I'm just flabbergasted how this could happen, how we could get in this kind of shape, because I don't want to repeat this performance. I mean, I don't expect you to respond to that, but, I mean, that's just where I am on this. Thank you. Mr. Payne, I guess when you look at the plans, and if you think the retaining wall is needed because of the grading issues on this property, and I agree somebody should have brought it up sooner, but basically regardless of which one of these plans is approved, that retaining wall could be built based on the conditions and the grading. Am I correct? I think so. So the retaining wall is not contingent upon approval necessarily of this plan, but the waiver. Now, if we don't approve the waiver, then that's a whole separate issue. And we're asking them to remove the retaining wall, so then you have no way to get this developer to address the grading issues on this property. So, you know, we're kind of in a catch-22 in terms of if you remove the retaining wall, how do you get this person to bring up the elevation or the grading of their property to be able to accomplish the street? And if they leave the retaining wall, then, you know, I guess the piece of the process we're struggling with was at what point in time or what do we do in the future when these construction plans come in and they show something that needs to be done that's different from the final development plan that we've approved, because of the grading issues, because these are things that come up when the construction is laid out, right? And sometimes they can be anticipated and sometimes they can't. In this case, we're not sure if this wasn't, shouldn't have been, or could have been anticipated before this point. And I guess that is something we should not only ask you, but Mr. Gross, in terms of why wasn't this anticipated and presented to us earlier? Because now we're in a catch-22. Yes. I mean, why was it so late in the game before you could let us know? Why was it at the construction development construction plan stage before we knew that you were going to have to build this wall? Well, it wasn't at the construction plan stage that you knew you were going to have to build the wall. When this body approves a development plan, there is a lag between your approval and the certification of that plan. During that lag, once you all have acted, we have several typical, generally typical sign-offs to get the plan approved. Engineering, traffic engineering, maybe there's a resolving issue here, a resolving issue there. But there's sometimes a six- and seven-month time lag. During that time, we proceed with the site improvement plans. It's that discovery process that gets the third dimension of this thing working. That's when you find out if you have cooperation between owners, if you have grading dilemmas that can only be solved by a vertical system, such as a retaining wall. And that's what leads you to incorporate retaining walls into your construction plans. Typically, you cannot tender the construction plans to engineering. They won't even open them up and look at them before the final development plan is certified. So it takes six and seven months sometimes to get that certified. It takes five or six months to get the construction plans drawn. So, you know, it's not unusual for us to have a plan certified on a Tuesday and a construction plan is delivered on a Friday. And, you know, until you know exactly what you have to work with in two dimensions, you can't waste the time, energy, or effort developing the third dimension. And no one wants these retaining walls. Mr. Anderson, I promise you doesn't want them. But that's the only recourse he has to develop his property is a retaining wall because of the gradient of the property and the gradient of the perimeter roadway system. Thank you. Let me follow this. So, Mr. Gross, what you're telling me here is that as far as you know, the process was not breached anywhere down the line. Not breached at all. Okay. Thank you, sir. Not breached at all. Okay. Now we've explored that from three different angles. So what's the next part of it? Are we ready for a motion? I would like to move for approval of DP 2007-134 as recommended by the subdivision committee and the approval of the waivers with the findings as provided and the inclusion of note 15 that we have been given by the petitioner. Which set of findings? I'm sorry? Findings by the staff or findings by the petitioner? By the petitioner. Are you through? Yes. A little wordy. Just a second. Okay. We have a motion and a second for approval of DP 2007-134 based on the findings presented by the petitioner and including the proposed note title for number 15. Are you ready for the vote? All in favor signify by saying aye. Aye. Opposed? All right. Can we poll the commission? Mr. Holmes? Aye. Ms. Whitman? Aye. Mr. Ayton? No. Mr. Penn? No. Mr. Mahan? Yes. Ms. Rush-Phillips? No. Mr. Day? No. Mr. Cravens? Yes. Ms. Godfrey? Yes. It's 5-4 yes. Okay. And the motion carries. If we'll move on with our agenda. We'll now move along to our zoning items. Madam Chair, we'll set up for the zoning items and we'll be prepared in just a moment. Our first item is on page 3. Okay. All in favor signify by saying aye. Aye. Opposed? No. All right. And the motion carries. The next item is the zoning item on page 1. This is Sunday. We're ready. Thank you, Madam Chairman. Members of the Commission, good afternoon. There are two zone changes on your agenda this afternoon remaining. The first appears on page 3. It's item number 2. This is MAR 2008-5, a request by Hands-On Originals for rezoning from an existing highway service business B3 zone to a requested I-1 light industrial zone. The zone change involves just over three-quarters of an acre of property, the property having an address of 990 and 992 New Circle Road. To orient you to the location of this property, it is on the south side of New Circle Road, almost midway between the interchange at Georgetown Road and Newtown Pike. New Circle Road runs east to west in this area. Subject property is a three-quarter acre lot at this location. It is zoned I-1 as is property to the north and to the south of that location. It has an access point to New Circle Road via Ad Color Drive, which is a private roadway that extends all the way to Newtown Pike south of that interchange. There is B3 property immediately to the west of the subject property that is undergoing redevelopment. Growing up, I knew it forever as a BP gas station that used to be at that location. Immediately to the east is a B4 property that's a concrete products business, but generally other than those business zones, this is a light industrial area. There is no development plan required with the zone change from B3 to I-1, so we'd like to take just a few moments and show you a few photographs of the property so you'll be a little more familiar with it and to get a little more detail of what's on the ground. This is looking from the east to the west at the subject property. We have New Circle Road here. The Georgetown interchange is on the top of the drawing, the Newtown Pike interchange at the bottom, and the subject property is the three-quarter acre lot here outlined in black. Ad Color Drive is here extending to Newtown Pike off the photo, and the access to the property is from that private roadway. This is looking from the south a little closer at the subject property, which is here. You can see the industrial nature of the area as well. This is looking from the west to the east at the subject property. Again, you can see how close it is to the off-ramp from New Circle on to southbound Newtown Pike in this photograph and also some of the other industrial uses closer to it. And finally, we have a close-up view of the property looking from the north at its frontage. This photo is especially telling because the building is an L-shaped building, and the main purpose of the zone change is about what the dominant use is in this structure. The zone change is proposed because the desired use of the property is more for distribution, screen printing for the property owner, and also some of their shipping and receiving uses. The existing B3 zone is a zone that encourages more retail and commercial use of the property, so it is the change of use and property that's driving the request. Looking at the comprehensive plan as we always do when we have a zone change, we're on New Circle Road between Newtown Pike and Georgetown Road. The subject property is in an area recommended for light industrial use, and that includes the properties on either side and to the south of that location. So the staff finds that the zone change requested to I-1 is in agreement with the comprehensive plan. The zoning committee and staff have recommended approval of this zone change, and that the requested I-1 light industrial zone is in agreement with the 2007 comprehensive plan. We also have a second finding that the zone change proposed will make it consistent with those zoned to the east, south, and north of this location. I'd be glad to answer any questions before you hear from the applicant on this case. And, again, there is no development plan to present today. No questions. Thank you. Mr. Murphy. Thank you very much. I'm Dick Murphy, and I'm pleased today to be representing Hands On Original. Matt Hetker is with me today on the front row. Matt is one of the owners of Hands On Original. Chaz Hyatt is on the second row. He's a professional planner that's helped me on this case. And we're going to be short. We agree with the staff recommendation of approval. Just a little plug for Hands On. As you know, they're a local success story. They were started here in town. They now have business nationwide, and they're the type of business that economic development people want to have in Lexington and want to encourage here. They are adding some printing capability in this property here, and in discussions with building inspection division, building inspection felt that I-1 would be a more appropriate use with the printing capability here. As you know, in I-1, they can still do retail sales up to 30% of the floor area, and they do have retail sales here and will continue to do that. But as the staff mentioned, with the nature of the business changing, building inspection felt a zone change would be in order, so we filed that and have brought that to you. And we do agree with the comprehensive plan and hope you'll vote in favor of the zone change. And we'd be happy to answer any questions you all may have for us. Any questions for Mr. Murphy? Madam Chairman, no question, but I would move that we approve MAR 2008-5. Second. Okay. We have a motion and a second to approve MAR 2008-5. Please put in the record that it's based on the findings or the recommendation of the staff. Right. Yeah. Just mention them. Yeah, for the motion. Yes. Okay. We have a motion and a second for approval of MAR 2008-5, hands-on original incorporated. They want to move from a highway service business B3 zone to a light industrial L1 zone for .78 net and 1.12 gross acres of property located at 990 and 992 West New Circle Road. And that recommendation is based on the staff's findings for approval. All in favor? Aye. Any opposed? Okay. Motion carries. Thank you. Yeah. Before we start the hearing on the next zone change request, I'd like it noted in the minutes that Mr. Holmes has recused himself from this hearing. Okay. Thank you. From hearing this case. I will be very quick. Our next zone change hearing is on your agenda on top of page 4. It's MAR 2008-6. This is a zone change application for Derek Thomas. Derek Thomas is actually working on behalf of the Fayette County Local Development Corporation. This is a corporation that provides affordable housing for families. This is a zone change request from an R1D zone to an R1E zone in the Spiegel Heights neighborhood. It's at the property address 317 Robertson Street. If I can real quick, I'm going to run through not the full pictures, but I've got the existing zoning. The subject property, 317 Robertson Street, is located right where the pointer is. As you come off of this is Versailles Road, very near the downtown area. This is actually the railroad tracks and the large bridge crossing. Downtown basically begins right here as you're coming out. You turn up Robertson Street, and you would come up, and then you would turn, and this cross street is Anderson Street. This is a corner lot. As you can see, it's currently zoned R1D, as is all of the surrounding uses. Essentially, the Spiegel Heights neighborhood in and of itself is mostly surrounded by industrial, wholesale and warehouse, and heavy industrial uses across the railroad track. The comprehensive plan recommends low-density residential for the subject property. This subject property right here on the corner is directly across from the Spiegel Heights Park. As we zoom in, in the neighborhood, you can see the subject lot right here, and here's the Spiegel Heights Park. Once again, we've got Robertson and Anderson Street as it goes forward in through there. Two quick pictures of the existing house on the property. As you can see, it's just a corner lot. It's a small house on a property that's just under 12,000 square feet. And we can shut down the pictures now. As the staff was looking at this zone change request, we looked at the comprehensive plan, as we always do. And we found that the proposed density of this, of just two houses on this property, ultimately the reason why they're requesting the R1E zoning is to be able to subdivide this one lot. It's about 300 square feet shy of being able to be subdivided under the existing zoning. So the R1E zoning would allow it to be subdivided into two lots. With its current size, it would not be allowed to be subdivided any further. The density would be 7.4 dwelling units per net acre, which, of course, is over the low density. But it is very compatible with the neighborhood. We've done a lot of research in that neighborhood. And the overall density of the neighborhood is at about eight units per acre. And we did find that this zone change is appropriate because it is, first and foremost, this zone change is compatible with the lots in the Spiegel Heights neighborhood. Second of all, we do believe that it's appropriate because it meets Goals 8 and 13 of our comprehensive plan, which relate to infill and redevelopment and providing housing for the needs of all people. Finally, we found that the R1D zoning is inappropriate for the subject property. This lot in its lot size is actually the fourth largest lot in the entire neighborhood. And out of the three other lots that are kind of comparable in size to it, this is the only one that could not be subdivided under the existing R1D zoning. Other than that, we did find that 73% of the existing neighborhood is actually nonconforming with that. And I had kind of a thought on that whenever I was talking to my wife about this neighborhood. It was rezoned R1D back in 1968, and it was a small single-family neighborhood. And in 1968, the smallest lot size zoning that we had for single-family neighborhoods was the R1D zone. And so it was probably appropriate to go ahead and zone it at that time, just kind of recognizing its existing character. That's essentially what we are recommending approval of this, because we feel like even though this R1E zoning will be kind of an island of R1E, it will still be compatible in its development with the surrounding neighborhood. The applicants, I don't see them here, but I have been working with them throughout the process. And I think that's about it. If you have any questions about the zoning, I'd be happy to try and answer them. Otherwise, I believe Mr. Martin will present the preliminary subdivision plan associated with the zone change request. And thank you very much. Mr. Chairman, members of the commission, as Mr. Emmons stated, this is a preliminary subdivision plan for this property. It is a lot split, as you can see from looking at the plan. The plan was recommended for approval by the subdivision committee, subject to eight standard conditions on your agenda, and item number nine, which is provided that you do grant a waiver of the subdivision regulations regarding street geometrics. These streets are developed. They are improved. They just are a little bit smaller and don't meet our current standards. And for them to be brought up to standard would create a jog in the sidewalk and create a hardship for the applicant who is, of course, providing affordable housing. And, really, we felt it was unnecessary. And you can see you do have a report where we are recommending approval of that waiver. If you have any questions, I'd be happy to try to answer them. Any questions? Okay. If no questions, I'll ask for action from the commission. I move approval of MAR 2008-6 with the three recommendations provided by staff. Do we have a motion for approval? It's not until we get to the plan. Okay. We have a motion and second for approval of the zone change request for MAR 2008-6. Derek Thomas? I'll call for the vote. All in favor, signify by saying aye. Aye. Any opposed? Motion carries. I move for approval of plan 2008-7P with the nine conditions, noting number nine is granting of the waiver of article 6-8. We have a motion and a second to approve plan 2008-7P with the eight conditions as noted, changing number nine to granting the waiver as requested for the reasons provided by staff on the staff report. I guess we'll call for the vote. All in favor, signify by saying aye. Aye. Any opposed? Motion carries. Thank you. I note that Mr. Holmes has returned to the meeting. Thank you. I believe our next item on our agenda is located on your agenda on page five. It's ZOTA 2008-1. This is an amendment to Article 8-15, and it's to allow extended stay hotels in our P1 zone. In your notebooks, you'll find our staff report behind tab number seven, and we've just passed out to you a staff exhibit, which I'll get to at the end. I promise I will be very quick on this. This is actually a fairly simple zoning ordinance text amendment. This is just what it says. It allows extended stay hotels in our P1 zones. It's written in such a way that if it's in just a normal P1 zone, then it would be a conditional use that the Board of Adjustment would have to approve, and if it was in a designated professional office project, it would then become a principal permitted use, and it would require Planning Commission approval rather than Board of Adjustment approval. We felt that was important because there are P1 zone pieces of property out there that do not have development plan requirements on them, and so, therefore, we felt that it was important to give that extra set of review. Our extended stay hotels is a definition in our ordinance, kind of getting into what we handed out in the white sheet. You'll notice on your agenda, it does say that the Zoning Committee did recommend referral of this text amendment. It was mostly because there was some concern about our current definition of an extended stay hotel. We do separate out an extended stay hotel different from a normal hotel based on the amount of time that somebody would rent a unit within that hotel. Our extended stay hotels currently under our definition, 75 percent of the rentals have to be for one week or longer, and we do allow 25 percent of their rentals to be by the night. This is important because we do allow our extended stay hotels in our R5 zone, which is a residential zone. There was some concern about whether the 25 percent limit, limiting them to just 25 percent nightly rentals, was too restrictive in our current ordinance, and I did do some searching online and talking to other communities about how they deal with their extended stay hotels, and essentially what I found is that very few people actually regulate it the way that we do, but that's also because they do not allow extended stay hotels in residential zones. They allow their hotels in the same zones that they would allow a by night normal hotel, and so I do think that we are special in that we have existing extended stay hotels in some of our residential zones. With that being said, the staff actually doesn't have much concern if the Planning Commission did want to increase the allowable number of nights that you could stay, just a per night stay, and we have put down for you just very simple text that you could add to this text amendment should you want to. Currently, we restrict it to 25 percent. We thought that the next two logical steps, if you wanted to increase it, would either be 33 percent or 50 percent. Going beyond 50 percent, really you start blurring the lines between our distinguishing an extended stay hotel and a normal hotel. If you want to leave the definition of the hotel just the way it is, staff is still recommending approval of the proposed text amendments to allow extended stay hotels in our professional office projects. We believe that this is a timely update to our zoning ordinance, and it does make sense because most extended stay hotels cater to the professional traveler, and locating them in and around office parks is not that big of a leap. We also feel that it's important with the proposed text amendment that we have that outside of the professional office project, then the Board of Adjustment would review any proposals. If you have any questions for me, I'd be happy to try and answer them. I've learned more about the extended stay hotel business than I ever thought that I would know, or even wanted to know, to tell you the honest truth. I've been reading state laws on all kinds of hotel operations. Well, with all your knowledge, which one of these would you recommend? Honestly, the 33% does seem like kind of an odd number. If you did want to increase it from 25% to 50%, that would be fine. You'd essentially be doubling the amount that they could have nightly rentals. It does come closer to blurring that line between an extended stay hotel and a regular hotel. That's the only concern. I wouldn't want to do that. I would imagine that very few of the true extended stay hotels have. We're talking about a week's time. A lot of people may come in for, you know, like five days. A lot of people come in just for a couple of days. But I think when you have them in this type of zoning, you won't get as many of them just overnight unless it's in a location where it's right off the interstate. But I'm in favor of the 50%. Is that a motion? If we're ready for a motion, if you're ready. I'd like to keep it at 25%. I just don't see any sense in encouraging any hotels, motels, or anything else next to residential areas to start with. And this town is certainly not short of hotels. So, I mean, I would like to leave it at 25%, but you all make the motion. I move if you want me to move it. You're in such a hurry, I guess I better hurry up and do this. These are actually in a P-1 zone, aren't they? Yeah, but they're next to residential. Well, some could be, and most of them won't. This would affect all of them, right? It would affect all of the P-1 zones. I would like to point out that an extended stay hotel can go into any of the zones that a normal hotel can go into. And if they choose to operate their business on extended stay, we just stay out of that. Right. So, essentially, your B-3 zones and your B-5P zones and the downtown zones are the major zones that allow hotels. If also I could add the definition change would also affect the extended stay hotels currently in an R-5 zone as well. It would affect the current operations. Right, but we understand from building inspection there have been no enforcement actions related to that. And how many do we have in the R-5 zones? I believe we have four. Is it, Bill? We know there's one zoned and approved but not constructed. It's probably four or five. In the R-5 zones? Right. I would say we have about four or five. We just rezoned one last fall as well that's not yet constructed. Madam Chairman. Paul, you want a cracker? You say you did some research on this? Yes. What did you find with, did you find other communities that had this same sort of ordinance? No, actually, oddly enough, most of them basically delineate on whether it's an extended stay hotel or a regular hotel based on whether it provides kitchen facilities, not on the length of stay. But in all of those communities, they also do not allow them in their residential zones. They're allowed in the same zones that a normal hotel would be. So it's basically just a, they've just kind of added definitions without really regulating them any differently. I did find that in some states, New York and Ohio, state law actually defines those things and making it very hard to do that. I did check our Kentucky state law and we are not in, we are okay with our zoning ordinance. I know out in the Hamburg developments, there's extended stay or hotels out there with residential area. And these areas are used a lot for professionals that are coming in town for limited periods of time to do presentations. And they've also, I know, have been utilized a lot when people unfortunately have fires and things and families have to be put up for an extended period of time until their property is revamped. And we only have five or six, so I don't know. Another major use of extended stay hotels are for people that are out of town for medical reasons, families and stuff like that. Having had experience that in a foreign town, those types of extended stays were quite important. Right, and we approved, I think, one in the past two years specifically for that purpose. Yeah. I think so. So, I don't see a problem with it. I can't move. Okay, I'll call for a motion. Go ahead. Are you withdrawing your motion? I withdraw my motion for like a second. All right. Thank you. I thought somebody did second it. No, I never heard a second. So, Frank has withdrawn his motion. So, do we have another motion on the floor? I move for acceptance of the definition of the extended stay hotel with 50% of the total dwelling units. Do I need to put a? And the rest of the text amendment as proposed? Yes, and the rest of the text amendment as proposed. Okay, we have a motion and a second. All in favor? Aye. Any opposed? Motion carries. Motion carries. I think we need to tell Mr. Vine he needs to stay in town because this meeting keeps going. I'd like to energize the money. It just keeps on going. Madam Chairman, the next item is on page 6 and 7 of the agenda. This is ZOTA 2008-2, a proposed amendment to Article 22A to reduce the location and size criteria for the PUD 1 zone. The PUD 1 zone is the growth area planned unit development zone. One of the proposed text changes that is before you today is to change the name of this zone to the residential planned unit development zone. This is in large part because the growth area is no longer a functional planning area in the comprehensive plan. We have the sections highlighted up on the overhead of what is involved with this text amendment. Of course, those appear on your agenda in the staff report as well. But besides showing you that, we did locate in the 1980 comprehensive plan what was thought of as the growth functional area. We have a map of that here in green, and it was, of course, the portion of the urban service area not in the developed area. When this zone was created, it was intended for new growth areas within the urban service area. Beginning with the 1996 comprehensive plan, this map and this definition no longer appeared in the comprehensive plan. And it's ironic that since that time, up until the last six months, there really has been little or no interest expressed to the planning staff for the use of this zone, even though this zone is very flexible and allows, in essence, an applicant to determine or write their own setback requirements, lot coverage requirements, floor area ratios, heights, and things of that nature. It does require a developer to have a lot more information filed with the zone change. That may be another reason why this tool has not been used. The second, of course, would be to drop the reference to a section of the comprehensive plan that is no longer in place. That is so that someone, if they are interested in this zone, can at least ask permission to rezone a property to the zone. In essence, they are precluded from that under the current language. And then thirdly, an issue that was discussed at your work session, I believe a little over a month ago, the staff has looked at whether or not, in conjunction with this text amendment, we ought to revise down the size requirement for a PUD 1 zone. And that leads to the map to my immediate right. This map shows currently the vacant and underutilized properties that are 10 acres or more in size. They're shown in the dark green and the brown colors on this map. And in addition, we've added with the fuchsia dots and the orange dots properties that are either 5 to 10 acres in size or 3 to 5 acres in size that are also recommended for residential use in the comprehensive plan that might become eligible for this tool should a developer want to propose PUD 1 zoning for those tracts. It's approximately 23 or 24 locations. Additionally, that would be eligible if the size requirement were reduced to as small as 3 acres. That is the smallest that the staff has discussed with you in terms of this text amendment. And that would appear in Section 22A-2B, reducing it from 10 acres to 3 acres. The staff presented our report to you, of course, three weeks ago at your zoning committee meeting. At that time, we recommended approval of the text amendment for the three reasons that appear on the agenda. Briefly, those are that, firstly, PUD 1 has inadvertently become off limits to those interested in using this innovative tool. Secondly, that the proposed change in title will foster a better understanding of what this zone is intended for, especially for out-of-town professionals reviewing our zoning regulations. And then thirdly, the reduction in lot size will help promote greater use of this tool. And I would just point out a few years ago, the Planning Commission did ask the staff to kind of investigate that. So it's a little late, but we think this may be a way to foster greater use of this tool. Your zoning committee reviewed our recommendation and referred the text amendment to the entire commission. But with that, I'd be glad to answer any questions you have of our recommendation or about the text changes that are before you this afternoon. The text changes have come about really pretty much from what you're seeing happening. Is that right, Bill? The last few months, we have finally seen some interest in different folks wanting to use a PUD 1 zone. Also, we reviewed another development proposal that we wondered if PUD 1 would be an alternative to, say, an R3 for a different proposal. And it really was in that exercise that we learned that this outdated reference to the comprehensive plan really precludes the use of PUD 1 in that instance. So that's what prompted the staff to ask the commission to initiate the change. I kind of hate to see it go with the word PUD because I was involved in writing it with some others. But I think that what I would consider is in view of the history of the situation and how things have developed, because things do change. I realize that in my, for some, 50 years of work. But I go along with that, but I just, you know, when we researched this many years ago, PUD was the popular term and the current buzzword, you know. And it was a new thing. And it was one of the first things that I came across that really meant a lot to planning because it dealt not only with the strict zoning issues, but some of the generalities of environment and community design. So I'm twisted and turned on this a little bit. But I would go along with the fact that you've researched it properly and you see the trends that are happening, and I would defer to that. Thank you, sir. Bill, could I ask you just to give me a point of reference? I mean, I can see some of these things, but like the brown, are those structures you say, is this down the bottom? According to the legend, that is a lot with the structure. And it may include agricultural structures in those locations. The map that shows the dark green and the brown lots is a little bit misleading. And I say that because some of these areas are in the expansion area, and those areas are off limits already to the PUD 1 zone. You must use expansion area zones in the expansion area. Likewise, not all of these tracks, let's go up to the cold stream area, those are not recommended for residential use under the comp plan. They would still, as the text currently is or after this change, not be eligible for PUD 1. The map with the green and the brown lots is strictly lot size and does not go the further evaluation that the dots did about recommended land use for residential. They just indicate that the lots are large enough that would permit an applicant to request it. If the comp plan were to change on those lots, you know, five, ten years from now, perhaps at that time they could be eligible for PUD 1. I was just trying to figure out where some of those locations are, some streets, if you'll give me a reference, to see how close they are to downtown or whether these are out areas. Let me start with New Circle Road. New Circle Road is here. You can see even with the text change there are very few sites within New Circle Road that would be eligible. Manowar Boulevard is here. The airport, of course, being right here. Your Sales Road, Winchester Road, Harris Pike, Nicholasville Road. You're welcome. I think we have another question, Ms. Lynn. Will this PUD, because the words PUD, claimed unit development, are about, what, 25, 30 years old, whatever. But will this amendment, in effect, allow a mixed use kind of new urbanist development that we're currently seeing trending for, but our ordinance does not currently allow? If someone outside of the infill and redevelopment area wanted to do, you know, a mixed use development and didn't have the proper ratios with respect to, you know, usage of a structure, we would have to break it out by zoning category, and that often creates problems. Would this PUD resolve that? There are no changes to the PUD text that regulate commercial use. Generally, this is a suburban zoning scheme. This zone might allow for some vertical integration in the commercial area. The size of the commercial area is greatly restricted in this zone and will still be after this text amendment. It's not proposed for change. We do have a draft that is in its early stages for a mixed use PUD that could be added to the zoning ordinance, but that probably will still be a few months away from your consideration, I believe. Just from a residential standpoint, what type of densities are you talking about in a PUD zone? This zone really does not regulate density. It doesn't do anything for density at all? Correct. I think what you would be doing is as you had a zone change for this zone, you would evaluate the density recommendation of the comprehensive plan. You would still have the ability through conditional zoning or in the alternative through the development plan process to control the density on the site. Yes, sir. Mr. King. I wanted to make that clarification. Even though it's not a mixed use zone, it really would facilitate new urbanist type designs in a residential context because you don't have the inherent Euclidean requirements of zoning, and it really becomes more of a negotiated process between the staff, the commission, the neighborhood, and the developer to come up with the product that you put on the property. If instead of just decreasing the lot size, if we should maybe adjust this so that we can have more mixed uses? I think right now we're not that detailed into the ordinance. Right. That's not the purpose. The purpose is to preserve the ordinance and update it so that we still have it available to utilize. So that's the purpose of this amendment, as I see it. Perhaps as an alternative when the drafted mixed use PUD might come before you, perhaps at that time we could also look at the commercial components to this zone. Right. Oh, Chris. I would be very cautious of making that quantum leap at this point without further discussion, but I want to say this. With the IR steering committee recommendations and all of that discussion that's going on, you may see us back here in six months or a year making that kind of recommendation after we have studied and looked at it. Right. Right, but this is the first step and up. All right. Do we have any other questions? If not, I'm ready for a motion. I move that we accept staff's recommendation for the residential planned unit development for the reasons that they have given us. Okay. We have a second. Okay. We have a motion and a second to adapt the staff recommendations for this text change to the PUD designation. All in favor, signify by saying aye. Aye. Opposed? Motion passed. Thank you. We have any, I think that's most of our agenda items. Does the commission have anything else they want to bring up at this point in time? Mr. King? All right. I guess we'll entertain a motion to adjourn. Thank you. We are adjourned.