# Planning Commission Subdivision Meeting - August 8, 2019 > Auto-transcribed civic record · August 8, 2019 - **Permalink**: https://meetings.lexingtonky.news/meeting/4805 - **Source video**: https://lfucg.granicus.com/player/clip/4805?view_id=14&redirect=true - **Date**: 2019-08-08 - **Last revised**: August 8, 2019 - **Length**: 26,006 words > ⚠️ **Auto-generated content.** The transcript on this page is the Granicus stenographer's live closed-captioning track, captured at the time of broadcast (typos and broken sentences common). Speaker labels come from the same track. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude Sonnet. Verbatim wording and speaker attribution 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 convened on August 8, 2019, at 1:30 PM in the Council Chambers of the Urban County Government Building at 200 East Main Street in Lexington, Kentucky, with Mike Owens presiding as the meeting officer. The commission addressed three main agenda items during the session, taking a total of six votes on various motions throughout the proceedings. The meeting included two public comment periods, allowing community members to voice their concerns and opinions on the matters before the commission. Of the three primary agenda items considered, the commission approved one application while denying two others. The George Mankel Property matter received approval from the commission, while both the 6K and Under Auto Sales, LLC application and the Virginia Brown Appeal were denied. These decisions reflect the commission's ongoing work in reviewing development proposals, zoning matters, and appeals that come before the planning authority for the urban county jurisdiction. The meeting demonstrated the commission's role in balancing development interests with community concerns, as evidenced by the mixed outcomes of the agenda items and the inclusion of public input in the decision-making process. ## Attendance The following members were present at the August 8, 2019 meeting: **Present:** • Mike Owens • Anthony de Movellan • Larry Forester • Karen Mundy • Bruce Nicol • Carolyn Plumlee • William Wilson **Absent:** • Headley Bell • Patrick Brewer • Frank Penn • Graham Pohl No members arrived late to the meeting. Seven members were in attendance, with four members absent. ## Votes and Decisions The board took action on six items during the August 8, 2019 meeting, with all votes passing unanimously with all seven members present. **Minutes Approval** [timestamp: 00:30] Carolyn Plumlee motioned to approve the minutes from June 27, 2019, and July 11, 2019, seconded by William Wilson. The motion passed unanimously 7-0, with votes from Mike Owens, Anthony de Movellan, Larry Forester, Karen Mundy, Bruce Nicol, Carolyn Plumlee, and William Wilson. **PLN-MJSUB-19-00006 - Tuscany, Unit 15** [timestamp: 05:00] Karen Mundy motioned to postpone the Tuscany, Unit 15 matter, seconded by Carolyn Plumlee. The postponement was approved unanimously 7-0. **PLN-MJDP-19-00047 - Sams & Larkin Property** [timestamp: 10:00] Karen Mundy motioned to withdraw the Sams & Larkin Property (KY Eagle Beer) application, seconded by Larry Forester. The withdrawal was approved unanimously 7-0. **PLN-FRP-19-00024 - George Mankel Property** [timestamp: 30:00] Karen Mundy motioned to approve the George Mankel Property subdivision plan, seconded by William Wilson. The approval passed unanimously 7-0, subject to eight conditions set by staff. **PLN-MAR-19-00011 - 6K and Under Auto Sales** [timestamp: 3:00:00] Carolyn Plumlee motioned to disapprove the 6K and Under Auto Sales, LLC zoning map amendment, seconded by William Wilson. The disapproval was approved unanimously 7-0. **BOAR 2019-2 - Virginia Brown Appeal** [timestamp: 5:00:00] William Wilson motioned to uphold the disapproval of the Certificate of Appropriateness for Virginia Brown, seconded by Bruce Nicol. The motion to uphold the disapproval passed unanimously 7-0. All voting members participated in each vote: Mike Owens, Anthony de Movellan, Larry Forester, Karen Mundy, Bruce Nicol, Carolyn Plumlee, and William Wilson. ## Public Comment Two members of the public addressed the meeting during the public comment period. **Paul Natof** spoke regarding the Lexingtonian Estates (The Silks Club) project [timestamp: 2:00:00]. Natof expressed concerns about lighting and fencing associated with the development. He thanked the applicant for agreeing to install an 8-foot fence as part of the project. **Dick Murphy** addressed the meeting concerning 6K and Under Auto Sales, LLC [timestamp: 3:30:00]. Murphy represented opposition to a zoning map amendment related to the business. He cited ongoing violations and expressed concerns about the negative impact the operation has had on neighboring properties. Both speakers focused on development and zoning issues affecting their respective areas of concern within the community. ## Contested Items The primary contested item during this meeting was the zoning map amendment request for 6K and Under Auto Sales, LLC. This proposal faced significant community opposition from residents and neighboring property owners who raised concerns about the business's operations and impact on the surrounding area. The opposition centered on ongoing violations and negative effects the auto sales business was having on the neighborhood. Community members and adjacent property owners voiced their objections during the public hearing process, citing various issues with how the business was currently operating. The nature of the specific violations and negative impacts mentioned by opponents was not detailed in the available meeting materials, but the level of community concern was substantial enough to make this a heavily contested agenda item. The opposition appeared to be organized, with multiple stakeholders participating in the discussion. The outcome of this contested zoning amendment request was not specified in the extracted meeting data, leaving the final decision on the 6K and Under Auto Sales, LLC zoning map amendment unclear from the available information. This item represented the main source of controversy and debate during the August 8, 2019 meeting, with the community opposition highlighting ongoing tensions between commercial development interests and neighborhood concerns about business operations and their effects on residential areas. ## George Mankel Property The commission reviewed application PLN-FRP-19-00024 for the George Mankel Property, a proposed subdivision to divide one lot into two lots at 6377 Athens Boonesboro Road [timestamp: 30:00]. Tom Martin presented the application to the commission. The proposal involves subdividing a single existing lot into two separate parcels at the Athens Boonesboro Road location. Following the presentation and discussion, the commission voted to approve the subdivision request. The approval came with conditions, though the specific conditions were not detailed in the available materials. The commission's decision represents approval for the property owner to proceed with dividing the lot as proposed, subject to meeting the specified conditions of approval. ## 6K and Under Auto Sales, LLC [timestamp: 3:00:00] The planning commission considered agenda item PLN-MAR-19-00011, a zoning map amendment request for 6K and Under Auto Sales, LLC. The proposal sought to modify existing conditional zoning restrictions related to auto sales operations. Key speakers during the discussion included Howard Berry and Dick Murphy, who presented arguments regarding the zoning amendment. The item involved consideration of changes to conditional zoning requirements that would affect the auto sales business operations. Following deliberation on the zoning map amendment proposal, the planning commission ultimately disapproved the request. The amendment to modify the conditional zoning restrictions for 6K and Under Auto Sales, LLC was denied. The specific details of the concerns raised during the discussion and the rationale for the denial were part of the commission's consideration of this zoning matter. ## Virginia Brown Appeal [timestamp: 5:00:00] The Planning Commission considered appeal BOAR 2019-2, filed by Virginia Brown, seeking to overturn the disapproval of a Certificate of Appropriateness for chimney removal. Betty Kerr served as the key speaker during the discussion of this appeal. The appeal centered on a previous decision to deny a Certificate of Appropriateness that would have permitted the removal of a chimney from the property. The Commission reviewed the circumstances surrounding the original disapproval and evaluated whether the decision should be upheld or overturned based on the appeal arguments presented. Following deliberation on the merits of the appeal, the Planning Commission voted to deny Virginia Brown's appeal BOAR 2019-2. This decision upholds the original disapproval of the Certificate of Appropriateness, meaning the chimney removal will not be permitted to proceed as originally requested. The denial maintains the existing regulatory decision that determined the proposed chimney removal did not meet the necessary criteria for approval under the applicable Certificate of Appropriateness standards. --- ## Decisions - **Motion** — passed (7-0): Approval of minutes from June 27, 2019, and July 11, 2019 - **PLN-MJSUB-19-00006** — postponed (7-0): Postponement of Tuscany, Unit 15 - **PLN-MJDP-19-00047** — withdrawn (7-0): Withdrawal of Sams & Larkin Property (KY Eagle Beer) - **PLN-FRP-19-00024** — passed (7-0): Approval of George Mankel Property subdivision plan - **PLN-MAR-19-00011** — failed (7-0): Disapproval of 6K and Under Auto Sales, LLC zoning map amendment - **BOAR 2019-2** — passed (7-0): Uphold disapproval of Certificate of Appropriateness for Virginia Brown --- ## Full transcript test test 1234d nd 1 nud hello everyone. It is 1:30. I would like to welcome everyone to our meeting today and I will call this meeting to order. First on the agenda would be approval of minutes. We have two sets one from June 27 and July 11. Have I not heard of any changes. If there are any, please let it be known. Otherwise I'll entertain a motion for approval. >> Mr. Chair, move approval of June 27 and July 11 minutes. >> motion has been made and seconded please vote when it comes up on the screen. That motion passes. So postponements or withdrawals from today's agenda. Anyone? No one? >> excuse me. >> yes, sir. >> Mr. Kaley is waving at us. Good afternoon, sir. >> Mr. Chairman, members of the planning commission, r-4y kaley. On page 2 under your preliminary subdivision plans pln-mjsub-19-6 tuscany. We are requesting a one month postponement. >> would that be September 12 I presume? The request is for postponement of pln-mjsub-19-6 tuscany. Anyone in the audience wish to speak to this request. Commission members? I'll entertain a motion. Miss Mundy. >> Mr. Chair, I move for postponement for one month that would be until September 12 of pln-mjsub-19-6, tuscany unit 15. >> and we do have a second by Miss Plumlee. If there is no further questions , please vote when it comes up on the screen that request has been postponed. Thank you, sir. >> thank you. >> any other requests for postponements and/or withdrawals >> Mr. Chairman, staff has an item to bring to your attention. >> yes, sir. >> on imagination 4 of your agenda, item e-mjdp-1947 sames and larkin property. Kentucky eagle beer. This is a final development plan and the applicant has notified staff that they would like to withdraw this plan. >> the applicant is no is not here? >> no, they submitted a written request to staff. > if there's no objection, we need a motion for withdrawal. Yes ma'am. >> Mr. Chair, I move for withdrawal for pln-mjdp-19-47 sames & larkin property amended. >> thank you, motion has been made and seconded by Mr. Forester for withdrawal. Please vote when it comes up on the screen. Motion passes. We'll take the rest of the items as they are shown on the agenda. We'll let staff set up for the first one. >> Mr. Chairman. Consent agenda. >> I'm sorry. We do have to approve that. >> thank you Mr. Vice chair. >> Chairman Owens we have three items that appear on the consent agenda for consideration with the planning commission with one motion. One is a subdivision item asked for reapproval because it has expired and the second and third items are development plans so I'll read those and we'll ask if there is anyone in the audience or if a petitioner wants to have one of these items pulled from the consent agenda or if one of the planning commission members wishes to have it heard. The first item appears. (Phone ringing) On page 2 item b. Plan 2016-16-69236789 wyndale subdivision lot 2. Final record plat. It was approved last year and the oom cant is asking to have it reapproved. I will note on page 2 of the agenda, there is a change in one of the conditions for the landscape examer as opposed examiner as opposed to being in the building inspection sign-off it will be the landscape. Second item is page 3 item b. Pln mj 19-42. The silks club amended for property located at 1500 winters -- winners circle lexington, kentucky. There are additional parcel addresses associated with that and the last item is on page 4, item d, pln mj deposit 19-44 tates creek center lot 5 known as belleau woods shopping center property located at 4161 tates creek road. At this point the planning commission can consider all of these items in one motion for conditional approval unless there is someone in the audience or petitioner or someone on the commission who would wish to have one of these itemed pulled. >> thank you, Miss Wade. Anyone in the audience wish to -- yes, sir. >> I'm hoping to speak about item 2 on page 3 item b, lexingtonian estates. >> your name. >> paul. >> thank you, sir. We'll pull that and take it in order that's on the agenda. Anyone else? We have two on the agenda. Commission members? Anyone want to hear these? No? If not, we can have a motion for the consent agenda with the now two items. >> I'd like to move that' have the two items lexingtonian estates as part of the consent agenda as well as taitle creek center as part of the consent agenda. >> Mr. Wilson. One person asked to have the lexingtonian estates heard. So it's -- >> I only took two that we would consider and I deleted that one. >> the fist first item wynne dale -- that's the one that is staying on the consent agenda. He is asking to pull the second of the three that's on the consent agenda. >> oh okay got the wrong one. Thank you. Then I will move again or amend my motion for pln-2016-69 and the tates creek center lot pln mj 19-44. >> motion has been made and seconded for the approval of the consent agenda with two items deleting the lexingtonian estates. if there is no questions, please vote when it comes up on your screen. That motion passions. Thank you. So now we'll move on to the agenda in order. Let staff set up and we do have a performance bond letter of credit that needs approval that is on your gran granicus and we'll take it out of order if that's okay with everyone and would like a motion. Yes ma'am. You're pulling it up. Okay. >> Mr. Chair, I'll make a motion for the approval of the performance bonds and letters of credit presented to us today. >> second. >> thank you. Motion has been made and second ed for the approval of the performance letter of bonds and credit. If there is no discussion, please vote when it comes up on your screen. Motion motion passes. First item. >> first item on the agenda is on page 1, a final subdivision plan 19-24 for the george mankel property located in athens, located in the very heart of athens. Here we have athens boonesboro road and north cleveland pike. It is situated on the corner of that direction. I believe north cleveland pike is 1973, which is a lovely drive , take you from old richmond road all the way to georgetown road. This is interesting in that this is a small existing lot. It is on b-1. a lot of our rural communities have commercial zoning and this lot is zoned b-1. They're proposing to subdivide the lot into two. You can see the rear lot will be the new lot. It's somewhat larger. The total property is only.42 acres. It has an existing single family home which is a non-conforming b-1 use. The applicant was faced with several options. Their desire is to build a guitar shap on the rear of the property in this location. And the traces where a final development plan for two principal structures seems a little extreme for small less than a half acre lot in athens, and then a trip to the board of adjustment was a possibility and then it was determined that a subdivision would work and allow then the guitar shop, which will also have a retail component, to be a principal use, which it is, on the b-1 lot. That's the reason they're here before you today in one regard, to subdivide the property. But more importantly, there are waivers associated with this and we have passed out a report to you on this particular request for a subdivision. As I stated before, it is a small lot.41 acres. It is served by an existing septic tank and drain field which is how all of the homes and businesses in athens are served. They all are on a septic tank with drain fields. There is no public sewer available in the community of athens. So one request that is before you today for a waiver is the 10-acre rule because the subdivision regulations require a minimum of 10 acres for a septic system. This is less than half an acre. They are going to subdivide further, they cannot meet the 10-acre rule so that's the subject of the waiver request as well as just the waiver on public sewer because that's how your regs are written. They're required to have public sewer or 10 acres for a septic tank in addition, there is along the frontage here, improvements on athens boonesboro. They've got a sidewalk and some curb and gutter improvements in that community. However, north cleveland pike is very much a rural road by nature it transitions into the country very quickly after you get out here and go around a curb out that way. It still maintains its rural characteristics so the request is also not to have to build full half street improvements along the frontage of this. Now staff has reviewed this. We've discussed this with engineering and with traffic. And we all concur that these are justifiable waivers. And the same is true with the rural highway characteristics as you all have heard us discuss before, it's not just a matter of pavement and curb and gutter, it's streets convey storm water. Well there is no storm water facilities out here. There is really not a heavy pedestrian presence in athens so staff is expressing their support for these requested waivers. now I would draw your attention to the conditions. Staff is recognizing the unique ness of athens and the circumstances that affect this property and that's one reason we are supporting the waivers. However the septic system in particular is important and we want to be sure that the system will serve both the existing home and any use that would go on the new lot from any facility that would be a part of the re development of this lot again, a retail operation small guitar shop that he is proposing, if he wants a bathroom, this septic system is going to have to be able to handle it. In addition, we are making a recommendation that appropriate language be placed on this plat that will flag the circumstances for any future purchaser because we certainly would not want a purchaser to buy a b-1 lot think ing that any commercial use could go in and on that property when, in fact, it May not be able to due to the septic system and the sewer situation. That's the purpose for condition c and we're willing to work with the division of law to craft a very good note on this plat before it gets certified. But with that, staff is recommending approval of the plat and the waivers and I'll answer any questions you May have for staff. >> any questions for Mr. Martin? Thank you, sir. Applicant? >> I'm justin jury representing Mr. Mankel on this project. Thanks, tom, for that description of what is going on the only thing I would add is we did have a chance to review the staff's report on the waivers and reviewed that with my client and he is acceptable of all the conditions that were part of the waiver report so I think tom covered just about everything else. I'll be open to take any questions you might have from there. >> thank you. Any questions? No? Okay. Thank you, sir. Anyone in the audience wish to speak to this request? Yes, sir. >> I'm jorng mankel. I just want to say thank you. >> we haven't joated voted yet. >> you're listening to my plea so the vote is not in my hands. I just thank you. >> thank you. Anyone else? If not, I'll close the public hearing part and open it up for discussion and if no discussion, a motion for the waiver first and then the plan. >> I move for approval of the waiver for pln frp george mankel property with the three conditions set forth by staff. >> do we have a second? >> second. >> motion and second has been made for the waiver plan frp 19- 24 george mankel property with three conditions. Please vote when it comes up on the screen. Motion passes. >> move for approval of pln frp- 19-24 george mankel property with the eight conditions set forth by staff. >> motion made and seconded for at professional of pln-frp-19-24 george mankel property with the eight conditions f. There are no questions, please vote when it comes up on your screens. Motion passes. Thank you. Next page 2, plan 2016-69 f wyndale subdivision, we have revised -- wait a second. I'm sorry. I'm on the wrong one again. I'm rusty. I'm going to turn this back over to Mr. Will wilson. We'll move on to page 3 under development plans. Avondale subdivision. >> good afternoon. This plan is located at 912, 914 , 916 and 918 north limestone you can see to the west is loudoun avenue. The purpose of the amendment is to modify access and the parking layout for four residential units. We have most of our standard typical sign-offs associated with this plan and going down to condition number 10 consolidation plat shall be recorded prior to the development plan. That's a standard condition and number 11 was previously a discussion item about compliance with the central sector small area plan streetscape requirements. We can resolve that discussion. The applicant has submitted a revised plan this property is included in the central sector small area plan and the small area plan has very specific streetscape requirements which include five foot wide sidewalks the applicant previously submit ted an exhibit to us show ing different ways that they will meet the plan's recommendations. Including bike racks, permeable pavers and preserving the exist ing tree canopy. But after staff has met with the applicant last week they have now agreed to provide five foot wide sidewalks as recommended in the small area plan and as shown on their revised plan. Staff is recommending approval. >> any questions? If not, applicant? >> john henny, planner and landscape architect with the firm gresham smith here at the request of the applicant north holdings. I'm happy to answer any questions. I think staff did a more than adequate job describing our project. >> thank you. I presume you are in agreement with the 11 conditions? >> yes, sir. >> any questions for the applicant? Anyone else in the audience wish to speak to this plan? I'll close this part of the public comment section and open it up for discussion and/or a motion. >> I was getting ready to do a motion but if there is any discussion I'll hold. >> motion is ready. >> Mr. Chairman, thank you. I would like to move for approval of pln-mjdp-19-41 avon dale subdivision with the 11 conditions provided by staff removing the word discuss to re solve on number 11. Motion has been made Mr. wilson seconded for approval pln mj 19-41 avondale subdivision with the revised 11 conditions. If there is no further discussion, please vote when it comes up on the screen. Motion passes. Thank you, sir. Next page 3, pln-mjdp-19-42 lexingtonian estates. >> Mr. Chairman, members of the commission item b-mjdp-19-42 lexingtonian estates known as the silks club, amended final development plan here we have versailles road. This is the existing street system for the property. This has been constructed, is in place. Here we have the historic home that you are aware is on the site and then they are proposing 45 townhouses that you can see distributed primarily around the perimeter of the property with three in this location here. Here is a pool, clubhouse area and an amenities area for the development. Here we have a large sink hole% and I would add that as the streets have been built as well, you can see that they're proposing access to all these townhouses from these access easements. They will be rear loaded in the townhouses. There is actually 90 parking spaces in total but this include s the garage units for the parking spaces. This plan was reviewed by staff. It was presented to your subdivision committee where there was a very good discussion on the various issues on this particular plan. and you can see we have a lot of standard sign-offs and the last four conditions on the plan were all resolve conditions. Again, this has come about from the preliminary plan at the zone change and negotiations with the neighborhood as well as working with the staff to address various items first one is re solve outdoor lighting restrictions and it's staff's understanding that there is a revised plan. It has not been submitted to staff, that does address the out door lighting conditions. And again that's going to deal primarily with their relationship with the existing single family neighborhood and it deals with the height, pedestrian scales and direction of the lighting on the rear of the property. In addition staff raised an issue with the pedestrian system now they have a nice pedestrian system through the property aand connection to the adjoining fayette county park. Staff still has a few concerns on a pedestrian system that will help the amenity area the central part of the development function a little more pedestrian friendly manner. This is important to the use of the property to people that are going to be parking and guest parking and wanting to access the amenityies as well as the fact that the U.S. Postal service as you all have have been hearing are placing kiosks in all new developments so staff believes it will be to provide a good pedestrian access to the kiosk location sim p pli came down to a note that talked about an eight foot fence versus a six foot fence. Eight foot fence is what was approved by the planning commission on this property. That's the requirement. Other than that, they will be meeting article 18 landscaping and setback requirements along the buffer with the single family neighborhood. And then last and certainly not least would be to resolve property posed green infrastructure facilities. This comes out of your place builder and we like to have more detail on the plans addressing the types of green infrastructure that they believe they can utilize. It's important to understand that as the infrastructure plan moves forward sometimes some of this May change. But there are various types of green infrastructure they can use. We are looking for them to de note on the plan that they have given this some thought and they have given it thought what will work and what will work best. I would again point out to you large sink hole down here. There are sink holes all around on the adjoining properties as well. So those are environmentally sensitive. They're not part of the storm water facilities in the development and as I stated before along with the street infrastructure, the public sewer is in as well to serve this development there is a small pump station located somewhere in the vicinity. your subdivision committee did recommend approval of the plan and I'm happy to answer any questions you May have for staff >> any questions for Mr. Martin? Yes ma'am. >> tom, I just remember this from subdivision committee so I want to be sure it's clear because I think, in my mind anyway, it was left a little ambiguous. I understand some of the neighbors want a six-foot fence but what we have approved is eight-foot only. Is that correct? >> yes ma'am. >> that's all I needed. Thanks. >> any other questions? Thank you, Mr. Martin. Applicant. >> jacob wahlburn on behalf of the applicant. I will be exceedingly brief. Staff has a revised plan. The only reason it was not submitted is because we didn't want to jeopardize our status on the consent agenda but it has% notes that address both the lighting and fencing issues that were raised by Mr. Martin. We understand the infrastructure concern as well as the pedestrian concerns can be offs on the plans. We do intend to address staff's issues on that but we believe this plan is approvable unless you have specific questions for me, that's all I have for you. >> what does that note say? >> units adjacent to wellsley height shall restrict their exterior lighting to a hacks mum of eight feet and then the second note is note number 11, the six foot landscape buffer along wellsley height subdivision small include an eight-foot tall fence notwithstanding what some of the neighbors have said, I believe that's in accord with your all direction at the zone change. As to the pedestrian improvement s? We'll work with Mr. Thompson and other appropriate people to make sure. I don't mean to speak for scott but we spoke briefly after subdivision committee and the indication I got from him was that it was not a tremendous amount of work that was required it was really just trying to provide there are a couple of guest parking spaces we provided adjacent to the pool area and I think scott believes -- yeah, here we go. Right in this area and right in this area, there is not sidewalk on the uj tear year -- interior and I think the hope was that we would try to connect those spaces and we don't have any objection to that. >> thank you, sir. Any other questions from commission? Anybody in the audience wish to speak to this? Yes, sir. >> I'm paul natoff. I live in wellsley heights. I'm here on behalf of myself, not the neighborhood. I had explicit instructions from the neighborhood to speak on their behalf but we recently found out about this meeting so this is all me I don't represent the neighborhood. We are not fighting the zone change. we were not opposed to it. We just want to make sure our neighborhood is represented and everything is fair to us and fair to process which I'll get to in a minute. I wanted to thank the applicants for agreeing to the eight foot tall fence and the buffered tree s. I've heard from the applicant that some of our neighbors want ed the six foot fence. When I was President Of the neighborhood, I did not hear that from anybody perhaps if we had the early engagement if we had the early engagement with the applicant before they submit ted the zone change maybe all those details and kinks would have worked themselves out but we didn't. I wanted to thank the planning staff for their help along the way. And thank them for letting the applicant know that a variance was not needed for the eight foot fence and it was not illegal to put up an eight foot fence in fact it was part of the statute that said it could be six to eight. My question about the fence is taken care of with the new note the lighting. We discussed back and forth emails at length we suggested particular language for the lighting to be included on the plan applicant agreed to it but it's different from what we all agreed to what we agreed to was all exterior lighting shall be downward facing and maximum of eight feet. I have emails if you like show ing their acquiescence to these terms. i think that is what the note should read. I don't know who has the authority to make that change but we would like it to read that. Additionally our last opportunity to request a public hearing with counsel that day the applicant sent or hand delivered a letter to council member plomin saying they'll make an offer, they'll offer to limit the density and offer this lighting language in exchange for no public hearing. We agreed to not have a public hearing in exchange for limiting the density and the lighting language that we agreed to so again if we could make that language lighting that I read part of the final plan, that would be appreciated and applicant has already agreed to the language. When I was here last time I spoke at length about the whole place builder process and how it encouraged early and meaningful engagement between the applicant and stakeholders before they submit thrid application and I noted an error in the application where it stated that they consulted with us prior to filing. I gave the applicant an opportunity to address it when they were here last and they said they couldn't speak to it because they weren't part of the discussion, which is true. Since then, they did acknowledge it to me and to our neighborhood in email that they did, in fact, make a mistake. They never met with us they didn't consult with us before they submitted their application the way I was raised. I own up to my mistake and I do what I can do to correct my mistake. My daughters are here today and I raise them with the same philosophy. Now I know how the process back and forth works, I have a few questions for the applicant will the applicant publicly acknowledge the mistake that they did not consult us prior to filing. Second question did the applicant make any attempt to correct the application or even ask if correcting the application is possible? And finally does thage cant or their attorney, do they have any legal, moral or ethical obligation to correct the application? >> we are here mostly for the development plan issue. From what I understand in listen ing to you really the only question you have now would be lighting restrictions, language as far as that. We can address that, I am sure m r. Walburg could address that as well. We'll give him a chance and see where we go. As to the answers, if Mr. Wahlburn wants to, it sounds like to me they've reach ed out to you and recognize some of the errors that were made early on and sounds like they made attempts to correct anything that was taken from there. I don't see much of a sense of continuing on with that because I think they have already reach ed out to you but if Mr. Walburn wants to address it, he can thank you. >> if the commission wants to re hash old things, we can do that. I agree the application is not before you today. With respect to the lighting, they've seen what we propose to install I think I brought it up at subdivision. The bulb is downward facing but it's encased and doesn't necessarily result in the light all going straight down. It's a security light it's not the flood lights like you are thinking of that you have directional my I think it's called a sconce that we are going to put on the outside of the home that's what the note is intended to address if they would like to mimic that exact language provided that staff doesn't view that as being exclusionary to that design which I understand from my clientings the neighborhood was agreeable to, we are fine with that language change. Anything else I'll answer or not at the commission's direction. >> anyone else wish to speak to this application request? Staff, any additions? Comments? >> Mr. Martin? >> no, sir. >> thank you, sir. If not I'll close this part of the hearing and open it up for any discussion amongst commission members. And or then a motion. >> I have something would I like to say and then I'm ready to make a motion. First of all, this is our first, as I understand it and remember correctly, this is our first plan that has been done under place builder so I think the developers there for the silks club have done a very good job considering this is our first brush at trying to do place builder and put these things in place. Whether there was a snafu made at the beginning or not, I don't know but it sounds like along the way they have done all they can do to rectify it. They've certainly seemed to comply well with what the neighborhood has asked for and because of that, I'm going to move for approval of pln-mjdp-19 -42 lexingtonian estates amended with the 17 conditions put forth by staff. Motion for approval. And a second. Any discussion on the motion if not I'll call for a vote so please vote when it comes up on your screen. The plan does pass. Thank you very much. Thank everyone for their participation. Next on the agenda bottom of page 3, pln mj deposit 19-43 burke, hockensmith and maggard continues on to page 4. >> we have revised conditions for this plan so if you want to look at the tan sheet with this plan, there was a lot of discussion at the time of our subdivision meeting it got postponed at that time. What we have right now shows what we were discussing sidewalk connections to george down road so this is an exhibit the applicant has submitted. A discussion for the last week between everybody to make sure we got what we were looking for so the only thing that we added to the consensus that hoo -- conditions that we had was to de note sidewalks shown is on exhibit. We have connection for each drive entrance coming in, going out and then again over here so every point has a sidewalk to georgetown road now so I believe at this time we can recommend approval. >> thank you, any questions for Miss Gault? Thank you. Applicant? Anything to add? >> applicant -- I represent the applicant for lot 3, Mcdonald 's. Just here to answer questions if you have any. >> in agreement with the revised conditions? >> yes. >> thank you for the exhibit. Anyone else in the audience wish to speak to this request? Sa. I'll close this part of the public session and open it up for questions and/or a motion. Yes ma'am. >> Mr. Chair, after hearing everything that we've heard, I will move for approval of pln -mjdp-19-43 with the 12 conditions as put forth by staff >> second. >> motion has been made and seconded by Mr. Wilson for approval of pln-mjdp-19-43 with the revised 12 conditions no further questions, please vote when it comes up on your screen. Motion passes. Thank you thank you. >> well, looks like we move on to page 5 zoning items. 6k and under auto sales llc zon ing map amendment and elk horn park. On a revised conditions on a blue sheet. There is also a revised staff report for the zone change itself, which should be before you Mr. Barry, is it my understanding today is your birthday. >> yes, it is. >> we wish you a happy birthday. >> thank you very much. >> we are talking about pln-mar- 19-11. The applicant is seeking a zone change technically it is a change in the conditional zoning restrictions for the property at 1709 north broadway. They're seeking the change from a highway service business b-3 zone with conditions to a highway service business b-3 zone with modified conditions. Acreage of the property is approximately.9 net and 1.1 gross acres. The petitioner has requested to remove a conditional zoning restriction on the subject property which prohibits the establishment for the display, rental sale, service and or minor repair of farm equipment, contractor equipment, automobile , motorcycles, trucks, boats, travel trailers, mobile homes or supplies of such items. In order to permit an automobile sales as a principal use on the subject property. Conditional zoning restrictions were put into place in 1988 by the urban planning county commission and ratified by the urban county council. Here we have the zoom out of the surrounding zoning and land use. The property is located along north broadway, which is a major arterial roadway with four travel lanes and a center turn at this location. The subject property access from north broadway shared access easement on the east side of the property and separate access point located approximately 20 feet to the west along the west side of the site. Access to the surrounding neighborhood is off cane run road here. And then dover road here. Zooming in we can see the property is surrounded on three sides by b-3 or the highway service business zone afntd one side by the r-1c or single family residence zone. There is a small piece of r-1b across the train tracks and is not really impacted by what we are going to be talking about here today. A recreational sales establishment is located across and you can see that with the aerial. With more extensive sales going on along the western portion of cane run road, you can see the fire stations while we have three properties right here that are zoned for single family residential, one is being utilized by our fire station number 8 and then the other two are vacant currently. You can also see this is our subject property we are talking about. They're connected in ways to this property at 1701 and 1719, 1719 is a small strip shop that has various different retail associated with it. 1701 is associated with the same business that is seeking to go along on to this piece of property. Here we have a look at the property itself. Towards the direction with I-57 and 64, back into downtown. You can see this is the strip shop right over here and where you see the blue former gas station awning, that is where the current vehicle sales are for 6k and under llc. They were rezoned in 1988. Conditional zoning restrictions were applied limiting the uses. The uses prohibited were advertisement signs, establishments for the display, sale, rental service and minor repair of farm equipment, all of things that we are talking about today. And then kennels, animal hospitals or clinics including offices of veterinarians. The conditions were determined to be appropriate due to the% close proximity of residential uses which include the single family homes in elk horn park neighborhood and the designation of north broadway as a major entrance or gateway into lexington. Use restrictions were included to ensure the development is an asset to image and visual qualitied of the property. This requested conditional zone restriction change is the second application seeking to allow for the sale, display and rental of vehicles at this location initial application was the result of a complaint submitted to the division of planning zon ing compliance section in March of 2018. The complaint expressed concerns about employee parking, customer parking and sornlg of inventory for the newly established sales establishment and raised questions about whether or not the overall use was compliant with the zoning restrictions in place for the subject property. During the course of the investigation it was confirmed the current conditional zoning restrictions prohibited a vehicle sales establishment from operating on the subject property. Applicant has applied for a zon ing compliance permit or a zc p for a vehicle sales business and was erroneously issued that permit on October 18, 2016. The permit was rescinded in March 30, 2018 at which time the property owner was advised that it could be submitted to as one possible avenue for coming into compliance following the issu ance of the zcp, a certificate of occupancy was not obtained prior to the opening of the business and permits were not obtained from the building of -- office of building inspection that would have been undertaken that year or so. If the buildin and/or the paving permit applications had been submitted and obtained prior to doing the work, there is a possibility that at that time the zoning restrictions would have been discovered by staff prior to the application altering the building and the vehicle use/storage area. Original only indication was withdrawn before the public hearing by the planning commission wi by the applicant before the planning commission. Since with the drawl of the original application the owner of the lot has been cited twice for violating the conditional zoning restrictions relating to auto sales on the property. The applicant opines that the proliferation of auto sales in the region has resulted in a major change in economic and physical nature of the subject property and within the area containing the subject property. Furthermore since the increase in sales of automobiles and recreational vehicles surround ing the subject property including the neighboring 1701 north broadway which was done by right, preservation of the basic character of the area was chang ed, altered significantly since that the time. Changes in the land use since that time and the conditional zoning restrictions sincey they were applied make the restrictions inappropriate for the subject property. Staff is in agreement with the applicant's position. Additionally in the period following the subdivision and zoning committees meeting applicant met with the staff to revise their development plan in order to address the concerns described within the original staff report and comments made in the meetings. The applicant has modify the plans and the visual impacts along the gateway into downtown lexington. Furthermore the connection between 1701 north broadway has been shown and areas of display and negotiate storage have been delineated with these mod ifications the applicant has addressed many of the concerns regarding the use of the subject property and impacts on the surrounding area. You might ask what has changed compared to the last application of 2018 and the application being submitted today. That primarily lies in article 6 -7 c 1a for the lfucg zoning ordinance. At the bottom of the paragraph in this section it states the burden shall be on the applicant to establish said findings by a clear preponderance of the evidence. In this case, the original application made by the applicant was not meeting that threshold to show the preponderance of the evidence of the significant change in the area or the subject property while the applicant has offered modifications to the development plan, it is important to solidify those changes but within the ordinance utilizing condition those include the bill billboards or advertisement signs and kennels, animal hospitals, those shall remain prohibited in additionally, adult arcades bookstores and establishments as well as out door recreational or amusement facilities shall be prohibited due to the close proximity. In an effort to reduce any impact of the proposed use on the neighborhood located at the rear of the property there shall be no outdoor speaker systems and all lighting on the subject property shall be no taller than 10 feet in height and shielded and directed downward. Furthermore to control the potential out overflow of inventory on the subject property and ensure adequate areas for safe circulation of vehicles and pedestrians between 1709 and 1701 north broadway, the inventory on the subject property shall be limited to 30 or less vehicles. The inventory shall be located in designated areas and shall not be located in any area designated for employee or customer parking. No inventory shall be located along the structure of 1719 north broadway and no inventory shall block or inhibit the customer park ago long the western edge of 1719 north broadway. Finally the designation of north broadway as a major entrance or gateway into lexington necessitates the buffering of the subject property. Along the frontage of north broadway there shall be a well as a four plank fence. The buffering requirements are included to ensure the development is an asset to the visual quality of the lexington community. The applicant has shown that there has been a major change of an economic and physical nature and on the subject property or within the area containing the subject property which has altered the basic character of the immediate area due to the proliferation and growth of auto motive and recreational sales in the area since the conditional restrictions were imposed in 1988. For these reasons and with the conditional zoning restriction, staff is recommend ago professional of this zone change this is also reliant on the applicant having their major development plans approved and certified which Miss Gault will talk about shortly. If you have any questions, I would be happy to answer them now. >> any questions for Mr. Berry specific to his presentation? Not at this time. Hold on. I have a feeling you will be com ing up. Just wait. Miss Gault. >> we should have revised conditions located on the blue sheet. This is major development plan 1938 elk horn park block 8. This is the revised development plan that they have submitted which we believe that has done some cleanup conditions. Some of the ones that were of some discussion was clarify the landscaping calculation statistics and showing all landscaping areas. They have added additional landscaping areas and labeled them -- whoops. They've added landscaping areas to show different sections for the development. This being the car lot and this being the strip center so this gives a break so that we know where the two properties are. 6k and under, the original one here is on the end. They have worked on the landscaping making sure they meet the minimum statistics. Additional conditional zoning restrictions we wanted to make sure they have them all listed and they have done that. Depict the parking shown on the previously development plan they've corrected that part for the adjacent property and it was like losing two spots so they've corrected that to make sure. Has to are some of the items and they've done corrections to. They still have a few cleanup conditions that need to be de noted we still need to, howard spoke about display areas for the parking. They have several spaces here but we also have questions as to these being here. Are they display or customer and we just want to make sure that they show the display area because on this lot here, we don't have any information as to where the employee parking is as opposed to the display parking. So we just want to clarify that. Denote this property is in the royal springs aquifer and talk ing about the conditional zoning, we have a condition on here that says discuss proposed land uses and label on plan. The whole idea was to have auto ales on -- auto sales on this property and thoughts not what they're showing they're showing a detail shop and not auto sales so we are questioning where the detail shop came and that's part of when you put labels on a plan what we would like to see on the property what is the uses are. With this, they've done a lot of cleanup. We believe that we can now recommend approval with a lot of the conditions clarified if you have any other questions? >> I think so. Yes ma'am. >> under number 9 denote the subject property is located in the royal springs aquifer. Have they met with the aquifer committee? At this time. Tom attends that meeting he said no. >> isn't that something they should do. >> prior to certification. Okay. Thank you. >> other questions? >> cereal cheryl, I have a couple and could I have asked hal as well but what we are talk ing about today is that center piece of property in red there. Okay. >> yes, sir, that was... The original zone change was for the center property and the strip center. Those were the two. This was supposed to be a car wash when it was rezoned. So those are the properties that we are not talking about the strip center as much as we are talking about the center lot along with the connection over here to 6k and under because they now have a connection going through between the two properties. >> let me ask you this. Even though we are talking about that center piece of property, the plan shows landscaping around the property. >> that was to depict the areas so it shows where the storage for the lots for the vehicles, to give a break, so that the circulation didn't people didn't come in and park there when they're going to auto sales, you know, it was just an autoed to kind of help clarify where the other shopping area was as opposed to the auto sales. >> I heard something as far as fencing hedge and so forth, is that on both pieces of property or just the one? >> part of this is that these two properties are working together and because of that, they're amending both of those properties. And they are showing a three foot hedge and they are showing the edging and the fencing going along the entirety of both of those properties. 1701 and 1709. One further question and we'll move on. Do we, you know, do we have any delineation, any separation between the subject property middle piece of property and the vip center? Is there any delineation in that >> that's why the landscaping is being proposed. But actually between the buildings. >> well, they have... This is an access easement that goes in here and so we have the employee parking for the auto sales and then extra parking located here to for the shopping area. So we have landscape that breaks this so that cars cannot drive from this access pointed on to this area for the auto sales either in the front or in the back because they have another landscape area here with the sidewalk areas delineated for employee and customer parking are right here and right here. As such in the conditional zon ing restrictions, it also says there shall be no parking of inventory other than in designated areas so the areas must remain for customers and employees. It cannot go into any overflow of negotiate or anything along those lines. Inventory will be restricted to these areas here not to exceed 30 vehicles and I also wanted to -- I jumped ahead of things. There is one letter of opposition and I would like to hand that out to you. >> sure. Thank you. Yes ma'am. Any other questions for Miss Gault? If not, we'll move on and ask for the applicant. As we proceed, no one has asked for any additional time so there is none granted and I hope you stick to your normal schedule being as brief as possible. >> absolutely. >> thank you, sir. >> I do have a presentation for you but I wanted to leave this up just for one more second to address the question that you just asked. Right now in this area, that's open. You can drive back and forth between the two places. That's one of the areas of concern raised by staff was the potential conflict between inventory and customers on the autosite opposed to the strip center. What has been proposed this is actually a solid landscape median right now it only goes to about there and we are proposing to extend it. Staff thought it was important to be more than a curb and do the landscaping because it has been open for a long time people are less pron prone to drive into a bush than jump a curb. If you enter here, you cannot get into the parking area. We've erected physical barriers at the ask of staff to eliminate those conflict problems so I think or I hope that's what you are getting at. That's what I understood your question to be. There are physical barriers erected. I'll retrain from introducing myself but will mention that matt carter with vision engineer ing is here with me as well as my client is here to answer any questions that you May have. I have prepared a brief present ation for you as you know only I can but there are a couple of key points I want to make. I'll try to keep it brief and I understand we May have opposition so I would be happy to try to address those concerns as well. As hal mentioned, this is a lot like a zone change but it's not a zone change. It does not fall under the comprehensive plan evaluation. It does not fall under place builder. It's a specific section in the zoning ordinance section 6-7c that talks about the findings that are required for this kind of request hal mentioned the request is to remove the conditional zoning restriction that prohibits auto sales. The requestings limited to I just want to make clear this isn't exact lay zone change. The finding that have you to make is up on the screen you can read it in insurance as well. Our contention is there has been a major physical and economic change in the area that makes the prohibition against auto sales not an appropriate condition anymore. This originally was rezoned on November 17, 1988. I actually did a quick google to see if there was anything historic that happened that day. There wasn't. It May have been the most important thing to happen on November 17, 1988. But it rezoned three parcels at that time from a single family residential category to b-3 with certain conditional zoning restrictions. And those were as hal red. The only thing we are not asking to remove the veterinarian or kennel requirement. We don't want to do mobile homes , travel trailers. We'll talk about travel trailers today. The only thinger with asking to do sale display and minor repair of automobiles. The findings that were made at the time to justify the conditional zoning restrictions were two and we are going to talk about both of them. That there was a close proximity to residential uses that was necessary to protect those residential uses and that north broadway was a gateway to our community and we needed to be concerned about the visual esthetics of that north broadway corridor so I think it's important to understand what it looked like in 1988 and actually as close as could I get was 1993 the oldest aerial overhead was 1993. Which is actually five years after the zone change but I think it gives you a fair representation of what the area would have looked like in 1988 and then we'll take time travel trip and see how this area has evolved in the 26 years that have transpired since then. This is what it looked like in 1993 I'm going to point out a couple of things I think are very importat in almost every other picture I'm going to show you, there are a lot of RVs in the area but they're not here in 1993. Neither had developed at that time. Also something I thought was interesting is this development had not actually been construct ed. It was five years post zone change but they hadn't done any construction on this development yet. There are house as long the area constructed that were not there in 1993. 10y we move forward in time '9, you can see they built the house s you can see the first arrivals of the RVs, still nothing on our lot or across from us here. Moving forward to 2002, huge rv s, starting to see it across the street, the development has now been constructed, neighborhood stays the same. 2010, you can see the area is quite proliferated with RVs city point. This right here is an auto sales dealership. This is now a liquor barn express that used to be, I can't remember what variety of liquor store it was before. But again neighborhood stays the same. Development constructed a whole lot of RVs. 2017 rv use has expanded to encompass the entire side of this street. Also have a significant population here my client start ed his operation 1701 and neighborhood remains. Stark contrast between 1993 and 2017. This is the most important piece of evidence will you consider today. Can you look at this picture and there picture and determine that there has not been a major change in the area. I would contend that you cannot. There is clear and convincing evidence there has been a major change in the area. Let's talk about those a little bit. Proliferation of the RVs and transition of my client's property, former gas station property to an auto sales use. 1701 was never restricked from auto sales uses so it was permit ted by right and that's where it started and I'm glad m r. Bailey provided you with that history because I know there has been acrimony and I'll address that in a little bit. It does merit saying in 2016 my client wasn't was told he could in fact operate a car dealership on the subject property. Invest significant money in having the property reabted to do that only to learn that he cannot. Since that time there have been a number of challenges. I think we have worked through all of them at this point and this is the final hurdle. if the conditional zoning restriction is overturned, then he can function and everyone can go ford. But the transition of the gas station is important and we'll circle back to that. Soo centric uses are dominant along the corridor even closer to 75 you see a lot of gas station interchange type business but as you get into town, car dealerships, repair, there is a repair on the opposite southerner single family has persisted. The neighborhood finished the development and has seen a mark ed increase in value that we'll discuss when we get to effects on the neighborhood I on the hottest day of the year took these photographs but I think it is important to see what is on the ground now when we talk about visual impacts to the corridor. These are all things permitted by right right now that people see when they drive into the area I would suggest the property frontage is not significantly going to contribute to the detriment to the view shed. Our agreement to the zoning restrictions professorred proffered by staff will serve as an enhancement in the form of the bush and fence that staff has requested and we've agreed to. When it comes to concerns about view shed, the first finding we need to address, there has been a major change. I don't think anyone can argue there has been a major change in the area limiting it is inappropriate because of the dlif raition elsewhere. The woo we think we have enhanc ed 9 view said so we think that clearly addresses the view shed. What is a little more difficult to understand is how you have or have not impaired a neighborhood impaired is not a term defined in the zoning snoorns so I'm going -- ordinance. Make worse, diminish, weaken, damage, I think when it comes to real estate, lessen property value is a clear evidence of impairment if property values had gone down, you could see evidence of impairment. But we have a very pertinent and A.M.Able case study to look at to show the effects of auto sales uses on this exact neighborhood and that is with regard to 1701, my client's original property. 1701 did not function as an auto dealership until 2014 so we can compare property values, sales, occupancy prior to 2014 and after 2014 and see, has an auto use detrimentally impacted the neighborhood 1701 serves as a good case study 1716 hawthorn is the property most directly impacted by the emergence of auto sales on 1701, sharing the longest property boundary along the rear line. Rated of inflation was 9.7%. The property value increased by 26.3%. Did anyone sell? Did the property value rise because of a sale? No. Property has been under consistent ownership since 1995. Okay. Maybe you picked because it proves your point and it was harmful to the other properties in the area. I can report to you that no houses on the even side of hawthorn lane has sold since 10- 21-11. Douching the emergence of this auto sales use, nobody elected to sell their property. Looked at the value of those properties, two on either side just to verify that I wasn't cherry picking data. 26.3% that this property would reflict the median value increase to increase more than that, two increased less than that. The average increase in property value from 2013 to 2019 was 33.3 %, which is pretty darned good and another clear indication of impairment if you started to see redevelopment in the area, people looking to get out, change of use, that things are no longer appropriate as single family residential. Have not seen any redevelopment in the area during the emergence but specifically the car use on 1701 so what can we conclude from all that? The operation from the auto centric uses generally and car sales use specifically did not impair value we have tried to work with staff to address things moving forward voluntarily offered zoning restrictions, voluntarily agreed to all of staff's proposed conditional zoning restrictions that they thought were necessary to adequately protect the neighborhood so staff would agree with our position that this condition is too onerous, it no longer is required to protect the neighborhood and could be achieved with less intense conditional zoning restrictions, a position that we whole heartedly agree with. Before I get into the summary I want to address one thing that% came up in the subcommittees and I'm sure you will autoy hear about it from on opponent ents there has been acrimony on this property previously. Hurt feelings and folks not get ago long. Speaking for my client and he is certainly welcome to address this with you directly, he would like to turn over a new leaf and get things going started better. The neighborhood, we sent letters to several adjacent property owners. They refused to meet with us. Informed you in zoning committee that they would not be meeting with us. I don't know how we address concerns when they're not presented to us. Bull I think what is evidence of that is staff brought to us several issues that think necessity thought needed to be addressed. Matt carter and I met with members of staff and went through those line by line. My client agreed to every single one and did not push back on any single one. But let's not get distracted from what the real findings are here this is a question about whether restricted auto sales on 170 remains appropriate. I would suggest to you that in the 31 years that have passed. It has become abundantly clear that that restriction is no longer appropriate for this site this area is proliferated with autocentric uses, RVs are everywhere. The car sales with the enhanced landscaping would not serve as a detriment to the visual integrity of the corridor. Secondly we've shown you empirical evidence about the impact of auto sales on property values there haven't been any. There has been a positive correlation. I'm not saying the property has increased in value because of the car sales but I'm saying they didn't decrease in value because of the car sales. And due to the changes not fore seen, nobody saw the proliferation of RVs which the conditions were I am imposed. That condition is no longer appropriate. I told you before but I'll tell you again. Ths is the most important piece of evidence that you see today because this shows the major change in the area that has occurred in 31 years. So it's deeply gratifying to me that we were able to work proactively with staff and get a recommendation of approval. We ask that you honor their recommendation and approve these changes. >> any questions for Mr. Wahlburn at this time? What is loued there as far as your applicant's business right now? >> any b-3 use other than the ones specifically prohibited. >> what is he do is there right now. >> he has offices in that building right now. Is she allowed to have inventory >> no. >> I see 12 cars with for sale signs. He wants to turn over a in you leaf but it looks like he is still operating is there anyone higher who wishes to speak in favor of this request? Yes, sir. >> I'm representing the property , just to answer a question, I don't really have anything to add, we have been working with jim marks from the one who has been, you know, working with us as far as the parking and everything goes, they did cite us twice and after the second citation we made it very clear to him what we were doing and we have an understanding with jim about the few cars that are on the property. He knows they are there. He has not cited us. We are in agreement that we are going through the process and he has decided it was okay to leave a few cars on the property. That's the reason the cars are there. We are not going against anybody downtown or against the city. Jim marks knows about the cars. Forgot his name but the gentleman right there was also in the meetings and believes that we were in agreement with the cars. We are not going against anybody 's issues to have the cars there. >> thank you for the explanation anybody else in favor? If not, we'll go to the opposition. Please be mindful of time. We do not get paid by the hour here. We do want to hear from everyone so Mr. Murphy, you can go first. >> Mr. Chairman, I'm dick murphy and I'm representing peter sun and susan lu who are the owners of the shopping center right next door at 1719 north broadway. Mr. Liu is in the audience with me today and I know there are a number of other people opposing. I do not represent the other opponents. There are a number of people from elk horn park subdivision. If I could, could I have the people who are opposing it stand up at this time, Mr. Chairman chazz is handing out my exhibits I do have some pictures for the screen as well. I do want to emphasize though as was brought out by the Chairman 's question a minute ago , this property has been operating for sale of vehicles for the last two years without permit. Without approval, illegally and they still, this morning, have inventory on the lot for sale. They are asking you for approval of what they have been doing for the last two years is what this amounts to. We are concerned, as I said I represent the property to the immediate north because we share , this was developed as one unit 30 years ago with the car walsh shown on this picture this is what the car wash looked like on 1709 north broadway and we share a common entrance and common area between the propert ies and we are sort of en dwayned forever, whether we want to or not. The same restrictions were imposed on Mr. Sun's property 30 years ago as are on this because of the shared access and the fact that they operate as a unit I guess I could say well, if the restrictions being taken off 1709 it should be taken off 1719 as well but that's not what we are here to do today. In 1988 the planning commission imposed a conditional zoning restriction. It was done by a common develop er back then and it's on both properties. After that time the property was subdivided so the northern part that my client owns was sold to one person, the southern part to another person and functioned well as long that has was operated under the conditional zoning restrictions which are applied these are two small lots this is not a typical new car sales lot even like the ones across the street which are much , much larger because they need uses. This next picture shows the cars on the property, this was 6:00 last night. You can see the tags on the cars they have the for sale sign, the price and availability of the property right through there. Same inventory that were there last night. North broadway is up here I can't seem to advance it to the next one but this is the common area between the two. You can see this car without tires. On page 1 of my handout, I tell you what is in the neighborhood shopping center. Owed wards -- edwards dry cleaner s, employment agency. Also they have a jackson hewitt tax service, cell phone store, beauty salon and barber shop. This is a true neighborhood shopping center. It functions a little different because the neighbors behind us cannot walk to this because there is a big gulley with a storm water area behind the property. When they come to this property they have to drive. They have to drive here and that's why one reason parking is so important at this center. 10 apartments would complain because they didn't have parking space for the people coming here especially the lunch hour, it is very crowded. We depend mon neighborhood input and this is a neighborhood shopping center. When this was originally filed a year ago there have been acrimonious events between the business owners on this property and the business owner at 1709 wanted to give you some of the current history of the property as well, if you would. Plane crash enterprises bought the property you are looking at today, 1709 back three years ago in August of 2016. And as Mr. Wahlburn mentioned, they did get a zoning compliance permit. Put that compliance permit was revoked after they did further investigation of that. But even if they had relied upon that, they shouldn't have spent any money based upon the zoning compliance permit. You know why? Because they had to get three other permits they didn't get before they did work on this property. number one they had to get a grading permit to do the additional paving which they did without a permit. They didn't get that permit. If they had, it would have been checked into about the zoning issue. Number two they were on to get a building permit. They didn't get one. Number 3, before they could occupy it, they had to get a certificate of occupancy, again that's why you get a certificate of occupancy so they can verify zoning. They did not get that. So there were three ij stance -- instances that they should have gotten and did not. And they sold cars on the property even knowing the restriction was on the property. So this party does not come into compliance, it does not come in sass an innocent party. As you all probably know I represent Mr. And Mrs. Foy when they owned it. They're on the front row in case you have any question about the history and they May want to discuss with you a little bit. After the application was withdrawn last year, there was an application to do exactly the same thing, remove the restriction. It was withdrawn in July of 2018 after the staff recommended dis approval after that happened, they thought the situation was stabilized, Mr. Sun and his wife purchased the property. But Mr. Sun did his home work bch he purchased the property. He went to the staff and said are they allowed to sell cars on the property next door? he was told no. Based upon that, he went and spent his money and purchased this shopping center with the seven neighborhood uses on it. His tenants are very concerned about the situation here not only for parking but for our customer parking and using up their parking spaces but for the disabled cars for the blockin much that access way into the dumpsters and all that sort of thing which has been historical ly the problem over the last couple of years. Not just the parking in the park ing lot here as I said, this is important because this is on one development development plan we have one access point which we share this one with these properties and we, whether we want to or not, we have to live together with the property next door to us. We cannot work with this if one side of the area has different restrictions than the other side of this area and as I said, there have been some difficult perform encounters on the property between the owners. I need to talk to you about the legal standard for granting this change. If you go to page 2 of my hand out, and if you've got it, you can put it up on the board. I have the legal standards for granting a change in conditional zoning restriction.% that comes out of section 67c-1a you can do it only if you find there has been a major change of an economic physical or social nature on the subject property or within the area which was not anticipated at the time the binding restriction or condition was imposed, not anticipated in which has substantially altered the basic character of this area making the restriction or condition inappropriate or im proper. The burden shall be on the applicant to establish said finding by a clear preponderance of the evidence. What were those findings back in 1988? If you can go to page 3 and 4, especially page 4, the key to this is there. Why the conditions were imposed. You can see they listed the reasons back in 1988, two reasons. The close proximity of residential uses single family homes ajoin this property along the northern boundary makes the use restriction necessary to ensure the residential area is not impaired. Has that changed? No. There has been absolutely though change if any there is more houses next to this as Mr. Wahlburn pointed out have been added through the years. Elkhorn park has not moved away. It's still there there is no change in the reason number one for granting these restrictive conditions. Number two, was north broadway is a major entrance into the community use restrictions is proposed will especially sure the development is an asset to the image and visual quality of the community. Has that changed? I don't think it has. North broadway is still a major entrance to the community. That hasn't changed. use restrictions will ensure that the development as an asset to the image quality for her. That's why the restriction was placed on and they have been violating for the last two years I want to point out another thing on that and that is the rv sales Mr. Wahlburn pointed out are in the imee zone. Has the zoning changed? If you go to page 5, if you go to page 5, we see that the use as round our property were zoned b-3 back in 1973. We are a little off of this but if you could go down further. These four lots which are indicated as r-1c in 173 are ones that got zoned to b-3 in 1988. Now all around us you can see the rv park, rv sales zoned b-3, that's b-3 back 47 years ago, 46 yearsing what this map was done. The property on the corner was b-3. This property down here is b-3. This over here is b-3. So the zoning pattern has not changed. In the last 47 years let alone 31 years since the restrictions were added to the property. The only thing that has changed is that you all probably remember the congress inn was over here. That's, I remember that because they had the big sign with the capitol dome on it that said this is the congress inn. That's been torn down and used for another permitted use in the b-3. It's always been a permitted use in b-3 and auto sales have always been allowed on all this unrestricted b-3 property around it: they're making use of that now brut it hasn't been because of any change in zoning. The zoning pattern is exactly the same as it has been since 1988 or from this map, which is 1973. The other car sales down here are much bigger lots and that's because it's much better to sell cars on a larger lot because you have room for showing your inventory, a lot of parked cars which are your inventory and a bunch of parked cars which are waiting for service and your service bays then you have park ed cars which are your customers. Then you have parked cars of your employees. So it takes a lot of space, a lot of paving and a lot of park ing to run a car lot. This property at 1709 is just too small at.84 acres to run a as a car lot. I want to point out the staff report from last year, a year ago in June when this was came up and delayed, pages 6-9 as the staff report from last year. At the bottom of page 8, there you can see I have marked the conclusion of the staff that even though numerous other parcels in the area contain vehicle sales establishments not in existence at the time of the subject property rezoning, the applicant has not justified the request to remove the conditional zoning restriction as allowed on unrestricted sites the reasons the restrictions were put in place were to protect the residential area if the residence residential properties were rezoned then the applicant would have a clear reponderance of the evidence supporting the removal of the zoning restriction these -- that has not happened in this case. Because the adjacent elk horn park neighborhood remains residential there is no evidence to support the removal of the conditional zoning restriction they recommended disapproval at that time. Now the difference is the applicant is proposing some additional buffer ago long north broadway in a separation some additional landscaping, smatd separating our property from the other. I want to point out the parking space on the side of Mr. Sun's building really should be used for him not for the other use but the only change is that buffering. I my question was, well, what happens if that isn't built? Well, they won't get a certificate of occupancy. I don't think that's a deterrent in this case because they have been operating for two years without a certificate of occupancy. That's why we find it hard to believe that all this work will be done and hard to rely upon what is shown. I know the applicants will say well, we sure will now in the future. But I think the actions speak louder than words. On this one. I'm going to sum up. I know a lot of the neighbors want to speak as well but I want to sum up by saying that I think it's important what kind of a message you all send on this property. We are here because a property has been out of compliance for two years. I would have thought that during the they would havic 25 enthe% cars off the lot and at least not been selling cars while this is pending before you but they chose not to do that because people have said they're on the lot today for sale and I don't think the approach is right that we bring in somebody into compliance by conceding to what they have been doing improperly over the last two years. As I said, the teeth in this in requiring these twob done are to deny a certificate of occupancy but I think that is proven in this case to not work. Stow I don't feel like this plan ning commission ought to be rewarding what has been going on in this property for the last couple of years I have other information in there. I have letters from Mr. Sun and others and from the owner manager at penn station. I think they're all here and can speak for themselves. The last thing I have, I have some proposed findings dis approving this and I just meant those to start as a beginning for you all. We hope you will autoy vote against this and feel free to modify the findings any way you feel fit on this. As I said, my clients feel strongly about this. We thank you for your attention to this and I'll sit down so those others can speak to you about this. >> thank you, Mr. Murphy, we'll reserve any questions for later. At this time I think we May take a five minute recess. We'll be back briefly. We'll continue with public comments. I appreciate Mr. Murphy and m r. Wahlburn being as brief as they could be. We'll restrict comments to three minutes from here on. Anyone who would like to speak, eak,eak, come forward and let's get start ed. Whoever else wants to speak, you are welcome to be in line behind her. Yes ma'am. >> can you hear me? The first thing I'm going to show you are pictures I took right there that was, let me see , a week and a half ago and this is in 1701. And the second picture will show what you really is there and that's a car parked on the grass it was illegal and should not have been parked there next pictures I'm going to show you are what... Those are not very good. This is cars that are parked on the green spot that does not belong to them. It belongs to the state many different cars that have been there all through this. They put them book on the weekends. Also I would like to know that that that that that that that that that that that that that that doing, like that, when they had a $3,000 fine, they only had to pay $500. I never did quite understand that one. The next thing I'm going to show you is on 6 and under and this is all together on how they operate. How they squeeze as many cars as they can. It's all the time that they are so forward in thinking that they are above the law farce doing this all the neighbors, all the neighbors complain. What are you going to do about that? What's going to happen. They're parked in the road. They're all of these things. Right here on cane run road there are cars so close together on the grass, this is very common, very common. The cars are spark parked so close there and they're backed up that you can't get a car door open to get in and I really, my neighbors have said what about fire? What if there is a fire there? I did inquire, the thanks have been removed that were at 6 and under that was... >> Miss Rogers, if you could please wrap up. We are on a time limit here. >> I know that and I thank you all for your time. Next. Others please come forward 525 dover road, david danfords. They were showing something like parking spots for about 30 cars. That looks like it was only concerning the center lot. they're supposed to restrict some of their parking, they're showing a little pictures of hedges and stuff like that on whether it's a right of way or on the property, I'm not sure from the drawings but I'm not sure how they can move what vehicles they have now to put the hedges in where they're shown. There is no other room to move them on that lot it's so crowded and if you approve this plan or zone change now, what is to make them do those things because they have to sell half their negotiate just -- inventory just to have room to do those improvements. Now if they sell half their inventory, which they say they have sold in six months, how long do they have before they're in violation? >> brebda cochran from elkhorn park. The area they are using for the car lot is just too small for what they were doing. I was at the stop sign, a car was beside me. She cannot see how to get out on to north broadway. There was a truck parked going into their lot. The guy got out, went into their lot. He was parked in a turn lane. She could not see. She actually pulled out in front of a semi, it almost caused an accident right there and I wosk part of that. This is kind of a common occurrence that happens all the time. Go ahead on the next slide and that's what happens. And that's what I'm afraid of. and that was taken friday. I think that's one of the cars off their lot. I see this a lot. They park on north broadway, the turn lane, they park on cane run and where you are coming up on the stop sign where you can't get out and this is my fear that people are getting hurt and getting killed there. I don't know. I don't follow the police reports. They have big car haulers that park in the middle of north broadway and unload the cars that they're bringing in on the lot. I would think that would be illegal. But anyway that's it. We are not doing this. Thank you. >> others? >> I'm here representing my managing owner, general manager of the penn station location at 1719 north broadway. >> name, sir. >> vincent. >> thank you, sir. Thank you for having me today by the way. I'm here requesting that you guy s do not allow approval of this today. We continue to have issues with cars that are not able to be used. You can see that picture that we had earlier with the suv with the wheels off. Cars are being dropped off there throughout the day sometimes the tow trucks that come and drop them off block the entrance way to my location forcing it to be a one lane entrance and exit way which makes it very dangerous for my customers that come in and out. I have seen a decrease in business since they've opened up as well and an influx of their customers parking in our parking lot. On instances I have addressed it at one time I had an owner or somebody who was in the manage ment team there come and ed it with the employee that he could not park there, I am not a man who is for, you know, disgruntlements or dis agreements like that. So I walked away and that's what would I do and ask anybody to do but can I tell you that nothing has changed. There has been advancements on the beautification of the property. They have been told they cannot sell cars on the property. They go a couple of months, they wait until the weekend and put cars back out for sale. We just changed signage at my restaurant we go through the proper permits with that. I don't see why anybody else who is running a business is allowed do that without being, you know, shut down, fined properly and not having restrictions on that. That car crash picture that she actually showed was one of my employees who was on her way home traveling in the left lane going down south on broadway when one of their employees in a car that was on their lot hit her rear end making an illegal left turn which she was cited for. I just don't think we should approve this today and I hope you guys disapprove of any changes or modifications in the zoning. Thank you. >> I'm dawn and I was here last year on the same exact subject. I was the previous owner of the strip center next door. And no matter what these people say, they have promised me a lot of things throughout my relationship with them their actions speak louder than words. They do not do what they say they're going to do. When you call the city, the city comes out, they comply for a day , then they're back at it again. You know we were talked to about , you know, the housing properties aren't going down and this, that and the other thing but the businesses next door to this person suffer. They stop our clientele from going in and out of the business es. They impose on the businesses. They threaten people and we just can't have this kind of behavior and when we told the property we were assured by the city that it was going to fall into compliance. And I keep my word when I do something. I promised the people, Mr. Peterson that this was re solved and was going to be taken care of and I talked with Mr. Duncan and I was assured that this was going to be re solved and taken care of and so I thought I had sold this property in good conscience and I was relying on you, the people in the city to follow through for me. And right now I'm really worried that the property is going to be impacted negatively and that is not what should have happened to 9 buyer of this property. Now he had done his due diligence, these people are crying and wining because they say they put so much money into this property. But the problem is they did not do their due diligence and they did not get any permits and they're still not permitted to this day and they're operating to this day. So what message are we sending? People that comply with the law, law abiding citizens, they're going to get reprimanded or their rights taken away because you are going to allow somebody who has been breaking the law to continue? Is this the message that we want to send? I don't think so. Please respect Mr. Sun who is trying to operate this business to the best of his ability. It's being negatively impacted and the neighbors behind are being negatively impacted. So please don't approve this man thank you. My name is carter and I live in elk elkhorn park. I don't think you can change the spots on a leopard. They would, when they got this second lot, they finally got the car wash, started moving cars in there. They didn't have any access between the lots sometimes they still don't. They will drive out of cane run road, drive up broadway the wrong direction or in the turn lane and then turn back in. It's a safety hazard. The delivery vehicles, snap on, maco-tools, whatever the parts trucks that come in, they park on cane run road. Sometimes they park further back , sometimes there are two of them. You can't see to turn out. Oon even if you are trying to make a right on to, you know, broadway. It's really, really gotten out of hand. And I can just only imagine, although I've seen it several times. I like the french fries at penn station but a lot of times I'll drive right bay it and go somewhere else because I can't get in the parking lot. There is just no way and it's not because their parking lot is full. The access to it is blocked and you just don't have any clue what is going on half the time around this thing. Every time -- I have rarely ever I usually go out dover road, which has almost a blind curve that you turn out on and it's a lot better there than it is on cane run where you can see both ways. You might be able to but once they plant the bushes, put up the fence, it's going to be blocked even more they have to push that out as far as they can they're not going to maintain it for now it looks beautiful but we left here last year, we thought it was over and done with that they had given up, that they were going to's doing business there no. They never ever moved any of the cars out though have kept it as a car lot like you guys don't exist. That you make sure they cease a desist doing business as a car lot on that property. >> thank you, sir. >> my dan, former owner of the strip center at 1719 north blod way. Mief mief broadway. I -- former owner of the north broadway. They come up with a plan that maybe will work, maybe it's a good plan but the problem is this isn't coming down to what kind of plan they offer. It's about who is offering the plan and how they operate. I don't care what plan they offer and what they say they will do, we know that there is going to be problems with that I know it's not your place to opine on how people behave I think every one of you know that's what it is about. It's not a plan but what people say they will do and whether they will do it or not. Think about it. >> anyone else? >> good afternoon commissioners. Peter sun, new owner of 17119 north broadway. Now thank you for this opportunity to let me speak up and thank you for last year's denial. Your denial protected us and the neighborhood for one year peace and tranquility until today. As a new owner, when we purchas ed the property 1719, we were assured by seller and the city planning zoning commission because we talked to them, it was already resolved and also the law will be implemented strictly. And they're going to cite the owner 1709 if it continues to sell car. but until now this morning, the car is still on the lot and right now we receive constant inquiry from current renters, business owners, some of them are going to renew the lease and they're not intended to do so because they found that the car lot is still in operation. They question me whether the car lot will still be in business. I said it should not be because according to the ordinance in the last year, implementation of the law, they should be shutting down but until this moment, they're still in operation and in business. In terms of the car porking lots along my property 1719 on the left, it is on my property but it was exclusively to be used by the car lot because there is a mutual agreement between the previous owners at that time there is only one owner, one only the car wash needs a full parking lot from my property so they allocated the parking lot no expense to them to the car wash to use now the property ownerred by mash. And after that, the parking lot on my property was exclusively used by them and when the jackson hewitt employee was park% ing there, they right now they intention eel put three cars there day and night never moved. You can go there tonight. You will see the three cars still there. So those four parking lots are really crucial, the reasons because I do not should improve that parking lot or not because I'm planning to repave the whole parking lot of 171 but that section belongs to me but have i no access to it. I do not know what I can do for it even though I have the plan to improve the property last year it was denied their petition was denied because the ordinance restriction was in place to protect the residential area. It was clearly says if the residential area is not rezoned to non-residential this petition should not be coming up again and it is time again and again taking everybody's time to come over here to testify for this and again, I appreciate your support and protection thank you >> thank you, Mr. Sun. Anyone else? >> hello ladies and gentlemen, my name is charles hut. I live on aurora avenue. I'm coming to appeal for good planning practice and good common sense. I know the latter sometimes doesn't have much place in governmental or pseudo governmental activity but let's go for it. I'm also here supporting my friend missy rogers who is a neighbor to this property and she and I have known each other longer than either of us would care to admit but that's beside the point. Good planning practice and common sense would say that you should turn down this appeal today. We have had three years of bad behavior three years of illegal behavior, three years of behavior in violation of good planning practice and good common sense. You've already seen a picture of that car that has been up on blocks. Iter has been there over three weeks, maybe longer but I know for three weeks for sure. That is certainly not a thing of beauty that we want as people come in on north broadway looking at the jewel of the bluegrass lexington, kentucky. Their contention that the changes have been unanticipated along north broadway is ridiculous. We have had five comprehensive plan reviews since this all started in 1988. I know our planning staff very well, good friends with a lot of them, I know they would not commit planning malpractice and not anticipate the changes that have happened on north broadway. Please do not let this planning commission be known as someone that rewards batted behavior -- bad behavior and flies in the face of common sense. Thank you all. >> thank you. Anyone else? If not, I'm going to move to rebuttal phase and here's how the rest of this will take place we'll go through rebuttal to give Mr. Wahlburn, Mr. Murphy and the staff a chance to rebutt anything that has been said and that pointed we'll go to questions from the commission for anyone who has a question and I'll close the hearing at that point, open it up for any comments and then a motion. So Mr. Wahlburn. >> I will attempt to be very brief, Mr. Chairman. I appreciate your time. We can devolve into a lot of accusations and throw them back and forth. I don't think that serves any purpose. I don't think the planning commission should reward bad behavior nor do I think it should punish bad behavior. That's not your charge. Your charge is to evaluate whether the findings necessary under section 6-7c of the zoning ordinance have been met or not. I contend that they have and have presented evidence that they have. Staff concur with the evidence that I have provided meets that showing. I understand that Mr. Murphy does not. Unfortunately I think a number of the things that Mr. Murphy raised in his presentation are simply not germane to your consideration. There are two sides to ther to. I can bring my client up to talk about the other side. That doesn't contribute to the dialogue. I want to bring back up the plan to address specific comments that were raised. These spaces right here are the ones that Mr. Sun was just discussing right along his buildings. Those spaces are not his spaces. Those spaces belong under easement to my client. They belonged to the car wash before that. We met with Mr. Sun and offer ed to give him these spaces if we could wait to have the transaction until this was over because we could not give them to him immediately he decided to come and oppose today we had a deal but it wasn't fast enough for him so my advice to him would be I probably would not pave there because those spaces do not belong to you. Notwithstanding we are still willing to have that discussion. If you are concerned about access between these two properties, this plan resolves that. If you deny the change today, this landscape buffer does not have to go in this section does not have to be closed off. The circulation between the properties will continue. If my client goes away and a new owner goes there because of the way the properties are structur ed right now they don't have to separate that access. Approving this plan improves the existing situation on the ground now, can go into any number of things, the permit history, powers of enforcement of the government fact of the matter is was some work completed without permits? Yes. To date have every one of those permits been obtained? Yes. Planning staff can speak to their own enforcement powers my suggestion to you is that you are not a body that's tasked with enforcement. The planning commission doesn't mete out fines. It doesn't ajudge people guilty or not guilty. The times that my clients have been cited he successfully appealed those citations when he took them before the appropriate bodies. That's how fines get reduced or eliminated because he was not guilt guilty of the conduct of which we had been accused. We can have that discussion back and forth forever and ever again it doesn't change the fact was there a major change in the area yes. Has the neighborhood been impair ed? No. Has the view shed been preserved is this going to contribute negatively to the view shed? No. Those are the things that you are to consider. This other stuff, while certainly I don't mean to diminish the passion that they feel for this, it simply is not germane to your consideration here today. It's not a finding that these people have always behaved is not a finding required under section 6-cc. My client wants to address a couple of things said directly contrary to what he said and I'm going to give him that opportunity but my request is simply this: count on your professional staff to figure out how to enforce hypothesized future violations of a development plan. Let them use their enforcement capability. They have that. Focus your attention on the issues that are actually germane in front of you today. This lengthy history has nothing to do with the appropriateness of these conditions there is ample evidence in the record that these conditions are no longer appropriate. Staff has evaluated that evidence and agreed with our position we ask to you do the same and I want to let my client address you very briefly. >> he has one minute left on your rebuttal. >> I just want to clear up a few things. They kept mentioning that we were operating illegally and had the cars parked there and avoided the law and done all this stuff against the law. To clear things up, whenever we actually took over the property and did not know about the zon ing restrictions we had 48 vehicles on the property. So to say that we are still operating like they that is not accurate. The first time we did not get denied. We pulled it back from council or from the vote here because we saw so many issues going on with our position so we pulled back and it's true that we don't do everything correctly. We went back and redid our electrical work, got the permits and planning permits and got the permits for the concrete between the two buildings after the fact permit. We met with city engineers with everyone here secured all the permits. And then we felt that we were in a better position to come back after we cleared it up and made changes to landscaping, added islands met with staff regularly with Mr. Duncan with Mr. Jim marks. >> 30 seconds. >> we were cited twice and both times like he mentioned I did appeal them and win that appeal because all the vehicles that the woo were cited for actually came from the shopping center. there no, sir blockage in between the buildings so would you have people pull in with a boat park on my property, go over to the penn station or to the shopping center. So that has been the problem with parking. And then the last time I met with jim marks I advised him we were coming back at this and I did not want to be cited for vehicles on the property. He said as long as things go in order and you come back at this we will not cite. That's why there have been six vehicle bz on the property. Six and we had 48 at the time of operation. >> thank you for your comment, sir. Mr. Murphy. >> just have a couple of things in rebuttal. If we could go back to the -- my pictures on the flash drive, the first one, I just want to give you an example what we are or dealing with here. As far as I want you to look at the hedge here. This was eferl years ago speaking of landscaping. Look at the hedge that is along the property maybe five years ago if you could go up to the next picture or can I flash it. Excuse me. I have this sitting right here look at the edge hedge right now the hedge has disappeared. There is a little bit of a hedge right there but apparently it was removed and put in and that's was we are concerned about talking about landscaping there is less landscaping there today than there was five years ago on this property. Mr. Sun asked me to point out that and this was six clocks last night. I didn't get all the cars in the picture. There are seven in that picture there. There are seven cars on there right now. Just along the front, not counting the sides or all that sort of thing. Mr. Sun wanted me to mention on the four parking spaces on the side of his building. They're on his property. There is that easement. It would make the system work better if me had those parking spaces. We know that's a private matter between us and the neighbor but the reason we are objecting to that is we thought that the addition of the barrier was not worth the impairment that this use is going to make on 1719 north broadway. You heard the discussion of Mr. And Mrs. Fore, the previous owners, the manager of the penn station subs about the negative impact that the sale of cars has on that property I'm asking you to go back to 1988, this was rezoned to be a center restricted down to not have the sale of cars because it didn't work on the two properties before there what has happened in the last two years legal or illegal, shows the impairment it has on the property next door from the people who are most impacted, they have told you what the impairment is on the property. You have to make findings about impairing the nature of the area the impairment is this use itself. Nothing else has changed since 1988. This is still amajor great way to lexington. And they still need the protections for elk horn park. I'm here representing the neighborhood. You've heard what they had to say. All we are asking you to do today is to not allow this use which would be an impairment and to continued to protect the neighbors at elk horn park. >> thank you, sir. Mr. Martin. >> are you all sharing your time very quickly. There is something I want to make absolutely clear to the planning commission if I can get back to the development plan. As you all know these plans are conditionally approval. After you approve the plan during the sign-off process, issues May arise on the exact scope of the sign-off, approval and approval by this body. Something caught staff's attention on this plan. Access right there. We want to add a condition so that it's unequivocally understood and there is no dis agreement during the sign-off process. Staff is recommending that that access point be removed. That is the access point on cane run road closest to north broadway. That discussion actually goes back to last year and was a concern and frankly just missed it on this exhibit but the landscaping discussion caught our attention and we discussed it with traffic engineering and they agreed that is a poor access location and it needs to be removed should this plan be approved and this zone change be approved. Staff would like to address two other comments made previously. First in response to the statement that staff or Mr. Marks states that it was permittable to continue a prohibited use, this is not contribute staff informed the user that no fines would be levied or citations levied during the zone change process but they should operate under the approved current certificate of occupancy which is for an office use not car sales. Additionally, in response to m r. Murphy's statement that should the zone change occur that the only recourse will be withholding the certificate of occupancy. That would be the case for the development plan and the aspects on the development plan. Conditional zoning restrictions suggested or recommended by staff, if they were to be approved would go into effect immediately. Should the applicant not abide by those restrictions, they would be fined and cited. These specifically are in reference to the number of vehicles that would be allowed on the lot and location of those vehicles. So there are, there is a re course against the applicant violating the qnl zoning restrictions that are being recommended at this time. If you have any other questions, staff is willing to answer them now. >> thank you. >> yes, sir. >> I only wanted to make clear that with respect to the issue that Mr. Martin raised, we have no objection to that condition. >> thank you, sir. >> so at this point, public comments done unless there are questions from the commission to someone I'll open it up for any any any any any any any any any any any any any members for staff or anyone that you've heard from today. >> I've got a ton of questions. But I'm going to try to make it simple. I need to be simple. We've heard an attorney indicate this is not a zone change issue from the legal. Is it a zone change issue? Yes and no. It's not a zone change in the normal course of what you would hear when are you are changing the zone on a piece of property from say, you know, an ar zone to a b-1 zone. But it is handled through the same type prove seas because the conditional zoning restrictions were put on as part of the onch zone change by the urban county council when they enacted that ordinance for that zone change. So in order for those to be removed, the same process has to happen. So while you are not looking at actually changing the zone in this action, you are looking at wheter or not to remove these conditional zoning restrictions in that zoning ordinance and that will go back to the urban county council for their vote as well and that is governed as it has been told to you and I think it's been given to you on paper as well in article 67c 1a that talks about what you have to find in order to remove those conditional zoning restrictions which specifically says that you have to find there has been a major change of economic physical or social nature on the property or within an area where the subject property is located, which was not anticipated at the time binding restriction or condition was imposed. And it has substantialally altered the basic character of the area making it inappropriate or improper. So that's what you are looking at in order to talks awe vote on whether or not you want to re just remove the conditional zoning restriction that says there are not going to be any car lots on this piece of property when it was rezoned in 1988. >> for clarification sake let me go back to the original question . It has been stated here that the commission, at least by the attorney, one of the attorneys said that we cannot necessarily consider "cliens with certain law. What I'm seeing factually is that there were compliance issues not followed. The second factual issue seems to suggest that they continue to operate even though those compliance issues have not been indicated. Is that within the purview of this commission to consider those as facts for either approving or disapproving? >> you are not considering today the compliance in terms of the zoning compliance process through the division of planning hat thab handled -- that has been handled on occasion and still handled with notices of violations. I don't think there are any active at this point because of the zone change filing but those have been handled separately; however, to the degree that those relate in any way and this is a factual question for you all to whether or not the conditions have changed or whether or not there has been a major change to the property, to the degree those weigh into that and your decision, you obviously are going to consider those. But you are not going to make a ruling on compliance or non- compliance as part of your decision today this is where I'm confused because there has been evidence presented that on a couple of occasions they indicated that nothing changed in terms of the economics in the area. Now all of a sudden it seems as though the planning commission staff is saying things have changed and yet the only thing I've observed are some hedges you have indicated it has not change and now I'm going to let either tracey wade or hal answer that one. >> so Mr. Wilson, this is bas ed off of the ordinance stating that the preponderance of the evidence must be provided by the applicant. During the previous zone -- conditional zoning restrictions, the applicant did not provide that evidence to persuade staff or in this case to prove to staff that there has been a significant change in the physical, social or economic of the of the area. >> can I assume that if they had done that the first time, you probably would have reacted the same way you've done today? >> yes, sir. >> okay. >> other questions? Mr. Nichol. >> I've got a follow-up question for staff in your indication of approval, you would have to find a major change, have all three have been met or just one of the three or what convinced you all that the removal of the restriction is appropriate? Was it economic, physical or social nature of the subject property? Within the staff report we note an economic and physical change in the area that is under the findings. Number 1 applicant has shown that there has been a major change of an economic and physical nature on the subject property or within the area containing the subject property which has altered the basic character of the immediate area due to the proliferation and growth of automotive and recreational vehicle sales in the area since the conditional zoning restrictions were imposed in 1988. The b-3 uses without the conditional allows for highway uses such as auto dealerships and general office and retail. >> yes, none of the other lots surrounding this were seeking a zone change in that time period. The conditional zoning restrictions were added in the late 80s. This was one of the earlier properties that had those restrictions added on to them. No other area has had any zone change and thus there has been a by right development in the area which has changed the area. >> what is the most appropriate zone for a car dealership? >> car dealerships are allowed in b-3,b-4, I-1 and I-2. I think they're most common in a b-3 zone. In lexington. >> other questions? A couple of questions as far as the staff, tracey jones, this isn't an actual zone change but kind of acting like that would this go to the council for approval as a real map amendment would be? >> yes, it's going to go to the council. >> and I would add in this case, the ordinance that was adopted in 1988 specifically said if the conditions were to be requested for amendment, it would have to be acted on by the council. >> I knew I read that somewhere. Your thoughts as far as the allowable parking spaces. You are saying an inventory which they've agreed to of 30 or less they've got 30 on the plan. Where would employee be park? >> with many parking lots or inventory lots associated with th parking of vehicles for sale , they're able to double up in certain areas. They're actually thoughing a total of 25 delineated spots on their plan for their tonight and the additional spots that are located in the front of the building and along the side of the building are delineated for customer and employee parking. >> if that's the case, why wouldn't you allow for 25 or less. >> that's primarily because in parking lots associated with car sales, they double up in some areas. They don't need to maneuver in and out at a regular pace we would see elsewhere so if you look at any other lot selling vehicles in the area, they're doubling up in a lot of spots, we allow this so they can increase their inventory on a lot and they can still have the circulation that they need as tight as this space is, it seems kind of problematic but, that's a comment. >> can you restate the enforcement options if they do not comply to the 30 spaces for inventory? >> that would be fines zoning enforcement that would be counting the vehicles. We have been in constant contact with our zoning enforcement officers asking them for best practices as well as what they would be easier for them to do. They said that inventory count and locational requirement would be best for any type of limiting of negotiate and location of inventory so they basically said if you give a number, we can count up to that number, any vehicle over that, then we are getting into a fine situation. >> I don't know if this is relevant for or not but the b-3 property at 1701 that does not have the conditional zoning restriction, have they had any violations for too many cars on their lot. >> I believe that they have not. There is no restriction on the amount of vehicle is allowable on that lot since there is a by right development. They're operating that under the actual zoning restriction so it's not conditional zoning restrictions. Additionally, I think they have been warned about moving cars into the right of way or on the grass. That has been one of staff's hopes to kind of beautify the area by having the hedge and the fence while also keeping the applicant from driving their cars on to those areas. So it would provide a buffer for beautification and providing a protection element to the right of way. >> yes, sir. In code enforcement if someone calls and complains about something, that would potentially go into a feign if they didn't comply if they comply within a certain period of time that means they're back to where they started they can repeat the offense again. Do the fines increase depending upon the number of times they're called into action? >> yes, for every violation we investigate there is a notice letter sent to an application and they're given a timeline to rectify our goal is always for the zoning violation to be cleared up. We do not want to be fining people. We want the zoning violation to go away. So when it doesn't, after that time period, we do start fining sending a fine letter about it. The first instance hapts for every offense. It's $75 then it goes up to $150 for the second offense. And then it goes up to 225 and then 300. So it jumps by $75. When the fines are applied, they count the cars in this case. So if there were five cars on the lot, there are five instance s of violation. So five times 75 for the first and then the second time we have to go out it's up to 150 and there are still five cars then it's 150 times five. Third time it's 225 times 5, et cetera, et cetera. So it grows and it's not just us coming to the site in terms of zoning violation. It's how many violations have occurred as well. Based on how many cars, right? Each car is a violation. >> educate me along the lines. If I violate it one time, how much time, months do I have before have I to comply? >> I'm not familiar with the timelines that they give to do ... Do you know, jim cung duncan. >> Mr. Wilson, there is an appeal opportunity so they've got orderly 30 days to appeal the fine and so nothing would happen during that time likely no more enforcement on nose vehicles that the were cited for the fine and then after that, that's when that increased fine begins one once that appeal process is over. >> here is where I'm conflicted. Are know what the better of the law says here on this case but what the neighbors have indicat ed is that before they have been told certain things and that has been ignored. In other words, you got the letter of the law and the spirit of the law now someone could play this game a little bit because if I were a business person I could calculate and pay the fine and still run my cars on that lot and disrupt everything that is going on in that community that's where I'm conflicted on it. I understand the letter of the law and I understand what you are tell ming what we can and cannot do. But there is something about this deal that I don't like. But that's just my opinion. Nion. Nion. Nion. Nion. Nion. Nion. Nion. Nion. Other questions? >> question for staff, I can understand the three foot hedge but are there physical requirements for the fence. >> physical requirements for the fence that we are recommending is a four plank horse fence placed on the property. So your typical looking at approximately four feet in height. >> other questions? If not, I'm going to close this part and move to any comments that the commission May have and then I'll ask for a motion. Comments from anyone? You were talking. Do you want to back up. You were in the comment phase with us then? >> yes. >> okay. So floor is open to comments anyone wants to make. >> I have a comment just procedurally. Looks like we have two different votes. The first vote is on pln-mar-19- 11. That's to remove or -- to modify the conditional zoning restrictions. And then we move on to the development plan, is that correct? >> yes, sir. >> thank you. >> comments. No comments? If there are no comments from the commission I'll close with this. Heard a lot today, and let me say this, you know, the commission, we are not the sheriff of the land here in lexington and fayette county. We are charged with looking forward and doing what we think is best for lexington and that's , you know, that is what is before us today my personal comment is I have not seen enough evidence to say that the restrictions that was placed on and the reasons that they were placed on in 1988 still do not apply. I think they're valid. there has been some changes in the way of use on north broadway however, there has been no zone changes and and the way I see that, it's a permitted use, what 's there now, what was there , what is there now was a permitted use so there is no un anticipated changes and that's one of the things that we are charged with as well so I'll close and ask for a motion. >> thank you, Mr. Chair. Again today we have heard many issues and we have heard from neighbors and I think to reference one remark about neighborhood value is in terms of dollars and you can't measure a neighborhood by dollars. You measure it by psychological and social effect and live ability and goes back to our goals and objectives of the comp plan is liveability. So you do have a motion and I move for disapproval of pln-mar- 19-0 0 1. With the findings of fact which have been reviewed by our legal staff. In accordance with article 67c of the zoning ordinance there have been no unanticipated changes of any economic, physical or social nature in the immediate area since the time 9 conditional zoning restrictions were imposed in 1988. That has substantially changed the character of the area of the subject property. In particular the elk horn neighborhood adjoining the site remains residential and the north broadway corridor remains a prominent entry to the community that needs protections from further impacts to its visual quality. number 2: the patrioter has not provided evidence to support the requests removal of the conditional zoning restriction and further the nature of the immediate area still presents many of the same issues that required the original institution of the conditional zoning restriction thank you. >> so we have a motion for dis approval. Do we have a second? Motion has been made by Miss Plumlee for disapproval of pln-mar-19-11 seconded by Mr. Wilson. She has presented findings of fact. Any questions on the motion? Please vote when it comes up. Motion for disapproval passes. We need a motion, I would say, to postpone the development plan at this point. >> indefinitely. >> indefinitely. >> thank you. Move indefinite postponement of pln-mjdp-19-38 elk horn park block 8. Thank you. Motion made and seconded for in definite postponement. If there is no qets please vote when it comes up on the screen that motion spas passes. Thank you, I'm sorry appreciate `everyone coming down here and we do have other items so you are welcome to stay if you like, otherwise we do have a boar appeal that is next on the agenda. It's boar 2019-2 property locat ed 342 and 344 desha road. >> we are shifting to boar desha road. I will be entering the minutes and the staff report from historic preservation as well as the historic h-1 overlay guidelines. It is currently zones two family residential r-2 zone within the ashland park historic overlay h-1 zone. The appellant is requesting the review of the decision of the board of architectural review, boar, a certificate of appropriateness was requested to remove a chimney located on the rear of the subject property. The chimney was already removed from the residence without the approval of the boar and the area of the chimney was shingled over. The appellant retroactively sought the coa following the advisement of the historic preservation office staff. The boar determined that the proposed changes did not meet the intent of the local historic district... >> can you hold on a second? >> did we lose someone? >> we will pause for a quorum. We are going to quickly start over. We're going to boar 2019-2342, 344 desha road. The propertyings located at 342 and 344 desha road zoned two family residential r-2 with wrch the ashland park historic over lay h-1 zone. The appellant is requesting the planning commission review of air decision of the board of architecture review, boar, a certificate of appropriateness or coa was requested to remove a chimney located on the rear of the subject property. The chimney was already removed from the residence without the approval of the boar and the area of the chimney was shingled over. The appellant retroactively sought the coa following the advisement of the hirk preserv ation staff. The boar determined the proposed changes did not meet the intent of the local historic district and landmark guidelines adopted by the historic commission and the request was unanimously dis approved by the boar. The subject property is located within the ashland park overlay zone established in 2013. That is what is in blue right here. The historic district contains approximately 175 properties. All but one of which are residential in neighborhood. A b-1 property located at east high street and chevy chase terrace. The total area of the ashland park historic overlay zone, the subject property is close to the proximity of several other h-1 overlays. The south ashland central avenue historic district, aylesford historic district, and located nearby is the bell place historic district. Ashland historic overlay characterized by arc architectural styles popular maintain 20s and 30s including colonial revival, craftsman bungalow, tudor revival and others. The residential structure is in the overlay are primarily faced with brick with a few examples in frame and other materials 57 are remarkably in tact. Subject property could be instructed in 1923 is an american four square style structure and contiguous with the surrounding properties on desha road. It produces an equitable distribution of benefits and burdens. In other words, the neighborhood receives the average reciprocity of advantage whereby individuals May be restricted on some el ems of what they are able to do on the exterior of their property but gain the benefits from the restrictions of the surrounding properties. The restrictions provide construction consistency over time while respecting the historic character of the area for any property within the h-1 overlay, a coa is required prior to the initiation of any new construction on and exterior change to or any demolition of all or any part of any building structure or sign on the premises in a zone protected by an h-1 overlay n. Case the coa was not object pained prior to the removal 69 chimney we are able to see the aerial of the area with the location of the property property within the red circle zooming in we are looking closer to the property and the front of the property we are looking at this property right here here is an historic over view from the 1934 sanborn map in which you can see the property in its historic layout and current layout. Here we are able to see the mod ification that has been made. Top left picture shows the chimney on the property in 2018 in the red circle. Bottom left so shoes the removal and reroofing and the picture to the right shows the street view of the structure prior to the removal of the chimney so you can see the removal of this chimney right back here. Making the separate arguments regarding the appropriateness of the action. The appellant indicates the chimney was removed for the health and safety of the tenants who reside within the property. Indicating over the last 25 years there have been various issues with the chimney leaking, which caused some damage to the interior of the structure. They state that there have been three separate attempted to flash and seal and cover the chimney to prevent the leak. After the last attempt, the appellant had the chimney remov ed and the area reroofed without replacing the chimney. The appellant quotes krs 383-5951b landlord shall make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. As justification for removing the chimney. While it is necessary to maintain the premises in a fit and habitable condition to avoid detrimental or dangerous effects for those who live with the regulation. This is especially the case if the two regulations are not in conflict. Furthermore the appellant has stated that this has been a long running issue that has stretched over the course of 25 year. If this is the case, the appellant had ample time to go through the proper channel of reviews and could have caught lfucg historic preservation office staff support by working with staff and trained professionals the applicant could have gotten to and obtain ed a solution that would not have resulted in the demolition of the chimney. Next the applicant makes the argument that they were in fact clying with article 13-9 of the zoning ordinance. This portion of the ordinance states in order to prevent purposeful neglect of structures within zones protected by h-1 overlays, all properties shall comply with the property maintenance code as well as all other applicable codes, statutes and recommendations. It goes further to talk about the division of code enforcement and compiling of the issue. It was developed in an effort to avoid the demolition and degradation of the property owner. Since the inclusion of historic ked, demolition by dis regard necessitated communities to actively protect the integrity of historic properties in this case, the appellant is utilizing this section of the zoning ordinance as a jus if indication for the active removal of an public structure rather than the continued maintenance of the structure's integrity. Finally the applicant argues that there was nothing significant about the chimney and that was removed and it had no historic significance. The lfucg historic district and landmark h-1 designed review guide lines design principle for chimneys states that chimneys are often significant features of a property and help define the architectural character the chimney on many buildings were designed to be architectural features in their own right and displayed inset panels and decorative elements reflective of the overall building style. Chimneys should be maintained. Removing an original chimney lessens the property's architectural integrity and building pattern indicative of a building's history. Chimney's should be maintained in accordance with the brick and port mortar guidelines in this days the chimney is original to the structure and the lfucg historic preservation office and the board of architectural review reiterated their position that the chimney was an significant element of the structure. In studying this case, the plan ning staff can find no flaws in the review of the appellant's review of the request by 9 historic preservation office staff or board of architectural review decision nor has the appel and provided any additional information related to this the request that would provide for a new finding based on findings as stated in the staff report and minutes in the public public hearing denial of the certificate was not an error . The ruling is consistent with past actions of the boar in a dretszing chimney removal. The removal of the chimney does not meet the intent of the local historic district and landmark designed guidelines as adopted because the guidelines are definitive rather than suggest ive about their significance. If you have any questions for me at this time I am happy to answer them. We have members from the historic preservation office staff here to talk about their previous meetings. >> questions for Mr. Barry at this point? Thank you, sir. >> betty kerr, historic preserv ation officer and with me is barry dennis with our staff and is who was the professional working with this specific application. I will be very brief and thank m r. Bailey for his very efficient and effectively prepared staff report I don't have anything of great substance to add to that report and so we would just join in supporting that. Would I note that the retention and repair of historic chimneys has been consistently throughout the many years of the historic district process in all of the districts in lexington, been required by the board of architectureal review and in accordance with the design guide lines as referenced. So we would request that the planning commission uphold the decision of the boar and as recommended by your planning staff and deny this appeal. We are both, Mr. Dennis and myself, available for questions. And I'll just circulate amongst you, Mr. Bailey has already entered it into the record but the report, the record of this process for this specific application. >> no questions for Miss Kerr at this point. >> good afternoon, andrew williams representing Miss Virginia bailey who is the owner and landlord of 342 and 344 disesha road. I would like to make it clear that Miss Brown was not attempt ing to allude the preservation office, it slipped her mind. She has owned this property for 25 years and this house has only been six years in an h-1 district. When she was informed she needed to get a certificate of approval after the top portion of the chimney was removed, she attempt ed to comply with that and unfortunately that was later denied and that what is leads us here today but as soon as she was made aware of the fact that she needed a coa, she attempted to comply with that. My three main points that have been covered on this is the uniform residential act which I'm sure you are all very much aware of states that it has to be a fit and habitable condition for tenants who reside within and there was a misstatement, I believe because it says meeting one regulation does not preclude a person from needing to comply with other regulations. As you are aware, the h-1 zoning district is an ordinance of fayette county but Miss Brown needs to comply with the statute s of the state of kentucky and the regions that ave adopted. Fayette county lexington being one of them. And Miss Brown was found as these photos will show that landlords do have a duty to repair for mold. This was out of jefferson county but states that once a tenant becomes aware of a mold problem which will be shown by the upcoming photos the landlord, defendants in this case, do have a duty to limit to repair the condition. And what the planning commission and the board of architectural review and historic preservation office May be aware of is the damage awes caused by continuous constant leaking of rain water and other fluids into the house that would lead to mold up in this upper corner and there is another picture coming up. As you can see, there is clear indication of degradation to the interior of the house due to constant leaking from rain water outside. Miss Brown has had this property for 25 years and has attempted to flash and seal and cap and prevent this issue but at a certain point, there was no solution that could be had rather taking off the top part of the chimney. The chimney of the property the actually on the inside and only roughly a two foot external structure goes out of the top of the building which will be seen by later photos. And it happened very quickly she contacted a contractor and I believe this was moved over two or three days and shingled over. And when she found out she was supposed to have prior approval, then she attempted to get the ca approved through proper channels due to this continual leaking it caused other internal problems such as the plaster ceiling crashing down while she had a tenant residing within. If you look here, you can see a large chunk of plaster that has collapsed in in the kitchen near the stove area which is in this same area where all this mold is caused so she was placed in an impossible situation does she try to prevent internal degradation of the building or take off two foot extrusion of chimney on the outside and preserve the inside or preserve the outside. This is the other chimney on the house that has no damage and has been successfully maintained and is in proper condition. As you can tell here. This is what the chimney which is this column right here and extends into another room looks like after the two foot portion of the chimney has been removed and has been repaired and as you can note there is no longer any mold here and this is the other side of that chimney and another room right there, again with no mold and has been repaired. We have cited other articles. Article 13 compliance with other codes statutes and regulations. This circles back to the fact that Miss Brown attempted to comply with the, she knew she had a duty to, the living conditions on the outside fit and habitable and free of mold and was unaware that at the time that she needed to get a coa. Cited in section article 13 references an international property maintenance code shall not have defejts that admit rain after 25 years of attempting to resolve this issue rain still kept getting in and she thought the only solution left to her to stop this continuous mold issue was to remove simply the external structure of the chimney. Again this is another section of the international property maintenance code which states it shall be maintained in good repair exposed surfaces of metal or wood protected by weather coating material such as paint or similar surface treatment, as previously stated she attempted to flash and sealed this this chimney. It says three times in here. My client has informed me she has at least eight times over the course of the 25 years to maintain the chimney but yet stillwater was getting on into the inside of the house. Finally as you have seen in previous photos, it is our opinion that the two foot extrusion of this chimney is not structurally significant. As referenced in Mr. Bailey's comments. Page 54 provides examples of what chimneys that have structural significance look like. As you can see here and here the chimney that is on the house of my client, the one that remains is all external on this side of the building and only roughly a two foot external piece is up here. Now this is the chimney that still remains. The other chimney that was removed is the one that's right above or was right above that window understand is barely visible when you are passing by the house and is completely invisible per my opening slide, when facing the house head on. And it does not appear to have any structural significance oter than the fact that it was originally there. But again to reiterate, to stop water getting in and trying to maintain that chimney over the course of 25 years, it was her belief that to preserve the inside and keep it in a living condition, a two foot structure only on the external of the house at the top of the roof in the very back right up there needed to be removed. And as you can tell here, on this side, this is her newsmakers' house. This entire chimney is external. My client did not attempt to remove any other portion of the chimney except to make the roof one solid piece and to stop water from getting on to the inside of the house. Therefore complying with uralta and the ordinance. Any questions? >> yes ma'am. Questions. >> yes, I have several. Was your client aware that she was in an h-1. She owned it for 25 years and this didn't go into effect until 2013. >> yes ma'am. She was aware that it had been rezoned to an h-1. >> was she involved in the meetings that we have so that she would have known what to do? >> I'm unaware currently of the answer to that question. She owned a house for 25 years. She has tried to remediate the mold and she has had continuous mold but she had to take the chimney down quickly. >> I believe it was due to having tenants within she mentioned it... I mean it had been going on for a long time. It didn't have to be a two day period but she contacted a contractor and they were available and they came out and just removed the chimney in a timely fashion. It wasn't that it had to be done right then and there but she contacted them and they were available so within the work schedule I'm assuming they removed over the course of two to three days and when the mold was remediated was that done within the process that's supposed to be done two re mediate that mold? With removal of the drywall and all those things that are supposed to be done by a contractor to remediate the mold >> I am currently unaware of that answer but I can, if you will ahow me a minute to communicate with my client, I can get the answer to that. Thank you very much. >> other questions, Mr. Nichol >> all right. I've got, so is your argument that your chimney was unrepair able? >> yes, after many attempts to flash and seal to stop rain water from getting into the house she knowledged at the time that it was unrepairable. Of course hindsight is always 2020 and the chimney no longer exists but at the time it was the belief that it was unrepair able. >> other questions. No other questions? Okay. Anyone else wish to speak to this? Any rebuttals? from anyone? Yes ma'am. >> just a couple of things. I would note that the property owner Miss Brown had obtained certificate of appropriateness for other exterior work on her house that being predominantly the reroofing of this very house roof and got her permit for that in advance of doing the work sometime before this chimney was torn off so the roof was reroof ed with a properly acquir ed certificate of appropriateness and sometime following the deletion of that removing, the chimney was remov ed without a permit. And anything relative to talking about any condition that does need repair you know, if something comes up and your gut ter falls off, it's certainly appropriate to repair said gut ter but all you need to do is get a permit before you do so. And it's to assure that the work done is properly accomplished so the historic integrity of the house is protected. And that is why it is so important to get the permits before carrying out the work. Relative to is it repairable, we , of course, as staff, didn't have a chance to get up there and examine this situation because the chimney had been removed at the time we became aware of it being gone without a permit. But these chimneys, we've never met one yet that isn't repair able in terms of a roofer with the right qualifications being able to work with a cricket, you know, which is an element that bridges between the roof and the masonry and properly to flash that out. So the chimney does, and this was discussed at the board of architectural review meeting per this application, after the fact , the chimney does survive under the roof line. The base of that chimney is still in the attic and so it could be corrected and should be corrected by removing the roof in that area building the chimney back up. Its structural base is waiting for that to happen and then flash and crick elt, cricket and then flash appropriately for that installation, re installation I should say. I will note a reference was made about that you don't see it from the street well number one it's important to be aware that the historic district process is charged with reviewing these applications equally on all four sides of structures tied to again protecting the integrity and the materials and design of the historic structure and I think that is it unless you have questions. >> questions? >> one quick question. A chimney, as I understand it, does not have to be functional. It just has to be there. >> that's correct. >> some chimneys continue as for wood burning fireplaces because people enjoy them. Some are serving as flutes for their furnaces and such and some are quietly existing as an architectural element as part of the definition of the design of that house. >> curious about one quick question. Are you allowed to put a chimney cap on anything? >> absolutely. Those are issued at a staff level, a permit for that and done very frequently. >> any other questions? >> any rebuttal? From the appellant. >> yes, my client has indicated that she is unaware of any coa that was obtained to replace a roof that was just indicated. I haven't had a chance to review these documents myself, if it does or does not exist but it is her belief that no coa had been obtained sometime between 2013 when it became an h-1 and now. >> I wouldic loo the to be noted we'll be glad to fax you a copy of that certificate of appropriateness. It's in our files. >> okay, thank you. Staff have anything rebuttal, comments? >> I think Miss Kerr covered staff's comments. >> further questions? >> Miss Kerr, could it be that the roofing contractor got the appropriate certificate and the homeowner or the property owner was not aware? >> well, you might, with good reason, think that but we require this process requires the signature of the homeowner in addition to the contractor's they are often handled by the contract oor absolutely. But they can't be submitted as a final document to be acted on without the homeowner's signature thank you. >> Miss Kerr, I have one question. Maybe I shouldn't ask it but I'm going to. Hearing the facts, it appears that the exterior of this chimney has been removed obviously. Without permission, which is definitely a violation. If we uphold your decision tom thing they can do is put the chimney back? >> that's correct. As the remedy to get in compliance with the process would be return the chimney to its existing condition as much as is realistic based on the documentation that is available partly with the base of the chimney sitting right there giving you its exact dimensions and so forth and then there is documentation of how it rose above the roof. Return to the condition prior to negatively affecting that. >> any other questions? >> I'll close it and offer any comments? >> you know, this is very difficult. In the fact that we have historical overlays for a reason and I think they are good in the appropriate areas, which this would be one area. And there are requirements that the have to be followed. I do not blame the appellant at all for wanting to take care of her 25-year-old problem. And the mold issue is not a question here it May be the results of years of leaking, however what we are talking about is strictly ther, interior part of the chimney and -- exterior part of the chimney and this puts us in a difficult situation. I guess that's why we get paid the big bucks. So any other comments? i'm going to ask for a motion. Mr. Wilson, are you going to try. >> I'll try and I appreciate your comments related to that because I always feel sorry in some instances for the homeowner s who do what they think is in the best interest of their property in terms of continuing the value plus in addition to that, making sure that there is a livable environment within their house but laws are laws. We can't change them as such so I'm going to recommend that we approve -- that we uphold the dis approval and that the decision of the boar be uphold. >> so the motion is to uphold the disapproval of the boar and we do have a second. So for the record this is boar 2019-2 at 342 and 344 desha road any questions as to the motion? Simply to uphold the boar's approval. Questions? If not please vote when it comes up. That motion passes. I think the historic over lay there is for a purpose and weise have to abide I it. -- by it. So, moving on we do have one item I'm trying to get rid of everything before we go. It's under staff items. An infrastructure report that is before you there is an infrastructure report that is on the letter head of abby jones stated July 20, 2019. It is for our information. And I don't know,. >> Chairman Owens, I just want to mention that... >> would you like to explain this? >> well, no. But... [Laughter] I will. >> I know you don't want to. >> Ms. Jones, the engineer on this project provided a 50% report and it's not for action by the planning commission it's just for information as you mentioned. But she researcheses the final record plat that she filed for it and it's really in relation to a preliminary subdivision plan for this property on boston road near mill pond so the case number should be pln-mjsub-18- but that's the same parcel so they were providing an update on infrastructure as well as environmental issues on the site and you will be seeing another preliminary subdivision plan for the site because of some of the issues they ran into more to come on that one. >> you are more than welcome to take this home and look at it I would offer that Miss Abby jones was here at the start of our meeting today and was wanting to ask for this to be heard out of order and since we had no action to take on this and is information only I denied that request and offered to her that she had no need to stay around for three and a half hours. So that's where we are on this and as Miss Wade said, we will be seeing more of this to come later. Commission items. >> yes, sir. >> thank you, Mr. Chair, you will note on your schedule we have a planning commission work session scheduled for next thursday August 15. This is one of the months where there are two planning commission work sessions so we recommend that you cancel next week's meeting on the 15s because we would like to you come back on August 29 for the work session at which time we will be making a report to you about the input from the public input meeting for accessory dwelling units. That meeting is August 20. Open to the public. You are welcome to attend. We'll gather public input and have a report for you all on August 29. We want to give you a break and recommend that you cancel the meeting for August 15 which is next thursday. Recommendation for cancellation. I think we need a motion on that >> so moved. >> motion and second for the cancel layings of our work session. All those in favor please say aye. Well... Are you parliamentarian? All those in favor please say aye. Opposed? Thank you. Anything else, folks? I don't think so. And if I could bark to the A.D. U.S. We have updated the website if you all want to look at imagine lexington.Com, there is a tab on the front page for ADUs and that will take you to a fact sheet and some other information , a lot of it that was presented to you at the work session last month. You are welcome to share that with anybody you come in contact with. To go to the lexington imagine lexington page for more information. If anyone is interested, I do have pictures showing that the pins are making their way home. They're currently on camel. I was asking if the camel swam and he said no, so I don't know how they're going to make it. Anyway, anything else? If not, I think... Yes ma'am. I'm sorry. >> does jim have a timeline for the adu in front of you? >> a timeline for the adu? >> yes, so we have the August 20 public input meeting at the senior center at 6:00 and then August 29 planning commission work session. We'll give you an update on the status of that you will be presented the draft ordinance for your consideration for your committees on September 5 and that will then be presented for public hearing on September 19. No, September 26. Then following your public hearing, whatever your recommendation is, it will advance to council and we don't know what their schedule will be I will tell you that we are scheduled to give an upda it on this similar to what we gave you all last month at the work session to the council at a workshop on September 12. That will be in the caucus room but that is still an open meeting so they will be getting a preview of what you all been looking at on September 26. Anything else folks. If not, we'll adjourn the meeting. >> thank you. I'll call it adjourned.