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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.