The Thank you. Thank you. Thank you. The meeting of the Lake Simpson-Fayette Urban County Council. Here is a zone change hearing Tuesday, October 15, 2019. I'm Vice Mayor Steve Kaye, and I will be chairing this meeting. And before we get into the actual zone change, there's some preliminaries. that need to be directed um i was just handed a sign-in sheet if you intend to speak and you've not signed in there's still a sign-up sheet in the back of the room but the first order of business would to ask the clerk to please call the roll miss bloodstone mr fred brown here mr james brown here mr ellinger yes ma'am miss evans mr farmer yes mr gibbs vice mckay here miss lamb mr mccurran yes ma'am mr maloney yes ma'am miss miss miss miss missadi yes miss plowman yes miss reynolds yes mr worley thank you If this runs long, we may have a council member who needs to leave. I just need to let people know that in advance. At this point, the council clerk gives second reading to the zone change ordinance. An ordinance denying a zone change request to modify the conditional zoning restrictions in the highway service business B3 zone for .85 net, 1.14 gross acres for property located at 1709 North Broadway, 6K and under Auto Sales, LLC, Council District 1. Thank you. I want to recognize Councilman Massadi has a question for legal counsel. Thank you, Vice Mayor. From my understanding, this is not a zone change. Is that correct? It is not a zone change in the sense that it is changing from one zone to another zone, but it is being treated like a zone change in that there were conditional zoning restrictions put on this property at the time. It was rezoned to a B3 zone several years ago, and the request is to remove some of those conditional zoning restrictions. So since this body put them on there at the time of the zone change, this body would have to make the decision to remove them. All right. Thank you. That's all, Vice Mayor. Thank you. So again, a few more preliminaries. Just to follow up on that question that was asked, this is a little bit different from a traditional zone change hearing. My understanding is that in this case, there really is one question before this body, and that is whether there has been a significant change in the area surrounding the particular property to justify changing the limitations that were placed when the zone change originally was approved. In a normal zone change hearing, there are a lot of other considerations. In this, that's the single consideration to be considered. And as chair, if I feel that comments either from council or from the public are aside from that, I will ask you to limit your comments. So, further, if you are planning to speak, if you think you might speak, I would ask you to stand and raise your right hand. And I need to swear you in. So I'll read it and then I'll ask you to say I do. Do you swear or affirm that any testimony that you give at this hearing will be true to the best of your knowledge? Thank you. So I need to explain a few of the rules of procedure before we actually begin. first being that as the presiding officer I do have the responsibility of making rulings about what is and is not permissible. I rarely exercise that but if I feel I have to I will. Also we like to avoid repetitious testimony if possible. If there are written materials that have to be submitted, they have to be submitted to the clerk at the time of presentation. Anybody who presents information will be subject to cross-examination by those in opposition or those in favor. When you speak, we ask that you identify yourself by giving your name and your address. And I want to briefly walk through the order that will follow. First, there'll be a presentation by the Division of Planning, subject to cross-examination. Then there'll be a presentation by the petitioner, subject to cross-examination. And a presentation by the attorney for those in opposition, again, subject to cross-examination. We'll then take a public comment if there is any in addition to what the attorneys have presented. Then there will be an opportunity for staff to make additional comments, an opportunity for a rebuttal by petitioner and by opponents. and at that point there will be an opportunity for council to ask questions of staff petitioner those in opposition and an opportunity to rebut whatever if there's new evidence that is brought forward in those questionings once those questions and comments from council are complete I will declare the hearing closed. At that point, no further evidence can be taken, and the council must deliberate amongst itself about the evidence that's been put forward and adopt findings of fact and make a determination. That will all be done by roll call vote. It's important to note that the council rules are that in order to overturn what the planning commission has brought to us, in order to overturn any part of their decision, that requires a majority of the council. That's eight votes. There are 15 council members. It takes the majority of council. council it is not a majority of those present although we have almost everybody here tonight so it's not much of a difference but it will take eight votes to overturn At the very end, there's again another order where the first, the Chair will entertain a motion on findings of fact that would be supportive of whatever decision this body makes. And Council will then vote either to adopt the findings of fact or adopt its own findings of fact. And once either of those has been done, the council will then vote on the underlying ordinance, which is what has been presented to us by the Planning Commission. I believe that that completes everything except to emphasize again that the way that the rules read is that what we are here to discuss is whether they have the major changes of an economic physical or social nature within the area involved which were not anticipated at the time that that zone change and those requirements were listed and i believe that's all the preliminaries council members any further information questions comments if not I think we're ready to proceed we'll hear first from our staff I'm sorry councilmember McCurran thank you mayor our vice mayor I'd like to also air that I might be leaving about 630 also could you repeat that a little I'd like to note that I'm going to be leaving around 630 also. I think we have two council members who have to leave at 630. That would still leave us with a quorum. Thank you. Welcome. Good afternoon, Vice Mayor Kay, members of the council. I'm glad to be here this afternoon rather than this evening, a little bit earlier than normal, to present this request to modify conditional zoning restrictions for property located at 1709 North Broadway. The case number for the Planning Commission is PLN MAR 19-11, and the applicant that's requested this change is 6K and under Auto Sales LLC. I have a number of things to enter into the record this afternoon. Before I get started, though my name is Tracy Wade and I am the Planning Services Manager for the Division of Planning here in Lexington and often represent Planning Commission recommendations to the council. So the first few items I'll enter in the record are first a copy of the legal advertisement for today's hearing that was put in the Herald-Leader. Second, an affidavit stating that notification was mailed to the 500 foot notification area in the required time frame and we also sent a neighborhood notification to the adjoining neighborhood association which is required by the council resolution third item is a copy of the final report which the council also has at your seat these come from the Planning Commission and include the recommendation as well as the minutes at the very end of their hearing the next item just for reference if we do need it the 2018 comprehensive plan which is adopted a copy of our zoning ordinance which is up to date current a copy of the land subdivision regulations that apply for the county and then the last few items the council has at their seat and we've distributed to the two counselors who will be speaking this afternoon, and they are the staff's presentation materials. We have that. As well as, although I've entered in the record all of the zoning ordinance, we've provided for the council a copy of just Article 6, which is the section that discusses amendments. And as Vice Mayor Kay mentioned, there is a section within that that talks about conditional zoning restrictions and how the council uses those restrictions in their process. And then the last item for reference is the adopted ordinance from 1988 for when this property was rezoned with those specific conditional zoning restrictions. And again, you have that at your seat this afternoon. To get started, we'll just reference the basic information for this request. And again, as mentioned, the underlying zone for the property is a highway service business zone. That's our B3 zone, and it was rezoned in 1988. It's for less than an acre of property, and it's located at 1709 North Broadway. The request before the council today, though, is to amend the conditional zoning restrictions that were put in place in 1988. The subject property is located on the north side of North Broadway, and it is located very near the intersection of Cane Run Road, but it is generally located between New Circle Road, which is to the southwest of the subject property here, and then the interstate, which is to the northeast of the subject property. So that's the portion of North Broadway that we're looking at this afternoon, in between New Circle Road and the interstate, and the property is located on the north side of North Broadway. When we look a little bit closer, the property is, again, I mentioned zoned B3, and it's adjoined on three sides by B3 zoning, and then to the rear by single-family residential zoning. That's an R1C zone. Within the B3 zone, as I mentioned, on three sides, There is recreational vehicle, which are RV sales establishments, as well as vehicle sales establishments under the same name as the applicant. And then also a neighborhood shopping center. We'll go to the aerial photo and we'll be able to see that a little bit better. So as I mentioned, the RV sales are pretty apparent in the aerial photo. and how they are parked to the south of the subject property as well as to the west. Just to the immediate west, southwest, is the vehicle sales that shares a common, I guess, operator name. And then a small shopping center to the east. Also in the general vicinity that the council members may recognize, just on the other side of this small shopping center is fire station number 8. So that's where fire station 8 is. and then there's two vacant properties just a little bit further. Other than that, other than those commercial uses, the rest of the area in this photograph is residential, both to the north, and then on the other side of the railroad tracks back here, this is Old Paris Road, and those are all residential as well. A few more of the visuals kind of at grade of the property. On the top row of the presentation slide here, this is looking towards the subject property. And then to its, if you're looking at the property, to its immediate left and then immediate right. So the center photograph shows the subject property when we posted a zone change sign there in August. And then to the east, the existing car sales. And to the, excuse me, to the west. And then to the east, the small shopping center. And then these are the views along North Broadway, looking out towards the interstate to the left here. In the center view, across North Broadway to the RV sales. And then on the right-hand lower corner in the slide, looking towards downtown. As I mentioned, I would reference this in my presentation, Article 6 of the Zoning Ordinance. there is one section that specifically references conditional zoning restrictions. So the council has probably heard us speak about that in the past and your ability to restrict a piece of property in some way. So 6-7 identifies the process as well as the type of restrictions that can be put in place. And it specifically says the council can designate certain conditions and restrictions that can only be amended by the council. And that's the situation we're in this afternoon. This particular ordinance adopted in 1988 specifically says, and again on page two of that, which I've given you, which condition shall be amendable only by the action of the council of the Lexington-Fayette Urban County Government. And so that's why it needed to be heard by the council. The existing conditional zoning restrictions adopted with that ordinance restrict this property. It prohibits three uses. Prohibits billboards, and then it prohibits the establishment, for this is more of a category, the establishment for the display, rental, sales, service, and or minor repair of, and there's a list of vehicle types, farm equipment, contractor equipment, automobiles, motorcycles, trucks, boats, travel trailers, mobile homes, and supplies for such. And then the third general use that's prohibited is kennels, animal hospitals, or clinics. And the reason that was put in place in 1988, according to the ordinance and the hearing that occurred that year, was stated in this general way. The conditions were determined to be appropriate and necessary in order to protect the residential neighborhood that was adjoining to the rear. and also to protect the designation of north broadway as a major entrance or gateway into lexington and to protect its visual quality and its image so those are the reasons why the restrictions were put in place and as vice mayor kay mentioned the council can only make a change to those conditions if the following part of the ordinance is met the request may be granted by the council only if it is found that there has been a major change of an economic physical or social nature on the subject property or within the immediate area which was not anticipated and it has to have a substantial alteration to the character making the restriction inappropriate or improper when the applicant made their request they provided aerial photographs of the general vicinity which led the staff to a particular conclusion that there had been a significant change in the area and that came and i apologize if the the view isn't so great but the subject property is here and you can see that all of these white general um i guess blobs might be the right word are actually rvs that have located are located in an rv sales lot and when we look over here there's actually a lack of that and i and i know mr walburn probably has some better photographs of that than we're showing so there again these rvs were not present in 1988 it was actually a hotel and pool and restaurant on the side of north broadway and so that physical change was something that the staff considered and the applicant had documented in their request to remove the conditional zoning restriction so they came to the conclusion that first the the applicant concluded that they were that the physical change on the in the area was the presence of these additional rv sales lots and also that that they came about by right the b3 zoning in that area allows for that they were they were actually zoned prior to the ability of the council to do conditional zoning restrictions so they are allowed to have those rv sales but when the applicant in 1988 came in and rezoned these two parcels the difference was they backed up to residential and the corridor was something that we were trying to improve the visual quality of and at that time these were not present so they came to the conclusion and made their justification to the planning commission and the staff that the proliferation of auto sales in the region resulted in a major change of an economic and physical nature on the subject property and with within the area containing the subject property and since um the automobile and sales have been by right along this area they've also had an impact on the visual character of north broadway and the staff actually agreed with that assessment and recommended approval of the zone change see if we can move forward on this sorry can you hit next for me it's stuck no that's not it here we go there's some more current views of the subject property there we go so the staff recommended approval with some additional conditional zoning restrictions so That is, acknowledging a physical change in the area, the staff recommended removing the one conditional zoning restriction, but adding a number of others, again, to protect the existing residential area. After the staff made a recommendation related to the zoning, we also made a recommendation associated with their development plan that they filed for the property. it just generally depicts the existing structure that had been built there earlier in the 2000s for a car wash. The car wash was converted to an office use. So this is an existing car sales lot to the west, the subject property in the middle, and then a small shopping center to the east. The two larger tracks have been on a development plan together, so they remain tied together they also share an access point and do share some parking and so they remain on the same development plan and the applicant did include the corner lot although it had never been on a development plan previously in doing that they offered to make some physical changes to the property that they felt would improve the visual quality which included the the conditional zoning restriction of providing some buffer along north broadway and also the staff had suggested limiting the number of cars that could be stored on the property there's a little bit closer view as you can see from the photo the applicant is utilizing the property to a high intensity After the planning staff made its recommendations, the planning commission further held the public hearing. The applicant's attorney made their case, and then an adjoining property owner and their attorney, as well as neighbors, also expressed concern about the requested change. During the hearing, the planning commission heard from nine objectors to the zone change who spoke, and following the information provided by the objectors, the planning commission came to a different conclusion than the staff, and they found these were some of the concerns that were expressed by the neighbors, and those are in your final report as well, our nearby property owners. They had concern about the lack of parking shared with the commercial shopping center and the overflow and how many of the for sale vehicles were occupying parking spaces for an adjoining owner. So there's been some spillover of the for sale cars on the lot onto a neighboring property. Also concerns about traffic along North Broadway and the potential for accidents. And the last thing was a concern about rewarding bad behavior. And I should clarify that the applicant was actually granted a zoning compliance permit in 2016. They made changes to the property to have a car sales establishment there. They also paved part of the property in order to do that. In 2018, though, the staff found after getting several complaints that they had been issued a zoning compliance permit in error and needed to rescind that. We gave the applicant several options. They could terminate the use or they could apply for a zone change to change these conditional zoning restrictions. So they actually chose to, as opposed to limiting or changing the use of the property they've already occupied, they opted to file for this zone change to change or modify the conditional zoning restriction in order to continue to operate as a vehicle sales establishment. So you'll see that several of the photos do have car sales there, even though it's a prohibited use, And that was a result of the error and then the fact that they continue to operate there, even though they've been asked not to. To just occupy it as an office is what they're occupying it as today. So the Planning Commission, after hearing quite a bit of testimony related to the existing conditions of the site, actually made a recommendation for disapproval of the zone change or the request to amend conditions, and they voted 5-2 to deny that, deny the zone change or the requested change. And they provided two findings associated with that. The first was in accordance with Article 6-7C1A of the zoning ordinance. The Planning Commission found there's been no unanticipated change of an economic, physical, or social nature in the immediate area since the time the conditional zoning restrictions were imposed in 1988 that has substantially changed the character of the area in particular the elkhorn park neighborhood adjoining the back side of the back of the site remains residential and the north broadway corridor remains a prominent entry to the community that needs protection from further impacts to its visual quality. Again, referring back to the reasons why these restrictions were put in place in 1988. And secondly, the Planning Commission found that the petitioner has not provided the required evidence to support the requested 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 inclusion of the conditional zoning restrictions. That concludes my remarks in terms of the planning commission's recommendation, but I would be happy to answer questions about this particular public hearing that the commission held or anything related to the recommendation. Thank you. Does either petitioner or opponent have cross-examination for staff? Okay, thank you. Thank you. Next would be the presentation by the petitioner. Mr. Walburn, welcome. Good evening, Vice Mayor, members of the Council. My name is Jacob Walburn. I'm an attorney today on behalf of 6K and under Auto Sales, who is the petitioner, for removal of these conditional zoning applications. Much as Ms. Wade, before I get started, I have a few things I have to enter into the record. the applicant is tasked with placing a notice sign and providing an evidence of the same through an affidavit and a photograph we have done that so i submit evidence of that affidavit for the record a picture is worth a thousand words so you'll see i'm relying a lot on a number of overhead photographs that you'll see by powerpoint i'm placing a hard copy of that into the record ms wade already placed the ordinance that rezoned into the record so i will refrain from doing that i am however entering the meeting minutes from september 22nd 1988 planning commission which is where these zone conditional zoning restrictions were first considered and imposed into the record i'm submitting a copy of staff's original report on this request and a copy of staff's revised report as well as approximately 30 letters in support of our change zone or our i'm going to try to get disaffect myself of calling this a zone change because it's not a zone change 30 letters of support of our application for the record as well i have brought copies if uh council would like to review those i'll hand those to you at the end and we'll have one additional document for your consideration at the end i know we're under compressed time limits tonight so i'm going to be blunt and brief and hopefully get directly to the point because we are talking about a very narrow issue and unfortunately the planning commission when considering the same issue frankly allowed and considered irrelevant testimony things that should have never come up things that should have never come into the record and it colored their decision they got it wrong but i didn't get that excited about it why because miss wade's already explained the procedure to you the planning commission could do nothing to help me the council imposes conditional zoning restrictions and only the council may remove those conditional zoning restrictions so i'm asking you to focus tonight on the specific question that is in front of you and limit the testimony you consider to those to that specific issue again this is not a zone change i disagree with some of even the legal opinions that you've given tonight that it takes an absolute majority of you to override because this is frankly a different procedure but we'll We'll burn that bridge when we get there. The bottom line is this is not a map amendment request. It's governed by Section 6-7C and not your general map amendment request. Now, there is an irony is that there is one parallel between a zone change justification. It's actually the one you all hear the least often. But there is a similar consideration in KRS 100-213, which is you can approve his own change based on evidence that there's been a substantial change since the adoption of the comp plan. Now, some communities that comes up a lot because they're not as diligent as Lexington is about updating their comp plan. We tend to update ours on the required schedule, so that's not a finding that you all consider very often, but it is similar to that. I need you tonight to be more like a judge than a policymaker. Council is a policy-making body. You all enact ordinances for our community, set the direction of our community. That's not really what you're doing tonight. I'm asking you to hear evidence and make a determination on a very, very narrow legal issue. That horse has already been thoroughly beaten by Ms. Wade, so I won't do it. And even the Vice Mayor's introductory remarks, I think, did an excellent job of narrowing the issue that we're talking about. So I'll refrain from beating that dead horse. You're looking for substantial change that nobody was thinking about in 1988 that changed the character of the area that makes the restriction not appropriate anymore. That's what we're talking about. As I mentioned, you may hear a lot of objector testimony that go to issues that, frankly, are not germane to this application. So I'd ask you to keep focused on what we're talking about. Go back to 1988. November 17, 1988, we're coming up on the 31st anniversary of the zone change application for this site. It was actually three parcels at that time. The property that we're talking about tonight and the two adjacent to it, they were going from a single-family residential category to a B3 category. The conditions were imposed were exactly what you're told. Most of these conditions, we don't object to staying on the property. We're specifically looking for a removal of the vehicle sales prohibition. There's no intent to sell large trucks here, farm equipment. We're not asking for a kennel or a veterinary operation. You'll notice, unlike many B3 ordinance zone changes you hear today, there is not a restriction on this property for adult uses. Adult entertainment uses are one of maybe the most common conditional zoning restriction you were requested to add to B3. it is one that staff suggested that be added when they recommended approval it doesn't exist on there now and I believe that's because it was not included in the B3 zone at that time when it was in the two findings that we're going to spend a lot of time talking about now close proximity of residential uses makes the restriction necessary to ensure the residential area is not impaired that is a direct quote and we'll be breaking it down a little bit as we go through this presentation. Additionally, that North Broadway is a major entrance into the community and it's an asset to the visual quality of the community. We'll be talking a lot about that as well. Now, through the magic of Google, we can hop in a time machine. I can't get you all the way back to 1988. The earliest overhead pictometry that I can give you is from 1993, but I think it'll give you a pretty good idea of what this site looked like around the time of the zone change. Bearing in mind that this area had five years that it could progress, from when the zone change was actually granted to my first overhead picture, but I think you'll see a markedly different North Broadway corridor in 1993. For starters, notwithstanding that we were five years post-zone change, our site has not developed yet. You don't see any of the RVs that we're going to see slowly but surely reproducing, first on this side of the map and then over here. Markedly different overhead view at that time. Auto-sales-centric uses were not the dominant use in the corridor at that time. As Tracy mentioned, the dominant use was probably the old Congress Inn, had rooms, restaurant, and a pool. It is located over in this vicinity. As we move through time, 1997, here's our first major change, the advent of the RVs. They start to emerge in this corner right down here. quite a few of them but again they have not proliferated to the extent that you're going to see them at the end but this is where we first start seeing the change interestingly our site still has not developed at that point jump forward to 2002 now we're really starting to see the RV sales move taking up this entire area down here and have started to come across the street here you'll notice what is now the Broadway Auto Mall is vacant at that time and our development here this is the subject property right there this is the existing operation the old gas station on the corner and the strip center they first appear in this 2002 photo 2010 RVs have grown again quite a bit now have moved appreciably up Broadway almost even with our development but again you'll remember there was nothing over there when we started now they take up virtually this entire side of the street over here as well and the Broadway Auto Mall is occupied moving forward to 2017, the most recent photograph on the Google pictometry, you can see that not only are the RVs taking up the entire area to the, we'll call that the southeast of our site, but have now extended further up the corridor to the north and east of our site. Major RV use immediately adjacent to us as well, Broadway Auto Mall, and then my client has started operating in this corner lot, former gas station site. Interestingly, that site does not have the prohibition against car sales, so there was no problem with the operations at that site. Business was doing well. He looked to expand. As Ms. Wade informed you, he was told, yes, go forward, spend some money, renovate this property, do some paving, do your business, only to be told later, no, you can't do that anymore, after he had already made the investment in the property. So that's one of the, pretty much the primary reason that we're here today. So this is the piece of evidence that I think is most important to my case. If you compare the 1993 map to the 2017 map, I don't think anybody can credibly argue that there has not been a major change in this area. That's not the only question that we have to answer. We have to also determine that it was not anticipated and that it has altered the substantial, has altered the entirety of the area. Well, I think we can say it's been a major change and I think we've established that it's altered the basic character. Was it anticipated? Oh, actually I guess I should walk through these only because I took these photographs myself on what I believe was the hottest day of the year. This is what the North Broadway corridor looks like if you're driving into Lexington right now. This is the viewshed that these zoning restrictions are crucial to protect. This is what it looks like today. So our major changes, proliferation of travel trailer. We've also got the Broadway Auto Mall all on the same side of our street and across the street from us. Transition of my client's initial operation on the gas station site to a car lot opportunity. Auto-centric uses are dominant on North Broadway. It's not limited to just this small area. And the single-family residential neighborhood, which I'll touch on again a bit more here in a minute, persists. In fact, and indeed expanded while the auto-centric uses were growing in this community. Now, you're going to hear an argument that, well, these properties were all zone B3, so it was clearly anticipated that they were going to be car lots, except that's not true, and that's why I put the minutes from the 1988 Planning Commission meeting in the record for you. There is no discussion whatsoever about the emergence of auto-centric uses along this corridor, And as you all know, because you all have gotten some legal action against you from time to time, the body speaks through its minutes. Its minutes are how its body's actions are recorded and what its motivations are and what its findings are. There was no finding adopted, no mention in the minutes, no mention at all about proliferation of autocentric uses along this corridor. And I'll even go one step further. I'd suggest to you that it is entirely illogical that this would have been anticipated when this conditional zoning restriction was put in. Because if you truly believed that this was how the corridor was going to change, why in the world would you ever put this condition on in the first place? It doesn't make any sense at all. So that's pretty well beat that viewshed horse to death. There's really no credible argument that could be advanced that there hasn't been a major change that's affected the area. and we actually provided as Tracy mentioned on our development plans things that staff thought would actually help in enhancing the viewshed through additions that were required to our development plan so let's go to the one that's a little more complicated non-impairment of the residential area how do we evaluate whether auto sale use is going to impair or has impaired a neighborhood impaired isn't defined in the zoning ordinance I can't go into the text of the zoning ordinance and tell you what impairment is because it's not defined but when we don't know when we don't have a specific definition we can use common sense impair basically means make worse if it's not it's either improving or not improving holding steady may even be a way of showing impairment but i think dictionary definition would suggest diminish or make worse so how can we do this well we have a pretty good case study that's in the immediate area that can tell us whether an auto sales use has impaired the neighborhood because as I told you 1701 North Broadway my clients original location the former gas station did not have a conditional zoning restriction but it wasn't a car lot until 2014 so we can see what the impact on adjacent residential property was in the time period since that site began operations and so I'm reading ahead of my slides and I apologize for that. So what did I look at? I looked at the residential property that was immediately behind our property. Did an evaluation of several different things. Here are, as a real estate attorney, things that I think could show impairment of the property. What happened to the value? Were there a whole bunch of sales? Were there a whole bunch of sales around it? Was it redeveloped or proposed for something else? So let's take a look at those. The rate of inflation was 9.7 percent this home increased in value 26.3 percent so it's increasing in value it's still appreciating in value from its 2013 pva assessment which was the most recent before the auto sales use started to its 2019 assessment did it sell no it's been under consistent ownership since 1995 did the houses around it sell no in fact on that side of the street the even side of hawthorne lane There has not been an entire sale of any residence since 10-21-2011. The car lot use started in 2014. Was there redevelopment? No, none of any kind. No proposals, no zone changes, no conditional use permits. These are still functioning as single-family houses, single-family houses that are increasing in value, that have a large landscape buffer in the rear, separating the rear of their property from the rear of my client's property. So what can we conclude? Auto-centric uses generally, because these weren't declining because of the RVs either. And the specific car lot did not impair the value, cause any property sales, or lead to any redevelopment. And there are steps to protect the adjacent neighborhood that are less onerous than an outright ban on automobile sales. We offered voluntary conditional zoning restrictions. It's what Tracy presented to you as the staff recommendation. We volunteered a number of those. The ones that we did not volunteer to, we agreed with staff could be imposed. The bottom line is I would tell you that since 1988, if you were to go visit a car lot in 1988 versus a car lot in 2019, you would see that they function in a wildly different way. And that through these steps that we have outlined, providing no outdoor speakers on the rear of the property, directing all light away preserving those existing landscaping and that doesn't count the other things that we have done that i'll touch on briefly in a minute to accommodate some staff concerns but we think that's a far less onerous way to preserve my client's property rights while also protecting the adjacent neighborhood this is a successful business in the six years that they've been operating they've generated almost two million dollars in sales tax so mr walburn this is where i'm going to ask if you can explain to me how this is relevant to the change in the neighborhood i think it goes to some of the neighborhood concerns that you may hear i can hold it for rebuttal if you'd like thank you uh it's it's a it's a it's a good business and generates money i'll leave it at that so what's our summary here north broadway corridor has evolved significantly since 1988. you can see that in photographs you don't need a lawyer to explain that to you you can look you can use your eyes area is proliferated proliferated with auto-centric uses there are rvs all over the place and due to the physical economic change and economic changes that were not foreseen because nobody talks about them when these conditions were imposed either in the ordinance or the minutes this type of major change is exactly the type of thing that should precipitate you removing those conditional zoning restrictions staff reviewed our proposal and after we modified several issues and I guess that is the one thing I would go back to that I do think is germane to the issue in front of you staff asked us to look at several issues to help this site function better things about that shared access way with the adjacent property owner we agreed to all of those we had a recommendation of approval from staff both on our request to move conditional zoning restrictions as well as the corollary development plan once we worked out those issues staff recommended approval so you don't have to go far tonight to come up with your findings in fact I'm going to provide them to you I just want you to adopt what your own staff recommended I have a copy for you to consider of those as well as these letters from support I understand you may have already received some emails of support as well but I'll provide those for your consideration again all I need you to think about are these two photographs. It's all the evidence you need to get to be where you need to be tonight. I'd be happy to entertain any question and of course reserve the right for rebuttal, but I appreciate your time and I think I did keep it under 20 minutes as I promised. Thank you. Any cross-examination from opponents? If not, then we'll proceed to opening statement by those in opposition. Mr. Murphy. actually if i could i omitted one thing that i promised i would do to also hope to help some time several of these folks here tonight are in favor of our application not all of them wanted to speak so i wanted to give those that are that are here in support of 6k if you would raise your hand so the vice mayor can be aware that might avoid you having to hear from some of these folks some of them may still want to speak to you but wanted to give that opportunity thank you thank you mr murphy Thank you, Mr. Chairman. I'm Dick Murphy. I'm pleased today to be representing the owners of the property immediately to the north. If you think Broadway runs north and south, I guess it's east. I've learned a lot through zoning. North Broadway seems to run east and west at this point, even though it's North Broadway. So we're to the east if you look at it that way. I represent the owners of the property at 1719 North Broadway, Peter Sun and Susan Liu. Mr. Sun is with me in the front row tonight over on your left side. He and his wife, Susan Liu, purchased this property through a company they own, Spring Sun, last year. I'll give you a little more details on that. But they own the shopping center right to the north, which is home of seven neighborhood businesses. We share a common entrance with the used car lot on this property. We share some common area with it. It's a joint entrance, and that joint entrance is our only way in and out of the property. We're opposed to this application, and we're asking you to turn it down. I want to give you a little history on this. If you go to my handout, in 1988, this property, it's important to note that the conditional zoning restrictions that you see tonight apply both to Mr. and Mrs. Sun's property, 1719, and to the used car lot at 1709. And I call it a used car lot because that's what it's being used for right now, illegally, by the way. I'll talk about that in a minute. But it applies to both properties. We are not asking a change in conditional zoning restrictions for our property. We are opposing the change of conditional zoning restrictions for the property next door because it has a massive negative impact on the neighborhood shopping center next to us. And we'll discuss that in a little bit more detail. But if you can look at page 3 and 4 of my handout, that's the staff report back in 1988 when this property was rezoned from residential R1C to B3. It was 1.6 acres because that included the property my clients own. The property before you tonight is about eight-tenths of an acre net. And as you can see on page two, they proposed approval of the zone change, but with conditional zoning restrictions, which included a prohibition against vehicle sales. And going to page four on that handout, they listed the conditions, why they were opposing those. And as Ms. Wade has presented to you, it was the close proximity of residential uses in the Elkhorn Park subdivision right behind us. And it was the fact that North Broadway was a major entrance to the community. Now, there's another reason I'll discuss with you tonight, and that's important, too. And that is that the conditions were uniform among the two properties which were next door to each other. That's a major, major problem that we have tonight. The property was divided at some point. It was originally developed as one unit. The property that used to be the car wash, which is now the used car lot, and the son's property was developed together. Not with the property on the corner, which Mr. Walbert has mentioned at 1701. That wasn't part of the development. But the two buildings, the car wash, which is now the used car lot, and our property were developed as one development. It was called the Murphy and Lusby Development Company property. And I want to emphasize that Murphy was not me. It was somebody else's Murphy, but it was Murphy and Lusby Development Property. And at some point, Murphy and Lusby divided it up. After these conditional zoning conditions were approved, after they put a joint driveway entrance to these properties, and after the zone change was given they they divided it up and divided it into two separate ownerships and I'm going to go to my photographs now off the hard drive and just show you a little bit more background of this property the this first photograph is the car wash this is the property that's before you tonight this is now the used car lot it's it was this picture was taken several years ago we got that out of the files to show you what was there and originally approved you can see the car wash there you can see a large hedge i'll point that out over here on the right in the back that is the shopping center that my clients own right here there's a joint access point up here which is the only way into the shopping center and that joint access way there if you could go to the next one next slide number two That's how the car wash property looked the day before the Planning Commission hearing on August 7th. You can see the vehicles for sale along the front of the property. I'll discuss that a little bit more later on. And going on to the next picture, this is them lined up again, a picture looking out. Mr. Murphy, I'm going to do the same thing. You'll have to help me understand how this is appropriate for the change in the surrounding properties. Well, it's appropriate for this reason. If we can, let me show you the pictures and then I'll show you. What I'm suggesting is that the present use of the property is not germane. It is absolutely germane. It is the main thrust of this hearing tonight what the current use of the property is. Because in this case, you have a unique situation. You can see on the ground today what the result of you granting the change. Mr. Murphy, I'm sorry, I'm going to rule you out of order. Excuse me, I'm sorry Mr. Chairman, but this shows. I understand the point you're trying to make. What I'm suggesting is that this is not relevant to change in the area around that property. It's not relevant to that fact, but let me go to page two of my handout, and I'll show you why it is totally relevant to this case, Mr. Chair. If we could go to my handout, please. Page two. The only criteria is it's not only has there been a change in the area. There's three parts to this test, as were discussed before. If you could go to page two of my handout, I have the standard in there, and that is, here is the section, findings required to change a conditional zoning provision. It says, the request may be granted by the council only, only if it is found that there has been a major change of an economic, physical, or social nature on the subject property or within the area in which the subject property is located, which was not anticipated at the time the binding restriction or condition was imposed. Now, there's no period there. There's a comma. That's the first part. You have to find major changes which were not anticipated at the time the condition was imposed. That's the first part of this test. But there's not a period there. It says, and, which is substantially altered the basic character of the area. So you have to find that the changes have altered the basic character of the area. and making the restriction or condition inappropriate or improper. That is, you have to find, basically, that the restriction against sale of used cars is inappropriate or improper for this property. And what I'm saying is, this is a unique case, because they've been selling used cars illegally on this property for the last two years. So you can see exactly whether that condition against selling used cars is inappropriate or improper based upon what the neighbors are going to tell you about the impact this use has made over the last two years on their property. So I have to show you what's going on. I have to show you that they're selling cars there. but that's totally irrelevant to showing you whether removing a condition for sale of used cars is appropriate or proper because we can see exactly what impact that has, whether it is appropriate or improper to sell used cars on this piece of property. So that's how it's relevant. I'm going to let you proceed, but I expect we'll have cross-ex on that. Thank you. Okay. i'll go back to my pictures and just show you the area here going on to the next photograph that's the common area between the two properties now the the 1709 has a right to use that that's what it's often used for the area between my folks shopping center and the 1709 going on to the next one This is my client's shopping center. This is a neighborhood shopping center. And our uses are listed on, and you don't need to show this, but we just wanted to show you what our uses are in this shopping center. I'm sorry, Mr. Walburn, but I made a ruling on that. You'll have an opportunity to cross-examine. He's waiting at my time. He's trying to get more people out of here. I understand your concern. i'll ask you to return to your seat i'll make a ruling you'll have an opportunity to speak i'll go fast i don't want people to leave here but the there's seven uses in there and these are appropriate to show you surrounding uses mr walburn showed you surrounding uses i think i get to jackson hewitt tax service a cell phone store dry cleaners right there penn station subs mbc staffing an employment agency and there's a hair salon and a barber shop in this property it's truly a neighborhood shopping center um going on in the next photograph that's the fire station just to the north of us station eight going on to the next one this is the picture of what the property was used for yesterday again continuing sale of used cars going on the next photograph This is some pictures showing the development in the Elkhorn Park subdivision. This is on North Broadway, just north of the fire station. And I think my last picture is going to be back in the Elkhorn Park subdivision to show you what the neighborhood behind there, because it was put on to the condition that was imposed back 31 years ago to help preserve the nature of the Elkhorn Park subdivision. I'll go through my other exhibits here with you. If we could go to page 5 of my handout. This is the zoning map from 1973. This is what, 46 years ago. This is our, here's North Broadway. North is actually going down toward the bottom of the picture here. South toward the city is up here. This is Cane Run coming in here. This is the service station, which was converted to auto sales, which is fine. No problem with that. This is our property. These four, Mr. Sons is these two lots. The 1709 is these two lots. And the area shown in yellow was zone B3 back in 1973. Now, it's true. It wasn't all used for vehicle sales at that point. The Congress Inn was over here at that point, and that was the major landmark in there. You probably remember that big Congress Inn sign here at this point. But when they, in 1988, the zoning was about the same. The zoning really hasn't changed here. If you remember Mr. Walburn's picture, what's happened is they've sold RVs where it's been zoned B3 for at least 46 years already and down here. but when they imposed these conditional zoning restrictions on this property in 1988 all the rest of the property around there shown in yellow was approved for automobile sales you could sell autos at that point on all that b3 land now the use it has has a different use but the when the planning commission imposed them and you imposed them to your predecessors in 1988 everybody was aware that automobile sales were allowed on the b3 property all around here now can we say it was unanticipated or not i think we can say the planning commission anticipated auto sales on the b3 property which was allowed b3 because they specifically said it's not appropriate here why was it appropriate here and not over there well because this property backed up to alcorn park subdivision that's why it wasn't appropriate and they anticipated that in 1988 they anticipated do exactly what's happened and they said no it's not going to happen right here because of its proximity to alcorn park i think there were some other reasons because the lot was so small it's not really appropriate for automobile sales but i think they anticipated it But I've included in page 6 through 10 of my handout, I've put the staff recommendations from a year ago. A year ago, this same application to remove this conditional zoning restriction was filed with the Planning Commission. A year ago, the staff recommended disapproval of it for the reasons they listed and for basically the similar reasons that the Planning Commission voted to disapprove this year. But I know the staff recommended approval with limitations this year, but a year ago they recommended disapproval. Now, that application was withdrawn by the owner of the property at that point and then refiled this year. So the neighbors have been through this twice in the last two years, going through the Planning Commission and coming back to you. Now on pages 10 through 15 of my handout, I just give you the history of this property right now. I do need to note that the permit has been rescinded. They have been cited for two violations. Mr. Murphy, I'm sorry, but I'm not going to allow that. That's not relevant. Okay. I needed to show how they're selling cars on there now illegally. Present use is not at issue. And I ask you to move on. Okay. I'll move on. The property was divided at some point. and the problem we have with this is the the issues it has with the use of the property I think mr. Sun will will talk to you a little bit about the uses on the property but having the half of this planned center being converted to car sales and half of it being used as a neighborhood shopping center presents a great conflict and that is that again mr murphy i believe that goes to use it does not go to the question of whether there's been a significant change well it goes to the question of whether it's appropriate to take off this condition and it's my understanding is that that the present use of the property is not at issue no i will i for the sake i will say the future use of this if this condition is taken off, the future use of this property will result in a – the taking off this condition is inappropriate or improper because future use of this property for sale of automobiles will destroy the shopping center next door, which is a neighborhood shopping center. And I'll repeat, that right now is not what is at issue. So please proceed. It makes it an issue, Mr. Chairman. I don't think I can fully represent this case if I don't tell you how selling used cars will change the character and make it inappropriate to remove the restriction on this property. Allowing an additional use directly impacts neighboring properties. and the ordinance says they have to show that it is appropriate to remove this condition. Even if they've proved that there are major changes that weren't anticipated, that still doesn't get them home to require you to change this conditional zoning restriction. Please proceed. And I'll summarize it quickly, and that is that in having automobile sales require most of the parking space to be taken up with inventory. Automobile sales also require three other cohorts to be parked, and that is employees, customers, and delivery people with trucks and with delivering cars, delivering supplies if they're going to work on the cars and that sort of thing. With one entrance point coming in and out, that is going to create a difficulty for the continued vitality of the neighborhood shopping center. If there is no place to park for auto sales and they park in front of the sub, Penn Station subs, or the tax preparation service, it is going to destroy the vitality of this neighborhood shopping center. People can't walk to this shopping center, and that's because there's a storm drainage behind it. When people come to get their dry cleaning, they have to drive here and park. Any impact on the parking area of this property will be extremely negative and will be inappropriate and improper to remove the condition about not having used car sales on half of this property. I feel it has to be all or nothing on this shopping center. If they're going to sell cars on it, it needs to be sold on the entire shopping center because that way they can control their parking, they can have their customers park wherever. if you if you only remove the condition on one half that's putting a car sales and a neighborhood shopping center together trying to fight over the parking again mr murphy this is projection about what might happen i'm going to ask you to move on okay i'll move on thank you mr chairman Well, the conditions were imposed in 1988, and if you can go back to my handout of showing the 1988 Planning Commission approval, staff recommendation of approval on page 3 and page 4. the reasons they did this was the close proximity of residential uses has that changed absolutely not the residential uses in elkhorn park are just as close as they were back in 1988 31 years ago as they are today. Been absolutely no change in that reason. North Broadway is the other reason, and either of these stand on their own. You can find one or the other. You don't have to find both. The second reasoning was North Broadway is a major entrance into the community. Use restrictions as proposed will ensure that the development is an asset to the image and visual quality of the community. The only argument I've heard on that is to show, well, you have to look at are fees coming in the community so might as well look at used cars on the other side well that's i think a defeatist attitude on what the planning commission was attempting to accomplish back in 1988 by making this prohibited in this use again there's also a a standard in zoning that ul have the authority to turn down a request unless there's a compelling need shown for it i don't think there's been any compelling need shown for additional sites for sale of vehicles in this area there is no dearth of locations on north broadway and new circle road where a person can buy a vehicle on this property there's no need for this conditional zoning restriction to be changed again the planning commission looked at all these they considered the staff recommendation and they considered the conditions on the site. After a lot of discussion about this, after a lot of discussion, they voted by a vote of 5 to 2 to recommend disapproval, really for the same conditions that the staff had proposed a year before in 2018. They recommended disapproval of it. We want you to follow the Planning Commission recommendation. They had a very detailed knowledge of what's going on on this property. They have detailed knowledge of the area, and they felt very strongly that it was not appropriate to remove the conditions on this property. Mr. Chair, I have also handed out to you, at the request of Neighborhood Group, a set of 23 letters that have been put in against this use. I want to make sure they're included in the record. along with the handout I gave you and the photographs I gave you. Mr. Walburn has argued that by looking at one house, that since the tax assessment has gone up on that house, it hasn't hurt the neighborhood. Well, again, I guess if that's the case, we shouldn't be looking at that because it's anticipating the use that's already there. But there have been no sales. All tax assessments have gone up through the years, and the fact that one use has not lowered the value without any sales does not mean anything. And it's not just the value of property that's the consideration here. It's the impact on the surrounding neighborhood uses, both my client's use and the Elkhorn Park uses, that you need to look at, the people who are closest to this and who are here tonight and who will be discussing this with you a little further. I want to, Mr. Chair, you got me a little off track in my presentation. I want to just take a second to go through this and make sure I haven't missed something I wanted to tell you when I was doing that. So I'm going to take just a second, if I could, to leaf through my papers. And it was certainly within your purview to get me off track on my presentation. I'm not questioning your authority to do that. But I do want to just check here for a second and make sure that I've covered all the points I wanted to cover with you. And I've got a couple concurrent outlines here. Again, when you look at the ordinance, it's not only if there's changes. It's not only if the area has changed, which I don't think it has. I don't think there have been changes. I don't think the area has changed. But you have to make a finding that this has so substantially changed this area that the restriction is no longer appropriate or no longer proper for this property. I think there's been no showing at all that this restriction on this property is no longer appropriate for this property. I think it's fully appropriate to still protect the Elkhorn Park neighborhood behind there. And I think it's fully appropriate to do something else which wasn't in front of the Planning Commission in 1988. That's because my client's property and this property were one development at that point. The division of the property itself later on is a major factor, which I think goes the other way, makes it show that that condition, which the Planning Commission imposed in 1988, even shows to be wiser and more farsighted today than it was back in 1988 because of the difference in uses on the two sides of this one time, one development, now two different developments. Again, we think there's no need for this. It doesn't comply with the ordinance. and we feel that it is fully appropriate, those conditions are still fully appropriate to be on this property today. We thank you very much and we'd be happy to answer any questions you all might have. Thank you. Petitioner, rebuttal at this time? Cross, I'm sorry. Okay. I have a number of people who are signed up for public comment. So before I ask for staff's additional comment, I'm going to... Mr. Murphy, go right ahead. That is that the specter of adult uses on this property was raised during the petitioner's presentation. That is that I suppose if this condition isn't changed, there will be adult uses on this property. Adult uses cannot be put on this property, even though there's no condition. And that is because in the B3 zone, there's a spacing requirement. you cannot put adult uses within 500 feet of a residential zone this is within 500 feet of a residential zone i wanted to clarify that because that's a red herring issue okay thank you i have a number of people signed up you'll have three minutes for your comments if you want to yield your time to someone else you can yield we can have one person speaking up to nine minutes if two other people yield their time i'll call you in the order in which i have listed on the sign-in sheet i ask you to come give your name and address and then whatever comment you have first name is m.a rogers welcome can you hear me my name is m.a rogers i go by the name of missy rogers i live on dover road since 1973. uh one uh thing that wasn't said before all that uh came in was the days in used to be down there on North Broadway. Does anybody remember that? Across the street from, Richard does, across the street from the Congress Inn. How I got involved in this is that I am a part of Elkhorn Park Neighborhood Association and sometimes when people won't do things themselves they take it to the attention of someone who they think will. The biggest problem is not only with this, it is how this business is handled. I'm sorry, Ms. Rogers. Is that it? It's not it, but I ask you not to speak about the nature of the business at this point. Okay. Okay. I just want to say that cars are Randomly, can I not say that? I'm sorry, but it's not about the present use. It is about the question of whether there's been substantial change or whether there would be. There is one. What I'm trying to say to you is that they haphazardly are parking cars. They're parking in the right of way. They're parking. I understand. I understand. I have complained to the city about this. Ma'am, that's not what is issued before this body. I'm sorry. I apologize. It's not good down there. Thank you. Next is Larry Parks and then Edmond Royce. My name is Larry Parks. I live at 1716 Hotthorn Lane, right behind the car lot. I've been there for 24 years. When they had the car wash, I never got any sleep, because they had cars there all the time. Loud noise, and it was worse. And I talked to the neighborhood associate, nobody did anything. But since the car lot's there, and I like it, I have no problem with it. I live right behind it and I have three German Shepherds back there. There's no noise. They close it and open up at nine and close at six. And I wish it would stay. I have no problem with it at all. I'm right behind it. Thank you very much. Thank you. Vice Mayor, I'm trying to figure out if a comment like that, which I appreciate can be made and it's a positive comment, how can we not accept a comment that's negative about the business? So. Because they're both about the nature of the business. I understand. I was waiting to see where he went, and it was a very short comment, and so I did not interrupt him. Well, I'd further argue that I'm not the attorney. Sorry, I'm going into mode. But even some of the, again, on either side, some of the information that's been introduced, the signatures, petitions, whatever, are still talking about how good or bad this business is. So I would deem that all of that is irrelevant if that's the rule we're going to use and should perhaps be stricken from the record. My understanding is that we don't have a procedure for striking things from the record. I'm trying my best to be respectful of the people and what they want to say. But my understanding is that the present use is not relevant. If there's been abuses, that's not relevant to what we're supposed to be discussing. I'm trying to be restrained and fair as best I can. And I ask my colleagues to allow me to do that. I'll take one more comment. Council Member Maloney. I mean, I'm not trying to mess up. But to me, you would be correct if they had put nothing on that property and came down here. Nobody could discuss it. My question is, if they've been doing it for two and a half years and we've got all these citations here. Mr. Maloney, I'm sorry. I'm going to rule you out of order. The question of the present use in those citations is not at issue today. I mean, I'm trying to figure out why they can't speak what examples. I mean, if they were to get out of it. I'm going to ask Law to give us some insight on to what is and is not relevant at this point. I think that you have to go to the ordinance, which is 67C1A. And it talks about what you have to find in order to be able to change or modify these conditions. and the things that are in that ordinance talk about a major change of economic, physical, or social nature on the subject property or within the area in which the property is located, which wasn't anticipated at the time the binding restriction or condition was imposed, and which has substantially altered the basic character of such area, making the restriction or condition inappropriate or improper. So there's going to be a fine line there. I think because some activity has been going on there, there can be some discussion as to the activity as it relates to the use and impacts the neighbors and the roadway because those were the restrictions that were initially put on. I think the concern here and what the vice mayor is trying to avoid is there are some other actions that are pending relating to this property for other things that aren't relative to those two particular factors. So those things would most likely be out of order. But to the extent that people are relating things to the use that is impactful on their neighborhood or on that roadway, which is why those conditions were put in in 1988, I think there's some latitude to allow it. But we don't want to get too far afield on whether there's been violations, whether there's been interactions, you know, that aren't permitted, those types of things that don't go to those two factors. if that makes sense. Okay. I have a bunch of council members signed up for comment. I'm going to ask if they're still relevant. Council Member Evans. Ms. Wade introduced information. again, into the record about the behavior or the conduct or results of the business's conduct. Yes, you talked about a permit violation. So that was introduced into the record. I think it is fair game if we want to ask about that or if someone wants to comment about that. I don't see how we can get around that since it was introduced. I don't think I mentioned a permit violation so much as the city issued a zoning compliance permit in error. That was our error. And then we had to contact, there was a complaint. We had to, after doing research, we had to contact the property owner and rescind the zoning compliance permit. and we gave them several options to move forward and you further said that they were still doing whatever they were directed not to do that's not a characterization that that's a fact so i guess that's what i'm just trying to get to that that information is operating the use period Senate in violation. I think that was being given to you as a matter of historical information, and the reason why is because then you did also hear from the petitioner's attorney that they got a zoning compliance permit and operated, and so I think it was more of an explanation of trying to get you up to speed on what historically happened and how those things happened in a chronological order. the zoning compliance permit was issued in error initially because the zoning restriction wasn't identified immediately from 1988. But when it was, then the owner was notified at that time that that restriction was in place. So the compliance permit had to be issued in a different, rescinded in part, and told what you could do based on the restrictions. Right. And those restrictions have not been complied with. that that's fine and i understand that but i guess going back to what my original thought was that i believe the comments again whether good or bad about this business are probably social in nature and and should be allowed Well, we seem to be in a gray area. I'm going to do my best going forward to be as careful as I can, but the ordinance is up on the screen. And it's about changes in the area which were unanticipated, which would make this present zone, the present restrictions no longer applicable. That's basically it. It is not about the present use of the property. And I don't know what else to say. I'm going to ask people to respect that. Council Member Brown. Vice Mayor, maybe if I interject this, it will be helpful. And I'm just going to say this as straightforwardly as I know how to say it. When you all make your decision tonight, whatever that is, the ordinance requires you to make it based on looking at the 1988 restrictions, looking at whether or not these things have changed or altered on the property or in the area since those 1988 restrictions were imposed and not based on any kind of violation, not be swayed to make your decision based on whether or not there's been a violation by any party. In other words, just looking at that. Now, obviously some of that might leak in, but that's the reason it's written that way, and that's what the vice mayor is trying to get at, that you're considering things that relate to that and not to whether somebody's conduct, that weighs into making your decision, that would be inappropriate based on the ordinance, if that helps. Thank you. And what I'm trying to do is limit testimony to what is relevant to that decision. And I'm asking people to limit their remarks to those basic parameters. Councilmember, you going to punt? The only thing I was going to say, Vice Mayor, is I think we all understand what you're trying to do and trying to keep us focused and keep a narrow focus on this thing. I think what's throwing it off is that there has been a use at the property that is showing or it's identifying an impact while the condition was put on there anyway. So that's difficult. I think we just have to try to keep folks focused on what is pertinent to the decision that we have to make tonight. So I think it's going to be tough, but I think we still try to proceed that way. Thank you. Thank you. I have more people signed up. Edmund Royce and then I'm having a hard time with the next person is it a Harmony I haven't got it I can't read the handwriting I'm sorry go ahead sir oh yes my name is Edmund Royce I live at 1702 Hawthorne Lane right behind the establishment I've never had an issue with them I don't see any problems. I drive by there every day. It's quiet. I don't hear any cars, racing motors or anything. So I just wanted to say I have no problem with it. I don't see any problem with it. Okay. Thank you. The next person I've got on North Broad. Is it North Broadway? 170 North Broadway? Hammond or Hammond? I put my name down. I'm the general manager for the business. I put my name down in case the lawyer needed to ask me any questions or clear up some of the issues. Okay, thank you. next is mr and miss powell give your name and address please okay hi my name is krishan powell i am a current employee of 6k under a prior employee of Edwards dry cleaning right in the other shopping center being an employee I don't see a problem being a prior employee of Edwards dry cleaning there was never an issue there the majority of the customers that we received were people from 6k and under auto sales okay thank you next is Is Cassandra Spiker or Cassandra? She's left. Mr. or Ms. Peterson? Vice Mayor, I just have a quick comment. Are the comments that we're hearing from the folks signed in, is that public comment or is that testimony? How is that categorized? That's testimony. That's a part of the record, that they are support or opposing the issue before us. Okay. And I'm now, if I'm erring on the other side, I'm sorry, but we're going to try and move this thing forward. And I think that's fine. The only thing I would ask is if, just because I feel like we stymied some public comment or public testimony, that maybe we go back and let Ms. Rogers share some of her comments and try to keep them a little more focused, just because I think it's important to have everybody speak to the issues that they want to speak to. I'll honor that request. Ms. Rogers. Thank you. I appreciate it. Leaving Dover Road and proceeding to go down North Broadway on a Sunday morning to church, I see all of these cars. What I'm going to tell you now happened over and over and over. The disregard for the city when parking is in the right-of-way, when it's in the common grounds of vehicles that are entertainment. I'm not real good with the word. I guess you get on it with four wheels and rip around someplace. But that's what they have parked down there. There's never, they've been called. I've called to the city. There has never shown any respect. They take them out. They put them back. That's all I want to say to you. The same as I have said to Mike Salash this afternoon, there's no respect and it's a big, big deal. Thank you. Next is Charles Hite. Oh, I'm sorry. Mr. Peterson. Ladies and gentlemen, council members, good afternoon. My name is Peter Sand, owner of 1719 North Broadway, which sits next to 1709 North Broadway. And I do not know who gives them the authority. The 6K and under has been operating the business as a car dealership in the last two years without an occupancy permit, without a sales permit, and without any kind of respect to the current existing zoning restrictions. And I bought this property last year. When we bought this property, we did our due diligence. We talked to a zoning and planning commission, and we talked to the previous owner, and we were confirmed that the removal is already cleared. Our buying decision on this property is based on that this removal is no longer valid. And I want to let you know that this removal will impact our business adversely and irreversibly. And it will shut down our shopping center down the road. And also, the parking lot between our two buildings, there are four parking lots between our two buildings, which were arbitrarily assigned by the previous owner to be used by 1709 in order to get a permit to be a car wash. Right now, Mr. Schloss put five cars on the four parking lots, which prevent us from even throwing the trash into the dumpster and prevent the clock. Mr. Sin, I'm sorry. I'm sorry. As much as I'd like to allow you and to allow everybody to have public comment, this is about... Yeah, I'm going to touch that part, sir. Yeah, this is not about the present owner. Okay. On the planning zoning denial in the last two denials, last year and in August, in these two denials, it clearly stated only when the residential property of Elkhorn subdivision changed to commercial, and then this zoning restriction can be lifted. But so far, the Park Elkhorn subdivision is still residential. It's not commercial. And also, there is no physical economic and social change to justify this removal because we also, all of the people opposing to it, are part of the society. We are standing here for the two hours. We are here to oppose to it. This is the part of the society. We are opposing to it. And thanks for the denial by the Planning and Zoning Commission last year and this August. You keep the property and the vicinity neighborhood in peace and tranquility. I implore you, council members, please veto their request and keep the property and also vicinity business and also neighborhood in peace and tranquility. And your denial is greatly appreciated. Mr. Slarch, last time, after we have the period, he's just set. Not about an individual. Okay. When we stand outside, he approached all of us. He said, if you continue to oppose to it, I will put a... Okay. I think you get the point. Without entertainment. Thank you. Thank you. Thank you. That's all I needed to say. Thank you. Charles Hyde. My name is Charles Hyde. I'm at 929 Aurora. I'll try to keep these comments limited to the question at hand. I do want to say I appreciate Council Persons Evans' comments. I greatly appreciate it. A couple of points. I think it's inappropriate to have one set of restrictions that don't cover the whole property, and this wasn't one time, one property. And the other thing that I implore you to do as council people is to respect the wishes of your planning commission. They are experts in the field. They have studied this way more than you all have had time to. I know you all have a lot of other things to do. That's their major civic function. is to look at decisions and try to make the best decision that they know how for the community at large. And their vote was not close. Five to two is an overwhelming decision. So I hope as council people that you all will respect their expertise. Thank you. Thank you. Next would be, is this Browd, Dan, Brandon? I'm Brandon Montgomery. Y'all wanted to keep it simple about just that, so mine directed a little bit more towards business. My comment directed more towards business than it did. I'm sorry, I'm having a hard time hearing you. My comment. Okay, I get it. Thank you. Next, Don and Dan Forrey, if you both wish to speak, you'll have three minutes each or you can have three minutes. Good evening. My name is Dan Forrey. I live at 1501 Muir Station Road, Lexington. My wife, Don, and I are former owners of the Little Strip Center at 1719 North Broadway. we're the ones with the history on this stuff we've owned we owned that property for about 10 years we sold it to Mr. Sun about a year ago we operated without incident for a long long time what I want to speak to really is what I think is the wisdom of the zoning restriction that's place right now i think it makes a lot of sense uh not only did it protect the corridor and the community i think you need to think about maybe it was there to help protect the other properties that are underneath that restriction like that little shopping center that contains the seven nice operating businesses one thing i can tell you for absolute sure is when the car lot opened and began doing business, the ability of those property owners to enjoy their businesses diminished significantly and immediately. I think that that zoning restriction was placed in the first place because whoever framed it could see that, not just because of these particular operators, but because of the nature of those types of businesses. It was wise. It protected the businesses. It protected the neighborhood. We talk about what's changed. Well, there's no question that the area has been overwhelmed by vehicle sales. Now what we're talking about is finishing the job. One thing that's happened in the meantime since that zoning restriction went in place is this little shopping center grew there. Made seven nice businesses. I'd like for you people to think about protecting those businesses. You know, I'm sorry that the petitioner did not do their due diligence before they bought that property and didn't realize there was zoning restriction. That's regrettable, and I'm sorry about that. But do you folks really want to disturb all the other businesses to right the wrong that they made? Please think about it. Thanks. Thank you. Next is Diane Cahill and then David Danforth. Vice Mayor, Council Members, my name is Diane Cahill. I live at 534 Grantchester, which is right around the corner from this property. We talked about the corridor, and it has changed. It's cars everywhere. If it's not RVs, it's cars. And it's unsightly for somebody coming into our city. I represent, I am a member of the board of the Elkhorn Park Neighborhood Association, vice mayor, vice president. Sorry, I gave myself a promotion. And I know it's the majority of the neighbors this has impacted negatively. Thank you. Thank you. David Danforth. And then Brenda Cochran. I'm Dave Danforth. I live at 525 Dover Road. And I moved into the house in 84. and at that time the gas station was there and the empty lot was there and the fire department was there and then along came that first part of the strip mall there that Mr. I forgot his name now but he owns and I envisioned that to be what is extended down to Grantchester You know, it was just the thing to do along there. An auto sales spot is different from a mall. And it's just that difference there. You know, whether it's cars or RVs, if they wanted to put RVs, I'd still have an objection to it. I don't like the RVs, but they were there. They were there a long time. So that's all I've got to say. Thank you. Brenda Cochran. My name is Brenda Cochran, and I live in Elkhorn Park. I've been there about nine years. And what I've seen happen there has happened over probably the last two years. I have some pictures up here. I come out of my neighborhood on Canerun Road. This is Canerun Road. The parking lot is behind this white truck, which is actually parked in the road. Part of it, two wheels may be in the parking area of the 6K and under. And what I do for this, I want to show you that this is an everyday occurrence. Cars turning from Broadway onto Cane Run, it's taken up their turn space, and you have to sometimes go over in the other lane. It's dangerous. Ms. Cochran, again, this is about prevailing conditions that you're describing to us. I understand that there's a problem there. It's not relevant to the question of whether there's been a substantial change or not in the area. I thought we were talking about changes. The changes that I've seen happen since the 6K is here, and I'm talking about preservation of our neighborhood, and I'm talking about danger on North Broadway. I have a picture of an accident there that happened, and it involved one of their cars. I'm going to rule that out of order. I'm sorry. That's just not relevant to what we're discussing. Okay. Thank you for hearing what you have. Thank you. Carter Crump. Hello, my name is Carter Crump. I live at 1720 Woodlark Avenue. I live in Elkhorn Park, probably the oldest neighborhood outside New Circle Road. It may be older than a lot of them inside. It's been there a long time. As the council for the shopping mall said, they had the zonings in place for that business area along in 1973. And that had restrictions only on a couple other places. And before that, those were actually residential because they had planned on having residences all the way to that gas station. The significant change that has occurred in that area is minimal. I mean, since 1988, Elkhorn Park is still there. We're still there. They're still raising our taxes on our properties, possibly more than what we're really worth. But anyway, it has not changed. The recommendation for me would be to follow the recommendation of the Planning and Zoning Commission, which was 5 to 2, 70-some percent difference between those who objected and those who went with it. I believe that leaving this in place will significantly impact my quality of life, my health and safety. And this was all projected out during that meeting and those hearings that we had, the planning and zoning, where we were able to really show what these people and how they operated. It's not what it looks like. It's not the fact that it's a car lot around other car lots. For us, it's how they do business and in ways that is immeasurable. So Elkhorn Park's been there way longer than possibly many of you have been alive. 1949, 1948, had dirt roads. It has not changed. We have done everything we can to keep up our properties. Our property values is beautiful. It is the best place on the north side. Don't ruin it, please. Thank you. That's all who have signed up to speak. This petitioner wished to cross-examine at this point. it's gonna pass I think that would allow us to move to staff if you have additional comments at this time vice mayor Kaye members of the council my only rebuttal comment would have to do with the intent of the staff recommendation in 1988 and then kind of the intent of the planning commission in making their recommendation. I think there was a general sense and concern about automobile sales and other vehicle sales in the area, and that was why the staff recommended that that restriction be put in place. During the course of that meeting, Mr. Walburn provided those minutes from 1988. The applicant at the time didn't specifically object to this particular restriction. He did actually object to the billboard restriction and the kennel restriction. There was further discussion of the restrictions throughout the course of the meeting, and the neighbors in Elkhorn Park at that time asked that the Planning Commission keep the restriction in place. And so when they voted, it was a recommendation to approve the zone change with the conditional zoning restrictions. It was a 9-0 vote. So they heard both sides, the applicant wishing for no restrictions and specifically mentioning two, not this one though, and then the neighbors asking for the restrictions to be put in place. So I think there was the intent to protect this area from this type of use expanding down Broadway. Thank you. There's going to be an opportunity for both petitioner and opponents to rebut. Before we do that, I've already had a request for a break. So we're going to take five minutes, and then we'll come back and get to that part of the hearing. And we'll lose you. Thank you. Thank you. Members, I'd like to get started if we can. Thank you. Okay, the next order of business would be rebuttaled by the petitioner, Mr. Walbury. Good evening again, everyone. I'm a little bit at a loss of where to go on this because I was concerned about irrelevant evidence coming in and come in it has but I'll try to constrain my comments to what it is you're supposed to consider with limited reference to what I think are extraneous legal extraneous to the legal determination that you're making I've asked for two slides to be put up here only because this was directly addressed in presentation. I didn't bring this up in my case-in-chief because development plan issues are really beyond the scope of this, but you've heard innumerable testimony about the appropriateness of this condition because of the impact on the shopping center. So I want to show you something. Per staff's request, which the applicant has agreed to, there's a curb to be installed in this area to prevent cross-access between the two. So this entrance now would only serve the shopping center. So we talk about appropriate, inappropriate, whether the condition should remain or not. I don't understand the argument about how splitting these conditions between two properties has any bearing on this decision at all. But there were steps taken to address the concerns of the adjacent shopping center as part of the development plan process. But as I told you at the outset, this is the only evidence you really need in this case. and let's walk through that legal requirement very succinctly and then talk about some of the evidence you've heard from the opponents and see whether it should really impact your decision or not. The change has to be physical, economic, or social. I'll be the first to admit, I don't know whether to call this a physical change or an economic change. I would say that it's an economic change because the nature of the commercial uses in the corridor have changed from non-RV and vehicle-centric to vehicle-centric. But an RV is a big, hunking piece of machinery that I think you could also say is a physical change. It certainly is a physical change to the drivers on North Broadway who will be coming up and down the road. They didn't used to see RVs. They do now. I think that is a major physical or economic change. Pick your poison on that one. On the subject property, okay, we don't get that one, or in the general or in the hold on let's get the wording exactly right uh or within the area in which the subject property is located okay we've checked that box there's no argument that these change in uses are not within the area of this location which was not anticipated at the time the binding restriction or condition was imposed in the planning commission meeting minutes which are the only place that this was ever discussed there is no mention whatsoever of any kind of anticipated auto sales coming to the area. These changes were not anticipated. anticipated at the time and it doesn't make any sense to restrict what at that time was 1.6 acres of property from automobile sales if this was anticipated to come that's lunacy that is lunacy now Has it substantially altered the basic character of such area making the restriction or condition inappropriate or improper? Again, I turn back to what is the wisdom of removing 1.6 acres of property from car sales when this is what was going to end up happening on the North Broadway corridor? It was not anticipated. It's a substantial change. And you can't credibly argue that restricting vehicular sales is doing anything to protect the neighborhood or anything to protect the viewshed when this is what is on the ground now. That's just absurd to me. Now, Mr. Murphy suggested to you, well, I think the Planning Commission did anticipate it. I think they did anticipate this, and that's why they put this restriction on. Give me any evidence at all that they anticipated it, and I will withdraw that argument. There is nothing, I've read that those minutes numerous times. They did not anticipate this coming up. There's no evidence to support that assertion at all. Where's the proof of this impairing the shopping center? The shopping center sold in the last nine months. The shopping center sold in the last nine months. How, if the shopping center, someone wanted to buy it, someone could find a willing buyer, how has it impaired the neighboring shopping center? Which I don't think is relevant to the consideration at all, but that evidence has come into the record. There were a number of neighborhood comments about things that I don't think you can consider. I understand why you want to hear from your constituents. I don't fault you for that, but this is a legal proceeding. It has legal import, and so when I'm appearing upset about that, I just want you to know I'm trying to protect my client's property interests. I'm trying to protect their rights from what I view as testimony that is not particularly germane, in fact, not to be considered in your decision. That's why, to the extent that I get a little emotive back there, please don't take it personally, it's frustrating because this is a very narrow legal proceeding, and I feel like sometimes we get a little far afield, and I fear that's exactly what happened to the Planning Commission in their deliberations. They heard a lot of evidence that didn't have anything to do with what they were considering. They knew it was coming to you all anyway, so they punted, and that's why we're here today. The only thing I would say in relation to the neighborhood comments only as a general comment is the two folks that came and spoke to you who lived on the property that actually borders this were both in support of this. the folks that have objected are not immediately adjacent to these properties. And the final thing I'd ask you to consider is what is saying yes do versus what is saying no do? What is saying yes do versus what is saying no do? This property is not going to go vacant. It's not going to be undeveloped. It's B3 property on North Broadway. Something's going to happen on that property. The reason I wanted to show you the development plan, and I keep going the wrong direction, I apologize, is only because these are actually improvements that will help facilitate the better functioning of these properties individually and collectively as they move forward. Approving it has positive value. We've agreed to the conditions that your planning staff wanted, concerns that they had about enforcement and traffic safety and functionality and connectivity between the lots. We've accommodated the planning concerns. and i only bring that up because we've heard a lot about the interaction of these properties again i don't think it is particularly relevant to your consideration but since that evidence is in the record i do have an obligation to provide something in rebuttal so in summary i i understand that this is a a unique animal it i joked in the planning commission it looks like a duck it quacks like a duck it walks like a duck but it just ain't a duck it's not it's not a zone change you don't make the same considerations you make on this proceeding as you would with a zone change i've asked you to constrain your decisions to what the ordinance actually requires you to consider and i would suggest to you that the entirety of the evidence that's been presented need no go farther than these two photographs there's been no impairment to the neighborhood i've given you demonstrative evidence that there's no impairment to the neighborhood neighbors have come in and said that they the people that live next to us that they don't feel impaired and the view shed argument needs to go no farther than right here i apologize that we were not able to keep our full compliment of council members here i really wish they could have voted but i appreciate those of you who were able to stay thank you thank you mr murphy rebuttal evidence this will be followed by summation so if you keep it to rebuttal and then you'll be next on summation or you can combine them if you'd like and i'll have mr walburn summation after that just a couple of rebuttal items you've heard plenty back and forth you've seen all what all the issues are the development plan which was up in front of you i do need to point out it's in the record that was not approved by the planning commission it was postponed indefinitely by the planning commission there's been no action on the development plan that mr walburn showed you on that he also said that the fact that the shopping center has sold in the last five months somehow supports his case as mr sun testified when he was up here he only bought the shopping center after talking to the staff and being assured that there was a condition prohibiting sale of automobiles on both parts of the shopping center in summation i'm going to be short on here but i think the the well mr walburn said and this is part summation part rebuttal that the fact that the planning commissioner council in 1988 didn't talk about the possibility of auto sales in the area means somehow that that's not something that they were considering on the opposite they knew back in 1988 that auto sales were allowed on all these parcels around there they knew what the ordinance had they knew that all that property was on b3 they knew that automobile sales were principal uses in b3 just as they are today they knew that all all those lots could be turned into automobile sales in their wisdom your predecessors on this council back in 1988 in their wisdom they put a condition on there that this not be used for automobile sales both the property that mr Walburn is representing and the property next door that I'm representing. In their wisdom, they decided not to do it. And in the planning commission two months ago, in their wisdom, decided that it was still not appropriate to change the condition that prohibits automobile sales on this property. Now, whether you feel there's been a change in this area or not, I don't feel there has. I feel that there's been no change because back in 88, all this land that's used for RV sales was properly zoned for RV sales and any other use. Some of it wasn't actually being used for that, but it was zoned for that. That was a legal use. But whether you think that's a change or not, you may think that's a huge change. I don't think it is looking at the planning program on it. But regardless of whether you think it's a big change or not, you have to find that it has substantially altered the basic character of the area, making the restriction or condition inappropriate or improper. You have to find that the restriction against selling cars is no longer appropriate or no longer proper. On the other hand, I feel that both your predecessors in 1988 and this council two months ago did the right thing. It's still appropriate in 2019 to have a lot on North Broadway that's not used for car sales. amid all the car sales out there. It's still appropriate to have some place that's not being used for car sales. I think that's an appropriate planning doctrine, that you don't have the same use everywhere in the neighborhood, that you still do have uses, you still do have places that can be used for, for instance, neighborhood shopping centers without having car sales on them. And I think it's still appropriate, and it's very appropriate, because the council back in 88 imposed this condition on both sides of this center. I think from the testimony you've heard, it's still totally appropriate, and we feel totally necessary, to keep that same condition on both sides of this shopping center. Thank you very much. We appreciate your attentiveness, and we hope you'll vote to affirm the Planning Commission action and keep the condition on this property. Thank you. Thank you. At this point, council members, if you have questions of staff, petitioner, opponents, anybody else, please log in. Or if you have comments, council member Gibbs. This one works. Okay. That one works. I have a comment, a question for Mr. Walborn. and your case doesn't fall on this or stand on this but I was a little bit disturbed by the letters of support you passed out and I'm kind of kind of puzzled by them and why you would send those letters out and I'm going to ask you you know how they were acquired when I looked at the most of them aren't people who live very close by out of all the letters I can only find four that addresses were on the map that were given to us by the area some are relatively close by but some of them are on the other side of far enough away that they're on the far side of what is that russell cave road which means they probably use russell cave road primarily they have no direct contact with that uh one of them is 215 north broadway oh and by the way you know the heading for the letter says quote i live in the neighborhood behind blah blah blah 215 north broadway certainly is not three people gave no addresses several of them were from asbury asbury lane which is a bit of ways and one person spelled it a s h b e r r y so apparently they don't know how to spell their own uh their own street i was just really puzzled by that how how are these acquired i can't testify to that because i didn't acquire them they were handed to me when i got here tonight to submit for the record well pretty it seems to me they were solicited but i can't say you don't know where they came from i don't know where they came from we'll just leave it at that but i just found them kind of puzzling yeah i would expect if you want to bring in letters of support for a certain thing it would be primarily from people who live close by you know these letters primarily in fact the exceptions are close by i just want to make that point was wondering how they were how they were accumulated i didn't accumulate them and and would note that two immediate adjacent neighbors actually came and testified. And again, the case doesn't stand on this by any means, but it's just kind of a puzzling thing for me as I flip through those letters. Thank you, Vice Mayor. Council Member Gibbs, I believe, or Mr. Walbert, I believe your client was interested in responding to that question. Yes, we actually, a lot of those, like Cain Run, if you notice, it runs all the way to Russell Cave Road. So the neighborhood behind us is impacted by this because they passed through Cane Run and they passed through the property at 1701 North Broadway, which is our car lot currently. So they are affected by it. And a lot of them, they're not close because they're from certain individuals. We actually went to the fire station next door to us. And while they may not live there, but they're actually working there, and they work at the fire station. So their address might be closer, but they work in that area. And a lot of the people actually work in the shopping center as well. so if the address is not close it's because individuals that work in the area but not necessarily live there well the four firemen identified the four fire people identified themselves as such so that accounts for that but when the when the heading says again we ask anybody i live in the neighborhood behind you know the place and they don't you know we didn't want to come up to every person and have them type a letter so we actually typed the letter and we asked them to read it and if they approved it they signed it which is all their signatures why didn't you have a heading that was some approximation of accurate oh i mean russell cave is behind our neighborhood these people are beyond russell cave the other side of russell cave we had certain individuals who lived directly behind us that came here so and we had about another 40 letters that were sent to the email other than the ones that we be brought here today so there was quite a bit of support i mean i'm sorry if you don't think it's absolutely accurate directly behind me but i'll just say they are affected by the area okay thank you thank you thank you vice mayor minus of staff i noticed from reading the the minutes of the meeting that that day uh the staff recommended postponement and i just wondered what was the what went from postponement to the commission taking it up and then finally voting against your recommendation it just seemed different to me i believe the agenda for the meeting that day still showed the staff recommending postponement the agendas are released a week ahead of the planning commission meeting so within the week prior the staff made a substantial recommendation because the applicant had modified their development plan. So that obviated the need for a postponement. Right. Then we made, at the meeting, a recommendation of approval. And then they kind of went the other way. Thank you very much. Thank you, Vice Mayor. Thank you. Thank you. Other Councilmembers, questions, comments? Councilmember James Brown. Thank you, Vice Mayor. My question is to the staff. The error in approving their conditional, was it a conditional use permit that was approved? A zoning compliance permit. A zoning compliance? It's a letter that says you're requesting this use and you meet the zoning ordinance for that use. Is there not something in that process that goes back and catches those conditional use restrictions? There is. This was an oversight on behalf of our staff, and as soon as it became clear that it was an error, we contacted the applicant via letter or the property owner to let them know that there was an issue. What brought it to your attention, if I can ask? Was it the transaction of the property being sold or was it neighborhood concern? It was a complaint about the use of the property. I don't know from who specifically, but there was a complaint. Okay. And that prompted the staff to do research about what the allowed uses were. The applicant or the property owner secured the zoning compliance permit, but they did not secure other permits, like a building permit to remodel or paving permit, and those might have caught the same error prior to it moving so far along. But my understanding from our information was they purchased the property prior to getting the zoning compliance permit. So they purchased it before approaching the city for their permits at all. Okay. All right. Thank you. Thank you. Council Member Evans. Thank you, Vice Mayor. Ms. Wade, I guess I have a question for you just to make sure the summary's been accurate. In 1988, this property was zoned to B3, and B3 has always included the sale of cars? Yes. The B3 zone allows car sales. Okay. And the ordinance that we've been given, that was specifically excluded for this property, right? Yes. So when you approve a zone change, we issue those, or the council issues those ordinances for that specific property and any restrictions that might be appropriate. Okay. Okay, I just wanted to clarify that that's exactly what we're talking about. So it would be fair to say that there was contemplation of the sale of car use or not, because it was in fact excluded. Yes. Okay, so, okay, all right. And I wasn't going to say thank you. That's all I had. But Council Member Gibbs did bring up a concern. And, Mr. Walburn, you started off your comments by saying that you were upset that testimony was allowed. I agree. That probably doesn't have anything to do with tonight. But, again, you entered that same information. And I'm a little bit even more disturbed that, based on the questions that Council Member Gibbs asked you, you didn't know how that information or those statements were even acquired. So I'm a little miffed that you want to come up here and brood whatever adjective or verb you said that you were doing. Because again, as I stated before, equal testimony for and against your client has been entered. And I agree. It doesn't have anything to do with what we're here for tonight. It's about the neighborhood. So I am concerned that you had about your comment, too, that you started off with and the answers that were given. But I guess my – I don't know if I have any other questions at this point. I don't have any other questions. I think I'm good. Is there a question to me in there? No. I'm not curious. Okay. No, there wasn't. it was just you had some opening statements and i guess based on councilmember gibbs statements perhaps i think those were should have been tempered a little bit based on how you responded to his comments and the lack of yeah i'll just leave it thank you thank you councilman maloney thank you i need to ask staff a question that uh i forget who it was that asked you about you all giving out and the permits how long was it before you all were contact i mean when they when you all gave it out how many days months or whatever before you realized you all made a mistake the zoning compliance permit was issued in march of 2018 excuse me in october of 2016 and it was rescinded march 30th of 2018 so it's about 18 months so you all went two years before you knew that it was in violation 18 months yes all right and it and all right that's a whole different issue. I'm not going to get into that. It's something else somebody gets into. Now, I'm going to tell my age up here and I don't want to talk about it but I have to. I was here in 1988 on this. I knew. And the councilman at that time was Bobby Flynn. Bobby Flynn. And Bobby Flynn had the same complaint that this council member has about a lot of cars being built and it's been going on for 30 years people have the same complaint about automobiles and all that so i remember vaguely not just hit this one but i remember the whole issue about automobiles back then and i think susan land might have read the ordinance at that time in 19 or maybe it was uh miss i don't know you don't have to tell gage you're still younger to me but it I think to me I don't see things I still think I can understand why we did that 1988 and he was sitting in 2019 and I think we did the right thing then to protect these neighborhoods and I still think we should continue to protect the neighborhood I understand what you all went through and I think to me you have a legit argument why you got where we are today but I think those things we need to fix and hopefully we learn from this. I do see what happened in 1988 because I had a vote on this. To me, I think we did the right decision. I think 2019, I'm glad we did what we did 31 years ago. I hate to say I'm that old. Thank you. Other council members? Comments? Questions? Would either petitioner or opponent like to rebut any new evidence that's been introduced? Okay. In that case, I will declare this hearing closed. And now it's time for council to deliberate about its findings. and which way we want to vote on this issue. So if you have a comment now, but again, this is for council members only. Would anybody like to, Council Member James Brown. Thank you, Vice Mayor. Thank you, neighborhood representatives and petitioners for joining us tonight. These things are never just that easy, you know, black and white, cut and dry. but I hope that everybody understands that we as a council do our best to make the best decision possible. From what I heard tonight, I think it's unfortunate that the petitioner got a clear bill to proceed as far as the business that they were having at that site and actually move to address some recommendations based on that information. I don't want to harp on it, but I think a lot of time has been spent by staff working on this issue. I think neighbors have been impacted by it. I think money has been spent from the petitioner. It's just all around this could have been kind of addressed early on instead of it going all the way through the process, what it sounds like twice and then coming to us just to start but then I'll speak a little bit about the area and and I'm and I'm gonna speak to something that I know and not nothing that I not something that I think that area that that that corridor in my opinion is is basically unchanged I think it's been some pieces moved around on that on that chessboard of a corridor but it has always been auto sales in that area. I remember North Broadway Auto Sales was where the RV dealership is now. I remember in 1993 I was driving cars to that dealership. The RV sales have been there as long as I can remember. I think they just expanded into new areas, but it's always been auto sales. on that side and a little bit down on the other side. I think what was intentional is not to allow intense auto sales businesses adjacent to the neighborhood. I think RV sale dealerships, I don't think it's as intense. People aren't buying RVs every day. People are buying cars every day and test driving and doing all the things that go with that. So I think it was intentional not to include auto sales right adjacent to that neighborhood. And the fact that it's been brought to our attention or what activated us looking into it was the neighbors' initiated concerns by what was going on of what was being allowed to take place just shows to me that, you know, that it's still a need to maintain that conditional use or that conditional zoning restriction in that area. I haven't heard anything tonight that leads me to believe otherwise. But I think what I have heard tonight, though, is I think we need to put something in place to be able to catch those zoning restrictions when they come up so it doesn't get to this point where we waste a lot of time or waste a lot of money and create anxiety on both ends of the issue. So I have a motion to make, but I would defer to other comments by council members. All right. I see. I see no one else signed in to speak, so your motion would be appropriate. All right. All right, I move to adopt the findings of facts and recommendations of the Planning Commission as set forth in their report, denying the request to remove conditional zoning restrictions for property located at 1709 North Broadway. So moved. Second. I have a motion and a second. Is there discussion on the motion? Council Member Maloney, if you'd take the chair for a moment, I'd like to comment. Sure. Thank you. I take my chair hat off for a moment. It seems to me that there are two really compelling pieces of argument in this whole issue. One is that that has been a B3 zone since well before that zone change was initiated with the restrictions. And so while there's been a physical change in the actual look, there's not been a use change. It's been a B3 zone for the entire period. When those restrictions were put into place, I believe the intention of the Planning Commission at that time was to protect the neighborhood. The neighborhood is not changed. And so I do not see that there's been a compelling change according to the way in which we think about that. So typically, a change in the neighborhood, which is unanticipated, would be adjoining property which was rezoned for some reason. And that's happened, and it sets a precedent. Somebody decides that it's appropriate to put a road where there hasn't been a road before, and now that changes the nature. but when absent a zone change I don't believe that that rises to the level of the significant change that would be required to eliminate these restrictions so I will be voting in favor of the motion thank you anybody else wish to speak seeing now madam clerk please call the roll Ms. Bledsoe? Yes, ma'am. Mr. Fred Brown? Yes. Mr. James Brown? Yes. Mr. Ellinger? Ms. Evans? Yes. Mr. Farmer? Mr. Gibbs? Yes. Vice Merkay? Yes. Ms. Lamb? Yes, ma'am. Mr. McKern? Mr. Maloney? Ms. Massadi? Ms. Plowman? Ms. Reynolds? That vote reflects passage of the motion. Now it would be appropriate to have a motion on the underlying ordinance. I have a motion to approve the ordinance. the ordinance. Is there a second? I have a motion and a second. Discussion on the motion? Seeing none, Madam Clerk, please call the roll. Ms. Bledsoe. Yes, ma'am. Mr. Fred Brown. Yes. Mr. James Brown. Yes. Mr. Ellinger. Ms. Evans. Yes. Mr. Farmer. Mr. Gibbs. Yes. Vice Mayor Kay. Yes. Ms. Lamb? Mr. McCurran? Absent. Mr. Maloney? Yes. Ms. Massadi? Yes. Ms. Plowman? Yes. Ms. Reynolds? Thank you. That vote reflects passage of the motion. Before we adjourn, just one final comment. Thank you, petitioner and those who are opposed for taking your time, and thank you to all the council for your time tonight. Motion to adjourn. Motion to second without objection. We stand adjourned.