Thank you. Thank you. I've already got in the cart. I'm going to call this meeting to order. It is now over. I am so sorry. We don't have a producer. Lex TV folks, we are ready to broadcast. You're alive. Thank you. We're broadcasting now. Thank you. Good afternoon, everyone. It's 1.30. Welcome to the Urban County Planning Commission subdivision meeting. And we're going to call this meeting to order right now. And first up, we don't have any approval of minutes, but I want to read off the governor's statements. Due to the COVID-19 pandemic, state of the emergency, and Governor Beshear's executive orders regarding social distancing, this meeting is being held via teleconference pursuant to Senate Bill 150 as signed by the Governor on March 30th, 2020, and the Attorney General Opinion 20-05, and in accordance with KRS 61.826. because it is not feasible to offer a primary physical location for the meeting. So first up, we want to have a, if everyone has reviewed the performance bonds and letters of credit, would you like for a motion for that? Mr. Chairman, I move for approval of performance bonds and credit. Okay, we have a motion. We have a second. We have a second for Mr. Bell. Any discussions? Hearing none, all in favor, I might raise a hand. That's everyone. Okay. Thank you. Motion passed. Next up, we have any postponements or withdrawals? Looks like we are first going to promote Nick Nicholson. Panelists, Nick, you've been promoted. If you'd like to start your video and audio, please. Good afternoon, and thank you all for taking some time. I have two matters that I would like to postpone today. The first being on page three of your agenda, item A under preliminary subdivision plan. It is MJSUB 20-4 Meadowcrest. We are still working with the staff and are going to submit some additional documentation. We would request a one-month postponement to, I believe, it's the September 10th Planning Commission meeting. Thank you, Mr. Nicholson. Do we have any questions for Mr. Nicholson or a motion for this postponement? Ms. Plumlee If you're ready for a motion I have it. Thank you Move postponement of PLM MJSUB 24 Metalcrest until September the 10th Okay, we have a motion on the table and a second by Mr. Bell All in favor, I raise a hand Okay Thank you all and also I would like to move to postpone on item five of the or excuse me page five item b on the agenda mjdp 19-74 the blackbird property we are still working with staff on the density transfer and we should have an amended development planning soon and again we'd asked a one month postponement to the september 10th planning commission meeting we have a request for a one month postponement for pln mjdp-19-74 We have a motion. Okay. Mr. Mullen. Mr. Chair, I move to postpone PLN M-Day DP 1974 Black Property Phase 4 to September 10. Okay. We have a motion second by Mr. Wilson. Any discussion to that motion? Hearing none, all in favor, raise your hand. Thank you. Thank you all very much. Have a great day. You do the same. Next, sir, we will be promoting Scott Southall. Mr. Southall, you can go ahead and start your audio and video, please. Mr. Chair, members of the commission, I would then like to direct your attention to page 5, item C, PLN, MJDP 2022, Distillery District West Unit 1. we request a one month postponement to the September 10th hearing because we did not get our notification signage up in the required time. Okay. Any discussions with the applicant? Having none, I'll take a motion for the one month postponement. Mr. Bell, excuse me, Mr. Pohl. I move to postpone PLNMJDP 20-22 Distiller District for one month. We have a motion on the table, second by Ms. Plumlee. All in favor, please, by raise of hand. All right, ayes have it. Mr. Chair, we've had a request from our staff in the council chamber to take a little bit of after each vote so that they can accurately record that in our electronic system. So thank you very much. And in the meantime, for that, I'm going to promote Mr. Murphy. Thank you. Thank you. Okay, Mr. Murphy, you've been promoted. If you'd like to start your audio and video, please. thank you mr chairman on page three of the agenda the item c at the top of the page pln frp 2035 wilson subdivision 1601 for sales road i represent the owner of that property and we need to get a waiver for that. And I was not retained until after the waiver deadline had already passed. So I'm requesting a two-week postponement on that until August 27th. Okay. All right. Thank you, Mr. Murphy. So we have a request for a two-week postponement until the August 27th meeting. We have a motion for that. Mr. Bell? Mr. Chairman, I would like to move that we postpone CLNF RP20-35 Wilson subdivision until August of 27th. Okay, thank you. Mr. Bell, are you seconding that motion? Thank you. Okay, so we have a motion and a second. All in favor, please raise your hand. Steady there. I think it's unanimous. Thank you. All right. Thank you, Mr. Murphy. Giving our staff a moment. Mr. Chair, we have one more post-pondment. Okay. I'm going to allow Rory Kaley to speak now. Mr. Kaley, you can go ahead and start your audio and video, please. Good afternoon. If we could turn to, well, I just lost it now. I know it's the Lexington Mall one. I got to find it. You're on page six? You were ready for me. Good. Thank you. Item D. Thank you very much. Major development 20-29 Lexington Mall property. Request a one-month postponement to September 10th. Okay. We have a recommendation for a postponement for one month for the Lexington Mall property. On page 6, item D, do we have a motion? Mr. Chair, I'll move to postpone PLNMJDP 20-29 Lexington Mall property for one month. Okay, thank you. We have a motion and a second by Mr. Plumlee. All in favor, please show your hand. Raise of a hand. Oh, steady. Okay, it's unanimous. All right. Thank you, sir. Thank you. Mr. Kaylee will be demoting you now. Do not see any additional hints for first government. Okay. So it looks like we're on page two. that's right we need to do that first because i didn't do that last time i'll wait until the end excuse me so we do have a consent agenda in front of us and we have several items on the consent agenda is there any members that want to speak on behalf this consent agenda for any reasons or anyone else in the public? So, Mr. Forrester, usually we read, Chairman Forrester, read the particular items. Okay. And then if there's anyone in the audience who would like to speak on any of these items, we'll need you to digitally raise your hand. And then in that way, the commission would know that one item would need to be pulled from the agenda. Yes. discussion. So there are five plans that appear on the consent agenda today and they are all development plans that have been reviewed by the subdivision committee. They were all recommended for approval so they affect how they qualify for the consent agenda and then they also don't have any further discussion items to be presented to the Commission today. So we'll start the first item is on page 6 item E, PLN MJDP 20-3030. This is for Hamburg Place Mall, Unit 1, Person 2A, Outlaw 4, and it is an amended title development plan. The property located at 1832 Alley Sheva Way. The next item is on page 7 of our agenda, item F, PLN MJDP 20-34 for Coldstream Research Campus, Unit 2B, Lot 10A. This is also an amended plan for property located at 1551 Aristides Boulevard. Our next item is on page 7, item G, PLN MJDP 20-35 for Masterson Station Center, Citation Village, and also citation flats. This is an amended file development plan as well for property located on a portion of 2679 Neastown Road and then with frontage along Abigail Way as well. The next item is on page 8 of our agenda item H, PLN MJDP 20-36 for Berry Crest subdivision lots 8 and 9. Also an amended development plan. This property is located at 241 Pasadena Drive. And then the last item on our consent agenda today, you'll probably know it has a little plus and an asterisk next to it, which means there was a sign that was posted for this property. And in addition, there's also a finding that's required by the Planning Commission for item 8, or excuse page 8 item I PLN NJDP 20-37 for Denton Farms. This is an amended file development plan. This neighborhood is also called Ellerslie at DeLong. Generally the property is located at 3785 Random Park here in Lexington. The specific finding associated with the last for Denton Farms is that the Planning Commission must find that the plan is in agreement with the expansionary master plan and the staff prepared a memo related to that that we sent out to the Planning Commission earlier this week and we should have that also on the Google Drive team. The applicant for Denton Farms did provide an affidavit that they posted their sign as well so all of those things are in order. So at this time the planning commission may consider all of these items in one motion for approval unless a commission member a member of the audience or a petitioner would like to have any of these items removed from the consent agenda for full discussion. Okay yes sir. I want us to look and see if there's anyone in the audience that wants to hear the Denton Ellens and Essendon Ethics and property I'm sorry, the Denton property, Hesley, because I was led to believe that there's some people on the call that want to hear this. So let's make sure we don't have anybody else on it. Mr. Chair, we do have three hands raised at the moment. Yes. We'll go ahead and speak to each of these three people, if that's okay, and check and see what you're here for. First, we're going to allow the user identified as Drew to speak. You can go ahead now. good afternoon my name is drew nardiello i live in the ellersley townhomes subdivision notice the posting of the sign late monday afternoon curious as to what exactly the developer is asking for in this property or i guess amendment so that can be part of the staff's presentation on that page so uh drew this will be part of the staff presentation um if you have further questions on that we can pull this from the consent agenda and ask for it to be heard let's see what the other two raised hands are but i I think that would be good for us. Okay. Thank you. Thank you. Yes, sir. Next, we will allow Quontaine Sands to speak. If you'd like to go ahead, please. I had the same question. I live in Ellerslie and I'm unaware of what the developer is requesting. I want to hear. Okay. Thank you. And next we will allow Kathy DeMarco to speak. Go ahead, please. Hi. I also had the same question. I guess I just didn't get my hand up fast enough. I'm the HOA, the main HOA's board president. So I was just wondering the same question. Okay. Thank you, each of you. Is there any commission members? Do we have anyone else? Hands raised. Okay, okay. Do we have any commission members that want to speak on behalf of the consent agenda? I'll give you a motion. And if not, we will take a motion. Okay. Mr. Chairman, I move for approval of the consent agenda as presented, eliminating PLNM JDP 2037 Benton Farms for hearing and leaves the other items with consent agenda approved. Okay we have a motion on the floor do we have a second Mr. Poe has second. Okay thank you. Do we have any discussions to that motion? Hearing none all in favor raise your hand. Okay unanimous. Thank you. So we will hear item on page 8, item I, page 8, PLN, MJD, P-20-37. Mr. Chair, while they're recording that vote, we have a phone caller. Is it okay if I go ahead and identify them now? Yes. Okay. For the caller from number 1859-447-5115, we're going to allow you to speak now. if you could please give me your name and which case you're interested in. For the caller at 859-447-5115. It looks like they have left the meeting, sir. Okay. All right. Maybe they'll come back. So, Chairman, for the three members of the public who are here presenting the Denton Farms plan, you might just tell them what it would take to the agenda. So, does this begin further on the agenda? Yes, we would start off on the agenda in the order that's been presented to us to date. And the one that was pulled off for the Denton Farms was on page 8. we got a few items in front of you one two three four there's four items that will be in front of you just to give you just an FYI there may take some time I cannot tell you how much time It just depends on the questions and how the presentation will go. So I'm just going to make sure that you'll be there on the Zoom call to get your questions answered. So first up, we will have staff reports on final subdivision plans. And we have PLN FRP-20-11. And we do have a waiver with this request today. I think that's me, right? Excuse me, sorry. Ms. Hedge? Thank you. Good afternoon. This record plaque is located at 1422 and 1422 and a half Edgeland Avenue. Edgeland Avenue is about a block from Bryan Avenue. The purpose of this amendment is to subdivide one lot into two lots. So as you can see on the plan, we have lot one and lot two. And both of these lots actually do have principal dwelling units on each of them. The applicant has submitted documentation to satisfy Article 4-5A of the zoning ordinance. And that's pertaining to the commission being able to approve the subdivision of a lot that has two or more legally constructed principal residences. and staff has received documentation for that from the applicant. The applicant has also submitted a waiver request to address the access to Lot 2. With the red highlighter there, the plan shows a 12-foot wide access easement on Lot 1 that will provide access from Edgelon Avenue to Lot 2. So we have our typical sign-offs on this plan. Condition number eight can now be resolved, actually has been resolved because the access easement is shown for lot two. So we don't have to worry about McCloy Alley needing to be used for access. Condition number nine is in regards to the waiver of the lot frontage. And the commission needs to make a finding regarding lot two having its sole access via an access easement. In condition number 10, we just need it denoted that the shared sanitary sewer lateral will be maintained by the owners of both lots one and two on the plan. And condition 11 is in regards to the commission needing to make a finding that the plaque complies with Article 4-5A, as I spoke about just a little bit ago. and we do feel that that can be approved since the applicant has provided that documentation showing that lots one and two have been treated separately. And finally, number 12, we just need it denoted on the plat that there shall be no vehicular access to McCloy Alley. And with that, I will open it up to the commission for any questions. Do we have any questions for Ms. Edge? I have a question. Okay, excuse me. What folder are we looking at? This should be item 1A. And could you announce the folder location at the beginning of each presentation, please? Yes, we will be back. Thank you. Thank you, Ms. Poe. Ms. Plumlee, I did see your hand raised. Thank you. A question for Lauren. Could number 11 be resolved? I believe so. I'm not sure if Tom is listening in the council chambers. I mean, that condition is just depending on the commission finding, you know, making a finding regarding Article 4-5A. Lauren is correct, Ms. Plumlee. You need to make a finding that it does comply with that article. And as Lauren has reported, we have been given more than adequate information that it does, in fact, comply with Article 4-5A. Do we have any further questions for these heads? Hearing none, we'll move forward with the applicant presentation. If anyone's present for the applicant, if you could please raise your hand electronically. There we go. Mr. Murphy, you've been promoted. You can go ahead. Mr. Chairman, I'm Dick Murphy. I'm representing the owner of the property. It's a company owned by Mr. Jeff Moore. And we, in general, agree with the staff conditions. One of the two existing houses on one lot. One was built in 1910 and the other was built in 1935. And Mr. Moore is rehabilitating these to try to provide some reasonably priced housing in the neighborhood. So we agree with the conditions. I do have one request, which I think I briefly discussed with the staff on item 12, no vehicular access to McCloy Alley. we agree that we can't have access at this time and that's because mccloy alley technically runs behind our property but it does not actually exist there's right of way there but there's no pavement no no place you could drive i would like to have the right to use McCloy Alley if it is actually ever built in the future. So I'm asking that item 13 read to note there shall be no vehicular access to McCloy Alley unless and until McCloy Alley is constructed to this property. That would just give us the right to use it if it's ever built in the future. It may never be, but that would give us the right to use it if it is. so with that we do agree with the other staff conditions okay thank you mr murphy does anyone commission members have any further discussions or questions for mr murphy can we combine that with 12 if the staff doesn't have any reservations yes i i think that would be fine to just add it on to item 12. yeah add on to the end of 12 instead of making number 13. i'm sorry i should have said 12. i meant to say 12. okay okay all right hearing none uh do we have right now we move on to the citizens comments. Do we have any citizens that would like to speak on behalf of this current application? You can do so by raise of hand on the Zoom call. Chair, I do not see any hands. Okay. Do we have anyone that want to speak in opposition of this application as well? Do you not see any answer? Okay. Thank you. Does anyone else would like to make any comments or further discussion on this particular application? If not, I would take a motion. I'll give it to you. Okay. All right, Mr. Penn. I move for approval of PLN FRP 2011 Highland Extension, located at 1422 and 1422 and a half Edge Long Avenue. Grandy, you want the waiver separate? Do you want the waiver with it? Separate. It should be separate. OK. With the 12 conditions, with the finding that the Planning Commission approves the zone notice, does meet Article 4-5, and that there will be no vehicle access on McCrory Avenue unless or until the alley is built. We have a motion on the table. Second. Do we have a second? Second. Do we have any discussion to that motion? Hearing none, all in favor, raise your hand. Okay, unanimous. Okay. Waivers. All right. Mr. Chairman, I move with approval of the waiver for PLN FRP 20-11 for reason provided by the staff. Okay. We have a motion on the floor. Second. Second by Mr. Davis. Any discussion to that? Hearing none. All in favor, raise your hand. Unanimous. Thank you. Thank you all. Perfect. Thank you. Okay. Here, it looks like Mr. Murphy is also representing the applicant on our next application as well. Okay. Yeah, yeah, that's fine. That's fine. All right, next up, this can be found underneath your tab, like it's 1B, when you're looking at your Google Drive. This is PLN FRP-20-33. and we have a waiver request for this application as well. Okay, thank you. So this property is located at 617 Forest Hill Drive. The property is part of the old Andover Golf Course and is close to Todd's Road and you can see lots six and seven are in yellow on the plan. The purpose of this amendment is to create lots six and seven and add a 10-foot excess easement on Lot 7. We have most of our typical sign-offs on this. Item number 9, that's just correcting and revising note number 4. We have standard language for drainage easements that needs to be used there. And item number 11, the Planning Commission has to approve the waiver for Article 4-7 of the land subdivision regulations that govern the timing of the sanitary sewer construction. So this condition pertains to the waiver request regarding the plat being recorded prior to completion of the public sanitary sewer line. And the applicant is needing to record these two lots for transfer out of the homeowners association prior to the redevelopment of the golf course property. staff does not think that granting this waiver would be a problem since the sewer would be constructed prior to any occupancy or use and with that I can take any questions thank you do we have any questions for staff I'm seeing any we'll move on over to the applicant Mr. Chairman I am somewhat familiar with this, but I think Rory Kaley is the lead person on this. So I'd defer to him if he could get on. I think he is. Okay. Mr. Chairman, members of the Planning Commission, Rory Kaley with EA Partners. We are in agreement with the conditions. Number 10, the resolve, the width of the access easement. That 10-foot easement there is for the developer builder to get mowing equipment across this lot to the rear properties, which will be part of his much larger townhome development later. So that's the purpose of it. And we think that the 10-foot is adequate for that need. Great. Thank you. Do we have any questions for the applicant at this time? Not seeing any. Do we have anyone that wants to speak for or against this particular application? No. I'm seeing any. Okay. All right. Well, then I'll open it up for discussion on the commission members and take a motion. Okay, guys. Mr. Mullen. I'll make a motion to approve PLN FRP 2033 Lockmere Track B, Lot 3, Andover Golf Course with the 11 conditions. All right. We have a motion on the floor. We have a second by Mr. Nibble. Second. Thank you. Okay. We have a motion and a second. Any discussion to that motion. Seeing none. All in favor, raise your hand. Okay, now we need to get a motion for the waiver as well. Chair, I move for approval of the waiver of PLN FRP 2033 Lockmere Track B, Lot 3, Indover Golf Course. Motion for the waiver. Second by Mr. Bell. Any discussion to that motion? Seeing none. All in favor, raise your hand. Okay, unanimous vote. Thank you. Motion passes. So, next agenda item will be found on Google Drive 1D. and that's 1D and that's PLN FRP-20-38 staff hold on here we are thank you Mr. Chairman members of the commission the final record plat that you see before you is 20-38 Wendell Development LLC now this property located out on old Higby Mill Road across from Hopemont Lane. Here we have a large greenway area and floodplain that sits adjacent to the creek to South Elkhorn. This is a plat that is purpose is to subdivide this lot into two lots creating this independent little triangular shaped lot in this location. Now there is a development plan on this property. It allowed the construction of an apartment building in this location and here we have access into the parking area and access from Higby Mill Road in this location. Part of this access will be an easement on the newly created lot in this location. now staff has reviewed this and we have very standard sign-offs for this record plat we have a few cleanup conditions that you can see that again are very standard conditions addressing the planning commission certification the maintenance note that's required by your subdivision regulations as well as some monument information. There is one item that is a resolve item that will require a slight change to the property lines, and that is to address a retaining wall that was necessary to be constructed in this area to support the parking area and support this lot, again, from the relief change associated with the drainage area and the floodplain. The applicant has acknowledged the need to do that because very simply, eventually this should become government property. We do not want to be responsible for maintenance of that retaining wall. It is possible an easement may be one solution that would allow the applicant access to do necessary maintenance to the retaining wall. And that's one reason it is a resolved condition. Now, there is a condition relative to the Board of Adjustment because the development plan shows parking on this lot associated with this apartment building. When they subdivide this property, parking cannot be a principal use on this independent lot without Board of Adjustment approval. Now, it is also possible that they could amend their development plan and remove the parking from this. And that would be another avenue available to them to address that parking on this independent lot. And then last and certainly not least, your third waiver today is for this property. And it is identical to the one you just heard. They have constructed a public sewer line from this line down here. This is a trunk line located here. They have constructed the sanitary sewer to the apartment complex, and that required a public line and a manhole be set to serve this property. In order to serve this property, they would have to continue that line from that manhole and set another manhole. At this time, with the need to either go to the Board of Adjustment, amend their development plan, the fact that they have no real identified use other than for this property, except that which, of course, is allowable in the R3 zone, they have requested this waiver. And staff would agree that it is applicable in this case. This lot is heavily constricted, not just by shape and access, but by a large easement. And there's another easement on this property as well, a water line easement. This is a gas easement. So staff would agree that this waiver is justified at this time. they will bond that sewer line as part of the recording of this plan. And staff is recommending approval. I'll answer any questions you may have. Okay. We do have one question at the moment for Mr. Penn. Mr. Martin, the apartment complex, I assume we've approved that development plan? Yes, sir. It's not only approved, it's built. It's one building. Okay. Okay, so didn't it have to have the retaining wall in the retaining wall to hold the parking lot? I'm sorry, sir. The retaining wall is a part of that development, and we're recommending that it be on their property, on the lot. So are you going to move the lot line, or how are you going to do that? Well, they are going to adjust the lot line, or there is a possibility, it'd have to be reviewed, that they could put an easement on the adjoining lot so they could maintain the retaining wall. They would need to do both, wouldn't they? Possibly. Possibly. Yes, sir. Yeah, that's why we believe it's a resolve issue so we can work it out with them to the satisfaction of planning, engineering, and law. So we're going to hold them hostage on this lot in order to clean up the other one? well again i think this is fairly straightforward and i think it can be fixed i don't know that we're i mean they're requesting subdivision and this is an issue that's been identified that they have to address okay so we'll we'll get it cleaned up yes yes okay thank you okay thank you mr ben any further questions for staff at the moment not seeing none we'll bring this over to the app mr chair we will be promoting mr kaley this time you can go ahead mr bailey i couldn't make another word mr chairman members playing commission rory kaley thea partners um we are in agreement with the conditions and uh yes mr penn we will have to resolve the maintenance or ownership corner of that wall prior to recordation. With that, we request approval. Thank you. Thank you. Thank you. Okay, any questions for the applicant? I've seen any. Did anyone in the audience want to speak on behalf or in opposition to this particular application? Please let us know by raise of hand. Okay, all right. We bring this back. We open it back up to the commission members for a further discussion or emotional. I'm as Plumlee. Are you raising your hand there? Okay. I read your lips. I said, no, thank you. Yeah. I'm looking for a motion. I asked just now. Bruce. Mr. Nick. okay i recommend approval of pln frp 20-00038 windale development llc property noting the 18 items and the subdivisions committee's recommendation of approval okay we have a motion on the floor we have a second second by mr bell any discussion to that motion if I raise a hand motion anybody in favor okay it's unanimous thank you thank you very much are you going to do the waiver as well I don't I don't know how to announce the waiver I guess I would like to make a motion to approve the waiver for PLN FRP 20-00038 Wyndham Development LLC property. Yes. Thank you. We have a motion for the waiver. Second by Mr. Pohl. All in favor, please raise your hand. Unanimous. Motion passes. Thank you. Thank you. Have a good day. We are on page four of the agenda, and on the development plan, this should be found under 3A and in Google Drive. It's going to be dealt in MJDP-19-71, and we do have staff recommendations for this particular application today. Staff? Thank you, Mr. Chairman, members of the planning committee. This is Major Development Plan 19-71, Riddell Plaza, Lot 2. And as you all are very much aware, this is located at the corner of Subway and Simpson Avenue. It is a proposal. This is the Wendy's, by the way, and an AT&T store in this location. They are not a part of this amendment. This is a proposed building in this location, and they've incorporated this property to the rear as part of this development plan to address access and cross-access issues on the property. That is also why this particular part of the plan has been included, again, to address cross-access and parking that impacts the entire property. Now, as you all are very much aware, this was postponed multiple times. And at your last meeting, it was further postponed to discuss the hydraulic study that was performed on this property. This study has been an element of every development plan in this area for about 11 years. And it ultimately got down to the point where for this property in here to be developed, the study had to be done. And the applicant has done that study. They did submit it. And as you all recall, at your last meeting, there were concerns expressed by engineering staff. There were concerns by the public, neighbors in the area, as well as advocates for our streams were concerned about the adequacy of that study. And you all postponed it with the recommendation that they continue to work on that. Your planning staff is reporting to you today that that work did continue. There has been a lot of work done on it. there have been adjustments to the study. And the crucial element is whether or not to pipe this part of the creek. It is open through this property. It's about the only place it is open. As you all heard last week, and I'll refresh your memories only briefly, this is a large watershed. It extends all the way up to Commonwealth Kroger Stadium. that's one reason the study took a considerable amount of time for most of its length it is already piped but it is here in this area it is open and your stormwater manuals that are incorporated by reference and something that all developers have to follow don't address piping creeks to a great degree, if any degree. So this raised a serious issue about how to address aspects of the manual's requirements if piping the creek would not do that. And so that was one of the many issues that were talked about, something the engineer continued to work with engineering staff. The applicant in a very brief discussion today also stated that he's adjusted the model and that would adjust the impact of the flooding on the subject property. You may recall that there was a concern that when they pipe it, put it in a culvert, that it will backflow during a flooding event and flood the subject property at approximately two inches was what was reported to you at your last meeting. Now, it is staff's understanding from the applicant. Actually, this discussion happened this morning that the model and the design, the new design, does a better job of addressing that flooding issue. And staff hasn't had a chance to discuss that with engineering, but certainly the applicant can address that in their presentation as well. So we are at that point where in reviewing this and reviewing the study, staff also came to the conclusion with engineering, with the law department, that Article 19, which governs floodplains and floodplain development in our community, is applicable to this site. now granted the applicant doesn't share that that point of view however as i as i stated and we've provided in your report and again it's uh 19-71 and i know you all don't see it in color but but i see it in color it is in your materials and you should be able to find it in your google Drive. Staff actually included in your report several of the pertinent requirements under Article 19 that we think is the reason why it applies to this. I'm not going to go over every one of those for you. What I'm going to do is point out to you in that report is that under Article 19-7G2, there's a floodplain that's required. And the wording in that paragraph states that the Planning Commission may require a floodplain analysis for areas of known flooding. And that's exactly what was done here. As I stated before, it was done 11 years ago. It's been carried forward a study required to address the known flooding in this area. Flooding on this property, flooding on Simpson, flooding on South Broadway. So again, because that study was done, done at the Planning Commission's request, we believe Article 19 is applicable. And that is relevant, very relevant to this situation in that if ultimately this design is approved, it will have to be done so by the Floodplain Appeals Committee, which is governed under Article 19. The process is highlighted in Article 19. And due to what I mentioned before, the stormwater manuals don't address this so we have buffer vegetating buffer issues and similar issues that are going to require variance and it is the floodplain appeals committee to review and either grant or deny those variances under article 19 which also by the way incorporates your stormwater manuals so again we we believe that's applicable and staff is of the opinion that that ultimately this will need to go to the floodplain appeals committee. And I know the planning commission is not overly familiar with that committee. It has met, I think four times, maybe five, I'm aware of four times in the 14 or 15 years that I have been on staff. The distillery district went to the floodplain appeals committee. the Fork Bank on Tates Creek Road went to the Floodplain Appeals Committee. I believe the Arbis on Tates Creek Road went to the Floodplain Appeals Committee. And then the last one I can remember is out on Beach Road by the Kentucky River. It is called only at need. And that's one reason you're not very familiar. It doesn't meet often. This is not, they're not needed very often. These types of issues don't come up, except rarely. And I would comment that I think that's a positive thing. That indicates how well our system and our requirements and our manuals work to address drainage and flooding issues in our community. And with that little political statement aside on our system, I will state that the staff is recommending approval of this development plan. And we're recommending approval subject to the original conditions from last month. and again some of these are merely small cleanup items things that we think are easy to address with the exception that we have altered a couple of your conditions into one and and that's the important one and that's condition 18 and that is that we need to denote that this development plan shall comply with Article 19 of the ordinance and that the plan shall not be certified. I'd like to stress that it will not be certified unless and until any variances as required by Article 19 by the floodplains appeals committee in conformance with the requirements and procedures of Oracle 19 are met. And actually, I want to tell you, an attorney didn't write that, but it is a condition that we believe clearly states that this plan, this design, needs to conform with Oracle 19, and if necessary, she'll go to the floodplain appeals committee, who will be the ultimate arbitrators of whether or not this design is appropriate and the variances associated with design are also appropriate. Again, so you'll know, the Floodplain Appeals Committee has a member of the Planning Commission, a member of the Council, and it has a member or someone who's nominated by the Home Builders Association, and it has engineers, professional in practice, licensed engineers on that committee. And with that, I'll open it up to any questions you may have for staff. Mr. Chair, you're currently muted. There we go. All right. Thank you. I'm going to address this to Tom Martin. He may want to pass it off to our engineers. I'd like to know what our engineering staff thinks about this solution, and have they weighed in on it? Yeah. All right. You're muted. No, sir. No. Oh, I'm on. Okay. Yes. Well, we have been in contact. We've discussed it with engineering. they have been working with the applicant so they are prepared to tell you their perspective on this and again they are part and parcel of this this design they will be reviewing this they have reviewed the study so and I will to elaborate on their position Yeah, this is Doug Burton. I'm the director of engineering. Can anyone hear everyone hear me here? Make sure I have my cell phone muted. Yes. Yes. So we we had reviewed the previous study in a decent amount of detail, but late yesterday, early today, we received a different study or an updated study that shows it went from two inches of flooding in the parking lot to zero, which gives us some pause because modeling is a finicky thing. you can change one variable and change the model considerably. So I will be frank, and we haven't had the time to get into that level of detail because the narrative in the study wasn't detailed enough for us to figure out how they went from two inches of flooding to zero, and then where that water is going to go now. So there's still a lot of legwork that frankly has to be done by their engineer and review that has to be done by us in order to get this study to the point where we're comfortable with it. But as Tom said, originally we had discussed that since this wasn't a map, floodplain Article 19 wouldn't apply. It really was outside of our purview and it was the Army Corps of Engineers. After hearing some of the public's opposition and and frankly seeing some of the photos of the flooding that has occurred on this site and seeing some documentation from our internal staff, it's clear that though this is not a mapped flood zone, it is clearly a floodplain because of the flooding that occurs here. And mapped floodplain isn't exactly how it's called out in Article 19, and we think that it gives us enough leeway in Article 19 that we can, the definitions there can say this is a floodplain. Now once it comes a floodplain, then those issues, then those Article 19, or those start applying. And one of those is that, you know, they're going to, they're going to fill in work in a vegetative buffer, which you can't do, that have to ask for a special use permit from the floodplain administrator, which is me, and we wouldn't grant that. And we've conveyed this to the the applicants engineer and said, look, you know, Article 19 applies. We're standing behind that. Since that's the case, you need to go to the floodplain appeals committee because we're effectively denying you moving any further because we would never issue a special use permit to to uh work in the in the vegetated buffer zone that you're at now now their their claim might be and we've talked about this is that well once they pipe it it won't be a vegetated buffer there was on there anyway but to us that's that's semantics that still means that the floodplain appeals committee um has to issue a waiver. And the reason that is them and not me is that it explicitly calls out in Article 19 that I can't issue waivers as the floodplain, as the accounting engineer, floodplain administrator, I can't issue those waivers. They have to go to the floodplain appeals committee. So that's why it's our recommendation that that process still occur. Now, whether it's through approval or postponement, I'm going to default that to our planning staff. But regardless, since this is a condition of approval, they're still going to have to go through satisfying us that they have gone through the floodplain appeals committee and got the appropriate waivers before we would certify this DP. Approval versus postponement just means it wouldn't come back to you guys again, but it would still go through the exact same processes in my opinion. But again, I'll default to planning staff on that because I'm all familiar with the process, but I just want to give a little history of where we're at and where we're going. But again, there's quite a bit of legwork still needs to be done by their engineer. And a lot of that's because of the dramatic change in the report and the lack of narrative to explain that as to how the site went from two inches of flooding to zero with just a minor modeling tweak. So we do have some concerns over that but those potentially could be worked out between that and the floodplain appeals committee in order to move this forward. Thank you Mr. Burton. Any questions for staff at the moment? We'll move over to the applicant. Mr. Chair, I'll be promoting Mr. Malani and Mr. Carter at this time. You can go ahead and start your audio and video, please. Yeah, good afternoon. I apologize. Mr. Chairman, for the record, my name is J. H. Delaney, and I'm with the Vision Engineering. We have been working with the staff on this strange study. Whenever we get comments, we address it. And the question of going from two inches of pounding to zero inches of... Hold on a sec. A lot of feedback. It's bouncing back. A lot of echoing. There are something you can do, maybe turn your volume down. Chairman, it looks like it's going back and forth between Mr. Helani and Mr. Carter's Zooms. So maybe they need to mute one of them or turn one of them off. Okay, can you hear us now? Yeah, and just keep an eye on the bottom left where it shows who's talking. You don't want them both showing up. Yeah, we're going to mute Mr. Carter unless he needs to speak. We think that might help him. Okay, let's just try this again. Sorry about that. They need to interrupt here. Can you turn off the phone? Yeah, can you hear me? Yes, yes. Okay. Mr. Chairman, for the record, my name is Jihad Hallani and I'm with Vision Engineering. We have been working with the staff on this drainage study and that's true. I mean, for the first time it has been submitted, we were showing there's some ponding in the parking lot due to the design was drive on slab box culvert. And we run the analysis by raising the site approximately one feet in certain location. So everything will stay within the box itself. And this is something we can discuss with engineering and try to address any comments or questions I have to upon that to their satisfaction. And again, as we discussed before, approving it here today does not mean that we're going to go build the culvert tomorrow. We still have to submit the detailed construction plans to engineering, and they have to review it. And then as the design progress and we have more detailed information, the final model is going to be much more detailed as well. And whatever information is needed, we'll be providing it in that regard. I have a PowerPoint presentation that I'd like to review with you. So, Tracy, I don't know how to share the screen. At the bottom of your screen there should be a button that says share screen. Alright. Alright, so basically this is, can you see my screen? Yes, we can. So basically this is 1108 South Broadway. This is a redevelopment site. It used to be warehouses for many, many years, and the site has been almost full development for many years. So this project will fall under redevelopment project. So a little bit of orientation, you can see the site shown in the blue. And you can see Nicholas Verode and Lexington Green. So all this, can I show you where it's at? And the Picadoma Golf Course will be the downstream side of us. So this is more zoom in into the site itself. And you can see, basically, this is where the creek running through the property. And Mr. Chair, my screen is not changing. We're getting ready to discuss that. Thank you. He needs to change this. We're working on that right now. Is there a way that you can allow us to see the same slides that you're looking at? Are we still on the beginning slide? No. Mr. Helani? Yeah. Typically, you'll need to do your screen share and then full screen your PowerPoint in slideshow view. that might help. So can you see now my screen different look than the original one? Yes. It's on the title drainage network. Yes sir. So basically what this screen shows is shows the amount of storm sowers. You can see the red color represents all the storm sewer network in the watershed. And the blue color upstream of the railroad, this represents an existing detention basin. Upstream of the railroad of Simpson Lane, where UK campuses drain to go through an arch culvert, that drainage goes into a downstream detention basin, which you see downstream of the railroad, blue color. and then goes into a storm sewers of a 60-inch pipe. And then that pipe runs through Simpson Avenue. And then it drains into, you can see the blue color, where it shows the open channel and some of the floodings that occur on 1108 South Broadway. so and then after that it goes through an underground twin elliptic pipe that pipe goes underneath Broadway it will become 12 by 4 box culvert then goes underneath Gibson Avenue as 4 by 4 box culvert and then underneath some of the resident it goes 10 by 4 and then open up in Picadoma Golf Course as an open channel. So this is just to give you also some picture from inside the storm network. This is where the twin culvert and the 12x4 intersect. This will be underneath South Broadway. This is where basically the 12 by 4 and 4 by 4 intersect. This is underneath Gibson Avenue. And this is a location where the 10 by 4 and the 4 by 4 intersect. This is underneath some of the one of the residential units. And basically after that it goes into Piccadoma Golf Course. so if you want to look backwards the drainage area so as you can tell this drainage area start from uk or kroger stadium with some of the resident drain majority of uk campus including the hospital the pharmacy school some of uh uk sport complex drain into some of the residential area. So approximately 342 acres, the total watershed area. And our site is 0.9 acres. So we are roughly speaking 0.26% of the whole drench area. So we are extremely minute of it. So also that drawing over here shows kind of mapping of the storm sewers. The yellow represents all the storm network, starting from next to UK Stadium. And then the yellow will be all storm sewers. The only open section will be the detention basin just downstream of the railroad track, as well as what's on our property. So there's approximately 6,750 linear feet of storm network. and our site has approximately 335 linear feet. So, and that's the only section, other than the detention basin downstream of the railroad is open. Everything else is totally closed all the way to Picadoma Golf Course. That exhibit shows the FEMA floodplain. You can see a pin. It shows our site that is totally outside the 100-year floodplain as defined by FEMA. The floodplain start in Piccadoma Gulf Course where our drainage study ends and this is where this channel goes into open channel and there's no storm network. This is where the FEMA map start and this is where the delineated floodplain start. This is more detailed floodplain. It shows our site in yellow and show Lexington Clinic and this is the area where the FEMA map the floodplain and this is where the effective FEMA map. So I understand there was some discussion last month about the classification of the stream and the quality of the stream. So this is a correspondence we had with the core of engineer kind of clearly defined that the stream is an intimate stream and it has poor quality. And as we discussed before, the core is the entity, the only agency that will classify stream and define the stream classification. And this is based on the core classification of the project, based on a site visit. And so this is a couple of pictures in line with the water quality. So these two pictures were taken in July 13, July 14. This is just downstream of the confluence of the 60-inch pipe. You can see the amount of algae and the water quality of the creek as being as defined by the core as being poor. You can tell it's kind of very poor water quality of the stream. This is another picture at the outlet of the property. This is where the twin elliptic pipe. You can tell there's some debris kind of collecting between the pipes. And we discussed this last month that sometimes there's some debris kind of get washed from these trees and vegetation that wash into the pipe and get trapped into the 12 by 4 at the transition. and then creating some backup into a storm system and up flooding that property plus some property upstream. And the picture on the left, it gives you an indication, the type, what's the stream bed. You can tell there's asphalt, there's concrete. So definitely this is not the natural stream bed of the project, of the original stream. So this is also additional picture of the stream bed. You can see same thing, concrete, asphalt, pipes. This is more highlighted. You can see also concrete, asphalt, and as you can tell, there's no water in the creek. And that's why the core defined it as an intimate stream. Basically, if it's a perennial stream, it will be carrying water the whole year around. So you can see the quality of the stream bed and you can see the vegetation. Basically, majority of it is honeysuckle. And this is another picture where the confluence of the 60 inch pipe and the sitkin intersect. This is an additional picture. So So now I just want to bring to your attention that this is not the first time that the Planning Commission have seen this property, and it has been submitted multiple of times. This is Major Development Plan 17-63 was submitted in July of 2017, and this was on the consent agenda. It was approved as being a consent agenda. There was no notes related to doing stormwater. There's no notes related to Article 19. And this is more, this is a consent agenda and this is more zoom in into where it shows the culvert being routed into the channel. So this is another Planning Commission approval and the previous one, I felt said, It was on the consent agenda. It was approved, but it was not certified just because that project did not go through at that time. But this one here, it's Major Development Plan 18-25. It was approved and certified by the Planning Commission. And it has a note related to the drainage study. This is another major development plan, 18-97, that has been voted on by the Planning Commission and certified. This is another minor development plan, 19-0012, that has been certified. So, in general, this property has been in front of the Planning Commission and the Planning Staff four times, other than the case today. On the major development plan, it was on the consent agenda with no stormwater-related condition. The one on major development plan 18-25, 18-97, 19-12, it added to note that the drainage study needs to be done and does that meet the stormwater manual. And everything you heard, and nobody said that this study did not meet the stormwater manual. The question is that there's two inches of flooding or now there's no two inches, which is we can discuss it, but it does not mean the study did not meet the soil moisture manual. This is also there was discussion about that Mr. Kuki brought up about trees and inventory and there's three buffers and so you can see portion of the property, maybe I would say 50-50 if not more has nothing other than grass area the other maybe 50 percent has some vegetation on it so we went and did detailed survey we find out within the development plans that you are reviewing right now there is total 50 60 trees that are larger than four inches and they spread all along the property some of them are around the creek some of them away from the creek and some of them are going to be disturbed and some of them they're not going to be disturbed. But this is kind of tree inventory of the existing vegetation. And this represents each one the diameter and the species type within the project itself for any trees larger than four inches. So but one thing I just want to bring to your attention that there's a sanitary sewers, 15 inch trunk line sanitary sewers and that's 15 inch sanitary sewers has 10 feet of sanitary sewer easement which means that there should not be any trees on top of it otherwise that will lead to infiltration and ini which is lead to what's the consent decree about and the problem we have with the consent decree and epa so that we counted the number of trees within that easement that's close to the creek, there's 22 of them that they need to be removed. If the Planning Commission decided to approve this project or decided not to approve this project, these 22 trees are in the easement on top of the sanitary sewer line need to be removed. So that will, this is another like, on this exhibit I'm trying to overlay the green represent, the dash green represent the proposed culvert and the blue represent the existing channel. So portion of it is that we are curving, we are tying in downstream of Simpson Lane. We're going to bend running parallel to 250 Simpson Lane and then we're going to bend and tie to the twin culvert. So this is much more zoom in of the culvert itself. And And so the green represents the proposed culvert. On the upper screen and the lower screen, it shows the profile of the culvert. And the portion of the culvert, which is close to the downstream end of the twin elliptic pipe, we're going to maintain the stream channel. and the remainder of the culvert is going to be a totally concrete culvert. So this is a profile based on the latest revision by raising the site. We are totally detaining the storm within the pipe itself and we are not creating any adverse impact on adjoining property owners. So, and I understand Article 19 that Tom mentioned, it's very important for this discussion. We are in agreement with the staff on all their comments, except we don't believe we fall under the category of Article 19. Article 19-5 specifically said the land to which this project apply, it needs to be as this number A should be under the special flood hazard area as defined here or adjacent to alluvial soil or it has to be adjoining or adjacent to a floodplain that have a vegetative buffer or floodplain setback. So if we start by A, special flood hazard area Article 19 defines what's a special flood hazard area. Floods, basically what it said, if you are on the FEMA map shown to be in the floodplain, you are considered to be as a flood hazard area. So any areas that belong to the channel, the floodway, the floodplain, basically you are considered as a special flood hazard area. So also Article 19B, an area in this alluvial soil, which is, it does not, we're not in alluvial soil. This is more specific on stream, in the stream, larger stream areas. It does not apply to us. That will lead us to item number C. So if this area adjacent or adjoining or adjacent to floodplain that has a vegetative buffer or floodplain setback, and then it defined floodplain, said the land adjacent to a stream, channel, or water of body, which has or might not be after covered by floodwater during regulatory flood, which is I highlight these two-word regulatory flood, and also it said floodplain shall include those land within included in the special flood hazard area, which is we just discussed the flood hazard area is basically a FEMA map. And then here, the same sentence, if you read the regulatory flood, it goes back and defined the floodplain in the FEMA map. The flood magnitude having 1% occurring in any given year for a long time and can be expected to be equal to exceed on the average once every 100 years. The limit of the regulatory flood for a site shall be determined by reference to elevation shown on the Federal Emergency Management Agency flood insurance rate map and the flood boundary and flood way map where such data is available. So you can tell in one definition, it referred to floodplain in two different locations as being the FEMA regulatory floodplain. otherwise it means any ditch or any channel when the water gets out of it when the water leaves that channel it is in the floodplain so there should be a boundary where you draw the line does it mean every channel in Fayette County right now it can have a floodplain and we need to delineate floodplain and need to go to article 19 or need to have flood insurance so specifically referred to as the floodway, the floodwater during regulatory floods, and then goes back and refer to the FEMA map, and also referred to this special flood hazard area, which is go back and refer to the FEMA map. FEMA map. So, and then this is, you may have not seen this before, but this is the FEMA map. Specifically, this property is totally outside the floodplain, the regulatory floodplain. So, why we don't believe that Article 19 applied to this property? So the subject property is outside the regulatory floodplain and the special flood hazard area. I mean, this is very clear. I mean, the map shows us totally, which is 19-5A and 19-5C does not apply. And no alluvial soil on the site, which is 5B, does not apply. And the storm event is totally contained within the culvert. And we're not flooding anything in the parking lot. and my interpretation of article 19a it said like say if you look at 19-5a it said if you are within the flood hazard area it tells you if you are within the floodplain you belong to article 19-5 or if you are adjacent to the floodplain so if you are with the setback of the floodplain or you are adjacent to the floodplain or you are within the vegetative buffer of the floodplain, Article 19 apply. We're not in the floodplain, and the floodplain does not apply to us here. That's why I believe we don't belong to the Article 19. The stormwater manual apply definitely to us. We still have to get the approval from engineering on the stormwater. We still have to get the engineering approval on the culvert itself. We still have to go through the permitting with the federal agencies and the state agencies. And we did that. And the Corps, as of yesterday, issued a permit for this project that we are in compliance under nationwide permit and gave us authorization to proceed with the project. And U.S. Fish and Wildlife gave us authorization to proceed that we're not impacting any endangered species in the project itself. So at the end, this is our conclusion. is that the existing condition, the water quality of the channel is poor by the core of engineering classification. The stream itself is an intimate stream by the core of engineering classification. Based on our existing model, which is, I believe engineering agree with us on the existing model, that the water depths range in that channel from 4.9 feet to 5.3 feet. so you have windies you have a drive-through you have businesses and next to you there's potential of five feet of water to be five to 5.3 feet and feet of water next to you and then also history told us a previous experience that there's debris that can be transported into this channel they end up being trapped between the box culvert when transit from 12 by 4 to 4 by 4 which leads to a significant flooding upstream. And then also based the amount of the flow running into that channel with almost 260 cubic feet per second and having that depth of water it has a good carrying capacity of an incident of a child or person being washed into that stream next to residential, next to commercial, next to offices, next to a drive-thru of a fast food restaurant. So we believe there is a safety issue here. So our proposed condition, we demonstrate through our analysis that there's no impact on the adjacent property. So even if we have two inches of water in our parking lot or we don't have any zero water in our parking lot, there's no adverse impact. So, easier condition, we have no adverse impact on any adjacent property. So, we believe that the storm event is totally contained, undersurfaced, and we're not flooding the parking lot. And we are promoting the safety and the welfare of the resident and the customer by eliminating this channel and having this depth of water next to it. And this proposal will prevent any large debris or trees from being washed and clogging the system and creating any flooding. U.S. Fish and Wildlife determines there's no effect on endangered species and gave us authorization to proceed with the project. The Corps of Engineers issued a nationwide permit and told us we can proceed with the project with no mitigation. So, and if there's any question, I'll be glad to respond to it. Okay, do we have any questions for the applicant at this time? Okay, Mr. Wilson? Yeah, Mr. Chairman, let me just kind of boil this down. What is the applicant asking that to do? Mr. Wilson, it's muffled there. I'm sorry. What is it the applicant would like for us to take out, what they're saying, the staff Staff are saying that you must comply with Article 19. They've had an extensive presentation here trying to demonstrate that that doesn't apply to them. So what is their resolution? Are they recommending that we take 19 out? I'm not saying we'll do it, but is that what you want? Yes, sir. we are asking that if it can be modified to say that we meet all the engineering requirements and the stormwater manual requirement for that proposal. Take anything out to stop the same recommendation. Well I would, Mr Polanyi can you stop sharing your Did you stop sharing your screen? Yes ma'am, I apologize. I'm not sure that the planning commission, and I want to be careful here, is qualified to determine if the stormwater manuals are being met. Does that make sense? I mean that's why we have the professional staff, have licensed engineers to discuss that outside the planning commission. I don't think it would be appropriate to ask the planning commission to say a section of the zoning ordinance doesn't apply to this property. No, I'm not saying, I'm sorry, Tracy, I'm not saying that we are, we are saying that we don't believe article 19 should apply to us and we want to follow all the standard conditions that lfucg has we're not saying we don't want to do any i thought that's what mr wilson asked and yeah i was i think uh uh miss way kind of hit on what i was driving after ultimately because i was not going to make that decision without staff's approval without engineering at least you weren't going to get my vote on it but my question i guess goes back to the part where you all are claiming, argumentatively so, that you're not in the floodplain, so it shouldn't apply. Our staff is saying, well, whatever, they're suggesting that you should apply. I don't understand all the engineering technicalities there, but the question is, is that a deal breaker? applicant has a question for you that's a deal breaker if the planning commission ask us to go to kind of the appeal committee of the article 19 yeah that's what i want to know in other words you're obviously would like for the planning commission to consider taking that out uh just as a member of the planning commission i think Ms. Wade hit on it very nicely. I'm not a technician. I don't know enough about it, so I'm inclined to take the staff. If the staff recommends that you comply, it seems to suggest that you all should need to hammer that out before you get here. But with that, as I said, the staff has approved as long as you comply with Article 19. If you take it out, my question is, is that a deal breaker? well we want to we want to do the right thing and we want to make everybody feel comfortable about this proposal to move forward no question about it and we want to do the right thing for our client for the neighbors for everybody in the community and we believe there's enough check and balance in the system as is right now through the different permitting from the core from division of water from fish and wildlife from engineering and from division of water quality on other items and this is we believe they are more than sufficient for us to prove it move forward we don't think that's adding one more agency or one additional approval is going it's necessary in that condition and to answer your question uh yeah definitely that would be a deal breaker for us I just want to be clear that it's not Mr. Halani's decision about whether or not a project or the engineering goes to the floodplain appeals committee. If it doesn't meet the stormwater manual, the Division of Engineering gets to make a call. If they don't feel it needs, you can appeal that. and the appeal goes to the commissioner of public works and that individual can either agree with the county engineer or disagree and you would then you appeal that to the floodplain appeals committee. There's a process that's laid out in article 19 already so it wouldn't be appropriate in my opinion in Tomkin you know as being the staff to the floodplain fields committee for 15 years it wouldn't be appropriate for the commission to override R19 and the division of engineering's correct procedures okay I can I can add something here a little bit I think if it helps two things you know Mr. Helaney said we're engineering is okay with the report I don't think we're quite there. So because of the narrative not really being what it needs to be and us not having time to review it, there's still a lot of legwork that needs to be done there. The other thing is the Article 19 application, and unfortunately, however you want to look at it, falls heavily on my shoulders. And Article 19.6 says that the urban county engineer shall be empowered to interpret the boundaries of flood hazard area based upon the Division of Engineering Stormwater Manual and Sound Engineering Practices. And then subsection B of that says the urban county engineer so liberally construe the provisions of this article in favor of the objective of flood protection. So it's not the three criteria that he classified earlier, and this would be under A, special flood hazard areas, it's not as cut and dry as I think Mr. Helaney is interpreting. This is a known flooding area, and we're trying to make sure that we offer the flood protection that the public expects per Article 19-6. So that 19-6 is another one to look at that really, again, gives good or bad media authority to interpret that as I see fit, and as my staff see fits we don't do anything in a vacuum and and based on the complaints we've seen the public the complaints our staff have seen are they're flooding our staff has seen and just this sites history it's clear that that it's a flood head and therefore article 19 should apply Well, I apologize. I mean, I get the impression to say that engineering approved. I meant to say on the existing condition, I did not see any comment from a reviewer about from engineering. I did not mean that engineering approved the report. So I apologize if it came that cross. And then on the special flood hazard, it's already defined as being a FEMA map. That's what Article 19 also defined what's a special flood hazard area. Right. But if you look at 1906, the title of Article 1906 is Interpretation of Flood Hazard Boundaries. And that affords me the leniency to stretch those beyond that map floodplain. And again, that's what we've done here. That's what our staff agrees with. And that's our opinion. And we can move forward with that constraint of meeting that, which would require, as Tracy said, appealing to the, I think the proper procedure is technically you appeal to the commissioner, then you appeal to the floodplain appeals committee. But obviously, typically that runs to the commissioner. Thank you. I think we've got several questions and I know Mr. Nichols had a question. So, Bruce. Yes. OK. Let's see if I've got my. OK, good. OK. So what I'm understanding is Mr. Burton says that that number 19 to note that this amended development plan shall comply with Article 19 of the zoning ordinance is applicable. the applicant says it is not article 19 is not applicable Mr. Burton is saying it is applicable and there is an appeal process that appeal process happens outside of what we're doing right now so I don't really have the expertise to debate whether it's not article 19 or it is article 19 we've got Mr. Burton here saying it is I'm inclined to leave 19 in there and this have this appealed to a more appropriate authority. I would agree. Before we get too further along here, I need to bring this back in a little bit and open this up to the citizens. I just want to make sure that there's anyone out there that want to speak for or in opposition of this particular application. Please raise your hand. I want to give them an opportunity to speak as well. Yes, Mr. Chair, we have several hands at the moment. We will go ahead and allow Mr. Ken Cook to speak first. Mr. Cook, you can go ahead. And Mr. Cook provided a PowerPoint presentation to the staff earlier today, which we uploaded into the Google Drive, and we will display that. So you're going to display that, Tracy? Yes. Okay, very good. Go to that slide number three. One and two is just narrative associated with our case that you can read from that standpoint. And Tracy, are you going to allow us to display the video? Well, was there a video that you provided? Yeah, there was a link to a video included in the email. I have it queued up on my screen, but I would be glad. Let me go ahead for benefit of the commission. My name is Ken Cook. I'm with the Friends of Wolfram. We do watershed restoration in this particular watershed, working with LFUCG and private parties and neighborhood associations, and have done extensive work on North Fork of Vons Branch and Vons Branch down through Picadome into Pine Meadow neighborhood and beyond. Basically, everybody agrees this is a big watershed. Tracy, you want to go ahead and advance me to the next slide, please? All right. It seems to be some debate about flooding. We definitely, the engineer study does show a flood elevation of approximately 947.5 feet. You're looking at photographs that were taken at a flooding event on May 18th. This was not the 100-year record flood. So this is just typical of how this area can become inundated. The bottom picture is looking from Simpson Avenue downstream towards development site, some film material and stuff along that line. And the developer plans to put that into a 12 foot by four foot culvert. Next slide, please. We have particularly concerns this is downstream of there because all that area is going to be filled in. This is the Gibson Avenue area here. Water depths exceed 18 inches. Basically, in terms of that water is going to have to go somewhere. It's going to come down here. It's going to pack up in this particular area. You see the Thorntons. I've put an arrow to the development site, which is behind the AT&T building over on the other side of Broadway. Flood waters do overtop Broadway and create a traffic hazard there over 18 inches here blocking access to the neighborhood behind. Next slide, please. The important thing that we're concerned about is the amount of stormwater volume storage that will be lost when the floodplain is filled in that particular area. And you do not need to be an engineer to do expensive calculations to see what that volume looks like. This is a spoil pile that the developer has dumped on the area in anticipation of being able to get this culvert. Next slide, please. There's a little animation here. I'm scanning across it, basically. And so that shows you there's a lot of stormwater volume that's going to disappear here when this fill creates. A side note here to engineering is we have complained about the fact there's asphalt, concrete, concrete rebar, all that kind of stuff in this pile. We don't think this pile was permitted, but that's not an issue for the Planning Commission to worry about. Next slide, please. There are three existing stormwater retention basins that are on the site that they do plan to fill in with this development project. We don't see anything in their development plan that addresses replacing the volume of those stormwater basins, which is a requirement under the redevelopment provisions of the stormwater design manuals. Next slide, please. We discussed the vegetative buffer. The stream is a 303 delisted impaired stream. We agree that the water quality is poor here, but the answer to solving that problem is not putting it into a concrete box. We do get a benefit from the vegetative buffer from the turf grass. If you want to look at some of Dr. Bill Thom's research from the University of Kentucky on the value of turf grass and its impact on nutrient removal, pollutant removal, and infiltration, that's fine. And we appreciate the engineer's study that there were 50 some odd trees because our research only showed 35 inside the buffer zone of that particular area. So you've got these 35 trees that are providing transpiration, stormwater volume reduction, nutrient uptake, and other ecological services not really germane to stormwater issues, but to livability, community air quality. So there is a buffer there. There is a stream there. There is flooding there. Next slide, please. There have been a number of economic impacts downstream. We have spent close to $800,000 stabilizing the creek and Piccadome golf course, we being a US EPA grant through LFUCG that Friends of Wolfram was a partner in. There were $1.2 million spent on bank stabilization in the Sugar Mill FEMA project, $4 million spent purchasing, demolishing homes downstream of here, and we're under a $30 million flood mitigation consent decree with the city. And keep, next slide please. And all I have to do is show you the information in your own stormwater design manuals to say why we are concerned about this particular practice of putting, of destroying stream buffer, filling in floodplain, and putting streams in culverts. I won't read all that to you, but just know there are multiple issues brought up by this. So the no adverse impact claim is incorrect. They may be able to say that based on our models, we don't change the flood height that much. But we'll bicker with the models when we get into this flood plan advisory committee if it goes there. Next slide, please. these are the specific prohibitions in terms of roads parallel utilities parallel filling to create lots large tree removal shrub removal parking lots and temporary parking those are all prohibited uses that they are going to have to have variances to your rules and your and your standards too next slide please and we do have a way out of this and that's simply just This is not a good idea. This plan is not consistent with our current standards. And the fact that variances have been discussed here and put on the table, that they're going to have to get variances from our standards in order for this project to go forward. The easy solution for the Planning Commission is to deny this particular development plan and take it off the table. Because of that, you would have sufficient justification just knowing that it does violate our standards and our laws and our rules. So I would entertain a motion to deny. Now, the study revisions and the new plan development were just submitted in the last 24 hours. We haven't had a chance to look at it. You know, a postponement would be also appropriate. But I think a denial would save a lot of us a lot of time and a lot of work and the city a lot of money. that's the extent of my comments I'm open for cross X or questions thank you I guess the question would be do you want to see Mr. Cook's video? I'll unless the Commission wants to see it the photographs were taken from the from the video. Okay. All right. Well, thanks for clarifying that. Thank you, Ms. Cook. I think we have next up is Ms. Daly. Yes, Ms. Jenny Daly. Ms. Daly, you can go ahead. Okay. Thank you all. My name is Jenny Daly. I live at 136 Burley Avenue, and I'm located about three short blocks from the development site. I drive and walk through that area all the time. So I'm fairly well acquainted with it. I want to point out that I'm not against this development at all. Used the Wendy several times. It works really well. Good job, y'all. I'm mostly concerned with the flooding and the health and public safety issues around this. I want to thank the commission, first off, for taking such a serious look at this. I know it's a sort of small development, and this is a really critical piece that you all have spent a lot of time on. And I appreciate your consideration. And I also want to thank Mr. Fulani. I have worked around a bunch of engineers, and you explain things really, really well. And I really appreciate that as a non-technical engineering person. You do a great job explaining it. So I do have a couple comments and questions regarding some of the things that Mr. Filani said, a small portion of the drainage area. And Tom Martin had talked about how just this is only a small portion of the stream that is still daylighted. And while this is true, it is a critical area. It bears all the weight of everything that comes behind it on the stream all the way over to Commonwealth Stadium, Kroger Field. And then it has an effect on what's downstream and all of that that's opened up and Picadome golf course and a lot of work has been done on that. So this is a really critical area and you all are right to focus on this and spend a lot of time and intention on it. I did have one question, and perhaps you all can ask the developer about this. I'm confused by what he explained. I'm confused whether this report, this study, has been around for all of these other previous developments and then was just retweaked this summer for the latest development or not. But I just wondered if this was fresh information. I thought this report was, the study was fairly fresh, but now I'm wondering if it's just a bunch of recycled information or not. And I'm really concerned, as Mr. Burton has pointed out, how you can tweak the model and, you know, all of a sudden get rid of all the flooding. So I share his concern about that staff take a second look at this and a closer look. I am asking you all, the planning commission, to please, I'm begging you all to please wait to approve this plan, just because it is so significant what you do with the stormwater, until after our engineering staff or the Article 19 appeal, whatever, I would like to wait for you all to approve it until after that. Because what happens when you all approve it, pending whatever happens after that, pending our engineering staff looking at it, pending any Article 19 review process, is the process gets really hard for the public to follow. Now we can make public records request and if you go ahead and prove it pending all this other stuff, then people like Ken and I and other folks that are interested, we're going to just start hammering engineering division emails this week. Next, have you looked at it? Who all is involved in the Article 19 review? How can we witness it? Can we give feedback? Once you all let go of this project, the process goes dark and really disenfranchises the public involvement and the public engagement in this project. So what I'm here to ask you all is to please not let go of this until we've really finalized or have a really solid grip on the stormwater issue. Thank you. That's all that I'll say. Thank you, Ms. Daly. Ms. Daly, before we move you back to attendee, would you mind to provide your address, please? I forgot to ask for that at the beginning. Okay, I said it, 136 Burley Avenue. I'm sorry, I missed that. Thank you. You're welcome. All right, next up we have Mr. Wolk. Mr. Wolk. Gaffield. Mr. Gaffield, you can go ahead. Would you mind to provide your address, please, when you begin? I'm sorry Mr. Gaffield you can go ahead that was a slip on my part okay no problem this is Walt Gaffield and I live at 2001 Bamboo Drive I'm president of the Fayette County Neighborhood Council. Neighborhood Council has long been involved in water pollution and stormwater issues we litigated against the urban county government for not meeting the requirements of the Clean Water Act and against the EPA for not enforcing the Clean Water Act prior to the two coeds being swept into the drain pipe and drowning prior to the consent decree. So we have some background in it. This is a really important issue for us simply because the EPA includes $30 million as part of the settlement in stormwater issues. And this would be to approve something that violates the stormwater manual and granting a variance just sends the wrong message and goes in the wrong direction for the public. And that's essentially, I mean, you can't basically say on a technicality, well, this is not a floodplain when it floods. That really doesn't make a lot of sense. And I think, you know, most of the presentation we heard today was that it's not in the floodplain, and we showed pictures showing that it floods. I'm appreciative of the Division of Engineering and the LFUCG legal office is finding that Article 19 applies. I am concerned that the study has changed again and it went from no flooding to two inches of flooding and then back to no flooding. I'm not quite sure where it is, but we have not had a chance to look at it. Mr. Cook hasn't had a chance to look at it. Our preference would be to deny it because Article 19 applies. Alternatively, a postponement would be less desirable. I agree with what Ms. Daley said. We'd like the Planning Commission to keep control of this because it's an important issue and the public gets closed out after this part of the process. Thank you very much. Thank you, Mr. Gadfield. Do we have anyone else that would like to speak? Miss Amy Clark. Miss Clark, if you could go ahead and give us your address when you begin, please. Hello, my name is Amy Clark, and I live at 628 Castle Road. And I want to begin by thanking you for giving it the time it needed to come this far. You did postpone it last time. That was good sense and good judgment. um you're now faced with a staff report that says uh that well the engineer told you that between night and morning overnight uh there was a remodeling and the flooding went the reported anticipated flooding went from two inches to zero inches and the engineer said he hasn't had he doesn't have adequate information to review and make a judgment on that. Certainly, it's in your power to postpone. It's in your power to approve. I do concur with Ken that a recommendation of denial might save a lot, a lot of time and trouble. You've already spent an enormous amount of time and care on development that isn't yet ready for approval. And the chief thing is if you grant approval then you leave it in the hands of staff they have a lot of work left to do and you leave it in the hands quite quite likely of the stormwater advisory committee i think it's really right that you understand just as i understand about myself that you're not engineers and you can't judge these things i think it's important for you to know that the stormwater advisory committee is composed of five members a planning commission member a council member a home builders rep uh the rep of the chief development officer kevin atkins and i would guess that that's our tom martin who's been doing it for some years um and one engineer in private practice so if you say this is not our responsibility to make a discretionary judgment here. We need to leave it in the hands of experts and never see it again. Those are some of the people who may face a judgment, and you have lots of experience with judging plans and all the moving parts and pieces. So I would urge you not to approve it and send it off. I would like to recall to you that there was a very pointed request. If this comes back, don't bring it with 20 conditions. Be sure you clean up absolutely everything else. The water, the storm water may still be an issue, but get it as clean as you can so that it doesn't take all this time and care and deliberation. Well, it comes back to you with 19 conditions. And there's actually a reason for that. so many of the other conditions about parking and circulation and so forth, hang on whether or not there's an open stream there. Because if you pave it over, you can do your circulation differently and so on. But I would urge you to consider that there are a great many conditions. There are a lot of moving parts and pieces. And this plan is not ready for approval. And since you have reviewed it several times I would urge that at this point it really is ready for denial because it's so much time and care on the part of yourselves the public the staff and so forth they haven't yet produced a satisfactory plan thank you thank you not seeing anyone else that's requesting to speak so I'll move bring us over to the closing statements. Applicant, do you have anything that you would like to say? Five minutes. Yes, Mr. Chairman. I just, a few comments is that, yeah, we have on the site, there's 300 linear feet, 325, 335 linear feet of stream channel and improved water quality. On the downstream side where the channel opens up, there's 5,000 linear feet of a channel that can be improved by vegetation, by buffer, which is owned by LFUCG. And this area will have more significant impact on water quality and improving water quality and having much better effect and much cost effective per linear feet will be spent. If we focus on this 5,000 linear feet where the channel open, then focusing on 125 linear feet. So the cost is going to be much more beneficial on larger lengths of stream. 325 feet was bounded on upstream and downstream by culvert. And second is that we'll still be working with engineering to address any comments or any questions they have about this study. And we work with them on a timely manner and would address every concerns I have until it reaches a resolution. It's not like a few voters today to move forward does mean engineering is not in the picture anymore. We cannot proceed without their full approval. And so the situation, what it is right now, it's unsafe. There's a lot of water depth next to drive-thru, next to residential, next to commercial. What we're proposing, it's going to be much more safer than what it is right now. And I have run a study, assuming the culvert downstream from us is 12 by 4 as we are proposing. the floodplain will drop or the flood stage will will drop by 2.5 feet we will not have this conversation if everybody was following the rules since day one then neither our property will flood nor the upstream property flood but we are at this condition right now and i just want to also bring to your attention again is that there have been four development plans three of them has been certified and one was on the consent agenda and none of them addressed Article 19. And also all the pictures that you have seen that Mr. Cook has presented, one picture is on the Gibson Avenue. And this is exactly what we're talking on. Gibson Avenue, this is where the box culvert goes from 12 to by 4. And you expect that to be flooding. on our property when there's debris collected at the transition it's going to back up, it's going to block our property, it's going to flood this property so solve by putting the stone pipe is going to resolve that issue and totally address it and on the appeal committee I understand it's going to be from engineers from planning commission members from planning and I don't see any difference than where we are right now we have engineer engineering is involved We have planning commission members involved. Planners are involved. So I believe this is more delays and it's going to put us in more and more delays. And if there's anything else I can answer, I will be glad to. Thank you. you. Okay. Yeah. Citizens, we have any citizens that would like to speak on the closing statements on as a five minute total. Tim. Mr. Chairman, Mr. Cook has his hand raised. So we will go ahead and allow him to speak down. You can go ahead, Mr. Cook. Thank you very much. First is if it is referred to the appeals committee, there is one party that is not part of that. If you notice on the appeals committee membership, there is no representative from the protected class, i.e. from those of us downstream, downhill, or working to try and restore the watershed. So I do think that this is the forum where this can be decided. And you have been given staff information that shows this is counter to your Article 19 and your stormwater design manual. So that alone is enough finding a fact to allow you to deny the application. Thank you. Thank you. And Ms. Clark also has her hand raised. Okay. Ms. Clark, you can go ahead. Thank you. I just want to note very briefly that none of the objectors received the new information, the revised material that you were actually reviewing for approval today, it wasn't three hours prior that we got the revised staff report with recommendation of approval. And I do concur with Mr. Cook that it's very important, and actually with Ms. Daly as well, it's very important that this plan remain in the public view until it really is found satisfactory. it's very far from just needing a few quickie sign-offs. You've said yourselves, the engineer has said actually that there was information presented by the public that altered his judgment on this matter. Thank you. Thank you, Mr. Gilles. Mr. Martin, I'd like to get your comments. I know there's a couple of questions there that you may be able to answer for us. Mr. Chairman and members of the Planning Commission, there is a lot that I'd like to say. I'm not going to abuse your time any more than I have to. I will tell you that staff did not anticipate you having to rehear last month's presentation. We supplied you with a report. and in our report we tried to summarize where we were since you directed this plan you postponed this plan and directed everyone to get together and that is what our staff report stated to you there had been progress made there had been work going forward on this study on resolving the issues. And staff did, in regard to Article 19, in your report state that we summarized in conjunction with engineering and the division of law that Article 19 does apply. And I even mentioned in my presentation the more relevant provisions of Article 19. I could have read all of them to you. I didn't see a need because we made the statement. It does apply. Furthermore, the only legitimate revision besides approval recommendation is the condition. The only real new change to your staff besides approval was that condition that we added about Article 19 applying. And this plan will not be certified. Nothing can be built off of it until that is resolved. Now, I have attempted to explain to several people within the advocate population, Mr. Cook and others, how our system works. We have a conditional approval system, and I sincerely hope the Planning Commission is very aware of this. We have conditional approvals. We are not engineers. You are not engineers. we do rely on the technical staff and engineers to work out these issues. And that is why we write the conditions that we do. That is why we report to you the way we do. Now, that being said, the applicant raised an interesting issue. He cited three development plans to you. Well, one of them is a minor development plan that had no absolute bearing whatsoever on stormwater management. The other plan he mentioned was the final development plan of which this property was still a preliminary development plan. So whatever was shown on that preliminary development plan was meaningless in the sense that it was not a final development plan. Nobody could build off of it. And that is because, as we reported, this study has been required for years and it has literally moved downstream. and that pun is intended. It was attached to these properties and ultimately attached to this property. That's why we're where we are today. And again, staff gave you our report and our recommendation. We stand behind it, and I'll answer any questions that you may have. Thank you, Mr. Martin. So I want to bring this back to the commission members and open it up for discussion as a committee. Mr. Neville? Yes, thank you very much. And now that we're back to our commission members, number one, Mr. Martin, thank you for that statement. We should have said that two hours ago. Here's my question to you, Mr. Martin. On our first, so on our agenda that we received this morning, the staff recommends that the development plan be postponed and now I'm looking at an approval on the drive right now. The reason they wanted to, I want to just confirm this, that the reason that staff wanted to postpone was they wanted to postpone until the applicant can demonstrate that the health and safety of future users of the site will not be negatively impacted by the proposed redevelopment of the properties. My question to you is, we got to, the staff got to approval because they were able to over the applicant was able to demonstrate that the help and safety of future uses of the site will not be negatively impacted is that that is that decision based on recommendation 18 that says denote that this development shall comply with article 19 of the zoning ordinance and that the plan shall not be certified unless and until any variances is required by article 19 shall be approved by the flood plan appeals committee in conformance with the requirement and procedures of Article 19. Yes, it is connected to that condition, but it is also connected to testimony we've heard, conversations that we've had with our engineers and with the applicant, and the fact that before this morning, where we heard about no flooding, it was determined that the two inches is not a public safety factor. it's it's two inches of water it's it's not going to impact the delivery of emergency services to this property it will not impede the delivery of emergency public services on the public right of way okay and then also just kind of i guess to bring it back i guess this is to the commissioners just a statement um article night i mean it's all to me hinges on um the compliance with article 19 if there's an appeals process there is a process to to appeal that um and we know how to look at development plans and um you know maybe i don't know how to look at stormwater as well but there's another group that's going to be able to do that if the development plan applies with article 19 and I'm comfortable with the development plan as is and I concur with staff that if they can solve the stormwater problem by complying with article 19 that I would be inclined to approve any further discussion okay Mr. Penn I've had we used to own 10 acres of this property that started the railroad and came down Simpson Avenue. And this has been a floodplain since at least 1950. My family bought it in 1950. We sold it in 1974. We had a tobacco warehouse there. We had a storage house there. Both of them flooded. The tobacco warehouse floor was high enough that it didn't get in there. The storage house, it did. So this has been a floodplain that's been put in a pipe and kicked the can down the road. and all of a sudden now we're at the last part of it that we haven't put in the pipe and we're going wherever they work it out and I agree with Bruce that I'm inclined to go on with that too but don't let you understand this was not a floodplain this has been a floodplain since 1950. And the problem is we're putting big pipe that goes into small pipe and then you got a volume issue and it backs up on the other side of the railroad. So I don't see any reason to hear this again. We've heard it twice. There is a solution here and I'm going to be inclined to support the staff resolution. Thank you for your comments. Do we have anyone else in the commission members? Mr. Bell. Okay we got we got three so we're going to take it in order. Mr. Bell and Ms. Blumley then Mr. Wilson. Just a just a quick question not to belabor but if Mr. Martin or Mr. Burton are we able to remedy the situation here at this development site but push the problem further downstream that what will not will cause a problem that will not be remedied or what in your opinion let me uh defer to mr burton at this time i mean it's unclear based on the study i mean we need to do further review the existing study for sure um the the previous study which we reviewed more detail showed that the only flooding that was to occur was pushing the problem onto their site which is why on the previous one you know they're flooding their own site that's your choice so we need to review this newest study because the newest study it sounds like based on what mr helaney said earlier that they've changed the geometry of the culvert in certain spots to give them additional storage which is how they're not flooding their property anymore unfortunately that wasn't clear at all in in the reports narrative and this and the study we got like yesterday, early today. So there's a lot of work to do for us to, for me to give you a definitive answer on that. But based on the previous study, that water was going to be kept on their site and not pushed upstream. Hopefully the new study says that same thing. Now it's going to be stored, I guess, in a slightly larger culvert or components of the culvert or, you know, some sort of vertical storage through those drains. I'm not sure. I'm not sure because the report wasn't clear. but based on the previous study and again this one with there was it wasn't clear that it didn't appear that they were going to flood upstream and and again Mr. Martin or Mr. Burden if if it if it is such that we push it does it come down smaller pipe again further down and maybe quote the next development deals with that I mean are we actually moving this thing down stream remedy in it in some fashion or not in your opinion if i may or the pinch point downstream is the four by four and beyond that is the golf course um public gallon golf course so i don't think it's gonna that that pinch point's already there and nothing could change now and so sorry to interrupt you but at that pinch point um who controls that pinch point and can that be remedied? I believe, and I'd have to go back and look at the study again, and Mr. Helaney might have the answer to this. I believe that is the four by four, I think maybe part of it runs under Harrodsburg Road, and then part of it runs either under the gas station or under Gibson or under that corner next to the hospital property. I can't recall. I think it kind of crosses a couple property lines there. So your point is that it likely, it won't be remedied anytime soon. It'd be a big ask for someone to spend a substantial amount of money. Thank you. Well and if I might elaborate, I believe this what we're talking about is public water and a public stormwater system that is an off-site problem and we have had off-site problems identified before on other projects and it's not the applicant's responsibility necessarily to fix that off-site problem. It may very well be a public project in the future but or should something redevelop across the street then we would have the opportunity to address it but we we have asked the applicant to address things to the best of their ability on on this site on their property thank you thank you very much Ms. Plumlee you had your hand raised as well thank you Mr. Chair I appreciate moving a development plan forward that with a clean, concise, clear manner. But pardon the pun with this one, there seems to be a lot of muddy water yet. And there's much to think about. And I suppose the key to that does lie in Article 19. so I'm really conflicted on this yet I we've heard it a lot already we've talked ourselves into a perpetuity but I've noticed also that every time we hear it the water gets more dry so maybe we should hear it a couple more times thank you Mr. Wilson He's steady laughing When you get done laughing you can start talking Well Ms. Plumlee does have a way of Articulating things that seem to strike A nerve in a positive way with me Let me say this Sentimentally I am 100% with the Neighborhood on this I don't care what the argument is About whether they're in a floodplain or not All I see is water And I think that's something to behold. Now, here's the point. I'm thinking that 19, by making the applicant or suggesting that the applicant comply with 19, that that is the greatest protection that the community has. It's not within what I would be non-technical people would come up with. I agree with the articulation of Ms. Wade. I don't feel comfortable making the decisions on a technical aspect that I'm not aware of. But at that end, my comment is that I think that there is enough protection in 19 to go ahead and meet the staff's recommendation, but making sure that course 19 is connected. Thank you. Okay. Any more questions or discussions? Seeing none, Mr. Chair entertain a motion for this application based on the staff. Staff did provide revised recommendations. Okay, Mr. Nickel. Okay, I'm pulling up my drive again. But I'm going to recommend approval of PLN MJDP 19-00071 Riddell Plaza Lot 3 Parker property, citing the staff's revised recommendation of approval with the 19 conditions where condition 18 denotes that this development shall comply with Article 1. of the zoning ordinance. So with the staff's 19 recommendations, I would recommend approval of the development plan. Okay, we have a motion and a second by Mr. Bell. Do we have any motion? Seeing none, all in favor by a raise of hand. One, two, three, four, five, six. Okay, next we got six. So we have Demovalon, yes. Davis, yes. Nickel, yes. Bell, yes. Wilson, yes. Penn, yes. Forster, yes. Any opposed? By raise of hand. We have Meyer, Poe, and Plumlee. Opposed. Right here. Okay, this has it. Thank you so much. I appreciate your patience. Okay, let's see if we can. We are now moving on to page 8 of the agenda. You will find this in Google Drive 3i. This is PLN, MJDP-20-37, Deaton Farms, Ellerslie, and DeLong. This was also part of the Kacin agenda, but it was pulled off. We had, I think it was three citizens that had some questions, so we want to pull this off and discuss it. Well, before we move on, I know it's in our PowerPoint presentation, but because the staff and I aren't in the same room, I'm going to ask Mr. Martin if he'd rather I present that, since I presented at the subdivision committee. Prepare to present it. There's nothing to it, really. I just wanted to double check. Thank you. I can't find it on the agenda. No. Oh, page eight. Page eight, Tom. Thank you. I see I mark everybody's plans on my agenda. There we go. Ladies and gentlemen of the commission, this is Major Development Plan 20-37 of Denton Farms, Ellerslie at DeLong. this is frankly an often amended plan as you know where it is it's out on richmond athens boonesboro road it is in the amp the expansion area and very simply the purpose of this amendment is to transfer three three housing units from i believe this area to this area. In other words, instead of building three previously approved condominium units or apartment units, they're transferring those three units to a single family homes. There is conditional zoning that governs this property to an exact number of units. So they've done this before they have transferred units from kind of a bank of units that they haven't built in these in these apartment buildings or condo buildings to the single family area and that very simply is all this amendment's doing and staff is recommending approval subject to conditions on your agenda and a finding that it does comply with the expansion area master plan because obviously the transfer of these three units don't impact any of the design elements or the infrastructure elements of your expansionary master plan and I'll be happy to answer any questions you have for staff thank you Mr. Martin all righty um okay okay we have one question here for from Mr. Penn Tom, are those condos or are they apartments? Are they sellable units or are they rental units? They've called them condominiums for years on the plan, but how they market them or sell them or ultimately subdivide them has not been determined as yet. So the real issue is just that they're dwelling units and they're transferring three to the single family area. Okay, thank you. Okay. Okay. Yeah. Tom, a quick question. These units that they're transferring from, they haven't been started at all, have they? No, sir. No, sir. They're banked. They've not built anything. All right. Thanks. Thank you. Okay. I don't see any further questions. We'll move on to the applicant. Mr. Chair, it looks like Mr. Estridge is present. Okay. I'm going to promote him to panelists now. Mr. Easterd, you can go ahead. Mr. Chairman, members of the planning commission, can you hear me? Yes. Mr. Barlow. I've got Mr. Barlow sitting in the back of me here. We appreciate you taking your time to hear this. Mr. Barlow did send an email to the HOA representative in the subdivision notifying them of the development plan and what it was about. I'm sure that apparently it didn't get from the HOA president to everybody in the subdivision they noticed to sign. But that's all Mr. Barlow is doing is taking three condominium units, which will be sold to somebody, and transferring those units to the single-family residential area, keeping the overall density of the development the same. Like Tom had said, there is a maximum amount of units that can be built in this subdivision. Sorry about that. so that we would really request that the plan be approved such as the conditions as stated I have worked on a bunch of the cleanup questions comments on the plan from the staff and we're ready to get this thing going is what we'd like to do right thank you thanks any questions for the applicant? Mr. Mitchell? All right. Hearing none, do we have any citizens that I know we did that want to speak on behalf of this application? Mr. Chair, we have three citizen hands. I will go ahead and allow Ms. Kathy DeMarco to speak. Okay. Mr. DeMarco, if you could start by giving us your address, please. Hi, my address is 248 Ellerslie Park Boulevard. And I did receive that communication from John Barlow and I appreciate that. I just wanted to be sure because I am the president of HOA that when I did get questions from anyone that I was relaying the proper information. so i just want to understand he's taking three condos moving them back to the single family homes um i just i have one one question and i'm trying to find out if i know at some point in time these condominiums were being talked about being part of them at three three floors or three story and I just wonder if any of those are going to be reduced down to maybe two story and those would be taken off and moved to the back. If anybody knows that answer yet or not, I don't know. We are in preliminary engagements with Steve Graves, the architect. I think as the density of the units to the condos go down, I think more and more you'll see two-story levels and fewer three-story. Okay. Okay. Thank you. Mr. Chairman and members of the commission, that was John Barlow, the owner and developer of the property. Yes. Thank you. I appreciate it. That's all I had. I don't have any other questions. Okay. Okay, next we have Fontaine Sands. We're going to allow you to speak now. If you could start with giving us your address, please. Yes, my address is 274 Summersley Place. I guess it might be just terminology questions. When you say that you're moving those from the front to the back, are you transferring them to single family homes or are you moving a condo apartment style building to the back? I guess I just don't understand exactly what you're moving. This is Fred Estridge, the engineer on the project for Mr. Barlow. Its terminology is what we're actually doing is moving a living unit, which is either a condominium or a single-family residence. So what we're doing is not going to build one condominium or three condominiums. We're going to build three single-family residential houses. Okay, so in the back it'll still be houses. Correct. They're single-family residential houses. Okay. Ms. Zanes, did you get your questions answered there? Yes. Thank you very much. Okay. Great. Great. Awesome. Okay. Next, we're going to allow Drew, I believe, last name was Nardiello to speak. If you could give us your address also. Good afternoon. 3863 Wentworth. I live in one of the current condominiums, and I was just looking for clarification as to what these changes were. I think Mr. Marco and the other lady clarified my questions. Okay. All right. Thank you. You're welcome. Bring this back to the commission. Didn't seem we had any questions or additional questions, so we will entertain a motion. Mr. Bell? Mr. Chair, I move for approval of PLNMJDP 2037 Denton Farms, Ellsley at DeLong, with the 19 conditions and that the finding does comply with the Expansionary Master Plan. Okay, we have a motion and a second by Mr. Mulderlin. Any discussion to that motion? Not seeing any. All in favor, raise your hand. Okay. Oh, yeah. Ask Mr. Barlow if he's got a vote. Yeah, I'll ask him later. It was a unanimous vote. motion passes excuse me Mr. Chairman thank you so much members of the planning commission John votes five times so I seen that I didn't know he was part of the commission so I'm part of these long meetings come on down we really appreciate it thank you so much have a good day all right okay Okay, so next up, we have one item here, re-approval for PLNMJDP-18-30. It's like re-approving for a waiver. And staff? Unmuted. I'm sharing the screen there. Thank you. Mr. Chairman, members of the committee, What you have before you today is the final development plan, preliminary subdivision plan for Ethington and Ethington, which is located out on Harrisburg Road. Again, this is your frontage. This is the B1 area. This is the townhouse area. This is your single family area that then merges into the existing neighborhood to the north. Here is Madrone Way, which is being connected to Old Higby Mill Road and to Harrodsburg Road at this location. This plan was brought before you originally for approval and then for changes to this lot and some tweaks to the B1 area. subsequently they brought it to you with a waiver request on the street geometrics this was presented to you you denied the request and i believe it's a five to four vote on that on that waiver now the waiver is proposed to reduce the right-of-way width for the single family homes. They want to reduce the right-of-way width to the distance where the sidewalk and the trees will be contained in an easement behind the right-of-way. And they have based this request on topography and hardship originally and what the effect of that would be it would be to allow the houses to be closer to the right-of-way your setback your building line is based on right-of-way and that's from the back of the sidewalk in normal circumstances in in this particular circumstance they have asked that it be based off the back of the actual curb of the street and not the back of the sidewalk and again that brings the building line closer to the street, allows them to ship their houses forward. Now, in that original proposal, variants, they cited topography. They also cited the trees that exist, particularly along the back of these houses. Now, they've come back before you with the same waiver request. A little bit, they've tweaked their justifications and their request. And they've added an argument and they've added a legal argument. And that argument basically says because you granted, and that's the Planning Commission, granted a similar waiver in January of 1995 that you must approve this waiver. And that waiver was granted for the adjoining subdivision, Madrone Way. And do we have a, well, I thought we had that subdivision. We have a photograph, I believe. Where am I? Oh, thank you. Here we go. So this is the subject area of their waiver on Captain's Court, Captain's Way. But these streets, Evergreen, Nutmeg, and Mangrove, in 1995 requested a waiver based on topography, and they reduced the right-of-way and therefore allowed the houses to be moved closer to the street. Now, that's a very, very legal argument, and I'm going to address that later in my presentation. the original waiver and this waiver as well are being conditioned on the argument of topography and staff in conjunction with the division of engineer reported to you that we did not believe that topography was a proper justification in this instance. And they have refined their request and stated that this is unique, that they have karst circumstances here, sinkholes, and similar problems with this property, which would justify the waiver. now again i've got to find my way to advance what i need to advance where is it thank you that i want you to see is the karst occurrence in kentucky this is from uh the kentucky geological survey you see that blue that beautiful blue right there that's all the fayette county bourbon county jesmond that's all the inner bluegrass it's all karst. There's absolutely nothing unique to any property in Fayette County due to karst. It's also the reason it's horse country. It's that wonderful limestone and how it gives our horses a strong bones. That's karst. Our entire community is underlain by karst. Now as to sinkholes, if we may go, thank you. I want to thank Hal. He did an awful lot of work today with his technical support and helping the old guy get ready. Now, here is a map. You see all this red? Those are all sinkholes, mapped and identified sinkholes. Here is the subject property. They have a few small sinkholes that have been identified in the area. Again, it is a characteristic of the inner bluegrass and of our topography. The USGS states in their description of the inner bluegrass, it is characterized by rolling hills and shallow soils. And that, members of the commission, that is the topography we live with in Lexington. now moving on again here is a close-up of the area see here's my drone way here's the subject property see these little yellow sections those are identified on the map as sinkholes that sinkhole has already been subject to a geotech study by this applicant's engineer they say it's not a sinkhole that little sinkhole right there It's already been developed on. There's a couple of houses built right there. This are sinkhole areas, again, in that part of the community. Wonderful Cave Hill and that area. There's caves and sinkholes. As you move up in this way, there's caves and sinkholes. Again, point being, there's nothing unique to this topography or to sinkholes. It is part of what makes us Lexington. Now, this one went backwards. I'm catching on. Now, again, at your last meeting, these are the conditions of approval. But it was the waiver. It was the waiver. And I'd like to stress again that with their new waiver, they've cited several instances in their legal argument. And you should have this report in your folder. And I will repeat, if necessary, it is for. That's folder. Okay, thank you. They cite that 1995 decision, and in it, they do cite the minutes where it states that they had requested a reduction of the right-of-way for the local streets due to topographic and the shape of the property. It was further stated that this would allow the developer more flexibility in siting the houses on the property. And yes, that waiver was granted. It didn't cite hardship. It just stated that engineering and planning didn't have an issue with the waiver and it was granted for issues of topography. Now, I want to stress that in 1995, it stated that this would allow the developer more flexibility to site the houses. The applicant has filed a new waiver, and they've stated the very same thing. They've stated that this is unique topography, and they've stated that this will allow them to site the houses on each individual lot as necessary, in essence. So we will move them by adjusting the right of way and the building line. Here we go. Let's go back to this. All this area right here, all these homes were built with a reduced right of way. And it still has a 30 foot building line from that right of way. But again, it's slightly reduced. They are closer to the street. not a single one of those houses alter in their setback whatsoever from any other house in the neighborhood. They're all sited at the very same building line. Not a single one needed to be altered on any of these lots due to topography. though again they're citing the same issue on these lots and their desire to be able to cite the houses well again it wasn't necessary in the case that they are citing wasn't necessary to move any of those houses anywhere except closer to the street now that leads us again to their legal argument and their legal argument is that you granted this in 1995 and you have to grant it now. Well, your staff's talked with our legal department and as you know, we always do. And frankly, we reject that argument. Every waiver, every variance is predicated on truly unique circumstances that affect that property. And staff does not believe that topography, regardless of that 1995 decision, and we can't really speak to whether or not it was an appropriate decision. We just know that it was made and they did grant the relief. That if you accept this argument that you have to grant a topography, that you granted one here, Again, the body, the planning commission on the previous plan in 1925, you just have to grant it in this location. Well, frankly, based on what I've shown you and the topography that we share in Fayette County, you would have to grant every waiver based on topography. You just couldn't say no. You'd have to grant it. So we find that to be very troublesome. do not support that legal argument whatsoever. Now, I'm not an attorney, so I can't answer any questions you may have about that, and I will refer them to law if necessary. But again, this is the same waiver that you saw before, where they're wishing to restrict the size of the right-of-way. Now, it won't affect the construction of the streets or the sidewalks. The trees will still be planted. They will be in easements. The public infrastructure will be in place. It's not going to impact the public infrastructure. It's just going to impact whether it's in right-of-way or in an easement. That's the practical impact on the public infrastructure. But again, staff in reviewing this could not find that they had met the requirements under Article 1-5 of the land subdivision regulations that this topography presented a hardship. So once again, we're recommending disapproval of the waiver. And I will be happy to answer any questions that you may have for me. Okay, we have a question from Mr. Nickel. All right. Okay, Mr. Martin, what is the building setback on these single-family residential lots? It's R1D. It's 30 feet. Okay, so it's 30 feet R1D. It looks like there's a bunch of trees in the back. They want to increase the size of their building envelope in order to do so. they're asking for a waiver which would then measure from the gutter instead of the back of the sidewalk effectively what are we looking at as a reduction so they're what's the net net of this their building line will be 24 24 feet yeah it's about eight feet i believe the reduction is approximately about eight feet. So they'll be coming up to about 22 feet from the right-of-way line. And I'm glad, Ms. Nichols, you asked about the trees because they justified or attempted to justify the waiver based on protecting the trees. And that's admirable. And you know, staff likes to protect trees. But we need to be very clear that once these homes are sold to a private property owner, they can cut those trees down. This TPA that they site, that's only during construction. They are only protected during construction. They were not conditionally zoned. There was no notes added on the plans to protect these trees. So any private property owner, and as we know, Kentucky Utilities, can go in there and cut trees down. So there's no guarantee that granting this waiver and adjusting this buildable area will ultimately protect the streets. I think I was out of town when this was heard in February. Normally, I would think that the neighbors would like these large trees as a buffer. Was there any comment in February about the neighbors, I guess, supporting this waiver request in order to keep the trees? Honestly, I don't believe so. The applicant did state they wanted to save them. And when this property is rezoned, the trees were a big issue. Unfortunately, a lot of trees were removed from this site. These remain. They're principally evergreens that were planted by the property owner, the original property owner. Okay, so we're looking at a net eight-foot building setback with net. Basically, they can move these residential units one through 38. they can move them eight feet closer to the um to the street yes and what is the below are those townhouses below yes and what's the r1t what's the setback on r1t from the building line for the street i have uh 10 or 20 10 10 i i gotta tell you that i'm so used to see in townhouses in the infill where it's only five and that's the right comes to mind but well that's fine i just wanted to see the difference between as we're looking at this overall development to me it looks like a self-contained development and you gave me the information i needed thank you very much thank you more questions for mr martin at the moment okay mr bell mr martin if i'm not mistaken there's a road that is already in place yes sir they've been building the infrastructure yes sir so what happens with that road if we don't approve this nothing the public infrastructure will not change whatsoever this is a request to reduce right of way. Thank you. Okay now we move on to the applicant. The applicant's representative can raise your hand. There you go. We're going to promote Mr. Turner now. Mr. Turner you can go ahead and start your audio and video please. There we go. Can you hear me? Yes. Very good. I think Matt Carter is also maybe on the call as well. I don't know if he's still here or not, but he's the engineer for the project. Yes, we just promoted Mr. Carter as well. Great. Thank you. Mr. Chairman, members of the commission, it's good to see you again, even remotely. As all things go these days, I'm afraid. And we're bringing, Tom is right, we're bringing something back that you saw before and disapproved on a 5-4 vote. It was not at that time, Mr. Carter appeared actually assuming that rightly or wrongly that this was not much of an issue. So we've come back because it is a significant issue, obviously. um be you you um i'm sorry bruce mr nickel i've i've uh yeah i've known b most of my life all of his life uh at any rate um the the actual let me there's a street section here that uh you have it's in our letter if i'm sharing my screen but the bottom line is it's nine and a half feet is the difference. No, that's the wrong, excuse me, that's the wrong. There we go. Right here. What you can see by this schematic is from here, this point back of sidewalk to back of sidewalk here is the 50 feet of right-of-way. And what we have proposed is moving that line to back of curb here, back of curb here, which would mean 31 feet of right-of-way, but with an easement of another nine and a half feet on either side to encompass the sidewalk and the utility easements and so forth. So frankly, if you look at it, you will see no difference in where it is. What it allows us to do is move the houses nine and a half feet closer to the road. Now, this was the same thing that occurred in, let's see, let me get it up here. In the previous approval back in 96 that Tom referred to along these subdivision streets, they were all, a waiver was granted to move the building line or move the right-of-way line from back of sidewalk to back of curb. And the houses were built that way. And as you can see, they tend to have larger backyards. I'm not seeing anything being shared. No, I'm sorry. Let's see. There we go. See it now? Yes. Okay, sorry. These lots here in the Palomar View subdivision have the same waiver. and the streets are in the same place. The houses were all moved, as Tom said, they were uniformly moved to the front forward, eight or nine feet, whatever the distance was that was granted there. The topography, if you, again, if you look at the development plan, I'm sorry to be jumping around. I need somebody to... If you look at the topography of all this, it's essentially the same. So that's where we're coming down. Two, we want to create essentially a very similar, it'd be the same as the greater subdivision, the greater neighborhood that you're seeing there. It allows the homes to be moved nine and a half feet away from the back line, which gets them away from the tree line, which gets them away from their neighbors in the back. which and i've talked with um um barbara taylor who um lives uh right in the middle of their backs up to this and she's she was um understandably uh favorable to having more space between her and and the house that's going up behind her all the utilities um of the road and the utilities are in You know, they're in. So there's no downside. There's no issue as to public safety or whatnot. The issue of the legal argument is not one that this precedent stands precedent for everything. The issue is it's an equal protection argument under the Constitution that says you have to treat people equally in the administration of laws and regulations. The issue is then for the staff, that shifts the burden to say, okay, why don't we do it in this instance? Why do we need to change things? That's the issue. It's not that it applies everywhere. It applies everywhere unless you explain why it shouldn't. And all I've heard is why it shouldn't is the topography. Well, the topography was the basis of the change in the first place. and frankly um i'm i'm kind of i love the staff and work with the staff and and you know we have our our our agreements and disagreements but i'm for the life of me i don't understand why they're falling on their sword for this one it hurts no one it's consistent with the neighborhood that's already there. It provides relief space where it's needed in the back of these properties. So that's our argument. It's basically it completes a neighborhood in the same way that the existing neighborhood was designed and built. And that's basically it. So we'd ask you to, and I'd be glad to answer any questions, but we'd we'd respectfully request the approval of the waiver. And we provided findings in our request for the waiver that I think you have in your packet. Thank you, Mr. Turner. Is there any commission members that have any discussions to the members? Comments? Statements? Mr. Polk? I'm more opposed to the idea of making this waiver on the basis of essentially urban design issues. I think that, in fact, it makes sense for the immediate community for there to be consistency. and um but i'm really disturbed that the argument being made is a is a uh a legal argument uh it that that for me is is just not comfortable and makes me very very wary about uh following through on my intuitions about what the right thing to do is because it puts us in a position of following that argument whenever it comes up. So I'm a little confused about this. I totally understand why it makes sense to do the waiver, to build the way the rest of the the community is built. It's an exception to the norm in the larger community, but it's consistent and it exists. I'm very disturbed by the argument about the legal precedent. If I can address that, you know, that's an argument really anytime you all make a decision that's there. Now in this case you all don't have to take you know you don't have to buy that argument if you don't want to but you bring up a good point particularly as we've gotten into more density and issues you come into these design elements and so forth you know good urban design and you need to move things around be able to move things around here and there. for all sorts of good reasons. We've given you those. The last time this was heard, I don't know if all of those arguments were heard, but last time that was heard, it didn't seem to carry the weight of the day. So, I mean, you all can decide this up, down, or indifferent for any reason that you want to. They're legitimate, obviously. So if you don't buy the legal argument, that's fine if you support it on other grounds. Just don't make those findings. Thanks. All right, Mr. Mulvynum. Yeah, I got one quick question. If you educate me, the adjoining neighborhood when it was approved before, was there an increase on the rear yard setbacks in that scenario and in on this development is there going to be a change to the rear yard are we adding more green space in the back by getting rid of it in the front or is that saying it is yeah i can't speak to what they did in the previous one but it it looks like when you look at the aerial that's exactly what happened no uh actually i i reviewed that if i may jump in here that plant they didn't change anything other than the right away in the front setback under our 1d zoning the side and rear setbacks remain and they remain the same here yeah moving it's the front setback right and that's what i mean as they moved the buildings that's that's what i mean tom they they appear to have moved the buildings forward right but they didn't actually change the required setbacks right no i i agree with you but the result was you increased the green space in the backyard that's the intent here too yeah the practical impact is backyard up there Okay. Mr. Paul? So would it make sense to agree to decrease the front yard setback as long as the rear yard setback is increased proportionately so that you do, in fact, ensure that the rear yard does get bigger and the house just doesn't get bigger? I believe you could do that. Sure. Yes, sir. and I'll take the opportunity at this point to address how way there's conditions and they're in your report they're in article 1-5 this applicant chose exceptional hardship they had available to them design innovation and large-scale development now we would have perhaps had to discuss what constitutes large scale, obviously. But there is within your ordinance a design innovation criteria for granting a waiver. So to Graham's concern, that is there. Now, again, we can quibble over whether or not this is a, quote, large scale development, but in association with the previous development, the other streets you could argue well that when you take it in that context well yes it would be a large deal so but they didn't make see they didn't make that argument before nor did they this time so staff can only react to to what they gave us okay now we're going to take mr nickel first then ground that's an interesting point because yeah i'm uncomfortable about their their their argument But let's just say theoretically, if this was an argument based on design innovation and you received it in that way, Mr. Martin, would you have been more inclined to accept their approval? Or would you approve their waiver? Would you be more inclined to if it were less combative and legalistic and more of an urban design slash design innovation request? That's not just going to be up to Mr. Martin. It's a staff recommendation. Right. It's a staff recommendation. Our recommendations are based on what the applicant provides for, and it's the responsibility to provide information to justify their request for a waiver. Yeah, and if you may recall, community, Anderson Communities requested a geometric street waiver out off Spur Road based on innovation and large scale design, where this body approved a whole different set of street geometrics for that development. you may recall it is off of spur road and that that was the justification but it was it was a a design element for the entire the entire development okay so this is just real quick this is the first time we've heard mr turner give a presentation on this there was somebody else representing them when it was disapproved yes the engineer okay thank you Mr. Poe? So the next question is, can the planning commission use the argument that this is a design innovation to support positive reading of the request? Even if the applicant didn't make that argument themselves, can we introduce that argument? Oh, thank you. We have that. Yes. Yes. We can stand in here. We can do that. Hold on one second. Can we get Tracy up with legal for Grant's question? I think you can, but just I want you to refocus for just a minute on this. You know, what Tracy Wade said is accurate. You know, the applicant provided us a justification. They set forth their arguments, and we reacted to those. And let me first say, you know, I respect Mr. Turner immensely, but I don't agree with him that there's an equal protection or precedent setting argument on this one. And we talked about it within the staff. waivers by their very nature and by the things that are outlined to grant them are going to be dependent on circumstances and instances and properties in that you have to consider individually as they come before you so i don't think it is it i don't think it is a viable argument to say because on this property over here, even though it was nearby, you know, 20 some years ago, we granted this waiver. Now we have to grant it again because we're close by and we're making the same argument. I mean, that is a road I don't think this commission wants to go down and I would encourage you not to. But that being said, you can, you know, you can, you can grant a waiver based on what you hear, based on your own reading of the circumstances, and you're looking at the facts if you believe it's warranted. And if you want to do that, I would just encourage you to not rely on any findings that talk about precedent setting or, you know, the prior subdivision. And also one other thing to consider going, you know, in your consideration is, you know, the applicant also determined what zone they wanted to file and what type of development they wanted to do here. And so, you know, they are creating a development that includes commercial townhomes and single family homes, but they're asking for a waiver that applies on the streets with the single family homes and that's what was presented to the staff or at the time of the original zone change and also in this request for this waiver so in sum what i'm saying is you're not precluded from granting the waiver if you choose to but you would have to do that based on what you're hearing today what you believe this development these streets this cert the circumstances here warrant and not on some well you did it over here so you should do it over here kind of precedential argument. Thank you Tracy. We had a Mr. DeMolden had a question and then Mr. Davis and Mr. Penn. Yeah Mr. Turner I just wanted to clarify if if the reduction in the front setback was added to the rear your client still can develop as they intend to. Yes. All right. Thank you. Okay. Mr. Davis. Thank you, Mr. Chair. Mr. Turner, like Mr. Pol and Mr. Nickel, I certainly did not receive that particular argument very well, equal protection. I guess this is a question for Tracy. Tracy, if we do approve this, which I have no problem with it whatsoever, would it be Prudent to note in the record that the Planning Commission specifically rejected that argument or did not make a decision using that argument as part of our consideration. because if it's this simple to cite a decision made in 1995 and to say, well, you did it then, you need to do it now, I think there's just concern among the commission members that we be very clear about our intentions. You could certainly do that, yes. Thank you. And we can assist you with that if you would like for us to. Thank you. Mr. Penn. Mr. Turner, let me ask you a kind of backhanded question here. Nobody's mentioned the fact that you're saving nine and a half feet of driveway by asking for this waiver. Is that a consideration? I never heard that until you just said it, to be honest with you. Well, you are. Yeah, maybe so. So, you know, I don't know what that quantifies into in dollars, but not that much. Well, I'm not asking for consistency here. I mean, the karst topography thing didn't carry any water at all. I mean, I don't know why that's there. Well, you know, we have to make these, you know, I have to make the equal protection argument to preserve the issue. And so you can ignore it and you can find around it. But at any rate, it's in the record. And I think we're going in the right direction. And, you know, we're amenable to adding the front setback save to the backyard setback to resolve that. It is consistent. you know and frankly i've worked with the staff for about 40 years now and it's there are a lot of conversations we have that say maybe you ought to go do it this way you know that might you know we don't like this about that but you could you could maybe go in this direction i don't know if anywhere that was had or not but you know that's they do take what is presented but we all talk through all the issues as you know. But you also know that we're used to having waivers. We're not used to helping the developer write his waiver to make it meet his needs. You understand that? Well, we requested the waiver on the basis that we thought was appropriate. We have no objection to considering the larger development issue as well. So I'm not here to fight about all that. And I'm not either. I just, I think there's more to this than what the original justification was. And I think we'll get to the right decision, but this is certainly not the way I'd like to see a planning commission operate. Well, I will say, you know, and again, I'm not trying to, when we were at the subdivision committee last week, the issue of the legal argument was brought up. And I thought we were going to sit down with Tracy and talk about it. And actually, I've made several inquiries to do that, and we didn't get to do that. Okay. Thank you. You know, I've seen this before in the subdivision committee, and I didn't buy that argument then. I don't buy it now, but I do see what some of my fellow commissioners are saying, and there might be a way to do this, but this is not the way for us to do away with the planning commission on the fly. Okay. Several discussions there. now before we move on to far do we have any citizens that want to speak on behalf of this application i don't see any raise of hands or anything okay all right so we'll bring this back into the commission yeah i'd like to just comment if i may and i've known dardy be longer than b so um there you have it. But, you know, I believe we all know the rules to play by. And, and we try to play within those rules. And then you worry about precedents, stuff like that. And this, the whole approach to this is just, I stand with Graham, I'm frustrated with just the whole, I hate to use the word, but the arrogance of it all, just the presumption that it can be just done. I'm sorry, but I just I struggle with that in this case. I believe I believe staff has to work with with with the developers and with with council. And I'm struggling just with this whole situation with the whole way it's been presented. Well, thank you. Your comments are noted. Mr. Pohl. so i'm looking at this thing and i'm i'm thinking about a bunch of different neighborhoods in the city that have very small front yard setbacks and recognizing that they're fairly desirable places and recognizing that we have zoning for consistency and to establish some groundwork for making development a known quantity. But we also have here a cohesive neighborhood, the last piece of which is being developed. And if it is to be consistent, the setback would change, I think. So looking at those two points, I'm supportive of this, but I'm thinking that the best thing might be to postpone this and ask the applicant to readdress the argument and resubmit it in a way that that's more appealing and more understandable for the commission to address. Thank you Mr. Paul and I don't see any other hands risen right now. Ms. Plumlee. Oh, thank you, Mr. Chair. I just wanted to restate that I have strong feelings. I've stated this previously that each plan we hear is on its own merit. And to consider a plan or something from 95 to me is just ludicrous. We've heard this request before from a different angle of that presentation. They showed the houses that they were building or had built. and this is a seasoned developer. He knew what was under that ground going in. I think we spent a lot of time being kind here. I think that we should support the staff, and I certainly am willing to give that in the form of a motion if you're ready. Ms. Plumlee, the floor is open. I don't let anyone else have any discussion. Okie dokie, here we go. PLN MJDP 1830, Ethington and Ethington Properties. I move to support the staff with disapproval of the waiver and I think they offered two conditions. Thank you. Okay, we have a motion on the floor. We have a second to that motion. Okay, Mr. Penn has seconded that motion. All in favor, if I raise a hand. So we have Mr. Penn, Ms. Blumley, Mr. Pohl, and Mr. Bell. Mr. Bell, is that two hands in there or one? Okay. I wasn't looking at me, so I didn't know. Oh, I got you. I got you. And Ms. Meyer. Any opposed? If I raise a hand. So we have Mr. Moblin, Mr. Davis, Mr. Nichols, Mr. Forrest. And Mr. Wilson? Yes, I abstain. So how does that work? What's the count? The winning side. We got what, four? No, the no was added. It was five no's. Five went for the motion and four went for the no's. So the no's added. Yeah, we might want to. We can do it. The motion was made by Ms. Plumlee and seconded by Mr. Penn. And those that voted and made for the motion to disapprove were Plumlee 10, Bell, Meyer, and Ms. Poe. Yep. So that's five. And then you had those opposed to the motion. Mr. DeMovlin, Mr. Davis, Mr. Nickel, and myself. So that was... And Mr. Wilson abstained. So it's 6-4. So that's... I was right. I'm correct. So the motion passed. Yes, the motion is passed. To disapprove the waiver. So right now, we're going to take a short break, maybe a five-minute break to get everybody a chance to kind of rehydrate. Mr. Bailey is trying to get you to speak. Yes, ma'am. We're going to need probably about 15 minutes to get us back and set up in the office. We're heading that way now. Bear with us. What's left on the agenda? We've got two items. We've got a commission item. It's an appointment of the floodplain appeals committee membership, and then there's the cell tower. I'm hoping I'm a hopefully sail tower can be brief. Well, before we move on, the planning commission disapproved the waiver, but I think we still need action on it. Reapproving the development plan. For the, is that right? I don't think so. Yeah. So for Essington and Essington's property, they amended their plan and they also had a waiver. So you voted on the waiver, but the amendment to the plan had to do with just lot one. Do you want a motion for that? Yes, we would need a motion for that. Let me get back to it. That's page eight. I got it. So we want to address the amended vote. Yes, thank you. Mr. Chairman. Yes, sir. I move to approve the amendment to the development plan PLNMJDP 1830 as presented by state. Okay, we have a motion on the floor. We have a second to that motion. Second, Mr. Bell. Any discussion? Seeing any, all in favor, raise your hand. Okay, that's unanimous. Thank you. So 15 minutes, that'll put us, Mr. Bailey, a little bit after five, so we'll be waiting on you, buddy. Mr. Martin is on his way right back now, and the rest of us will be following him. Okay. Hey, folks, we're...