# Planning Commission Subdivision Meeting - November 12, 2020 > Auto-transcribed civic record · November 12, 2020 - **Permalink**: https://meetings.lexingtonky.news/meeting/5247 - **Source video**: https://lfucg.granicus.com/player/clip/5247?view_id=14&redirect=true - **Date**: 2020-11-12 - **Last revised**: November 12, 2020 - **Length**: 23,981 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Urban County Planning Commission held a video teleconference meeting on November 12, 2020, at 1:30 PM, presided over by Larry Forester. The Commission considered six agenda items and took 12 votes during the session. No public comments were heard during the meeting. The Commission approved five items: the Dan W. Scott II Property subdivision, the Sand Lake & Estes Properties Section 2 subdivision, the Blackford Property development plan, the Baptist Church of Andover Property development plan, and the Hoover and Philpott Evangelistic Association Property waiver. The Commission denied one item: an appeal of a Board of Adjustment and Review (BOAR) decision for 221 Barberry Lane. ## Attendance **Present:** Larry Forester, Ivy Barksdale, Zach Davis, Anthony de Movellan, Janice Meyer, Bruce Nicol, Frank Penn, Carolyn Plumlee, Graham Pohl, and Bill Wilson. **Absent:** Headley Bell. **Late arrivals:** None. ## Votes and Decisions **Approval of September 10, 2020 Minutes** [timestamp: 0:11:04] Motion by Anthony de Movellan, seconded by Graham Pohl. Passed unanimously, 10-0. **Postponement of Spring Lake to December 10, 2020** (PLN-MJDP-20-00067) [timestamp: 0:14:39] Motion by Carolyn Plumlee, seconded by Janice Meyer. Postponed unanimously, 10-0. **Postponement of Griffin Gate Office Park to December 10, 2020** (PLN-MJDP-20-00057) [timestamp: 0:16:12] Motion by Carolyn Plumlee, seconded by Graham Pohl. Postponed unanimously, 10-0. **Postponement of Lexington Mall Property, Lot 6-A to December 10, 2020** (PLN-MJDP-20-00029) [timestamp: 0:17:44] Motion by Frank Penn, seconded by Graham Pohl. Postponed unanimously, 10-0. **Postponement of Headley, Niven & Vance Property, Lots 1, 2 & 3 to December 10, 2020** (PLN-MJDP-20-00054) [timestamp: 0:18:46] Motion by Graham Pohl, seconded by Carolyn Plumlee. Postponed unanimously, 10-0. **Postponement of Lexington Mall Property (Planet Fitness Lexington Richmond Road) to December 10, 2020** (PLN-MJDP-20-00050) [timestamp: 0:19:56] Motion by Graham Pohl, seconded by Janice Meyer. Postponed unanimously, 10-0. **Approval of Dan W. Scott II Property Subdivision** (PLN-FRP-20-00053) [timestamp: 0:24:29] Motion by Carolyn Plumlee, seconded by Anthony de Movellan. Passed unanimously, 10-0. **Approval of Sand Lake & Estes Properties Section 2 Subdivision** (PLN-FRP-20-00054) [timestamp: 0:31:21] Motion by Frank Penn, seconded by Graham Pohl. Passed unanimously, 10-0. Approval included waiver with bond for sewer. **Approval of Blackford Property Development Plan** (PLN-MJDP-19-00074) [timestamp: 0:55:58] Motion by Frank Penn, seconded by Graham Pohl. Passed unanimously, 10-0. Approval included 19 conditions as recommended by staff. **Approval of Baptist Church of Andover Property Development Plan** (PLN-MJDP-20-00069) [timestamp: 1:04:11] Motion by Bill Wilson, seconded by Carolyn Plumlee. Passed unanimously, 10-0. Approval included 17 conditions provided by staff. **Approval of Waiver for Hoover and Philpott Evangelistic Association Property** (PLN-FRP-20-00020) [timestamp: 1:15:23] Motion by Anthony de Movellan, seconded by Graham Pohl. Passed unanimously, 10-0. **Support BOAR's Decision to Deny Painting of Brick Structure at 221 Barberry Lane** (BOAR 2020-2) [timestamp: 3:00:12] Motion by Bill Wilson, seconded by Graham Pohl. Passed unanimously, 10-0. All votes were unanimous with the following members voting in favor of each motion: Larry Forester, Ivy Barksdale, Zach Davis, Anthony de Movellan, Janice Meyer, Bruce Nicol, Frank Penn, Carolyn Plumlee, Graham Pohl, and Bill Wilson. ## Contested Items **Appeal of BOAR Decision for 221 Barberry Lane** The meeting included discussion of an appeal concerning a Board of Architectural Review (BOAR) decision related to 221 Barberry Lane. The dispute centered on the painting of a historic property that was undertaken without prior approval from the appropriate review authority. The contested matter involved disagreements regarding notice procedures and compliance with preservation guidelines. Community opposition was present regarding the decision, with parties raising concerns about whether proper notification had been provided and whether the work adhered to established historic preservation standards. The specific outcome of this appeal was not detailed in the available meeting materials. ## Dan W. Scott II Property subdivision **Identifier:** PLN-FRP-20-00053 **Purpose:** The agenda item addressed a proposal to subdivide one lot into two lots on the Dan W. Scott II property. **Presentation and Discussion:** Traci Wade presented this item to the body [timestamp: 0:24:29]. The Subdivision Committee had previously reviewed the proposal and recommended approval with conditions. **Outcome:** The subdivision was approved. ## Sand Lake & Estes Properties Section 2 subdivision **Identifier:** PLN-FRP-20-00054 **Overview** The meeting included discussion of an amendment to subdivide Lot 2 and add a 24-foot access easement to Lot 6 for the Sand Lake & Estes Properties Section 2 subdivision. **Presentation** Lauren Hedge presented on this agenda item [timestamp: 0:31:21]. **Recommendation** The Subdivision Committee recommended approval of the amendment with conditions and a waiver. **Outcome** The subdivision amendment was approved. ## Blackford Property development plan The Blackford Property development plan was presented as a discussion item during the meeting. The proposal involves developing the property as an apartment complex containing 324 dwelling units. Tom Martin was the key speaker on this agenda item. The Subdivision Committee had previously reviewed the development plan and recommended approval, subject to conditions. The agenda item resulted in an approval outcome. [timestamp: 00:55:58] ## Baptist Church of Andover Property development plan **Project Overview** The Baptist Church of Andover property development plan proposes an elderly apartment complex with 260 dwelling units on the site. **Committee Recommendation** The Subdivision Committee recommended approval of the project with conditions. **Discussion** Tom Martin was the key speaker on this agenda item. [timestamp: 1:04:11] **Outcome** The development plan was approved. ## Hoover and Philpott Evangelistic Association Property waiver **Identifier:** PLN-FRP-20-00020 The committee considered a waiver request from the Hoover and Philpott Evangelistic Association regarding property development. [timestamp: 1:15:23] **Request** The applicant requested a waiver to coordinate the timing of development while constructing an off-site sewer trunk line. This waiver would allow the applicant to proceed with their development plans in coordination with the sewer infrastructure work. **Committee Action** The Subdivision Committee recommended approval of the waiver request. **Outcome** The waiver was approved. ## Appeal of BOAR decision for 221 Barberry Lane [timestamp: 3:00:12] The Planning Commission reviewed an appeal of a Board of Architectural Review (BOAR) decision regarding 221 Barberry Lane. The appeal challenged BOAR's denial of a Certificate of Appropriateness (COA) for painting an unpainted masonry wall. Key speakers in the discussion included Hal Bailey, Bettie Kerr, and Anna Weitz. **Outcome** The Planning Commission upheld the BOAR's original decision and denied the appeal. --- ## Decisions - **Motion** — passed (10-0): Approval of September 10, 2020 minutes - **PLN-MJDP-20-00067** — postponed (10-0): Postponement of Spring Lake to December 10, 2020 - **PLN-MJDP-20-00057** — postponed (10-0): Postponement of Griffin Gate Office Park to December 10, 2020 - **PLN-MJDP-20-00029** — postponed (10-0): Postponement of Lexington Mall Property, Lot 6-A to December 10, 2020 - **PLN-MJDP-20-00054** — postponed (10-0): Postponement of Headley, Niven & Vance Property, Lots 1, 2 & 3 to December 10, 2020 - **PLN-MJDP-20-00050** — postponed (10-0): Postponement of Lexington Mall Property (Planet Fitness Lexington Richmond Road) to December 10, 2020 - **PLN-FRP-20-00053** — passed (10-0): Approval of Dan W. Scott II Property subdivision - **PLN-FRP-20-00054** — passed (10-0): Approval of Sand Lake & Estes Properties Section 2 subdivision - **PLN-MJDP-19-00074** — passed (10-0): Approval of Blackford Property development plan - **PLN-MJDP-20-00069** — passed (10-0): Approval of Baptist Church of Andover Property development plan - **PLN-FRP-20-00020** — passed (10-0): Approval of waiver for Hoover and Philpott Evangelistic Association Property - **BOAR 2020-2** — passed (10-0): Support BOAR's decision to deny painting of brick structure at 221 Barberry Lane --- ## Full transcript really nice as an amenity. So we're really excited about what's responsible for kind of the park project on this. Like I said, we're actually having three major projects coming to this area pretty soon. Clay's Mill reconstruction, the construction on the park, and the construction on the watershed water quality improvements. It's a lot happening, but I promise you at the end, it's going to be worth it. We're going to keep all this information on the Facebook page, on the 10th District page as well, as well as our newsletter. So if you want to make sure you're on that newsletter please email us at cbaker at lexingtonky.gov we want to make sure that you're getting up-to-date information as we move forward this is going to be a couple years in the making it's going to be a long haul so we need you to be patient we hope you'll be informed we'll hope you'll be supportive and we'll hope you'll give us our feedback until then I'll see you soon Thank you. Didn't find time to call Ready or not Gonna make it to your city Oh, this is the night Oh, this is the celebrity boy Yes, I'm tonight Why are we lonely? You're saying all the new leaders So why are we lonely? It's you alone Sitting on a pillow Waiting to climb the walls Maybe it's your mind When all the jingles She's coming around with She's closer to the land of the bar Dress up tonight Why be lonely? Cause I had a home and you were so Why be lonely? Celebrate, celebrate, dance to the music. Celebrate, celebrate, dance and music. Celebrate, dance and music. Celebrate, dance and music. Celebrate, dance and music. Thank you. Okay, good afternoon everyone. It is 1.30 p.m. for Hal. Welcome to the Urban County Planning Commission Subdivision Items Committee today. And we're going to call this meeting to order. And first up, I want to read off the governor's statement. Due to the COVID-19 pandemic, state of the emergency, and Governor Beshear's executive orders regarding social distancing, This meeting is held via teleconference pursuant to Senate Bill 150 as signed by the Governor on March 30, 2020, and the Attorney General, Opinion 20-05, and in accordance with KRS 61.826 because it is not feasible to offer a primary location for the meeting. All righty. Next up on the agenda item is the approval of minutes. and if there's no questions or revisions to those minutes i will take a motion of approval miss plumley uh have we really seen september the 10th minutes uh we sent them out this morning so there was a bit of a delay in getting them out if you all don't feel comfortable um approving them today we'll put them on next week's agenda well i i would be comfortable only i did not receive them so so i i will yield to someone else okay thank you uh did everyone else receive the minutes i i received them this morning but anybody else did not receive those minutes i'll move to approve the minutes okay got a motion in a second Any opposed? All in favor, please raise your hand. Ivy, are you? I'm sorry, I haven't heard anything, so I finally got my sound back. Okay, there was a motion on the floor for the approval of minutes and a second to that motion. Are you in favor of that motion? Well, okay, thank you. All right, so you're next. Thank you. Next up, we're going to go to performance bonds. We're going to skip around just a little bit and letters of credit, then come back to postponements or withdrawals. So I'll need a motion for the performance bonds and letters of credit. Mr. Chairman, I move to approval of performance bonds and letters of credit. Thank you, Mr. Penn. I have a second by the poll. Any discussion to that motion? Seeing none, all in favor, raise your hand. All right, unanimous. Thank you. Next up, item number three, postponements or withdrawals. Stand. Sir, Mr. Nick Nicholson has raised his hand. Can I pull him into the meeting? Yes. Nick will be promoting you now. Mr. Nicholson, go right ahead. Thank you all. On page six of your agenda item I, on behalf of all homes I would like to request a one-month postponement for Spring Lake to I believe it's the December 10th meeting. We are still working with staff and the neighbors and just need a little bit more time. Thank you, Mr. Nicholson. Staff, that's the next meeting. It's December 10th. Just making sure that you're correct. Okay. All right. So we have a motion on the floor for a one-month postponement. I mean, not a motion. Excuse me, man. I obtained a motion. Ms. Plumlee? Thank you, Mr. Chair. I move postponement of PLN in JDP 2067 Spring Lake until December 10th. I have a second by Ms. Meyer. Any discussion to that motion? Seeing none, all in favor, please raise your hand. Unanimous. Thank you. Thank you all very much. Thank you, Mr. Nicholson. We'll be demoting you now and we'll be promoting Mr. Scott Southall. Mr. Southall, you've been promoted. Do you want to go ahead and start your video? Yes, thank you. Thank you, Mr. Chair. Members of the Commission, I'd like to address your attention to page 5, item E, PLN, MJDP, 200057, Griffin Gate Office Park. I'd like to request a one-month postponement. We are still working with staff and the owner on some details associated with the project. Thank you, Mr. Southall. Any commission members have any questions from Southall? Seeing none, the floor is open for a motion for the one-month postponement of the December 10th meeting. Ms. Plumlee. Thank you, Mr. Chair. I move postponement of PLNMJ DB 2057 Griffin Gate Office Park until December 10. We have a motion. We have a second to that motion. Mr. Pol, thank you. All in favor, please raise your hand. Okay, unanimous. Thank you. Thank you. Thank you, Mr. Sappho. You'll be demoted now and we'll be promoting Mr. Rory Cayley. Mr. Cayley you have been promoted if you would like to go ahead and start your video you can address the commission. Mr. Chairman and members of the Planning Commission on page three item b major development plan 20-29 Lexington Mall we'd like to follow the staff recommendation request a one-month postponement to December 10th. Okay so we have a request for a one-month postponement do we have any questions? Mr. Roy can you tell us your reasons as to why? Well there's still questions regarding that pedestrian connectivity we've got to work out with with the owner. Okay, so you'll be discussing that with staff? Yeah, they'll be part of that too. Okay, any further questions? The floor is open for a motion. Mr. Chairman, I move to post-comitant PLN-NJDP 2029 to the December 10th meeting. Okay, we have a motion and a second by Mr. Poll. All in favor, please raise your hand. Thank you. Thank you. Thank you, Mr. Kaley. We will demote you now. We'll be promoting Mr. Alan Wiley. Mr. Wiley, you've now been promoted. If you can start your video, you can address the commission. Good afternoon. I don't have any video to share, so I apologize for that. I'm here for Major Development Plan 20-54, page 4, item D. I'd like to request a one-month postponement on that. We're still working through some of the staff comments on that project and just need a little bit more time. Okay. Mr. Paul? I move to postpone PLN MJDP 2054 until December 10th meeting. We have a motion. We have a second to the motion. Ms. Plumlee. All in favor, please raise your hand. All right. Unanimous. Thank you. Thank you. Thank you, Mr. Wiley. We'll be demoting you now. Sir, I do not see any other hands raised. May I address the phone number? Yes. There is a phone number 929-0927-2627. That doesn't seem to be a phone number. But if you would like to address the commission on a postponed item, please raise your hand now. All right. Mr. Tom Martin is waving his hand as well in the top corner for us. Go right ahead, Mr. Martin. Thank you. members of the planning commission i'd like to direct your attention to page four item c staff has received a communication requesting a one month postponement on that plan it is major development plan 20-50 lexan mall property they are continuing to work with home depot on some issues that they have with home depot that need to be resolved before this plan can go forward Okay. Thank you, Mr. Martin. Any questions? Seeing none, the floor is open for a motion for the one-month postponement. Mr. Poe? Mr. Chair, I propose a one-month postponement for PLNMJADP 20-50 until the December 10th meeting. All right. Thank you. Do we have a second to that motion? Ms. Meyer, thank you. We have a motion and a second. All in favor, please raise your hand. All right, unanimous. Thank you. Okay, so next up, staff, we have a consent agenda. Thank you, Chairman Forrester. We do have several items today that appear on the consent agenda. one is a subdivision item and then three development plan items i'll read those through and then see if there's anyone in the audience or a member of the commission that wishes to have any of these items heard by the commission today the first item of our consent agenda is a subdivision plan. It is PLN FRP 20-53, Dan W. Scott 2 property amended. This item does appear on page 2, item A of our regular agenda, and it's for property located at 2470 Russell Cave Road in the Council District 12. There was a sign posted on the property, and the applicant has provided the affidavit documenting that posting to the staff. The next item appears on page 5, item F of your agenda. It is CLN NJDP 20-63 for the Roy Keith property and Lexington Urban RCDA amended. The property located at 858 and 862 West Main Street. The next item on the consent agenda is on page 6, item G of our regular agenda, CLN MJDP 20-64 from Beaumont Farm, Unit 1, Section 5, Lots 9 and 10. So that's property located at 960 and 980 Midnight Pass. And then the last item that appears on the consent agenda today is found on page 6, item H, just below that on our regular agenda of the previous item, PLN MJDP 20-65 for Brighton Place Shops, Lot 2. And this is also an amended final development plan today. The property is located at 3090 Helmsdale Place. So those four items appear on our consent agenda. And I'll just ask the Planning Commission if there's any of those that need to be pulled off. Let us know. Or if there's a member of the audience today that wishes to have any of those four items heard, raise your hand. We can document that and then do a full presentation. If there's no one present or none of the commission members who wish to have an item heard, the commission can consider all four of these items with one motion. Okay. All right. I'm not seeing any hands raised. Any commission members have any questions or concerns? I'm not seeing any. Okay. So the floor is open for a motion to accept the consent agenda as presented by staff. Ms. Plumlee? Ms. Blummey, you are muted right now. Thank you, Mr. Chair. Move approval of the consent agenda as stated by staff. We have a motion and a second by Mr. DeMoglin. All in favor, please raise your hand. Okay, that was unanimous. Thank you. Thank you. All right. So now we're on page two of the agenda. Item 1B, final subdivision plans, PLN, FRP-20-54, Sand Lake, and Estates Properties. I think Frank said this has been here as long as he's been on planning commission. Staff? Thank you. Share my screen here. Okay, this is Sand Lake and Estes properties section 2 amended. This is located at 109 Sand Lake Drive. This is near the corner of Manowar Boulevard and Richmond Road. Also this is item 1B in the Google Drive in your documents. The purpose of this amendment is to subdivide lot 2 which will create lots 2 and 6 and to add a 24 foot access easement to lot 6 to serve lot 2. So we have many of our standard sign-offs on this plan. We also have a couple cleanup items. We just need the title and language corrected and what is labeled as the parking and access easement responsibilities of owners. That's actually a private street and access easement, not parking. We also need the commission certification language corrected. And the lot numbers of 2 and 6 need to be reversed on the plat to match the approved development plan. Condition number 12 is regarding the proposed waiver to sections 4-7C and 4-8 for sanitary sewers. These sections pertain to requirements for the completion of public improvements prior to certification by the urban county engineer. And because the correct grade for the sanitary sewer can't be determined until the grading and construction plans are completed for the new building on lot six, the sewer line will be constructed in conjunction with the development of lot six. So the applicant is requesting a waiver to article 1-5A, exceptional hardship under the land subdivision regulations. And given that a certificate of occupancy will not be granted until the sewer and other public improvements are completed, staff would agree that granting that waiver should have no adverse impact on public health and safety consistent with our subdivision regulations. So staff does recommend approval of the waiver. And finally, our last condition, number 13, that condition has been resolved, but it's in regards to the pedestrian access easement to lot six. So that's that little pedestrian access easement that comes off of Lake Wales Drive, that needs to now be extended a little further to extend to the newly created lot that is currently labeled number six but will be labeled number two. And with that, I will open it up to the commission for any questions. Go ahead. Before you move on, there is a staff report related to the waiver on the Google Drive as well. And there is one condition of the waiver and that's something that the Apple can agree to prior to, I think it's a subdivision committee and it's very, very typical and that's that they post a bond or letter of credit for the sewer while it's not being built. To ensure it does get built at the correct time. Okay, thank you. Thank you, Tracy. All righty. I don't see any commission members have any questions. We will move forward to the applicant. Mr. Richard Murphy has raised his hand. May I bring him into the meeting? Yes, sir. Thank you. and . Mr. Cayley and Mr. Murphy, you've both been promoted. You may address the commission. Yeah, thank you very much, Mr. Chairman. We are in agreement with the staff conditions and also the waiver. I have not seen the waiver report, but I did note in my request that we are not asking to waive the bonding requirements. So we will be posting the bond just as we would in any other case. So we're agreeable with staff conditions. Thank you, Mr. Murphy. Any questions for the applicant, commission members? All right. Yes, Mr. Penn. Mr. Murphy, you and I have kind of put our career on the sand lake projects. Is this the last one? Oh, I'd never say never on that. Well, I don't want to say we've been going a long time, but one of Tracy wage first cases. So it's been going on a while. I hope that lasts Sand Lake and I hope you outlasted it too, Dick. I agree. I agree. I was very young when I started. She's going to remember that, Frank. Thank you, Mr. Murphy. Thank you. Doesn't see any of the commission members have any questions. Is there anyone that's on the call right now that would like to speak on behalf or against this particular agenda item? You can do so by raising your hand. Not seeing any. Okay, we'll bring it back to the commission. And the floor is open for a motion. Mr. Chairman, I'd like to make the motion on this one because hopefully we're putting sand lake in bed. I move for approval of PLN FRP 2054 with the 13 conditions and understanding that the waiver includes a bond for the sewer. All right. Thank you. We have a motion on the floor. Do we have a second? Second. Second by Mr. Pohl. Any discussion to that motion? Seeing none, all in favor, please raise your hand. Okay. Unanimous. Unanimous. Motion passes. Thank you. Thank you all. Thank you, Mr. Murphy and Mr. Bailey. We'll be demoting you now and moving to our next case. All right. So we should be on page three of the agenda items. Development plans, item A. This is PLN, MJDP-19-74, Blackford Property. We should have an EAMP report as well. Staff. Good afternoon, ladies and gentlemen of the Planning Commission. Mr. Chairman, as you stated, this is Major Development Plan 19-74 for the Blackford property, which is located out on the intersection, roughly just off the intersection of Manowar, which is in this location, and Polo Club, which is down here. It's not actually at the intersection. It's a little removed from the intersection. This is a proposed final development plan to develop this property for an apartment complex. You can see they have access proposed off of Manowar into the property. At the rear, they are proposing an access easement at this location to come into the rear of the property. It is necessary that they have two access points for a development of this size. And there was a lot of discussion about what would be adequate, what would work. And they were able to work with KU and they now have access, as you can see, in this location of the property. Now, they're proposing 10 buildings. You can see how they go kind of around the periphery of the property with a couple, oops, what'd I do? Hold on. I should be able to keep the arrow. Oh, there we go. There you go. Left arrow. Left arrow. You're in the postponed items there, Tom. Yeah, that's why I thought I had to go forward to get past them. You're right. Sorry. There we go. There we go. All right. So again, back to back for the apartments. They are distributed in various building types. They have six building types, actually. They do this to accommodate a mix of bedrooms. They have one and two three-bedroom apartments being proposed. There are a total of 324 units in the apartment complex. It's dominated mostly with one and two bedroom units, but they are providing 24 three bedroom units for larger families in those types of situations. They have a clubhouse, as you can see here, and a pool. This is all a central open space area with the amenities for the development. The number of parking, again, you can see with their access off Manowar, they have parking distributed all the way throughout the development associated with the apartment buildings. Again, you can see the various parking spaces. They also propose garages in various locations. This is a common aspect for this developer's plans. They are required 517 parking spaces. They're actually providing 637 trifle, a little over parked, but not terribly over parked. But the complex is a little over parked. This area here is a CC, a remaining CC section. And again, you can see as you come in, there's parking associated here that will also come into play in the future as that CC should develop. The plan has been reviewed and recommended for approval. Through the subject to the conditions that you see before you on your agenda today. There's a few cleanup things. One is they have to denote the density calculations for EAR2 and EAR3, including the transfer of units from another site. We have a density transfer ability in the ordinance for the EAR, the EMP area, pardon me, in the expansion area. It's not used very often. They actually utilized it on this development to add 77 dwelling units to the property. Now, one of the items that will need to be resolved is this zone-to-zone screening that's necessary along the CC as it abuts this residential development. It's relatively a small area, and we believe that can be resolved with the applicant. They have plenty of room along the rest of the border of that property to put in the required landscape. case. We also need them to denote the approximate location of the conditional zoning on this property. There was conditional zoning imposed for trees to be planted approximately in this area adjacent to the single family homes here, pardon me, yeah, in this area on their property. they have to plant the trees adjacent to the residential area. I believe it's actually going to be, they own this property. It's going to be on this side of the greenway, not the apartment side per se, but on this actual side of the greenway, which the applicant does own. And this site is dominated, in fact, by the greenway and floodplain areas. So this is a floodplain and greenway area all the way through here, as is this area right here. So this site is well defined by those topographic features of the greenway and associated slopes and the floodplain. They are proposing a pedestrian system throughout the development. You can see sidewalks. They're well connected. They've got all the buildings connected by pedestrian access. They have access out to Manowar. They're calling for an access in this area across the Greenway and into the future development for this area, as well as access along the access easement out to the right-of-way. So they're well connected in that sense. And then they're also providing access here, pedestrian access to Constantine. As you all may recall, this is an issue of the original zone change in the plan, how to terminate this road or connect it. There was a lot of discussion at that time about connecting it. Of course, the neighborhood was not in favor of that, and it was deemed unnecessary. One of the conditions that they'll have to meet is appropriate termination, either through a waiver or by closing this little bit of right-of-way at this location. So that's something that will have to be resolved with the applicant. Another issue that staff wants to be sure that is resolved and that we're all on the same table is improvements to man-of-war. we want to be sure that in the discussions we talk about improving and the applicant agreed man of war to urban standards staff wants to be sure we're not just talking about this little section here along the residential but we're looking for we are looking for improvements along the entire frontage of the property this area is according to the applicant will be developed later and by others. We want to be sure, though, that we are all in agreement that we need these improvements along Man of War to be developed in conjunction with this large apartment complex. Now, as you all are aware, you must make a finding on this plan that it complies with the AMP. That report has been included in your Google Drive. And the AMP has several elements that have to be addressed by every applicant document that they are meeting those requirements. They fall into various categories. The future land use element is one that, again, has to be looked at. In this particular case, there was a zone change to residential. They maintained the acreage here in the CCC that is proportional to what was required and recommended in your EAMP. The units that they are providing are also very consistent with the requirement of the EAMP land use recommendation for this area. Very consistent. It's a difference of about four or five units. So they are very consistent in that sense with the land use element of the EAMP and its recommendations. The design features and criteria that also are an element that they have to demonstrate compliance with tend to be several items. The pedestrian system that I mentioned is one. again they have a sidewalk system throughout their development and they also provide connections out to the public right away so they're connecting the development with those with the pedestrian system there aren't any single family or townhouses proposed so the apartments are utilizing setbacks that are that are standard setbacks they have to set their they develop their own standards and And they're proposing very minimal but consistent setbacks that, as you can see, allow them to utilize the site effectively. In addition, there are architectural standards in the EAR zones, in your zoning ordinance. Those are listed on the plan in this area. And these detail the types of design elements that have to be included in the buildings. these are very much consistent with the requirements of your zoning ordinance for the expansion area. The community design element is another, again, element of the EMP they must meet. Now, there's no rural scenic highways in this area, so they don't have to be concerned with that type of issue. They are, as I stated, they have greenways. These floodplain areas and these greenways here and here are very dominant features. And you can see it really defines this neighborhood. And it's interesting that the AMP likes to have, it recommends, I should say, that neighborhoods be well defined. And this one certainly is. And it's certainly well defined by the greenways, as well as its frontage along Manowar. As I stated before, and they are providing access, pedestrian access through these greenways as well. And that, again, allows for that connection for the neighborhood. Not only is it defined, but it's connected. In addition, although there's no tree stands that were identified by the A&P in this area, The greenways are fairly heavily wooded. There's a lot of vegetation in the area. And then the conditional zoning requirement imposed by the Urban County Council that I mentioned before will be planted in this area, which will further enhance that natural element of the greenways and of the area, the neighborhood. Now, the last important element that they have to meet in order to denote compliance is the infrastructure element. Now, this plan is relatively easy when it comes to infrastructure for a very simple reason that all the required EAMP infrastructure is in place. The sanitary sewer trunk line and the pump station has been constructed. As you all are well aware, it's over off Winchester Road near the interstate. So this area is served by that required infrastructure. Polo Club, which is off site in this location down here, has also been constructed for some time. Again, that is required by the AMP. It is in place. The local street system is here in the neighborhood. They're not proposing a local street system, so that level of infrastructure is not required. As I stated before, they are connecting to that infrastructure. With that, staff has issued their report that we do believe that this plan does in fact comply with required elements of the expansion area master plan. And I'll be happy to answer any questions you may have on the development. Okay, thank you, Tom. As commission members, do we have any questions for Tom at this moment? Okay, Mr. Penn. Tom, I've got three questions. I'm going to start, I guess, with the, you say we're over parked by 120 spaces? Roughly, yes, sir. About 20% over parked. Okay. If we're doing minimal setbacks for the apartments, do we need to have 120 extra spaces? Could some of those spaces be used for setbacks? I don't believe the setbacks or the parking. I don't think that relationship would be necessary. They're only slightly, well, staff's always concerned about overparking. I don't know that this multifamily is terribly overparked. It is overparked, but not significantly so for the nature of the development. The setbacks are all internal. They're all internal. They are constrained by those greenways and their ability to utilize the site. So that's not really a level of big concern for staff. Okay. Now, my second question is, by this being the EAMP, is this a final development plan? Oh, yes, sir. Yes, sir. This is a final development plan. They will be building off of this plan. Okay. So we're going to have four resolve items on a final development plan, and one of them is the termination of Constantine Avenue. So how do you work that out? That's a timing element that they'll have to work out. They'll either have to pursue a waiver through the subdivision process, or they can go to the council and pursue a closure of that right-of-way. So they have options. Neither one of those issues really are going to impact their ability to construct the apartments and provide access to man-of-war and develop the property. So it's, again, what we're looking for is a note to address the timing of that. The reason I bring that up is that in the AEMP, it's a little different than in the rest of the areas. We will not get another look at this, so this is a staff item, right? It is a staff item, yes, sir. unless again they pursue the waiver as the course of closing Constantine. Thank you. You would see that plan. That's my question. Thank you. Okay. Thank you, Mr. Bent. Any further questions for Tom at this moment? Mr. Pohl? Tom, you may have covered this, but I see there's an EAR-2 zone and an EAR-3 zone. Could you speak to that briefly? Well, yes, sir. they had a zone change in order to build this apartment complex. The entire area had originally been CC. And of course, CC, community center zone, has its own special challenges, not the least of which is a square footage restriction on residential buildings. So they pursued its own change. They got EAR 2 and 3. It allowed them to develop this property at the density that they desired, which was also why they took advantage of the density transfer provisions in the ordinance. Thank you. We'll share the plan again if you're interested in seeing where that zone line falls. Well, it kind of jogs through the middle. So there's a cast line northwest of building nine, and then it cuts through the parking lot, goes around building six and seven, then jogs back down to the south and through the parking lot and over around building 11. So those five buildings, and again, south, I guess, more west side of the property are in the EAR3 zone, higher density zone. And then the other five buildings that border the Greenway to the northeast are in the EAR2 zone. So they have less density. Mr. Pohl, is it satisfactory for you? Yeah, I was more out of curiosity than anything else. I saw it on the plan and just wanted to understand it. Thank you. Anyone else have any questions for staff? Yeah, I got one more for Tom. Okay. Tom, that just triggered a thought in my mind. The 77 transfer units that have come in, did they go into the AR3? They're actually able to be split between the two of them. So they were split? Yes. Maybe they split between the two. We don't do that very often. I just kind of figure out how that works. Thank you. Thank you. Okay, not seeing any other hands raised. Applicant? Sir, we will promote Mr. Rory Cayley and Mr. Nick Nicholson. All right. Mr. Cayley and Mr. Nicholson, go ahead and start your video. You've been promoted to panelists. Ms. Kerr, I'm going to stop your video for the time being, and I'll bring you in later on. Go right ahead. Nick Nicholson here on behalf of Ball Homes. As you can see, Rory Cayley is here as well. I'm not sure if the Ball Homes representative Buddy Goodwin and Brian Stevens are on the line, but I certainly can speak with them and we can answer any questions you all may have. We are in complete agreement with the staff report, the conditions that are placed thereon, and the expansionary master plan, or excuse me, the expansionary master plan compliance report. The issues that have been marked as resolved, we believe can be worked out through either a development plan note or just a slight tweak to the development plan. I'm happy to go through some of those individual resolves if anyone has questions on how we believe that we can get them basically taken care of through the certification process but also I know that you all have a long agenda and the subdivision committee was very clear with me that we were not supposed to take up much time today and so I leave it up to you all if you want me to address the individual resolves or if you have any individual questions. Thank you Mr. Nicholson. Ms. Plumlee. Okay, one quick answer. Resolve zone-to-zone landscaping. What do you have in mind? So that's a perfect example of a development plan. We think that basically we put a note on there that says any required zone-to-zone screening between the EAR2 and EAR3 parcels and the CC parcel will be addressed at the time of the final development plan for the CC parcel through either a landscaping plan or the granting of a waiver from the Planning Commission. um since we don't have a clear picture of what that cc is going to look like we're not exactly sure where the vehicular use is going to enter but we know it's entering through this development because it is intended to be one main development not to be basically accessed off man of war or anything like that and so we we just thought that once you have a more clear picture for what that CC parcel looks like, that's the time to basically address where the landscaping should or shouldn't be. And since right now it's going to be just basically green open space, we didn't think we should put up a six-foot shrub to block off the open space while we figure it out. Thank you. Yes, ma'am. any other questions if you would like me to basically address the constantine avenue it's very similar to what what i just described we think that there can be a development plan note that requires we get that resolved um basically before any type of building permit goes in for that type of infrastructure we're not sure if that's going to be the urban county council releasing the right of way or we will ask for a waiver on just the local termination but that was a very contentious issue with the neighborhood that they were we were actually in agreement on the issue that they were adamant that that road should not continue and that the buffer area right there should not be disturbed and so if we showed the proper termination we would have to hammerhead that road in the existing buffer area and so to make sure that the neighborhood did not think we were trying to welch on our deal in any way shape or form we wanted to not show that to show that the plan is to either close that or get a waiver to make sure that we're not touching the buffer area. Thank you, Mr. Bickles. Yes, sir. Okay. I'm not seeing any hands. Is there any constituents out there or citizens that would like to speak on behalf of this application? You can do so by raising your hand. Not seeing any. So we'll bring this back to the commission and the floor is open for a motion. Mr. Penn, if you want to take the lead, thank you. Mr. Chairman, I move to approval of PLN NJDP 1974 with 19 conditions. Do you want the compliance reporting at the same time? I think we can. Can we do that? Do we have to do it separately? Right. Usually we do it separately. We want to do it separately. We'll do it separately. Yep. Then suffrage of the 19 conditions as recommended by staff. Okay. We have a motion. Second. Second by Mr. Cole. All in favor, please raise your hand. All right. She knows. Okay. Mr. Chairman, I move for approval of PLNMJDP 1974, with the exception of the compliance report, to go with this development. Thank you. Got a motion. We have a second. Second. Second by Mr. Davis. all in favor please raise your hand unanimous motion passes thank you okay if I did this right we should be on page 7 item J PLN MJDP dash 20 dash 69 Baptist Church of Andover. Staff. This is on page 7, members of the commission. It is Major Development Plan 20-69 Baptist Church of Andover property. And this is a proposal to develop an elderly apartment complex off of Todd's Road, which is over here under our pictures, extending Putter Lane from this location out and to Todd's Road, which you all will recall was subject of a waiver request on the preliminary plan. They're proposing the three apartment buildings, as you can see on the color up in this location, you will enter off of Butter Lane into the parking areas. And again, the parkings are distributed along the perimeter, in this case, primarily the perimeter of this site. The buildings range from three-story to four-story to five-story. It is a 17 and a half acre site with these three buildings and they are proposing 260 dwelling units and they are providing 205 parking spaces, which is approximately the exact number that will be required. Now, along with this plan, as you all can see, they're proposing 10 single-family lots in this location that were front on Andover Woods Lane. This plan was recommended for approval by your subdivision committee and would have been on the consent agenda. However, the applicant decided to add a garage. so by adding a garage after your subdivision committee they increased their coverage in their floor area therefore we had to bring it to you today now they've realigned the garages in this location but they did not change the number but they added they added a garage this location here so that's why they've extended your meeting time today mr pen and members of the commission is to had a garage. So they are at an FAR of 0.76 on this particular property, and the FAR is 0.8. So they're maxing out the amount of buildings in Florida that they can fit into this site. And as you all are aware, it is a very, very difficult-shaped remnant site. They've been to the BOA, pardon me, the BOA, and they got, they received approval of a waiver in this location for the setback. They've addressed some other cleanup items, including the access for construction will be off of Todd's Road and through this area and into the site. They will not be coming through the neighborhood along Putter Lane. there is a timing mechanism necessary to the improvements that will go along this section and it'll be primarily a pedestrian a sidewalk to front these lots in this location one item that needs to be resolved is access to reuben lane now they don't own this property this is church property but there will come a time with a subdivision plan when they create this property where we're going to want a further discussion about whether or not Reuben Lane should be connected to the extension of Putter Lane. At this time, they are showing a pedestrian location. So once Putter is built, they will have a access, at least for pedestrians. But staff is concerned that it may be necessary to reserve some area for right away in this location, should it be determined that Reuben Lane should connect to Putter Lane extended. But again, that is something that staff believes can be resolved in the future when we see final record plat for these properties. We did receive one letter in opposition to this plan. The specific opposition was to the height of the five-story apartment building, which is in this location. That is the only communication staff has received that we are aware of on this particular plan. And with that, your subdivision committee has recommended approval of this plan to you, and staff will be happy to answer any questions you may have. Stop, Chair. There we go. Thank you, Mr. Martin. Any questions for staff? Mr. Wilson, you have any questions? No. Okay. All right. Applicant? Sir, we will be promoting Mr. Tony Barrett and Mr. Richard Murphy. Okay. Thank you very much. Tony Barrett and I are here on behalf of Anderson Communities. I'll be quick because we're taking up more time. We added one garage. Otherwise, we would be on the consent agenda. We do agree with all the staff conditions. All right. Thank you, Mr. Murphy. Any questions for the applicant? Seeing none, is there anyone on the Zoom call right now that would like to speak on behalf of this current application? You can do so by raising your hand. Sir, I do not see any. Okay, not seeing any. We'll bring this back to the Commission and Chair will be looking for a motion. for this particular application. Okay, Mr. Wilson. Mr. Chairman, I move for approval of PLNMJDP 20-69 Baptist Church at Andover property with the 17 conditions provided by staff. Okay, we have a motion and a second by Ms. Plumlee. Any discussion? Oh, Mr. Poe, do you have any discussions to that? Yeah, We totally ignored the letter from the neighbor, and I'm a little uneasy about that. I wonder, could we bring the applicant back in for a question? Is that feasible? Yes. Yes. I'd like Tony to speak to the issue of the height of that apartment building, particularly with regard to the adjacent church, I think. Well, we've been working pretty closely with the church. They're fully involved and support the proposal. They support the five story. And we've put it internal to the property. to allow the transition to the residents around. We also did an exhibit at the zoning hearing for this where we initiated the five-story church and showed how the grade worked well with the five-story church. I'm sorry, the five-story building. It just didn't have the impact that because of its position, that you would think it would otherwise because of the being centered and the property as it is. Yeah, I recall that now. I'd forgotten about that. Thank you. Sure. I might add that we do transition from the five-story building down to the four, down to the three, as we discussed at the zone change hearing. Thank you. Mr. Polis, are you satisfied? Yeah, I'm good. Thank you. Okay, no, you're welcome. Thanks for the question. Okay, we still have a motion and a second on the floor. Any further discussions to that motion? Seeing none, all in favor, raise your hand. Okay, unanimous. Motion passes. Thank you. Thank you. Thank you. Thank you very much, Mr. Barrett and Mr. Murphy. We'll demote you now and be moving on to our next case. Yes, we're on page 7 still under re-approvals. PLN FRP-20-20 Hoover and Philpott. Staff? Mr. Martin, you are muted right now. Mr. Martin, you're unmuted now. You can go right ahead. Oh, I've been talking for two minutes now. Uh-huh. This is a final record plan, 20-20, Hoover and Philcott Evangelistic Association of Properties has been brought to you today specifically for a waiver request. Now this is better known as the Fountains at Palomar, which of course you all know has a development plan on it. They have started construction of the site. It is located at the intersection of Harrodsburg Road here and Manowar at this location. This is the access easement that comes off Manowar, serves the property, comes out to Harrodsburg Road where there will be an intersection fully signalized. Now, this is interesting because they filed a plan to create these nine lots that you can see before you. And because of the sewer issues on this property, they have elected to build a trunk line from this property all the way down to the pump station located on South Elkhorn Creek. They're going to go all the way down Harrisburg Road and they're going to build the trunk line. Now that the practical and beneficial effect of that is it removes the need for at least three smaller pump stations not only to serve this property but to serve other properties that are downstream in essence and west of this property. So they are doing that at considerable expense, much more expense than a single pump station would have been for them. However, it would be important to note that that was an aspect of their TIF. They did receive TIF funding and approval on this site. And as I stated before, this site is under construction. And they came back in to request this waiver because they need to create some lots, transfer some lots they have some contractual agreements particularly I believe on this lot in this location to have it up and have a shell building on it in the next year so they want to coordinate the development of this site while they construct what in essence is an off-site improvement which is the trunk line that they will be building as I stated on out Harrisburg Road and down to the South Elkhorn. It is a situation again, they are requesting this over a matter of hardship because their desire to coordinate the timing and be able to continue development of these lots. Now the staff's understanding that laterals are in the ground to serve these lots. So the waiver is not actually for individual, any individual lot getting service. It is really a waiver that affects the entire property from getting service because this trunk line has to be completed, has to be constructed, has to be in place and ready for service before any of this property can then be occupied. So with that, your staff is recommending approval of a waiver and we'll be happy to answer any questions that you may have for us to the best of our ability. Thank you, Tom. Any questions for Tom at the moment? Okay. All right. Mr. Wilson? Yes. Mr. Martin, I think I assume then that 13 and 14 are changed from discussed to resolved. Yes, sir. They have, in fact, been resolved. So you can do that. Yes, sir. Thank you, Mr. Wilson. Any further questions for staff? All right. Applicant? Sir, I will be pulling in Mr. Matt Carter from Vision Engineering. Okay. Mr. Carter, you've been promoted. Go right ahead and address the commission. All right. Thank you, Mr. Chairman. members of the commission, Matt Carter with Vision Engineering, and thank you, Tom, as well. We're in agreement with the conditions and request approval of the waiver. And just some things to add that Tom didn't mention. The plans, they're designed, they're approved by the state. Almost all the sewer will be going in the right-of-way down to 68. And those plans have been approved by the state. I believe they're approved by LFUCG as well now. The project has been bid and awarded and the contract, his contractor is already on site. He's the contractor that's doing the fountains. So he can begin work immediately. But other than that, I'd be glad to answer any questions you may have. Okay, thank you, Mr. Carter. Any questions for the applicant? I'm not seeing any. Do we have any citizens that want to speak on behalf of this application? Yeah, I need to see this. Scroll up. Citizens. No citizens. I just want to make sure we're not missing anyone. Okay. We'll bring this back to the commission for any further questions or the floor is open for a motion. I have a question. Okay. We have a question for Mr. Penn. Tom, do you want us to change 1314 to resolve or do you want us to leave 1314? No, sir. They may remain as resolved. Okay. So leave them resolved. All right. Okay. All right. Any further questions? Okay, the floor is open for a motion. If not, I'm going to start calling on people. Mr. DeMolden. I'll move for approval of PLN, FRP 20, 20, Hoover, and Philpott, with the 14 items, changing 13 and 14 from discussed to resolve. We have a motion. We have a second by Mr. Pohl. Second. Thank you. All in favor, please raise your hand. Okay. Unanimous. Motion passed. Thank you. Thank you. next up we are on page eight under commission items mr chair do we need to do anything about the waiver oh was that part of it well all they really had was the waiver they didn't need the actual plaque to be approved so um if the motion didn't include the waiver then we do need we need a motion specifically for the waiver. It didn't include a waiver, so we need one specifically. So Mr. DeMoblin is right. I will make a motion to approve the waiver for PLN, FRP 2020, Hoover, and Philpott, the findings that are in draft. All right. Second. The motion and a second by Mr. Polk. All in favor, please raise your hand. Okay. The waiver is passed. Thank you. Good catch, Senator. Thank you, Mr. Mullen. Now we're on page 8 of the agenda items under commission items. BOAR 2020-2, Greg and Mary Karen Stumbo. Staff. Thank you very much, Mr. Chair. Good afternoon, as it has been pointed out to me a few times. Before we get started with the review of our BOAR appeal for today, this is BOAR 2020-1. Greg and Mary Karen Stumbo. I must enter a few items into the record so that they are preserved as we go forward in this case. The first thing that I will enter into the record is the case review that was provided to the planning staff by the Historic Preservation Office here. Next, to alleviate some of the awkwardness of us being on Zoom, I will also enter into the record the appeal letter that was submitted to the planning staff by the appellant and both the owners of the property, Mr. and Mrs. Stumbo, and put together by Ms. Anna Weitz, their attorney. I will also be entering into the record Article 13 of the LFUCG Zoning Ordinance. This is the article that governs historic preservation in our area, specifically the H1 overlay zones. And then finally, we'll enter into the record the design guidelines for the historic neighborhoods within the LFUCG area. And the full name for those are the Local Historic District and Landmark Design Guidelines. I'll refer to them throughout our presentation today as the Design Guidelines. This will just help us kind of abbreviate some of our conversation today. With that, I'll go ahead and I will start my PowerPoint presentation. And I will say that this presentation, it will go from the planning staff's presentation to a review from the Historic Preservation Office. We have Ms. Betty Kerr on the line, who will join us here in a second, and then you will hear from the appellant. Hal, Bailey, Ms. White has her hand up, so I'm going to allow her to speak just for a minute. Ms. White, as an applicant, you'll be added to the panelist link once it's your turn to present. Do you have a specific question for the Chairman? I do not. I apologize. I wasn't following along on your rules, so I will wait until you add us to speak. Thank you. Okay. Thank you very much. The appellant is requesting the Planning Commission's review of a decision made by the Board of Architectural Review, the BOAR, on August 19, 2020. This is case number 01180221-J. A Certificate of Appropriateness, or a COA, was requested to paint an unpainted masonry wall. The BOAR determined that the proposed changes did not meet the intent of the local historic district and landmark design guidelines, or the design guidelines, adopted by the Historic Preservation Commission, and the request was disapproved by the BOAR with all four members present voting to disprove. approved. It is important to note at this time that the historic district legislation has been determined to be constitutional as it produces an equitable distribution of benefits and burdens. In other words, the neighborhood receives the average reciprocity of advantage, whereby the individuals may be restricted on some elements of what they are able to do on the exterior of the property, but they gain the benefits from the restrictions of the surrounding properties. The restrictions provide construction consistency over time while respecting the historic character of the area and the preservation of historic structures. For any property within an NH1 overlay zone, a Certificate of Appropriateness, or the COA, is required prior to the initiation of any new construction on any exterior change to or the demolition of all or part of any building structure or sign on the premises in an area protected by that H1 overlay zone. In this case, the appellant did not receive a COA prior to painting the structure and sought to achieve the COA following a neighborhood complaint and the issuance of a stop work order. The subject property is located within the Seven Parks Historic District Overlay, or the H1 Zone, which was established in 1997. The Seven Parks Historic Neighborhood is located in southwest Lexington. The majority of the area is bound by the North Book Southern Railroad tracks to the west, located here, Dantzler Court, and Drive to the north. And then getting to the south, we're looking at, I'm sorry, Arcadia Park Drive, and the vast majority is bound by Nicholasville Road. There is an offshoot of Shawnee Place located here that is incorporated into the Seven Parks neighborhood, a historic neighborhood overlay. The majority, just to give you a heads up on where the property is, this is 221 Barberry Lane, located right here, and is the subject of today's application, or appeal. Looking at the zoning for the area, the majority of the properties are currently zoned single-family residential R1C, with lesser amounts of two-family residential R2, high-density apartment R4, and neighborhood business B1 zones. The total area of the Seven Parks Historic District Overlay H1 zone is approximately 61 gross acres. The principal structure subject to the appeal was constructed in 1942. The structure represents, and here's just a view of the aerial of the property, the street in which it's located, and then the property at the date of stop work. The principal structure was constructed in 1942. It is representative of the historic built context of the Seven Parks Historic District, which contains one to one and a half story houses built in the popular architectural stylings of the early mid-20th century. The majority of the structures in the historic district meet this description and are unpainted brick. The property was purchased by Mr. and Mrs. Stumbo in December of 2018. At that time of the purchase, the property was already regulated by the H1 overlay zone and the masonry walls were not painted. Here we're able to see what the structure looked like. This is the picture from the PVA documentation. Here is a photo from Google Maps from June of 2019. And this is what the property currently looks like today. With any appeal, it's important to know the history regarding the case. On June 18, 2020, the Historic Preservation Office received a complaint that the principal structure of the subject property was in the process of being painted. The day of the complaint, the HPO staff visited the property and observed the painting of the brick and posted a notice to stop work on the front door of the property. As the staff was leaving, one of the property owners arrived. At that time, the owner and the staff discussed the location of the property in the local historic district overlay zone or the H1 overlay zone, and that any exterior work on the property required a COA, including the painting of an unpainted brick structure. Additionally, the staff informed the owner that the painting of the brick structures that were not previously painted was not in compliance with the design review guidelines. The owner inquired why the HPO staff had not come to the property until the painting was almost complete. The staff indicated that the complaint had been recently received, and they visited the property in response. The owner also indicated that they were not aware that the property was located in a local historic district overlay zone and that no one had informed them of the requirements. HBO staff provided them with a permit and the application forms, and that was given to them on site at that time. On June 19th, the application was made by the property owner to allow for the painting of the principal structure and to replace the windows of the structure. Following the submission of the application, the property owners met with Historic Preservation Office staff, met with them and discussed some of the renovation work that they were proposing for the property. This was done on June 30, 2020. During that meeting, the staff provided a brief summary of the COA application, reviewed the application process, and discussed the design review guidelines. Over the course of the conversation, the owner reiterated that they were unaware that they were located within a local historic district and described several issues with the structure, including issues with the brick exterior and the desire to replace the original windows associated with the historic construction with vinyl windows. Following that meeting, the staff conducted a more detailed review of the condition of the masonry structure and windows. However, that was done with the paint in place. During the August 19, 2020 BOAR public hearing, the appellant requested to retain and expand the paint that was applied to the exterior of the building without a certificate of appropriateness. The appellant argued that they were unaware that the property was within a historic district overlay zone, that the painting of the structure was conducted to allow for the preservation of the structure, that the painting increased the value of the property, and that there was no substantial opposition to their change. The staff presented their recommendation to deny the application, arguing that the painting of the exterior of the structure was not in agreement with the design guidelines. Specifically, the HPO found that the proposal to finish painting and retain the previously applied paint on the brick structure did not meet the design guidelines. The staff recommended that the paint be removed with appropriate methods in order to meet the guidelines and to reduce the likelihood of moisture damage to the historic structure. The members of the BOAR agreed with the HPO staff recommendation and determined that the proposed changes are not compatible to the design, character, and scale of the historic district in which the property is located. Further, the Board has determined that the proposed changes do not meet the intent of the local historic district and landmark design guidelines adopted by the Historic Commission. The BOAR denied the application for the COA for the painting of the brick structure at that time. Within their letter of appeal, the appellant posits that the BOAR erred in their decision to deny the request without putting forth any proof to support their assertion that it was improper for the homeowners to paint the house. Further, the appellant states that the HPO staff report contained no evidence, photographic proof, or anything other than the belief by the BOAR members and staff that the brick shouldn't be painted. Additionally, the appellant emphasizes that there were no individuals who spoke during the BOAR hearing who were in opposition to the proposed change. I apologize, that was what I was really referencing right there. And then we can take a look at the structure, and it's currently in the painted form. This was taken during that June 30th meeting. Gives you an idea of the scale in which it was painted. Regarding the statement that the staff did not provide evidence or proof that the home should not be painted, the planning staff disagrees. The HBO staff report quotes the design review guidelines. The guidelines are produced by the Historic Preservation Commission and are intended to provide specific criteria for appropriate rehabilitation work, new construction, and demolition in Lexington's designated local historic districts. Article 13 of the LFUCG Zoning Ordinance states that the BOAR shall review and decide applications for the COA in compliance with the design guidelines and criteria adopted by the Historic Preservation Commission. In this case, the structure was painted without prior review by the BOAR, and the appellants were in violation of guideline I-3A, which states that brick materials original to the building should be preserved and maintained. This can be found within the brickwork and masonry section of the design guidelines. In specific, the first area that they were really focused on was that brickwork and masonry materials original to the building should be preserved and maintained. This is a common historic preservation that allows for the maintenance of historic characteristics and the retention of historic integrity of historic districts. Additionally, the HPO staff referenced guideline I-3G, which states that brick should not be covered with silicone-based water sealants or liquid siding. The guidance for I-3G is based on research conducted by the National Park Service and represents best practices as water sealants and liquid siding can trap water on the interior of the structure and damage inside walls. Regarding this guideline, the appellant stated that there were numerous issues on the structure, specifically that some of the bricks were in damaged condition, particularly that the masonry on the side and rear of the building. Furthermore, the appellant states that once the shutters were removed, there was additional damage and core condition visible on the front of the building, including damaged brick and improperly repointed cracks. The applicant states that they received professional advice, suggesting that paint would provide a protective coating and seal leaks, ensuring the longevity of the building. The appellant submitted no reports from a certified preservationist, indicating that the paint was the best solution for the preservation of the structure, nor did they submit any record showing that the application of paint is a proper repair of structural damage to brick and mortar. order. Additionally, during the BOAR hearing and in some of the communication that was sent on the behalf of the appellant prior to the BOAR hearing, it was stated that it was always the intention of the homeowner to paint the structure. This was sent in a letter from Ms. Karen Stumbo dated June 22, 2020. So they stated in that letter, regardless of the structural or maintenance issues, they were seeking to go ahead and paint this structure. Finally, the HBO staff referenced guideline I3H, which states that the brick that was never painted before should not be painted. In this case, the staff showed photos of the structure before and after the paint was applied. The appellant submitted their own before and after photos, and the applicant made, or the appellant now, made an application for painting the structure. This guideline is specifically tied to the preservation of the historic fabric of a district by allowing for historical representations of an area to remain. It is staff's position that the structure was painted in violation of the design review guidelines and Article 13 of the LFUCG zoning ordinance. The HPO staff provided both adequate reference to the design review guidelines and their determination, and the BOAR members deliberated and made a ruling that was based on those guidelines and testimony during the public hearing. The appellant also indicates that there was no opposition to the proposed zone change, or I'm sorry, I'm back in my zoning perspective, to the proposed change to the structure, and that the change increased the price of the structure. In terms of the lack or presence of opposition, that does not negate the violation of the design review guidelines. Furthermore, the concept of the valuation of the property, the constitutionality of the historic preservation overlays is that there is an equitable distribution of benefits and burdens, and the appellant is taking advantage of the average reciprocity of advantage. In this case, the applicant is able to paint or is painting their structure while others are being told explicitly that they are not to paint their masonry walls. Additionally, the perspective of value comes up in a couple of different ways. Historic district designation typically increases residential property values between 5% and 35% per decade over the values in a similar undesignated neighborhood. So the applicant is therefore gaining the average reciprocity or the equitable distribution of the benefits and burdens of living in a historic district, but is also gaining the benefit of doing what they would like to do with their property and not dealing with some of those burdens that come with living in a historic preservation overlay. The owner also makes the case that they were unaware that the property was within a historic district H1 overlay zone. Much of their case that they have been making with their lack of knowledge has been focused on the fact that it was not within their real estate report or the listing for the property. Unfortunately, the real estate report is not a government document. It is the responsibility of the homeowner to know their zoning. And the best place to lift that up is the official zoning atlas. This property has been designated as a historic overlay since 1997, and that has been reflected on all of LFUCG's official zoning maps that were in physical form and are currently represented on the online-based maps. Additionally, if you look at the listing summary, it does not list the zone of the property. If the applicant were seeking to do a multifamily or they had constructed some sort of duplex, that would also be in violation of the zoning, and staff and the government would push back against that as well. These are zoning items. It is incumbent upon the property owner to know their zoning. In addition to the zoning atlas or the official zoning atlas, there are several signs in the area. This one is less than a quarter of a mile from the subject property. This one at the corner of Dantzler and Nicholasville, and then along Nicholasville. There are others throughout this historic neighborhood, but these are three very prominent indications that this area is within the Seven Parks Historic District. And this is also another way of governmental notification of historic status of an area. In addition, or expanding upon their statement of appeal, the appellate provides a few other greater information regarding this area and what they would like and their actual application to apply paint. they referenced that if they were to have to take this paint off, they would be in greater violation of the design guidelines, specifically quoting guideline 3D, that brickwork and masonry should be cleaned only when necessary to remove bad stains or paint buildup. If there are only a few stains or a little dirt on walls, it may be best to leave it alone. Avoid putting chemicals into walls whenever possible. This argument is somewhat problematic because it suggests that once an impact has been made on a structure, there is no remedy other than to expand that impact. The HPO staff has provided a solution that would remove the paint and allow the preservation of the structure to the greatest extent possible. possible. Finally, the appellant makes numerous references to legal arguments questioning the validity of zoning within the Lexington-Fade Urban County, the legality of the H1 overlay zone, and the ability for any government to regulate the preservation of historic districts. The planning staff finds no merit in these arguments. All federal, state, and local statutes and enabling legislation have been followed in the establishment of zoning within the urban county and the application of historic preservation within our county. All due process was observed by the regulating entities throughout this process and provided to the appellant during the review process. In studying this case, the planning staff can find no flaws in the review of the appellant's request by either the Historic Preservation Office staff or the Board of Architectural Review's decision, nor has the appellant provided any additional information related to the request that would provide for a new finding. Based on findings as stated in the staff report and the recording of the public hearing, the denial of the certificate of appropriateness was not in error. It is consistent with the responsibility of the Board of Architectural Review, which is to interpret and apply the adopted design guidelines in determining the appropriateness of a specific request, particularly as they relate to the application of paint to the exterior of a brick structure. The ruling in this case is also consistent with past actions of the BOAR and addressing the renovations of exterior elements of historic structures. With that, if there are any questions, I would be happy to answer them from my presentation. Ms. Kerr is on the line as well, and she'll be giving a brief presentation before we go to the applicant. Okay, Ms. Kerr. Oh, you're on mute, Ms. Kerr. Indeed. Is that better? Oh, yes. Thank you. Thank you. Thank you, members of the Planning Commission, for the opportunity to be part of the staff presentation. Thank you, Mr. Bailey, for an excellent presentation and report. A lot of good work went into that, and it is much appreciated by this process. I would just very briefly note that the staff, when we received this call from the citizen making a complaint, making the office aware that this paint was happening, we were on the site of the property within a couple of hours having received notice of that complaint. While the staff did not get to evaluate the condition of the brick and the tuck pointing of the house, since it was predominantly paint covered by the time we knew of the situation. And certainly with that painted surface, and when the staff did go around all four sides of the building and look at it, we did not see any texture changes or gaps and so forth that would suggest that the materials behind that paint, which of course is just a thin layer at this point, that would suggest that those brick were failing or that the tuck pointing was failing in any substantive way. But again, the preservation professional staff did not have the opportunity to make that evaluation since the work was being done without the process's knowledge and without a permit. it um the issue of the painting if indeed there were problems in the uh validity the integrity of the brick uh if it skin was failing or anything which is very unusual particularly of a building of this 1940s time period the bricks are usually pretty hard fired and very sound um but if there were any failing of it and all the worst thing you could do is just paint over it um to because all it does is assure that if there are water issues happening that that water cannot come out with the brick that it's just being held in the paint becomes a moisture barrier and it worsens any of these situations uh rather than facilitates a cure it doesn't cure anything um the staff is provided in the materials which Mr. Bailey so well went over the some very brief sections of the National Park Service technical materials about this topic as well as the Secretary of the Interior's standards and criteria on this topic. There's voluminous more information in both those resources about this matter but it does give you just a bit about that and then our local historic design guidelines, of course, address the issue as well. And you all, as well as the Board of Architecture Review, have those as well for your reference. So I would note that the historic preservation staff does bring to this professional expertise in terms of years of work in this field. Barry Dennis, who is the person who from our staff went to respond to check on it when we learned of it, is an architect and has many years of experience working in as a practicing architect and in the field of historic preservation particularly. And I, as the preservation officer for our community, I'm an architectural historian with my great hair tells you, over 35 years of experience. And so I think that we, I would like to think, are pretty qualified to have evaluated the situation as the criteria with which we're charged with working and with what is the condition as much as one could tell at the time. So to sum up, this This application, as you have already heard, does violate the design guidelines and that violation is reflected in the unanimous decision of the Board of Architectural Review to deny this application. in addition to their action reflecting their knowledge of the fact that it could even worsen the future of this building by having applied this paint to it unnecessarily. So I would request that the Planning Commission this afternoon uphold the decision of the Board of Architecture Review and deny this application. And I'm certainly available as this continues if you have questions. sorry miss Kerr I was on mute that time it's a popular problem I see that do any of the commission members have any questions for miss Kerr at this time yes could you briefly describe the process to remove the paint uh yes you would probably remove this since it is the first coat of paint on it with a chemical peel so it would be a very controlled manner to get it off it's a product applied to uh what it sounds like you apply a surface piece against it and it basically loosens that paint and then pulls away and and that skin of paint comes off but not the skin of the bricks uh it does take some expertise it takes using a contractor that has experience in dealing with various vintages of brick and you do test patches first little small area uh somewhere to be sure that you've gotten your product mix to be strong enough to remove the product that's been applied the paint but no no stronger than necessary. So that manner is one option. There also are other ways to do it, but that would be the way we would suggest we tried as a test patch first, because part of what that does is environmentally let as little as possible fall to the ground of the paint, and hence keep it encapsulated and not create any further environmental issues than necessary. Thank you. Thank you. Mr. DeMolden. Yeah, Ms. Kerr, I'm curious if, I don't know what documentation you all have, but being in real estate, when that property was sold, the common seller's disclosure asked the question if the property was in the historic district. And I'm curious if that document was part of any information you all may have requested in terms of knowledge as to whether the property owner was aware. we're really not in a position to have an opinion about how the property owner would have known or not known that they're in the h1 overlay district i'm certainly aware the property owner informed us as staff that they didn't have any idea they were in a historic district but the means available to them that they might have taken advantage of to learn about that, I really wouldn't be in a position to answer. I think maybe they'd be better suited to tell you who they asked and maybe didn't ask. But we know to know that the property owners nor a realtor stating they were representing who came to be the owners, the Stumbos, had not contacted our office for information. But the fact that it's on the PVA record that the your zoning your land use zoning of every address is on the PVA record which includes so if your property is owned R2 for example your PVA has R2 and then in parenthesis H1 for historic overlay and it was commented to me during all the discussion with the applicants that one of the members of the owners said, well, I didn't know what H-1 was. Well, I was saddened to hear that because I think if somebody's buying property, it behooves people to know what their zoning reflects. And usually people ask. Mr. DeMobillon, I will say it is the responsibility of a property owner to know their zoning, whether it is R1A, R1B, R1C, or even the H1 overlay. That is a part of zoning. So it is incumbent on the property owner to make sure that they know those before they do modifications to the property. Yes, well worked. Thank you. Great. Yes, Mr. Wilson. Mr. Wilson, you're on mute as well. Can you hear me now? Yes, sir. Okay. Thank you. Just a couple of questions. First of all, does this community, does it have an organized homeowners association? Mr. Bailey do you want to take that? Yeah I think that they have a homeowners association for this area many of our oldest neighborhoods don't typically have homeowners associations many of the times you see a neighborhood association and I can find that information out for you right now if I may I believe they do have a neighborhood association but I don't know its exact boundaries relative to the historic district boundaries. Okay, was the person that filed the complaint with the Planning Commission, do they have standing? I mean, that is, do they live in the community, first of all? Yes. As you know, of course, people are able to anonymously make complaints. That person did come to be known to us as this went through the process, the party who had contacted the office, and is someone who is within the boundaries of this neighborhood's H1 overlay. Okay, fine. And the other clarifying question is, was this individual representing the neighborhood association or just representing themselves? I had no reason to think they were representing anyone other than themselves, but there was nothing stated directly to that question one way or the other. Okay, thank you. And sir, I just, this property is within the Seven Parks Neighborhood Association. Ms. Blumley. Thank you. Again, a question for Ms. Kerr. I drove by yesterday and noticed that there were no shutters. Is that a violation? Do shutters need to be back on the house when all this is settled? the if shutters with the shutters and you see in the historic photograph well it's not a historic photograph but the i'm holding it up because i can't share my screen on on my ipad but um mr bailey has this image in his materials and his it was on your screen earlier i'm looking for a clearer copy of it um so you'll see there were shutters on the two front windows there you go thank you uh that'll come up in a minute there we are in your upper left uh so yes the shutters will need to go back on the house uh because or come to the board to uh request and receive a permit to remove the shutters from the house but if a building has shutters at the time an area is designated the historic district, then they become a part of the architecture of that house and the process to remove them would go through the COA permit process just as if somebody had a house with no shutters on it and wanted to put shutters on it to add shutters to it. That too would go through and get a permit. Does that answer your question? Yes, thank you. Thank you. Any further questions for staff or Ms. Kerr at this time? All right. Applicant? So at this time, we'll add Ms. Weitz to the panelist side of things. And then, Ms. Weitz, when you're able to turn on your video and your audio for us and let us know if there's anyone else you would like to come in. Or I think we added Mr. Stumbo as well. Yes, thank you, Mr. Stumbo as well. Share your video. Yes. Me and technology are not friends. Thank you. I'm Anna Kleins. I represent I'm the attorney representing the homeowners in this case. And being an attorney, I'm going to do the boring lawyer thing first of putting some objections on the record. As you know, we are at the appellate stage, and so we are locked in under administrative procedures to whatever was shown in the initial appeal. During the staff report, there was reference made to a detailed review of the masonry. The record does not contain any detailed review of the masonry. Ms. Kerr also testified that the staff did not see any gaps or structural changes in their brief walk around the property. The evidence below should be limited appropriately to the initial staff letter to the Stumbos, which is part of the record. It does not talk about a detailed review of the masonry, and it does not reference walking around and examining for gaps or structural changes. The record below does contain a statement about the painting and repair from the painter, and statements from the homeowners are in the record testifying that there were lots of chips and cracks and breaks in the brick masonry which were repaired prior to the painting. This area and this building in particular had been student housing and had been somewhat hard used over the years. And there were huge cracks from settling through which water was invading, but also many chipped areas on the bricks that took off that exterior protective layer. And so those repairs were made prior to painting. We would object to any statement from Ms. Kerr or from the staff that there was an extensive examination made. I also want to object to the lack of the staff and Ms. Kerr noting that there were repairs made before painting, because that is part of the testimony in the record and the documents in the record. Our brief below the BOAR and the exhibits there too are Exhibit 2 to the current appeal brief, so you guys have the whole brief below as well as our brief here today. um in addition during the staff report we object to the staff testifying that there was a sign in the neighborhood a fairly close a quarter mile from the building denoting the historical nature of the building and then pictures of some additional signs none of those are evidence below they are not part of the record it is part of the record through testimony of a witness below the at the BOAR level that, in fact, there had been a sign. It had been knocked down and overgrown and was not evident or visible at any time related to this action. It is not that these dumbos walked past that sign, looked at it, and went ahead. So we would object to any addition of signage information before this body. we would also object to the discussion by Ms. Kerr about the worst thing you can do is paint and damages that relate to painting that again was not part of the record below there was no extensive analysis about that below and adding to the record at this point with that type of testimony is inappropriate because the homeowners are not prepared to address that, and that was not the basis for the original decision. In fact, the record below shows that there were lots of damages to the brick, that it was repaired and then painted, and the risk of chemical peel is that you will also erode or damage those repairs and further damage the brick. So you leave it in a worse condition than you would have had you left it the way it is. We would also last object to the untimely staff report. We filed our brief, as you see from the date on it, September 16th. It's been two months. We got a staff report this morning while I was in court, so I looked at at one o'clock. And that is very unusual administrative practice. So throughout this process, we've been shocked and surprised by the fact that homeowners are not given the typical type of administrative notice. We think fast on our feet, but that definitely puts a homeowner at a disadvantage when this body is adding evidence to the record during the appellate stage and also not providing any notice that they are going to add evidence to the record. So going into our concerns, as are outlined in the brief, no notice to the homeowners is a big one. These are homeowners who came from a much more rural area where we typically do not have historic districts or overlays. And they had a new realtor who had not sold in the Lexington area before, also from a rural area. So nothing in the record that has been provided to me or testified to by the homeowners had any notice that there was a historic designation. The seller's disclosures are not part of the record here. I don't have them in my file. Mr. Stumbo may be able to speak to those if those were indeed provided. But they were given absolutely no notice. It's not on the deed. There was no sign in front of their home. There's no bluegrass dress plaque on it. And the argument that a layperson who has never bought property in a city and is not even aware this is a thing should know to not go to the deed or the seller's designation, but should instead go to the PVA and look for historical zone overlays really gives a lot of credit to homeowners. But I'm sure it also damages them because a layperson would not have any notice of this. And even as an attorney, I don't think I would have known to to go and look for that in this case. So it's a serious issue because in this case, they bought the home. They put a lot of money into fixing it up. They put a lot of money into repairing it and painting it that they would not have done any of that. They wouldn't have bought it had they known. And so the lack of notice has caused them huge financial damage. And then the BOAR is asking that they expend much more money to peel the paint and the repairs potentially off the building, damaging it further, damaging their investment further, and exposing their kid and her pets to environmental damage. This is their daughter's home where she lives with her dogs. And that's a huge risk to take something that's been carefully repaired, loved, cherished, taken care of and ask the homeowner to then not just lose the financial value, but actually inflict harm on the building simply because they did not have notice that this would be a requirement. The theme of the zoning and land use, as referenced in the staff report, is to protect the character and the environment. We need to remember that while a number of houses in this neighborhood are unpainted, there are a significant number that are. It's not, as the staff pointed out, a majority, but there are lots and lots of houses painted in this neighborhood. This is not unusual. There is nothing that would have given notice that, oh, my gosh, painting is not appropriate in this area because many identical houses are painted and, in fact, painted white. and again to ask the homeowner to damage both the environment and their repaired and fixed up home simply because they did not have appropriate notice is is inequitable and it's also it it's a taking it unfairly prejudices them cost them thousands and thousands of dollars to fix it and thousands and thousands more to destroy it when you pull off that paint and repairs as well as actually exposing the occupants, the neighborhood, the yard to environmental damage. There is no evidence in the record that paint removal, chemical or otherwise, is appropriate for this particular building or this particular brick. I believe what Ms. Kerr was trying to do by injecting that new evidence in the record is saying, in general, we don't like to repaint, We don't like to leave paint on brick, but there are many cases where that is appropriate. And the painter and the homeowner and the repair folks in this case found that this was one of those cases. And since there is nothing in the record to show that there will not be damage caused further to the homeowners by removing the paint, This body, without any evidence or knowledge, whether or not that is true, is demanding that the homeowner actually pay significant sums to have somebody damage his home. And that's that's completely inequitable. I understand the purpose of historic preservation. But again, it is a guideline. It is not a law. It is not a mandate. You know, the governor is not going to come and make us do it. And we need to take the particular facts and circumstances into account. A, that the homeowners had no notice, and so penalizing them for not knowing that they needed to go look at a planning and zoning map when they're lay people and new to this is inappropriate, and then requiring them to further damage a home and lose many, many more thousands of dollars doing so is an unconstitutional taking. there on page three of the staff report there's a line that says painted structures do not represent the historic nature of this neighborhood again there's no evidence of that in the record and no evidence of that on the plat there are many painted homes in the neighborhood and this is another attempt to to bolster the argument that the paint was not appropriate the home is increased in value, but it is also, as shown by the painter's statement and the homeowner's statement, more structurally sound. It was repaired. They didn't leave the cracks. And this body had let the prior homeowners let it sit there and be damaged, let water invade all through the walls, around the windows, at various points in the structure, and had taken no action. So the homeowners in this case apparently could have just sat there and let the brick dissolve around them but are not allowed to repair and make sure it's sealed against water invasion. There's no evidence, again, in the record that this brick had never been painted. The property's been dinged and damaged. The shutters and around the windows and doors had a great deal of discoloration. A lot of the rear of the building had a great deal of discoloration. and the guidelines do permit a homeowner to paint a building or break or masonry that has previously been painted. In the absence of any evidence that it had not been painted, it's inequitable to just assume that it has. Again, that's a taking that is saying we don't want it painted, and so we're just going to assume it had never been painted and require you to strip that off. I know it's a long day and we're getting to the end. We do have all the legal arguments in our brief. We are asserting that this is inappropriate notice and unlawful to demand this taking of dollars and depreciation of property from the homeowners. And again, dealing with the argument that the equity and the value is spread out over the neighborhood. Indeed, it is. But there's a huge value, as we all know, to a nicely maintained, well-kept, preserved home, and a lot less value to one with discolored, chipped, cracked brick that the water is invading the residence. And so we need to take the equities and weigh those. This is not a, if A, then everything is great, and if B, everything is terrible. In fact, this home is appreciated in value and is in better condition and that better preserves the character and the environment in which it sits. My client, Mr. Stumbo, is on. He may also have a statement to make, and then we're happy to answer any questions. Thank you, Ms. Weiss. Before we go any further, we do have a response from our in-house counsel, and I would like for Tracy to come up and make a response. Put my mask on so we don't get it. I just wanted to address the question for the commission about the procedure for this hearing. This is an administrative appeal from the Board of Architectural Review under Chapter 13 of our zoning ordinance and specifically under section 13 8 of that zoning ordinance it talks about the hearing you're having right now and it says when it appeals both in the beginning of the section and also in section 13 a 13 13 8 13 8 a and 13 8 a 2 that this is a de novo hearing so what What that means for you all is that you can hear from, and in fact, the ordinance says this in 13.8.2, that you can hear testimony from the planning staff, the Historic Preservation Office staff, and from the appellant or other persons or citizens, and you will consider all that evidence in conjunction with the record that was submitted from the BOAR hearing as well. So I just want you all to be clear on that going forward so you know what you're listening for, what you're looking at, and also what you might want to ask questions about. And if I may, I'd like to have a brief rebuttal to that. A de novo hearing means that you are making the decision over again. You are not bound by the earlier decision. De novo does not typically, and there is nothing I've seen in the law cited in this case, does not mean that you're allowed to put new and different information or evidence into the record, particularly when that's put in during the course of the hearing two months after the brief is filed. There's no way we could be prepared to address that in a professional manner or to have rebuttal evidence for that. A de novo hearing simply means that you're not bound by the decision below. You're making the factual determination as if it was the first time it was before you. It does not mean pile on with new evidence in the middle of a hearing two months after the brief is filed. Thank you. I'm just going to refer you all to 13.8.A2 of the zoning ordinance. And it says that you, as the Planning Commission, can hear testimony, rebuttal evidence, or any rebuttal of evidence that is presented, and that the chairman has the power to limit testimony or exclude irrelevant testimony in evidence. So, and also, I don't believe there's anything in this section that requires that a brief is filed. So, typically, as you all know, that does not happen. It's not precluded, but just because it did happen in this case doesn't mean that it produces some kind of right that's not set forth in the zoning ordinance. Yep. So as a commission, just in my leadership position, I think we need to go with what our legal staff has advised us at this time. And Tracy, if you can tell me otherwise, or Frank, excuse me, that's kind of the direction I would take on this particular application. being said does any commission members have any questions that you would like to ask Ms. White at this time on any further questions seeing any Mr. Chairman may I is there the opportunity for Mr. Stumbo to speak if he desires to do so he's on mute and I don't know if he has anything to add I was going to thank you, Ms. Weitz. That was my next statement. I asked if there's any citizens that would like to speak on behalf of this application. So Mr. Stumbo is ready to speak. We will allow that. Yes. And Mr. Stumbo, we would limit you to five minutes if that's okay. Thank you, Mr. Chairman. Members of the commission, can you hear me? Oh, yes. Can you see me? No, we cannot see you. Well, I apologize. I have my daughter's iPad and she's not here to show me. And I admit freely that I'm not very tech savvy, even though we've learned a lot during the COVID crisis. But let me start out by saying two things real quick, and I won't belabor the point. I know it's late. one the yeah the the article which you keep referencing we're very familiar with it and it starts out by saying that its purpose is to preserve property values to preserve property values now in the record you have ben campbell who's been an appraiser in lexington for over 30 years who states that the property as painted has greater value to it so it is being preserved in accordance with the article and much was said about our responsibility as homeowners I admit we didn't know had we known we obviously wouldn't have gone ahead and painted the building but let me refer the commission and Ms. Kerr stated it was our responsibility to some extent that may be correct but the absolute responsibility to give new homeowners information about the restrictions lies with the historical preservation committee and you find that in article 13 4 h 10 new owners the commission is required to give new owners some notice of the restrictions contained in the historical district. That didn't happen here. It didn't happen. We didn't receive any notice at all. In fact, there's a letter in the record, you'll note, from Karen Dupree, a noted real estate agent here for many years, who said they used to send out packages. Well, we didn't get a package. In conversations with Ms. Kerr, she may have testified to this in the previous hearing, I can't remember, but this issue was brought up. And she said, well, we have budget constraints. We don't do that anymore. That's not an adequate answer when the article itself requires, requires the commission to give new property owners, which we were and are, notice of what the restrictions are. So we didn't fail in any way, form, or fashion to do what we were required to do. In this instance, the commission failed to do what it was required to do. And now it's asking us to be penalized, to not only perhaps damage our property further. And the article also says that chemicals shouldn't be used on bricks and stripping shouldn't be used on bricks. So they're asking us to do something which will depreciate our value because of their negligence in not following their obligation under the article. Under the article, the article specifically says they have the obligation to notify us. Had we been notified, we would have filed and asked for permission. We wouldn't have gone ahead and done that. The historical preservation of that neighborhood, I understand all that. I voted for this bill when it was in the legislature. I can tell you that for a fact. I think it's probably a good thing to historically preserve neighborhoods. But to arbitrarily say, well, you shouldn't paint your house. When I can hit a golf ball, and I can't hit a golf ball very far anymore, into probably three or four yards of houses that are already painted white or another color. And I could even understand if we used a color that wasn't conducive to the neighborhood. But we didn't do any of that. And to ask us to be penalized, to ask us to now do something which may further damage our property, which will probably detract from its value, according to the record that we have before us, is simply not fair. It's not just you shouldn't allow it to happen. You know, we stopped doing any work when we were notified about it. We filed and asked for the proper approval with the historic commission that we have shutters. The shutters can be replaced. There was an issue about the shutters. We'll put the we just didn't put the shutters back on their store in the basement. They'll have to be repaired, but they'll be placed back on on the window issue. we're not gonna i mean we can probably live with that with repairing the present windows my daughter lives in that house some of the windows won't lock and um because of the the the condition that they're in and obviously for a young college uh female that's not a very good thing to have windows that don't lock but on the notice thing that really bothers me that the commission would take the position that it was our responsibility when they failed their duly obligated charge under Article 13 to notify us about the restrictions. We shouldn't be penalized for that. We weren't at fault. We weren't at fault in any way, form, or fashion in that particular instance. And had we known, we would have taken appropriate action. Obviously, we don't. I've got, and I'm sure you have better things to do than listen to me complain about painting my house and I've got better things to do than probably sit here and explain why we painted. But we would ask that the board allow the paint to stay on. We'll comply with the window request that they don't want us to change the windows. We can do that. We'll put the shutters back on. There's no problem with that. You know, I'm not here to be a renegade and try to do things that aren't proper. We simply wanted to maintain the value of the property and preserve the property with the paint because the brick was in awful shape. That's 1942 brick. And it's, if you look at the construction on those homes, I mean, they were obviously not, they were probably built with about the cheapest brick on the market at that time. So I think if you weigh the evidence, if you weigh the good and the bad, which we all have to do when we sit in judgment like you do, then I think it's obvious that the good to the property outweighs the bad. I'm sorry that we had this problem. I wish we didn't. I apologize to the board for taking up your time, and I hope I haven't ran over my five minutes, but being a lawyer and politician, it's sometimes hard to keep within time constraints. But thank you all for listening to us uh we appreciate it and um i hope that you'll see our side of the argument our side of our position uh but we would i do want to make clear we did not know we didn't do this on purpose if it would be we would not do this on purpose why would we do it we we would have no reason to do it on purpose and have we known we wouldn't have done it thank you okay thank you mr stoneboat you were only uh two minutes over so we won't we won't dock you for that that's not bad for me mr chairman that's not bad for me not bad i've heard you speak in the past that's a good that's good thank you if you don't mind um could you uh reiterate again can you tell me again where you found that information article because we want to have our legal staff here research in article 13 4 h 10 requires the historic preservation commission to advise owners of homes in the historical districts to receive printed guidelines of the rules used to receive no i'm sorry it doesn't require printed guidelines of the rules that's what mr pre said it requires notice though to advise owners within the district it's their responsibility to advise new owners in the district and what I recall Ms. Kerr saying I don't remember if it if she told it to me when we met on the property or whether it was part of the record I think it was part of the record that they used to do that and that is backed up and reiterated by Ms. Dupree's letter that new property owners used to receive a written packet apparently of outlining what the what the guidelines were and what the procedures were in the event that you wanted to make some improvement or make some repair to your property. And that would be obviously going through this process. But that wasn't done in this case. And what I recall Ms. Kerr's saying was, well, we have budget constraints. We can't do that anymore. That's not, I'm sorry you have budget constraints, but that's not, there's nothing in the article says, well, you can only do it if you have the money. It doesn't say that. It says you have to do it and you didn't do it in this instance. And there's nothing in the record that shows that you did or even attempted to do it. So, you know, the point is, we shouldn't be penalized because a government entity failed to do what it was charged to do under the article that they're trying to enforce against us. We should not be penalized. And it's not egregious. There's other houses in the neighborhood that are paying a white. It's not inappropriate as far as historical significance of that neighborhood. So, you know, And when you weigh the good and the bad, when you weigh the good and the bad, I don't think that you can come to any other conclusion, really. It's that, yeah, maybe we were at fault because we didn't go through the proper guidelines because we didn't know about them, quite frankly. But now to try to right a wrong and make us peel that brick off, it's going to do more damage to the brick and obviously detract from our property values, the value of our property. So, you know, I would hope the board would take that into consideration. And thank you. Thank you. I'm sure we're going to have some more questions. I would like to ask, Mr. DeMovlin, I know you're the realtor here on the Planning Commission, which is a good thing. Three of us, too. And Ms. Bartsdale. And Zach. And Zach. That's three. You know, can you help us out here a little bit? kind of give us what's the we got two different things going on right now well all that uh you know all that i could say would be that um i'm pretty sure that at the date this property was purchased that the required seller's disclosure form has a question about is the property in historic overlay now i don't know if anybody has that document in this transaction or not or how it was filled out. I have no idea, but I do know that that is something that would have been used in the transaction, but I don't know if the form was filled out, and I assume nobody here has provided it. Thank you. Ms. Boxdale? No, I definitely agree that I think I have both of my mic zone. Hold on. You sound fine on our end. Oh, okay. It sounds like I'm echoing, but that's really the only opportunity for the buyer to know prior to the purchase of whether they are in that kind of zone. I personally would have thought that there was a deed restriction in those overlay zones, but I'm learning that it's not. Yeah. Okay. Thank you. Mr. Davis. Mr. Chairman, this is a wonderful, unfortunate situation in demonstrating the service provider that you choose to do a job for you. experience matters. And in Fayette County, we're very fortunate to have a wonderful PVA website. Anyone with an internet connection can go onto that website, see what a property zoning is, see what a property's potential overlay is. We encounter the same thing with the PDR program in Fayette County. If a farm is subject to a PDR easement, it's noted on the PVA. If it's subject to another conservation easement, say with Bluegrass Land Conservancy, that's not noted on the PBA, but that would come up in a title search. As a broker, I check these things. Anytime I have a buyer that's serious about a property, I double check, I triple check. Even if my buyer does have a law degree, there are nuances in Fayette County zoning that realtors are are expected to understand and know about if you're selling real estate in a certain market. I sell real estate in central Kentucky. I wouldn't go to Los Angeles, California or New York City and presume to sell real estate there because I would not know where to begin when it comes to zoning and overlays. So it's unfortunate that the Stumbo's agent who was representing them and is charged with representing their best interest, was unaware of this sort of overlay, the fact that it exists, the fact that it's there. But as we've heard, that overlay has been in place for 20 plus years at the time they purchased the property. It was nothing new. And the applicant, I'm sorry, the buyer, they had a due diligence period and their due diligence period is to include anything and everything and zoning is certainly something and I'm afraid they didn't take that into consideration. Ignorance is unfortunately not an excuse and that's in my practice of real estate. I certainly, if I made a mistake, I couldn't go to the real estate commission and plead ignorance. We are expected to be professionals and to have that knowledge and to know what stones to look under. Thank you, sir. Thank you, Mr. Davis. I would like to ask our in-house counsel, Ms. Tracy, if you wanted to address Article 4-H10 that Ms. Stumbo referenced a few times. I think Tracy's going to share this with you on the screen so you can see it. but section 13 for H talks about the powers and dues of the historic preservation commission. And there's also a different section that governs the board of architectural review, just so you know that. But I think that there may be some, and you can see this in reading it section 10 that I don't see anything in there about necessarily that you have to, and if you think about it, it would be somewhat impractical to advise every new property owner that they're in a certain overlay when it's reflected in the zoning and on the UVA. But what it does say is that if you advise owners of historic landmarks and properties in historic districts on matters relating to preservation, restoration. So in other words, it's not to advise you as soon as you buy the property, oh, hey, you're in the historic. It's to advise you when you are an owner or of a historic landmark or property in a historic district about the matters relating to that and keep your guidelines updated so that you can answer questions about that. And then also keep updated on how the local state laws apply to historic preservation. So, I mean, the idea that we would somehow keep track of every purchase in a historic overlay zone, and I'm not sure how many of them there are now in Lexington, but I think it's maybe more than 10, eight. I mean, properties, eight, eight, how many properties are in each one of those? I don't know, but every time someone buys a house in one of those, it would be impractical to assume that our office of historic preservation is going to go to them either at the time of purchase or immediately after and advise them hey you're in an h1 i think what zach davis and what anthony and miss barksdale have told you is you know you you are relying on the property owner you're relying on a realtor and any other professionals you're dealing with in your transaction to make you aware of all the things that apply on the property. So I don't think there is an obligation that as soon as someone purchases a property in one of these, at any time we go out and give them something new and make them aware of that. I don't think that's what that means. And just, it also says in here that in section seven, that the historic preservation will determine the appropriate designation signage and markers so that they can be um you know those districts can be marked and that would go to the signage that was talked about by both ms kerr and mr bailey all right can i respond to that mr chairman yes sir i was going to let ask if you wanted to respond or Ms. White's. Let me clarify. Karen Dupree's statement, which is contained in the record, clearly shows that for a long time, I don't know how long, but that the commission used to comply by notifying new property owners. And I don't think you can turn a blind eye and say, When it says advise the owners of property, that's that's a responsibility that they have. And the purpose of her letter was to show that that's the way they used to do it. So how do they do it now? And that's an issue in this case, because we don't think they do. And they didn't for us. They didn't give us anything. Nobody put a packet on our door. And, you know, had it been done, we could have avoided all this. So the point is, you can't just read. It's kind of like the Constitution. You can't read the parts you like and ignore the parts you don't. You've got to read it all. And the article says it's to preserve property values for property owners. And that goes to the heart of our argument about a taking without just compensation. and also it requires notice as an affirmative act by the commission for the benefit of the property owner which didn't occur in this instance so you're going to say well we're going to we're going to we're going to this article says you can't do all this yeah it does maybe if you decide that but it also says there are duties that and things that we were owed from the commission which weren't done and therefore there you have to balance that's the balancing act you know is the is the harm to the building and the brick going to be more if you if it's ultimately decided that you have to strip it or is it better to leave it the way it is and and not go forward with any other renovations we're not going to i told you we'll we'll enter an order that says we won't do that But, I mean, in this instance, again, you can't read just part of the article that you like and say, well, this is said you can't do it and ignore the parts that you fail to abide by because the government has responsibility to abide by the entire article. Thank you. Okay, thank you, Mrs. Dunbow. Thank you. I completely agree with that. And if you do read Article 13.1a under the intent and the purpose of this, I'm saying this not to prolong this because I know you all have been here a long time, but I do want you to be aware of what the obligations are here. And that intent talks about many other things other than preserving property value. You know, it's to promote economic and general welfare of the people of Fayette County and the general public to ensure complimentary, orderly, efficient growth. It's deemed essential that the council, by the Lexington Federal County Council, that the qualities relating to the history of the county and a harmonious outward appearance of structures, which preserve property values, attract tourists and residents alike be preserved. and that the urban county council found that the individual nature and character of the county can't be properly maintained and enhanced unless distinctive historic districts landmark sites neighborhoods areas places structures improvements geological and archaeological sites are preserved so that's the whole purpose section for article 13 about historic preservation so you are aware um again i i mean i obviously and as you know lawyers disagree but i don't think that 13 4 h 10 is requiring or putting an obligation on this government to go out to every new homeowner in a historic district and advise them they're in the district and what they have to do um in the past whether or not they distributed some type of handbook when they were able to do that. I guess that might be an example of no good deed goes unpunished, but there's nothing in that section that is an obligation that you have to do that. That was one of the ways at one point in time they tried to administer their program, but maybe before we had eight districts, I don't know, to be honest, but all they have to do is be prepared to advise people that do own in these historic landmarks and historic districts about preservation, restoration, rehabilitation, and those things, it does not put the onus on the front end to advise them that they are actually purchasing a house in that type of district. So I just want us to be clear on that. Well, let me respond and say we disagree on that. It says advise owners, and we know from Mr. Pre's statement in the record that they used to do that and that they not apparently don't do it anymore so if they read it in the way that they construed that they had to advise property owners in the past the question becomes why don't they do it why didn't they do it for us why don't they do it now the language didn't change therefore the responsibility didn't change and it stayed the same i'm going to ask miss kerr since um that's in her wheelhouse to see if she can address that question thank you mr chair uh i certainly can address that question i have been the director of this program since 1991 and so i have a long view uh experience with it and i can tell you at no time has it been charged with making a formal reach out to every new property owner that buys property with what is now Lexington's 17 local historic districts and never has been. What Ms. Dupree, who's a very respected realtor in our community and used to serve on our Preservation Commission and was a very welcome and contributing member, is referring to is that a long, not a huge long time ago, I'd say 12, 15 years ago is maybe the last time we did it. I honestly can't remember. But we did what was called the courtesy letter. And we did it as a courtesy. And it was sent out, we tried to track and did with success track real estate transactions out of the paper and then we finally got so we had access to them through PVA and would send this welcome letter to let them know and tell them you know where to find our office and that sort of thing. That was before the internet and that was before the LFUCG had very thorough available resources about programs across this city's government and all many things better our entwinement into programs in the community. And so when that all became available, there was no longer a need for that welcome letter that was a, hey, you know, here's how to reach us. People can find how to reach us like they find how to reach everybody in the last long numbers of years. And so what we've done is be sure that our website, as all government divisions do, has up-to-date information how to reach us how to file your applications where to get the form off the internet all that's available all 24 7 to everybody and certainly available to these property owners and whose property is under discussion discussion today and available to everyone to realtors to thinking people thinking of buying a house in a historic district you get the gist so it is just erroneous to suggest that it was a requirement it's never been a requirement it is not the intent of that ordinance the historic preservation commission is a 15 member body that is an education arm of this process reviews the nominations to the national register of historic places for lexington fayette county and forwards them up the chain to frankfurt and on to the feds it has a lot of things it does toward education and that's the a lot of that verbiage you're looking at is all about that broad sweeping approach of how do you educate and get people to understand why preservation is important and all the things that can go on with that to facilitate making our community a great place and continuing it's being a great place. So the Board of Architectural Review is a separate body and it has in the ordinance you'll see a specific section about the Board of Architectural Review and its responsibility is to review the applications for permits submitted for work to be done within the historic districts and I think you all all understand that and I won't take your time to say more. I do have a few other clarifications to make is rebuttal when the time is appropriate for that Mr. Chair if you would let me know when that's the right time. Ms. Kerr the time is right right now. Okay um there's been reference to these historic district signs that are on the poles on the street they are at the edges of the historic districts, as I'm sure many of you know, and they're put up when the historic areas get designated within several months of that, and then through the years, they get vandalized occasionally, that sort of thing. We annually go around and informally throughout the year keep track of ones that have gotten damaged if a truck's hit the edges, or students have decorated it with art or somebody's taken one and hung it in their dorm room. I'm kidding, but we don't know what becomes of them, but we do lose a few each year. And so they are replaced on a regular basis. We certainly, I've not gotten to go back and check specifically to the one that is on Barbary. I have no reason to know of it having disappeared or been damaged in the last couple of years, but I can't promise you that is not the case, but we have record of all the ones we've replaced each year, and we can certainly check on that, but I have no reason to question that it has been sitting in its proper spot, serving its function pretty much continuously throughout the time since the area was designated, which is now 23, going on 24 years ago. um the PVA I'm on the topic now of the um that it was not demonstrated that the house was never painted before this I would just note that um the PVA photograph that is dated to 19 excuse me to 2018 or 2019 we can get that exact date but it was the most current and is was what was on the PVA website at the time we were told that this was happening to go out and look at it. We often, of course, look at the PVA before we go out the door or look on the computer while we're out in the neighborhoods to check and see, you know, what the exact address is, that kind of stuff. And so the picture that was available to us at the time we got the complaint was the picture has been shown to you with an unpainted brick house. I think that common sense tells you that that suggests that this was the state of the house at the time these property owners bought the house and continued to be its state until they decided to paint it. As far as further back, it would be highly unusual for a house to have been painted, a house that was built as a natural finished brick house, to have been painted along the way and been stripped so thoroughly that you couldn't tell it been painted before. Usually you find evidence of that behind window frames, door openings, frames, that kind of thing. So I think logic tells us that with that PVA photo for documentation, there's nothing, you know, photograph is worth a thousand words, that it pretty much assures you this house has not been painted prior to this situation. And the matter, of course, relative to the guidelines is about the inappropriateness of painting an unpainted brick surface and houses that have come to be painted over the years in the neighborhoods every time a new start district comes into designated status there have been things done over the years that would not be allowed within the guidelines after it's designated but anything that is the existing condition at the time of the designation is recorded as that's its status and then the guidelines come into play once the designation is in place and everything then is reviewed with those base criteria going forward and I think you all understand that very well. I think that's pretty much all I was going to note. I concur with everything Ms. Jones said relative to her interpretation, Ms. Jones being attorney, of course, that of what she said in terms of interpretation of Article 13, that has certainly been what she noted has been my experience over the last since 1991 years, the I've not been running it for 91 years, since 1991. The, the, what the Article 13's directive is, which it covers a great deal of topics and we've been carrying out the program in a very consistent and we think very appropriate way for Lexington Fayette County for a long time and it is in accordance with that and it does not require the reach out to individual each new transaction. It never has and it's unrealistic to think it ever should. All right. Thank you, Ms. Kirk. Thank you. I have a rebuttal. Ms. White, do you want to respond? Very briefly, I think Mr. Simba has probably spoken it more eloquently than me, but I think this body should note that if an experienced lawmaker and attorney did not know, then we can assume that many, many lay people are tripped up by this. This can't be the only case of this type that this body or the Board of Architectural Review has heard. and this homeowner testified and has shown there was no notice. Ms. Gers testifying they don't feel they have any duty to provide notice, despite the clear language. And this body can see very significant financial harm done to the homeowner because value is being taken from them as a result of not being notified and not being placed on notice. and just affirming that with regard to the sign, there was testimony at the hearing below from a neighborhood resident who I believe was also a realtor who said that sign had been knocked down and had not been visible when the property was bought or I think since then. I believe it may now have been replaced, but at all relevant times, it was not visible. And so there was a clear ongoing lack of notice and the regulations require you to give that notice and if you think sending a letter is not a tenable means then there's got to be a better means than just assuming that people will know to check on a planning and zoning website even if they're neophyte buyers to the to the region that is not clear notice that does not satisfy any notice requirement in the law and it's not in accordance with the language of the directives that govern what you do. So we would ask that the decision below be set aside, that the homeowners be allowed to keep the building in the condition it is now with the replacements Mr. Stumbo testified to with regard to the shutters and the windows, and that they not be required to further damage it and incur significant further expense expense and environmental harm by stripping chemically an entire one and a half story building. Thank you, Ms. Weiss. Staff, Hal, do you have anything you would like to add? Thank you very much. As you know, it's hard for me not to say anything, so I'll try to say some very few things very quickly. I'm sorry? No, I said thank you for making it. In regards to the signage, the exhibit that the appellant's attorney just referenced actually brought up the signage, which allowed staff to actually look into signage. The photos that were displayed in the presentation today were all dated June 2018 or 2019. I'm sorry. They're all found on Google. They were all prevalent and available for anyone to see. So if the applicant is positing that they have not been available or not visible, I would refer them to looking at the photos from today's presentation and the photos on Google, which were brought up by the appellant in their letter. I would also like to put or throw out there, discuss that a violation of a zoning ordinance and the rectification of that violation does not constitute a taking. This has been determined many times over, whether it's by the BOA or the Board of Adjustment, with asking people to go back to the original zoning or apply the appropriate zoning aspects. This is a zone overlay or an overlay zone. It has rules and regulations associated with it. The applicant did not go through the proper procedure and is asking to be waived of those responsibilities. We have seen that they have been advised with signs in the area that is an adequate representation of governmental notice. We do that for zone changes as well. So with that, staff concludes our rebuttal phase and we turn it back over to the planning commission. We're going to close this part out of the meeting and bring it to the commission members for questions, further discussions. We'll go in order as I see hands. I think Mr. Nichols was first, Mr. Paul was second, Mr. Wilson third. i'll be quick and i just want to make this as a general comment i think historical overlays are fantastic when used appropriately but sometimes we'll see neighborhoods that are trying to discourage new housing types in their neighborhoods they will put a historic overlay on their in their community and this could be one of the unintended consequences of that so i'm making a statement that I would discourage the use of the H1 overlay to prevent different housing types in existing communities. Mr. Poe. I wanted to also support Ms. Jones' reading of the article regarding the responsibilities of the planning of the Board of Architectural Review with regard to notification that there's nothing in there about notification there's there is if there is a requirement that that assistance and information is provided that doesn't mean that anyone's obligated to notify someone that that they've purchased a certain a house in a certain type of zoning. I was a practicing architect for 25 years I worked largely in historic areas on many historic homes and then I also sat on the Board of Architecture Review for eight years and four months. And I have to say that the most difficult cases that we saw on the Board of Architecture Review are ones like this one in which homeowners had unwittingly moved forward with a project without awareness or in deliberate ignorance, deliberate failure to follow H1 guidelines. I'm absolutely convinced that in this case, it was an unintentional move and it's extremely unfortunate. And I can tell you, makes it very, very difficult when you're sitting on the BOAR to render a judgment in a case like this. And everything that we would try to do would be to err on the side of the homeowner because we're empathetic with their position. However, you can imagine the problem if you make a decision like this that contravenes the guidelines in a case like this, because it sets a precedent And every time someone paints a house, whether wittingly or unwittingly, it renders the guideline untenable. So there's really no possibility of overturning the BOAR's judgment. It's based entirely on the best evidence at hand. I can tell you that we had had, during my eight years and four months, we had several house painting requests for masonry painting. And if the masonry were in reasonable condition and could be repaired, there's no way that painting it would be approved. I don't believe there was a single, there may have been one case in the entire time that I sat in which painting was approved and that was a case where the masonry was just completely trashed and just in terrible condition. The argument that the cracks in brick or some chips or whatever are going to cause water damage inside a house, it's highly unlikely. The brick is not the primary water barrier on a house. It's the building paper behind the brick that provides water barrier. The brick is a weather barrier, but not a moisture barrier. So usually there is water damage in the house, and it appears to be related to the brick. It's almost always a flashing issue, issues around window openings, door openings, soffits, where the water's penetrating in other ways, but not through brick failures. It's feasible, but it's extremely unlikely. So with the applicant, but I just think that we have to support our planning and zoning process, and that includes the decisions of the BOAR. Thank you. Thank you, Grant. Mr. Wilson? Yes, I have a question for my realtor colleagues on the panel. It's a very straightforward, simple question. When you sell a piece of property to a homeowner, are you required to disclose whether or not it's in a historic district and are you also the zoning of that particular property? Yes. Do you do that or not? Zach you can take your uh yeah Mr. Wilson as as a practice um whenever I write an offer to purchase on a property that's in a historic district or encumbered by a conservation easement and I did this before I went on the the rural land management board and long before I went on this body I always put in the offer to purchase that all parties acknowledge that the subject property is either encumbered by a conservation easement or is subject to a historic overlay, period. That is best practice. That is what I demand of my agents who work for me. And even if I'm listing a property in a historic overlay, I always put that it's subject to H1 in the listing remarks. And furthermore, if the purchaser's agent does not put it in the sales contract that the property is subject to an H1 overlay. I, as the listing agent, insert that in the sales contract. Now, Commissioner Barksdale may have additional information or how she practices real estate with this particular overlay. But as far as what are we required, I think the real estate commission would say that realtors are required to disclose any pertinent facts relating to the property in question. And that's how I sell real estate. Thank you, Mr. Davis. Ms. Boxdale? Yeah, I definitely agree with what Zach said. I personally haven't had any experience in selling in a H-1 overlay zone. So this has been a real education for me. But I do know as a listing agent, when I list the property, regardless of where it is, I always go to the PBA to see what the current zoning is. I mean, that I don't know how you list without, you know, going through that that due diligence to let someone know I could see where and an inexperienced buyers agent, you know, I might have been in the same situation may have missed that because it wasn't in the listing. and apparently was it may not have been in the seller's disclosure but as a listing agent you know you you start you start with the pva to see what's what's going on with the property so it should have been uh disclosed at some point and mr chairman i would add this um realtors uh we we will disclose anything and everything that we know about the property um but there are instances where through no fault of an agent, they don't know a very serious pertinent fact relating to that property. And ultimately, that's why you have a due diligence period. I mean, it has to come down to the buyer who is purchasing that property to do their research to determine to their own satisfaction if the property is suitable for their intended purposes, which would include any laws or regulations applying to that property. Realtors, we cannot disclose something that we don't know. Now, in this case, it's pretty easy to know that it's in an H-1 overlay, but ultimately, the responsibility has to fall to the buyer. Well, Mr. Chairman, first of all, thank you all to my realtor friends here who helped me. I think your comments have been very enlightening. And I am empathetic to the homeowners because when they do get involved, they try to do what they can to improve. But I think the issues here are pretty clear. And to that end, I'm going to be supporting Mr. Pol's position and also will be supporting the VOA and our staff's recommendation. Thank you. Okay. Any additional questions from the commission members? All right, not seeing any. We do have a staff recommendation here, but also we'd also had legal speak on behalf of this in a little more intense version, but the floor is open for additional questions or conversations or emotion. Mr. Pennington, you want to say something? No, the only thing I was, and I think Zach covered it very well. I just think that it comes down to the due diligence situation. It's not our job to determine who's at fault here. It's our job for whether we're going to uphold this appeal. And so I'm not going to try to determine who's at fault here. I'm just trying to determine whether we're going to uphold it or not. OK, thank you. All right, so the floor is open. Floor, a motion. Mr. Wilson. Mr. Chairman, I move that the commission supports the staff's recommendation for disapproval and supporting the BOA in their decision for disapproval. Do we have a motion? Do we have a second to that motion? Just to clarify. it's just go ahead yes i'm sorry boar i'm sorry okay and mr poe uh you seconded that motion yes sir okay thank you so we have a motion and a second any further discussion to that i've seen it all in favor please raise your hand okay it's unanimous all right thank you advocate thank you everyone uh next up staff items good morning mr chair good all right good afternoon mr chair good lord are you in california somewhere i don't know where we are anymore thank you you look good now yes sir yes sir thank you all for another long afternoon Mr. Chair you just are doing wonderfully keeping these meetings going keeping us all here so we do appreciate that and to remind you all that due to the holiday schedule we will be meeting again next week for a public hearing for the zoning hearing so the zoning hearing is on the third Thursday this month November 19th And, of course, we will be off for Thanksgiving. So we look forward to seeing you again next week to conclude the business for the month. Thank you, Mr. Chair. Mr. Duncan, I'm telling you, you lost some years with that haircut off. Mr. Wilson? Mr. Chair, I recommend that we give you a raise for the outstanding work that you've done. I don't need no raise. I don't need a party. That's two parking spaces. You get two now. I don't need a parking space. I don't need it. We got animal parking down here. I can walk or ride a bike. If I don't have any objections, meeting is adjourned. Thanks, everybody. Thank you.