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01 APR 23 SP.doc CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. OPENING: Chairman Brannen called the meeting to order at approximately 7:02 p.m. and invited Mr. Richard Magee from Metroplan to address the Planning Commission. Mr. Richard Magee related that he will present a condensed PowerPoint presentation made in association with the American Planning Association Arkansas Chapter. He related that Metroplan performs workshops for Planning Commissions across the State. He asked for input regarding areas of interest or a particular focus. Commissioner Hardwick asked for clarification regarding the jurisdiction of matters to appear before the Board of Adjustment and Planning Commission. Secondly he expressed interest in a discussion regarding Metroplan’s and/or the Planning Commissions of America’s position on talking with petitioners and in particular citizens who are against change. Thirdly the ethics of when Commissioners would disqualify themselves from a vote. He explained that at a recent meeting someone told the press that the only reason he was voting favorably for an item of business was because the bank where he is employed would benefit. Mr. Magee stated that in the Metroplan packet provide there is a copy of Act 186 of 1957, which is the enabling legislation that gives the Planning Commission the authority to act and plan. He stated that if the community is small enough the Planning Commission can actually operate as both regarding the Board of Adjustment, adding that Jacksonville has a Commission and a Board, which is not unusual for the larger jurisdictions. The Planning Commission operates strictly as an advisory board to the City Council regarding their decisions of rezoning or subdivision, adding that the City Council is the body to take final action. He stated that the Board of Adjustment is totally different from that, explaining that the Board is a quasi- judicial function and should be conducted under two separate agendas with two sets of procedures, advertised separately and should be acted on separately. He related that the Board of Adjustment addresses issues regarding appeals and requests for variances. If a petitioner does not agree with a decision made by a staff member regarding zoning then he can appeal to the Board of Adjustment. He stated that a variance, literally interpreted has to be specific in the zoning ordinance before it can be varianced, such as a setback, height issue, or something particular to the zoning ordinance. He then related that State Law strictly prohibits the Board of Adjustment from permitting a 1 variance of any use in a zone that is not permitted under the CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. ordinance. He stated that if the Board of Adjustment becomes involved in any kind of use variance, it is stepping away from its purpose. He then related that the Board of Adjustment should be looking at strict interpretation of the zoning ordinance and its literal meaning. He stated that because the Board of Adjustment is a quasi-judicial function, it basically sits as a judge, and consequently whatever determination is made by the Board of Adjustment, is not appealed to the City Council but straight to the courts. He stated that for that reason the procedure is totally different and notes should be kept on how the decisions were made, in case it goes to court, the Board must provide a good basis for why it made that judgement. He said that the Board of Adjustment is more serious because it does go straight to court. He stated that specifically the issue of use is off limits completely, but everything else in terms of the zoning ordinance, such as parking requirements, setbacks, height issues is handled by the Board of Adjustment, adding that it must be a hardship issue, it cannot be an economic issue, it has to literally be tied to that specific piece of property which cannot meet the requirements of the ordinance. He related that a hardship might be a request to put their elderly mother in a mobile home behind their house and they want a variance. City Engineer Whisker questioned if a request for mobile home placement not as the primary residence, would go before the Board of Adjustment under the one-residence one-lot rule. Mr. Magee responded that it would depend on the zone, adding that he is sure it is probably not authorized in the zoning ordinance. He stated that it cannot be done if the ordinance says that you can have only one structure, and most of them do have one principal structure on a lot, you can not variance a use under the Board of Adjustment which comes straight from State Law. Commissioner Hardwick related that mobile homes have been granted through the Planning Commission. Mr. Magee stated that the Planning Commission could not do that, because it violates Jacksonville’s zoning ordinance. If the zoning ordinance says that you can have only one principal residence per lot, you can not do that without changing the ordinance. In response to a question from City Engineer Whisker, Mr. Magee 2 stated that the Board of Adjustment’s responsibility is to literally read the ordinance and interpret the meaning; you cannot read anything into the ordinance that is not there. CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. City Engineer Whisker questioned a sign request that is fifty- five feet and the ordinance allows only forty-five feet. Mr. Magee stated that it would be considered a variance of distance, which is a Board of Adjustment issue. He then stated that to add a family to a one-lot rule you would have to change the ordinance to allow that. He related that it becomes an issue of equal protection under the law. He related that zoning is a police power and when talking about exercising police power you get into equal protection and civil rights issues. He stated that when you allow someone to do something that is not specifically written in your ordinance then you come under equal protection issues. He stated that if there is a request that is not allowed by ordinance, then the proper procedure would be take the matter under consideration, asking yourselves what zones does this need to occur in and then entertain a motion to amend the ordinance to allow that specific request to occur before granting the request. He stated that the primary reason is equal protection under the law. He related that in the last ten years across the United States, Planning Commissioners are beginning to be sued on various issues, personally not just as a planning commissioner. He pointed out that the public is a lot better informed about the laws and that obviously our society is becoming more litigious in terms of filling suit. He stated that he would urge not to step beyond what the ordinance allows, saying that the ordinance can be amended a thousand times, but do it by procedure to protect yourself and the City. Mr. Magee addressed ethics saying that generally it comes down to perceptions of the Commission and the bested interest in a particular issue. He went on to say that if a Commissioner has any legal, financial, or personal stake, even peripherally; involving not only himself but any member of family, he would need to step away from that issue. He stated that again it goes back to the issue of perception. He related that people are becoming cynical regarding public positions, pointing out that whatever can be done to protect that image, even if it cost a vote, it is better to step away. He stated that if the issue is really good for the public then one vote will not matter. Commissioner Hardwick explained that in his situation, he is the president of a mortgage company, adding that any subdivision approved by the City is subject to have mortgages through the company that employs him. 3 CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. Mr. Magee he stated that while there is a fine line, he believes that a Commissioner in that position can vote on a subdivision that may or may not receive that business, but it would be another issue to in fact have provided financial interest in that subdivision. He stated that if the company was financially vested and the Commissioner was financially vested in the company and not just an employee, then it would be an issue. He stated that the same would extend to an architect who might have an opportunity to vote on a project he was designing. He clarified that if the architect were asked to build a house in that subdivision after the fact there is not a conflict of interest, because that is something in the future that may or may not occur. Commissioner Young questioned the ethics if the developer has been a client in the past and is a continual client of your firm and the project is one that the Commissioner has no association with. Mr. Magee stated that it would be a question best answered by the Commissioner for himself. He stated that it still comes back to the appearance and perceptions of people. He stated that a Commissioner must make a clear distinction and vote his/her conscience. He stated that this often occurs in smaller communities. He related that a Planning Commissioner can tell from questions asked him if there is a perception that he may have a conflict of interest, adding that some people will feel there is a conflict of interest regardless and can never be satisfied. He related that if there is any question in people’s perception that there might be a financial interest, a Commissioner might want to back away from the issue. He stated that it is more to protect the Commission than to protect oneself. In response to a question from Commissioner Young, Mr. Magee related that a Commissioner would recuse himself at the introduction of that business and not participate in the discussion or vote. Metroplan Representative Susan Dollar related that if a Commissioner does decide to recuse himself, he should state it for the record, explain the connection, and physically move from his chair at the proceedings. 4 CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. Mr. Magee stated that ethical issues are harder in a small community. He related that the standards set by the American Planning Association are strict standards because Commissioners hold the public trust. He then addressed an earlier question regarding telephone calls from citizens to Commissioners dealing with an item of business, saying that it involves Freedom of Information Act under Arkansas Law. He stated that any information gained by a Commissioner from a constituent, should be made public if the Commissioner feels it should and he should inform the constituent before speaking of that fact. He stated that knowledge of that fact can sometimes change the conversation very abruptly, pointing out that sometimes people will begin to give you information and preface that with an exclusion of anyone else being told, adding that any information gained should be shared by the entire Commission. Commissioner Hardwick noted the use of perception as a “club” and problems regarding a quorum. Discussion ensued as to the purpose of zoning by municipalities and Mr. Magee related that zoning is established to implement the Comprehensive Development Plan and the Land Use Map. He explained that each zoning request should be compared to the implementation of the Plan. He stated that the Arkansas courts uphold the adopted Plan and its implementation. Arkansas Law states that each municipality must have a plan and that zoning is the tool to implement the plan. He stated that Jacksonville’s plan was adopted in 1980 and may require a review. He said that zoning requests that do no implement the plan should be denied. He added that cities should not change the plan to accommodate a zoning request at the same time. Discussion ensued as to current legislation regarding the adoption of the map which would become the plan rather than a written document. It was not clarified if the legislation was passed. Mr. Magee stated that the Arkansas courts have ruled that a zoning text could not be adopted without a map. Mr. Magee referred to the Statement of Public Purpose, “the plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity, and general welfare of the citizens: and may provide, among other things, for efficiency 5 and economy in the process of development, for the appropriate and best use of land, for the convenience of traffic and circulation of people and goods, the use and occupancy of buildings, for healthful and convenient distribution of CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.” Act 186 of 1957, as amended. He stated that Arkansas law provides for the convenient distribution of population. He stated that it is important regarding the capacity of the streets, water system, and sewer lines to serve the population. He went on to say that the zoning ordinance implements the Land Use Plan and the subdivision regulations implement the Master Street Plan. He stated that a subdivision request should be referred back to the Master Street Plan for implementation. He stated that the one goal of the Planning Commission is to implement the adopted Plans. He stated that cities could not have subdivision regulations without adoption of a Master Street Plan. He related one question that Planning Commissioners should ask when reviewing a subdivision “is there enough dedicated right-of-way for a major street regarding improvements”. He related that the Land Use Plan should be referred to regarding conformity of proper zoning. He stated that non-conformity must be amended through the ordinances before being granted so as to provide equal opportunity and protection to everyone. He related that anytime a city receives the same type of request over and again it may be time to review the ordinances. Mr. Magee addressed issues regarding subdivision bill of assurances, saying that it is a covenant restriction to the subdivision and is not enforced by the city. The city can only enforce zoning, adding that usually the bill of assurance is more restrictive than the zoning. Discussion regarding Edgewood Subdivision was raised and Mr. Magee stated that if the residents allowed commercial prior to the latest commercial request the bill of assurance generally becomes null and void. He addressed the word variance, saying that the request must be a result of something unique to the property, a hardship caused by zoning not shared by similar properties. He stated that the effect of the zoning standards is not to deny a property owner reasonable use of the property, meaning that if denied the owner 6 literally could not use his property because of some physical restraint. He stated that such an occurrence is very rare. He stated that the request should not be self-imposed; meaning that the applicant did not bring the burden upon himself through some action, but instead had the burden imposed upon them, adding that the variance should not cause any land use or parcel of land to CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. become nonconforming, nor should it be used to allow a nonconforming land use to continue. He stated that in addition to these considerations the variance should comply with the statement of public purpose or intent for the zoning ordinance. He stated that the variance should not harm nearby properties, people associated with nearby property, should not change the character of the nearby area, and a variance is the minimum necessary to permit reasonable use of the property. He addressed permitted uses saying that permitted uses are listed uses permitted by right. He illustrated that when a rezoning is granted any use permitted can be developed regardless of the spoken intent at the time the rezoning was granted. He then related that a conditional use as a listed use is specific, meaning only those conditional uses that are listed and are applicable to conditions. He stated that the Commission has the authority to place as many conditions as necessary including time, space, size, driveways, screening anything that is desired by the meaning of conditional, adding that it can only be for that specific request granted. He stated that if the use discontinues, the property reverts to its original use. In response to a question from Commissioner Wilborn, Mr. Magee stated that a conditional use continues as long as it is viable. Discussion ensued as to the difference between a rezoning request and a conditional use regarding outcome. Mr. Magee clarified that a conditional use does not have to be granted simply because it has been requested, adding that a conditional use gives the Commission the opportunity to stipulate (or condition) the development if approved. He stated that part of the consideration for a conditional use would be if it implements the Land Use Plan. City Engineer Whisker questioned allowing residential in a commercial zone; Mr. Magee stated that it is not unusual to allow a mixture of uses. He added that when it occurs under a conditional use it provides an opportunity to guarantee that the use being proposed is workable on the proposed site. He stated 7 that conditional use deals with site-specific issues not just use specific issues. He went to clarify that it does not accomplish the same as a rezoning because of the restrictions or control that can be placed on a conditional use. He stated that for that reason a conditional use is very important. He stated that a listed conditional use outlined by the zoning ordinance is a legal CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. request, which gets into the area of equal protection. He related that a conditional use can change the entire scale of the project being requested. He added that a conditional use is meant to be restrictive by nature, given any concern the Commission has regarding the development. In response to a question from Commissioner Corroum, Mr. Magee related that ingress and egress can be stipulated, but added that if you restrict that for a conditional use of R-3 in a commercial zone you must be able to say that a commercial development would have produced less traffic than the requested R-3. He stated that commercial generates more traffic than apartments. He reiterated that conditional use is site specific and can be stipulated any way the Commission feels necessary to do so. He pointed out that because of equal protection under the zoning ordinance, the conditional use request must be a listed condition in the zoning ordinance. Discussion ensued regarding curb cut restrictions on commercial property because of safety issues, Mr. Magee stated that the Planning Commission can not deny someone use of their land. He clarified by saying that they have a right to the commercial use of their land but they do not have a right to unlimited access. He added that the Commission could require access be at a certain point or limit the number and/or distance of accesses regarding safety issues. He stated that issues regarding access and rights-of-way can be addressed through the Master Street Plan for equal protection under the law. He went on to clarify that a commercial property owner can not be denied at least one access to a public road. He related that it should be written into the zoning ordinance so all petitioners are treated equally and they are aware of what is expected. He pointed out that Act 186 of 1957 provides cities the authority to create Planning Commissions for city planning, zoning, and sub-division control. He stated that Section Five of Act 186 addresses the control of development and sub-division of land; stating that following adoption and filing of a Master Street Plan, the Planning Commission may prepare and shall administer, after approval of 8 the legislative body, regulations controlling the development of land. The development of land includes, but is not limited to the provision of access to lots and parcels, the extension of utilities, the sub-dividing of land into lots and blocks, and the parceling of land resulting in the need for access and utilities. Discussion ensued regarding if the Land Use Map for Jacksonville depicted mixed-use areas. It was noted that an overlay district addresses the need for mixed-use. CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. Mrs. Susan Dollar discussed issues and scenarios regarding ethics. She related that ultimately ethical issues are surrounded by the public’s perception. In general discussion, the Commissioners generally agreed that a Commissioner should recuse himself regarding the perception factor. Mr. Magee reviewed situations regarding conversations with the public on the telephone, saying that all personal conversations are public. Mrs. Susan Dollar addressed the Arkansas Freedom of Information Act of 1967, saying that it is one of the most expansive Acts in the nation. She related that records for disclosure include E- mail, correspondence, working papers, expense or budget records, video, audio, and memoranda. She related that it is not required to create a document regarding an FOI request and that the Supreme Court has ruled that .25 cents a copy page is reasonable for record duplication. She cautioned that packet information for meetings is made available to the press. She reviewed executive session, which she stated happens only to discuss specific personnel matters. In response to a question from Commissioner Lester, she related that attorneys for either side could not be present in executive session, even if requested. She then stated that working papers that are produced in the office of a private consultant are not subject to FOI request until those notes are provide to the body as a report. Mr. Magee stressed the importance of equal protection under the law and following procedure. He stated that the ordinances can be amended and should be amended over time, as changes require. He stated that the process for adoption is the same process for amendment. He related that without failure the charge of the Planning Commission is for the public good, not the side of the petitioner or those who have come to oppose the item of business. He stated that the main objective for planning commissioners is the public interest on behalf of the city. He stated that it is rare that the public good is brought to the 9 argument. He encouraged the Commissioners to read through their plans, saying that they will contain the stated overall goals and public purpose. He related that a large portion of the Master Street Plan for Jacksonville was implemented quickly in the 1980’s and may need to be reviewed with recent demographic changes. He then highlighted the planning area boundary for the planning jurisdiction. He clarified that under Arkansas Law cities have the authority to plan up to five-miles outside their city limits, adding that Jacksonville extended that territory when State Law CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. extended the jurisdiction because of the Little Rock Air Base. He pointed out that all plans and subdivision regulations used as guidance for inside the City development is applicable for the areas of jurisdiction outside the City limits. He stated that the City has the authority to control subdivision issues outside the City limits. He stated that the Air Base has brought forth some zoning issues included outside the City which is not usually traditional in Arkansas, except in Jacksonville. He stated that the planning jurisdiction is very important to the City of Jacksonville regarding extended boundaries and authority because of what is legally prescribed by State Law. He stated that the terminology of conditional use and special use are one in the same, adding that the word “variance” causes the most confusion. He clarified that variances are only handled through the Board of Adjustment. In response to a query from Commissioner Young, Mr. Magee related that agenda meetings are public and the press is to be notified at least two hours prior. He related that people with an interest in the item could be invited to attend but it is only required by State Law that the press be notified, and the individual who made a written request. Discussion ensued regarding special or conditional uses and Commissioner Wilborn pointed out that guidelines state consideration for what it is and where it will be located, adding that if the appearance and activity are sufficiently different, either modify the proposal or reject the request. Mr. Magee stated that the proposal must meet the requirements of the zoning it is being proposed in. He then pointed out that C- 1 zone allows apartments, but as a conditional use it must meet the same setback requirements of a C-1. He cited an example regarding a nursing home that was constructed in the Quapaw area 10 as a conditional use, but was totally out of character to the old historical style homes that dominated the area. He stated that the commission should have been more stringent on the outward appearance of the nursing home to fit in charter with the residential area. Discussion ensued regarding a re-variance for a burned building, Mr. Magee clarified that if the building is of a non-conforming use, it would depend on what the ordinance states, relating that most ordinances state that in terms of non-conforming use there is a time limit if it is destroyed by natural disaster and/or if more than 50% of the value of the structure is destroyed it can CITY OF JACKSONVILLE, ARKANSAS INFORMAL PLANNING COMMISSION MEETING APRIL 23, 2001 7:00 P.M. – 9:05 P.M. not be rebuilt before coming into compliance or if the use is discontinued for a period of 6 months up to 1 year depending on how the ordinance is written they would have to come back to conforming. City Engineer Whisker offered that he has a copy of the extra territorial map in his office for review. Mr. Magee suggested that the Land Use and Master Street Plan maps be displayed for Commission meetings, supporting that decisions made by the Planning Commission are implementing those plans. Mr. Magee pointed out that a non-conforming use can remain until it is no longer being used for that use, and then it reverts to the original use intended. He cautioned the commission to be careful of petitioner’s request of non-conforming use and rezoning. He reminded them that any rezoning opens that property to every use that is listed under that zone. He cited an example of property being sold after a zoning change, saying that the new owner can then develop under the new zoning. Discussion ensued that a dimensional variance not related to a non-conforming use destroyed by fire would not require a re- variance if being rebuilt to original specifications. It was noted that a variance is permanent by nature. Mr. Magee related that another issue would be non-conforming use of lots regarding setbacks, which are basically grandfathered in until there is a replat. Discussion ensued as to the zoning requirements regarding accessory buildings, and Mr. Magee stated that most ordinances address accessory buildings for each zone with different 11 requirements. It was noted that Jacksonville’s ordinance addresses accessory building for all residential zones as not to exceed a maximum of 650 square feet. ADJOURNMENT: Chairman Brannen without objection adjourned the meeting at approximately 9:05 p.m. Respectfully, Susan L. Davitt Planning Commission Secretary 12