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14 MAR 10 CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. OPENING REMARKS: The Planning Commission of the City of Jacksonville, Arkansas met in regular session on March 10, 2014. Chairman Ott opened the meeting at approximately 7:00 p.m. expressing appreciation to those in attendance. ROLL CALL: Commissioners Scott Scholl, Jim Moore, Avis Twitty, Rick White, and Alderman Bill Howard answered ROLL CALL. Chairman Ott also answered roll call and declared a quorum. PRESENT (6), ABSENT (3). Others present for the meeting were City Engineer Jay Whisker, Director of Administration Jim Durham, Danny Martindill, Keith Vaughan, Lloyd Friedman, Craig Friedman, interested citizens, petitioners, and press. CORRECTION AND/OR APPROVAL OF MINUTES: Commissioner White moved, seconded by Commissioner Scholl to approve the minutes of the regularly scheduled Planning Commission meeting of 18 February 2014 as presented. MOTION CARRIED. PUBLIC HEARING(S): CONDITIONAL USE of C-2 in M-2 zone for 2221 West Main Street Mr. Keith Vaughan introduced himself as the representative for Mr. Danny Martindill, who is the owner of the property located at 2221 West Main. In offering a brief history, he stated that the property was granted a nonconforming use in 1978 and has continued in that same use to this date. He related that the property has had several name changes through the years. He then stated that he is not sure they should need to be in front of the Planning Commission but have agreed to do so as good corporate citizens and are willing to answer any questions the Commission may have. Chairman Ott questioned what the conditional use would be used for. Mr. Vaughan stated that a nonconforming use does not have to be zoned for whatever the correct zoning might be, saying that the conditional use is for a bar in an M-2 area. He stated that since the bar never stopped being a nonconforming use, they do not believe this request is necessary but are going through the steps requested by the City. He then answered Chairman Ott that they are grandfathered in as a nonconforming use, adding if that use were to ever stop, they would lose that status and have to be rezoned. City Engineer Whisker stated that the City feels that they did stop that use for a period of time so they do need to go back through the Planning Commission and obtain a conditional use. He added that the owner and his attorney believe that the use never stopped and are still grandfathered in. He explained that the owner has agreed to go back through the Planning Commission to obtain a conditional use. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. Mr. Vaughan supposed that the only legal issue he recalls from having written some of the ordinances himself, is that if there were a fire and it took more than 6 months to remodel, then 6 months was the deadline and the business lost it nonconforming use status or if the property were damaged to more than 50% it would cause loss of that status. He explained that Mr. Martindill had a country and western bar and then decided to switch to a different type of atmosphere, renaming the business “Upscale” and doing a considerable amount of remodeling. He stated that the bar was closed for 6 or 7 weeks for remodeling. He added that the bar was never closed anywhere near 6 months but Mr. Martindill is here as requested by the City. He then answered that the use would be the same, pointing out that previously it was a strip club but there would be no strippers regarding the current plans for the club. He stated that it would just be a nightclub and Big D’s would still be a sports bar. Commissioner Moore related his understanding that when a conditional use is no longer in use, there has to be a new conditional use granted. He stated that a new conditional use cannot be approved on an old named facility, clarifying that if a name change occurs there has to be a new conditional use granted. Mr. Vaughan referred to State laws, saying that in order to have a nightclub you have to be a non-profit organization. He continued saying that in order to be a non-profit there is a corporation that obtained the original liquor license, which was Barney’s Barn. He related that as long as Barney’s Barn still owns the business, the name can be changed as long as they file a DBA. He noted that they have filed a DBA for the new club. He emphasized that Barney’s Barn still owns the business and it is still the same type of use. Commissioner Moore stated that in spite of what State law says, Jacksonville has requirements for a conditional use in a zoned area that does not allow this type of facility. He stated that this is the determination before the Planning Commission, not what State law says. He agreed that they are governed by the State as far as the sale of liquor, but the conditional use is dictated by City ordinance. Mr. Vaughan related that if this were not an existing nonconforming use grandfathered in then that would be correct. He added that regardless of the fact, they are before the Planning Commission to do whatever is being requested. Commissioner Moore stated that he is not aware of any ordinance that grandfathered this business. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. City Engineer Whisker stated that they are here even though Mr. Vaughan and his client believe they are grandfathered in and have continued operations, adding that the City does not agree and have asked them to obtain a new conditional use. He pointed out that if they were what is being termed an existing nonconforming use, then they could be there and change names, as they desire. He stated that the difference is the two months they closed the club, which they say was to remodel and they changed the name. The City says that they were not continuing the business so therefore the nonconforming use is no longer applicable. Chairman Ott noted that in viewing the property there was a cease and desist order from the Fire Department; questioning how long it had been in place. Mr. Vaughan stated that the order was in place for 17 days, adding that the City requested they come before the Planning Commission for a conditional use and partly to go back through the privilege tax issuance, which requires re-inspection of the property for a business license. He went on to say that when Mr. Martindill was closed down by the Fire Department it was because he only had one dedicated line to the Fire Department while the ordinance requires two. He added that the order was removed from the business today, which was the only reason for the cease and desist order. City Engineer Whisker agreed that the main issue was to comply with ISO and fire requirements. He related that issue has been cleared up and all City departments have signed off on it, adding that the only remaining issue is the conditional use. Chairman Ott questioned, since the conditional use is no longer in place, how that affects the request for another conditional use given the close proximity of a church and daycare. City Engineer Whisker stated that in speaking with the City Attorney the answer was no, not that he was aware of. Mr. Vaughan stated that it is a State requirement, pointing out that the State cannot issue a liquor license without their permission. He went on to say that the City may have a similar requirement. He then elaborated that if Barney’s Barn had to get a liquor license today it would require consent from those establishments. He then clarified with Chairman Ott that his position is that the Club already existed with a liquor license before the church or daycare were opened in their present locations. He stated that the liquor permit is still valid for Barney’s Barn. Commissioner Moore stated that if the conditional use permit is granted, he would like to offer some stipulations. He pointed out that while he heard Mr. Vaughan say that there would not be any sexual CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. oriented business there; he would like to have the stipulation that if any such activity is started the conditional use permit would be withdrawn and voided. He added that he would not want a convicted felon of a violent crime working in the facility. He went on to say that, another concern because of the church and school is that alcoholic beverages cannot not be served or sold after midnight Sunday through Thursday. He continued on other days; alcohol cannot be served or sold after 2:00 a.m., adding his reason is that some people who attend the church have found condoms and beer cans in front of their church. He continued saying that another stipulation is that there has to be compliance with State law regarding no weapons being allow in the facility. He stated that another stipulation is that the business must comply with the City of Jacksonville signage ordinance and no temporary signs or gambling of any kind is to be conducted in the building and alcohol is to be consumed in the building only, no gathering in the parking lot consuming alcohol. Mr. Vaughan pointed out that most of the stipulations are controlled by State law, explaining that if they were to be involved with any of those items they would lose their liquor license. He added that State law supersedes City ordinances as far as hours of operation, and that the Statute specifically says a City cannot pass any ordinance that conflicts with State law regarding liquor service. Commissioner Twitty stated that the club has been in business for as long as she can remember; recalling that they use to have strippers. She stated that the City has had three mayors, including the present Mayor, and no one has ever said a word or done anything regarding operations of this business. Mr. Vaughan addressed Commissioner Moore’s concerns, saying that he shares the same parking lot and has also seen condoms; adding that since it is a vacant parking lot he believes there would be condemns not matter what business is next door. He stated that his agreement with Mr. Martindill is that his people will police the parking lot before they leave at 5:00 a.m. so that condoms are not there. He stated that if that is still happening then by the current agreement it should be corrected. Director of Administration Jim Durham stated that in speaking with the ABC, Director Langley related that cities could regulate the time of alcohol service. He stated that it can be more restrictive than their regulations regarding a private club. Mr. Vaughan retorted that maybe that is the reason they are here, the City is trying to get around the fact that this is a preexisting nonconforming use. He stated that this facility has been in business since 1978 under a nonconforming use and it has not stopped. He added that Mr. Martindill is here to comply with the City’s request and to answer any questions and comply with anything the City can legally CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. impose. He added that they should not even have to be here but they are. Commissioner Moore stated that he is aware of State regulations because he use to inspect places like this and he is aware of what the State has to say. He stated that he represents Jacksonville as a Planning Commissioner and he does not care if it was 1978, this is 2014 and things change. He stated that if Jacksonville decides there should be stipulations for a conditional use in an M-2 zone, then that it the way it should be. He related that the Planning Commission has authority to control what is in the City limits. Mr. Vaughan stated that he understands that and is not arguing that point. He continued saying that they are there to do as the City request and if there is a disagreement, they have options. He stated that he would like it to be a matter of record that they are not waiving any claim that they have regarding having to be here. He stated that it is not meant in an argumentative way, adding that he is trying to protect his client’s rights. Commissioner Twitty moved to grant a conditional use of C-2 in an M-2 zone for 2221 West Main Street without stipulations. Commissioner White stated that before ruling in this matter, he would like to have input from the City Attorney. He suggested that the item be tabled until City Attorney Bamburg can be present. Motion dies for lack of a second. Alderman Howard moved, seconded by Commissioner Scholl to table the item of business until the City Attorney can be present. MOTION CARRIED with Commissioner Moore voting NAY. Mr. Vaughan stated that Mr. Martindill will reopen his business tomorrow, saying that he has complied with City requirements and he has been without the benefit of business for 17 days. He went on to say that it is not their fault that the City Attorney is not present. He reiterated that Mr. Martindill would reopen because there is no longer a cease and desist order, adding that hopefully there will not be any issues. REQUEST TO APPROVE PLAT(S): BUILDING PERMIT(S): SITE PLAN 7216 T.P. White Drive Representative Craig Friedman stated that they are requesting a business license for Derkin Buildings on this property. He stated that the issue is a requirement for sidewalks, adding that they are requesting a waiver from that requirement. He explained that the CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. property was recently annexed into the City. He related that they are requesting that the property be allowed to continue to be used as it was before it was annexed, pointing out that the property still does not have City water or sewer. He then clarified that the property has a septic tank for water and bathroom facilities. City Engineer Whisker stated that as businesses are developed in the annexed area, the City has required the developers to plat the property, put in sidewalk, and landscaping. He stated that Mr. Friedman owns the corner property at Carrington and T.P. White Drive, which was previously operated as a mobile home sales business. He then explained that around the time the property was annexed; Mr. Friedman purchased the property and a vendor was selling fireworks. He related that the next business was Derkin Buildings, explaining that there was an open discussion regarding how long that business would be there and going from there. He stated that the business has been in operation for approximately two years; however, Mr. Friedman feels that since the buildings are portable and he is not constructing a permanent business structure, he should not have to plat the property or put in sidewalks with landscaping. Mr. Lloyd Friedman reiterated that they are asking the City to issue a business permit for Derkin Buildings and let the property remain as it is. He stated that the property is clean and presentable. He went on to say that the current landscaping is good, presenting a positive atmosphere. He related that when the business moves and the property is formally developed, they come back to the Planning Commission with plats and development plans. City Engineer Whisker noted that the front third of the property is being used for the current business. Director of Administration Jim Durham stated that the City does not have a problem with the current business because all the buildings are portable. He went on to say if they construct a permanent building then the City would want them to fulfill all construction and development requirements. Chairman Ott noted that issues regarding paved parking, customer restrooms, and landscaping for the newly annexed area have come before the Planning Commission before. City Engineer Whisker noted there is a business across the Freeway that obtain a State waiver regarding a customer restroom because the owner stated that he would allow customers to use his residential bathroom. He went on to say that because the parking was never paved or landscaping put in, the City never issued a business license. He pointed out that this involved a permanent business structure. CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. Director of Administration Durham stated that is an issue that will probably come back before the City, saying that the City is trying to be fair and make everyone comply. He recalled the development of the boat business that had to construct a sidewalk. He stated that since this is all a portable situation even the sales office, the City does not have an issue. He pointed out that any sidewalk would be torn up when the property is permanently developed. Commissioner Moore stated that the business that does these buildings is all over Arkansas and he has seen the other places and it is all temporary portable type buildings. He added that the office has water and electricity. Discussion ensued regarding it being presented to the Planning Commission as a site plan, City Engineer Whisker stated that in accepting the site plan the Planning Commission is saying that they are okay for the business to operate without sidewalk or landscaping. Chairman Ott noted that he has never seen a site plan that was not certified by an engineer. City Engineer Whisker recalled that the site plan brought before the Planning Commission originally was a sketch drawing from the building owner and was rejected at that time. He stated that this is by far the best thing that has been presented. He reiterated that they are trying to do the least amount they can so that they can do business on that location. Mr. Friedman stated that it would be difficult to present a finite plan with the buildings all being temporary structures. City Engineer Whisker demonstrated the portion of the property used for the current location in regard to the property lines for the entire parcel. Mr. Friedman clarified that the portable buildings for sale are being moved around as inventory is purchased. Alderman Howard moved, seconded by Commissioner Scholl to approve the site plan as presented for 7216 T.P. White Drive regarding Derkin Buildings. MOTION CARRIED. GENERAL: UPDATE of Planning Jurisdiction presented by City Engineer Whisker City Engineer Whisker informed the Planning Commission that the State has changed the laws regarding planning jurisdictions reducing the extra territorial area to one mile. He added that the County has requested the City to change the planning jurisdiction to one mile that overlap. He stated that he is working with Sherwood to work out CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. a boundary that will divide the overlap. He then related that unless the Planning Commission has other plans he does not plan to go pass the Lonoke County line to the north of Jacksonville. He stated that Cabot does plan to cross the County line, but added that it is possible they plan to annex across the County line. He explained the process that Cabot would have to go through to accomplish such an annexation, saying that the lands would have to be released by the county judge. He explained that Cabot would have to go through the Pulaski County Judge, adding that it would be up to the Judge to release those lands into Cabot. He stated that many things have to come into play before the land could be annexed, but for now Cabot is taking the initiative to have their one-mile planning jurisdiction go into Pulaski County. In response to a question from Commissioner Moore, City Engineer Whisker stated that Cabot extending their jurisdiction into Pulaski County does not prohibit the City of Jacksonville from annexing those lands. He stated that the City is allowed one mile and Cabot is allowed one mile and if the cities do not agree on a boundary then a halfway line would be drawn. He added that he does not plan to cross the Pulaski County line and if Cabot disagrees then the difference would be split. He stated that for the first time cities are starting to touch and are jostling for land, adding that it began when Sherwood annexed land that Jacksonville wanted to annex. He related that as cities grow this will continue to be an issue, adding that increased population bring increased revenue for a city. He then pointed out that Hwy. 5 corridor is commercial and approximately 75% of City revenues are derived from Sales Tax. Discussion involved considerations for annexing the Valentine-Wooten Road area. He explained that for various reasons the residents would like to be annexed into the City of Jacksonville but the City has decided that until a more even boundary line can be considered they are not considering annexation at this time. He then pointed out that the centerline of Hwy. 5 is the County line, saying that the businesses on the west side of Hwy. 5 are actually in Pulaski County. He noted that the City would have to take in County residents and quite a bit of hunting land to get to the County line. He concluded saying that he wanted to apprise the Planning Commission of ongoing considerations regarding the boundary lines under the new one-mile planning jurisdictions. ANNOUNCEMENT: CITY OF JACKSONVILLE, ARKANSAS REGULAR PLANNING COMMISSION MEETING MARCH 10, 2014 7:00 P.M. – 7:43 P.M. ADJOURNMENT: Chairman Ott without objection, adjourned the meeting at approximately 7:43 p.m. Respectfully submitted, _________________________ Susan L. Davitt