11 JANUARY 2005

7:00 P.M.



I.                     CALL MEETING TO ORDER


The meeting was called to order at 7:00 p.m. by Chairman William G. Syfert.


II.                   ROLL CALL


Members Present:††††††††††††† Tony Butrum, Robert Coleman, Steve Galster

††††††††††††††††††††††††††††††††††††††††††††† David Okum, Lawrence Hawkins III, Tom

††††††††††††††††††††††††††††††††††††††††††††† Vanover and Chairman Syfert


Others Present:†††††††††††††††††† Jeff Tulloch, Economic Development Director

††††††††††††††††††††††††††††††††††††††††††††† Bill McErlane, Building Official

††††††††††††††††††††††††††††††††††††††††††††† Don Shvegzda, Asst. City Engineer

††††††††††††††††††††††††††††††††††††††††††††† Anne McBride, City Planner




Mr. Galster moved for adoption and Mr. Vanover seconded the motion. By voice vote, all voted aye, and the Minutes were approved unanimously.


IV.               CORRESPONDENCE


A.            Report on Council


Mr. Galster reported that at the January 19th meeting will be the public hearing for the transition overlay district for Kemper Road.


B.            Board of Zoning Appeals Meeting Minutes Ė November 16, 2004

C.            Zoning Bulletin Ė December 10, 2004

D.            Zoning Bulletin Ė December 24, 2004

E.            Zoning Bulletin Index 2004

F.             Planning Partnership Update Ė December, 2004


Mr. Galster reported that the Planning Partnership has completed all the planning and are moving toward implementation.They will try to give a presentation to each of the jurisdictions some time in the coming months, and if that is before Council, Planning Commission will be invited to attend.They will have their annual meeting April 11th.


G.            12/29/04 Letter from Joe Perin re Parking/Landscape Plan for Staples

H.            12/15/04 Letter from Lawrence Hawkins III to Kathy McNear re recommended Transition Overlay District Ė West Kemper Road



V.                 OLD BUSINESS


A.            Approval of Proposed landscape Plan Ė Staples Ė 12050 Princeton Pike Ė tabled 12/14/04


Jay Perin approached the commission representing the landlords Pat and Joe Perin.He introduced his sister Teri Rohan, and Tony Schweri from Delhi Landscaping.I believe the plan has been distributed.


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Mr. Syfert reported that in the staff meeting, the overlay we saw did not match up with what was agreed upon by Planning Commission and Staples regarding where the drive was and the layout.Has the plan been changed any, or not?


Mr. Perin said let me introduce Rich Herndon.He is the legal counsel for the Perins.The plan does not match up with respect to the drive.


Mr. Syfert responded this commission was pretty adamant about where the drive wanted to go.I pose to the commission should we even hear this issue if it does not match what we agreed upon?


I will say that at staff meeting, I did not want to even hear this because it did not match what we agreed upon in October and what we expressed to Pat and Joe Perin in December, but I was convinced by staff to bring it before the commission


Addressing Mr. Perin, Mr. Okum said the difficulty I find with what has been submitted is not that we donít have a landscape plan in front of us.The difficulty is that the main building elevation was altered, eliminating the entrance into the business, relocating it to the north side of the building with certain conditions.This changed the building profile in its direction toward the main roadway.I voted for that change with the conditions that certain criteria were met, and part of that criteria included that if you are relocating your main entrance of your business and leaving the City with a side of the building, we as a commission have to address this portion of the entire site.†† Because of that, I voted to allow the relocation of their main entrance.†††


If you as the landlord are saying that you are not in agreement with that entrance being relocated to the north side of the building, then what we had approved is for you to work out with them, because in my opinion they would have to go back to that side entrance again, or the main front entrance of the building.


Mr. Perin commented that the entrance has been relocated.Mr. Okum responded I understand that.It has been relocated with the condition that the other changes will be made.What you are saying is that they cannot fulfill the obligation of what they agreed to in order for us to allow the change in the building elevation.


Rich Herndon, Attorney for the Perins said I am familiar with the Staples lease and I represented the Perins when we negotiated and executed it.†† The lease does not give Staples the right to make any changes to the common areas without the consent of the Perins, and the Perins have not approved the relocation of the driveway.What they have approved is what is shown on the landscape plan in front of you right now.


Mr. Syfert reported the Perins signed an affidavit that gave Staples permission before this board, and we took that in good faith and everything was agreed upon.There was no representative of the Perins here because they had signed the affidavit.



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Mr. Syfert stated this is now the third person that has stood before this board, and quite frankly, you are wasting a lot of our time.You all need to get on the same page, and I for one do not intend to listen to this tonight unless this commission is agreeable to changing their thinking on the drive through there.We agreed upon that, and we were trying to help Staples and you by giving you the approval on that and allow you to do the landscaping later.Now we have been fiddling around with the landscaping for three months, and we are nowhere.


Mr. Perin responded as I recall from the last meeting, the directive you issued was that we should huddle and get on the same page.In the interest of doing that, Delhi Landscaping, the landlord and the administration worked to get this plan approved to the point where you could bless it.


Mr. Syfert said you ignored what was told to your father in December, that we wanted to work with what had been approved by the Planning Commission.You have ignored that and are doing what you want to do, which might have been your best bet right from the start.


Mr. Vanover said I echo your sentiments.The plan was approved and the ownerís affidavit was signed and presented to us.This landscape plan does not reflect what was approved.You are putting a crosswalk into the side of the building that there is no entrance on.


I for one have no intention of carrying this any further, unless the commission overrides that thought.We have an approved plan out there that everybody agreed on, and that is what should be.


Mr. Syfert said I would like to congratulate you on putting together a nice plan.The landscaping plan is a good one.It just doesnít fit the right footprint.


Mr. Galster said on the entrance drive, it is a safety issue.Last month your mother and father brought up the issues concerning going across access drives at Princeton Plaza and Tri-County Mall, which you do.But, you have ring roads there circling those developments.†† At Tri-County Mall, you do have to cross over that ring road, but those cars are not going from point a to point b at the back of the mall and all going the same place.These are people looking to park; itís not the same kind of traffic. ††It is a major safety issue in terms of having every visitor to the Staples store cross over the traffic on a destination to building b.We donít know its future use, but even if it was a furniture store, every Staples customer will have to pass through the cars destined for that location, and I donít think we should be compromising on that safety issue.


Mr. Herndon said we are really stuck in a bind.Even if the Perins were to agree to the site plan that was approved without their knowledge, there is another lease affecting the property that may be violated by these same changes.




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Mr. Herndon said I understand everything you are saying and I respect that, but really I donít know where that leaves us.We canít implement the changes that were approved because of the restrictions in the Rhodes lease.I donít know if the answer is that they need to change their building back to the way it was before, or where we go from here.


Mr. Syfert responded it seems to me that it would be quite an imposition on Staples to take it back the way it was.It would be more prudent to try to work with what was approved on your behalf.


I was over there the other day and stood out there and watched.It is a dangerous situation.They come around that curve and two or three people just about got hit in about 20 minutes.So I am not going to back off on that road being pushed out there.I never liked it when it went in that way.I appreciate what you have with the Rhodes down there, but I think it is time to really take a look at what you have over there and maybe try to work with that.


Mr. Okum said it is unfortunate that there is an issue of leases.We can only be dealing with what was presented to us and look at the safety and interests of the community.As a customer of both businesses, I personally see the situation as being a significant hazard.†† At Princeton Plaza and Tri-County Mall, there are primary access roads, but they are straight in with an uninterrupted flow of traffic.In this situation, Rhodes has advertised that they are permanently closing, so that is pretty significant, and I have no idea what will go into that GB furniture store, except a volume producer of traffic.I canít see supporting a change, which I didnít like in the first place, of relocating the primary entrance to the business.I think Mrs. Perin said very clearly that the appearance of the building on the west side is an albatross; it is ugly.There is no doubt about it being ugly the way it is setting there.I didnít want that entrance to be moved to the north side, but in an effort to cooperate with your tenant and we had your affidavit in hand, we agreed to allow the relocation of the main entrance of that business to the north side in order to accommodate that business to succeed.I think there was an effort on our part, but it doesnít seem like the two parties have been able to get together to accommodate the safety concerns that we are seeing.At this point, I canít see carrying this any further.


Mr. Hawkins said it seemed clear last month as it is today that all parties involved on that site have not had clear communication throughout and are not on the same page.††† It sounds like you really want this Commission to undo some things that already have been done because of lack of communication and everybody not seeing eye to eye on things.


The only way you will get some kind of change is if you get everybody involved on that site together with some type of resolution.And you still would have to come back to Planning Commission and present it.Right now we canít help you in that situation.Everybody has to get on board together.




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Mr. Hawkins added I appreciate the fact that you are indicating that people were acting without other peopleís consent and people may not have looked at affidavits clearly and closely, but the reality is folks havenít been communicating together clearly, folks havenít been watching what is going on closely and this is why you are in the situation you are in.It is nothing that this Planning Commission can help you get out of.You have to go back and work together if you want to see some kind of change occur.


Mr. Galster said the agenda says we are supposed to be approving the landscape plan.What we have before us is a request to modify that approval.When we deal with this, I suggest we do so carefully because what we have here is not a landscape plan that fits what has been approved.When we dispose of this tonight, however we choose to do so, we need to be instructing the applicant that if in fact he wants to present an application with a landscape plan similar to what he has tonight, he needs to make a request to change what already has been approved, which would become a separate issue.


As it stands right now we have a landscape plan that is required to be submitted and approved.Do we still hold the Certificate of Occupancy until the landscape plan is approved?


Mr. McErlane reported that the driveway has been approved.What remains to be approved is the landscape plan.We expected the landscape plan to match the driveway configuration.If the driveway changes, it is Planning Commissionís determination as to whether or not they want to agree with the change back in the configuration of the driveway.


Mr. Galster responded if in fact the driveway is not changed back, what tool do we have to motivate the final landscape plan with the revised entry drive to come before us so that can be finalized.


Mr. McErlane reported at some point of time we probably will have to file some kind of legal action for occupying without a legitimate Certificate of Occupancy because they havenít completed what was approved by the Planning Commission.†† Mr. Galster said so that would be the next step if we donít see some request for modification to that driveway in the first place.


Mr. Galster moved to table the proposed landscape plan until we have a true landscape plan that fits the plan that was approved.The reason for my tabling is that this would stay on the agenda for next month, assuming that is what we will see before us.If in fact that is not what we see, I would recommend removal.†† I donít want to remove it at this point because I think we need to clear it up.


Mr. Okum commented we still donít have a landscape plan that we can approve.To make it clear and accurate, we have three options, to table, remove it from the agenda (which I donít think is appropriate) or vote on the landscape plan as submitted, and vote our conscience.




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Mr. Okum stated that since the landscape plan truly creates a traffic hazard, I would be voting in opposition to the landscape plan because it doesnít conform to the driveway plan which we approved.That way, they still wouldnít have an approved landscape plan.

Mr. Galster answered true, and it has been rejected.Mr. Galster said the driveway plan has been approved, and basically we have had a landscape plan submitted to us that does not conform to the driveway plan.They have planted trees in the roadway.There is a definite safety issue and unless staff has another suggestion of how to go with this, we should deny the landscape plan because it does not conform to the approved roadway plan.Then the applicant can submit a landscaping plan that does conform to the approved driveway plan.Then they have clear clean direction. that the driveway plan was approved, this commission approved it, and they have to bring a landscape plan that conforms to that.


Mr. Galster said I will withdraw my earlier motion to table and allow Mr. Okumís course of action to be implemented by his forthcoming motion.


Mr. Okum said Iíll defer to staff for comments on this.Ms. McBride reported that staff has worked with these applicants and we have tried to extend deadlines and so forth.The landscaping plan, in terms of the quality and quantity of the plan, meets everything staff has asked them to meet.The question tonight is whether or not you choose to approve their request for a modification or revision to your original approval, which required that the driveway be relocated adjacent to 747.That is really the consideration that is before the commission this evening, whether or not you choose to approve their request for revision.†† I would think that by the fact that they have submitted the plans as they have, reflecting that revision that is in fact a request of the commission.


Mr. Okum commented so their request is not only to approve the landscape plan, it is to approve the modification to the driveway plan that we had previously approved.Ms. McBride responded that is as I take it, and as I have put in my report.


Addressing Mr. Perini, Mr. Okum asked if that was correct.Mr. Perini indicated that it was.Mr. Okum said for understanding, your request is not only an approval of the landscape plan, but an approval of the driveway plan as submitted along with your landscape plan, by inference.†† Is that correct?This would change the secondary approval of the driveway plan as submitted.


Mr. Okum said so our understanding is that it is not just the landscape plan but by reference the driveway plan is indicated.Is that correct Mr. Perin?Mr. Perin indicated that it was.


Mr. Okum asked Mr. Shvegzda if there had been efforts made by the applicant, either the tenant or the owners of the property to accommodate the driveway plan as approved by Planning Commission.Mr. Shvegzda said are you asking if we had any discussions with them prior to the submittal of the landscape plan.


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Mr. Okum responded were there efforts to accommodate Planning Commissionís decision to relocate the driveway to a safe area away from the building?Mr. Shvegzda answered basically what you see is the extent of the discussion of the driveway.We had no discussion with them concerning that.As you can see in my report, if the applicant wished to pursue any revision, they would still have to deal with the concerns that the Commission had expressed when the driveway relocation was discussed.


Mr. Okum said so those items have not been addressed.Mr. Shvegzda responded that the only part of that included on here was a general designation of a crosswalk area. That is physically shown on the plans.


Mr. Galster asked Mr. Shvegzda if the applicant had given him anything that would show that there is a hardship or an inability to comply with the Planning Commission revised driveway plan that would necessitate a new driveway layout.


Mr. Shvegzda reported that the only items that were ever discussed seemed to relate to the lease agreements.There was nothing in regards to the physical or construction issues.Mr. Galster continued and there are no storm water runoff issues or other issues or hardships or reasons that you would usually consider that would show that they were not able to complete the driveway as approved.Mr. Shvegzda responded there are no issues that I am aware of.


Mr. Galster continued I will ask the same of Ms. McBride and Mr. McErlane.Has the applicant given you anything that would usually be reviewed that we would consider as a hardship or some reasonable reason as to why the driveway should be relocated from what was previously approved?

Ms. McBride reported it has been mentioned that there are some lease issues, and that is why under considerations the number one thing I said to the Commission was that you need to determine that the issues that you put forth at the December meeting have been resolved or are no longer issues for you.Then if it is to be approved as is before the Commission this evening, how will the crosswalk be delineated.Is there a need for speed humps or additional signage or that type of thing, if in fact you are inclined to approve the plan this evening.


Mr. Galster said I move to approve the modifications of the driveway plan and the landscape plan that the applicant has submitted with the comment that I will be voting against that approval based on the safety issues that are extremely prevalent on the site and have been addressed numerous times.Mr. Okum seconded the motion.


Mr. Syfert said it has been moved and seconded that we approve the landscape plan which by inference indicates that they wish to change the driveway back to the original location.




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Mr. Okum said I think Mr. Galster brought forward a very valid point.Lease issues are not significant to justify the overturn of a safety design.Safety is the number one concern.In addition we have to deal with building elevations which have been altered on this site for the benefit of the applicant, the tenant of the property so that business could continue to prosper.


I think staffís responses in regards to the applicant not presenting any reasons that they could not accommodate the requirements set forth for a relocation of that driveway system in that site truly supports my decision to vote against this request.


On the motion to approve the landscape plan, no one voted aye, and all members voted no.The approval was denied with seven negative votes.


VI.               NEW BUSINESS


A.            Approval of Message Center Sign, Springdale Beltway Center, 11755 Commons Drive


Mr. Syfert said you had a message that the applicant for the message sign wishes to withdraw the application.Mr. Galster moved to remove it from the agenda and Mr. Vanover seconded the motion.By voice vote all voted aye, and the item was removed from the agenda.


VII.              DISCUSSION


Mr. Galster said I assume all the members have seen a copy of Daveís photographs of a message board.This location is at I-71 South right before Taft.This video display board is at 5,000 nit maximum.The only problem I have with this is at night it doesnít decrease.Mr. Syfert added it is really bright.You can read a newspaper going by there.


Mr. Galster said I canít remember our final nit number on our message display.Mr. McErlane reported that it is 5,000 on video displays.Mr. Galster added I think that number is a realistic one, which also has the ability to be adjusted down and be night sensitive and adjusted down further.


Mr. Syfert said I would like to bring up one issue to the legal people sitting here.As you recall, we had a little problem with the Provident Bank signs on East Kemper Road when Council overrode Planning Commissionís decision.Now I have been called upon to sign off on new signs for National City Bank over there.My question is, do I have that authority?

Mr. Galster replied I would say no.I think it needs to be before this board again.†† We have had the applicant here; Council has come back and so on and so forth, so given the nature of what has happened in the past, I would like have a chance to review that.I appreciate the chairman giving us the opportunity.




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A.            CFA, 11804 Springfield Pike Ė Wall Sign

B.            Mi Ranchito Ė 322 Northland Blvd. Ė Wall Sign

C.            National City Bank Ė 11525 Springfield Pike Ė Wall & Ground Signs

D.            Executive Plaza III Ė 135 Merchant Street Ė Wall Signs


IX.               ADJOURNMENT


Mr. Vanover moved to adjourn and Mr. Galster seconded the motion.††† All voted aye, and Planning Commission adjourned at 7:35 p.m.


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Respectfully submitted,




_____________________,2005†† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† William G. Syfert, Chairman




_____________________,2005†† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Lawrence Hawkins III, Secretary