Loading...
5.3 Conditional Use AppealCITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 1 BY: Dean Andrew BY: ITEM: Public hearing on Appeal filed by Terry Criss on behalf of BFR Metals of the conditions of approval applicable to Application #CU09 -1, filed by Gerald Squires dba BFR Metals, requesting approval of a Conditional Use Permit to allow the expansion of an auto salvage yard in an 1 -2 (Light Industrial) district originally approved on May 5, 2009. The subject property is located north of State Street and west of Cherry Street in Blocks 4 and 5 of the Elm Grove Addition to the City of Salina, Saline County, Kansas and is addressed as 1500 West State Street. The applicant is appealing the Planning Commission's decision to limit the salvage yard's Cherry Street gate to emergency access only. (Hearing continued from April 11, 2011 meeting). BACKGROUND: In the spring of 2007 staff conducted an in depth review of the interrelationship between the State's Junkyard and Salvage Control Act, the City's licensing requirements and local zoning regulations as they related to junkyards and salvage yards in the city. A proposal by BFR Metals to expand a grandfathered in automobile graveyard / junkyard on West State Street caused the review to take place and staff concluded that Salina's Zoning Ordinance was deficient in dealing with these types of uses. Many terms used in the State statute and the City's own Junk and Junk Dealers code were not listed or defined anywhere in the Zoning Ordinance. For example, the new North Ohio Corridor Overlay District prohibited salvage yards but that use was not clearly defined in the Definitions portion of the Zoning Ordinance. The related uses that did appear were also not defined and were listed as permitted and not conditional uses in Salina's industrial zoning districts. During discussion leading up to adoption of the City Commission's Strategic Plan and Shared Vision statement the subject of beautifying major entryways into the community was discussed. Staff did not believe that the regulatory tools the city had in place for regulating the location and appearance of uses such as junkyards, automobile graveyards, salvage yards and car crushing operations were consistent with the community's vision for its entryways. City staff recommended that a full review of our zoning code involving these types of uses in industrial districts be undertaken. The City Commission approved a 90 day moratorium on new or expanded junkyards at their April 2, 2007 meeting to allow a review of the City's current licensing and zoning requirements for junkyards to occur. A number of recommended zoning text amendments resulted from this review. The first step was having an agreed upon set of definitions. The City Commission approved a text amendment adopting definitions for seven (7) uses not clearly defined in the Zoning Ordinance on May 7, 2007. A text amendment application was then filed to serve as a follow up to the adopted definitions for salvage yard, automobile wrecking yard, refuse service, etc. by clarifying which industrial districts such uses are allowed in and under what circumstances; permitted use vs. conditional use reviewed on a case -by -case, location -by- location basis. This text amendment was also intended to establish the development standards for such uses. The Planning Commission considered this set of text amendments at their July 17, 2007 meeti CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 2 BY: Dean Andrew BY: Following presentation of the staff report and discussion and questions by Commissioners, the Planning Commission voted 8 -0 to recommend that the city's 1 -2 and 1 -3 district regulations in Article VI be amended to require approval of a Conditional Use Permit to expand or establish a new junkyard or salvage yard within the city limits. The City Commission concurred with the Planning Commission recommendation and approved these ordinance changes on August 13, 2007. BFR Metals' application was the first application filed since the new regulations were adopted. Nature of BFR's 2009 Request The former Wooster Auto Salvage Yard at 1500 West State Street was annexed into the city in 1969. It was established prior to that in the county and grandfathered in upon annexation. In 2006, Bohm Farm & Ranch, Inc. purchased the property, did some clearing and put up a metal panel fence around a portion of the property. Bohm Farm & Ranch also purchased the rear portion of a property owned by Lonnie Wilson at 1450 West State Street and four (4) vacant lots owned by Randy Sterrett on the west side of Cherry Street and extended their fence across a portion of that property. Bohm Farm & Ranch (dba BFR Metals) introduced a car crushing operation as part of their salvage yard business, however, they did not have a state or local license that allowed them to operate or store cars in the area to the east of the original salvage yard. In consultation and cooperation with local salvage yard operators and scrap metal dealers, a comprehensive review of Chapter 33 was undertaken with a goal of amending Chapter 33 to make it more consistent with amendments made to the Zoning Ordinance. A comprehensive revision of Chapter 33, Article III of the Salina Code pertaining to junkyards and junkyard dealers was approved by the City Commission on February 10, 2011. Chapter 33 deals with licensing of existing salvage yards, Chapter 42 deals with new locations and salvage yard expansions. As part of that compliance process, BFR Metals filed an application in 2009 requesting approval of a Conditional Use Permit to allow them to expand their salvage / storage operations on to the property to the east that they acquired from Lonnie Wilson and Randy Sterrett. A Conditional Use Permit had to be approved in order for them to apply for and receive State and local salvage yard licenses. * A permit application was filed on March 6, 2009 with a hearing scheduled for April 7, 2009. The Planning Commission postponed consideration of this application on April 7 to allow a more detailed site plan to be developed and again on April 21 to allow the operator time to comply with the tree planting and fence permit requirements. The role of the Planning Commission was to first determine whether the applicant's proposed change in use from a vacant lot to an expanded auto salvage yard would be compatible with the surrounding neighborhood and secondly whether the applicant's plan for utilizing the site complied with the newly adopted development standards for junkyards and salvage yards. In their review of BFR Metals' application, the Planning Commission had to determine whether BFR's proposed salvage yard expansion would comply with all applicable zoning ordinance requirements. AGENDA SECTION NO: CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. ORIGINATING DEPARTMENT: DEVELOPMENT SERVICES ITEM PLANNING NO: 3 Page 3 BY: Dean Andrew Section 42- 366(5) of the 1 -2 district regulations states: FISCAL APPROVAL: BY: N/A FINAL APPROVAL: BY: Junkyards, salvage yards, scrap metal processors and wrecking yards, including auto salvage yards, automobile graveyards and car crushing operations that involve the keeping and stacking of salvaged parts and materials and the storage of motor vehicles out of doors have operating characteristics that can be an unsightly detraction from the value, use and enjoyment of adjacent properties. Therefore, these uses are prohibited anywhere except in an 1 -2 (Light Industrial) and 1 -3 (Heavy Industrial) zoning district and shall be established only by a Conditional Use Permit approved by the Planning Commission in accordance with the procedures set out in Section 42 -597.2 and shall be subject to such protective conditions that may be warranted by the nature and scale of the salvage operation. The following standards shall apply to the operation of the above list of uses: Junkyard, salvage yard, scrap processing and wrecking yard operations shall contain a minimum of two (2) acres, except they may be as small as 20,000 sq. ft. where the site abuts one or more existing operations that exceed (2) acres in total. Boundaries All boundaries, as established by the issuance of a Conditional Use Permit, shall be designated by fencing or other readily identifiable means such as concrete monuments or posts. Location No operation shall be located within five hundred (500) feet of any established residential district. Fencing / Screening The premises where the operation is conducted shall be enclosed, except for entrances and exits, by means of a nontransparent fence, wall or berm of a minimum height of eight (8) feet measured from ground level. In lieu of a solid wall or fence, chain link fencing may be installed if used in conjunction with a densely planted vegetative screen. Entrances and exits shall have nontransparent gates which shall be closed when the business is not in operation. Required fencing and screening shall be maintained and kept in good repair at all times. No screening fence or wall may be located within a required front yard setback area along a public street or highway. Front Yard Storage No inoperable vehicles or parts thereof or other salvage material shall be displayed or stored outside the fence enclosure in a required front yard or in any manner designed to attract customers or the general public from any public street or highway. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 4 BY: Dean Andrew BY: Crushing operations Vehicle crushing shall be permitted, however, vehicles and other salvage material may be stacked no higher than the height of the required screening fence if located within 25 ft. of the screening fence. No storage or stacking of vehicles or other salvage materials shall be permitted in required parking spaces, driving aisles or fire lanes as determined by the fire marshal. Surfacing All driveways and internal driving aisles shall be surfaced with crushed stone, gravel or other all weather material. All driving and maneuvering areas shall be properly maintained and kept free of potholes, weeds, dust, trash and debris. * These provisions shall apply to any new or expanded junkyard, salvage yard, scrap metal processing or wrecking yard operations established after the effective date of this ordinance. Welfare and Convenience of the Public The Planning Commission was supposed to consider whether the proposed conditional use in this location will contribute to and promote the welfare and convenience of the public. Injury to Surrounding Property / Domination of the Neighborhood The Planning Commission was supposed to consider whether the proposed conditional use will cause substantial injury to the value of other property in the neighborhood and that it will not dominate the immediate neighborhood. From staff's perspective the question was whether the proposed expansion of BFR Metals' operation would make an already unattractive entryway into the city worse. While the existing salvage yard has frontage on State Street, the proposed expansion area is tucked back from State Street and not highly visible. Existing Utilities and Drainage The Planning Commission was supposed to consider whether adequate utility, drainage and other necessary facilities have or will be provided. Salvage yards generally do not need public utilities to function. While the area is not well protected, there are public water lines and fire hydrants in the vicinity. This site does not drain well and staff is continuing to work with the owner on options for getting runoff over to Dry Creek. Traffic, Access & Parking The Planning Commission was supposed to consider whether that adequate access drives will be provided and designed so as to prevent traffic hazards and that adequate off - street parking areas will be provided. AGENDA SECTION NO: ITEM NO: Page 5 CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. ORIGINATING DEPARTMENT: DEVELOPMENT SERVICES PLANNING BY: Dean Andrew FISCAL APPROVAL: BY: N/A FINAL APPROVAL: BY: No off - street customer or employee parking is required for salvage yard operations. BFR Metal's plan showed access gates on State Street (existing) and Cherry Street (proposed). BFR Metals also has an access easement across Lonnie Wilson's property which leads to a south facing gate. The Planning and Fire Departments requested that some form of gate be provided in the Cherry Street screening fence to allow emergency vehicles to access this rear area and because the only fire hydrant available to serve this area is located in Cherry Street. Applicant's Plan for Bringing Site into Conformance Existing Site Area — The existing salvage yard on State Street contains approximately 2.5 acres. Boundaries — Existing fencing identifies the boundary corners except at the northeast corner adjacent to the RR tracks. Existing Fencing / Screening — South — 6 ft. metal panel fence with two (2) solid gates facing State Street. West — Woven wire fence with trees (south) and 6 ft. metal panel fence (north). North — Open facing RR tracks East — 6 ft. metal panel fence runs 430 ft. north of State Street. Remaining 400 ft. is open. Two years ago the owner agreed to plant trees outside the fence along the State Street frontage in order to comply with the licensing requirements in the existing junkyard code (Chapter 33). These trees have been planted and replanted and are currently in place. Surfacing The applicant has put down gravel sufficient to provide an all - weather surface fire lane from the east gate on State Street over to the gate at the north end of Lonnie Wilson's property. This was inspected by the Fire Dept. in 2009 and the internal roadway was found to be sufficient to support fire apparatus and other emergency vehicles. The minimum width of a fire lane is 20 ft. Car Crushing — Car crushing has been taking place on the existing site but not the proposed expansion area. Upon approval of a Conditional Use Permit, car crushing could occur in the expansion area. Proposed Expansion Area Area — The proposed expansion area contains 2.9 acres which would bring the total salvage yard area CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 6 BY: Dean Andrew BY: to 5.4 acres if approved as requested. Boundaries — The boundaries of the expansion area would be identified by fence corners except in the northwest corner adjacent to the RR tracks. Proposed Fencing / Screening Plan — South — The applicant is proposing to extend the existing 6 ft. metal panel fence to the east, extend it north behind the Young Cabinet Manufacturing business and then extend it east along the north side of Young's over to a screening wall that would face Cherry Street. Under Section 42- 366(5) of the Zoning Ordinance any "new" screening fence would have to be at least 8 ft. tall but this could be viewed as an extension of the existing 6 ft. metal fence that is already in place. West — The west side adjoining the existing salvage yard area would remain open. East — The applicant is proposing to construct an 8 ft. concrete block wall at the 25 ft. building setback line facing Cherry Street. This 8 ft. wall would extend 150 ft. from south to north but it would be interrupted by a proposed 30 ft. gate 55 ft. north of the south property line. This gate would consist of metal cattle panels wrapped with a sight obscuring mesh fabric to reduce its weight. * A fence permit to install an 8 ft. dry stack concrete block wall along Cherry Street has been issued and the wall and gate installed. Surfacing — The applicant is proposing to extend the internal gravel roadway from the Lonnie Wilson gate to the proposed Cherry Street gate. This gravel roadway would need to be at least 20 ft. wide and was inspected by the Fire Dept. when it was originally installed. Fire Protection — There is a fire hydrant on the east side of Cherry Street just north of the Cherry Street gate. Conformance with Shared Vision Statement and Strategic Plan A thorough review of the applicant's plan for operating at this site would be consistent with the following vision statement: "The City of Salina will be attractive and well maintained. It will be evident that good housekeeping and high community standards are valued." CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 7 BY: Dean Andrew BY: 2009 Planning Commission Action On May 5, 2009, the Planning Commission voted 6 -1 to approve BFR's plan for expanding the BFR Metals auto salvage yard to the east all the way to Cherry Street. In their action approving a Conditional Use Permit for expanded vehicle salvage and vehicle crushing operations, the Planning Commission included the following conditions of approval: 1. Development and use of the salvage yard site shall conform with the site development plan submitted to and approved by the Planning Commission and with Section 42- 366(5) of the Zoning Ordinance. 2. No screening or additional plantings shall be required along the abandoned railroad line. Although the current condition of Cherry Street was discussed by the Planning Commission, there were no special conditions or limitations placed on the use of the Cherry Street gate and entrance because it was viewed as a secondary or emergency access point with the main entrance to the salvage yard being on State Street. In January and February of 2011 City staff was contacted by property owners on Cherry Street concerned about heavy truck usage on Cherry Street, damage to the street and abutting right -of -way and mud being carried out on to State Street. March 15 Planning Commission Action In response to these complaints, a public hearing to review the conditions of approval attached to this Conditional Use Permit was scheduled for March 15, 2011 at 4:00 p.m. to allow the Planning Commission to clarify for City staff the plan they thought they were approving in 2009 and to direct staff on any limitations on BFR's use of the Cherry Street gate they believed to be appropriate. Neighboring property owners were invited to attend and submit their comments on the current usage of Cherry Street by truck traffic. Following presentation of the staff report, comments from the salvage yard operator, comments and questions from Cherry Street property owners and comments and questions from Planning Commissioners, the Planning Commission voted 7 -0 to add the following condition to BFR's Conditional Use Permit: 3. Use of BFR Metals' Cherry Street gate shall be restricted to emergency vehicles only. The Planning Commission determined that no matter what upgrades were made to Cherry Street, the existing gravel surface would not support heavily loaded trucks. The effect of the Planning Commission action was to limit commercial truck traffic to entering and exiting the salvage yard on paved State Street and not on unpaved Cherry Street. The Cherry Street gate would be used only on an emergency basis by emergency services vehicles called to 1500 West State Street. REVIEW AND APPEAL PROCEDURE: Section 42- 597.2(d) of the Zoning Ordinance states: CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 8 BY: Dean Andrew BY: An applicant who is dissatisfied with the decision of the planning commission may appeal the decision to the board of city commissioners, provided the appeal is submitted in writing to the office of the zoning administrator within fourteen (14) days from the planning commission's action. Upon receipt of an appeal from the action of the planning commission, the board of commissioners shall set a hearing date to consider all information, testimony and minutes of the planning commission's public hearing to reach a decision on the applicant's request. The board of city commissioners may affirm the decision or return the application to the planning commission for further consideration together with a statement specifying the basis for their disagreement. Upon receipt of a second decision from the planning commission, the board of city commissioners may affirm, modify or overrule the decision of the planning commission. The board of commissioners shall overrule the planning commission by a favorable vote of a majority of the full board of commissioners. The City Commission received a written appeal from BFR Metals' attorney on March 29, 2011 and a hearing was initially set for April 11, 2011. The appeal hearing was postponed to May 9, 2011 at the request of the applicant. COMMISSION ALTERNATIVES: Option 1. Accept the findings and sustain the decision of the Planning Commission relating to BFR Metals' Conditional Use Permit. Option 2. Return this item to the Planning Commission for reconsideration with a statement specifying the basis of their disagreement with the Planning Commission's decision. Option 3. Upon advice from the City Attorney, concur with the applicant's attorney that the Planning Commission lacked the legal authority to clarify or modify the conditions of approval related to Application #CU09 -1 which would nullify the March 15, 2011 action taken by the Planning Commission. COMMISSION ACTION: The City Commission should take such action as is determined to be in the best interest of the neighborhood and the community based on consideration of all relevant factors. Because the Commission is acting in a quasi - judicial capacity any motion that is made by a Commission member should include a recitation of findings upon which the motion is based. Enclosures: Application Vicinity Map Approved Site Plan / Operating Plan Applicant's Appeal Excerpt of PC Minutes 4/7/2009, 4/21/2009, 5/5/2009, 3/15/2011 cc: Terry Criss Gerald Squires BFR Metals CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 05/09/2011 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL: NO: 5 DEVELOPMENT SERVICES BY: N/A ITEM PLANNING FINAL APPROVAL: NO: 3 Page 9 BY: Dean Andrew BY: Jay Wooster Ed Horyna, Jr., Rhino Linings Richard Young David Boyce, David's Service Center atyo( Salina Planning & Community Development Publication Date Application No. Marr'n 17., 200q CU 09 -1 Hearing Date Date Filed .April 7, 2009 Feb. 27, 2009 Vicinity Map Attached Filing Fee TB $125.00 Ownership List Receipt No. TB APPLICATION FOR CONDITIONAL USE PERMIT 1. Applicant's Name BFR Metals 2. Applicant's Address 1500 West State Street Salina, KS 67401 3. Telephone (daytime) 785 826 -0327 (Cell) E -mail 4, Owners Name Bohm Farm & Ranch, Inc. Ph. 820 -0094 5. Owner's Address 632 S. Broadway Blvd. Salina, KS 67401 6. Legal Description of affected property (attach additional sheets if necessary) 7. Approximate Street Address 1500 West State Street 8. Present zoning 1-2 Use Vacant 1:;nrj 9. Proposed use of property: Auto salvage yard 10. Are there any covenants or restrictions of record, which would prohibit the proposed development? (attach copy) No 11. State or show compliance with any special conditions or requirements imposed on this conditional use by the applicable district zoning regulations: 12. State why the proposed conditional use will not cause substantial injury to the value of neighboring property: This is an expansion of an existing auto salvage operation and there is industrial zoning on uses on all four sides of the orooertv. 13. Attach a site plan showing how the proposed conditional use will be designed, arranged, and operated in order to permit the development and use of neighboring property in accordance with the applicable district Zoning Regulations. 14. Provide information in support of the standards specified in Section 42 -597.2 of the Zoning Regulations on Page 2 of this application (attach additional sheets if necessary). See next page. I hereby certify that if this conditional use permit application is approved, I will complete construction in accordance with plans submitted and approved by the Planning Commission and I agree to abide by all restrictions, conditions, and requirements lawfully binding upon me in this regard. Applicant(s) Owner(s) Signature �lt.k w Signature Gerald Squires, oberator Pete Bohm, Bohm Farm & Ranch Date: Date: PLF — 041, Application Conditional Use Permit, Rev. 10 -2005 14. (Cont.) Provide a written r6 Anse for all of the following requests ur. Item 14 of the application (attach additional pages where necessary): a. The proposed conditional use complies with all applicable regulations of this chapter, including lot size requirements, bulk regulations, use limitations, and performance standards: The site of the proposed expansion area exceeds 20,000 sq. ft. in size which is the minimum size for a salvage yard b. The proposed conditional use at the specified location will contribute to and promote the welfare or convenience of the public: Car crushing and associated salvage activities provide a needed service in the community. c. The proposed conditional use will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; This site is surrounded by industrial zoninq and uses and is more than 500 ft. from anv residential district. d. The location and size of the conditional use, the nature and intensity of the operation involved or conducted in connection with it, and the location of the site with respect to streets giving access to it are such that the conditional use will not dominate the immediate neighborhood or prevent development and use of neighboring property that complies with the applicable zoning district regulations. In determining whether the proposed conditional use will dominate the neighborhood, consideration will be given to: (i) The location, nature and height of buildings, structures, walls and fences on the site, and (ii) The nature and extent of landscaping and screening on the site No additional structures are proposed at this time. Some fencing exists. A screening / landscaping plan will be submitted with the application. e. Off - street parking and loading areas will be provided in accordance with the standards set forth in Article XI of this chapter, and such areas will be screened from adjoining residential uses and located so as to protect such residential uses from any injurious effect; There is no off - street parking required for salvage yard operations. f. Adequate utility, drainage, and other such necessary facilities have been or will be provided; No utilities are needed for the salvage yard. There are public water lines and hydrants on Cherry Street and State Street. Site runoff goes east toward the old Dry Creek Channel. g. Adequate access roads or entrance and exit drives will be provided and shall be so designed to prevent traffic hazards and to minimize traffic congestion in public streets and alleys. Access drives and gates will be available on State Street and Cherry Street. If the applicant is to be represented by legal counsel or an authorized agent, please complete the following in order that correspondence and communications pertaining to this application may be forwarded to the authorized individual. Name of representative: Gerald Squires Address: 205 E. Irene Salina, KS Zip Code: 67401 Telephone (Business): 785 826 -0327 E-mail address: PLF — 041, Application Conditional Use Permit, Rev. 10 -2005 0 1 Inch = 500 Feet Application #CU09 -1 Filed by BFR Metals Auto Salvage Yard 1 1 I I I I I I I I_ i% ST rea LM ST 4�m i Y ty a e ic d N 1 1 �g a - U sr--V-'v 09.147`O.�i C4` n 0 3�r r 1 -- I I � � s � _- o 0 Planning Commission Action Being Appealed DEVELOPMENT SERVICES City ®f TELEPHONE (785) 309 -5720 PLANNING AND COMMUNITY DEVELOPMENT FAX (785) 309 -5713 Dean Andrew, Zoning Administrator TD (785) 309 -5747 300 West Ash • P.O. Box 736 E -MAIL • dean.andrew(cDsalina.org Salina, Kansas 67402 -0736 Salina WEBSITE • www.salina- ks.gov March 17, 2011 RE: Review of Conditions Applicable to Application #CU09 -1 BFR Metals 1500 West State Street Dear Mr. Squires: This letter is to inform you that the Salina City Planning Commission met on March 15, 2011 to review the conditions of approval placed on your application for a Conditional Use Permit to allow the expansion of BFR Metal's auto salvage yard on to 1 -2 (Light Industrial) zoned property to the east of their existing licensed auto salvage yard at 1500 West State Street. The subject property contains approximately 2.9 acres and includes portions of Blocks 4 and 5 in the Elm Grove Addition to the City of Salina, Saline County, Kansas. BFR Metals had an existing licensed auto salvage and car crushing operation at 1500 West State Street. In March 2009, you proposed expanding your operation to the east all the way over to Cherry Street. Proposed access points were the existing driveway and gate on State Street, the north end of Lonnie Wilson's property and the north end of Cherry Street (see attached plans). Auto salvage yards are a conditional use in the 1 -2 (Light Industrial) district which must be reviewed and approved by the Planning Commission on a case by case, location by location basis. On May 5, 2009, the Planning Commission voted 6 -1 to approve BFR's plan for expanding the BFR Metals auto salvage yard to the east all the way to Cherry Street. In their action approving a Conditional Use Permit for expanded vehicle salvage and vehicle crushing operations, the Planning Commission included the following conditions of approval: Development and use of the salvage yard site shall conform with the site development plan submitted to and approved by the Planning Commission and with Section 42- 366(5) of the Zoning Ordinance. 2. No screening or additional plantings shall be required along the abandoned railroad line. Although the current condition of Cherry Street was discussed by the Planning Commission, there were no special conditions or limitations placed on the use of the Cherry Street gate and entrance because it was viewed as a secondary or emergency access point with the main entrance to -the salvage yard being on State Street. Recently City staff has been contacted by property owners on Cherry Street concerned about the heavy truck usage on Cherry Street and the condition of the street. The purpose of the March 15, 2011 public hearing was to receive comments and input from business owners and residents on the current usage of Cherry Street by truck traffic and to allow the Planning Commission to clarify any conditions or limitations on the use of the Cherry Street gate they believed to be appropriate. #CU09 -1 Page 2 Following presentation of the staff report, your comments, comments and questions from Cherry Street property owners and comments and questions from Planning Commissioners, the Planning Commission voted 7 -0 to add the following condition to your Conditional Use Permit: 3. Use of BFR Metals' Cherry Street gate shall be restricted to emergency vehicles only. The Planning Commission determined that no matter what upgrades were made to Cherry Street, the existing gravel surface would not support heavily loaded trucks. The effect of the Planning Commission action was to limit commercial truck traffic to entering and exiting the salvage yard on paved State Street and not on unpaved Cherry Street. The Cherry Street gate would be used only on an emergency basis by emergency services vehicles called to 1500 West State Street. Appeal to the City Commission. An applicant who is dissatisfied with the decision of the planning commission may appeal the decision to the board of city commissioners, provided the appeal is submitted in writing to the office of the zoning administrator within fourteen (14) days from the planning commission's action. Upon receipt of an appeal from the action of the planning commission, the board of commissioners shall set a hearing date to consider all information, testimony and minutes of the planning commission's public hearing to reach a decision on the applicant's request. The board of city commissioners may affirm the decision or return the application to the planning commission for further consideration together with a statement specifying the basis for their disagreement. Upon receipt of a second decision from the planning commission, the board of city commissioners may affirm, modify or overrule the decision of the planning commission. The board of commissioners shall overrule the decision of the planning commission. The board of commissioners shall overrule the planning commission by a favorable vote of a majority of the full board of commissioners. This means that if you are dissatisfied with the Planning Commission's decision in regard to the use of the Cherry Street gate you may submit a written appeal of that decision to the Zoning Administrator in Room 201 of the City- County Building. Any appeal must be received by Tuesday March 29th at 5:00 p.m. or the decision of the Planning Commission as to the conditions applicable to your Conditional Use Permit is final. If you have any questions regarding the action taken by the Planning Commission on March 15th please feel free to contact me at 309 -5720 or dean.andrew @salina.org. Sincerely, Dean Andrew Zoning Administrator Encl: Vicinity Map Site Development Plan Minutes of 3/15/2011 PC Meeting cc: BFR Metals, 632 S. Broadway Dan Stack, City Engineer Appeal Document LAW OFFICE N. ROYCE NELSON SIDNEY A. REITZ HAMPTON & ROYCE L.C. DAVID D. MOSHIER DEBRA EGLI JAMES 119 West Iron I United Building 1 9th & 10th Floors I P.O. Box 1247 JEFFREY E. KING SALINA, KANSAS 67402 -1247 TERRY D. CRISS BRIAN W. WOOD PHONE: (785) 827 -7251 I FAX: (785) 827 -2815 www.hamptonlaw.com March 29, 2011 City of Salina City Commission 300 W Ash Salina, Kansas 67401 Re: Conditional Use Permit CU09 -1 Dear Mayor Peck and Commissioners Angell, Jennings, Larson and Vanier: TISHA S. MomcAL TODD W. DAVIDSON RUSSEL B. PROPHET NATHANAEL W. BERG OF COUNSEL C. STANLEY NELSON Hampton & Royce, L.C. represents Bohm Farm and Ranch, Inc. d /b /a BFR Metals ( "BFR Metals ") with regard to its Conditional Use Permit CU09 -1 for its licensed auto salvage yard at 1500 West State Street. This letter is BFR Metals' appeal from the March 15, 2011, action taken by the City's Planning Commission. BFR Metals' respectfully submits to the City Commission that the action taken by the Planning Commission constitutes an unlawful taking of property belonging to BFR Metals and further is arbitrary and inconsistent with the criteria examined when the permit was originally issued. Unlawful Taking of Property On April 7, 2009, the Planning Commission first considered BFR Metals' application for a conditional use permit. There was discussion about putting a gate to the property so there would be access via the north end of Cherry Street. The minutes reflect that the Planning Commission voted informally to permit a gate on Cherry Street and that further consideration was postponed until the April 21, 2009, meeting. The application was continued from April 21, 2009, to May 5, 2009, at which time the Planning Commission approved BFR Metals' application for a conditional use permit. The minutes of the Planning Commission's May 5, 2009, meeting do not reflect that there was any discussion about the Cherry Street gate. A Site Development Plan, showing the proposed Cherry Street gate, was provided and made a part of the record. The minutes reflect that discussions relating to Cherry Street concerned the surface of the road and that the installation and/or use of the gate was not discussed. The Application was approved with no screening along the railroad and with the condition that any new fence be eight (8) feet tall. No conditions were placed on the approval of the application with regard to the use of the Cherry Street gate, the duration of the permit or any future review of the permit. Salina City Commission March 29, 2011 Page 2 Section 42- 366(5) of the City Code clearly the issuance of a conditional use permit for a salvage operation, "... subject to such protective conditions that may be warranted by the nature and scale of the salvage operation." Further, Section 42- 597.2(c)(3) provides the planning commission with authority to attach such conditions when granting any conditional use permit as it deems appropriate, stating: "In granting a conditional use permit, the commission may impose appropriate conditions and safeguards including but not limited to planting screens, fencing, construction commencement and completion dates, lighting, operational controls, duration of a use, improved traffic circulation, access restrictions, parking requirements, drainage facilities or any other requirement which the commission deems appropriate upon a finding that they are necessary to fulfill the purpose and intent of this chapter." [emphasis added] At the April 7, 2009, meeting, Zoning Administrator Dean Andrew specifically advised the Planning Commission that it had the ability to attach conditions to the issuance of a conditional use permit. Mr. Andrew further stated that the Cherry Street gate would be used for access to the property and that one of three primary issues the Planning Commission needed to decide was whether a gate should be allowed on the Cherry Street frontage of the property. Despite discussion on the issue, the Planning Commission din not impose any conditions with regard to the gate. The Application for Conditional Use Permit was before the Planning Commission again on May 7, 2009. The height of the existing and future fencing was discussed extensively, but access to the property via the Cherry Street gate was not a topic of much discussion. Two conditions were attached to the proposed conditional use permit when it was finally brought for a vote. One condition dealt with the deletion of any screening requirement along the portion of the property which borders the railroad and a second condition was that any new fencing be eight (8) feet tall. With those two conditions, the application was approved by the Planning Commission. No restrictions or conditions were placed on the gate to the property off of Cherry Street. Nothing in the City Code allows the revocation or modification of this type of a conditional use permit after it has been issued. If conditions are attached to a Conditional Use Permit at the time it is approved, obviously those conditions must be observed and, if they are not, the Planning Commission and /or City Commission would have the authority to enforce those conditions. Other sections pertaining to different types of conditional use permits provide for periodic review. See, for example, Section 42 -68, dealing with amplified sound which states not only that appropriate requirements and conditions may be established and a time limit may be set for expiration unless renewed for an additional period, but also specifically allows that permit to be revoked if the requirements and conditions are not complied with. No language allowing modification or revocation of a Conditional Use Permit exists in Section 42- 597.2. Accordingly, the Planning Commission's action at its March 15, 2011, meeting constitutes a modification of the vested property rights of BFR Salina City Commission March 29, 2011 Page 3 Metals and appropriate compensation to BFR Metals is an unlawful action by the Planning Commission which the City Commission must overrule. Arbitrary and Unreasonable Action Review of the site plan submitted to the Planning Commission on May 5, 2009, when BFR Metals' conditional use permit was approved clearly shows the presence of the gate which allows access to Cherry Street. The gate provides access to the fire hydrant located to the northeast of the property an also provides access to the property for trucks entering and exiting the property. Without access to the northeast corner of its property via the approved Cherry Street gate, BFR Metals is effectively deprived of the use of this portion of its property. BFR Metals' trucks cannot easily turn around in such a narrow area, if they can turn around at all. In reliance on its use of the Cherry Street access gate, BFR Metals procured and spread asphalt millings from the City's recent Broadway Boulevard construction and have had those spread not only inside the gate, but between the gate and Cherry street as well. Staff's report to the Planning Commission acknowledges that surface installed by BFR Metals was inspected by the fire department after installation and that it is adequate. The Planning Commission was acting in response to concerns raised by persons with businesses or homes along Cherry Street. BFR Metals is not the only business which has truck traffic on Cherry Street. However, the Planning Commission's action has the effect of denying BFR Metals the use of a lawful city street, presumably in part over concerns about alleged damages to the street, while leaving other property owners along Cherry Street with full access to the street for all purposes. Denial of the right of one property owner to a city street while leaving the rights of other unaffected is arbitrary and unreasonable. The Planning Commission's action in attempting to put additional conditions on an existing permit is unlawful. The Planning Commission originally approved the Cherry Street gate without further condition. It now seeks to add a condition which will change BFR Metal's access to and use of its property. To attempt to do so is arbitrary and unreasonable. The City Commission should overrule the Planning Commission. If you have any questions, please advise. Very Truly Yours, HAMPTON & ROYCE, L.C. Te D. Criss criss e,hamptonlaw.com TDC /cic Salina City Commission March 29, 2011 Page 4 cc: Mr. Pete Bohm Bohm Farm & Ranch, Inc. 632 S Broadway Salina, Kansas 67401 Excerpts of PC Minutes Salina Planning Commission April 7, 2009 Page 5 of 6 Mr. Stack explained that the updated Comprehensive Plan recommended that all arterial streets be "complete streets." Complete streets provide pedestrian amenities, bike lanes, and transit lanes in addition to regular automobile lanes. Mrs. Soderberg asked why the East Salina Master Plan was developed like it is? Mr. Andrew explained that it was meant to be a signature residential area for Salina with features that weren't located anywhere else in the city. The proposed alignment of Holmes Road was based on placing it on a ridgeline that separated drainage basins. M01-ION: Mr. Meier stated I move that we approve the alignment of Brookwood Lane and Holmes Road as shown on the applicant's plat and recommend that the City be in charge of the future design of Holmes Road. SECOND: Mr. Householter VOTE: Motion carried 8 -0. #7. Application #CU09 -1, file dba Gerald Squires dba BFR Metals, requesting approval of a Conditional Use Permit to allow the expansion of an auto salvage yard in an 1 -2 (Light Industrial). The subject property is located north of State Street and west of Cherry Street in Blocks 4 and 5 of the Elm Grove Addition to the City of Salina, Saline County, Kansas and is currently addressed as 1500 West State Street. Mr. Andrew presented the staff report with visual graphics which are contained in the case file. Mrs. Soderberg asked why the Planning Commission would authorize this without seeing a detailed site plan? Mr. Andrew stated that staff had done a lot of the heavy lifting on this already, however, we need the Planning Commission's input on fencing and putting an access gate on Cherry Street. Mr. Householter stated that he had no problem with a 6 ft. fence abutting Lonnie Wilson's property, but he thought an 8 ft. fence would be better for the back side abutting the abandoned railroad. He asked what sort of traffic is on that part of Cherry Street? Gerald Squires, 205 Irene, stated that they used the Cherry Street entrance one time last year. He stated that the gate was also necessary in order for the Fire Department to access the fire hydrant in the northeast corner of the property. Salina Planning Commission April 7, 2009 Page 6 of 6 Mr. Andrew asked the Planning Commission to informally vote on the idea of a gate on Cherry Street. The Commission voted 8 -0 in favor of permitting a gate on Cherry Street. They also expressed to Mr. Squires that they would like to see 8 ft. of screening along the back of the property, possibly with plantings. Mr. Andrew stated that he would bring more details on the plan for this property to the April 21 meeting. MOTION: Mr. Mikesell stated I move that we postpone consideration of Application #CU09- 1 until the April 21 meeting. SECOND: Mr. Meier. VOTE: Motion carried 8 -0. #8. Preliminary review of site being proposed as a possible flea market location that is not currently zoned for Open Air Markets. Mr. Andrew stated that due to the fact that the applicant, Joe Kroneberger, was not present to answer the Planning Commission's questions, consideration of this item would be postponed. #9. Other Matters The meeting adjourned at 7:03 P.M. Record of this meeting As part of the record of this meeting, please reference staff reports and copies of the DVD recorded by ACCESS TV. All copies can be found in the Development Services Department, Room 201 in the City- County Building. Dean Andrew, Secretary ATTEST: SUMMARY MINUTES SALINA CITY PLANNING COMMISSION CITY COMMISSION ROOM Tuesday, April 21, 2009 MEMBERS PRESENT: Bonilla- Baker, Funk, Householter, Kennedy, Meier, Mikesell, Ritter, Schneider, and Soderberg MEMBERS ABSENT: None STAFF PRESENT: Andrew, Burger, Herrs, and Urban #1. Approval of the summary minutes of the April 7, 2009 meeting. The minutes of the April 7, 2009 meeting were approved as presented. Application #CU09 -1, filed by Gerald Squires dba BFR Metals, requesting approval of a Conditional Use Permit to allow the expansion of an auto salvage yard in an 1 -2 (Light Industrial). The subject property is located north of State Street and west of Cherry Street in Blocks 4 and 5 of the Elm Grove Addition to the City of Salina, Saline County, Kansas and is currently addressed as 1500 West State Street. Prior to the presentation of the staff report Mrs. Soderberg expressed a desire to make a motion regarding consideration of this request. MOTION: Mrs. Soderberg stated I move that we table Application #CU09 -1 until BFR Metals is in compliance with existing requirements. SECOND: Mr. Schneider. DISC: Mr. Andrew stated that City staff had been working with Pete Bohm, the owner of BFR Metals, and Gerald Squires, the operator of BFR Metals, for about two years in order to bring the existing salvage yard site into compliance. One unresolved item on the compliance checklist is the need for 4 to 5 trees at the entrance gate outside the fence. This was a requirement under Chapter 33, the existing junkyard licensing code. Gerald Squires, 205 Irene, stated that he has tried to get a company to plant the trees without success. He stated that he will have to plant some small trees Salina Planning Commission April 21, 2009 Page 2 of 3 himself this week. Mr. Kennedy asked why the fence was built running east to west on the south side of the proposed expansion area. Mr. Andrew stated Mr. Bohm was told not to construct the fence that way. It is not an illegal fence per se, but it does imply that the salvage operation is bigger than it is actually licensed to be. The fence should actually extend the entire length of the eastern boundary of the original site. Mr. Kennedy stated that to him it appears this operation had non - compliant fences, cars stacked on the proposed expansion area, and a pattern of building without consulting City staff, only to have to change them later. Mr. Andrew stated that Mr. Squires may have worked with Judy Irvin, Director of Neighborhood Services, in order to park cars there temporarily while filling in a low spot that was flooding. Mrs. Soderberg asked Mr. Squires how long those cars had been parked there? Mr. Squires stated that they have been parked there since the first of the year while they waited on some rock. Judy Irvin, Neighborhood Services Coordinator, stated that she never gave Mr. Squires permission to park the cars there, she discovered them parked there in 2007. Mr. Andrew stated that the state mistakenly issued a salvage yard license for that area in the spring of 2007. That license was revoked when the state learned that the operation wasn't in compliance with local zoning codes. VOTE: The motion to table consideration of this item carried 5 -4. (Ritter, Funk, Householter, and Schneider dissenting). #3. Preliminary review of a site being proposed as a possible flea market location that is not currently zoned for Open Air Markets. Mr. Andrew presented the staff report with visual graphics which are contained in the case File. Mr. Andrew explained that this land is presently zoned MH -P (Manufactured Home Park) which does not allow flea markets. It is also in a charitable trust which means Mr. Kroneberger does not have full control. Before going to the time and expense of rezoning the property staff wanted to get feedback from the Commission. Mr. Meier asked how the Comprehensive Plan classified this property? SUMMARY MINUTES SALINA CITY PLANNING COMMISSION CITY COMMISSION ROOM Tuesday, May 5, 2009 MEMBERS PRESENT: Funk, Householter, Kennedy, Meier, Mikesell, Schneider, and Soderberg MEMBERS ABSENT: Bonilla- Baker, Ritter STAFF PRESENT: Andrew, Burger, Herrs, and Urban #1. Approval of the summary minutes of the April 21, 2009 meeting. The minutes of the April 21, 2009 meeting were approved as presented. #2. Continuation of public hearing on Application #CU09 -1, filed by Gerald Squires dba BFR Metals, requesting approval of a Conditional Use Permit to allow the expansion of an auto salvage yard in an 1 -2 (Light Industrial). The subject property is located north of State Street and west of Cherry Street in Blocks 4 and 5 of the Elm Grove Addition to the City of Salina, Saline County, Kansas and is currently addressed as 1500 West State Street. Continued from the April 21, 2009 meeting. Mr. Andrew presented the staff report with visual graphics which are contained in the case file. Mr. Mikesell asked if the newly planted trees brought the existing site into compliance? Mr. Andrew stated yes. Ms. Soderberg asked what happens if the trees die? Mr. Andrew stated that they would need to be replaced. Mr. Funk asked who would be responsible for placing addditional gravel on Cherry Street? Salina Planning Commission May 5, 2009 Page 2 of 5 Mr. Andrew explained that it has been assumed that it would be the City's responsibility through the Public Works Department. Cherry Street is a public street right -of -way. Dan Stack, City Engineer, explained that it would be up to the Engineering Department to make sure there is an all weather surface on that portion of Cherry Street. Mr. Kennedy stated he was not clear on the 8 ft. fence requirement. Mr. Andrew explained that staff's position is that the fence height is a discretionary item for the Planning Commission, and it could be a 6 ft. or 8 ft. fence section depending on how you view the fence. You could see the fence as an extension of the existing 6 ft. fence or as a brand new fence that would be required to be 8 ft. high. Another discretionary item for the Commission would be any screening requirements along the abandoned railroad line. Mr. Householter stated that he would be fine with a 6 ft. fence. He expressed embarrassment at the board's attempt to punish Mr. Squires. He also noted that he has walked the tracks and now believes there would be no way to plant trees along the railroad as the area is somewhat of a cesspool. Mr. Mikesell stated he felt that area would never be a scenic byway and would be fine leaving it as it is today. Mr. Kennedy stated that he thought it would be dangerous to set a precedent in this case by allowing exceptions to the 8 ft. fence regulation. He also stated that if there was a drainage problem at this location it should be addressed in the Conditional Use Permit. A discussion ensued between Commission members over what the height should be on the remaining perimeter fence section on the east. MOTION: Mr. Mikesell stated I move we approve Application #CU09 -4 with no screening being required along the railroad and that any new fence be 8 ft. tall. SECOND: Mrs. Soderberg. VOTE: The motion carried 6 -1 with Mr. Kennedy dissenting. #3. Application #Z09 -4, filed by Debbra Burt, requesting a change in zoning district classification from R -3 (Multi - Family Residential) to C -1 (Restricted Business). The subject property is legally described as the East 85 ft. of Lot 7 on Ninth Street in Bishop's Addition to the City of Salina, Saline County, Kansas and addressed as 155 N. 9th Street. SUMMARY MINUTES SALINA CITY PLANNING COMMISSION CITY COMMISSION ROOM Tuesday, March 15, 2011 4:00 p.m. MEMBERS PRESENT: Birdsong, Hodges, Householter, Meier, Mikesell, Ryan and Soderberg MEMBERS ABSENT: Kennedy and Ritter STAFF PRESENT: Andrew, Burger, Herrs, Stack and Urban #1. Approval of the Summary Minutes of the March 1, 2011 regular meeting. The summary minutes of the March 1, 2011 regular meeting were approved as presented. #2. Review conditions of approval applicable to Conditional Use Permit Application #CU09 -1, filed by Gerald Squires dba BFR Metals, requesting approval of a Conditional Use Permit to allow the expansion of an auto salvage yard in an 1 -2 (Light Industrial) district approved on May 5, 2009. The subject property is located north of State Street and west of Cherry Street in Blocks 4 and 5 of the Elm Grove Addition to the City of Salina, Saline County, Kansas and is addressed as 1500 West State Street. Mr. Andrew presented the background report with visual graphics which are contained in the case file. He stated that there was no specific condition of Conditional Use Permit approval relating to the use of the Cherry Street gate. Unfortunately, staff just assumed it was intended to be a secondary or emergency gate. Mr. Ryan asked why are they using the gate on Cherry Street when they are supposed to be using State Street? Mr. Andrew stated that the gate on Cherry Street was put in at the request of City staff for emergency vehicle access only. Staff never imagined that it would be used for heavy truck traffic. The City is not able to make Cherry passable for truck traffic. The Commission has the authority to add limitations as to the use of the Cherry Street gate by the salvage yard operation. Mr. Mikesell asked how much gravel has been put down? Mr. Stack said usually 4 inches of gravel is put down. If it's wet and muddy and you add heavy trucks, there is no chance of keeping the road in good condition. He felt that the Cherry Street gate should be used for emergency access only. March 15, 2011 Page 2of6 Gerald Squires, 205 E. Irene, stated he is the business operator. He explained that the Cherry Street gate is used as a secondary gate with the primary entrance being State Street. The Cherry Street gate is only used a few times a day and the heavy trucks are only used 2 to 3 times a year when crushed cars are hauled out. Mrs. Soderberg asked what type of trucks are using the Cherry Street gate on a daily basis? Mr. Squires stated dump trucks and a pickup and trailer. Mrs. Soderberg asked why they were using Cherry Street? Mr. Squires stated because it's a public street and going up the rise is hard for trucks leaving through the State Street gate. Mr. Householter stated that he didn't see 2 to 3 times a year as a problem. Mr. Squires stated that each "time" is probably 30 to 40 trips. It's used when they are crushing cars. Mr. Meier asked how many trips would there be annually? Mr. Squires stated maybe 50 trips. He stated that because of the millings in their yard the trucks don't drag mud out. Mrs. Soderberg stated that she had been to the property today and she didn't see any gravel. Mr. Squires stated that it's millings with dirt on top. Mrs. Soderberg asked what kind of trucks are using the Cherry Street gate and how many times daily? Mr. Squires stated that light dump trucks use that gate maybe 4 times a day. Mrs. Soderberg asked why couldn't these trucks use the State Street gate? Mr. Squires stated that they could. Mr. Andrew stated that the report he received was that 5 loaded semis were parked on Cherry Street on a Sunday. Mr. Squires stated that was correct. Ed Horyna, Jr., 1326 W. State, stated he is -the owner of Rhino Linings on the corner. He stated that yesterday there were 5 loads brought in on Cherry. Debris March 15, 2011 Page 3 of 6 is always falling off trailers and he himself spent $300 on flat tires last year. The concrete guttering that he spent $38,000 on has been crushed by the truck traffic. Mrs. Soderberg asked what type of truck he typically sees using the Cherry Street gate? Mr. Horyna stated huge dump trucks. He added that the Cherry Street entrance on State Street has collapsed. Mr. Andrew stated that a concrete lip was put on when State Street was resurfaced and that is what has been damaged. Mr. Horyna stated that the trucks fling mud 5 to 10 ft. onto his concrete. Jay Wooster, 159 N. Cherry, stated that the grade of Cherry Street is high too. On Sunday February 13th trucks were coming and going all day. They finally stopped at 12:20 a.m. The price of metal is up so there has been lots of traffic. He stated that he has never seen the City bring in gravel on Cherry Street, only sand. Mrs. Soderberg asked if the trucks were using the Cherry Street gate only one way? Mr. Wooster stated no they use it both in and out of the salvage yard. David Boyce, the owner of Dave's Service Center, 204 N. Cherry, stated that he owns the property across the street and he works on semis, primarily cabs. He stated that the City is going to need to put down gravel as the sand is not working. Mr. Mikesell asked what sort of truck traffic he witnesses using the Cherry Street gate? Mr. Boyce stated that he doesn't pay much attention, but it seems to be considerable. He noted that the trucks that come to his business for repair are not loaded. Richard Young, 207 N. Cherry, stated that the traffic is heavy and tracks have to swing out onto his property across the street in order to make the turn coming out of the gate. Mr. Mikesell asked him how many times he's seen heavy trucks there? Mr. Young stated that 3 times since January 2011, there have been 6 to 8 semis parked there on Sundays. Mrs. Soderberg asked if it was Mr. Young's granite counters in the right -of -way? Mr. Young stated yes, but he would move them. March 15, 2011 Page 4 of 6 Mrs. Soderberg asked Mr. Andrew what the Planning Commission could do? Mr. Andrew stated that the Commission can restrict the use of the gate to emergency vehicles only. We assumed that it wouldn't be used for anything else when this case was first heard 2 years ago. The conditions relating to the use of the gate need to be clarified. Mr. Meier stated that since Cherry Street needs repaired, we cannot go out and do the repairs and then have it destroyed by truck traffic again. Mr. Andrew read a statement from an adjacent property owner, David Wells. Mr. Well believes the surface of Cherry Street needs to be upgraded. Mr. Householter asked if the City could abandon Cherry Street? Mr. Andrew stated that it cannot be vacated without the consent of the adjacent property owners. It just needs to be a low traffic street. Mr. Householter stated that a solution would be to limit truck traffic to a few times a year. Mrs. Soderberg read an excerpt from the April 2009 meeting. Mr. Squires led the Commission to believe it would be very low traffic. Mr. Mikesell stated that our intention was to limit it to emergency vehicles only. How do we limit it now? Mr. Andrew stated you could make a motion to say the Cherry Street gate is for emergency vehicles only. Mr. Squires stated that Hronek Salvage south of State Street shouldn't be allowed to use Cherry Street either. Mr. Stack stated that Mr. Hronek is the only property owner down there, so it's not as much of a problem. Mrs. Soderberg stated that when we get complaints, we will deal with it. Mr. Squires stated that Pine Street is a gravel street and is the same way and it has grain trucks up and down it all day. Mr. Wooster stated that Cherry Street south of State Street is a private road. Mr. Householter asked if we could allow semi traffic on a permit basis a few times a year? Mr. Andrew stated that he didn't see why the gate needed to be used at all. There are two other gates. March 15, 2011 Page 5 of 6 MOTION: Mrs. Soderberg stated I move we amend the conditions of approval applicable to BFR Metal's operation to restrict the use of the Cherry Street gate to emergency vehicles only. SECOND: Mr. Ryan. VOTE: Motion carried 7 -0. Robert Bohm, 632 S. Broadway, stated that he felt the other businesses on Cherry Street should be held to the same standards. The cabinet shop has trucks coming in all the time. He also stated that they were using the Cherry Street gate because it is easier. Mr. Andrew stated that the City is going to go out and help define the right -of -way which should help with some of the issues on Cherry. #3. Other Matters. Mr. Andrew stated that there would be a meeting on April 5, 2011 to review a proposed final plat of Phase I of Wheatland Hills Addition at the northeast corner of Crawford and Holmes Road. Mrs. Soderberg stated that she was shocked to see that the City Commission had heard the Verizon Cell Tower cases and had approved one. When the motion was made in February, she thought they were just tabling them, not denying them completely. Mr. Andrew stated that staff interpreted the Commission's action as a denial, which can be appealed to the City Commission. Since no objections were made by adjacent property owners, the City Commission approved the application on Copper Court. Mr. Douchant did appear at the City Commission hearing to make his case. Mr. Mikesell asked why did the City Commission deny the North 9th Street application? Mr. Andrew stated because of the adjacent property owner's objection to the reduced setback. The meeting adjourned at 5:10 p.m. Record of this meeting As part of the record of this meeting, please reference staff reports and copies of -the DVD recorded by ACCESS TV. All copies can be found in the Development Services Department, Room 201 in the City- County Building.