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pc_11 29 1988LITTLE ROCK PLANNING HEARING NOVEMBER 29, 1988 1:00 P.M. Roll Call and Finding of a Quorum A quorum was present being ten in number. Approval of the October 18, 1988 Minutes III. Members present: Walter Riddick, III Kathleen Oleson Jerilyn Nicholson Martha Miller John McDaniel Rose Collins Connie Whitfield Stephen Leek John Schlereth Fred Perkins Members absent: Bill Rector City Attorney(s) Present: Mark Stodola Stephen Giles November 29, 1988 Item No. 1 - Resolution Expressing Intent to Zone in the Extraterritorial Area Name: Resolution Expressing Intent to Zone in the Planning Area Location: The area outside the City limits to the planning boundary, generally a distance of some three miles. STAFF REPORT: There have been discussions about zoning the planning area for about a year. Now the City Staff is starting the Land Use Plans to guide the zoning decisions and several property owners have requested their property outside the City limits be zoned. As a first step, the City has in the past issued a statement of intent before actually zoning any property outside the City limits. Thus, the resolution is presented for consideration today. The resolution and notice have been done to cover all areas which will be considered for zoning in the future, not just those in west Little Rock. The resolution is the first step to be followed by a Land Use Plan for each area; next are the public meetings and then zoning. STAFF RECOMMENDATION: Approval. PLANNING COMMISSION ACTION: (November 1, 1988) Due to confusion over whether the Extraterritorial Subdivision signs were to be discussed, the Staff recommended that the Commission defer the Public Hearing to November 29, 1988. There was objection from those in attendance and, after some discussion about whether to have the Public Hearing or defer it to November 29th, the Commission decided to hear those people who were present for the item. Mr. Jim Lawson of the Planning staff reviewed the process. He explained that today's issue was simply a declaration of intent to zone, and not zoning itself. He explained that the extraterritorial area had been divided into several planning districts. A plan would be prepared for each and November 29, 1988 I tem No . 1 ( Continued) then zoning would occur. The City would zone the majority of the property "R-2" but would take rezoning requests at no charge for those properties which complied with the Plan. The property owner would have to submit a current survey. Mrs. McCaleb of the Pulaski County Homeowners Association stated her objection to Act 156 and said that zoning was a taking. The legislation was special legislation, and thus illegal. She also stated zoning property would run up the land costs. In order to make the area prosper, regulations and rules should be reduced. By increasing regulation, power is taken from the people and given to a few creating monopolies. All people are not treated the same by zoning. Mrs. McCaleb requested that the City leave the development pattern up to free enterprise. Mr. McCaleb, the second objector to speak, stated that this was really an economic issue - zoning increases costs and the area loses jobs and income (we are using too many young people already). Zoning means no growth and no jobs. In response to a question, Mr. McCaleb stated that the City limit has moved very slowly in the southeast (unlike the west); thus, the controls were not needed. Further, zoning would not be necessary since the land use pattern will be determined before annexation. The zoning will make the land useless. The big guy will purchase the property at a low cost since the little guy could not get zoning. Then the big guy will get the zoning and get the rewards which should have gone to the person who used to own the property. The next speaker, Mr. David Leman, stated that he used to live in the City and he was considering purchasing land from his father in the county. He was concerned about fines due to subdivision actions. Mr. Leman was advised to meet with Staff about the location of his property (his question was whether or not his property was actually within three miles of the City limits) and subdivision of the properties. Ms. Jane Edwards asked how could the City zone the area if they could not even get the meeting straight. Mr. Strayhorn stated he had purchased some land and received a notice about creating an illegal subdivision. He wants to have a mixed commercial and residential use on his property. However, his property is in the Arch Street Plan of which most is shown as mining or residential (a problem with land use). Mr. Strayhorn was advised to get with Staff about the land use issue. November 29, 1988 Item No. 1 (Continued) Ms. Bobbie Rynda stated her land was in Saline County and it was news to her that Little Rock could tell them what they could do or couldn't do with land in Saline County. Ms. Jean New stated she hoped the map showing the planning boundary would be present at the November 29th meeting. She stated she owned a farm inside the City (southwest Little Rock) which was forced into the City by referendum and she was having to pay high taxes for the Sewer District which she was also forced into. She has since bought property in Saline County to get away from Little Rock and now the City is "coming to get her." The Planning Commission voted unanimously to defer the issue to November 29, 1988 and recess the Hearing until that date. STAFF RECOMMENDATION: The Staff will be presenting a revised resolution which is substantially different from the resolution discussed at the November 1, 1988 meeting. The resolution sets a priority system for zoning the extraterritorial areas (see map). The priority system is based upon the following criteria: (a) Expression by a significant number of property owners of a desire to be zoned and later annexed; (b) The amount of development activity occurring or anticipated to occur in the near future; (c) The City's staffing ability to handle new territory. The Staff recommends the adoption of the revised resolution. PLANNING COMMISSION ACTION: (November 29, 1988) Tom Dalton, City Manager, addressed the Planning Commission explaining why the City wished to exercise zoning regulations in the planning area. Mr. Dalton stated that to try to do all the planning area was beyond the Staff's ability (not enough people). Therefore, he was recommending the areas which have the highest growth potential and where property owners have expressed a desire to be zoned and later annexed. The areas affected would be west of Little Rock and south of the port. Saline County areas and the November 29, 1988 Item No. 1 (Continued) planning areas south and east of Arch Street Pike would not be included due in part to the large percentage of the area used for mining. A map showing the gravity flow areas for the Little Rock Waste Water system was shown to help explain why the southern area is not included (cannot get sewer service to the area). Ms. Jacque Alexander, Pulaski County Circuit Clerk, addressed the Commission on the difficulties of assuring that deeds are for properties granted subdivision approval. She noted that provisions of State law are conflicting and that she does not have enough staff to check every deed. Mr. Jim Pfeifer next spoke in favor of zoning regulations to assure that land values are protected, and that one does not have a junk yard next to a $300,000 home. Some twenty people spoke against the proposed resolution. Mrs. McCaleb of the Pulaski County Homeowners Association spoke first restating her opposition and reasons stated on November 1st. Larry Mitchell, State Representative for northeast Saline County, stated he would be introducing legislation to prevent the City planning boundaries from crossing County lines. He stated those he represented were against Little Rock crossing into Saline County. He presented a draft bill he will be introducing in the Legislature this January. Jim Lawson of the Planning Staff outlined the three areas in question giving the boundary lines. Mark Moreland, Pulaski County Quorum Court from Natural Steps, stated that if annexation was voluntary, it was okay; otherwise the City should not force this on the people. John McCaleb, Pulaski County Property Owners Association, restated his positions of November 1st that zoning was elitist and that we would be forcing out the youngest and brightest people to Saline County, Conway, Cabot, etc. Julia McDaniel, President of McDaniel Realty speaking for sixty-five property owners, stated that the zoning regulations were not needed or wanted. November 29, 1988 Item No. 1 (Continued) Gene New, Saline County property owner, stated that the zoning should only be done at the request of the property owners. Dan Kroha, Little Rock attorney, stated that the City was not able to enforce the regulations inside the City, much less outside. He further said that to enact this resolution would be legislation without representation and would be unconstitutional. The City should not restrict freedom of choice, though it is okay to put restrictions on those who want to be annexed. Oris Marie Reed, Precinct 1 Justice of the Peace in Saline County, speaking on behalf of Parker Johnson, County Judge of Saline County, stated that Saline County could take care of itself. She stated the City should notify people about what it wants to do. She further expressed the interest of Saline County officials in working with the City. Jerilyn Nicholson, Planning Commission member, apologized for the way the signs were put up and said the City would try to do better in the future. Walter Riddick, Planning Commission member, stated the Commission wanted to work with Saline County officials no matter what the outcome of this vote because the area is of mutual interest. Gus Longley stated that he picks up junk and has a site near I-30 and is concerned about land use regulation. Brian Morrison, speaking on behalf of the Johnson Ranch Homeowners Association, stated he was against zoning without representation but was for zoning if done right. He asked the Commission to add a County member or members. Representative Jim Keet said he would introduce legislation regarding County representation from extraterritorial areas on the Planning Commission. In addition, Mr. Forest Maus and Mr. Sydney Job, among others, spoke against the resolution. After discussion, the Planning Commission voted in favor of the resolution 7 for, 3 against and 1 absent. November 29, 1988 Item No. 2 - Ordinance to Regulate Adult Entertainment Businesses Name: Regulation of Adult Businesses Location: Various STAFF REPORT: Over the last several months the City Attorney's Office has been working on an ordinance which would regulate the location of adult oriented businesses (bookstores, topless bars, etc.) and the definition of an adult business. The Planning Staff served a support role gathering information and discussing alternatives. Currently there is no difference between an adult bookstore and Walden's Books in the City Ordinances. Due to the effects that adult businesses have had in other communities, the Staff feels additional regulations are needed. (Studies have shown a correlation between adult businesses with increased blight and higher crime levels in the neighborhoods which had such a business in them.) The City recognizes that these businesses have a Constitutional right to exist. However, the City also has regulator powers to assure that the community is protected. (See City Attorney's write-up for Ordinance outline.) STAFF RECOMMENDATION: (October 18, 1988) The Staff feels that the proposed ordinance achieves the proper balance between the businesses' right to exist and the community's right to regulate businesses which can cause harm to surrounding land uses. Approval. PLANNING COMMISSION ACTION: (October 18, 1988) Stephen Giles of the City Attorney's office said that his department needed to perform further research relating to the ordinance. The Commission voted to defer this item to November 29, 1988 by a voice vote (10 ayes, 0 noes, 1 absent). November 29, 1988 Item No. 2 (Continued) PLANNING COMMISSION ACTION: (November 29, 1988) Mark Stodola, City Attorney, reviewed the memo (attached) concerning current regulations and legal cases. He stated currently the City has no regulations on location of these businesses. Mr. Stodola displayed a map to show all the areas where one of the businesses could locate using only the bookstore, video store definition method and notes that only economic issues control the locations. The ordinance is an attempt to control these uses which can have negative secondary impacts on neighboring uses. The City Staff looked at limiting the use to one zoning district but that only concentrated them in certain areas. Therefore, the use of a 750 foot setback appears to be the most appropriate way to regulate the uses. Similar ordinances have been enacted in Las Vegas, Austin, Dallas, etc. Mr. Stodola stressed that the obscenity issue, while related, was not the question, just land use. These businesses may or may not be legally considered obscene. Reverend Robert L. Jones spoke in favor of the ordinance. He stated this started due to "X-rated businesses" on Asher Avenue. The police were not doing anything because there were no complaints. After working with the police and attorney Chris Piazza, many have been eliminated. However, without land use regulations, the businesses will just reopen with new managers. Mr. John Schlereth, Planning Commissioner, stated his concerns about amortizing the businesses. He did not want this ordinance to be a precedent to be used in the future for eliminating other nonconforming uses. The Planning Commission voted to approve the ordinance by a vote of 7 for, 0 against and 4 absent. City of Little Rock Mark Stodola City Attorney City Hall Markham at Broadway Little Rock, Arkansas 72201 501 /371-4527 M E M O R A N D U M TO: LITTLE ROCK PLANNING COMMISSION FROM: MARK STODOLA CITY ATTORNEY RE: REGULATING THE LOCATION OF SEXUALLY ORIENTED B USINESSES DATE: NOVEMBER 17, 1988 In response to continuing and increasing complaints from citizens and community groups throughout the City, Mayor Lottie Shackelford has requested that we research and draft the attached ordinance regulating the location of sexually oriented businesses. It is submitted to you for your review. The proposal suggests that the City utilize its zoning power, in light of these special problems to best serve it citizens. Currently in Little Rock, there exists no type of regulation, zoning or otherwise, of sexually oriented businesses. These businesses may operate as a permitted use under the title of commercial amusement, book and stationary store, bar, lounge, or tavern, private club, regular or drive-in theater, and possibly even others. Under these classifications, a sexually oriented business may currently operate in any area of the City that is zoned O-2, O-3, C-1, C-2, C-3, or C-4. These zoning classifications are located on every major Little Rock thoroughfare, next to residential areas, parks, schools, churches, hospitals and historic sites and are generally scattered throughout the City. There is nothing in the current zoning ordinance to prevent them from operating in various locations throughout the entire City. Indeed, they have cropped up in historic district areas of the City (Regina's Place) and next door to residential neighborhoods. (Books and Looks). Documented statistical evidence shows that the secondary effects associated with sexually oriented businesses can be detrimental to the community where they exist. Increased drug - related arrests, prostitution, rapes, vagrancy, and a general nuisance environment which results in decay and declining property values are a few examples. The U.S. Supreme Court in City of Renton v. Playtime Theatres, 106 S.Ct. 925 (1986) specifically gave municipalities the authority to control these secondary effects, by placing legitimate and reasonable restrictions on sexually oriented businesses through the use of zoning power. This is the purpose of the proposed ordinance. Having researched this issue thoroughly, it is my position that the types of problems that have been experienced in other cities across America can be prevented in Little Rock. The adoption of the proposed ordinance will be a solid step forward in early prevention. The ordinance is in no way intended to restrict the constitutionally protected rictht to freedom of speech. The purpose is to deal with this special land use in the same fashion any other special land use would be dealt with -- regulated to best provide for the health, safety and welfare of Little Rock's citizens. The ordinance is not intended to burden one area of the City more than any other. The intent and effect is to regulate these special land uses in a responsive manner taking into account those areas most adversely affected. The same restrictions and requirements will be equally applied to all quadrants of the City in an attempt to do all that is constitutionally allowed to better the City of Little Rock for its citizens. The proposed ordinance is based on ordinances similar to those enacted in Dallas; Renton, Washington; St. Paul; Seattle; Austin; Amarrilo and Detroit, which have been upheld by the courts. The proposed ordinance is similar in format to the other cities ordinances, but has been updated to best suit Little Rock's needs as well as conforming to constitutional requirements as defined by the courts. Sexually oriented businesses are a special type of land use that is associated with special problems. Therefore, this permitted business operation must be dealt with like any other land use that has special secondary effects attached. The first point to recognize is that not all "speech" is constitutionally protected. According to the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973), "obscene" speech is not protected by the First Amendment. However, pornographic, vulgar, and usually even offensive speech is shielded by constitutional protection. The Supreme Court fashioned a test in Miller to determine what is and is not "obscene ". After determining what was "obscene ", the Court said a business that sells "obscene" products or services is subject to regulation based on its content. Therefore, a business which sells "obscene" products or services is subject to regulation by the laws of the states, and since Arkansas has enacted laws against "obscenity ", that business may not legally operate within the State of Arkansas. However, even though a business sells products or services that are "distasteful" or "vulgar ", that business has under the law as much a constitutional right to operate as any other business and cannot be regulated on the basis of its content. The Supreme Court later held that, even though protected speech cannot be content-regulated; in most circumstances, a time, place, and manner content-neutral form of regulation is not an infringement on freedom of speech. The Court stated in Young v. American Mini Theaters, 427 U.S. 50 (1976) so as long as the regulation is "content-neutral ", not arbitrary or discriminatory, and the "speaker" has adequate alternatives, then the regulation will be valid, and will not be violative of the First Amendment. Seeing the Young case as a legal opportunity to deal with the detrimental secondary effects of sexually oriented businesses, the City of Renton, Washington, implemented a zoning ordinance which defined these businesses and restricted their operation to a limited area of the city where the least detriment to Renton citizens would occur. The U.S. Supreme Court said in Renton that it is possible for a time, place and manner restriction to become so restrictive on speech that it becomes content -based regulation, in violation of the constitution. However, the Court held that while the ordinance limited the amount of land available for sexually oriented business operation, it still provided an adequate amount receptive to this type of use. The Court held the Renton ordinance was a valid use of content - neutral, time, place and manner regulation that is available for protected speech regulation. The proposed ordinance has an extensive definition section clearly defining what is meant by a sexually oriented business. The ordinance then prohibits any such business from operating within 750 feet of any: (1) residential district or use, (2) public or private elementary or secondary school, (3) public park, (4) hospital or other medical facility, (5) properties listed on the National Historical Register or included in the Arkansas Historic Preservation Program. No sexually oriented business may operate within 750 feet of another such business. This distance requirement is intended to prevent the detrimental secondary effects from occurring near sensitive areas of the city, while still allowing the sexually oriented businesses an area of the City where they may operate, pursuant to the United States Supreme Court's interpretation of the Constitution. The proposed ordinance also has a provision which deals with the currently existing sexually oriented businesses which will be rendered non-conforming uses due to their location prior to passage of the proposed ordinance. Currently in Little Rock, there are approximately five sexually oriented businesses in operation. They are generally open 24 hours a day, seven days a week. This number changes from month to month, and the fewer that are in existence when the proposed ordinance is passed, the more effective the ordinance will be. Prompt action on this issue would be beneficial at this time, due to the low number currently operating. Those businesses which are operating when the ordinance is passed will be rendered non-conforming uses. The proposed ordinance creates an amortization period of three (3) years for sexually oriented businesses. Once the ordinance is passed, those businesses which are rendered non - conforming uses will have three years in which to recoup their investments and expenditures. At the end of that time, the business must close and comply with the special zoning requirements. If, for some extenuating circumstance, it would be an unreasonable burden on the sexually oriented business owner to close within three years, the Planning Commission would be able to grant an extension if deemed appropriate. If, at any time during the three year amortization period, the business ceases to operate for a period of ninety (90) days or more, the right to operate as a non-conforming use would be lost. The lost non-conforming use cannot be regained as a non-conforming use in the future. The amortization period and the ninety (90) day discontinued use provision of the proposed ordinance are more restrictive than current amortization or non-conforming use provisions of the current zoning ordinance. Even though these more restrictive requirements apply only to sexually oriented businesses and to no other business, there is no constitutional violation. According to Fisher Buick, Inc. V. City of Fayetteville, 286 Ark. 49, 689 S.W.2d 35 (1985), the amortization period must be "reasonable ", and take into account such things as expected business losses, decrease in real property value, cost of removal, and ordinary costs. A three year period in most cases will be sufficiently reasonable, but if not, "flexibility" is calculated into the ordinance at the discretion of the Planning Commission. The discontinued use period must be basically long enough to determine intent to abandon use, and actual abandonment. A ninety (90) day period is reasonably sufficient. Neither provision is in violation of the equal protection clause of the 14th Amendment of the U.S. Constitution. The City of Little Rock has an obligation to its citizens to do everything legally possible to provide for their health, safety and welfare. A Little Rock zoning ordinance which restricts the available location for operation of these businesses, rather than allowing them to operate virtually all over the city, is recommended. The most logical and constitutionally sound method of dealing with the problems associated with sexually oriented businesses is to prevent their operation anywhere near areas of the city which should be protected from the attributable secondary aspects, and prevent their operation anywhere near another such sexually oriented business, to avoid creation of a "district" which would multiply the secondary effects in a given area. Thank you for your consideration. MS:lm November 29, 1988 Item No. 3 - Northwest Area Land Use Plan Name: Northwest Extraterritorial Area Land Use Plan Location: Generally north of Kanis/Denny Road to the Arkansas River and west of the city limits to Ferndale STAFF REPORT: At the October 18, 1988 Planning Hearing the proposed land use map was discussed. A copy of the plan was distributed for the Commission to review at that time. This is the first of the land use plans leading to the zoning of the extraterritorial area. This plan generally reflects the Highway 10 and Extraterritorial Plans. Much of the area is currently zoned (Chenal Valley and the 2-Mile, 5-Mile River Zoning Area) or will be zoned with Deltic's north slope proposal. The only area of additional commercial shown on the Plan is on Highway 300 where a collector is to connect. This is an existing condition. If the Commission and Board approve the proposed Land Use Plan, then the Staff will begin the zoning process. All areas will be zoned "R-2" unless the property owner requests a more intense zoning which complies with the plan, and the owner provides a current survey. Areas which do not comply with the plan must follow the normal rezoning process. Two areas are called out for future study. These areas are outside the current zoning area, at the intersection of what are proposed to be major roads, and are likely to be developed eventually at a higher density. These areas are outside the expected fifteen year urbanization area. As the western portion of the county urbanizes, a more accurate determination can be made as to the development of these areas. Notices have been posted and published to publicize the hearing on the proposed Northwest Extraterritorial Land Use Plan. STAFF RECOMMENDATION: Approval. November 29, 1988 Item No. 3 (Continued) PLANNING COMMISSION ACTION: (November 29, 1988) Jim Lawson of the Planning Staff reviewed the plan and a problem area west of Glenn Johnson Ranch Road. He recommended that the area at Highway 10 and the multifamily area to the south of Highway 10 just west of Glenn Johnson Road be deferred to December 13th. A question about the floodway locations was asked, and Mr. Lawson stated he felt they were the approximate locations shown on the floodway maps. Brian Morrison of the Johnson Ranch Homeowners Association stated they met with Deltic representatives but wanted the two areas deferred for now as outlined by Staff. Betty Saugey stated she owned a small business on Highway 300 shown as commercial on the plan and wanted to know if her fee would be waived. Also, would she have to dedicate right -of -way. The answer to both was "yes ". Mrs. McCaleb stated some people who were here earlier did not understand this plan would come up today and asked for a deferral. Mr. Longley stated we need more businesses for more tax revenues and jobs. Further, that we should let everyone work. A motion to defer was made by Stephen Leek (no second). Jack Castin, representing Deltic, was asked if a deferral would impact Deltic. He stated Deltic wanted the plan approved with the agreed to areas deferred. A motion to recommend approval of the plan, subject to deferral of the two designated areas to December 13, was made and seconded. The motion passed by a vote of 7 ayes, 1 no and 3 abstentions. November 29, 1988 Item No.. 4 - Zoning Ordinance Amendment Package NAME: Amendment Package to the Little Rock Zoning Ordinance for certain definition modifications and procedural revisions STAFF REPORT This is a package of Zoning Ordinance amendments which deal with the home occupation section, preliminary plat procedure and side yard setback provisions. The package was reviewed at the October 28th Planning Commission retreat. In order not to overload the Commission with amendments, City Staff will bring zoning and subdivision amendments before the Commission in smaller packages. The first is presented today and is composed of three amendments. STAFF RECOMMENDATION: Approval. PLANNING COMMISSION,ACTION: (November 29, 1988) There were no objectors or other interested parties in attendance. Richard Wood of the Planning Staff presented a brief overview of the three amendments proposed by Staff. Wood identified the three issues as those presented to the Commission at their fall retreat at Pinnacle Mountain. He briefly outlined what each amendment consisted of and responded to questions of several Commissioners. After a brief discussion, the Commission voted on a motion to recommend approval of these amendments to the City Board of Directors. The motion passed by a vote of 8 ayes, 0 nays, 3 absent. November 29, 1988 Item No. 5 - 1989 Calendar Name: Planning Commission Calendar for 1989 STAFF REPORT: The City Staff developed a meeting date calendar for 1989. We will continue the three meeting (zoning, subdivision, planning) rotation next year. STAFF RECOMMENDATION: Approval, unless there is a major conflict for several Commissioners PLANNING COMMISSION ACTION: (November 29, 1988) The Planning Commission briefly discussed the calendar and determined it to be appropriate. A motion was made to approve the calendar for 1989. The motion passed unanimously. (8-0-3) November 29, 1988 Item No. 6 - Eagle Point PUD Modification Name: Eagle Point Planned Unit Development Location: Northwest corner of Ridgehaven Road at Napa Valley Road Request: Planning Commission approval of a modification to the approved plan. The modification proposes the reduction of the vehicle access zone along Ridgehaven Road from 25 feet to 15 feet on Lots 1, 20 and 22. STAFF REPORT: Richard Wood of the Staff presented the request to the Commission with a recommendation of approval indicating that the proposed reduction would not affect the conventional setback requirements for a corner lot. Mr. Joe White of White - Daters Engineers was present to represent the request. PLANNING COMMISSION ACTION: (November 29, 1988) The Planning Commission discussed the proposal briefly. The discussion was followed by a motion to approve the modification in the plat and plan. The vote passed by a vote of 7 ayes, 0 nays, 3 absent and 1 abstention. November 29, 1988 There being no further business, the Planning Commission adjourned at 4:00 p.m. DATE: Secretary Chairman